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IN THE UNITED STATES BANKRUPTCY COURT FOR THE WESTERN DISTRICT OF CHARLOTTE DIVISION

IN RE: CASE NO. 18-30241 BK RACING, LLC CHAPTER 11 Debtor.

FRONT ROW MOTORSPORT’S MOTION TO COMPEL IMMEDIATE PAYMENT OF PRE-SALE CHARTER MEMBER FEES INVOICE

Front Row Motorsports, Inc. (“Front Row”), the Buyer of certain assets of

BK Racing, LLC (“Debtor”) pursuant to the Court’s Order Approving Sale of Race Team Assets

(D.E. 191) (the “Sale Order”) in the above-captioned Chapter 11 case, hereby moves the Court, pursuant to Bankruptcy Code § 105, for an order directing Matthew W. Smith (the “Trustee”) to pay the outstanding invoice issued by NASCAR Event Management, Inc. (“NEM”) to Debtor before the closing of the sale to Front Row for certain outstanding charter member fees (the

“Motion”). In support of this Motion, Front Row respectfully represents and states as follows:

SUMMARY OF RELIEF REQUESTED

1. Front Row seeks an order permitting the Trustee to pay an outstanding invoice

(attached as Exhibit 1), totaling $66,139.00, that NEM issued to the Debtor on or about Friday,

August 24, 2018 (the “Invoice”) for outstanding NASCAR charter member fees – including entry fees to NASCAR races that occurred before August 24, 2018, membership fees, and additional credential, license and driver upgrade fees – that Debtor incurred before the closing of the sale of the Race Team Assets1 to Front Row.

1 “Race Team Assets” means the assets the Court referred to in the Sale Order (D.E. 191 at 3).

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2. The Sale Order, also entered on Friday, August 24, 2018, states that “upon closing of the sale to Front Row…the Trustee shall use a portion of the sale proceeds to pay NASCAR all unpaid charter member fees due and owing under the Charter as the cure payment to

NASCAR pursuant to 11 U.S.C. § 365(b)(1)(A), which, if the closing occurs prior to

September 1, 2018, shall be in the amount of $68,046.00.” (D.E. 191 at 9) (emphasis added).

3. Front Row closed on the sale of the Race Team Assets of the Debtor pursuant to the Sale Order on Monday, August 27, 2018 (the “Closing”), three days after the Invoice was issued to Debtor.

4. Front Row did not know that the Invoice was not paid by the Trustee at the

Closing until the next day, when NEM re-issued the Invoice in the name of Front Row (attached as Exhibit 2) and sent it to Front Row via e-mail on August 28, 2018 (the “Re-Issued Invoice”).

5. Pursuant to 11 U.S.C. § 365(b)(1)(A), the Sale Order and the terms of the Asset

Purchase Agreement (“APA”) executed between the Trustee and Front Row, the Trustee was required to assume the Charter, pay a full cure payment to NASCAR out of the sales proceeds, and then assign the Charter to Front Row as the winning bidder. By failing to fully pay and cure the amounts due and owing to NASCAR at Closing, Front Row is being denied the full benefit of its bargain with the Trustee/Seller, as NASCAR is now looking to Front Row to satisfy Debtor’s pre-Closing Invoice.

6. For all these reasons, and as discussed further below, this Court should order that the Invoice be paid in full out of the cash collateral of the Debtor to enforce the terms and spirit of the Court’s prior Orders, including the Sale Order which required that the Trustee use the sale proceeds to “pay NASCAR all outstanding charter member fees due and owing under the

Charter.”

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JURISDICTION

7. This Court has jurisdiction over this matter pursuant to 28 U.S.C. §§ 157 and

1334. Venue of this case and the Motion in this district is proper pursuant to 28 U.S.C. §§ 1408

and 1409. This matter is a core proceeding pursuant to 28 U.S.C. § 157(b)(2).

BACKGROUND FACTS

8. The Debtor filed a voluntary petition for relief under Chapter 11 of Title 11 of the

United States Code (the “Bankruptcy Code”) on February 15, 2018 (the “Petition Date”). The

Debtor was in possession of its Race Team Assets and the management of its business and affairs

as a debtor in possession pursuant to Bankruptcy Code § 1107 and 1108.

9. Before the August 27, 2018 Closing, Debtor was in the business of operating a

NASCAR-chartered, Monster Energy cup series (“Cup Series”) race team. The Debtor’s right

and license to participate in NASCAR chartered events was authorized and otherwise governed

by that certain NASCAR Cup Series Charter Member Agreement entered into by and between

NASCAR and the Debtor (the “Charter”). The Charter generally required the Debtor to pay

NEM charter member fees to continue to participate in the Cup Series

10. From the time of Trustee’s appointment, the Trustee regularly paid NEM charter member fees assessed when the Debtor remained in possession of the Race Team Assets.

Payment of the charter member fees allowed Debtor to continue to operate and participate in the

Cup Series. For example, on March 23, 2018, upon information and belief, the Trustee paid

NEM $41,799.00 for charter member fees. (D.E. 148 at 30.) The charter member fees invoiced by NEM were being paid out of the Debtor’s cash collateral as “obligations or expenses incurred in the ordinary course of the Debtor’s business.” (See D.E. 141 at 5; see also D.E. 50; D.E. 68;

D.E. 174 (collectively, “Cash Collateral Orders”).) Charter member fees include the race entry

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fees charged by NASCAR to participate in the Cup Series. Without prompt payment of said

fees, Debtor would not be permitted to collect the prize money awarded for participating in the

Cup Series. The Trustee’s prompt payment, from the Debtor’s cash collateral, of all charter member fees due and owing to NEM allowed Debtor to continue to operate its business, and said

payments were in the best interests of the Debtor’s bankruptcy estate. (See also D.E. 174 at 4,

¶ 14 (“Without the Debtor’s continued use of the Cash Collateral, the Trustee will not be able to

operate the Debtor’s business or otherwise preserve the Collateral’s value.”).)

11. On July 20, 2018, the Trustee moved this Court to enter an order approving

bidding and sale procedures in connection with the sale of the NASCAR charter and related

assets and to “establish[] the amount of the cure payment due NASCAR for assumption of the

Charter.” (D.E. 163 at 17, ¶ 11.)

12. On August 3, 2018, the Court entered the Sale Procedures Order (D.E. 172),

which: (a) established the bidding and other procedures for the sale of the Race Team Assets;

and (b) set forth the terms of the APA that any prospective buyer would be required to execute to

purchase the Race Team Assets. Section 17.3 of the APA states that “Seller has the power and

right to assign the NASCAR Charter to Buyer, and upon such assignment, no amounts will be

due and payable to NASCAR other than payment of any applicable Transfer Fee provided in the

NASCAR Charter.” (D.E. 172 at 24) (emphasis added).

13. On August 3, 2018, the Court further authorized the Trustee to “use the Cash

Collateral to satisfy obligations or expenses incurred in the ordinary course of the Debtor’s

business during the period beginning at 12:00 a.m. on August 1, 2018 and continuing through

11:59 p.m. on August 31, 2018.” (D.E. 174 at 5.) Consistent with the prior Cash Collateral

Orders and the prior payment(s) to NASCAR for charter member fees, the Trustee was

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authorized to pay outstanding charter member fees that were incurred prior to the Closing “in the

ordinary course of Debtor’s business.”

14. During the August 21, 2018 hearing in this matter, the subject of when and who would pay NASCAR a cure payment was addressed by the Trustee’s counsel before Front Row closed on the sale:

“Trustee’s Counsel:…the allocation of the NASCAR cure [payment] and the break-up fee, we’re going to fight about those later.

Court: Those are being paid out of the proceeds of the sale?

Trustee’s Counsel: Correct.

Court: Alright. The buyer is not paying them?

Trustee’s Counsel: Correct.

Court: At least not directly?

Trustee’s Counsel: Yes.” (D.E. 189 at 00:21:10-00:21:27.). Front Row reasonably relied on the representations made in open court that NASCAR would be paid a full cure payment out of the proceeds of the sale. No

party, including Union Bank & Trust (“UBT”), voiced any objection to the NASCAR cure

payment being paid out of the sale proceeds at closing. UBT’s counsel voiced support for the

sale to Front Row, stating that “we’ve got a buyer who participated in the process, played by the

rules that were established by the Court, and became the prevailing bidder.” (D.E. 189 at

00:17:45-00:17:53.)

15. Three days later, the Court entered the Sale Order on August 24, 2018, which

ordered that “the Trustee shall disburse sale proceeds in an amount to satisfy all unpaid charter

member fees due and owing under the Charter in full satisfaction of the cure payment to - 5 -

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NASCAR pursuant to 11 U.S.C. § 365(b)(1)(A). Assuming such closing occurs prior to

September 1, 2018, the cure amount shall be $68,046.00.” (D.E. 191 at 6, ¶ 13) (emphasis added).

16. Front Row executed the APA in the form attached to the Sales Procedures Order.

(D.E. 191 at 5, ¶ 9.) The APA requires that the Trustee “pay NASCAR all unpaid charter

member fees” out of the sale proceeds “upon the closing of the sale to Front Row” (Id. at 9,

¶ (g)) (emphasis added).

17. Prior to Closing, NEM issued a $66,139.00 Invoice on August 24, 2018 to Debtor

for unpaid “2018 CHARTER MEMBER FEES” (Ex. 1, p. 1) that Debtor had already incurred,

including race entry fees, race credential fees incurred on June 28, 2018 (Id., p. 2), crew licenses

and credential fees incurred on July 3, 2018 (Id., p. 3), and crew licenses, credentials and driver

upgrade fees incurred on August 1, 2018 (Id., p. 4).

18. The Trustee did not pay NEM all “unpaid charter member fees” out of the sales

proceeds “upon the closing of the sale to Front Row.” The Invoice remains outstanding and

due.2

19. The APA required the Seller/Trustee: (1) to give “prompt written notice” to Front

Row “of any event that would be likely to cause…any material adverse effect on the Acquired

Assets”; and (2) to “immediately notify” Front Row of “any event or condition [that] has

occurred, or is reasonably likely to occur, that would constitute an event of default under the

2 Front Row attempted to resolve this outstanding Invoice by proposing that: (a) Front Row pay approximately one-third of the Invoice ($22,024.29); and (b) the Debtor immediately pay the remaining $44,114.71 out of the cash collateral sales proceeds. UBT rejected this proposal. Front Row nevertheless paid NEM $22,024.29 after the Closing to partially pay the Invoice and now seeks relief from this Court to compel the full payment of the Invoice from the Debtor’s cash collateral.

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NASCAR Charter (or would constitute an event of default if not cured within a specified period of time).” (D.E. 172 at 27, ¶ 21.) Failure to promptly pay a $66,139 Invoice for outstanding charter member fees constitutes an event of default under the NASCAR Charter and would have a “material adverse effect” on the assets acquired by Front Row.

20. Front Row was not immediately notified of the Invoice, nor did Front Row receive any written notice from the Seller/Trustee about the existence of the Invoice before the

Closing. Front Row did not know during the Closing on Monday, August 27, 2018 that the

$66,139 Invoice was sent to the Debtor three days earlier and remain unpaid.

21. If the Seller/Trustee had provided Front Row written notice of the outstanding

Invoice before the Closing, Front Row could have, pursuant to the APA, decided “to advance funds to Seller which are reasonably necessary to avoid, or cure, [an event of default under the

NASCAR Charter] and…the amount of such advance shall be credited against the balance of the

Purchase Price at Closing.” (D.E. 172 at 27, ¶ 21.) Front Row was never given this option, and thus Front Row never received any credit against the Balance of the Purchase Price at Closing for the Invoice.

22. To maintain its standing with NASCAR, Front Row has paid all race entry fees and charter member fees assessed in connection with races in the Cup Series that occurred after

Closing.

23. Front Row did not permit the sale of the Race Team Assets to close while knowing that the Invoice remained unpaid.

24. NEM re-issued the Invoice the day after the Closing to Front Row and has demanded that Front Row pay the full balance of the Invoice totaling $66,139.00. (Ex. 2.)

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25. Upon information and belief, the Trustee is able, and willing, to pay the Invoice

with cash collateral currently held by Trustee but cannot do so without this Court authorizing

such a payment because a secured creditor, namely UBT, objected to the Trustee’s payment of

the Invoice.

26. Upon information and belief, this Motion is not opposed by either the Trustee,

NASCAR or NEM.

RELIEF REQUESTED

27. By this Motion, Front Row seeks an order authorizing the Trustee to immediately

pay the pre-Closing Invoice issued to Debtor by NEM, totaling $66,139.00, out of the Debtor’s

cash collateral because 11 U.S.C. § 365(b)(1)(A), the APA and the Court’s prior orders –

including the Cash Collateral Orders, Sale Procedures Order and Sale Order – require that the

Trustee pay NASCAR, at the time of Closing, all unpaid charter member fees due and owing

under the Charter out of the sale proceeds.

BASIS FOR RELIEF REQUESTED

28. Under Bankruptcy Code § 105, the Court may (1) “issue any order, process, or

judgment that is necessary or appropriate to carry out the provisions of this title” and (2) take

“any action or make any determination necessary or appropriate to enforce or implement court

orders.”

29. This Court should, pursuant to § 105, enter an order authorizing the Trustee to

make an immediate payment from the Debtor’s cash collateral to pay the Invoice to prevent the

circumvention of the Court’s prior orders. Immediate full payment of the Invoice is required to

enforce the Court’s prior orders, with no possibility of later disgorgement by a Chapter 7 trustee

if the Debtor’s estate later proves to be administratively insolvent. See, e.g., In re Rich's Dept.

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Stores, Inc., 209 BR 810, 817 (Bankr. Mass., 1997) (holding that § 105 “provides ample

authority for this Court to order immediate payment of rent to prevent the circumvention of its

orders…which payments shall not be subject to disgorgement.”); see also In re Phillips, 553

B.R. 536, 542 (Bankr. E.D. N.C., 2016) (stating that, pursuant to § 105, “bankruptcy courts, as courts of equity, have the power to reconsider, modify or vacate their previous orders so long as no intervening rights have become vested in reliance on the orders”) (citing Meyer v. Lenox (In re Lenox), 902 F.2d 737, 739–40 (9th Cir.1990).

A. The Court’s Pre-Closing Orders Authorize the Trustee to Pay Outstanding NASCAR Charter Member Fees.

30. To enforce this Court’s prior orders, NASCAR must receive all amounts that were due and owning by Debtor at or before Closing because the Trustee could not have assumed and assigned the Charter to Front Row without first paying NASCAR the full cure payment. (See

D.E. 191 at 9, ¶ (g) (requiring that “all unpaid charter member fees due and owing under the

Charter” be paid as the cure payment under 11 U.S.C. § 365(b)(1)(A)); see also 11 U.S.C. §

365(b)(1)(A) (prohibiting a trustee from assuming a executory contract in default unless the trustee “cures, or provides adequate assurance that the trustee will promptly cure, such default”).)

31. The Trustee could not have assumed the Charter without either fully curing the default or providing an adequate assurance that the default will be promptly cured. See 11

U.S.C. § 365(b)(1)(A); see also Matter of Superior Toy & Mfg. Co., Inc., 78 F.3d 1169, 1174

(7th Cir. 1996) (“A party to an executory contract must be paid all amounts due him under the contract before the contract may be assumed.”).

32. Further, the Court previously authorized the Trustee to pay any NASCAR charter member fees as they became due pursuant to the Cash Collateral Orders. See ¶ 10, supra. The

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Invoice was not paid despite this Court’s express authorization to pay “obligations or expenses incurred in the ordinary course of the Debtor’s business.” (D.E. 174 at 5.) Upon information and belief, UBT now objects to the use of the cash collateral to pay the Invoice, but this is directly contrary to the Trustee’s prior practice of promptly paying NASCAR charter member fees that allowed Debtor to continue to “operate the Debtor’s business or otherwise preserve the

Collateral’s value.” (D.E. 174 at 4, ¶ 14.)

33. Failure to pay the Invoice would allow UBT (and any other creditors of the

Estate) to gain the benefit of the Debtor being able to continue to operate its business prior to

Closing (including the receipt of NASCAR prize money), while shifting the costs associated with running the Debtor’s business to Front Row during the pre-Closing period. This result was not contemplated in any of the Court’s prior orders.

B. The Invoice Was Not Paid Before Closing And Front Row Was Not Provided Written Notice of Its Existence Before Closing in Violation of the Terms of the APA.

34. First, the terms of the APA were violated when the pre-Closing Invoice remained unpaid at Closing because: (a) the representations and warranty made to Front Row stated that only a Transfer Fee would be payable to NASCAR; and (b) “all actions necessary to maintain the

NASCAR Charter” were not performed as the failure to promptly pay the Invoice was contrarty to the “use commercially reasonable efforts to conduct the Business of the Debtor in the ordinary course of business.”

35. Specifically, the failure to pay the Invoice before Closing violates both Sections

17.3 and 20 of the APA, which provide:

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“17.3…Seller has the power and right to assign the NASCAR Charter to Buyer, and

upon such assignment, no amounts will be due and payable to NASCAR other than

payment of any applicable Transfer Fee provided in the NASCAR Charter.”

(D.E. 172 at 24) (emphasis added).

“20. … [f]rom the date hereof until the Closing Date, Seller shall: (a) use

commercially reasonable efforts to (i) conduct the Business of the Debtor in the

ordinary course of business, (ii) preserve the present business operations,

organization and goodwill of the Business, (iii) maintain the Acquired Assets in the

ordinary court of business, and (iv) preserve the present relationships with persons

having business dealings with the Debtor (including suppliers of the Business); and

(b) take all actions necessary to maintain the NASCAR Charter.” (D.E. 172 at 27).

36. Despite the representation and warranty that “no amounts will be due and payable to NASCAR other than payment of an applicable Transfer Fee,” Front Row learned only after the Closing that the $66,139.00 Invoice was also due and owing to NASCAR for pre-Closing charter member fees incurred by Debtor.

37. Further, after receiving the Invoice on August 24, 2018, Front Row is unaware of any action that was taken to maintain the NASCAR Charter or prevent the Charter from falling into default for Debtor’s failure to pay the outstanding charter member fees. No written notice was provided to Front Row that NASCAR issued the Invoice, nor was Front Row notified that the Invoice was due only eight days after it was issued. Front Row discovered the day after

Closing, after receiving an e-mail from NASCAR, that the outstanding Invoice needed to be

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38. Second, the terms of the APA were violated when: (1) Front Row was not provided “prompt written notice…of any event that would be likely to cause…any material adverse effect on the Acquired Assets”; and (2) Front Row was not “immediately notif[ied of]

…any event or condition [that] has occurred, or is reasonably likely to occur, that would constitute an event of default under the NASCAR Charter (or would constitute an event of default if not cured within a specified period of time).” (D.E. 172 at 27, ¶ 21.) The failure to provide written notice to Front Row of the unpaid Invoice denied Front Row the opportunity to, pursuant to the Section 21 of the APA, decide “to advance funds to Seller which are reasonably necessary to avoid, or cure, [an event of default under the NASCAR Charter] and…the amount of such advance shall be credited against the balance of the Purchase Price at Closing.” (D.E.

172 at 27, ¶ 21.) Front Row could have resolved the issue of this unpaid Invoice before Closing by receiving a credit against the Balance of the Purchase Price at Closing for the Invoice, but

Front Row was never given the opportunity to pursue this remedy due to the breach of the APA’s written notice requirements to inform Front Row of the existence of the outstanding Invoice before Closing.

C. Failure to Pay the Invoice in Breach of the APA Caused Front Row to Incur Reasonable Attorneys’ Fees in Seeking to Recover Payment of the Invoice.

39. Front Row was forced to retain undersigned counsel to file this Motion to enforce

Front Row’s rights under the APA to recover payment of the Invoice from the cash collateral of the Estate.

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40. The APA states that “[i]f legal proceedings are instituted to enforce any provision

of this Agreement, the prevailing party in the proceeding shall be entitled to recover from the non-prevailing party reasonable attorneys’ fees and court costs incurred in connection with the proceeding.”

41. Front Row also seeks an order awarding it reasonable attorneys’ fees that were incurred as a direct result of the breach of the APA for failing to promptly pay the Invoice and

failure to follow the APA’s notice requirements.

42. Notice of this Motion and Proposed Order have been given to: (a) the Bankruptcy

Administrator for the Western District of North Carolina, (b) the Trustee; and (c) all parties

requesting notice pursuant to Bankruptcy Rule 2002.

WHEREFORE, Front Row respectfully moves the Court to enter an order authorizing

the Trustee to immediately pay the Invoice from the sale proceeds and cash collateral, an award

of reasonable attorneys’ fees incurred by Front Row in connection with this Motion, and such

other and further relief as is just and proper.

This the 20th day of November 2018.

/s/ Daniel s. Trimmer Daniel S. Trimmer (N.C. State Bar. No. 44858) SKUFCA LAW, PLLC 1514 S. Church Street, Suite 101 Charlotte, North Carolina 28203 Tel. 704.376.3030; Fax 704.376.8522 [email protected]

Attorney for

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IN THE UNITED STATES BANKRUPTCY COURT FOR THE WESTERN DISTRICT OF NORTH CAROLINA CHARLOTTE DIVISION

IN RE: CASE NO. 18-30241 BK RACING, LLC Debtor. CHAPTER 11

NOTICE OF HEARING

TAKE NOTICE that on Tuesday, December 11, 2018, at 9:30 A.m. in Bankruptcy Courtroom 1-4 in the United States Courthouse, 401 West Trade Street, Charlotte, North Carolina, this Court will conduct a hearing on Front Row Motorsport’s Motion to Compel Immediate Payment of Pre-Sale Charter Member Fees Invoice (the “Motion”).

This Motion seeks Court approval to pay, out of the Debtor’s cash collateral, an outstanding invoice, totaling $66,139.00, that NASCAR Event Management, Inc. issued to the Debtor on or about Friday, August 24, 2018 (the “Invoice”) for outstanding NASCAR charter member fees that Debtor incurred before the closing of the sale of the Race Team Assets to Front Row Motorsports, Inc.

Your rights may be affected. You should read this Notice carefully and discuss it with your attorney, if you have one in this bankruptcy case. If you do not have an attorney, you may wish to consult one.

IF YOU DO NOT WANT THE COURT TO GRANT THE RELIEF REQUESTED IN THE MOTION OR IF YOU WANT THE COURT TO CONSIDER YOUR VIEWS ON THE MOTION, THEN YOU OR YOUR ATTORNEY SHOULD ATTEND THE HEARING AT 9:30 A.M. ON TUESDAY, DECEMBER 11, 2018, IN BANKRUPTCY COURTROOM 1-4 IN THE UNITED STATES COURTHOUSE, 401 WEST TRADE STREET, CHARLOTTE, NORTH CAROLINA.

If you or your attorney do not take these steps, the Court may decide that you do not oppose the relief requested in the Motion and may enter an order approving the Motion.

This the 20th day of November 2018. /s/ Daniel s. Trimmer Daniel S. Trimmer (N.C. State Bar. No. 44858) SKUFCA LAW, PLLC 1514 S. Church Street, Suite 101 Charlotte, North Carolina 28203 Tel. 704.376.3030; Fax 704.376.8522 [email protected] Attorney for Front Row Motorsports

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CERTIFICATE OF SERVICE

I hereby certify that the foregoing has been served upon those parties that have requested notices for this case as of November 20, 2018 through the CM/ECF system and upon the following parties by depositing same in the United States mail, postage prepaid, in envelopes addressed as follows and/or by means of the Electronic Filing System of the Bankruptcy Court:

BK Racing, LLC 6780 Hudspeth Road Harrisburg, NC 28075

Grier Furr & Crisp, P.A. 101 N. Tryon Street, Suite 1240 Charlotte, NC 28246 Attorneys for the Trustee, Matthew W. Smith Anna S. Gorman Email: [email protected] Michael Leon Martinez Email: [email protected] Anna Cotton Wright Email: [email protected]

United States Trustee Office U.S. Bankruptcy Administrator Office 402 W. Trade Street, Suite 200 Charlotte, NC 28202-1669

Ronald Ingalls c/o Bell, Davis & Pitt, P.A. 227 West Trade Street Suite 1800 Charlotte, N C 28202

Michael D. Mueller Christian and Barton , L.L.P. 909 E. Main St., Suite 1200 Richmond, VA 23219-3095

This the 20th day of November 2018.

/s/ Daniel s. Trimmer Daniel S. Trimmer

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