TWENTY-SECOND AMENDMENT TO
EXHIBIT 10.1
“RCT” means the material omitted has been filed separately with the Securities and Exchange Commission with an application requesting confidential treatment.
TWENTY-SECOND AMENDMENT TO
THIS TWENTY-SECOND AMENDMENT TO LEASE AND SUBLEASE AGREEMENT (“Twenty-Second Amendment”) is made and entered effective the 30th day of June, 2009, by and between XXXXX’X FOOD & DRUG CENTERS, INC., an Ohio corporation qualified to do business in Nevada (hereinafter called “Smith’s”) and XXXXXX GAMING, INC. a Nevada corporation, and MARKET GAMING, INC., a Nevada corporation (hereinafter collectively called “Xxxxxx”), successor to ANCHOR COIN, a licensed slot route operator in the State of Nevada (hereinafter called “Anchor”).
WITNESSETH:
WHEREAS, Smith’s and Anchor entered into that certain Lease and Sublease Agreement dated July 28, 1993, whereby Smith’s leases or subleases space to Anchor within those certain properties listed on Exhibit “A” to the Agreement and identified as either “Leased Properties” or “Owned Properties,” for the operation of certain gaming devises, which Agreement was amended by that certain First Amendment to Lease and Sublease Agreement dated June 30, 1994; that certain Second Amendment to Lease and Sublease Agreement dated January 25, 1995; that certain Third Amendment to Lease and Sublease Agreement dated March 28, 1995; that certain Fourth Amendment to Lease and Sublease Agreement dated February 27, 1996; that certain Fifth Amendment to Lease and Sublease Agreement dated April 26, 1996; that certain Sixth Amendment to Lease and Sublease Agreement dated November 13, 1996; that certain Seventh Amendment to Lease and Sublease Agreement dated February 21, 1997; that certain Eighth Amendment to Lease and Sublease Agreement dated December 19, 1997; that certain Ninth Amendment to Lease and Sublease Agreement dated August 4, 1998; that certain Tenth Amendment to Lease and Sublease Agreement dated September 28, 1998; that certain Eleventh Amendment to Lease and Sublease Agreement dated May 3, 1999; that certain Twelfth Amendment to Lease and Sublease Agreement dated March 29, 2000: that certain Thirteenth Amendment to Lease and Sublease Agreement dated January 12, 2001; that certain First Affiliate Amendment to Lease and Sublease Agreement dated August 23, 2002; that certain Fourteenth Amendment to Lease and Sublease Agreement dated October 9, 2002; that certain Fifteenth Amendment to Lease and Sublease Agreement dated August 29, 2003; that certain Sixteenth Amendment to Lease and Sublease Agreement dated December 2, 2003; that certain Seventeenth Amendment to Lease and Sublease Agreement dated March 12, 2004; that certain Eighteenth Amendment to Lease and Sublease Agreement dated October 5, 2004; that certain Nineteenth Amendment to Lease and Sublease Agreement dated April 6, 2005; that certain Twentieth Amendment to Lease and Sublease Agreement dated October 17, 2005; and that certain Twenty-First Amendment to Lease and Sublease Agreement dated July 25, 2006 (collectively, the “Agreement”); and
WHEREAS, Anchor assigned all of its rights, title, and interest in the Agreement to Xxxxxx by the certain Asset Purchase Agreement dated November 11, 2002; and
WHEREAS, Smith’s and Xxxxxx now desire to further amend the Agreement as more fully set forth hereinafter and for Xxxxxx to assume the Agreement as provided for in 11 U.S.C 365 (the “Bankruptcy Code”);
NOW, THEREFORE, in consideration of the mutual covenants and agreements contained herein, Smith’s and Xxxxxx hereby agree as follows:
1. Term. Notwithstanding anything contained in the Agreement, the Term of the Agreement is hereby extended to and including RCT.
2. Rent. Xxxxxx agrees to pay Smith’s as monthly rental for the use and occupancy of each of the Supermarkets and the exclusive right to operate Gaming Devices in each of the Supermarkets listed, for each of the Lease Months (“Lease Months”) the rental specified opposite such Supermarket on Exhibit “A” attached hereto and incorporated herein by reference (the “Rent”).
Commencing January 1, 2011, and each calendar year thereafter, the Rent paid by Xxxxxx to Smith’s shall be RCT for all stores listed on Exhibit A RCT. In no event shall Rent be decreased for any store. Thus, for example, if RCT for all stores in 2010 is RCT, then, beginning January 1, 2011, the Rent for each store shall be RCT. Conversely, if RCT in 2010 is RCT, then Rent will not be adjusted. The term “RCT” shall mean RCT.
In order to determine RCT, Xxxxxx will provide to RCT approved by Smith’s a detailed listing of RCT. Any new Supermarkets opened during a year will not be included in this listing for purposes of determining RCT for that year, but they shall be included for each full calendar year they are in operation. Xxxxxx shall also provide to RCT a detailed listing of RCT, which shows RCT for all Supermarkets for RCT and RCT for all Supermarkets RCT.
The RCT shall prove the RCT of RCT for all Supermarkets for each calendar year and RCT for all Supermarkets, and shall confirm in writing to Xxxxxx and Smith’s RCT for each calendar year. Smith’s shall be entitled to and shall be provided RCT, but not RCT by RCT.
Any increase in Rent pursuant to this paragraph 2 shall be calculated within ninety (90) days following the end of each calendar year and shall be paid retroactively as of January 1 of each year. The Rent for any New Supermarket shall be subject to increase after it has been in operation for a full calendar year, even though RCT will not be included in the RCT of that year for purposes of comparing against the prior year.
3. RCT. In addition to the Rent under the Agreement, Xxxxxx shall pay to Smith’s the sum of RCT upon execution of this Twenty-Second Amendment (“RCT”).
4. Additional Consideration. As additional consideration, Xxxxxx shall, upon execution of this Twenty-Second Amendment, release all of the remaining funds currently held as a Security Deposit by Smith’s, pursuant to Section 5 of the Agreement, which amount totals RCT.
5. Change Persons and Jackpot Payouts. Notwithstanding anything contained in Section 11 of the Agreement, should the Nevada Gaming Control Board allow Xxxxxx to reduce hours of change persons or allow for their use to be discontinued altogether, then Xxxxxx shall be allowed to do so.
6. New Supermarkets. In addition to the Rent called for in the Agreement, as it may be adjusted pursuant to paragraph 2 of this Twenty-Second Amendment, Xxxxxx shall pay to Smith’s, for each new supermarket, a pro rata amount of RCT, up to a maximum of RCT per new Supermarket (the “New Supermarket RCT”). The actual amount of the New Supermarket RCT payable for any new Supermarket shall be based on the total number of months remaining on the Term at the time of commencement of gaming operations at that specific new Supermarket divided by RCT, multiplied by RCT. Thus, for example, for a new Supermarket commencing gaming operations in January 2011, Xxxxxx would pay to Smith’s the amount of RCT. This New Supermarket RCT shall be payable upon commencement of gaming operations at each specific new Supermarket.
7. Demised Premises Upgrade. On or before January 1, 2011, Xxxxxx shall, at its own expense, upgrade all of the Demised Premises so that they are current, clean and attractive.
8. Bankruptcy Court Approval. Smith’s understands that Xxxxxx is a debtor-in-possession under Chapter 11 proceedings before the United States Bankruptcy Court for the District of Nevada (“Bankruptcy Court”), being Case No. . As such, Smith’s acknowledges and understands that Xxxxxx intends to seek the approval of this Twenty-Second Amendment on the part of Xxxxxx by the Bankruptcy Court and the assumption of the Agreement pursuant to Section 365 of the Bankruptcy Code. Xxxxxx agrees to file a motion to approve this Twenty-Second Amendment with the Bankruptcy Court pursuant to Section 363 of the Bankruptcy Court and to assume the Agreement pursuant to Section 365 of the Bankruptcy Court RCT. The Effective Date of this Twenty-Second Amendment shall be the first business day following the date the Bankruptcy Court order becomes final. Smith’s agrees to reasonably cooperate with and assist Xxxxxx in this regard. Should RCT, then Smith’s shall return RCT previously paid by Xxxxxx to Smith’s under paragraph 3 herein and shall release the additional consideration previously released by Xxxxxx to Smith’s under paragraph 4, which shall then be retained by Smith’s as a Security Deposit. Additionally, this Twenty-Second Amendment shall be null and void and the parties shall continue to be bound by the July 28, 1993 Agreement, as amended.
9. Notice. All notices or demands required or permitted to be given or served pursuant to the Agreement shall be deemed to have been given or served only if in writing forwarded by registered or certified mail~ postage prepaid, and addressed as follows:
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To Smith’s |
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Xxxxx’x Food & Drug Center, Inc 0000 Xxxxx Xxxxxxx Xxxx Xxxx Xxxx Xxxx, Xxxx 00000
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To Xxxxxx |
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Market Gaming, Inc. 0000 X. Xxxxxxx Xxxx Xxx Xxxxx, XX 00000 Attn: General Counsel
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Either party hereto may change such address by giving written notice to the other party
10. Miscellaneous. This Twenty-Second Amendment shall be binding on the parties hereto and their respective successors and assigns. The individuals executing this Twenty-Second Amendment represent and warrant that they are duly empowered so to do and have authority to bind their respective party. The Agreement remains in full force and effect and remains unmodified except to the extent specifically amended herein. Unless otherwise specified herein, the capitalized terms of this Twenty-Second Amendment shall have the same meaning as set forth in the Agreement.
IN WITNESS WHEREOF, the parties have executed this Twenty-Second Amendment on the date and year first above written.
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XXXXX’X FOOD & DRUG CENTERS, INC. |
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By: |
/s/ Xxxx XxXxx |
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Its: |
Vice President |
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XXXXXX GAMING, INC. |
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By: |
/s/ Xxxx X. Xxxxxx |
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Its: |
CEO |
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MARKET GAMING, INC. |
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By: |
/s/ Xxxx X. Xxxxxx |
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Its: |
Secretary / Treasurer |
EXHIBIT A
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Location - Address |
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CITY |
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ZIP |
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Monthly |
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0 - Smiths Advertising allowance, Advertising Allowance, |
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311 – Xxxxx’x Food & Drug #311, 0000 X Xxxxxxx, Xxx Xxxxx |
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Xxx Xxxxx |
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00000 |
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RCT |
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344 – Xxxxx’x Food & Drug #344, 000 Xxxxxx Xxxxx, Xxxx |
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Xxxx |
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00000 |
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RCT |
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356 – Xxxxx’x Food & Drug #356, 000 Xxxx Xxxxxxx Xxxxxx, Xxxxxx Xxxx |
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Xxxxxx Xxxx |
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00000 |
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RCT |
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357 – Xxxxx’x Food & Drug #357, 1255 Baring Boulevard, Sparks |
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Sparks |
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89431 |
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RCT |
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378 – Xxxxx’x Food & Drug #378, 000 Xxxxx Xxxxxxx Xxxxxxx, Xxxx |
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Xxxx |
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00000 |
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RCT |
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388 – Xxxxx’x Food & Drug #388, 0000 Xxxxxxxx Xxxx Xxxxxxx, Xxxx |
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Xxxx |
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00000 |
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RCT |
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389 – Xxxxx’x Food & Drug #389, 0000 Xxxxxxx 000, Xxxxxxxxxxxx |
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Xxxxxxxxxxxx |
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00000 |
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RCT |
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390 – Smith’s Food & Drug #390, 1855 West Wendover Boulevard, Wendover |
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Wendover |
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89883 |
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RCT |
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392 – Xxxxx’x Food & Drug #392, 0000 Xxxxxxx 00 Xxxx, Xxxxxx |
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Xxxxxx |
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00000 |
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RCT |
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332 – Xxxxx’x Food & Drug #332, 0000 Xxxxx Xxxxxxx Xxxxx, Xxx Xxxxx |
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Xxx Xxxxx |
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00000 |
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RCT |
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334 – Xxxxx’x Food & Drug #334, 2255 E. Centennial Parkway, North Las Vegas |
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North Las Vegas |
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89081 |
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RCT |
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338 – Xxxxx’x Food & Drug #338, 6855 Aliante Parkway, North Las Vegas |
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North Las Vegas |
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89084 |
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RCT |
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341 – Xxxxx’x Food & Drug #000, 000 Xxxxx Xxxxxxx 000, Xxxxxxx |
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Xxxxxxx |
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89041 |
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RCT |
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342 – Xxxxx’x Food & Drug #342, 000 Xxxxx Xxxxxxxx Xxxxxxxxx, Xxxxxxxx |
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Xxxxxxxx |
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00000 |
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RCT |
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345 – Xxxxx’x Food & Drug #345, 0000 Xxxxxx Xx Xxxxx, Xxxxx Xxx Xxxxx |
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Xxxxx Xxx Xxxxx |
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00000 |
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RCT |
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346 – Xxxxx’x Food & Drug #346, 00000 Xxxxx Xxxxxxx Xxxxxx, Xxxxxxxxx |
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Xxxxxxxxx |
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00000 |
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RCT |
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347 – Xxxxx’x Food & Drug #347, 0000 Xxxx Xxxxxxxxxx, Xxx Xxxxx |
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Xxx Xxxxx |
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00000 |
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RCT |
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348 – Xxxxx’x Food & Drug #348, 0000 Xxxxx Xxxxx Xxxxxx Xxxxxxx, Xxxxxxxxx |
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Xxxxxxxxx |
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00000 |
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RCT |
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349 – Xxxxx’x Food & Drug #349 , 00000 Xxxx Xxxxxxxxx Xxx., Xxx Xxxxx |
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Xxx Xxxxx |
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00000 |
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RCT |
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350 – Xxxxx’x Food & Drug #350, 0000 Xxxx Xxxxxx Xxxx, Xxxxxxxxx |
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Xxxxxxxxx |
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00000 |
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RCT |
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351 – Xxxxx’x Food & Drug #351, 0000 Xxxx Xxxxxxxxx Xxxxxx, Xxx Xxxxx |
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Xxx Xxxxx |
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00000 |
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RCT |
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354 – Xxxxx’x Food & Drug #354, 0000 Xxxx Xxxxxxxx Xxxx, Xxx Xxxxx |
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Xxx Xxxxx |
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00000 |
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RCT |
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355 – Xxxxx’x Food & Drug #355, 000 Xxxxx Xxxxxx, Xxx Xxxxx |
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Xxx Xxxxx |
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00000 |
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RCT |
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358 – Xxxxx’x Food & Drug #358, 0000 Xxxxx Xxxxxxxx Xxxxxxx, Xxx Xxxxx |
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Xxx Xxxxx |
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00000 |
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RCT |
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361 – Xxxxx’x Store #361, 0000 Xxxx Xxx Xxxx, Xxxxx Xxx Xxxxx |
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Xxxxx Xxx Xxxxx |
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00000 |
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RCT |
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363 – Xxxxx’x Store #363 , 0000 Xxxxx Xxxxxxx Xxxxx, Xxx Xxxxx |
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Xxx Xxxxx |
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00000 |
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RCT |
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364 - Xxxxx’x Food & Drug #364, 10600 Southern Highlands Parkway, Las Vegas |
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Las Vegas |
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89141 |
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RCT |
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365 – Xxxxx’x Store #365, 0000 Xxxx Xxxxxxxx Xxxx, Xxx Xxxxx |
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Xxx Xxxxx |
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00000 |
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RCT |
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366 – Xxxxx’x Store #366, 00 Xxxxx Xxxxxx Xxxxx Xxxxx, Xxxxxxxxx |
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Xxxxxxxxx |
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00000 |
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RCT |
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370 – Xxxxx’x Store #370, 0000 Xxxxx Xxxxxxx Xxxx., Xxx Xxxxx |
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Xxx Xxxxx |
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00000 |
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RCT |
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371 – Xxxxx’x Food & Drug #371, 0000 Xxxx Xxxxxx Xxxxxx, Xxx Xxxxx |
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Xxx Xxxxx |
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00000 |
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RCT |
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372 – Xxxxx’x Store #372, 0000 Xxxxx Xxxxx Xxxxxxxxx, Xxx Xxxxx |
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Xxx Xxxxx |
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00000 |
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RCT |
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376 – Xxxxx’x Food & Drug #376, 0000 Xxxx Xxxxxxxx Xxxx, Xxx Xxxxx |
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Xxx Xxxxx |
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00000 |
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RCT |
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377 – Smith’s Food & Drug #377, 000 Xxxxx Xxxxxx Xxxxx, Xxx Xxxxx |
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Xxx Xxxxx |
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00000 |
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RCT |
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381 – Xxxxx’x Food & Drug #381, 000 Xxxxx Xxxxxxx Xxxxxxx, Xxxxxxxxx |
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Xxxxxxxxx |
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00000 |
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RCT |
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383 – Xxxxx’x Food & Drug #383, 0000 Xxxxx Xxxxxx Xxxxx, Xxx Xxxxx |
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Xxx Xxxxx |
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00000 |
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RCT |
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385 – Xxxxx’x Food & Drug #385 , 0000 Xxxxx Xxxxxxx Xxxx., Xxx Xxxxx |
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Xxx Xxxxx |
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00000 |
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RCT |
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394 – Xxxxx’x Food & Drug #394, 0000 Xxxxx Xxxxxxxx Xxxxxxx, Xxx Xxxxx |
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Xxx Xxxxx |
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00000 |
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RCT |
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396 – Xxxxx’x Food & Drug #396, 0000 Xxxx Xxxxxxxx Xxxx, Xxx Xxxxx |
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Xxx Xxxxx |
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00000 |
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RCT |
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399 – Smith’s Food & Drug #399, 0000 Xxxx Xxxxxx Xxx Xxxx, Xxx Xxxxx |
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Xxx Xxxxx |
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00000 |
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RCT |
