Exhibit 10.1


 


AMENDED
AND RESTATED

RESTAURANT ABSOLUTELY NET LEASE


 


WENDY’S
RESTAURANT

1901 Whiskey Road

AIKEN, SOUTH CAROLINA


 




    	 	 	 



     


    

 


TABLE
OF CONTENTS


 


	 	Page
	ARTICLE
    I - VARIABLE TERMS	1
	 	 
	ARTICLE
    II - GRANT AND TERM	2
	 	 
	 	2.1	Premises	2
	 	2.2	Original
    Term	2
	 	2.3	Option
    to Extend	2
	 	2.4	Surrender
    of Premises	2
	 	2.5	Tenant’s
    Access	2
	 	 	 	 
	ARTICLE
    III - RENT	3
	 	 
	 	3.1	One
    Time Fixed Rental Charge	3
	 	3.2	Base
    Rent	3
	 	3.3	Base
    Rent Adjustment for Lease Insurance Lost	3
	 	3.4	Base
    Rent Increases	3
	 	3.5	Additional
    Rent	3
	 	3.6	Reports	4
	 	3.7	Adjustment
    to Base Gross Sales	4
	 	3.8	Audited
    Financial Statements	4
	 	 	 	 
	ARTICLE
    IV - SECURITY DEPOSIT	5
	 	 
	 	4.1	Security
    Deposit	5
	 	 	 	 
	ARTICLE
    V - CONSTRUCTION AND ALTERATIONS	6
	 	 
	 	5.1	Construction,
    Alterations, Improvements and Changes	6
	 	5.2	Fixtures
    and Equipment	6
	 	5.3	Alterations
    at Termination	7
	 	5.4	Removal
    of Signs and Trademarks at Termination	7
	 	5.5	Percentage
    Rent Credit	7
	 	 	 	 
	ARTICLE
    VI - MAINTENANCE, REPAIRS, COVENANT AGAINST ENCUMBRANCESAND LIENS, AND DESTRUCTION	8
	 	 
	 	6.1	Maintenance
    and Repair by Tenant	8
	 	6.2	Covenant
    Against Encumbrances and Liens	8
	 	6.3	Damage
    and Destruction	9
	 	 	 	 
	ARTICLE
    VII - UTILITIES AND TAXES	10
	 	 
	 	7.1	Utilities	10
	 	7.2	Taxes
    and Assessments	10



 






    	 	i	 



     


    

 


	ARTICLE
    VIII - CONDUCT OF BUSINESS	11
	 	 
	 	8.1	Condition
    and Use	11
	 	8.2	Competition	11
	 	 	 	 
	ARTICLE
    IX - INSURANCE AND INDEMNITIES	11
	 	 
	 	9.1	Casualty
    Insurance	11
	 	9.2	Public
    Liability Insurance	11
	 	9.3	Certificates
    of Insurance	12
	 	9.4	Loss
    and Damage	12
	 	9.5	Hold
    Harmless	12
	 	 	 	 
	ARTICLE
    X - CONDEMNATION	12
	 	 
	 	10.1	Total
    Condemnation	12
	 	10.2	Partial
    Condemnation	12
	 	10.3	Condemnation
    Award	13
	 	 	 	 
	ARTICLE
    XI - DEFAULT	13
	 	 
	 	11.1	Tenant
    Default	13
	 	11.2	Landlord
    Default	13
	 	11.3	Parties
    May Remedy Defaults	13
	 	11.4	Charge
    For Late Payments	14
	 	11.5	Cross
    Default	14
	 	 	 	 
	ARTICLE
    XII - ASSIGNMENT, SUBLETTING, AND CONTINUOUS USE	14
	 	 
	 	12.1	Tenant
    Assignment and Subletting	14
	 	12.2	Landlord
    Assignment	15
	 	12.3	Continuous
    Use	15
	 	 	 	 
	ARTICLE
    XIII - RIGHT OF FIRST REFUSAL	15
	 	 
	 	13.1	Right
    of First Refusal	15
	 	 	 	 
	ARTICLE
    XIV - MISCELLANEOUS	15
	 	 
	 	14.1	Accord
    and Satisfaction	15
	 	14.2	Entire
    Agreement	15
	 	14.3	No
    Partnership	15
	 	14.4	Force
    Majeure	16
	 	14.5	Waiver	16
	 	14.6	Notices	16
	 	14.7	Partial
    Invalidity	16
	 	14.8	Memorandum
    Lease	16
	 	14.9	Consent	16
	 	14.10	Quiet
    Title	16
	 	14.11	Remedies
    Cumulative	17
	 	14.12	Binding
    Effect	17
	 	14.13	Applicable
    Law	17
	 	14.14	Holding
    Over	17
	 	14.15	Subordination
    and Attornment	17
	 	14.17	Signatures	18


 




    	 	ii	 



     


    

 


Wensouth
Corporation (“Wensouth”) leased the premises commonly known as 1901 Whiskey Road, Aiken, South Carolina,
from DiVall Insured Income Properties 2 Limited Partnership (“Landlord”), pursuant to a Restaurant Absolutely
Net Lease dated January 30, 1989. Wensouth subsequently assigned its interest in the Restaurant Absolutely Net Lease to Wensouth
Orlando, Ltd. Wensouth Orlando, Ltd. assigned its interest in the Restaurant Absolutely Net Lease to Wencoast Restaurants, Inc.
(“Wencoast”), and Wencoast and Landlord amended such Restaurant Absolutely Net Lease by an Amendment
of Lease Agreement dated November 9, 2000. Pursuant to an Assignment, Assumption and Amendment of Lease dated as of July 2, 2007,
Wencoast assigned the Restaurant Absolutely Net Lease to Wendgusta, LLC (“Tenant”), and Landlord and
Tenant amended the Restaurant Absolutely Net Lease. Landlord and Tenant subsequently amended the Restaurant Absolutely Net Lease
by an Amendment of Lease dated December 23, 2008. Tenant subsequently extended the term of the Restaurant Absolutely Net Lease
to November 6, 2026. Such Restaurant Absolutely Net Lease, as subsequently assigned, amended and extended, may be referred to
as the “Original Lease.”


 


In
exchange for good and valuable consideration, Landlord and Tenant execute this Amended and Restated Restaurant Absolutely Net
Lease (the “Lease”) on this 23rd day of April, 2020, with the intent that this Lease will
amend, restate and replace the Original Lease effective January 1, 2021, at which time the Original Lease will no longer be in
force and effect. The Original Lease will remain in force and effect following the execution of this Lease through December 31,
2020. Landlord and Tenant agree as follows:


 


ARTICLE
I - VARIABLE TERMS


 


	 	1.1	Date
    of Lease: April 23, 2020
	 	 	 
	 	1.2	Landlord:
    DiVall Insured Income Properties 2 Limited Partnership


 


	 	1.3	Address:
    c/o The Provo Group, Inc., 1900 W. 75th Street, Suite 100, Prairie Village, KS 66208


 


	 	1.4	Tenant:
    WENDGUSTA, LLC, a Georgia limited liability company
	 	 	 
	 	1.5	Address:
    27 Central Avenue, Cortland, NY 13045
	 	 	 
	 	1.6	Premises
    Street Address: 1901 Whiskey Road, Aiken, South Carolina


 


	 	1.7	Premises
    Legal Description: (See Exhibit A for Legal Description)
	 	 	 
	 	1.8	Commencement
    Date: January 1, 2021


 


	 	1.9	Length
    of Original Lease Term: Twenty (20) Years
	 	 	 
	 	1.10	Extension
    Options: None
	 	 	 
	 	1.11	One
    Time Fixed Rental Charge: Intentionally Omitted
	 	 	 
	 	1.12	Base
    Annual Rent: $210,632.00


 




    	 	 	 



     


    

 


	 	1.13	Lease
    Insurance Cost Factored into Rent: Intentionally Omitted
	 	 	 
	 	1.14	Factor
    for Additional Lease Insurance: Intentionally Omitted
	 	 	 
	 	1.15	Fixed
    Rent Increases: Intentionally Omitted
	 	 	 
	 	1.16	Lease
    Years to which Fixed Rent Increases Apply: Intentionally Omitted
	 	 	 
	 	1.17	Additional
    Rent Percentage: 7%
	 	 	 
	 	1.18	Base
    Gross Sales: $2,632,900.00
	 	 	 
	 	1.19	Security
    Deposit: $7,020.00
	 	 	 
	 	1.20	Trade
    Name and or Trademarks: Wendy’s Old Fashioned Hamburgers
	 	 	 
	 	1.21	Permitted
    Use: Nationally recognized Franchise Restaurant
	 	 	 
	 	1.22	Prohibited
    Neighborhood Operations: Wendy’s Franchised Restaurant
	 	 	 
	 	1.23	Addendum
    A: Personal Guaranty - Intentionally Omitted
	 	 	Addendum
    B: Special Terms - Intentionally Omitted


 


ARTICLE
II - GRANT AND TERM


 


2.1
Premises. In consideration of rents, terms, covenants and agreements to be performed and observed by Tenant, as
hereinafter set forth, Landlord leases to Tenant, and Tenant leases from Landlord, the real estate described in Section 1.6
and Section 1.7 together with all rights and appurtenances belonging or appertaining thereto and all buildings, structures
and other improvements now or hereafter located thereon (“Premises”).


 


2.2
Original Term. The original term of this Lease (the “Term”) shall commence on the Commencement
Date set forth in Section 1.8 (the “Commencement Date”), and shall be for the number of lease
years set forth in Section 1.9, terminating at 12:00 midnight on the last day of the last lease year unless otherwise terminated
earlier hereunder, or extended as provided in Section 6.3(c). The term “Lease Year” shall mean
a calendar year beginning on January 1 and ending on December 31.


 


2.3
Option to Extend. Tenant has no option to extend.


 


2.4
Surrender of Premises. At the expiration or any termination of this Lease, Tenant shall surrender the Premises in
the same condition as at the commencement of the Term, reasonable wear and tear excepted, and shall surrender all keys or other
means of access to Landlord. Subject to the provision of Article V hereof, all alterations, additions and improvements
constructed or located on the Premises, whether constructed by or on behalf of Tenant or otherwise, and also any permanent fixtures
located on the Premises, shall, upon the expiration or termination of this Lease, become the Property of Landlord.


 


2.5
Tenant’s Access. Intentionally Omitted.


 




    	 	2	 



     


    

 


ARTICLE
III - RENT


 


3.1
One Time Fixed Rental Charge. Intentionally Omitted.


 


3.2
Base Rent. During the Term, Tenant covenants and agrees to pay to Landlord, in advance on the first day of each
month at Landlord’s address, without demand or offset whatsoever, one-twelfth (1/12) of the Base Annual Rent (as defined
below) (the “Base Monthly Rent”). The first Base Monthly Rent payment shall be due on the Commencement
Date of this Lease. Landlord may require automatic monthly debiting of Tenant’s account for Base Monthly Rent and for one-twelfth
(1/12) of the estimated annual real estate taxes. Landlord shall not require automatic debiting of Tenant’s account unless
Tenant shall have been delinquent on payment of Base Monthly Rent at least twice in any twelve (12) month period.


 


3.3
Base Rent Adjustment for Lease Insurance Lost. Intentionally Omitted.


 


3.4
Base Rent Increases. Intentionally Omitted.


 


3.5
Additional Rent.


 


(a)
In addition to the Base Annual Rent as set forth in Section 1.12 (the “Base Annual Rent”), Tenant
agrees to pay Landlord on an annual basis the Additional Rent Percentage set forth in Section 1.17 of Tenant’s Gross
Sales (as defined below) for each Lease Year over the amount of Base Gross Sales set forth in Section 1.18 (the “Percentage
Rent”). The term “Gross Sales” as used herein shall (subject to the exceptions and authorized
deductions hereinafter set forth) mean the gross amount received during the applicable Lease Year for everything sold upon or
from the Premises, either for cash or credit, with the full amount of credit sales being reported as gross sales in month in which
said credit sales are made. Only commissions or location rents received from vending machines shall be included in the gross sales
thereof. The term Gross Sales as used herein shall not include: (i) the amount of sales or excise taxes collected from customers;
(ii) the receipts from sales to employees of the store on the Premises, sold to them in the course of their employment at or below
cost, provided such sales are registered and recorded separately from other sales; (iii) the proceeds of the sale of any franchise
to operate the business on the Premises and all fees, charges or rents charged to or received from any such franchisee, and (iv)
the proceeds of the sale of any of Tenant’s trade fixtures or store equipment used on the Premises.


 


(b)
This Lease is an absolutely net lease of the Premises and, in addition to the Base Annual Rent and the Percentage Rent payable
to Landlord, Tenant will pay any and all costs and expenses associated with the Premises during the Term, and any such costs or
expenses, if paid to Landlord, will be deemed additional rent.


 


(c)
The Additional Rent (as defined in the Original Lease) for the Lease Year ending December 31, 2020, will be paid by Tenant to
Landlord not later than February 15, 2021. On or before February 15 of the next following twenty (20) calendar years, Tenant shall
pay to Landlord the Percentage Rent due hereunder (if any) for the immediately preceding Lease Year.


 




    	 	3	 



     


    

 


3.6
Reports.


 


(a)
Tenant agrees to submit to Landlord on or before the tenth (10th) day following the end of each calendar month during
the Term a written statement, signed and verified by an authorized representative of Tenant as true and correct, showing the amount
of Gross Sales from the business conducted at, upon or from the Premises by Tenant during the preceding calendar month, and an
itemization of all authorized deductions therefrom. Tenant further agrees to submit to Landlord on or before the sixtieth (60th)
day following the end of each Lease Year a written statement, signed and verified by an authorized representative of Tenant as
true and correct, showing the amount of such Gross Sales during the preceding Lease Year and an itemization of all authorized
deductions therefrom. Said annual statement shall also be duly certified to be true and correct and in compliance with the definition
of Gross Sales by a senior officer of Tenant in accordance with sound and accepted accounting practice consistently applied. The
statements referred to in this Section shall be in such form and style and shall contain such details and information as Landlord
may reasonably designate and shall be delivered to the address that Landlord may from time to time designate. The acceptance by
Landlord of payments of Percentage Rent or reports of Gross Sales shall be without prejudice and shall not constitute a waiver
of Landlord’s right to claim a deficiency in the payment of Percentage Rent or to audit Tenant’s books and records.


 


(b)
If Tenant’s Gross Sales are required to be reported on any Federal, State or local sales tax return and Gross Sales so reported
on any of said returns shall exceed the Gross Sales as reported by Tenant under this Lease, then the Gross Sales shall be taken
at the highest figure so reported. If any governmental authority shall increase the Gross Sales reported by Tenant on any such
tax return for any Lease Year for which such sales have been reported, then Tenant shall notify Landlord promptly of such increase,
supply to Landlord a true copy of such governmental action and pay any additional Percentage Rent due under this Lease.


 


(c)
Tenant must also provide Landlord a copy of any report provided to Tenant’s franchisor, Quality is Our Recipe, LLC, which
is a subsidiary of The Wendy’s Company (“Franchisor”), that reports gross sales for the Premises,
contemporaneously with providing such report to Franchisor. If the gross sales for the Premises are different than the Gross Sales
otherwise reported by Tenant, Tenant will provide a detailed explanation reconciling such differences.


 


(d)
Landlord shall have the right, upon written demand within thirty (30) days thereafter, and at Landlord’s sole expense, to
have Tenant’s records of Gross Sales for any annual statement period inspected at Tenant’s offices by a licensed accountant
of Landlord’s choice. In the event such inspection discloses an error of three percent (3%) or more in Tenant’s annual
statements of Gross Sales, as adjusted, then in such event the reasonable costs of such inspection shall be paid by Tenant. Landlord’s
failure to make such written demand shall not constitute a waiver of said right for said fiscal year.


 


3.7
Adjustment to Base Gross Sales. Intentionally Omitted.


 


3.8 Audited
Financial Statements. Tenant shall provide Landlord with copies of Tenant’s financial statements (including,
without limitation a Balance Sheet and an Income Statement) for each fiscal year ending on the last Sunday of December,
beginning with the fiscal year ending December 27, 2020. Such financial statements will (i) be prepared on the same basis of
accounting as the Tenant uses for its federal income tax returns, (ii) be reviewed by a firm of certified public accountants,
(iii) be of similar detail as the financial statements contained in the Independent Accountant’s Review Report of Vrona
& Van Schulyer CPAs, PLLC dated February 1, 2020, and (iv) be delivered to Landlord promptly upon receipt from said
certified public accountants but in no event no later than March 1 of the following calendar year for each year during the
Term of the Lease, as it may be extended.


 




    	 	4	 



     


    

 


ARTICLE
IV - SECURITY DEPOSIT


 


4.1
Security Deposit. Tenant shall also deposit with Landlord the Security Deposit set forth in Section 1.19
of this Lease (the “Security Deposit”) on or before the date of full execution of this Lease. Landlord
acknowledges that a Security Deposit in the amount of $7,020.00 is held by Landlord under the Original Lease, which amount will
be deemed to be deposited with Landlord pursuant to this Lease.


 


(a)
Said Security Deposit shall be held by Landlord, without liability for interest thereon, as security for the full and faithful
performance by Tenant of each and every term, covenant and condition of this Lease to be observed and performed by Tenant. Such
Security Deposit shall not be mortgaged, assigned, transferred or encumbered by Tenant and any such act on the part of Tenant
shall be null and void and of no force and effect.


 


(b)
If any of the rents or any other sum payable by Tenant to Landlord shall be unpaid or should Tenant fail to perform any of the
terms of this Lease, then Landlord may, and without prejudice to any other remedy, appropriate and apply said Security Deposit
to rent or other sum owed by Tenant. Any sums so applied shall be immediately due from and paid to Landlord by Tenant so as to
restore the Security Deposit to the original sum required to be deposited. In the event Tenant shall fully and faithfully comply
with all of the terms, covenants and conditions of this Lease, said Security Deposit shall be returned in full to Tenant following
the date of the expiration of the Term and the surrender of the Premises by Tenant in compliance with the provisions of this Lease.


 


(c)
In the event any bankruptcy, insolvency, reorganization or other creditor-debtor proceedings shall be instituted by or against
Tenant, or its successors or assigns, such Security Deposit shall be deemed to be applied first to the payment of any rents and/or
other charges due Landlord for all periods prior to the institution of such proceedings and the balance, if any, of such Security
Deposit may be retained by Landlord in partial liquidation of Landlord’s damages.


 


(d)
Landlord may deliver the Security Deposit to the purchaser or other transferee of Landlord’s interest in the Premises and
thereupon Landlord shall be discharged and released from all further liability with respect to such Security Deposit, and Tenant
agrees to look solely to the new landlord or other transferee for the return of said Security Deposit. No holder of a mortgage
or deed of trust or lessor under a ground or underlying lease to which this Lease is or may be superior or subordinate, shall
be responsible in connection with the Security Deposit, unless such mortgagee or holder of such deed of trust or lessor shall
have actually received the Security Deposit.


 




    	 	5	 



     


    

 


ARTICLE
V - CONSTRUCTION AND ALTERATIONS


 


5.1
Construction, Alterations, Improvements and Changes.


 


(a)
Tenant, at its own expense, and only after written permission of Landlord has been first obtained, shall have the right to: (i)
alter and/or improve any improvement now existing on the Premises; (ii) construct a new or additional building and/or other improvements
on the Premises; and (iii) make such alterations, improvements and changes to any such building and/or other improvements as Tenant
may deem necessary. Landlord hereby waives right of permission for improvements which shall not materially alter the look or function
of the Premises, provided such improvements shall be to Landlord’s benefit, and further provided that all
improvements made over any twenty-four (24) month period shall be aggregated and shall not exceed 30% of the Base Annual Rent.
Any building or improvements shall be constructed in full compliance with any and all laws, ordinances, rules and regulations
which may govern the same. Tenant shall hold Landlord harmless against any loss or damage by reason of Tenant’s construction
of any building or improvement on the Premises. Tenant shall not be required to receive Landlord’s approval for any alteration
required by Wendy’s International pursuant to the franchise agreement covering the Premises.


 


(b)
During the Term, each party agrees to hold the other party free and harmless from any and all liens that might attach to the Premises
on account of labor performed or for material furnished to the Premises at the instance of such party, and agrees to pay or discharge
any such liens within thirty (30) days, except any liens, the validity of which are being contested diligently by appropriate
legal proceedings. Landlord hereby subordinates any statutory or common law lien it may have on Tenant’s personal property
and fixtures located on the Premises to any purchase money lien attaching to such items, and acknowledges that Landlord has no
lien on any personality, fixtures and equipment located on the Premises and owned by a third party who reserves the right of removal
under agreement with Tenant. Landlord shall from time to time execute any documents necessary to give effect to such subordination
or waiver of liens.


 


5.2
Fixtures and Equipment.


 


(a)
Tenant may, at its own expense, furnish and install such business and trade fixtures and equipment in and on the Premises as may
be necessary or desirable for Tenant’s business. Such fixtures and equipment shall remain the personal property of Tenant
and shall be removed by Tenant at the expiration or termination of this Lease. Upon removal of such fixtures and equipment, Tenant
shall restore the Premises to its condition at the beginning of the Term, reasonable wear and tear excepted. Tenant shall furnish
the signs to be used on the Premises for the advertisement of the business.


 


(b)
Tenant may request approval of Landlord for the right to allow a Lender providing financing to Tenant to place a lien of record,
provided that: (i) the lien is for the amount of funding to the Premises only, and (ii) the lien shall not affect, diminish
or impede any of Landlord’s rights pursuant to this Lease, and (iii) the items of equipment or other items covered by the
lien are specifically listed, and (iv) the lien specifically states that no lien is claimed against Landlord’s property.
Landlord’s approval shall not be unreasonably withheld.


 




    	 	6	 



     


    

 


5.3
Alterations at Termination. Tenant agrees that all buildings, structures, and improvements erected upon the Premises,
together with all the appurtenances (which will not include fixtures, equipment, signs, and advertising devices), located on the
Premises as of the Commencement Date, are the sole property of Landlord. Any buildings, structures or other improvements together
with all the appurtenances (which will not include fixtures, equipment, signs and advertising devices) which are constructed on
the Premises during the Term, will become the sole property of Landlord when so constructed, erected or placed on the Premises.
Tenant agrees to satisfy or have satisfied all mortgages, liens, or encumbrances placed on its interests in the Premises on the
date or surrender.


 


5.4
Removal of Signs and Trademarks at Termination. Landlord understands that any and all signs which were not structural
and included in the cost of the building bearing the name set forth in Section 1.20 (or any derivation thereof) on the
Premises, are the property of Tenant and shall remain the property of Tenant. Landlord shall not use or acquire any interest in
property not included in the cost of the building bearing such trade name, trademark, or symbol, registered or otherwise. Landlord
grants to Tenant the right within thirty (30) days after termination of the Lease, to enter the Premises and remove any and all
property bearing such trade name, trademark or other symbol, whether or not registered. Any sign poles or other devices supporting
signage on the Premises shall become the property of Landlord.


 


5.5 Percentage Rent Credit. Prior to the Commencement Date, Landlord and Tenant will agree on certain capital improvements
(the “Capital Improvements”) to the Premises which Tenant must complete not later than December 31,
2021 (the “CI Completion Date”). The Capital Improvements and the estimated cost of the Capital Improvements
will be reflected in Exhibit B, initialed by Landlord and Tenant and appended to this Lease prior to the Commencement
Date. Tenant will pay all costs for all Capital Improvements, and Tenant will not allow any lien of any type, including, without
limitation, any mechanic’s lien or materialman’s lien to attach to or encumber the Premises. Prior to beginning any
construction of the Capital Improvements, Tenant will provide Landlord with a written list of all contractors, subcontractors,
and suppliers of materials with respect to the Capital Improvements. Tenant will be entitled to a rent credit (the “Rent
Credit”) equal to the lesser of $100,000.00 or twenty percent (20%) of the actual cost of the Capital Improvements,
provided that, prior to the CI Completion Date, (i) all Capital Improvements are complete, (ii) Tenant has provided Landlord
an itemized accounting of such costs and evidence reasonably satisfactory to Landlord that all such costs have been paid in full,
and (iii) Tenant has provided lien waivers from all contractors, service providers, and materialmen for such Capital Improvements
in form and content reasonably acceptable to Landlord.


 


The
Rent Credit may be applied until it is exhausted against Tenant’s obligation to pay Percentage Rent under this Lease. If
all the foregoing conditions with respect to the calculation of the Rent Credit and completion of the Capital Improvement is completed
prior to the Commencement Date, then Tenant may apply the Rent Credit until it is exhausted, against the Additional Rent payable
for 2020 (as defined in the Original Lease), as well as against the Percentage Rent under this Lease.


 




    	 	7	 



     


    

 


ARTICLE
VI - MAINTENANCE, REPAIRS, COVENANT AGAINST 

ENCUMBRANCESAND LIENS, AND DESTRUCTION


 


6.1
Maintenance and Repair by Tenant.


 


(a)
Tenant shall, at its own cost and expense, keep, maintain and repair the Premises in good condition. Such repair and maintenance
obligations apply to the entire Premises, including without limitation (i) all buildings and improvements of every kind which
may be a part thereof (whether interior or exterior, structural or non-structural); (ii) all heating, electrical, air conditioning,
ventilating and plumbing equipment therein; and (iii) all appurtenances thereto, including sidewalks and parking areas adjacent
thereto. Tenant shall repair, restore and replace any such improvements which may become inoperable or be destroyed or damaged
by fire, casualty, or any other cause. In the event the Premises are or become subject to the common area maintenance charges,
or other third party billings, Tenant shall be responsible therefor. Tenant shall comply with all federal, state, county, municipal
and other governmental statutes, ordinances, laws and regulations affecting the Premises and improvements thereon, or any activity
or condition on or in the Premises. Tenant shall, at its own expense, keep the Premises in sanitary, clean and neat order and
keep the sidewalks and parking area free of snow and trash.


 


(b)
If Tenant shall fail, refuse or neglect to make repairs in accordance with the terms and provisions of this Lease or if Landlord
is required to make any repairs by reason of any act, omission to act, or negligence of Tenant, or its assignees, subtenants,
concessionaires or licensees, or their respective employees, agents or contractors, Landlord shall have the right, at its option,
after Landlord shall have given to Tenant a ten (10) day notice (except in case of an emergency), (i) to make such repairs on
behalf of and for the account of Tenant, (ii) to enter upon the Premises for such purposes, (iii) to add the cost and expenses
thereof, to and for the next installments of the Base Monthly Rent due. Tenant agrees to pay such amount. Nothing contained in
this Section shall be deemed to impose any duty upon Landlord or affect in any manner the obligations assumed by Tenant hereunder.
Any cost or expense incurred by Landlord and chargeable to Tenant as herein provided shall be reduced to the extent that Landlord
is reimbursed, therefore, under any policy of insurance.


 


6.2
Covenant Against Encumbrances and Liens. Tenant shall not encumber its Leasehold interest in the Premises and shall
do all things necessary to prevent the filing of any mechanics’ or other liens against the Premises or the interest of Landlord
or any ground or underlying lessors therein or the interest of any mortgagees or holders of any deed of trust covering the Premises
by reason of any work, labor, services or materials performed or supplied or claimed to have been performed or supplied to Tenant
or anyone holding the Premises, or any part thereof, through or under Tenant. If any such lien shall at any time be filed, Tenant
shall either cause the same to be vacated and cancelled of record within thirty (30) days after the date of the filing thereof,
or, if Tenant in good faith determines that such lien should be contested, Tenant shall furnish such security, by surety bond
or otherwise as is prescribed by law, to release the same as a lien against the real property, or to post a letter of credit with
Landlord to be used to prevent any foreclosure of such lien during the pendency of such contest. If Tenant shall fail to vacate
or release such lien in the manner and within the time period aforesaid, then, in addition to any other right or remedy of Landlord
resulting from Tenant’s said default, Landlord may, but shall not be obligated to, vacate or release the same by paying
the amount prescribed by law. Tenant shall repay to Landlord, on demand, all sums disbursed or deposited by Landlord pursuant
to the foregoing provisions of this Section, including Landlord’s cost and expenses and reasonable attorney’s fees
incurred in connection therewith. Nothing contained herein shall imply any consent or agreement on the part of Landlord or any
ground or underlying lessors or mortgagees or holders of deeds of trust of the Premises to subject their respective estates or
interest to liability under any mechanics’ or other lien law, whether or not the performance or the furnishing of such work,
labor, services or materials to Tenant or anyone holding the Premises, or any part thereof, through or under Tenant, shall have
been consented to by Landlord and/or any of such parties.


 




    	 	8	 



     


    

 


6.3
Damage and Destruction.


 


(a)
In the event the Premises shall be damaged or partially destroyed by fire or the elements to the extent of less than one-third
(1/3) of the cost of replacement thereof above foundation, the same shall be repaired as quickly as is practicable, by and at
the expense of Tenant, provided however that Tenant shall be entitled to receive from Landlord up to the cost of said repairs
or replacements to the extent that insurance proceeds shall have been received by Landlord. If such damage or partial destruction
shall be of such character, in Landlord’s sole opinion, so as to require Tenant to discontinue occupancy therein, the rental
provided for herein shall abate from the date of such closing until the Premises are again ready for occupancy. During the period
of repair or construction, Tenant’s other obligations under this Lease, including without limitation, pursuant to Articles
VII and IX, will continue unabated.


 


(b)
If during the first fifteen (15) Lease Years of the Term, the Premises are subject to Total Destruction (as defined below) by
fire or other casualty, within thirty (30) days following such destruction, Landlord and Tenant may mutually agree to terminate
this Lease and neither party will be obligated to rebuild or repair the Premises. For purposes of this Section, “Total
Destruction” means damage to an extent of more than one-third (1/3) of the cost of replacement of the Premises above
the foundation. If the Lease is terminated pursuant to Section 6.3, then all insurance proceeds with respect to the Premises
will be paid to Landlord, with the exception that the insurance proceeds paid for Tenant’s furniture, fixtures, and equipment
will be paid to Tenant. Further, the Base Annual Rent must be paid by Tenant up to the date the Lease is so terminated, and any
Base Annual Rent paid with respect to the period following the termination will be paid to Tenant.


 


(c)
If the Lease is not terminated pursuant to Section 6.3, then the Premises must be repaired and replaced by and at the expense
of Tenant, provided, however, that Tenant shall be entitled to receive any insurance proceeds actually received by Landlord with
respect to the Total Destruction, up to the cost of such repairs and replacement. Tenant shall initiate and pursue the necessary
work with all reasonable dispatch, in a manner consistent with sound construction methods, but it shall not be liable for any
delays or interruptions occasioned by strikes, casualties, critical materials in short supply, governmental regulations, or any
other causes beyond its control. Following the restoration of the Premises or completion of repairs thereto, possession and occupancy
of said Premises shall be tendered to Tenant and Base Annual Rent shall begin to as of that date, and pro-rated payments of the
Base Monthly Rent will be paid on such date, whereupon this Lease shall continue unabated for the remainder of the Term. In the
event the insurance coverage to be provided by Tenant pursuant to Section 9.1 of this Lease shall fail to cover any portion
of the cost of restoring the Premises from any damage, destruction, or casualty loss of any kind whatsoever, the deficiency shall
be paid by Tenant. In the event Landlord shall have to disburse any of its own funds to restore the Premises, the same shall be
immediately due to Landlord from Tenant and shall be deemed additional rent. During the period of repair or construction, Tenant’s
other obligations under this Lease, including without limitation, pursuant to Articles VII and IX, will continue
unabated. The Term of the Lease will be extended by a period equal in duration to the period beginning on the date of the Total
Destruction and ending on the date the repair and replacement of the Premises has been completed.


 




    	 	9	 



     


    

 


(d)
Provided Tenant has paid Percentage Rent with respect to at least one of the two (2) full Lease Years preceding the Total Destruction
of the Premises, if a Total Destruction of the Premises occurs during the last five (5) Lease Years of the Term, Tenant will have
the right to terminate the Lease as of the date of such Total Destruction by written notice to Landlord within thirty (30) days
following the Total Destruction. If Tenant so elects to terminate the Lease, neither party will be obligated to repair or rebuild
the Premises, and the insurance proceeds and Base Annual Rent will be handled as provided in Section 6.3(b). If Tenant
does not elect to so terminate the Lease, the Premises must be repaired or replaced pursuant to Section 6.3(c).


 


ARTICLE
VII - UTILITIES AND TAXES


 


7.1
Utilities. Tenant shall, during the Term, fully and promptly pay for all water, sewer, gas, heat, light, power,
telephone services and other public utilities of every kind furnished to the Premises. Landlord shall not be liable to Tenant
for any interruption in the aforesaid utility service.


 


7.2
Taxes and Assessments.


 


(a)
Tenant shall, pay and discharge as they become due, promptly and before delinquency, all taxes, assessments, rates, license fees,
municipal liens, levies, excises or imports of every nature and kind levied, assessed, charged, or imposed during the Term on
or against the Premises, Tenant’s leasehold interest in the Premises or personal property of any kind owned or placed in
the Premises by Tenant. Tenant’s responsibility shall include any lease taxes imposed regardless of who the governing body
assessing the tax shall deem responsible for payment. All such taxes and charges (with the exception of personal property taxes
on Tenant’s personal property) shall be prorated at the commencement and expiration of the Term if appropriate. Notwithstanding
the foregoing, Tenant shall only be obligated to pay installments of special assessments (using the longest amortization schedule
available) coming due during the Term.


 


(b)
Tenant shall have the right at its own cost and expense to initiate and prosecute any proceedings permitted by law for the purpose
of obtaining an abatement of or otherwise contesting the validity or amount of taxes assessed to or levied upon the Premises and
required to be paid against Landlord’s estate and, if required by law, Tenant may take such action in the name of Landlord
who shall cooperate with Tenant to such extent as Tenant may reasonably require, provided, however, that Tenant
shall fully indemnify and save Landlord harmless from all loss, cost, damage, and expense incurred by or to be incurred by Tenant
as a result thereof.


 




    	 	10	 



     


    

 


(c)
If Tenant fails to pay any real estate taxes on the Premises prior to delinquency, then Landlord may require Tenant to pay to
Landlord one-twelfth (1/12) of anticipated real estate taxes on the Premises for each Lease Year with each installment of the
Base Monthly Rent. In the event said payments shall not be sufficient to pay the actual real estate tax amount when known, Tenant
shall pay such shortfall immediately to Landlord. In the event any excess over the amount due has been paid by Tenant, Tenant
may direct Landlord either to apply the excess to the real estate taxes for the following year, or to pay such excess back to
Tenant. In the event timely payment of taxes could be made in more than one (1) calendar year, Landlord shall pay timely up to
the amount due or the amount paid to Landlord by Tenant (whichever is less) in whichever calendar year Tenant shall designate,
provided Tenant shall notify Landlord of designation within ten (10) days of receipt of the applicable tax bill.


 


ARTICLE
VIII - CONDUCT OF BUSINESS


 


8.1
Condition and Use. Tenant shall use the Premises for the purposes of conducting thereon the business allowed in
Section 1.21, and for incidental purposes related thereto. Tenant may not change Tenant’s use of the Premises without
Landlord’s prior approval. No use shall be permitted, or acts done, which will cause a cancellation of any insurance policy
covering the Premises. Tenant shall not sell, permit to be kept, used or sold in or about the Premises any article which may be
prohibited by the standard form of fire insurance policy. Tenant shall, at its own expense, comply with all requirements of any
insurance company necessary for the maintenance of insurance required in this Lease.


 


8.2
Competition. Tenant shall not, during the Term, use, or permit any occupant thereof to use, or sell or lease to
anyone any property owned or leased by Tenant and located within a one (1) mile radius of the Premises for operation of any prohibited
neighborhood operations as set forth in Section 1.22. The terms of this Section shall not apply to Wendy’s Restaurants
located inside of a mall if such restaurant has no customer entrance directly from the out of doors, i.e., where all customers
must enter the restaurant by first passing through common areas of the mall.


 


ARTICLE
IX - INSURANCE AND INDEMNITIES


 


9.1
Casualty Insurance. Tenant shall, at all times during the Term, at Tenant’s sole expense, keep the building
and all improvements, which are now or hereafter a part of the Premises, insured against loss or damage by fire and extended coverage
hazards in an amount equal to at least one hundred percent (100%) of the full insurable value thereof, excluding land, foundation
and excavation costs, with loss payable to Landlord and Landlord’s mortgagee as their interests may appear. Tenant shall
pay the premiums thereon when due and shall request a waiver of coinsurance, or if such waiver is unavailable, shall comply with
the coinsurance provisions thereof.


 


9.2
Public Liability Insurance. Tenant shall, at all times during the Term, and at Tenant’s sole expense, keep
in full force and effect a policy of public liability and property damage insurance with respect to the Premises and all business
operated thereon, with limits of public liability not less than One Million and No/100 Dollars ($1,000,000.00) for injury of or
death to any one person, and One Million and No/100 Dollars ($1,000,000.00) for injury or death in any one occurrence, and property
damage liability insurance in the amount of Ten Thousand and No/100 Dollars ($10,000.00). Tenant may provide the required insurance
by one or more policies, any of which may be blanket coverage provided that the dollar amounts of required coverage can
be determined to be provided by the policy (policies).


 




    	 	11	 



     


    

 


9.3
Certificates of Insurance. Tenant shall, with respect to any insurance coverage required in this Lease, furnish
Landlord with certificates of insurance stating that Landlord will be notified in writing ten (10) days prior to cancellation,
material change or non-renewal of insurance. If higher limits of insurance on the Premises than those specified above are carried
at the election of Tenant or because higher limits are required by Franchisor, then such higher limits will apply to this Lease.


 


9.4
Loss and Damage. Tenant shall be solely responsible for carrying personal property insurance sufficient to cover
loss of all personal property on the Premises. Such policies must be approved by Landlord. Landlord shall not be liable for any
damage to or loss of property of Tenant or others located on the Premises.


 


9.5
Hold Harmless. Landlord shall not be liable for (and Tenant hereby indemnifies Landlord against) any loss, injury,
death or damage to persons or property which at any time may be suffered or sustained by Tenant or by any person whosoever may
at any time be using, occupying or visiting the Premises or be in, on, or about the same whether such loss, injury, death, or
damage shall be caused by or in any way result from or arise out of any act, omission, or negligence of Tenant or of any occupant,
subtenant, visitor, or user of any portion of the Premises, or shall result from or be caused by any other matter or thing whether
of the same kind as or of a different kind than the matters or things above set forth. Tenant hereby waives all claims against
Landlord for damages to the building and improvements that are now on or hereafter placed or built on the Premises, and for injuries
to persons or property in or about the Premises, from any cause arising at any time. The two preceding sentences shall not apply
to loss, injury, death or damage arising by reasons of the negligence or misconduct of Landlord, its agents, or employees.


 


ARTICLE
X - CONDEMNATION


 


10.1
Total Condemnation. In the event that the entire Premises, or such part of the Premises (including entrances, exits
and parking area) as will render the remainder unsuitable for Tenant’s use, in Tenant’s sole opinion, shall be appropriated
or taken under the power of eminent domain by any public or quasi-public authority, this Lease shall terminate and expire as of
the date of taking.


 


10.2
Partial Condemnation. In the event of partial condemnation, not rendering the remainder of the Premises unsuitable
for Tenant’s use, in Tenant’s sole opinion, this Lease shall remain in full force and effect, with the exception that
the Base Annual Rent shall be reduced to the extent that an appraisal of the leasehold value of the Premises shall show a decrease
in market rent as a result of the taking, provided that the appraiser has been chosen jointly by Landlord and Tenant and
further provided that in no event shall the reduction exceed a pro rata reduction based on the proportion of the Premises
taken to the total size of the original Premises. Provided further that, if Percentage Rent becomes due and payable for
the Lease Year in which such Base Annual Rent was adjusted, or any subsequent Lease Year, the Base Annual Rent for the next following
Lease Year will be restored to the original, unadjusted Base Annual Rent.


 




    	 	12	 



     


    

 


10.3
Condemnation Award. Landlord will be the only party entitled to receive a condemnation award (whether by negotiation
or court action) from any taking of the Premises by condemnation or eminent domain. Landlord will be the sole party entitled to
negotiate or prosecute such a claim, at its sole cost and expense, but Tenant will reasonably cooperate in such efforts. If applicable
state law allows separate compensation to Tenant for any diminution in value of the leasehold estate or moving expenses, Tenant,
at Tenant’s sole cost and expense, may pursue such claims, so long as such claims result in a separate award to Tenant and
will not reduce the award payable to Landlord for the taking of the Premises.


 


ARTICLE
XI - DEFAULT


 


11.1
Tenant Default. If (i) default shall be made in the payment of Base Monthly Rent, Percentage Rent, or any other
charge due hereunder, for a period of ten (10) days after written demand (a rejected debit of Tenant’s account pursuant
to Section 3.2 shall be deemed written demand for the amount rejected); or (ii) default shall occur in the due performance
or observance of any other covenant, condition or provision of this Lease on the part of Tenant to be performed, kept or observed,
and if Tenant shall not have taken and diligently continued to pursue steps to remedy the same within thirty (30) days after receipt
by Tenant of written notice from Landlord specifying the default, then Landlord may re-enter the Premises and exercise any right
or remedy provided by law, equity, or this Lease.


 


11.2
Landlord Default. Landlord shall not be deemed to be in default hereunder with respect to any of the terms, covenants
or conditions of this Lease unless Tenant shall first give written notice to Landlord and Landlord fails within thirty (30) days
of receipt thereof to cure said default, or, if the default is of such a nature that it cannot reasonably be cured within thirty
(30) days, Landlord fails to commence to cure such default within such period of thirty (30) days or fails thereafter to proceed
to the curing of such default with all possible diligence.


 


11.3
Parties May Remedy Defaults. In the event of any default hereunder by either party, Landlord or Tenant respectively,
may immediately or at any time thereafter, after having given the other party the requisite notice to cure the same and the time
for such correction having elapsed, cure such default for the account and at the expense of the other party. If Landlord or Tenant
at any time, by reason of such default, is compelled to pay, or elects to pay, any sum of money, or incurs any expense, including
reasonable attorney’s fees, in instituting or prosecuting any action or proceeding to enforce such party’s rights
hereunder, the sum or sums so paid or incurred by such party, (i) if paid or incurred by Landlord shall be deemed to be additional
rent hereunder and shall be due from Tenant to Landlord on the first day of the month following the payment of such respective
sums, and (ii) if paid or incurred by Tenant shall be deductible to the extent thereof from subsequent payments of Base Monthly
Rent. Any amounts payable by either Landlord or Tenant hereunder shall bear interest equal to the current rate which the non-defaulting
party can then obtain from its usual commercial lender in the ordinary course of business. This option given to the parties is
intended for their protection and its existence shall not release the parties from the obligation to perform the terms and covenants
herein provided or deprive Landlord or Tenant of any legal rights which they may have by reason of the other party’s default.


 




    	 	13	 



     


    

 


11.4
Charge For Late Payments. Without prior notice to Landlord, in addition to any and all costs to become payable by
Tenant under Section 11.3 above, Tenant agrees to pay to Landlord a collection fee of three percent (3%) of any amount
due to Landlord which is not received by Landlord by the tenth (10th) day after the date on which it was due. At any
time that rent is outstanding past the date on which a late rent collection fee can be levied by Landlord, Landlord may also charge
Tenant one (1) percent per month on the outstanding balance from the date that the balance was first due. For the purposes of
this Section, all funds received by Landlord from Tenant will be applied (i) first to any overdue rent, (ii) then to any late
rent collection fees or additional charges hereunder, and (iii) any balance to the current month’s Base Monthly Rent. In
the event such charges are levied, and the next payment by Tenant is not sufficient to pay all charges levied by Landlord, Landlord
shall provide Tenant a statement showing the application of Tenant’s funds to any of the charges in this Section within
fifteen (15) days after receipt of funds against which such charges are levied. Landlord’s waiver of, or failure to collect
any amounts due pursuant to this Section shall not preclude Landlord from future collection of such charges. Nothing in this clause
shall be construed to grant Tenant the option to pay the rent after the due date, and all default remedies shall be available
to Landlord in addition to and during the collection of the amounts set forth in this Section.


 


11.5
Cross Default. Landlord and Tenant are currently parties to Restaurant Absolutely Net Leases for Wendy’s restaurants
located at (i) 3013 Peach Orchard Road, Augusta, Georgia; (ii) 1004 Richland Avenue, Aiken, South Carolina; (iii) 1717 Martintown
Road, North Augusta, South Carolina; (iv) 1730 Walton Way, Augusta, Georgia; and (v) 3859 Washington Road, Martinez, Georgia (collectively,
with the Original Lease and this Lease, the “Wendy’s Leases”). Simultaneously with the execution
of this Lease, Tenant and Landlord have executed similar amended and restated leases with respect to premises located at 3013
Peach Orchard Road, Augusta, Georgia, and 1004 Richland Avenue, Aiken, South Carolina, which will also be considered Wendy’s
Leases. Any default by Tenant under the terms and conditions of any of the Wendy’s Leases shall be deemed to be a simultaneous
default by Tenant under this Lease, and Landlord shall be entitled to exercise any and all remedies for such default afforded
to Landlord under this Lease, at law or in equity.


 


ARTICLE
XII - ASSIGNMENT, SUBLETTING, AND CONTINUOUS USE


 


12.1
Tenant Assignment and Subletting.


 


(a)
Tenant shall have the right to assign this Lease or sublet the Premises only with Landlord’s prior written consent, which
consent shall not be unreasonably withheld nor unduly delayed. However, such consent may be withheld if, in Landlord’s sole
discretion, such assignee or subtenant is unlikely to achieve sales volumes currently, or in the future consistent with those
sales volumes originally anticipated to be achieved from Tenant herein.


 


(b)
Notwithstanding the provisions of Section 12.1(a) to the contrary, Tenant may assign or sublet this Lease without the consent
of Landlord, provided all of the following conditions are met: (i) the assignee or subtenant at the time of the transfer is either
Franchisor or a franchisee of Franchisor operating not less than five (5) Wendy’s restaurants and meeting Franchisor’s
current financial requirement for a multi-unit franchisee, (ii) all Wendy’s Leases (as defined in Section 11.5) are
assigned or sublet to such assignee or subtenant, (iii) Tenant has provided Landlord not less than thirty (30) days’ prior
written notice of such assignment or sublease, and (iv) the assignee or subtenant executes a written assumption agreement with
respect to all the Wendy’s Leases, assuming all of the obligations of Tenant upon terms reasonably acceptable to Landlord.
The parties acknowledge that Franchisor currently requires multi-unit franchisees to demonstrate a net worth not less than $5,000,000
and that not less than $2,000,000 of their net worth must be liquid.


 




    	 	14	 



     


    

 


(c)
Tenant shall not be relieved of the obligation to perform any of the terms and conditions of this Lease following such assignment
or subletting.


 


12.2
Landlord Assignment. Subject to the provisions of Article XIII, Landlord shall have the right to assign or
transfer its interest in this Lease at any time, provided that the assignee or transferee assumes and agrees to be bound by the
terms of this Lease and further provided that Landlord notifies Tenant of such assignment and provides Tenant with an executed
copy of the transfer instrument within a reasonable time subsequent to occurrence.


 


12.3
Continuous Use. In the event the Premises are not used to conduct the business permitted herein for a commercially
reasonable number of hours per day for a period of at least thirty (30) days (other than due to circumstances beyond the control
of Tenant), Landlord may notify Tenant of Landlord’s intent to retake the Premises, and after passage of fourteen (14) days
may retake possession and shall use its best efforts to relet said Premises for such rent and upon such terms as it may deem fit,
holding Tenant responsible for all rent due herein until such time as rents are received under a replacement lease. Upon the re-rental,
if a sufficient sum shall not be thus realized monthly after reasonable expenses of reletting to satisfy the rent owing under
this Lease by Tenant, Tenant agrees to satisfy and pay such monthly deficiency during each month of the remaining period of this
Lease.


 


ARTICLE
XIII - RIGHT OF FIRST REFUSAL


 


13.1
Right of First Refusal. Intentionally Omitted.


 


ARTICLE
XIV - MISCELLANEOUS


 


14.1
Accord and Satisfaction. No payment received by Landlord of a lesser amount than the rent or other charges shall
be deemed to be other than on account of the earliest stipulated rent or other charges nor shall any statement on a check or any
letter accompanying a payment of rent or other charges be deemed an accord and satisfaction. Landlord may accept payment without
prejudice to Landlord’s right to recover the balance of rent or other charges to pursue any remedy in this Lease.


 


14.2
Entire Agreement. This Lease and any Exhibits or Addendums attached hereto set forth all covenants, promises, agreements,
conditions and understandings between Landlord and Tenant concerning the Premises. There are no covenants, promises, agreements,
conditions or understandings, either oral or written, between the parties hereto other than as herein set forth. No subsequent
change or addition to this Lease shall be binding upon Landlord or Tenant unless reduced to writing and signed by them.


 


14.3
No Partnership. Landlord does not in any way become a partner, joint venturer, or member of a joint enterprise with
Tenant.


 




    	 	15	 



     


    

 


14.4
Force Majeure. If either party is delayed from the performance of any act required hereunder by reason of labor
troubles, inability to procure materials, failure of power, restrictive governmental regulations, riots, insurrection, war or
like reasons not the fault of the party delayed, then the period for performance of the act shall be extended for a period equivalent
to the period of the delay.


 


14.5
Waiver. The waiver by Landlord or Tenant of any breach of any term, covenant, or condition herein shall not be deemed
a waiver of the term, covenant, or condition. The acceptance of rent by Landlord shall not be deemed a waiver of any preceding
breach by Tenant of any covenant herein, other than the failure of Tenant to pay the rent so accepted. No covenant, term or condition
of this Lease shall be waived by Landlord or Tenant unless the waiver be in writing.


 


14.6
Notices. Any notices given or required to be given to Landlord shall be sent or personally delivered to the address
stated in Section 1.3, and any notices given or required to be given to Tenant shall be sent or personally delivered to
the address stated in Section 1.5. Unless otherwise stated in this Lease, notices shall be deemed given (i) three (3) days
after being deposited in the U.S. Mail, postage prepaid and correctly addressed, certified or registered mail, to the respective
party, (ii) the next business day after being deposited with a national overnight delivery service (e.g., Federal Express
or UPS) air bill prepaid and correctly addressed for next business day delivery to the respective party, or (iii) when personally
delivered to a party. A party may change its address for notices by providing the other party written notice of such changed address
as provided above.


 


14.7
Partial Invalidity. If any provision of this Lease or any specific application shall be invalid or unenforceable,
the remainder of this Lease, or the application of the provisions in other circumstances, shall not be affected, and each provision
of this Lease shall be valid and enforceable to the fullest extent permitted by law.


 


14.8
Memorandum Lease. Landlord and Tenant upon the request of either party shall execute a Memorandum of Lease in a
form approved for recording by the laws of the state in which the Premises is located. Either party shall be entitled to record
the Memorandum of Lease with the appropriate land title registry of the state in which the Premises is located. If such recording
is required by law, each party shall execute and deliver to the other and/or the appropriate land title register all documents
necessary to accomplish such recording. The Tenant shall pay the costs of any mandatory recording.


 


14.9
Consent. Where any provision of this Lease requires prior written consent by either party, such consent shall not
be unreasonably withheld nor unduly delayed.


 


14.10
Quiet Title. Landlord covenants and warrants (unless otherwise specified herein) that Landlord is seized in fee
title to the Premises free and clear of all encumbrances, easements, right of way, reservations, restrictions, covenants, limitations
and conditions which might in any manner or to any extent prohibit, restrict or affect the operation of Tenant’s business
as stated herein with its necessary appurtenances. For so long as Tenant fulfills the conditions and covenants required of Tenant
under this Lease, Tenant shall have peaceful and quiet possession of the Premises. Landlord further covenants and warrants that
Landlord has good right, full power and lawful authority to enter into this Lease for the full Term.


 




    	 	16	 



     


    

 


14.11
Remedies Cumulative. All remedies conferred on Landlord and Tenant by this Lease shall be deemed cumulative and
no one remedy shall be deemed to be exclusive of the other or of any other remedy conferred by law or equity. Failure to insist
upon strict performance of any of the provisions herein contained shall not be deemed a waiver of any subsequent breach or default
in any such provisions.


 


14.12
Binding Effect. The covenants and agreements contained in this Lease shall bind the respective successors, assigns,
heirs and legal representatives of the parties hereto.


 


14.13
Applicable Law. This Lease shall be governed by the laws of the state in which the Premises are located,


 


14.14
Holding Over. Any holding over after the expiration of the Term (as it may be extended) with or without Landlord’s
consent shall be construed to be a tenancy from month to month at the same Base Monthly Rent in effect immediately prior to the
expiration of the Term, and otherwise on the same terms and conditions hereof.


 


14.15
Subordination and Attornment. This Lease shall be subject and subordinate to any existing mortgage or mortgages
or to any future mortgage or mortgages, or to any renewal, replacement or extension of any existing or future mortgage or mortgages
that are currently or may in the future become a lien on the Premises, provided, however, that the mortgagee of
any such existing or future mortgage agrees not to terminate this Lease, or disturb Tenant’s possession of the Premises,
or do anything which will adversely affect the rights of Tenant hereunder, so long as Tenant pays the rent, and observes and performs
all of the other obligations, provisions, covenants and conditions required of Tenant by this Lease, and Tenant agrees to execute
whatever instruments may be required to effect such subordination. For the purposes of this Section, a mortgage shall be defined
as any financing document representing an interest in the Premises, including, but not limited to, a Mortgage, Deed of Trust,
or Land Contract. Further, Tenant acknowledges and agrees that, if Lender shall succeed to the interest of Landlord under this
Lease, Tenant shall be bound to Lender as Landlord, from and after Lender’s succession to the interest of Landlord under
the Lease, and Lender shall have the same remedies against Tenant for the breach of any agreement contained in the Lease as are
available thereunder to Landlord. Tenant hereby agrees to assign over and pay to Lender all rents due and owing under this Lease
subsequent to Lender’s succession to the interests of Landlord.


 


[THIS
SPACE LEFT BLANK INTENTIONALLY]


 




    	 	17	 



     


    

 


14.17
Signatures. IN WITNESS WHEREOF, the parties hereunto have set their hand and seal on the date set forth in Section
1.1 above:


 


	LANDLORD:	 	TENANT:
	 	 	 
	DIVALL
    INSURED INCOME	 	WENDGUSTA,
    LLC
	PROPERTIES
    2	 	a
    Florida limited liability company
	LIMITED
    PARTNERSHIP	 	 
	 	 	 	 	 
	By:	The
    Provo Group, Inc.,	 	 	 
	 	its
    general partner	 	 	 
	 	 	 	 	 
	By:	 	 	By:	 
	 	Bruce
    Provo - President	 	 	Lewis
    E. Topper - Manager
	 	 	 	 	 
	 	 	 	By:	 
	 	 	 	 	Jeffrey
    J. Coughlan – Manager


 




    	 	18	 



     


    

 


	STATE
    OF __________	)
	 	)
    ss
	COUNTY
    OF __________	)


 


Personally
came before me this _____ day of __________, 2020, Bruce Provo, the President of The Provo Group, Inc., the General Partner of
DiVall Insured Income Properties 2 Limited Partnership (the “Company”), to me known to be the person who executed
the foregoing instrument, and to me known to be the President of such General Partner, and acknowledged that he executed the foregoing
instrument as the General Partner of the Company.


 


	 	 
	 	Notary
    Public, State of __________
	 	My
    Commission: __________


(Notarial
Seal)


 


	STATE
    OF __________	)
	 	)
    ss
	COUNTY
    OF __________	)


 


Personally
came before me this ____ day of __________, 2020, Lewis E. Topper and Jeffrey J. Coughlan, both Managers of Wendgusta, LLC (the
“Company”), to me known to be the persons who executed the foregoing instrument, and to me known to be such
Managers of said Company, and acknowledged that they executed the foregoing instrument as such officers as the deed of said Company,
by its authority.


 


	 	 
	 	Notary
    Public, State of __________
	 	My
    Commission: __________


(Notarial
Seal)


 




    	 	19	 



     


    

 


ADDENDUM
A



PERSONAL GUARANTY – Intentionally Omitted


 




    	 	 	 



     


    

 


ADDENDUM
B



SPECIAL TERMS – Intentionally Omitted


 




    	 	 	 



     


    

 


Exhibit
A


 


Legal
Description

1901 Whiskey Road, Aiken, South Carolina


 


All
that certain piece, parcel or lot of land, with improvements thereon, situate, lying and being on the SOUTHWEST corner of the
intersection of South Carolina Highway No. 19 and South Carolina Highway No. 302, in the Southern Section of the City of Aiken,
in Aiken County, South Carolina, containing 0.822 acre as shown on a plat made by Charles M. Jones, Professional Land Surveyor,
dated June 15, 1982, recorded in Plat Book 14, at page 23, Office of the R.M.C. for Aiken County, and according to said plat,
bounded and measuring as follows: NORTHWEST by the right of way of South Carolina Highway No. 302, and measuring on five lines
a total distance of 156.43 feet; NORTH by the intersection of South Carolina Highway 19 and South Carolina Highway 302, and measuring
thereon, 53.10 feet; NORTHEAST by right of way of South Carolina Highway No. 19 and measuring thereon, 151.55 feet; SOUTHEAST
by the 40 foot wide service road into The Village at Whiskey Shopping Center, as shown on said plat, and measuring thereon, 197.52
feet; and SOUTHWEST by property of Franceys B. Weeks, known as The Village at Whiskey Shopping Center, and measuring thereon,
178.95 feet. All as will more fully appear by reference to the plat above referenced which is made a part of this description
by reference.


 




    	 	 	 



     


    

 


Exhibit
B


 


Itemization
of Capital Improvements