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EXHIBIT 10.14
AGREEMENT TO PURCHASE PROPERTY
THIS AGREEMENT TO PURCHASE PROPERTY ("Agreement") is made and entered
into this 8th day of April, 1998, by and between THRIFT SHOPS OF NORTH
LAUDERDALE, INC., a Florida corporation, d/b/a THINK THRIFT! ("Purchaser"),
and XXXXXX X. AND XXXXXX XXXXX JEWISH COMMUNITY CENTER, INC., a Florida
not-for-profit corporation ("Charity").
WITNESSETH
WHEREAS, Purchaser is a corporation that is engaged in the business of
purchasing and selling items of salvageable property and merchandise,
including, but not limited to, clothing, household goods and furnishings,
appliances, bric-a-brac and various other goods (hereinafter referred to as
"Property"); and
WHEREAS, the Charity is duly qualified and is an organization
described in Section 501(c)(3) of the Internal Revenue Code of 1986, as
amended (the "Code"), and donations made to the Charity are qualified for the
charitable income tax deduction provided in Section 170 of the Code; and
WHEREAS, the Charity, directly or through its agents, is actively
engaged in the solicitation of Property as contributions to the Charity and
desires to sell the Property to Purchaser; and
WHEREAS, Purchaser and the Charity mutually agree that it would be in
each of their best interests to enter into a formal agreement describing their
mutual obligations.
NOW, THEREFORE, in consideration of the agreement and the mutual
covenants set forth herein, and for other good and valuable consideration, the
receipt and sufficiency of which is hereby acknowledged, the parties hereto,
intending to be legally bound, hereby agree as follows:
1. (a) Charity hereby agrees to sell, and Purchaser hereby
agrees to purchase, all Property contributed to Charity, excluding cars and
boats for such price and on such conditions as are hereafter set forth. The
Charity agrees that it shall sell all property contributed to it and not
otherwise used by Charity in furtherance of its exempt purposes to Purchaser.
(b) The Charity agrees to deliver or cause to be delivered to
Purchasers at the address set forth in Section 19 hereof, all Property
contributed to Charity or to such other address or addresses within Broward
County as may be hereafter designated by Purchaser.
2. The term of this Agreement shall be for a period of five (5) years,
commencing on April 1, 1998 and terminating on March 31, 2003, with one (1)
five (5) year renewal option,
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commencing on April 1, 2003, unless sooner terminated or extended pursuant
to the terms and conditions of this Agreement.
3. Simultaneous with the execution hereof, and in consideration of
Purchaser agreeing to purchase the Property during the term of this Agreement,
Charity shall transfer to Purchaser all of Charity's right, title and interest
in and to all items of tangible personal property (including all furniture and
equipment) located at the thrift store presently operated by the Charity at
0000 X.X. 00xx Xxxxxx, Xxxxxxxxxx Xxxxx, Xxxxxxx 00000 ("Existing Store").
Purchaser shall remove all desired items of tangible personal property from
the Existing Store by April 25, 1998 at Purchaser's sole expense.
4. So as to maximize the volume of Property available to be sold to
Purchaser, the Charity hereby agrees to contract with a professional solicitor
("Solicitor") to solicit the public for contributions of Property to the
Charity. This Agreement may be cancelled by Purchaser upon ten (10) days
notice if Charity shall fail to obtain and maintain the services of a
Solicitor during the term of the Agreement. The Purchaser hereby agrees to
make direct payments on behalf of and for the benefit of Charity, of any sums
to which the Solicitor may be entitled under the Agreement between Charity and
Solicitor, and deduct same from the amounts otherwise payable to Charity. The
Charity shall designate in writing any instructions as to payments to be made
to Solicitor.
5. Both parties contemplate that the primary Property available for
sale shall be furniture. The parties hereby agree that it is burdensome and
impractical to separately track and account for clothing and other
miscellaneous goods that might be acquired by the Purchaser from the Charity,
and therefore, the Purchase Price has been calculated taking into account
that, from time to time, there will be goods other than furniture sold by the
Charity to Purchaser. Because it is not possible to separately value each item
of Property and because the subsequent resales of furniture are separately
traceable by Purchaser, the parties have agreed that the purchase price to be
paid for the Property ("Purchase Price") shall include reimbursement of all
expenses incurred in soliciting and collecting the goods plus an amount equal
to $1,000 plus the greater of (i) One Thousand Dollars ($1,000) per month, or
(ii) ten percent (10%) of all "furniture" (as hereinafter defined) sold by
Purchaser. Purchaser agrees to maintain a separate sales code as part of its
sales and accounting system to track the sale of furniture, regardless of
whether such furniture was acquired by Purchaser from Charity or otherwise.
For purposes of this Agreement, the term "furniture" shall not include bed
mattresses purchased by Purchaser from sources other than the Charity. The
parties further agree that the Purchase Price has been determined to be fair
and reasonable, taking into account the wide variation in the quantity and
quality of the Property to be sold by Charity to Purchaser, and the difficulty
in valuing such Property. Purchaser shall keep records of all sales made of
and allow the Charity (or any third-party designated by the Charity) during
normal business hours, to inspect its books and records of all sales of
furniture made to ensure correct computation of the payments due the Charity.
6. The monthly payment provided pursuant to Section 5 hereof shall be
paid to the Charity within twenty (20) days following the end of each month or
sooner if possible.
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7. Both parties agree that nothing contained herein shall constitute
or be deemed to have created a partnership, joint venture or other business
association between the parties, nor shall Purchaser be considered an agent or
an employee of the Charity or the Charity be considered an agent or employee
of the Purchaser.
8. If a claim or lawsuit is brought by a third party against the
Charity or Purchaser in connection with this Agreement, the party against whom
the claim is made shall immediately notify the other of the outstanding claim
and provide to the other the opportunity to assist in resolving the same,
whether by negotiation or litigation. Nothing herein shall preclude either
party from retaining its own attorney to defend any such action.
9. In the event that either party is reasonably prevented from
carrying on the transactions described herein by reason of the enforcement of
any ordinances, statutes, laws, rules or regulations of any public utility,
city, county, state or federal governmental authority, then the parties hereto
shall be excused from the obligations provided herein, but shall resume those
obligations when business is resumed; provided, however, that in the event of
such interruption in business activities as described above, Purchaser shall
have the right, in its sole discretion, to cancel this agreement upon thirty
(30) days prior written notice to the Charity. Both parties will at all times
use diligence to remove promptly any obstacle to their carrying on the
business described herein.
10. The Charity recognizes and agrees that Purchaser has the right to
purchase and sell Property from (and to) wherever and whomever the Purchaser
chooses. Purchaser specifically agrees it will not use the name of the Charity
to promote, induce or entice the public or any person, in any manner or form,
to purchase at retail or wholesale the merchandise purchased from the Charity
herein.
11. Purchaser agrees that it will carry a comprehensive public
liability and property damage insurance in the amount of at least One Million
Dollars ($1,000,000) public liability and at least One Million Dollars
($1,000,000) property damage, and will name the Charity as an additional
insured on said policies, insuring the Charity as well as the Purchaser
against any claim for public liability or property damage and in connection
with the operation of any motor vehicle used, and in connection with any loss
from fire, flood, theft or other natural or human perils. The Purchaser hereby
agrees to indemnify and hold the Charity harmless against any liability, as
occasioned by the acts of the Purchaser, its agents or representatives, in
connection with the performance of this Agreement, whether or not covered by
insurance. Said indemnification shall include attorneys' fees and the costs of
the defense of any action.
12. In the event that either of the parties defaults or violates any
of the provisions of this Agreement, the complaining party shall deliver to
the other party written notice stating the breach, and the defaulting party
shall have thirty (30) days from the receipt of such written notice within
which to comply with the terms of this Agreement.
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13. Notwithstanding any term or condition to the contrary contained
herein, Purchaser, may, at its option, terminate this Agreement by giving the
Charity sixty (60) days prior written notice. Notwithstanding any term or
condition to the contrary contained herein, the Charity may terminate this
Agreement by giving the Purchaser not less than one hundred eighty (180) days
prior written notice. Upon receipt of all payments then due and owing at the
end of the above-mentioned periods, both parties shall be discharged of their
obligations under this Agreement.
14. In the event of any dispute between the Charity and the
Purchaser arising out of this Agreement, each party shall pursue arbitration
in accordance with the Commercial Rules of the American Arbitration
Association. Each party shall select one arbitrator, which arbitrators shall
select a third arbitrator. A decision of two of the arbitrators shall be
deemed to be conclusive and binding upon each party. All costs associated
with the arbitration shall be paid as determined by the arbitrators; however,
for the purposes of initiating the arbitration proceedings, the party
electing arbitration shall advance the costs. The submission of any
controversy arising under this Agreement to arbitration shall be in such a
manner as is provided for in accordance with the Commercial Rules of the
American Arbitration Association and the laws of the State of Florida.
15. If any party hereto is required to engage in litigation against
any other party hereto, either as plaintiff or as defendant, in order to
enforce or defend any of its or his rights under this Agreement, and such
litigation results in a final judgment in favor of such party ("Prevailing
Party"), then the party or parties against whom said final judgment is
obtained shall reimburse the Prevailing Party for all direct, indirect or
incidental expenses incurred by the Prevailing Party in so enforcing or
defending its or his rights hereunder, including, but not limited to, all
attorneys' fees, paralegals' fees and all sales tax thereon, and all court
costs and other expenses incurred throughout all negotiations, trials or
appeals undertaken in order to enforce the Prevailing Party's rights
hereunder.
16. The Agreement shall also be subject to immediate cancellation by
the Charity in the event (a) the Purchaser takes advantage of any law for the
benefit of debtors, or if any execution or levy shall be issued against the
Purchaser or Purchaser's effects, or insolvency, bankruptcy or judicial
insolvency by the Purchaser, or (b), except as otherwise provided herein,
Purchaser attempts to assign or sell this Agreement without the Charity's
consent, which consent shall not be unreasonably withheld.
17. Each party hereby agrees that in the event of any termination of
this Agreement, then any Property on hand and unsold by the Purchaser may be
sold pursuant to the terms and conditions of this Agreement.
18. Each party hereto recognizes and agrees that the violation of
any term, provision or condition of this Agreement may cause irreparable
damage to the other parties which may be difficult to ascertain, and that the
award of any sum of damages may not be adequate relief to such parties. Each
party, therefore, agrees that, in addition to other remedies available in the
event of a breach of this Agreement, any other party shall have a right to
equitable relief, including, but not limited to, the remedy of specific
performance.
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19. Any notice, payment, or communication required or permitted to be
given by any provision of this Agreement shall be deemed delivered, whether
actually received or not, three (3) days after being deposited in a United
States Postal Service Depository, postage prepaid, registered or certified
return receipt requested, when received if sent by overnight courier, or by
facsimile, if such facsimile is followed by a hard copy of the facsimiled
communication, addressed to the parties as set forth below, or such other
address as shall be specified by written notice delivered to the parties
hereto, Any such notice shall be addressed as follows:
If to Purchaser: 0000 Xxxxx Xxxxx Xxxx 0
Xxxxxxxxxx Xxxxx, Xxxxxxx 00000
If to Charity: 0000 Xxxx Xxxxxxx Xxxxxxxxx
Xxxxxxxxxx, Xxxxxxx 00000
20. This Agreement, including any exhibits attached hereto and any
documents delivered pursuant hereto, sets forth all the promises, covenants,
agreements, conditions and understandings between the parties hereto, and
supersedes all prior and contemporaneous agreements, understandings,
inducements or conditions, expressed or implied, oral or written, except as
herein contained. No changes of or modifications or additions to this
Agreement shall be valid unless the same shall be in writing and signed by the
parties hereto.
21. This Agreement shall be binding upon the parties hereto, their
beneficiaries, heirs and administrators. Purchaser shall have the right to
assign all or any portion of its interest in this Agreement to one or more
affiliated corporations ("Affiliates") engaged in the business of the purchase
and sale of Property. Any such assignment shall be evidenced by an addendum to
this Agreement whereby such Affiliates shall agree to be bound by the terms
and conditions hereof to the same extent as Purchaser, and thereafter all
references to "Purchaser" shall include such Affiliates.
22. The parties hereby irrevocably agree that no attempted amendment,
modification, termination, discharge or change (collectively, "Amendment") of
this Agreement shall be valid and effective, unless the parties shall
unanimously agree in writing to such Amendment.
23. No waiver of any provision of this Agreement shall be effective,
unless it is in writing and signed by the party against whom it is asserted,
and any such written waiver shall only be applicable to the specific instance
to which it relates and shall not be deemed to be a continuing or future
waiver.
24. All pronouns shall be deemed to refer to the masculine, feminine,
neuter, singular or plural, as the identity of the party or parties or their
personal representatives, successors and assigns may require.
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25. This Agreement and any amendments may be executed in one or more
counterparts, each of which shall be deemed an original and all of which
together will constitute one and the same instrument.
26. This Agreement shall be construed in accordance with the laws of
the State of Florida and any proceeding arising between the parties in any
matter pertaining or related to this Agreement shall, to the extent permitted
by law, be held in Broward County, Florida.
27. The parties hereto will execute and deliver such further
instruments and do such further acts and things as may be reasonably required
to carry out the intent and purposes of this Agreement.
IN WITNESS WHEREOF, the parties hereto have executed this Agreement
and also provided any appropriate corporate resolutions, by their respective
officers, on the day and date first above written.
Signed, sealed and delivered THRIFT SHOPS OF NORTH LAUDERDALE, INC.,
in the presence of: a Florida corporation
By: /s/ Xxxx Xxxxxxx
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Xxxx Xxxxxxx, Pres.
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XXXXXX X. AND XXXXXX XXXXX JEWISH
COMMUNITY CENTER, INC., a Florida
Not-For-Profit corporation
By: /s/ Xxx Xxxxxxx
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Xxx Xxxxxxx, V.P.
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This will act as an addendum to the Agreement between THRIFT SHOPS OF NORTH
LAUDERDALE, INC. D/B/A THINK THRIFT! and the XXXXXX X. & XXXXXX XXXXX JEWISH
COMMUNITY CENTER dated ___________.
In recognition of the fact that from time to time there may be people in need of
either furniture, clothing or household furnishings, who are unable to pay the
price for same, then the Soref JCC will give to such individuals a written
voucher requesting such merchandise at no cost from Think Thrift! The particular
items given shall be at the discretion of Think Thrift!
Signed, sealed and delivered THRIFT SHOPS OF NORTH LAUDERDALE, INC.,
in the presence of: a Florida corporation
By: /s/ Xxxx Xxxxxxx
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XXXXXX X. AND XXXXXX XXXXX JEWISH
COMMUNITY CENTER, INC., a Florida
not-for-profit corporation
By: /s/ Xxxx Xxxxxxxx
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Xxxx Xxxxxxxx, Exec. Dir.
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