Exhibit 10.1
SIXTH
AMENDMENT
TO
LICENSED DEPARTMENT
AGREEMENT
This Sixth Amendment to Licensed
Department Agreement (the “Amendment”) is entered into
this 8th day of January, 2007 (“Effective Date”)
between U.S. Vision, Inc., a Delaware corporation having its
principal place of business at Glen Oaks Industrial Park, PO Box
124, Glendora, New Jersey (hereinafter “Operator"), and J.C.
Penney Corporation, Inc., formerly J.C. Penney Company, Inc. by its
agent JCP Procurement L.P., ("Penney") with its principal place of
business located at 6501 Legacy Drive, Plano, Texas
75024.
WHEREAS, Penney and the Operator
entered into that certain Licensed Department Agreement dated
February 1, 1995, as amended (collectively, "Agreement");
and
WHEREAS, Penney and Operator amended
the original Agreement by an Amendment dated December 18, 1996, by
an Amendment No. 2 dated April 13, 1998, by a Third Amendment dated
September 30, 2002, by a Fourth Amendment dated May 22, 2003, and
by the Fifth Amendment dated September 2003; and
WHEREAS, Penney and Operator
temporarily supplemented the Agreement by a letter dated December
2, 1997 and that supplemental letter is no longer in effect;
and
WHEREAS, in accordance with the
terms of the Agreement, the parties desire to amend certain terms
and provisions of the Agreement; and
NOW THEREFORE, in consideration of
the premises, and for other good and valuable consideration, the
receipt and sufficiency of which is hereby acknowledged, Penney and
Operator hereby agree as follows:
Article I
Section 2 of the Agreement will be
deleted in its entirety and replaced with the following:
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2.
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Grant of License
. Penney hereby grants to Operator,
as more specifically set forth and limited herein, a revocable
license to operate a Licensed Department for the sale of
Merchandise in the type Stores designated by Penney as Box A, Box B
(includes off mall Stores) or Box C type Store. Box sizes are
defined by net selling-floor square footage, as follows:
[CONFIDENTIAL].
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Article II
Section 5(a) of the Agreement will
be deleted in its entirety and replaced with the
following:
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(a)
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The Operator agrees to sell
Merchandise in each Licensed Department and shall be entitled to
sell Merchandise in the Selling Space. Except as approved by the
management of Operator and Penney or as limited by applicable law
requiring licensed staff coverage (provided Operator will give
Penney written notice of such limitation), the hours of operation
of the Licensed Departments shall be as follows:
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Penney Box A, B and C Stores
opened prior to January 31, 2007
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Hours
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Requirements
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Sunday
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12:00pm to 5:00pm
Except as mutually agreed by Penney
and Operator or as limited by applicable law requiring licensed
staff coverage.
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Operator will provide written notice
of such limitation by applicable law.
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Monday & Tuesday
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10:00am – 7:00pm
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Wednesday – Friday
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10:00am – 8:00pm
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Saturday
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10:00am – 6:00pm
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Doctor Coverage
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[CONFIDENTIAL]
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Penney Box B Stores opened on or
after January 31, 2007
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Hours
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Requirements
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Sunday
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12:00pm – 5:00pm
Except as mutually agreed by Penney
and Operator or as limited by applicable law requiring licensed
staff coverage.
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Operator will provide written notice
of such limitation by applicable law.
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Monday – Friday
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10:00am – 8:00pm
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Saturday
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10:00am – 6:00pm
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Doctor Coverage
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[CONFIDENTIAL]
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Section 5(b) of the Agreement will
be deleted in its entirety and replaced with the
following:
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(b)
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Pursuant to the project plan
developed by Penney and for which Operator may comment on, in each
of Penney’s fiscal years during the term of this Agreement,
Operator agrees to spend at least [CONFIDENTIAL] (or a pro rata
portion of such amount in the event the term of this Agreement
includes only a portion of such fiscal years) on opening new
Licensed Departments or in relocating or refurbishing existing
Licensed Departments. Operator agrees that its expenditure of such
funds is not conditioned on the expenditure by Penney of funds for
construction or other costs related to the opening, relocating or
refurbishing of Licensed Departments. For the avoidance of doubt,
it is understood that, notwithstanding past practice or anything in
this Agreement to the contrary, there may be instances where
Operator is responsible for all costs associated with the opening,
relocation or refurbishment of individual Licensed Departments,
including, without limitation, construction costs, paint,
wallcoverings, carpet, partitions, light fixtures, electrical
wiring, plumbing work and fixtures, and heating, ventilation and
air conditioning. Operator and Penney agree to establish an annual
spending plan for new openings, relocations and refurbishments
prior to the beginning of each of Penney’s fiscal years,
subject to such modifications as the parties agree upon, in
writing, from time to time during each such fiscal year.
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In addition to the obligations in
the above paragraph, and any other payment obligations under this
Agreement, Operator agrees to pay Penney [CONFIDENTIAL]
construction cost for each Licensed Department that Operator opens
in a Box B type Store after January 31, 2007. Operator shall pay
Penney within 30 days after the opening of the Box B Store.
Construction shall be based on the block plan prepared by Penney,
and Operator’s blueprint approved by Penney. Operator
acknowledges and agrees that Penney has not made, and is not
making, any commitment of any kind whatsoever to open or include a
Licensed Department in a minimum number of Box B type Stores and
Operator warrants that it has not relied upon any indication,
verbal or otherwise.
Article III
Section
