Form of License/Lease Agreement

FORM OF
LICENSE/LEASE AGREEMENT


OPTICAL


THIS LICENSE/LEASE AGREEMENT (hereinafter referred to as "Agreement") is made and entered into as of, by and between SEARS, ROEBUCK AND CO., a New York corporation (hereinafter referred to as "Sears") and COLE VISION CORPORATION, a Delaware corporation, (hereinafter referred to as "Licensee/Tenant").


WHEREAS, Sears operates a retail store located at:


REGION DIST. STORE LOCATION - ------ ----- ----- --------


(hereinafter referred to as the "Store"), and


WHEREAS, Licensee/Tenant desires to operate an optical concession in the Store,


NOW THEREFORE, Sears and Licensee/Tenant hereby mutually agree as follows:


PURPOSE OF AGREEMENT


1. Licensee/Tenant is in the business described in this paragraph, and has expertise in that business and has a marketing plan for that business. Sears hereby leases to Licensee/Tenant the space described below, and grants Licensee/Tenant the privilege of conducting and operating within that space, and Licensee/Tenant shall conduct and operate, pursuant to the terms, provisions and conditions contained in this Agreement, a concession for the sale of optical merchandise, goods, and supplies; and for taking orders for repair, and repair of optical merchandise, goods and supplies and for visual eye exams and for the sale of repair and replacement certificates (hereinafter referred to as "Concession"), in the Store.


TERM


2. The term of this Agreement (hereinafter referred to as "Term") shall be for a period beginning on and ending at the close of business on unless sooner terminated under any of the provisions of this Agreement.


REPRESENTATION TO LICENSEE/TENANT


3. Sears makes no promises or representations whatsoever as to the potential amount of business Licensee/Tenant can expect at any time during the Term. Licensee/Tenant is solely responsible for any expenses incurred related to this Agreement. Sears shall not be obligated for any expense incurred by Licensee/Tenant in connection with any increase in the number of Licensee/Tenant's employes or expenditures made by Licensee/Tenant for additional facilities or equipment.


UNAUTHORIZED SALES


4. Licensee/Tenant covenants that it will use the space occupied by the Concession only for the purpose expressly authorized in this Agreement, and will render only those services and sell only such merchandise in the Concession as expressly authorized by this Agreement.


FEE


5. (a) Licensee/Tenant shall pay to Sears, as provided in Paragraph 26 of this Agreement, a fee.


NET SALES


(b) "Net Sales" means gross sales less returns, sales taxes, and allowances for sales of merchandise, goods and supplies made in, upon or from the Concession location, and includes:


(1) Charges for repair work made pursuant to orders taken or received in, upon or from the Concession location and


(2) Charges for services performed in connection with the sale in, upon or from the Concession location of merchandise, goods and supplies.


GROSS SALES


(c) "Gross Sales" means all of Licensee/Tenant's direct or indirect sales of services and merchandise from the Concession. Eye exam fees are excluded from Gross Sales.


HOLDING OVER


6. Licensee/Tenant shall pay Sears double the monthly Fee,


for each month or portion of a month for which Licensee/Tenant of the Concession area, retains possession of the Concession area or any part after the termination of the Term or Licensee/Tenant's right of possession, whether by lapse of time or otherwise. The provisions of this Paragraph shall not constitute a waiver of any other right or remedy of Sears under this Agreement or provided by law or equity. No such holding over shall renew or extend the Term even if Sears accepts Fee, and Licensee/Tenant shall have no right to continue possession of the premises, and shall be a Licensee/Tenant at sufferance only.


CONSTRUCTION OF LEASEHOLD IMPROVEMENTS


7. (a) Licensee/Tenant shall determine (based on good engineering practices) the nature, scope, size of the Concession and Licensee/Tenant shall determine the nature, scope, size of the furniture, fixtures and equipment in the Concession. Licensee/Tenant shall submit plans to Sears, Sears must approve such plans, before commencement of construction. Sears will arrange for construction of all improvements. The expense of all such construction and equipment shall be divided between Sears and Licensee/Tenant as described in Exhibit A.


TITLE TO LEASEHOLD IMPROVEMENTS


(b) All Leasehold Improvements shall become the property of Sears at the termination of the Agreement. At the termination of the Agreement, or if Licensee/Tenant vacates or abandons the Concession, Licensee/Tenant shall convey to Sears, without charge, good title to the Leasehold Improvements free from any and all liens, charges, encumbrances and rights of third parties, by means of a Quit Claim Deed and any other documents required by Sears.


CONCESSION FAILS TO BECOME FULLY OPERATIONAL


(c) If the Concession is not fully operational within thirty (30) days after completion of construction of the concession area as a result of delay by Licensee/Tenant, Sears may, at Sears option, terminate this Agreement and have no further obligation to Licensee/Tenant, and Licensee/Tenant shall reimburse Sears within ten (10) days after receipt of an invoice, for Sears cost, of putting the space involved back to its condition immediately prior to the commencement of such construction.


USE OF SEARS NAME


8. (a) Licensee/Tenant shall operate the Concession under the name "Sears Optical". Licensee/Tenant shall not commence any business activity under this Agreement without Sears prior written approval of any and all names that Licensee/Tenant intends to use in conjunction with the Concession.


(b) Licensee/Tenant may use the name of Sears, and any Sears trademark, service mark or trade name only when communicating with customers or potential customers of the Concession. Licensee/Tenant shall not use the name Sears or any Sears trademark, service mark or trade name, either orally or in writing, including, but not limited to, use of any letterhead, when communicating with persons or entities other than such customers or potential customers.


(c) Licensee/Tenant shall not question, contest or challenge, either during or after the Term of this Agreement, Sears ownership of the name "Sears" or of any other trademark, service mark or trade name Sears may license Licensee/Tenant to use in connection with the Concession. Licensee/Tenant will claim no right, title or interest in any such trademark, service mark or trade name, except the right to use the same pursuant to the terms and conditions of this Agreement, and will not seek to register the same.


(d) Licensee/Tenant expressly recognizes and acknowledges that the use of any such trademark, service mark or trade name shall not confer upon Licensee/Tenant any proprietary rights to such trademark, service mark or trade name. Upon termination of this Agreement, Licensee/Tenant shall immediately stop using any such trademark, service mark or trade name and will execute all necessary or appropriate documents to confirm Sears ownership, or to transfer to Sears any rights it may have acquired from Sears in any such trademark, service mark or trade name.


(e) Nothing in this Agreement shall be construed to bar Sears after expiration or termination of this Agreement from protecting its right to the exclusive use of its trademarks, service marks or trade names against infringement by any party or parties, including Licensee/Tenant.


REMEDIES FOR UNAUTHORIZED USE


(f) Licensee/Tenant recognizes that the trademark,


service mark or trade name licensed under the Agreement possess a special, unique and extraordinary character which makes it difficult to assess the monetary damage Sears would sustain in the event of unauthorized use. Licensee/Tenant expressly recognizes that irreparable injury would be caused to Sears by such unauthorized use, and that preliminary or permanent injunctive relief would be appropriate in the event of breach of this Agreement by Licensee/Tenant.


POLICING THE TRADEMARKS, SERVICE MARKS, TRADE NAMES


(g) If Licensee/Tenant receives knowledge of any manufacture or sale by anyone else of products and/or services offered by the Licensee/Tenant that would be confusingly similar in the minds of the public and which bear or are promoted in association with the licensed trademarks, service marks or trade names or any names, symbols, emblems, or designs or colors which would be confusingly similar in the minds of the public to such licensed trademarks, service marks or trade names, Licensee/Tenant will promptly notify Sears. Sears shall have the sole right, at its sole expense, to take such action as it determines, in its sole discretion, is appropriate. Licensee/Tenant undertakes reasonably to cooperate and assist in such protest or legal action at Sears expense. If demanded by Sears, Licensee/Tenant shall join in such protest or legal action at Sears expense. Licensee/Tenant shall not undertake such protest or legal action on its own behalf without first securing Sears written permission to do so. If Sears permits Licensee/Tenant to undertake such protest or legal action, such protest or legal action shall be at Licensee/Tenant's sole expense. Sears shall cooperate and assist reasonably therein at Licensee/Tenant's expense. For the purposes of the foregoing, expenses shall include reasonable attorneys' fees. All recovery in the form of legal damages or settlement shall belong to the party bearing the expense of such protest or legal action.


ADVERTISING


9. Licensee/Tenant shall advertise and actively promote the Concession authorized by this Agreement. Prior to Licensee/Tenant's use thereof in connection with the Concession, Licensee/Tenant shall submit all signs, advertising copy, including, but not limited to, sales brochures, newspaper advertisements, radio and television commercials; all sales promotional plans and devices; and all customer contract forms, guarantee certificates; and other forms and materials; to Sears Divisional Vice President, Licensed Businesses, in Hoffman


Estates, or to his designee, for approval. Licensee/Tenant will not use any such advertising material or sales promotional plan or device without such prior approval. Sears has the right to disapprove any or all the aforesaid advertising forms and other materials insofar as they, in Sears opinion, do not properly use Sears trademarks, service marks or trade names; may subject Sears to liability, loss of goodwill, damage to Sears reputation or Sears customer relations; or may fail to adhere to the requirements of any Federal, state or local governmental rules, regulations and laws.


PUBLICITY


10. Licensee/Tenant will not issue any publicity or press release regarding its contractual relations with Sears hereunder or regarding the Concession, and will refrain from making any reference to this Agreement or to Sears in the solicitation of business without obtaining Sears prior written approval and consent to such action.


RELATIONSHIP


11. Licensee/Tenant is an independent contractor. Nothing contained in or done pursuant to this Agreement shall be construed as creating a partnership, agency or joint venture. Except as otherwise expressly provided in this Agreement, neither party shall become bound by any representation, act or omission of the other party.


PRICES


12. Sears has no right or power to establish or control the prices at which Licensee/Tenant offers service and/or merchandise in the Concession. Such right and power is retained by Licensee/Tenant.


LICENSEE/TENANT'S OBLIGATIONS


13. (a) Licensee/Tenant will make no purchases or incur any obligation or expense of any kind in the name of Sears. Prior to any purchase(s) involving the Concession, Licensee/Tenant shall inform its vendor(s) that Sears is not responsible for any obligation(s) incurred as a result of Licensee/Tenant's purchase(s).


(b) Licensee/Tenant shall promptly pay all its obligations, including those for labor and material, and will


not allow any lien(s) to attach to any Sears or customer's property as a result of Licensee/Tenant's failure to pay such sums.


LICENSEE/TENANT'S EMPLOYES


14. (a) Licensee/Tenant has no authority to employ persons on behalf of Sears and no employes of Licensee/Tenant shall be deemed to be employes or agents of Sears, such employes at all times remaining Licensee/Tenant's employes. Licensee/Tenant has sole and exclusive control over its labor and employe relations policies, and its policies relating to wages, hours, working conditions, or conditions of its employes. Licensee/Tenant has the sole and exclusive right to hire, transfer, suspend, lay off, recall, promote, assign, discipline, adjust grievances and discharge its employes, provided, however, that at any time Sears so requests, Licensee/Tenant will give consideration to the transfer from the Concession of any employe who is objectionable to Sears for reasons of health, safety and/or security of Sears customers, employes or merchandise and/or whose manner impairs Sears customer relations. If Sears objects to any of Licensee/Tenant's employes, and Licensee/Tenant refuses to remove such employe and the conditions which caused Sears to object continue, Sears may terminate this Agreement by giving ninety (90) days notice to Licensee/Tenant.


(b) Licensee/Tenant is solely responsible for all salaries and other compensation of all its employes and will make all necessary salary deductions and withholdings from its employes' salaries and other compensation, and is solely responsible for the payment of any and all contributions, taxes and assessments and all other requirements of the Federal Social Security, Federal and state unemployment compensation and Federal, state and local withholding of income tax laws on all salary and other compensation of its employes.


(c) Licensee/Tenant will comply with any other contract, Federal, state or local law, ordinance, rule, or regulation regarding its employes, including Federal or state laws or regulations regarding minimum compensation, overtime and equal opportunities for employment, and, in particular, Licensee/Tenant will comply with the terms of the Federal Civil Rights Acts, Age Discrimination in Employment Act, Occupational Safety and Health Act, and the Federal Fair Labor Standards Act, whether or not Licensee/Tenant may otherwise be exempt from such acts by reason of Licensee/Tenant's size or the nature of Licensee/Tenant's business or for any other reason whatsoever.


(d) Licensee/Tenant warrants that its employe ...