UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM 10-K
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ANNUAL REPORT PURSUANT TO SECTION 13 OR 15(d) OF THE SECURITIES EXCHANGE ACT OF 1934 |
For the fiscal year ended January 29, 2011 |
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OR |
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TRANSITION REPORT PURSUANT TO SECTION 13 OR 15(d) OF THE SECURITIES EXCHANGE ACT OF 1934 |
For the transition period from to |
Commission File Number 1-32315
NEW YORK & COMPANY, INC.
(Exact name of registrant as specified in its charter)
DELAWARE
(State or other jurisdiction of incorporation or organization) |
33-1031445
(I.R.S. Employer Identification No.) |
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450 West 33rd Street, 5th Floor, NEW YORK, NEW YORK (Address of principal executive offices) |
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10001 (Zip Code) |
(212) 884-2000
(Registrant's telephone number, including area code)
Securities registered pursuant to Section 12(b) of the Act:
Title of each class | Name of each exchange on which registered | |
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Common Stock, par value $0.001 per share | New York Stock Exchange |
Securities registered pursuant to Section 12(g) of the Act: None.
(Title of Class)
Indicate by check mark if the registrant is a well-known seasoned issuer, as defined in Rule 405 of the Securities Act. Yes o No ý
Indicate by check mark if the registrant is not required to file reports pursuant to Section 13 or 15(d) of the Act. Yes o No ý
Indicate by check mark whether the registrant (1) has filed all reports required to be filed by Section 13 or 15(d) of the Exchange Act during the preceding 12 months (or for such shorter period that the registrant was required to file such reports), and (2) has been subject to such filing requirements for the past 90 days. Yes ý No o
Indicate by check mark whether the registrant has submitted electronically and posted on its corporate Web site, if any, every Interactive Data File required to be submitted and posted pursuant to Rule 405 of Regulation S-T (§ 232.405 of this chapter) during the preceding 12 months (or for such shorter period that the registrant was required to submit and post such files). Yes o No o
Indicate by check mark if disclosure of delinquent filers pursuant to Item 405 of Regulation S-K is not contained herein, and will not be contained, to the best of registrant's knowledge, in definitive proxy or information statements incorporated by reference in Part III of this Form 10-K or any amendment to this Form 10-K. ý
Indicate by check mark if the registrant is a large accelerated filer, an accelerated filer, a non-accelerated filer, or a smaller reporting company. See the definitions of "large accelerated filer," "accelerated filer" and "smaller reporting company" in Rule 12b-2 of the Exchange Act. (Check one):
Large accelerated filer o | Accelerated filer ý |
Non-accelerated filer
o
(Do not check if a smaller reporting company) |
Smaller reporting company o |
Indicate by check mark whether the registrant is a shell company (as defined in Rule 12b-2 of the Exchange Act). Yes o No ý
The aggregate market value of common stock held by non-affiliates as of July 30, 2010 was approximately $59.6 million, using the closing price per share of $2.23, as reported on the New York Stock Exchange as of such date.
The number of shares of registrant's common stock outstanding as of March 31, 2011 was 61,004,839.
DOCUMENTS INCORPORATED BY REFERENCE:
Part III incorporates certain information by reference to the Proxy Statement for the 2011 Annual Meeting of Stockholders.
ANNUAL REPORT ON FORM 10-K INDEX
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Overview
New York & Company, Inc. (together with its subsidiaries, collectively the "Company") is a leading specialty retailer of women's fashion apparel and accessories offering the latest NY Style. The Company's proprietary branded New York & Company® merchandise is sold exclusively through its national network of retail stores and E-commerce store at www.nyandcompany.com . The target customers for the Company's merchandise are fashion-conscious, value-sensitive women between the ages of 25 and 45. As of January 29, 2011, the Company operated 555 stores with 3.0 million selling square feet in 43 states.
The Company offers a merchandise assortment consisting of wear-to-work and casual apparel and accessories, including pants, jackets, knit tops, blouses, sweaters, denim, t-shirts, activewear, handbags and jewelry. The Company's merchandise reflects current fashions and fulfills a broad spectrum of its customers' lifestyle and wardrobe requirements, with a focus on wear-to-work apparel.
The Company positions its stores as a source of fashion, quality and value by providing its customers with an appealing merchandise assortment at attractive price points, generally below those of department stores and other specialty retailers. The Company believes its stores create an exciting shopping experience through the use of compelling window displays, creative and coordinated merchandise presentations and in-store promotional signage. The Company's stores are typically concentrated in large population centers of the United States and are located in shopping malls, lifestyle centers, outlet centers, and off-mall locations, including urban street locations.
The Company was founded in 1918 and operated as a subsidiary of Limited Brands, Inc. ("Limited Brands") from 1985 to 2002. New York & Company, Inc., formerly known as NY & Co. Group, Inc., was incorporated in the state of Delaware on November 8, 2002. It was formed to acquire all of the outstanding stock of Lerner New York Holding, Inc. ("Lerner Holding") and its subsidiaries from Limited Brands, an unrelated company. On November 27, 2002, Irving Place Capital, formerly known as Bear Stearns Merchant Banking, completed the acquisition of Lerner Holding and its subsidiaries from Limited Brands (the "acquisition of Lerner Holding"). On October 6, 2004, the Company completed an initial public offering and listed its common stock on the New York Stock Exchange.
The Company's fiscal year is a 52 or 53 week year that ends on the Saturday closest to January 31. The 52-week years ended January 29, 2011, January 30, 2010 and January 31, 2009 are referred to herein as "fiscal year 2010," "fiscal year 2009," and "fiscal year 2008," respectively. The 52-week year ending January 28, 2012 is referred to herein as "fiscal year 2011."
The Company's Growth Strategies
Increase Sales of Apparel
The Company believes that it can increase sales of apparel by providing its customers fashion, quality and value with an appealing merchandise assortment at attractive price points. The Company plans to drive higher margin sales with new fashion items and increased focus on its wear-to-work assortments. In an effort to increase accessories sales, the Company will continue to grow the jewelry business, while improving the fashion and assortment of other accessories categories over the long term. The integration of the accessories and apparel business through more appealing and effective visual merchandising in the Company's stores has proven to be a successful strategy and will remain an area of significant focus for the Company.
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E-commerce Store
The Company believes that its E-commerce store ( www.nyandcompany.com ) provides an effective means to reach its existing customers and more importantly attract new customers to the New York & Company brand. The E-commerce store is designed to cater to the customers' lifestyle needs by offering an easy alternative to shop, while also increasing brand awareness. The Company believes that it can continue to grow sales with its E-commerce store by broadening its online assortment with new product exclusives and expanded product extensions. The Company is continuing to develop the infrastructure and functionality of the site to offer more merchandise on the E-commerce store and to enhance customer service on the site. In line with this strategy, during the second quarter of fiscal year 2011 the Company plans to launch its first mobile application allowing consumers to make purchases on the New York & Company E-commerce store using a mobile device.
Optimize the Company's Store Base
Increasing market penetration by opening new stores has been an important component of the Company's growth strategies. However, due to the deterioration in the macroeconomic environment and the continued uncertainty over the past few years, the Company has reduced capital expenditures by opening fewer new New York & Company stores in an effort to preserve its liquidity and focus on optimizing its existing store base. During fiscal year 2010, the Company closed 43 stores, resulting in a reduction of 230,435 selling square feet, and remodeled eight stores. The reduction in non-productive selling square feet is an integral component of the Company's goal to improve productivity and profitability and is in-line with its restructuring and cost reduction program announced in January 2009. This strategy has enabled the Company to position itself for growth, and as the economy continues to recover, the Company will begin to open more New York & Company stores, while relocating and remodeling a portion of its existing store base annually.
As previously disclosed, during fiscal year 2009 the Company opened three temporary New York & Company Outlet stores as part of a test. Based on the performance of these test outlet stores, during fiscal year 2010 the Company opened 24 New York & Company Outlet stores. Each outlet store is approximately 3,500 to 5,000 selling square feet. The New York & Company Outlet stores offer a merchandise mix consisting of apparel and accessories that can be found at New York & Company stores, merchandise specific to the outlet stores and clearance merchandise. The Company believes over the long term, the growth potential for New York & Company Outlet stores could be approximately 75 locations.
The Company ended fiscal year 2010 operating 555 stores, including 24 New York & Company Outlet stores, with 3.0 million selling square feet.
Enhance Brand Image and Increase Customer Loyalty
The Company seeks to build and enhance the recognition, appeal and reach of its New York & Company brand through its merchandise assortment, customer service, and consistent marketing across all channels of the business. The Company's brand has gained strong recognition and endorsement by its target customers. The Company believes a nationally recognized brand further drives brand awareness, merchandise sales and customer loyalty.
Design and Merchandising
The Company's product development group, led by its merchant and design teams, is dedicated to consistently delivering to its customers high-quality and on trend fashion apparel and accessories at competitive prices. The Company seeks to provide its customers with key fashion items of the season, as well as a broad assortment of coordinating apparel items and accessories that will complete their
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wardrobe. The Company's merchandising, marketing and promotional efforts encourage multiple unit and outfit purchases.
New product lines are introduced into the Company's stores in five major deliveries each year (spring, summer, fall, holiday and pre-spring) that are updated with selected new items every two to four weeks to keep the merchandise current and to keep customers engaged. Product line development begins with the introduction of design concepts, key styles and its initial assortment selection for the product line. The Company's designers focus on overall concepts and identify and interpret the fashion trends for the season, identifying those particular apparel items and accessories that will appeal to its target customer, designing the product line and presenting it to the Company's merchants for review. The Company's merchants are responsible for developing seasonal strategies and a detailed list of desired apparel pieces and accessories to guide the designers, as well as buying, testing, editing and pricing the line during the season on an ongoing basis. This integrated approach to design, merchandising and sourcing enables the Company to carry a merchandise assortment that addresses customer demand while attempting to minimize inventory risk and maximize sales and profitability.
Sourcing
The Company's sourcing approach focuses on quality, speed and cost in order to provide timely delivery of quality goods. This is accomplished by closely managing the product development cycle, from raw materials and garment production to store-ready packaging, logistics and customs clearance.
Sourcing Relationships. The Company purchases apparel and accessories products both from importers and directly from manufacturers. The Company's relationships with its direct manufacturers are supported by independent buying agents, who help coordinate the Company's purchasing requirements with the factories. The Company's unit volumes, long-established vendor relationships and its knowledge of fabric and production costs, combined with a flexible, diversified sourcing base, enable it to buy high-quality, low-cost goods. The Company sources from approximately 20 countries and it is not subject to long-term production contracts with any of its vendors, manufacturers or buying agents. The Company's broad sourcing network allows it to meet its factory workplace standards; objectives of quality, cost, speed to market; and inventory efficiency by shifting merchandise purchases as required, and allows it to react quickly to changing market or regulatory conditions. In fiscal year 2010, the Company sourced nearly all of its merchandise from Bahrain, Bangladesh, China, Guatemala, Hong Kong, India, Indonesia, Macau, Mexico, Peru, the Philippines, the Republic of Korea, Taiwan, the United States and Vietnam. The Company's largest country sources are China, Macau and Hong Kong, which represented approximately 60% of purchases in fiscal year 2010.
Quality Assurance and Compliance Monitoring. The Company entered into a transition services agreement with Limited Brands on November 27, 2002, as amended, in connection with the acquisition of Lerner Holding (the "transition services agreement"). As part of the transition services agreement, Independent Production Services ("IPS"), a unit of Limited Brands, provides the Company with monitoring of country of origin, point of fabrication compliance, code of business conduct and labor standards compliance, and supply chain security. In addition, all of the factories that manufacture merchandise for the Company sign a master sourcing agreement that details their obligations with respect to quality and ethical business practices. IPS representatives visit each new apparel factory to ensure that the factory quality control associates understand and comply with the Company's requirements. The Company's independent buying agents and importers also conduct in-line factory and final quality audits.
The Company also engages two independent audit firms to visit each year a selection of factories that manufacture accessories for the Company to ensure that these factories understand and comply with code of business conduct and labor standards and supply chain security standards.
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Distribution and Logistics
Limited Brands provides the Company with certain warehousing and distribution services under the transition services agreement. All of the Company's merchandise is received, processed, warehoused and distributed through Limited Brands' distribution center in Columbus, Ohio. Details about each receipt are supplied to the Company's store inventory planners, who determine how the product should be distributed among the Company's stores based on current inventory levels, sales trends and specific product characteristics. Advance shipping notices are electronically communicated to the stores.
Under the transition services agreement, as amended on September 14, 2010, (See Exhibit 10.22 of this Annual Report on Form 10-K) these services will terminate upon the earliest of the following: (i) 24 months from the date that Limited Brands notifies the Company that Limited Brands wishes to terminate the services, which notice shall be no earlier than February 1, 2014; (ii) 24 months from the date that the Company notifies Limited Brands that the Company wishes to terminate the services, which notice shall be no earlier than February 1, 2014; (iii) 60 days after the Company has given notice to Limited Brands that Limited Brands has failed to perform any material obligations under the agreement and such failure shall be continuing; (iv) 30 days after Limited Brands has given notice to the Company that the Company has failed to perform any material obligations under the agreement and such failure shall be continuing; (v) within 75 days of receipt of the annual proposed changes to the agreement schedules which outline the cost methodologies and estimated costs of the services for the coming year, if such proposed changes would result in a significant increase in the amount of service costs that the Company would be obligated to pay; (vi) 15 months after a change of control of the Company, at the option of Limited Brands; or (vii) upon reasonable notice under the prevailing circumstances by the Company to Limited Brands after a disruption of services due to force majeure that cannot be remedied or restored within a reasonable period of time. The Company believes that these services are provided at a competitive price and the Company anticipates continuing to use Limited Brands for these services.
Inventory and fulfillment for the Company's E-commerce operations are handled by a third-party warehouse facility located in Martinsville, Virginia. Merchandise is received in this location from Limited Brands' distribution center.
Real Estate
As of January 29, 2011, the Company operated 555 stores in 43 states, with an average of 5,453 selling square feet per store. The Company's growth and productivity statistics are reported based on selling square footage because management believes the use of selling square footage yields a more accurate measure of store productivity. All of the Company's stores are leased and are located in large population centers of the United States in shopping malls, lifestyle centers, outlet centers, and off-mall locations, including urban street locations.
Fiscal Year
|
Total stores open
at beginning of fiscal year |
Number of stores
opened during fiscal year |
Number of stores
closed during fiscal year |
Number of stores
remodeled during fiscal year |
Total stores
open at end of fiscal year |
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---|---|---|---|---|---|---|---|---|---|---|---|---|---|---|---|---|
2006 |
503 | 52 | (19 | ) | 35 | 536 | ||||||||||
2007 |
536 | 54 | (12 | ) | 25 | 578 | ||||||||||
2008 |
578 | 25 | (14 | ) | 14 | 589 | ||||||||||
2009 |
589 | 11 | (24 | ) | 3 | 576 | ||||||||||
2010 |
576 | 22 | (43 | ) | 8 | 555 |
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Historical Selling Square Footage
Fiscal Year
|
Total selling
square feet at beginning of fiscal year |
Increase in
selling square feet for stores opened during fiscal year |
Reduction of
selling square feet for stores closed during fiscal year |
Net (reduction)
increase of selling square feet for stores remodeled during fiscal year |
Total selling
square feet at end of fiscal year |
|||||||||||
---|---|---|---|---|---|---|---|---|---|---|---|---|---|---|---|---|
2006 |
3,207,627 | 241,048 | (138,208 | ) | (73,927 | ) | 3,236,540 | |||||||||
2007 |
3,236,540 | 228,727 | (88,042 | ) | (49,775 | ) | 3,327,450 | |||||||||
2008 |
3,327,450 | 104,641 | (98,572 | ) | (38,740 | ) | 3,294,779 | |||||||||
2009 |
3,294,779 | 31,755 | (133,398 | ) | 466 | 3,193,602 | ||||||||||
2010 |
3,193,602 | 74,830 | (230,435 | ) | (11,514 | ) | 3,026,483 |
Store Count by State as of January 29, 2011
State
|
# of
Stores |
State
|
# of
Stores |
State
|
# of
Stores |
|||||||||
---|---|---|---|---|---|---|---|---|---|---|---|---|---|---|
Alabama |
12 |
Maine |
1 |
Ohio |
25 | |||||||||
Arizona |
8 |
Maryland |
15 |
Oklahoma |
4 | |||||||||
Arkansas |
4 |
Massachusetts |
11 |
Pennsylvania |
33 | |||||||||
California |
51 |
Michigan |
12 |
Rhode Island |
3 | |||||||||
Colorado |
6 |
Minnesota |
10 |
South Carolina |
12 | |||||||||
Connecticut |
7 |
Mississippi |
5 |
South Dakota |
1 | |||||||||
Delaware |
1 |
Missouri |
11 |
Tennessee |
14 | |||||||||
Florida |
34 |
Nebraska |
4 |
Texas |
49 | |||||||||
Georgia |
19 |
Nevada |
4 |
Utah |
2 | |||||||||
Illinois |
24 |
New Hampshire |
3 |
Virginia |
22 | |||||||||
Indiana |
9 |
New Jersey |
29 |
Washington |
3 | |||||||||
Iowa |
2 |
New Mexico |
2 |
West Virginia |
4 | |||||||||
Kansas |
2 |
New York |
55 |
Wisconsin |
8 | |||||||||
Kentucky |
7 |
North Carolina |
18 | |||||||||||
Louisiana |
8 |
North Dakota |
1 | |||||||||||
|
Grand Total |
555 | ||||||||||||
Site Selection. The Company's real estate management team is responsible for new store site selection. In selecting a specific location for a New York & Company store, the Company targets high-traffic, prime real estate in locations with demographics reflecting concentrations of the Company's target customers and a complementary tenant mix. The Company intends to continue to open New York & Company stores at a conservative pace as the economy recovers, while relocating and remodeling a portion of its existing store base annually.
During fiscal year 2010, the Company opened 24 New York & Company Outlet stores. Each outlet store is approximately 3,500 to 5,000 selling square feet. The New York & Company Outlet stores offer a merchandise mix consisting of apparel and accessories that can be found at New York & Company stores, merchandise specific to the outlet stores and clearance merchandise. The Company believes over the long term, the growth potential for New York & Company Outlet stores could be approximately 75 locations.
The Company expects to fund future store openings with cash flow from operations and, if necessary, borrowings under its revolving credit facility.
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Store Display and Merchandising. The Company's stores are designed to effectively display its merchandise and create an upbeat atmosphere. Expansive front windows allow potential customers to see easily into the store and are used as a vehicle to highlight major merchandising and promotional events. The open floor design allows customers to readily view the majority of the merchandise on display, while store fixtures allow for the efficient display of garments and accessories. Merchandise displays are modified on a weekly basis based on sales trends and inventory receipts. The Company's in-store product presentation utilizes a variety of different fixtures to highlight the product line's breadth and versatility. Complete outfits are displayed throughout the store using garments from a variety of product categories. The Company displays complete outfits to demonstrate how its customers can combine different pieces in order to increase unit sales.
Pricing and Promotional Strategy. The Company's in-store pricing and promotional strategy is designed to drive customer traffic and promote brand loyalty. The promotional pricing strategy is designed to encourage multiple unit sales. Select key items are also prominently displayed in store windows at competitive prices to drive traffic into the stores.
Inventory Management. The Company's inventory management systems are designed to maximize merchandise profitability and increase inventory turns. The Company constantly monitors inventory turns on the selling floor and uses pricing and promotions to maximize sales and profitability and to achieve inventory turn goals. The Company has a refined inventory loss prevention program that is integrated with the store operations and finance departments of its business. This program includes electronic article surveillance systems in a majority of stores as well as the monitoring of merchandise returns, merchandise voids, employee sales and deposits, and educating store personnel on loss prevention.
Field Sales Organization. Store operations are organized into five regions and 45 districts. Each region is managed by either a regional vice president or a regional sales leader, depending upon the size of the region. The Company staffs approximately 45 district sales leaders, with each typically responsible for the sales and operations of 12 stores on average. Each store is typically staffed with a store manager and two additional support managers. Higher volume stores may have additional support managers as required. All stores are staffed with hourly sales associates. The Company has approximately 1,600 full-time in-store managers. The Company seeks to instill enthusiasm and dedication in its store management personnel by maintaining an incentive/bonus plan for its field managers. The program is based on monthly and quarterly sales performance and seasonal inventory loss targets. The Company believes that this program effectively creates incentives for its senior field professionals and aligns their interests with the financial goals of the Company. The Company evaluates merchandise fill, fitting room service, checkout service, and store appearance. Stores are required to meet or exceed established corporate standards to ensure the quality of the Company's customers' overall in-store experience.
Store Sales Associates. The Company typically employs between 7,400 and 13,000 full- and part-time store sales associates, depending on the Company's seasonal needs. The Company has well-established store operating policies and procedures, updated and efficient point-of-sale ("POS") terminals and utilizes an in-store training program for all new store employees. Detailed product descriptions are also provided to sales associates to enable them to gain familiarity with product offerings.
Brand Building and Marketing
The Company believes that its New York & Company brand is among its most important assets. The Company's ability to continuously evolve its brand to appeal to the changing needs and priorities of its target customer is a key source of its competitive advantage. The Company believes that its combination of fashion-oriented apparel, accessories and attractive price points differentiates its brand
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from its competitors. The Company consistently communicates its brand image across all aspects of its business, including product design, store merchandising and shopping environments, channels of distribution, and marketing and advertising. The Company continues to invest in the development of its brand through, among other things, direct mail marketing, in-store marketing, e-mail and text messaging programs, social media such as Facebook, and select advertising. The Company also makes investments to enhance the overall client experience through the opening of new stores, the expansion and remodeling of existing stores, broadening its assortment online at www.nyandcompany.com , and focusing on client service.
The Company believes that it is strategically important to communicate on a regular basis directly with its current client base and with potential clients through direct mail marketing, e-mail communications and in-store presentation. The Company uses its customer database, which includes approximately six million customers who have made purchases within the last twelve months, to design marketing programs to its core customers.
Customer Credit
The Company has a credit card processing agreement with a third party (the "administration company") that provides the services of the Company's proprietary credit card program. The Company allows payments on this credit card to be made at its stores as a service to its customers. The administration company owns the credit card accounts, with no recourse to the Company. All of the Company's proprietary credit cards carry the New York & Company brand. These cards provide purchasing power to customers and additional vehicles for the Company to communicate product offerings.
Information Technology
Information technology is a key component of the Company's business strategy and the Company is committed to utilizing technology to enhance its competitive position. The Company's information systems integrate data from the field sales, design, merchandising, planning and distribution, and financial reporting functions. The Company's core business systems consist of both purchased and internally developed software, operating on UNIX, AS400 and Windows NT platforms. These systems are accessed over a company-wide network and provide corporate employees with access to key business applications.
Sales, cash deposit and related credit card information are electronically collected from the stores' POS terminals on a daily basis. During this process, the Company also obtains information concerning inventory receipts and transmits pricing, markdown and shipment notification data. In addition, where permitted by law, the Company collects customer transaction data to update its customer database. The merchandising staff and merchandise planning staff evaluate the sales and inventory information collected from the stores to make key merchandise planning decisions, including orders and markdowns. These systems enhance the Company's ability to optimize sales while limiting markdowns, achieve planned inventory turns, reorder successful styles, and effectively distribute new inventory to the stores.
The Company continues to invest in technology to upgrade core systems to increase efficiencies and provide a competitive advantage. During fiscal year 2007, the Company partnered with Datavantage (a subsidiary of Micros Systems, Inc.) to implement a new POS system across its chain and partnered with JDA Software Group, Inc. to upgrade its existing merchandise planning system. The Company completed the implementation of the new POS system during fiscal year 2008 and completed the upgrade of its merchandise planning system during fiscal year 2010.
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Competition
The retail and apparel industries are highly competitive. The Company has positioned its stores as a source of fashion, quality and value by providing its customers with an appealing merchandise assortment at attractive price points generally below those of department stores and other specialty retailers. The Company competes with traditional department stores, specialty store retailers, discount apparel stores and direct marketers for, among other things, customers, raw materials, market share, retail space, finished goods, sourcing and personnel. The Company believes its competitors include Ann Taylor LOFT®, Express®, JCPenney®, Kohl's®, Old Navy® and Target®, among others. The Company differentiates itself from its competitors on the basis of its fashion and proprietary merchandise designs, value pricing, merchandise quality, in-store merchandise display and store service.
Seasonality
The Company views the retail apparel market as having two principal selling seasons: spring (first and second quarter) and fall (third and fourth quarter). The Company's business experiences seasonal fluctuations in net sales and operating income, with a significant portion of its operating income typically realized during the fourth quarter. Seasonal fluctuations also affect inventory levels. The Company must carry a significant amount of inventory, especially before the holiday season selling period in the fourth quarter.
Intellectual Property
The Company believes that it has all of the registered trademarks it needs to protect its New York & Company®, Lerner®, Lerner New York®, New York Style®, City Stretch®, City Style® and NY&C® brands and it vigorously enforces all of its trademark rights.
Employees and Labor Relations
As of January 29, 2011, the Company had a total of 7,949 employees of which 2,236 were full-time employees and 5,713 were part-time employees, who are primarily store associates. The number of part-time employees fluctuates depending on the Company's seasonal needs. The collective bargaining agreement with the Local 1102 unit of the Retail, Wholesale and Department Store Union (RWDSU) AFL-CIO ("Local 1102") has been extended indefinitely, subject to 30 days advance notice by either party to negotiate a modification to the agreement or to terminate the agreement. The Company and Local 1102 have reached an agreement in principle on the terms of a new collective bargaining agreement, subject to final negotiation of the agreement and ratification by the union membership. Approximately 8% of the Company's total employees are covered by collective bargaining agreements and are primarily non-management store associates. The Company believes its relationship with its employees is good.
Government Regulation
The Company is subject to customs, truth-in-advertising and other laws, including consumer protection regulations and zoning and occupancy ordinances that regulate retailers generally and/or govern the promotion and sale of merchandise and the operation of retail stores and warehouse facilities. The Company undertakes to monitor changes in these laws and believes that it is in material compliance with applicable laws with respect to these practices.
The majority of the Company's merchandise is manufactured by factories located outside of the United States. These products are imported and are subject to U.S. customs laws, which impose tariffs for textiles and apparel. In addition, some of the Company's imported products are eligible for certain duty-advantaged programs, including but not limited to the North American Free Trade Agreement, the
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Andean Trade Preference Act, the U.S. Caribbean Basin Trade Partnership Act and the Caribbean Basin Initiative.
Available Information
The Company makes available free of charge on its website, http://www.nyandcompany.com, copies of its Annual Report on Form 10-K, Quarterly Reports on Form 10-Q, Current Reports on Form 8-K and amendments to those reports filed or furnished pursuant to Section 13(a) or 15(d) of the Securities Exchange Act of 1934, as amended (the "Exchange Act") as soon as reasonably practicable after filing or furnishing such material electronically with the United States Securities and Exchange Commission. Copies of the charters of each of the Company's Audit Committee, Compensation Committee, and Nomination & Governance Committee, as well as the Company's Corporate Governance Guidelines, Code of Conduct for Associates, Code of Conduct for Principal Executive Officers and Key Financial Associates, and Code of Conduct for Suppliers, are also available on the website.
Economic conditions may cause a decline in business and consumer spending which could adversely affect the Company's business and financial performance.
The Company's business is impacted by general economic conditions and their effect on consumer confidence and the level of consumer spending on the merchandise the Company offers. These economic factors include recessionary cycles, interest rates, currency exchange rates, economic growth, wage rates, unemployment levels, energy prices, availability of consumer credit, and consumer confidence, among others. The current economic conditions may continue to negatively affect consumer purchases of the Company's merchandise and adversely impact the Company's results of operations, liquidity and continued growth. The current economic conditions could also negatively impact the Company's merchandise vendors and their ability to deliver products and sustain profits and sufficient liquidity. To counteract their cash flow problems, the Company's merchandise vendors may require letters-of-credit or attempt to increase prices, pass through increased costs or seek some other form of relief, which may adversely impact the Company's results of operations, liquidity and continued growth. In addition, economic conditions could negatively impact the Company's retail landlords and their ability to maintain their shopping centers in a first-class condition and otherwise perform their obligations.
If the Company is not able to respond to fashion trends in a timely manner, develop new merchandise or launch new product lines successfully, it may be left with unsold inventory, experience decreased profits or incur losses or suffer reputational harm to its brand image.
The Company's success depends in part on management's ability to anticipate and respond to changing fashion tastes and consumer demands and to translate market trends into appropriate, saleable product offerings. Customer tastes and fashion trends change rapidly. If the Company is unable to successfully identify or react to changing styles or trends and misjudges the market for its products or any new product lines, its sales may be lower, gross margins may be lower and the Company may be faced with a significant amount of unsold finished goods inventory. In response, the Company may be forced to increase its marketing promotions or price markdowns, which could have a material adverse effect on its financial condition and results of operations. The Company's brand image may also suffer if customers believe that it is no longer able to offer the latest fashions.
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Fluctuations in comparable store sales and results of operations could cause the price of the Company's common stock to decline substantially.
The Company's results of operations for its individual stores have fluctuated in the past and can be expected to fluctuate in the future. Since the beginning of fiscal year 2004 through fiscal year 2010, the Company's quarterly comparable store sales have ranged from an increase of 14.1% to a decrease of 16.4%. The Company cannot ensure that it will be able to achieve a high level of comparable store sales in the future.
The Company's comparable store sales and results of operations are affected by a variety of factors, including:
If the Company's future comparable store sales fail to meet expectations, then the market price of the Company's common stock could decline substantially. You should refer to the section entitled "Item 7. Management's Discussion and Analysis of Financial Condition and Results of Operations" for more information.
The Company's net sales, operating income and inventory levels fluctuate on a seasonal basis and decreases in sales or margins during the Company's peak seasons could have a disproportionate effect on its overall financial condition and results of operations.
The Company's business experiences seasonal fluctuations in net sales and operating income, with a significant portion of its operating income typically realized during its fourth quarter. Any decrease in sales or margins during this period could have a disproportionate effect on the Company's financial condition and results of operations. You should refer to "Item 7. Management's Discussion and Analysis of Financial Condition and Results of OperationsQuarterly Results and Seasonality" for more information.
Seasonal fluctuations also affect the Company's inventory levels. The Company must carry a significant amount of inventory, especially before the holiday season selling period in the fourth quarter. If the Company is not successful in selling its inventory, it may have to write down the value of its inventory or sell it at significantly reduced prices or the Company may not be able to sell such inventory at all, which could have a material adverse effect on the Company's financial condition and results of operations.
The raw materials used to manufacture the Company's products and its distribution and labor costs are subject to availability constraints and price volatility, which could result in increased costs.
The raw materials used to manufacture the Company's products are subject to availability constraints and price volatility caused by high demand for petroleum-based synthetic fabrics, weather,
12
supply conditions, government regulations, economic climate and other unpredictable factors. The Company sources its merchandise from approximately 20 countries, with China, Macau and Hong Kong representing 60% of all purchases during fiscal year 2010. Any one of these countries could experience increased inflationary pressure, which could lead to increased costs for the Company. In addition, the Company's transportation and labor costs are subject to price volatility caused by the price of oil, supply of labor, governmental regulations, economic climate and other unpredictable factors. Increases in demand for, or the price of, raw materials, distribution services and labor, could have a material adverse effect on the Company's business, financial condition and results of operations.
Since the Company relies significantly on foreign sources of production, it is at risk from a variety of factors that could leave it with inadequate or excess inventories, resulting in decreased profits or losses.
The Company purchases apparel and accessories in foreign markets, with a significant portion coming from China, Macau and Hong Kong. The Company does not have any long-term merchandise supply contracts and many of its imports are subject to existing or potential duties and tariffs. The Company competes with other companies for production facilities.
The Company also faces a variety of other risks generally associated with doing business in foreign markets and importing merchandise from abroad, such as:
Any of the foregoing factors, or a combination thereof, could have a material adverse effect on the Company's business.
The Company's manufacturers may be unable to manufacture and deliver products in a timely manner or meet its quality standards, which could result in lost sales, cancellation charges or excessive markdowns.
The Company purchases apparel and accessories from importers and directly from third-party manufacturers. Similar to most other specialty retailers, the Company has short selling seasons for much of its inventory. Factors outside of the Company's control, such as manufacturing or shipping delays or quality problems, could disrupt merchandise deliveries and result in lost sales, product recalls, cancellation charges or excessive markdowns.
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The Company's growth strategy includes the addition of a number of new stores each year and the potential relocation and remodeling of existing stores. The Company may not be able to successfully implement this strategy on a timely basis or at all. In addition, the Company's growth strategy may strain its resources and cause the performance of its existing stores to suffer.
The Company's growth will largely depend on its ability to open and operate new stores successfully, including its new New York & Company Outlet stores, and the availability of suitable store locations on acceptable terms. However, due to the deterioration in the macroeconomic environment and the continued uncertainty over the past few years, the Company has reduced capital expenditures by opening fewer new New York & Company stores in an effort to preserve its liquidity and focus on optimizing its existing store base. This strategy has enabled the Company to position itself for growth and, as the economy recovers the Company will begin to open more new stores, while relocating and remodeling a portion of its existing store base annually. The success of this strategy is dependent upon, among other things, the identification of suitable markets and sites for store locations, the negotiation of acceptable lease terms, the hiring, training and retention of competent sales personnel, and the effective management of inventory to meet the needs of new and existing stores on a timely basis. The expansion of the Company's store base will also place increased demands on its operational, managerial and administrative resources. These increased demands could cause the Company to operate its business less effectively, which in turn could cause deterioration in the financial performance of its existing stores. In addition, to the extent that the Company's new store openings are in existing markets, the Company may experience reduced net sales volumes in existing stores in those markets. The Company expects to fund its expansion through cash flow from operations and, if necessary, by borrowings under its revolving credit facility; however, if the Company experiences a decline in performance, the Company may slow or discontinue store openings. The Company may not be able to successfully execute any of these strategies on a timely basis. If the Company fails to successfully implement these strategies, its financial condition and results of operations would be adversely affected.
The Company's ability to successfully integrate new or acquired businesses into its existing business, to the extent it enters new lines of business or consummates acquisitions in the future, will affect the Company's financial condition and results of operations.
The process of integrating new or acquired businesses, including the Company's New York & Company Outlet stores, into the Company's existing operations may result in unforeseen difficulties and liabilities and may require a disproportionate amount of resources and management attention. Difficulties that the Company may encounter in integrating the operations of new or acquired businesses could have a material adverse effect on its results of operations and financial condition. Moreover, the Company may not realize any of the anticipated benefits of a new business or an acquisition and integration costs may exceed anticipated amounts. In addition, future acquisitions of businesses may require the Company to assume or incur additional debt financing, resulting in additional leverage.
A reduction in the volume of mall traffic could significantly reduce the Company's sales and leave it with unsold inventory, reducing the Company's profits or creating losses.
Many of the Company's stores are located in shopping malls. Sales at these stores are derived, in part, from the volume of traffic in those malls. The Company's stores benefit from the ability of the mall's other tenants and other area attractions to generate consumer traffic in the vicinity of its stores and the continuing popularity of malls as shopping destinations. Sales volume and mall traffic may be adversely affected by economic downturns in a particular area, competition from internet retailers, non-mall retailers and other malls where the Company does not have stores and the closing of other stores in the malls in which the Company's stores are located. A reduction in mall traffic as a result of these or any other factors could materially adversely affect the Company's business.
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Because of the Company's focus on keeping its inventory at the forefront of fashion trends, extreme and/or unseasonable weather conditions could have a disproportionately large effect on the Company's business, financial condition and results of operations because it would be forced to mark down inventory.
Extreme weather conditions in the areas in which the Company's stores are located could have a material adverse effect on the Company's business, financial condition and results of operations. For example, heavy snowfall or other extreme weather conditions over a prolonged period might make it difficult for the Company's customers to travel to its stores. The Company's business is also susceptible to unseasonable weather conditions. For example, extended periods of unseasonably warm temperatures during the winter season or cool weather during the summer season could render a portion of the Company's inventory incompatible with those unseasonable conditions. These prolonged unseasonable weather conditions could adversely affect the Company's business, financial condition and results of operations.
If third parties who manage some aspects of the Company's business do not adequately perform their functions, the Company might experience disruptions in its business, leaving it with inadequate or excess inventories, among other adverse effects, resulting in decreased profits or losses.
Limited Brands handles the distribution of the Company's merchandise through its distribution facility in Columbus, Ohio pursuant to a transition services agreement. The efficient operation of the Company's stores is dependent on its ability to distribute merchandise to locations throughout the United States in a timely manner. The Company depends on Limited Brands to receive, sort, pack and distribute substantially all of the Company's merchandise. As part of the transition services agreement, Limited Brands contracts with third-party transportation companies to deliver the Company's merchandise from foreign ports to their warehouses and to the Company's stores. Any failure by any of these third parties to respond adequately to the Company's warehousing and distribution needs would disrupt the Company's operations and negatively impact its profitability.
Additional services are also provided by Limited Brands and its subsidiaries and affiliates pursuant to the transition services agreement. IPS assists the Company with its monitoring of country of origin and point of fabrication compliance for U.S. Customs. IPS also monitors compliance with the Company's code of business conduct and labor standards and its supply chain security. Any failure of Limited Brands or IPS to fulfill their obligations under the transition services agreement would disrupt the Company's operations and negatively impact its profitability.
Under the transition services agreement, as amended on September 14, 2010, (See Exhibit 10.22 of this Annual Report on Form 10-K) these services will terminate upon the earliest of the following: (i) 24 months from the date that Limited Brands notifies the Company that Limited Brands wishes to terminate the services, which notice shall be no earlier than February 1, 2014; (ii) 24 months from the date that the Company notifies Limited Brands that the Company wishes to terminate the services, which notice shall be no earlier than February 1, 2014; (iii) 60 days after the Company has given notice to Limited Brands that Limited Brands has failed to perform any material obligations under the agreement and such failure shall be continuing; (iv) 30 days after Limited Brands has given notice to the Company that the Company has failed to perform any material obligations under the agreement and such failure shall be continuing; (v) within 75 days of receipt of the annual proposed changes to the agreement schedules which outline the cost methodologies and estimated costs of the services for the coming year, if such proposed changes would result in a significant increase in the amount of service costs that the Company would be obligated to pay; (vi) 15 months after a change of control of the Company, at the option of Limited Brands; or (vii) upon reasonable notice under the prevailing circumstances by the Company to Limited Brands after a disruption of services due to force majeure that cannot be remedied or restored within a reasonable period of time. The Company believes that these services are provided at a competitive price and the Company anticipates continuing to use
15
Limited Brands for these services. The Company's failure to successfully replace the services could have a material adverse effect on the Company's business and prospects.
The Company uses a third-party for its E-commerce operations, including order management, order fulfillment, customer care, and channel management services. A failure by the third party to adequately manage the Company's E-commerce operations may negatively impact the Company's profitability.
The Company relies on third parties to monitor code of business conduct and labor standards compliance, supply chain security standards, and product quality requirements for its accessories business. Any failure by these third parties to adequately perform their functions may disrupt the Company's operations and negatively impact its reputation and its profitability.
The Company may rely on third parties for the implementation and/or management of certain aspects of its information technology infrastructure. Failure by any of these third parties to implement and/or manage the Company's information technology infrastructure effectively could disrupt its operations and negatively impact its profitability.
The Company relies on a third-party to administer its proprietary credit card program. The inability of the administration company to effectively service the credit card program could materially limit credit availability for the Company's customers, which would negatively impact the Company's revenues and, consequently, its profitability.
A work stoppage resulting from, among other things, a dispute over a collective bargaining agreement covering employees of a third party relied on by the Company or employees of the Company, may cause disruptions in the Company's business and negatively impact its profitability.
The Company's marketing efforts rely upon the effective use of customer information. Restrictions on the availability or use of customer information could adversely affect the Company's marketing program, which could result in lost sales and a decrease in profits.
The Company uses its customer database to market to its customers. Any limitations imposed on the use of such consumer data, whether imposed by federal or state governments or business partners, could have an adverse effect on the Company's future marketing activity. In addition, while the Company is compliant with Payment Card Industry Data Security Standards ("PCI DSS"), to the extent the Company's or its business partners' security procedures and protection of customer information prove to be insufficient or inadequate, the Company may become subject to litigation, which could expose it to liability and cause damage to its reputation or brand.
The Company relies on its manufacturers to use acceptable ethical business practices, and if they fail to do so, the New York & Company brand name could suffer reputational harm and the Company's sales could decline or its inventory supply could be interrupted.
The Company requires its manufacturers to operate in compliance with applicable laws, rules and regulations regarding working conditions, employment practices, product quality and safety, and environmental compliance. Additionally, the Company imposes upon its business partners operating guidelines that require additional obligations in order to promote ethical business practices. The staff of third party inspection services companies, and the staff of the Company's non-exclusive buying agents and importers periodically visit and monitor the operations of the Company's manufacturers to determine compliance. However, the Company does not control its manufacturers or their labor and other business practices. If one of the Company's manufacturers violates labor or other laws or implements labor or other business practices that are generally regarded as unethical in the United States, the shipment of finished products to the Company could be interrupted, orders could be canceled, relationships could be terminated and the Company's reputation could be damaged. Any of
16
these events could have a material adverse effect on the Company's revenues and, consequently, its results of operations.
The Company is subject to numerous regulations, including federal and state minimum wage laws, that could affect its operations. Changes in such regulations could affect its profitability and impact the operation of its business through delayed shipments of its goods, increased costs, fines or penalties.
The Company is subject to federal and state minimum wage laws, as well as various business customs, truth-in-advertising, truth-in-lending and other laws, including consumer protection regulations and zoning and occupancy ordinances that regulate retailers generally and/or govern the importation, promotion and sale of merchandise, the use of the Company's proprietary credit cards and the operation of retail stores and warehouse facilities. Although the Company undertakes to monitor changes in these laws, if these laws change without the Company's knowledge, or are violated by the Company's employees, importers, buying agents, manufacturers or distributors, the Company could experience delays in shipments and receipt of goods or be subject to fines or other penalties under the controlling regulations, any of which could have a material adverse effect on the Company's business, financial condition and results of operations. Changes in these laws, including an increase in federal or state minimum wage rates, could result in increased costs to the Company, which could have a material adverse effect on the Company's results of operations
Government mandatory healthcare requirements could adversely affect the Company's profits.
In March 2010, the Patient Protection and Affordable Care Act (the "Act") and the Health Care and Education Reconciliation Act of 2010 (the "Reconciliation Act") were signed into law. The Act, as modified by the Reconciliation Act, includes a large number of health care provisions to take effect over four years. The costs of these provisions are expected to be funded by a variety of taxes and fees. Some of the taxes and fees, as well as certain health care changes required by these provisions, are expected to result, directly or indirectly, in increased health care costs for the Company. While the Company is still evaluating the impact of the Act, this legislation as well as any future changes in healthcare legislation could increase expenses for the Company and have an adverse effect on the Company's results of operations.
The Company may be unable to compete favorably in the highly competitive retail industry, and if it loses customers to its competitors, its sales could decrease causing a decrease in profits or losses.
The sale of apparel and accessories is highly competitive. Increased competition could result in price reductions, increased marketing expenditures and loss of market share; all of which could have a material adverse effect on the Company's financial condition and results of operations.
The Company competes for sales with a broad range of other retailers, including individual and chain fashion specialty stores and department stores. The Company's competitors include Ann Taylor LOFT, Express, JCPenney, Kohl's, Old Navy and Target, among others. In addition to the traditional store-based retailers, the Company also competes with direct marketers that sell similar lines of merchandise and target customers through catalogs and E-commerce.
Some of the Company's competitors may have greater financial, marketing and other resources available to them. In many cases, the Company's competitors sell their products in stores that are located in the same shopping malls as the Company's stores. In addition to competing for sales, the Company competes for favorable site locations and lease terms in shopping malls.
The Company may be unable to protect its trademarks, which could diminish the value of its brand.
The Company's trademarks are important to its success and competitive position. The Company's major trademarks are New York & Company, Lerner, Lerner New York, New York Style, City Stretch,
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City Style and NY&C and are protected in the United States and internationally. The Company engages in the following steps to protect and enforce its trademarks: file and prosecute trademark applications for registration in those countries where the marks are not yet registered; response to office actions and examining attorneys in those countries where the marks are not yet registered; maintenance of its trademark portfolio in the United States and foreign countries; filings of statements of use, renewal documents, assignments, change of name and address forms; policing of marks and third party infringements; initiation and defense of opposition and/or cancellation proceedings, including discovery and preparation of evidence; and litigation, including filing enforcement lawsuits against third party infringers. The Company is susceptible to others imitating the Company's products and infringing on the Company's intellectual property rights. Imitation or counterfeiting of the Company's products or other infringement of the Company's intellectual property rights could diminish the value of its brand or otherwise adversely affect its revenues. The actions the Company has taken to establish and protect its trademarks may not be adequate to prevent imitation of its products by others or to prevent others from seeking to invalidate its trademarks or block sales of its products as a violation of the trademarks and intellectual property rights of others. In addition, others may assert rights in, or ownership of, trademarks and other intellectual property rights of the Company or in marks that are similar to the Company's or marks that the Company licenses and/or markets and the Company may not be able to successfully resolve these types of conflicts to its satisfaction. In some cases, there may be trademark owners who have prior rights to the Company's marks because the laws of certain foreign countries may not protect intellectual property rights to the same extent as do the laws of the United States. In other cases, there may be holders who have prior rights to similar marks. Failure to protect the Company's trademarks could result in a material adverse effect on the Company's business.
The Company relies on its information technology infrastructure, which includes third party and internally developed software, and purchased or leased hardware that support the Company's information technology and various business processes. The Company's business, reputation and brand image could suffer if its infrastructure fails to perform as intended.
The Company relies on purchased or leased hardware and software licensed from third parties or internally developed in order to manage its business. The Company's ability to maintain and upgrade its information technology infrastructure is critical to the success of its business. This hardware and software may not continue to be available on commercially reasonable terms or at all. Any disruptions to the Company's infrastructure or loss of the right to use any of this hardware or software could affect the Company's operations, which could negatively affect the Company's business until corrected or until equivalent technology is either developed by the Company or, if available, is identified, obtained and integrated. In addition, the software underlying the Company's operations can contain undetected errors. The Company may be forced to modify its operations until such problems are corrected and, in some cases, may need to implement enhancements to correct errors that it does not detect. Problems with the software underlying the Company's operations could result in loss of revenue, unexpected expenses and capital costs, diversion of resources, loss of market share and damage to the Company's reputation which could adversely affect the Company's business, financial condition and results of operations.
Because the Company's brand is associated with all of its New York & Company merchandise in addition to its stores, the Company's success depends heavily on the value associated with its brand. The New York & Company name is integral to the Company's existing business, as well as to the implementation of its strategy for growing and expanding its business. The New York & Company brand could be adversely affected if the Company's public image or reputation were to be tarnished, which could result in a material adverse effect on the Company's business. If the value associated with the Company's brand were to diminish, the Company's sales could decrease, causing lower profits or losses.
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The covenants in the Company's credit facilities impose restrictions that may limit its operating and financial flexibility.
The Company's credit facilities contain a number of significant restrictions and covenants that limit its ability to:
In addition, the Company's credit facilities include other and more restrictive covenants and prohibit it from prepaying its other indebtedness while indebtedness under its credit facilities is outstanding. The agreement governing the Company's credit facilities also requires it to achieve specified financial and operating results and maintain compliance with specified financial ratios. The Company's ability to comply with these ratios may be affected by events beyond the Company's control.
The restrictions contained in the agreement governing the Company's credit facilities could:
A breach of any of these restrictive covenants or the Company's inability to comply with the required financial ratios could result in a default under the agreement governing its credit facilities. If a default occurs, the lenders under the credit facilities may elect to declare all borrowings outstanding, together with accrued interest and other fees, to be immediately due and payable.
The lenders also have the right in these circumstances to terminate any commitments they have to provide further borrowings. If the Company is unable to repay outstanding borrowings when due, the lenders under the credit facilities also have the right to proceed against the collateral, including the Company's available cash, granted to them to secure the indebtedness.
The Company may lose key personnel.
The Company believes that it has benefited from the leadership and experience of its key personnel. The loss of the services of any of these individuals could have a material adverse effect on the business and the prospects of the Company. Competition for key personnel in the retail industry is intense and the Company's future success will also depend upon its ability to retain, recruit and train key personnel. As previously announced, Richard P. Crystal retired as Chief Executive Officer of the Company effective February 11, 2011, and Gregory Scott, President, was appointed Chief Executive
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Officer. In addition, during fiscal year 2010 the Company announced several key management changes within merchandising, design and marketing. It may take longer than anticipated for the new senior management team to implement its strategies and accomplish its objectives, which could have a negative effect on the Company's financial condition and results of operations.
The Company is a "controlled company," and the interests in its business of its controlling stockholders may be different from yours.
Pursuant to a stockholders agreement among certain stockholders of the Company, Irving Place Capital (formerly known as Bear Stearns Merchant Banking) is able to, subject to applicable law, designate a majority of the members of the Board of Directors of the Company and control actions to be taken by the Company and its Board of Directors, including amendments to the Company's restated certificate of incorporation and amended and restated bylaws and approval of significant corporate transactions, including mergers and sales of substantially all of the Company's assets. The directors so elected will have the authority, subject to the terms of the Company's indebtedness and the rules and regulations of the New York Stock Exchange, to issue additional stock, implement stock repurchase programs, declare dividends and make other decisions. Because Irving Place Capital owns more than 50% of the voting power of the Company, the Company is considered a "controlled company" for the purposes of the New York Stock Exchange listing requirements. As such, the Company is permitted to opt out of the New York Stock Exchange corporate governance requirements that its Board of Directors, its Compensation Committee and its Nomination and Governance Committee meet the standard of independence established by those corporate governance requirements. As a result, the Company's Board of Directors and those committees may have more directors who do not meet the New York Stock Exchange independence standards than they would if those independence standards were to apply. The New York Stock Exchange independence standards are intended to ensure that directors who meet the independence standard are free of any conflicting interest that could influence their actions as directors. Three of the Company's directors are employees of Irving Place Capital. It is possible that the interests of Irving Place Capital or that of an entity that controls Irving Place Capital may in some circumstances conflict with the Company's interests and the interests of its other stockholders.
Provisions in the Company's restated certificate of incorporation and Delaware law may delay or prevent the Company's acquisition by a third party.
The Company's restated certificate of incorporation contains a "blank check" preferred stock provision. Blank check preferred stock enables the Company's Board of Directors, without stockholders approval, to designate and issue additional series of preferred stock with such dividend, liquidation, conversion, voting or other rights, including the right to issue convertible securities with no limitation on conversion, as the Company's Board of Directors may determine, including rights to dividends and proceeds in a liquidation that are senior to the common stock.
These provisions may make it more difficult or expensive for a third party to acquire a majority of the Company's outstanding voting common stock. The Company is also subject to certain provisions of Delaware law which could delay, deter or prevent the Company from entering into a merger, acquisition, tender offer, proxy contest or other transaction that might otherwise result in the Company's stockholders receiving a premium over the market price for their stock.
Item 1B. Unresolved Staff Comments
None.
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All of the Company's stores, encompassing approximately 3.9 million total gross square feet as of January 29, 2011, are leased under operating leases. The typical store lease is for a ten-year term and requires the Company to pay real estate taxes, common area maintenance charges, utilities and other landlord charges. The Company also leases approximately 185,083 square feet of space at its headquarters located at 450 West 33rd Street, New York, New York under a lease which expires in 2015. Additionally, the Company owns a parcel of land located in Brooklyn, New York on which it operates one of its leased stores.
There are various claims, lawsuits and pending actions against the Company arising in the normal course of the Company's business. It is the opinion of management that the ultimate resolution of these matters will not have a material effect on the Company's financial condition, results of operations or cash flows.
Item 4. (Removed and Reserved)
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Item 5. Market for Registrant's Common Equity, Related Stockholder Matters and Issuer Purchases of Equity Securities
The Company's common stock is listed on the New York Stock Exchange under the symbol "NWY." The number of holders of record of common stock at March 31, 2011 was 187. The following table sets forth the high and low sale prices for the common stock on the New York Stock Exchange for the periods indicated:
|
Market Price | |||||||
---|---|---|---|---|---|---|---|---|
|
High | Low | ||||||
Fiscal Year 2010 |
||||||||
Fourth quarter |
$ | 5.89 | $ | 3.12 | ||||
Third quarter |
$ | 3.37 | $ | 1.67 | ||||
Second quarter |
$ | 6.50 | $ | 2.03 | ||||
First quarter |
$ | 6.53 | $ | 3.59 | ||||
Fiscal Year 2009 |
||||||||
Fourth quarter |
$ | 4.65 | $ | 3.45 | ||||
Third quarter |
$ | 5.59 | $ | 3.68 | ||||
Second quarter |
$ | 6.11 | $ | 2.72 | ||||
First quarter |
$ | 6.07 | $ | 1.79 |
The Company has not declared or paid any dividends on its common stock since the acquisition of the Company by Irving Place Capital in November 2002. The Company currently expects to retain future earnings, if any, for use in the operation and expansion of its business and does not anticipate paying any cash dividends in the foreseeable future. The Company's ability to pay dividends on its common stock is limited by the covenants of its credit facilities and may be further restricted by the terms of any of its future debt or preferred securities.
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Performance Graph
The following graph shows a quarterly comparison of the cumulative total return on an initial investment of $100 on January 28, 2006 in the Company's common stock, the Standard & Poor's SmallCap 600 Index and the Standard & Poor's SmallCap 600 Apparel Retail Index. The comparison assumes the reinvestment of any dividends.
Item 6. Selected Financial Data
The following table sets forth selected consolidated financial data for New York & Company, Inc. and its subsidiaries for each of the periods presented. The consolidated financial data for the 52-week fiscal year ended January 29, 2011, referred to as "fiscal year 2010," the 52-week fiscal year ended January 30, 2010, referred to as "fiscal year 2009," the 52-week fiscal year ended January 31, 2009, referred to as "fiscal year 2008," the 52-week fiscal year ended February 2, 2008, referred to as "fiscal year 2007," and the 53-week fiscal year ended February 3, 2007, referred to as "fiscal year 2006," have been derived from the audited consolidated financial statements of New York & Company, Inc. and its subsidiaries.
The selected consolidated financial data should be read in conjunction with "Item 7. Management's Discussion and Analysis of Financial Condition and Results of Operations" and the
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Company's consolidated financial statements and the notes thereto appearing elsewhere in this Annual Report on Form 10-K.
(amounts in thousands, except per share data)
|
Fiscal Year
2010 (52-weeks) |
Fiscal Year
2009 (52-weeks) |
Fiscal Year
2008 (52-weeks) |
Fiscal Year
2007 (52-weeks) |
Fiscal Year
2006 (53-weeks) |
|||||||||||||
---|---|---|---|---|---|---|---|---|---|---|---|---|---|---|---|---|---|---|
Statements of operations data(1): |
||||||||||||||||||
Net sales |
$ | 1,021,699 | $ | 1,006,675 | $ | 1,139,853 | $ | 1,194,944 | $ | 1,153,333 | ||||||||
Cost of goods sold, buying and occupancy costs(2) |
788,378 | 754,086 | 843,478 | 851,739 | 786,757 | |||||||||||||
Gross profit |
233,321 | 252,589 | 296,375 | 343,205 | 366,576 | |||||||||||||
Selling, general and administrative expenses |
298,419 | 274,139 | 306,101 | 298,325 | 284,664 | |||||||||||||
Restructuring charges(2) |
1,281 | 2,376 | 24,529 | | | |||||||||||||
Operating (loss) income |
(66,379 | ) | (23,926 | ) | (34,255 | ) | 44,880 | 81,912 | ||||||||||
Interest expense, net of interest income |
697 | 755 | 726 | 1,200 | 1,663 | |||||||||||||
(Loss) income from continuing operations before income taxes |
(67,076 | ) | (24,681 | ) | (34,981 | ) | 43,680 | 80,249 | ||||||||||
Provision (benefit) for income taxes(3) |
9,466 | (11,197 | ) | (14,683 | ) | 17,004 | 31,853 | |||||||||||
(Loss) income from continuing operations |
(76,542 | ) | (13,484 | ) | (20,298 | ) | 26,676 | 48,396 | ||||||||||
Income (loss) from discontinued operations, net of taxes(1) |
81 | 3 | 491 | (31,533 | ) | (2,226 | ) | |||||||||||
Net (loss) income |
$ | (76,461 | ) | $ | (13,481 | ) | $ | (19,807 | ) | $ | (4,857 | ) | $ | 46,170 | ||||
Basic (loss) earnings per share of common stock: |
||||||||||||||||||
Basic (loss) earnings per share from continuing operations |
$ | (1.29 | ) | $ | (0.23 | ) | $ | (0.34 | ) | $ | 0.46 | $ | 0.86 | |||||
Basic earnings (loss) per share from discontinued operations |
| | 0.01 | (0.54 | ) | (0.04 | ) | |||||||||||
Basic (loss) earnings per share |
$ | (1.29 | ) | $ | (0.23 | ) | $ | (0.33 | ) | $ | (0.08 | ) | $ | 0.82 | ||||
Diluted (loss) earnings per share of common stock: |
||||||||||||||||||
Diluted (loss) earnings per share from continuing operations |
$ | (1.29 | ) | $ | (0.23 | ) | $ | (0.34 | ) | $ | 0.44 | $ | 0.81 | |||||
Diluted earnings (loss) per share from discontinued operations |
| | 0.01 | (0.52 | ) | (0.04 | ) | |||||||||||
Diluted (loss) earnings per share |
$ | (1.29 | ) | $ | (0.23 | ) | $ | (0.33 | ) | $ | (0.08 | ) | $ | 0.77 | ||||
Weighted average shares outstanding: |
||||||||||||||||||
Basic shares of common stock |
59,443 | 59,457 | 59,650 | 58,537 | 56,072 | |||||||||||||
Diluted shares of common stock |
59,443 | 59,457 | 59,650 | 61,028 | 60,031 | |||||||||||||
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(amounts in thousands)
|
Fiscal Year
2010 |
Fiscal Year
2009 |
Fiscal Year
2008 |
Fiscal Year
2007 |
Fiscal Year
2006 |
||||||||||||
---|---|---|---|---|---|---|---|---|---|---|---|---|---|---|---|---|---|
Balance sheet data (at period end): |
|||||||||||||||||
Cash and cash equivalents (including cash at discontinued operations of $0, $0, $1, $223 and $206, respectively) |
$ | 77,392 | $ | 87,296 | $ | 54,281 | $ | 73,957 | $ | 68,064 | |||||||
Working capital |
$ | 42,765 | $ | 67,954 | $ | 70,599 | $ | 84,479 | $ | 69,964 | |||||||
Total assets |
$ | 355,210 | $ | 436,527 | $ | 456,813 | $ | 488,456 | $ | 469,799 | |||||||
Total debt(4) |
$ | 7,500 | $ | 13,500 | $ | 19,500 | $ | 25,500 | $ | 31,500 | |||||||
Stockholders' equity |
$ | 133,837 | $ | 208,164 | $ | 222,496 | $ | 239,961 | $ | 240,799 |
During fiscal year 2010, the Company exited an underperforming test accessories concept consisting of five stores. In connection with the exit of this concept, the Company recorded pre-tax restructuring charges totaling $2.1 million, which consist of non-cash charges of $1.1 million related to the impairment of store assets, $0.8 million related to the write-off of inventory and $0.2 million related primarily to lease exit and severance costs. The asset impairment charges, lease exit costs, and severance costs totaling $1.3 million are reported in "Restructuring charges," and the inventory write-off of $0.8 million is reported in "Cost of goods sold, buying and occupancy costs" on the Company's consolidated statements of operations. For further information related to the Company's restructuring activities, please refer to Note 4, "Restructuring," in the Notes to Consolidated Financial Statements appearing elsewhere in this Annual Report on Form 10-K.
25
Item 7. Management's Discussion and Analysis of Financial Condition and Results of Operations
SPECIAL NOTE REGARDING FORWARD-LOOKING STATEMENTS
Certain matters discussed in "Item 7. Management's Discussion and Analysis of Financial Condition and Results of Operations" and other sections of this Annual Report on Form 10-K are forward-looking statements intended to qualify for safe harbors from liability established by the Private Securities Litigation Reform Act of 1995. Some of these statements can be identified by terms and phrases such as "anticipate," "believe," "intend," "estimate," "expect," "continue," "could," "may," "plan," "project," "predict" and similar expressions and include references to assumptions that the Company believes are reasonable and relate to its future prospects, developments and business strategies. Factors that could cause the Company's actual results to differ materially from those expressed or implied in such forward-looking statements, include, but are not limited to those discussed under the headings "Item 1A. Risk Factors" and "Item 7A. Quantitative and Qualitative Disclosures About Market Risk" in this Annual Report on Form 10-K and:
26
The Company undertakes no obligation to revise the forward-looking statements included in this Annual Report on Form 10-K to reflect any future events or circumstances.
The purpose of this section is to discuss and analyze the Company's consolidated financial condition, liquidity and capital resources, and results of operations. The following discussion should be read in conjunction with the Company's consolidated financial statements and the notes thereto appearing elsewhere in this Annual Report on Form 10-K.
Overview
The Company is a leading specialty retailer of women's fashion apparel and accessories offering the latest NY Style. The Company's proprietary branded New York & Company merchandise is sold exclusively through its national network of retail stores and E-commerce store at www.nyandcompany.com . The target customers for the Company's merchandise are fashion-conscious, value-sensitive women between the ages of 25 and 45. As of January 29, 2011, the Company operated 555 stores in 43 states.
The Company's fiscal year is a 52 or 53 week year that ends on the Saturday closest to January 31. The 52-week years ended January 29, 2011, January 30, 2010 and January 31, 2009 are referred to herein as "fiscal year 2010," "fiscal year 2009," and "fiscal year 2008," respectively. The 52-week year ending January 28, 2012 is referred to herein as "fiscal year 2011."
Fiscal Year 2010 Summary
During fiscal year 2010, the Company focused on increasing sales, managing inventory and expenses tightly and properly positioning itself to generate future profits. Net sales for fiscal year 2010 were $1,021.7 million, as compared to net sales of $1,006.7 million for fiscal year 2009. Comparable store sales increased 1.6% for fiscal year 2010, as compared to a comparable store sales decrease of 11.8% for fiscal year 2009. Loss from continuing operations in fiscal year 2010 was $76.5 million, or $1.29 per diluted share, inclusive of a loss of $0.81 per diluted share attributable to restructuring activities and non-operating adjustments as described in the sections below entitled "Results of Operations" and "Non-GAAP Financial Measures." This compares to a loss from continuing operations in fiscal year 2009 of $13.5 million, or $0.23 per diluted share, inclusive of a loss of $0.03 per diluted
27
share attributable to restructuring activities and non-operating adjustments as described in the sections below entitled "Results of Operations" and "Non-GAAP Financial Measures."
Due to the deterioration in the macroeconomic environment and the continued uncertainty over the past few years, the Company has reduced capital expenditures by opening fewer new New York & Company stores in an effort to preserve its liquidity and focus on optimizing its existing store base. As planned, the Company closed 43 stores during fiscal year 2010, resulting in a reduction of 230,435 selling square feet, and remodeled eight stores. The reduction in non-productive selling square feet is an integral component of the Company's goal to improve productivity and profitability of its existing store base and is in-line with its restructuring and cost reduction program announced in January 2009.
In fiscal year 2009, the Company announced that it had opened three temporary New York & Company Outlet stores as part of a test. Based on the performance of these test outlet stores, during fiscal year 2010 the Company opened 24 New York & Company Outlet stores. Each outlet store is approximately 3,500 to 5,000 selling square feet. The New York & Company Outlet stores offer a merchandise mix consisting of apparel and accessories that can be found at New York & Company stores, merchandise specific to the outlet stores and clearance merchandise. The Company believes over the long term, the growth potential for New York & Company Outlet stores could be approximately 75 locations.
Capital spending for fiscal year 2010 was $15.7 million, as compared to $13.3 million for fiscal year 2009. The $15.7 million of capital spending represents $10.2 million related to the construction of new stores and the remodeling of existing stores and $5.5 million related to non-store capital projects. As of January 29, 2011, the Company operated 555 stores and 3.0 million selling square feet, as compared to 576 stores and 3.2 million selling square feet as of January 30, 2010. As of January 29, 2011, the Company had cash and cash equivalents of $77.4 million, working capital of $42.8 million and availability under its revolving credit facility of $46.3 million.
As previously announced, Richard P. Crystal retired as Chief Executive Officer of the Company effective February 11, 2011, and Gregory Scott, President, was appointed Chief Executive Officer. In addition, during fiscal year 2010 the Company announced several key management changes within merchandising, design and marketing. Looking forward to fiscal year 2011, the Company will focus on increasing sales and margins, while continuing to manage expenses and inventory tightly. The Company plans to preserve cash in fiscal year 2011 and continue to improve the productivity of its existing store base by remodeling existing stores and closing underperforming stores as they are identified. Capital expenditures are estimated to be approximately $15.2 million in fiscal year 2011, as compared to $15.7 million in fiscal year 2010.
General
Net Sales. Net sales consist of sales from comparable and non-comparable stores and the Company's E-commerce store. A store is included in the comparable store sales calculation after it has completed 13 full fiscal months of operation from the store's original opening date or once it has been reopened after remodeling. Beginning in February 2008, sales from the Company's E-commerce store are included in comparable store sales. Non-comparable store sales include stores which have not completed 13 full fiscal months of operations, sales from closed stores, and sales from stores closed or in temporary locations during periods of remodeling. In addition, in a year with 53 weeks, sales in the last week of the year are not included in determining comparable store sales. Net sales from the sale of merchandise at the Company's stores are recognized when the customer takes possession of the merchandise and the purchases are paid for, primarily with either cash or credit card. Net sales from the sale of merchandise at the Company's E-commerce store are recognized when the merchandise is shipped to the customer. A reserve is provided for projected merchandise returns based on prior experience.
28
The Company issues gift cards which do not contain provisions for expiration or inactivity fees. The portion of the dollar value of gift cards that ultimately is not used by customers to make purchases is known as breakage. The Company recognizes gift card breakage as revenue as gift cards are redeemed over a three-year redemption period based on its historical gift card breakage rate. The Company considers the likelihood of redemption remote beyond a three-year redemption period, at which point any unrecognized gift card breakage is recognized as revenue. The Company determined the redemption period and the gift card breakage rate based on its historical redemption patterns.
Cost of Goods Sold, Buying and Occupancy Costs. Cost of goods sold, buying and occupancy costs is comprised of direct inventory costs for merchandise sold, distribution, payroll and related costs for design, sourcing, production, merchandising, planning and allocation personnel, and store occupancy and related costs.
Gross Profit. Gross profit represents net sales less cost of goods sold, buying and occupancy costs.
Selling, General and Administrative Expenses. Selling, general and administrative expenses include selling, store management and corporate expenses, including payroll and employee benefits, employment taxes, management information systems, marketing, insurance, legal, store pre-opening and other corporate level expenses. Store pre-opening expenses include store level payroll, grand opening event marketing, travel, supplies and other store opening expenses.
Results of Operations
The following tables summarize the Company's results of operations as a percentage of net sales and selected store operating data for fiscal year 2010, fiscal year 2009 and fiscal year 2008:
|
Fiscal Year
2010 |
Fiscal Year
2009 |
Fiscal Year
2008 |
|||||||
---|---|---|---|---|---|---|---|---|---|---|
|
(as a % of net sales)
|
|||||||||
Net sales |
100.0 | % | 100.0 | % | 100.0 | % | ||||
Cost of goods sold, buying and occupancy costs |
77.2 | % | 74.9 | % | 74.0 | % | ||||
Gross profit |
22.8 | % | 25.1 | % | 26.0 | % | ||||
Selling, general and administrative expenses |
29.2 | % | 27.3 | % | 26.8 | % | ||||
Restructuring charges |
0.1 | % | 0.2 | % | 2.2 | % | ||||
Operating loss |
(6.5 | )% | (2.4 | )% | (3.0 | )% | ||||
Interest expense, net |
0.1 | % | 0.1 | % | 0.1 | % | ||||
Loss from continuing operations before income taxes |
(6.6 | )% | (2.5 | )% | (3.1 | )% | ||||
Provision (benefit) for income taxes |
0.9 | % | (1.2 | )% | (1.3 | )% | ||||
Loss from continuing operations |
(7.5 | )% | (1.3 | )% | (1.8 | )% | ||||
Income from discontinued operations, net of taxes |
| % | | % | 0.1 | % | ||||
Net loss |
(7.5 | )% | (1.3 | )% | (1.7 | )% | ||||
29
|
Fiscal Year
2010 |
Fiscal Year
2009 |
Fiscal Year
2008 |
|||||||
---|---|---|---|---|---|---|---|---|---|---|
|
(amounts in thousands, except square foot data)
|
|||||||||
Selected operating data: |
||||||||||
Comparable store sales increase (decrease) |
1.6 | % | (11.8 | )% | (8.6 | )% | ||||
Net sales per average selling square foot(1) |
$ | 329 | $ | 310 | $ | 344 | ||||
Net sales per average store(2) |
$ | 1,805 | $ | 1,727 | $ | 1,952 | ||||
Average selling square footage per store(3) |
5,453 | 5,544 | 5,594 |
The following table includes store count and selling square feet:
|
Fiscal Year 2010 | Fiscal Year 2009 | Fiscal Year 2008 | ||||||||||||||||
---|---|---|---|---|---|---|---|---|---|---|---|---|---|---|---|---|---|---|---|
|
Store
Count |
Selling
Square Feet |
Store
Count |
Selling
Square Feet |
Store
Count |
Selling
Square Feet |
|||||||||||||
Stores open, beginning of period |
576 | 3,193,602 | 589 | 3,294,779 | 578 | 3,327,450 | |||||||||||||
New stores |
22 | 74,830 | 11 | 31,755 | 25 | 104,641 | |||||||||||||
Closed stores |
(43 | ) | (230,435 | ) | (24 | ) | (133,398 | ) | (14 | ) | (98,572 | ) | |||||||
Net impact of remodeled stores on selling square feet |
| (11,514 | ) | | 466 | | (38,740 | ) | |||||||||||
Stores open, end of period |
555 | 3,026,483 | 576 | 3,193,602 | 589 | 3,294,779 | |||||||||||||
Fiscal Year 2010 Compared to Fiscal Year 2009
Net Sales. Net sales for fiscal year 2010 increased 1.5% to $1,021.7 million, as compared to $1,006.7 million for fiscal year 2009. The increase in net sales is primarily driven by a 1.6% increase in comparable store sales for fiscal year 2010, as compared to a decrease of 11.8% for fiscal year 2009. In the comparable store base, average dollar sales per transaction increased by 0.9%, and the number of transactions per average store increased by 0.7%, as compared to the same period last year.
Gross Profit. Gross profit for fiscal year 2010 was $233.3 million, or 22.8% of net sales, as compared to $252.6 million, or 25.1% of net sales, for fiscal year 2009. The decrease in gross profit as a percentage of net sales in fiscal year 2010, as compared to last year, is due to a 360 basis point decrease in merchandise margins resulting from increased levels of promotional activity primarily during the second quarter in order to drive sales and clear inventory in preparation for the fall season, partially offset by a 130 basis point decrease in buying and occupancy costs. The decrease in buying and occupancy costs as a percentage of net sales, as compared to fiscal year 2009, is primarily attributable to the increase in comparable store sales combined with savings recognized from the Company's restructuring and cost reduction program.
Selling, General and Administrative Expenses. Selling, general and administrative expenses increased to $298.4 million, or 29.2% of net sales, during fiscal year 2010, as compared to $274.1 million, or 27.3% of net sales, during fiscal year 2009. The increase in selling, general and administrative expenses as a percentage of net sales is primarily a result of non-cash charges totaling $15.7 million recorded during the second quarter of fiscal year 2010, of which $15.2 million relates to
30
the impairment of New York & Company store assets and $0.5 million relates to the disposal of certain information technology assets. During the third quarter of fiscal year 2010, the Company recorded approximately $1.0 million of separation expenses related to management changes that were not associated with the Company's restructuring activities. In addition, the Company recorded charges totaling $2.7 million in connection with state sales and use tax and payroll tax audits. Also contributing to the increase in selling, general and administrative expenses for fiscal year 2010 was an increase in recruiting expenses incurred in connection with the hiring of the new chief executive officer and certain other executive positions, an increase in legal expenses due to two lawsuits and an increase in incentive compensation expense resulting primarily from the Company's improved performance in the third and fourth quarters of fiscal year 2010, as compared to the same periods last year.
Restructuring Charges. As previously announced, the Company exited an underperforming test accessories concept consisting of five stores. In connection with the exit of this concept, during the second quarter of fiscal year 2010, the Company recorded $1.1 million of non-cash charges related to the impairment of store assets and $0.1 million of severance costs, which are reported in "Restructuring charges" on the consolidated statements of operations. In addition, the Company recorded a $0.8 million charge related to the write-off of inventory, which is reported in "Cost of goods sold, buying and occupancy costs" on the consolidated statements of operations. During the third quarter of fiscal year 2010, the Company recorded additional pre-tax restructuring charges of $0.1 million related primarily to lease exit costs. The Company does not anticipate incurring any other costs related to the test accessories concept.
Throughout fiscal year 2009, the Company continued to monitor the multi-year restructuring and cost reduction program announced in January 2009 and continued to evaluate the business. As a result, during the third and fourth quarters of fiscal year 2009, the Company recorded pre-tax restructuring charges of $0.5 million and $1.9 million, respectively. These charges included a non-cash charge of $1.2 million related to the impairment of store assets and cash charges of $1.2 million related to severance. For further information related to the Company's restructuring activities, please refer to Note 4, "Restructuring," in the Notes to Consolidated Financial Statements appearing elsewhere in this Annual Report on Form 10-K.
Operating Loss. For the reasons discussed above, operating loss for fiscal year 2010 was $66.4 million, or 6.5% of net sales, as compared to an operating loss of $23.9 million, or 2.4% of net sales, during fiscal year 2009.
Interest Expense, Net. Net interest expense was $0.7 million during fiscal year 2010, as compared to $0.8 million during fiscal year 2009.
Provision (Benefit) for Income Taxes. The effective tax rate during fiscal year 2010 reflects a provision of 14.1%, as compared to a benefit of 45.4% during fiscal year 2009. The income tax provision in fiscal year 2010, despite the loss from continuing operations, is primarily due to the following: (i) a $44.8 million valuation allowance against the company's deferred tax assets as of January 30, 2010 plus deferred tax assets generated by the fiscal year 2010 loss, (ii) a $6.1 million tax benefit recorded during the third quarter of fiscal year 2010 related primarily to a change in accounting methods for tax purposes, which resulted in a reduction of the depreciable lives of certain assets, and a refund of amounts previously paid with a corresponding adjustment to the Company's valuation allowance against its deferred tax assets, and (iii) a $1.9 million benefit resulting from other tax related items. For further information related to the deferred tax valuation allowance, please refer to Note 14, "Income Taxes" in the Notes to Consolidated Financial Statements appearing elsewhere in this Annual Report on Form 10-K.
31
Loss from Continuing Operations. For the reasons discussed above, loss from continuing operations was $76.5 million, or 7.5% of net sales, for fiscal year 2010. This compares to a loss from continuing operations of $13.5 million, or 1.3% of net sales, for fiscal year 2009.
Income from Discontinued Operations, Net of Taxes. Income from discontinued operations represents operations of JasmineSola.
Fiscal Year 2009 Compared to Fiscal Year 2008
Net Sales. Net sales for fiscal year 2009 were $1,006.7 million, as compared to net sales of $1,139.9 million for fiscal year 2008. The macroeconomic environment continued to negatively impact consumer confidence and the level of consumer spending on the Company's merchandise during fiscal year 2009. The decrease in net sales is primarily due to a decrease in comparable store sales of 11.8% for fiscal year 2009, as compared to a decrease of 8.6% for fiscal year 2008. In the comparable store base, the average dollar sales per transaction decreased 1.6%, and the number of transactions per average store decreased 10.4%, as compared to last year.
Gross Profit. Gross profit decreased $43.8 million to $252.6 million, or 25.1% of net sales, during fiscal year 2009, as compared to $296.4 million, or 26.0% of net sales, during fiscal year 2008. The decrease in gross profit as a percentage of net sales is due to a 230 basis point increase in buying and occupancy costs, primarily attributable to the decrease in comparable store sales, partially offset by a 140 basis point improvement in merchandise margins resulting from sourcing efficiencies and a decrease in promotional and inventory clearance activity during the fourth quarter of fiscal year 2009, as compared to last year. In total, buying and occupancy costs decreased by $11.3 million, as compared to fiscal year 2008, reflecting the impact of the Company's restructuring and cost reduction program.
Selling, General and Administrative Expenses. Selling, general and administrative expenses decreased $32.0 million to $274.1 million, or 27.3% of net sales, during fiscal year 2009, as compared to $306.1 million, or 26.8% of net sales, during fiscal year 2008. The increase in selling, general and administrative expenses as a percentage of net sales is primarily a result of the decrease in comparable store sales, partially offset by savings recognized in connection with the Company's restructuring and cost reduction program. Selling, general and administrative expenses in fiscal year 2008 includes a $2.5 million charge related to management changes during the third quarter and a $1.5 million charge recognized during the fourth quarter in connection with the settlement of two separate class action lawsuits in the State of California. On an average store basis, selling, general and administrative expenses declined by 10.3% during fiscal year 2009 reflecting the impact of the Company's restructuring and cost reduction program.
Restructuring Charges. Throughout fiscal year 2009, the Company continued to monitor the multi-year restructuring and cost reduction program announced in January 2009 and continued to evaluate the business. As a result, during the third and fourth quarters of fiscal year 2009, the Company recorded pre-tax restructuring charges of $0.5 million and $1.9 million, respectively. These charges included a non-cash charge of $1.2 million related to the impairment of store assets and cash charges of $1.2 million related to severance. During the fourth quarter of fiscal year 2008, the Company recorded initial pre-tax restructuring charges totaling $24.5 million. These charges included a non-cash charge of $22.9 million related to the impairment of store assets and a cash charge of $1.7 million primarily related to severance and other costs necessary to implement the restructuring and cost reduction program. For further information related to the restructuring and cost reduction program, please refer to Note 4, "Restructuring," in the Notes to Consolidated Financial Statements appearing elsewhere in this Annual Report on Form 10-K.
32
Operating Loss. For the reasons discussed above, operating loss for fiscal year 2009 was $23.9 million, or 2.4% of net sales, as compared to an operating loss of $34.3 million, or 3.0% of net sales, during fiscal year 2008.
Interest Expense, Net. Net interest expense was $0.8 million during fiscal year 2009, as compared to $0.7 million during fiscal year 2008.
Benefit for Income Taxes. The effective tax rate during fiscal year 2009 reflects a benefit of 45.4%, as compared to a benefit of 42.0% during fiscal year 2008. The change in the effective tax rate is primarily due to a tax benefit resulting from the reduction of reserves for uncertain tax positions for prior years.
Loss from Continuing Operations. For the reasons discussed above, loss from continuing operations was $13.5 million, or 1.3% of net sales, for fiscal year 2009. This compares to a loss from continuing operations of $20.3 million, or 1.8% of net sales, for fiscal year 2008.
Income from Discontinued Operations, Net of Taxes. Income from discontinued operations represents operations of JasmineSola.
Non-GAAP Financial Measures
A reconciliation of the Company's GAAP to non-GAAP loss from continuing operations before income taxes, provision (benefit) for income taxes, loss from continuing operations and loss per diluted share for fiscal year 2010, fiscal year 2009 and fiscal year 2008 are indicated below. This information reflects, on a non-GAAP adjusted basis, the Company's operating results after excluding the effects of charges incurred in connection with the Company's restructuring and cost reduction program in addition to other non-operating adjustments. This non-GAAP financial information is provided to enhance the user's overall understanding of the Company's current financial performance. Specifically, the Company believes the non-GAAP adjusted results provide useful information to both management and investors by excluding expenses and earnings that the Company believes are not indicative of the Company's continuing operating results. The non-GAAP financial information should be considered in addition to, not as a substitute for or as being superior to, measures of financial performance prepared in accordance with GAAP.
During fiscal year 2010, the Company incurred the following non-operating adjustments:
During fiscal year 2009, the Company incurred the following non-operating adjustments:
33
During fiscal year 2008, the Company incurred the following non-operating adjustments:
|
Fiscal year ended January 29, 2011 | ||||||||||||
---|---|---|---|---|---|---|---|---|---|---|---|---|---|
(Amounts in thousands, except per share amounts)
|
Loss from
continuing operations before income taxes |
Provision
(benefit) for income taxes |
Net loss from
continuing operations |
Net loss per
diluted share from continuing operations |
|||||||||
GAAP as reported |
$ | (67,076 | ) | $ | 9,466 | $ | (76,542 | ) | $ | (1.29 | ) | ||
Adjustments affecting comparability |
|||||||||||||
Restructuring charges(a) |
2,126 | (854 | ) | 1,272 | 0.02 | ||||||||
Separation expenses(a) |
953 | (383 | ) | 570 | 0.01 | ||||||||
New York & Company asset impairment and disposals(a) |
15,725 | (6,321 | ) | 9,404 | 0.16 | ||||||||
Deferred tax valuation allowance |
| 44,826 | 44,826 | 0.75 | |||||||||
Tax benefit and reduction of the deferred tax valuation allowance resulting primarily from a change in accounting methods for tax purposes |
| (6,082 | ) | (6,082 | ) | (0.10 | ) | ||||||
Other tax related items |
| (1,870 | ) | (1,870 | ) | (0.03 | ) | ||||||
Non-GAAP as adjusted |
$ | (48,272 | ) | $ | (19,850 | ) | $ | (28,422 | ) | $ | (0.48 | ) | |
|
Fiscal year ended January 30, 2010 | ||||||||||||
---|---|---|---|---|---|---|---|---|---|---|---|---|---|
(Amounts in thousands, except per share amounts)
|
Loss from
continuing operations before income taxes |
Benefit for
income taxes |
Net loss from
continuing operations |
Net loss per
diluted share from continuing operations |
|||||||||
GAAP as reported |
$ | (24,681 | ) | $ | (11,197 | ) | $ | (13,484 | ) | $ | (0.23 | ) | |
Adjustments affecting comparability |
|||||||||||||
Restructuring charges(a) |
2,376 | (955 | ) | 1,421 | 0.03 | ||||||||
Non-GAAP as adjusted |
$ | (22,305 | ) | $ | (10,242 | ) | $ | (12,063 | ) | $ | (0.20 | ) | |
34
|
Fiscal year ended January 31, 2009 | ||||||||||||
---|---|---|---|---|---|---|---|---|---|---|---|---|---|
(Amounts in thousands, except per share amounts)
|
Loss from
continuing operations before income taxes |
Benefit for
income taxes |
Net loss from
continuing operations |
Net loss per
diluted share from continuing operations |
|||||||||
GAAP as reported |
$ | (34,981 | ) | $ | (14,683 | ) | $ | (20,298 | ) | $ | (0.34 | ) | |
Adjustments affecting comparability |
|||||||||||||
Restructuring charges(a) |
24,529 | (9,861 | ) | 14,668 | 0.25 | ||||||||
Separation expenses(a) |
2,525 | (1,015 | ) | 1,510 | 0.03 | ||||||||
Legal settlement charges(a) |
1,500 | (603 | ) | 897 | 0.01 | ||||||||
Non-GAAP as adjusted |
$ | (6,427 | ) | $ | (3,204 | ) | $ | (3,223 | ) | $ | (0.05 | ) | |
Quarterly Results and Seasonality
The Company views the retail apparel market as having two principal selling seasons: spring (first and second quarter) and fall (third and fourth quarter). The Company's business experiences seasonal fluctuations in net sales and operating income, with a significant portion of its operating income typically realized during its fourth quarter. The following table sets forth the percentage of fiscal year net sales, operating (loss) income and (loss) income from continuing operations that was realized in each quarter of the last two fiscal years.
|
Fiscal Year 2010 | Fiscal Year 2009 | |||||||||||||||||||||||
---|---|---|---|---|---|---|---|---|---|---|---|---|---|---|---|---|---|---|---|---|---|---|---|---|---|
|
Quarter ended | Quarter ended | |||||||||||||||||||||||
(as a % of fiscal year)
|
May 1,
2010 |
July 31,
2010 |
October 30,
2010 |
January 29,
2011 |
May 2,
2009 |
August 1,
2009 |
October 31,
2009 |
January 30,
2010 |
|||||||||||||||||
Net sales |
23.2 | % | 23.8 | % | 23.3 | % | 29.7 | % | 23.1 | % | 24.6 | % | 22.7 | % | 29.6 | % | |||||||||
Operating (loss) income |
(13.1 | )% | (99.5 | )% | (6.0 | )% | 18.6 | % | (35.6 | )% | (33.0 | )% | (45.7 | )% | 14.3 | % | |||||||||
(Loss) income from continuing operations |
(6.3 | )% | (115.6 | )% | 2.4 | % | 19.5 | % | (36.3 | )% | (35.8 | )% | (46.7 | )% | 18.8 | % |
Any decrease in sales or margins during either of the principal selling seasons in any given year could have a disproportionate effect on the Company's financial condition and results of operations. Seasonal fluctuations also affect inventory levels. The Company must carry a significant amount of inventory, especially before the holiday season selling period in the fourth quarter.
The following tables set forth the Company's quarterly consolidated statements of operations data for the last eight fiscal quarters and such information expressed as a percentage of net sales. This unaudited quarterly information has been prepared on the same basis as the annual audited financial statements appearing elsewhere in this Annual Report on Form 10-K and includes all necessary
35
adjustments, consisting only of normal recurring adjustments, that the Company considers necessary to present fairly the financial information for the quarters presented.
|
Fiscal Year 2010 | Fiscal Year 2009 | ||||||||||||||||||||||||
---|---|---|---|---|---|---|---|---|---|---|---|---|---|---|---|---|---|---|---|---|---|---|---|---|---|---|
|
Quarter ended | Quarter ended | ||||||||||||||||||||||||
Statements of Operations data
|
May 1,
2010 |
July 31,
2010 |
October 30,
2010 |
January 29,
2011 |
May 2,
2009 |
August 1,
2009 |
October 31,
2009 |
January 30,
2010 |
||||||||||||||||||
|
(Amounts in thousands, except per share data)
|
|||||||||||||||||||||||||
Net sales |
$ | 236,982 | $ | 243,317 | $ | 238,221 | $ | 303,179 | $ | 232,860 | $ | 247,820 | $ | 227,949 | $ | 298,046 | ||||||||||
Gross profit |
$ | 58,545 | $ | 20,070 | $ | 66,454 | $ | 88,252 | $ | 58,852 | $ | 56,094 | $ | 57,730 | $ | 79,913 | ||||||||||
Operating (loss) income |
$ | (8,703 | ) | $ | (66,012 | ) | $ | (4,000 | ) | $ | 12,336 | $ | (8,516 | ) | $ | (7,906 | ) | $ | (10,926 | ) | $ | 3,422 | ||||
(Loss) income from continuing operations |
$ | (4,859 | ) | $ | (88,473 | ) | $ | 1,854 | $ | 14,936 | $ | (4,888 | ) | $ | (4,829 | ) | $ | (6,302 | ) | $ | 2,535 | |||||
Income from discontinued operations, net of taxes |
$ | | $ | | $ | | $ | 81 | $ | 3 | $ | | $ | | $ | | ||||||||||
Net (loss) income |
$ | (4,859 | ) | $ | (88,473 | ) | $ | 1,854 | $ | 15,017 | $ | (4,885 | ) | $ | (4,829 | ) | $ | (6,302 | ) | $ | 2,535 | |||||
Basic (loss) earnings per share of common stock: |
||||||||||||||||||||||||||
Basic EPScontinuing operations |
$ | (0.08 | ) | $ | (1.49 | ) | $ | 0.03 | $ | 0.25 | $ | (0.08 | ) | $ | (0.08 | ) | $ | (0.11 | ) | $ | 0.04 | |||||
Basic EPSdiscontinued operations |
$ | | $ | | $ | | $ | | $ | | $ | | $ | | $ | | ||||||||||
Basic (loss) earnings per share |
$ | (0.08 | ) | $ | (1.49 | ) | $ | 0.03 | $ | 0.25 | $ | (0.08 | ) | $ | (0.08 | ) | $ | (0.11 | ) | $ | 0.04 | |||||
Diluted (loss) earnings per share of common stock: |
||||||||||||||||||||||||||
Diluted EPScontinuing operations. |
$ | (0.08 | ) | $ | (1.49 | ) | $ | 0.03 | $ | 0.24 | $ | (0.08 | ) | $ | (0.08 | ) | $ | (0.11 | ) | $ | 0.04 | |||||
Diluted EPSdiscontinued operations |
$ | | $ | | $ | | $ | 0.01 | $ | | $ | | $ | | $ | | ||||||||||
Diluted (loss) earnings per share |
$ | (0.08 | ) | $ | (1.49 | ) | $ | 0.03 | $ | 0.25 | $ | (0.08 | ) | $ | (0.08 | ) | $ | (0.11 | ) | $ | 0.04 | |||||
Weighted average shares outstanding: |
||||||||||||||||||||||||||
Basic shares of common stock |
59,337 | 59,396 | 59,502 | 59,537 | 60,043 | 59,320 | 59,161 | 59,303 | ||||||||||||||||||
Diluted shares of common stock |
59,337 | 59,396 | 60,315 | 61,126 | 60,043 | 59,320 | 59,161 | 60,652 | ||||||||||||||||||
|
Fiscal Year 2010 | Fiscal Year 2009 | |||||||||||||||||||||||
---|---|---|---|---|---|---|---|---|---|---|---|---|---|---|---|---|---|---|---|---|---|---|---|---|---|
|
Quarter ended | Quarter ended | |||||||||||||||||||||||
(as a % of net sales)
|
May 1,
2010 |
July 31,
2010 |
October 30,
2010 |
January 29,
2011 |
May 2,
2009 |
August 1,
2009 |
October 31,
2009 |
January 30,
2010 |
|||||||||||||||||
Net sales |
100.0 | % | 100.0 | % | 100.0 | % | 100.0 | % | 100.0 | % | 100.0 | % | 100.0 | % | 100.0 | % | |||||||||
Gross profit |
24.7 | % | 8.2 | % | 27.9 | % | 29.1 | % | 25.3 | % | 22.6 | % | 25.3 | % | 26.8 | % | |||||||||
Operating (loss) income |
(3.7 | )% | (27.1 | )% | (1.7 | )% | 4.1 | % | (3.7 | )% | (3.2 | )% | (4.8 | )% | 1.1 | % | |||||||||
(Loss) income from continuing operations |
(2.1 | )% | (36.4 | )% | 0.8 | % | 4.9 | % | (2.1 | )% | (1.9 | )% | (2.8 | )% | 0.9 | % |
36
Liquidity and Capital Resources
The Company's primary uses of cash are to fund working capital, operating expenses, debt service and capital expenditures related primarily to the construction of new stores, remodeling of existing stores and development of the Company's information technology infrastructure. Historically, the Company has financed these requirements from internally generated cash flow. The Company intends to fund its ongoing capital and working capital requirements, as well as debt service obligations, primarily through cash flows from operations, supplemented by borrowings under its credit facilities, if needed. The Company is in compliance with all debt covenants.
As of January 29, 2011, the Company had cash and cash equivalents of $77.4 million, working capital of $42.8 million and availability under its revolving credit facility of $46.3 million. Capital expenditures are estimated to be approximately $15.2 million in fiscal year 2011, as compared to $15.7 million in fiscal year 2010.
(Amounts in thousands)
|
January 29,
2011 |
January 30,
2010 |
January 31,
2009 |
|||||||
---|---|---|---|---|---|---|---|---|---|---|
Cash and cash equivalents (including cash at discontinued operations of $0, $0 and $1, respectively) |
$ | 77,392 | $ | 87,296 | $ | 54,281 | ||||
Working capital |
$ | 42,765 | $ | 67,954 | $ | 70,599 |
(Amounts in thousands)
|
Fiscal Year
2010 |
Fiscal Year
2009 |
Fiscal Year
2008 |
|||||||
---|---|---|---|---|---|---|---|---|---|---|
Net cash provided by operating activities of continuing operations |
$ | 10,803 | $ | 55,306 | $ | 34,463 | ||||
Net cash used in investing activities of continuing operations |
$ | (14,759 | ) | $ | (13,285 | ) | $ | (44,352 | ) | |
Net cash used in financing activities of continuing operations |
$ | (5,948 | ) | $ | (9,000 | ) | $ | (3,635 | ) | |
Net cash used in discontinued operations |
$ | | $ | (6 | ) | $ | (6,152 | ) | ||
Net (decrease) increase in cash and cash equivalents |
$ | (9,904 | ) | $ | 33,015 | $ | (19,676 | ) | ||
Operating Activities of Continuing Operations
Net cash provided by operating activities of continuing operations was $10.8 million during fiscal year 2010, as compared to $55.3 million during fiscal year 2009. The decrease in net cash provided by operating activities of continuing operations during fiscal year 2010, as compared to fiscal year 2009, is primarily related to the increase in loss from continuing operations in fiscal year 2010 and changes in accounts receivable, income taxes receivable, inventory, prepaid expenses, accounts payable, income taxes payable, deferred rent, and other assets and liabilities, partially offset by changes in deferred income taxes and accrued expenses.
Net cash provided by operating activities of continuing operations was $55.3 million during fiscal year 2009, as compared to $34.5 million during fiscal year 2008. The increase in net cash provided by operating activities of continuing operations during fiscal year 2009, as compared to fiscal year 2008, is primarily related to the reduction in loss from continuing operations in fiscal year 2009 and changes in deferred income taxes, income taxes receivable, inventory, prepaid expenses, accounts payable, income taxes payable, and other assets and liabilities, partially offset by changes in accounts receivable, accrued expenses, and deferred rent.
Investing Activities of Continuing Operations
Net cash used in investing activities of continuing operations was $14.8 million, $13.3 million and $44.4 million, during fiscal year 2010, fiscal year 2009 and fiscal year 2008, respectively. The decrease in net cash used in investing activities of continuing operations during fiscal year 2009 and fiscal year 2010, as compared to fiscal year 2008, is due to the Company's reduction in capital expenditures in an effort to conserve cash and preserve its liquidity in response to the economic downturn in fiscal year 2008.
37
Net cash used in investing activities during fiscal year 2010 reflects capital expenditures of $10.2 million related to the construction of 22 new stores and the remodeling of eight existing stores, and $5.5 million related to non-store capital projects, partially offset by $0.9 million of proceeds from the sale of fixed assets. Net cash used in investing activities during fiscal year 2009 reflects capital expenditures of $6.7 million related to the construction of 11 new stores and the remodeling of three existing stores, and $6.6 million for non-store capital projects, which principally represent information technology enhancements.
Net cash used in investing activities of continuing operations for fiscal year 2009 is explained in the preceding paragraph. Net cash used in investing activities of continuing operations during fiscal year 2008 includes capital expenditures of $26.8 million related to the construction of 25 new stores and the remodeling of 14 existing stores, and $17.8 million in non-store capital projects, which principally represent information technology enhancements including, among other projects, a new POS system implemented across the chain and the upgrade of the Company's existing merchandise planning system. The Company completed the implementation of the new POS system during fiscal year 2008 and completed the upgrade of its merchandise planning system during fiscal year 2010.
Financing Activities of Continuing Operations
Net cash used in financing activities of continuing operations was $5.9 million during fiscal year 2010, as compared to $9.0 million during fiscal year 2009. Net cash used in financing activities of continuing operations for fiscal year 2010 consisted primarily of $21.0 million of proceeds from borrowings under the Company's revolving credit facility offset by the repayment of the $21.0 million of borrowings and quarterly payments against the Company's outstanding term loan totaling $6.0 million. Net cash used in financing activities of continuing operations for fiscal year 2009 consisted of quarterly payments against the Company's outstanding term loan totaling $6.0 million plus $3.4 million used for the repurchase of 1,000,000 shares of the Company's common stock under its authorized share repurchase program, partially offset by $0.4 million of proceeds from the exercise of stock options and the related tax benefit to the Company.
Net cash used in financing activities of continuing operations was $9.0 million during fiscal year 2009, as compared to $3.6 million during fiscal year 2008. Net cash used in financing activities of continuing operations for fiscal year 2009 is explained in the preceding paragraph. Net cash used in financing activities of continuing operations for fiscal year 2008 consisted of the following: $25.0 million of proceeds from borrowings under the Company's revolving credit facility offset by the repayment of the $25.0 million of borrowings; quarterly payments against the Company's outstanding term loan totaling $6.0 million; $2.5 million of proceeds from the exercise of stock options and the related excess tax benefit to the Company; and payment of financing costs totaling $0.2 million in connection with the December 9, 2008 amendment of the Company's credit facilities.
Discontinued Operations Cash Flows
There were no material payments or receipts during fiscal year 2010 and fiscal year 2009 that related to the discontinued operations of JasmineSola. Net cash used in discontinued operations of $6.2 million during fiscal year 2008 consisted primarily of lease termination payments and the payment of other exit related liabilities.
Long-Term Debt and Credit Facilities
On August 22, 2007, Lerner New York, Inc., Lernco, Inc. and Lerner New York Outlet, Inc. (formerly known as Jasmine Company, Inc.) entered into a Second Amended and Restated Loan and Security Agreement (the "Loan Agreement") with Wachovia Bank, National Association, as Agent for itself and the other lender party to the Loan Agreement.
38
The Company's credit facilities currently consist of a term loan, of which $7.5 million was outstanding at January 29, 2011, and a $90.0 million revolving credit facility (which includes a sub-facility available for issuance of letters of credit of up to $75.0 million), both having a maturity date of March 17, 2012.
The maximum borrowing availability under the Company's revolving credit facility is determined by a monthly borrowing base calculation that is based on the application of specified advance rates against inventory and certain other eligible assets. As of January 29, 2011, the Company had availability under its revolving credit facility of $46.3 million, net of letters of credit outstanding of $7.2 million and no revolving loans outstanding, as compared to availability of $48.4 million, net of letters of credit outstanding of $7.2 million and no revolving loans outstanding, as of January 30, 2010.
The revolving loans under the credit facilities bear interest, at the Company's option, either at a floating rate equal to the Eurodollar rate plus a margin of between 1.00% and 1.25% per year, depending upon the Company's financial performance, or the Prime rate. The Company pays the lenders under the revolving credit facility a monthly fee on outstanding commercial letters of credit at a rate of 0.625% per year and on standby letters of credit at a rate of between 1.00% and 1.25% per year, depending upon the Company's financial performance, plus a monthly fee on a proportion of the unused commitments under that facility at a rate of 0.20% per year. The term loan bears interest at a floating rate equal to the Eurodollar rate plus 2.50% per year. If any default were to exist under the revolving credit facility and for so long as such default were to continue, at the option of the agent or lenders, the monthly fee on outstanding standby letters of credit may increase to 3.25% per year, interest on the revolving loans may increase to 3.25% per year above the Eurodollar rate for Eurodollar rate loans and 2.00% per year above the Prime rate for all Prime rate loans, and interest on the term loan may increase to the Eurodollar rate plus 4.50% per year.
The Company's credit facilities contain certain covenants, including restrictions on the Company's ability to pay dividends on its common stock, incur additional indebtedness and to prepay, redeem, defease or purchase other debt. Subject to such restrictions, the Company may incur more debt for working capital, capital expenditures, stock repurchases, acquisitions and for other purposes. The terms of the Company's credit facilities also subject it to a minimum fixed charge coverage ratio of 1.00 to 1.00, if the Company's borrowing availability under its revolving credit facility plus qualified cash falls below $30.0 million ($20.0 million during March and November). If the Company fully repays its existing term loan, the Company will only be subject to the minimum fixed charge coverage ratio in the event that borrowing availability under its revolving credit facility falls below $12.5 million. In addition, the Company is required at all times to maintain minimum borrowing availability under its credit facility of $10.0 million. The Company is currently in compliance with the financial covenants referred to above.
The lenders have been granted a pledge of the common stock of Lerner Holding and certain of its subsidiaries, and a first priority security interest in substantially all other tangible and intangible assets of New York & Company, Inc. and its subsidiaries, as collateral for the Company's obligations under the credit facilities. In addition, New York & Company, Inc. and certain of its subsidiaries have fully and unconditionally guaranteed the credit facilities, and such guarantees are joint and several.
Cash Requirements
The Company believes that cash flows from operations, its current cash balance and funds available under its credit facilities will be sufficient to meet its working capital needs and planned capital expenditures through fiscal year 2011.
Off-Balance Sheet Arrangements
The Company does not have off-balance sheet arrangements.
39
Contractual Obligations
The following table summarizes the Company's contractual obligations as of January 29, 2011:
|
|
Payments Due by Period(4) | ||||||||||||||
---|---|---|---|---|---|---|---|---|---|---|---|---|---|---|---|---|
|
Total
obligations |
Less than
one year |
One to
three years |
Three to
five years |
More than
five years |
|||||||||||
|
(Amounts in thousands)
|
|||||||||||||||
Long-term debt(1) |
$ | 7,500 | $ | 7,500 | $ | | $ | | $ | | ||||||
Operating leases(2) |
566,505 | 109,917 | 200,813 | 164,825 | 90,950 | |||||||||||
Purchase obligations(3) |
109,607 | 101,607 | 4,000 | 4,000 | | |||||||||||
Total contractual obligations |
$ | 683,612 | $ | 219,024 | $ | 204,813 | $ | 168,825 | $ | 90,950 | ||||||
Commercial Commitments
The following table summarizes the Company's commercial commitments as of January 29, 2011:
|
|
Amount of Commitment Per Period(2) | ||||||||||||||
---|---|---|---|---|---|---|---|---|---|---|---|---|---|---|---|---|
|
Total
obligations |
Less than
one year |
One to
three years |
Three to
five years |
More than
five years |
|||||||||||
|
(Amounts in thousands)
|
|||||||||||||||
Trade letters of credit outstanding(1) |
$ | 438 | $ | 438 | $ | | $ | | $ | | ||||||
Standby letters of credit(1) |
6,731 | 6,731 | | | | |||||||||||
Total commercial commitments |
$ | 7,169 | $ | 7,169 | $ | | $ | | $ | | ||||||
40
Critical Accounting Policies
The preparation of financial statements in conformity with generally accepted accounting principles in the United States requires management to make estimates and assumptions that impact the amounts reported on the Company's consolidated financial statements and related notes. On an ongoing basis, management evaluates its estimates and judgments, including those related to inventories, long-lived assets, goodwill and other intangible assets, and income taxes. Management bases its estimate and judgments on historical experience and various other factors that are believed to be reasonable under the circumstances. Actual results may differ materially from these judgments. Management believes the following estimates and assumptions are most significant to reporting the Company's results of operations and financial position.
Inventory Valuation. Inventories are valued at the lower of average cost or market, on a weighted average cost basis, using the retail method. The Company records a charge to cost of goods sold, buying and occupancy costs for all inventory on-hand when a permanent retail price reduction is reflected in its stores. In addition, management makes estimates and judgments regarding, among other things, initial markup, markdowns, future demand and market conditions, all of which significantly impact the ending inventory valuation. If actual future demand or market conditions are different than those projected by management, future period merchandise margin rates may be unfavorably or favorably affected. Other significant estimates related to inventory include shrink and obsolete and excess inventory which are also based on historical results and management's operating projections.
Impairment of Long-Lived Assets. The Company evaluates long-lived assets in accordance with Financial Accounting Standards Board ("FASB") Accounting Standards Codification TM ("ASC") Topic 360, "Property, Plant and Equipment" ("ASC 360"). Long-lived assets are evaluated for recoverability in accordance with ASC 360 whenever events or changes in circumstances indicate that an asset may have been impaired. In evaluating an asset for recoverability, the Company estimates the future cash flow expected to result from the use of the asset and eventual disposition and market data assumptions. If the sum of the expected future undiscounted cash flow is less than the carrying amount of the asset, an impairment loss, equal to the excess of the carrying amount over the fair value of the asset, is recognized. An impairment loss could have a material adverse impact on the Company's financial condition and results of operations. The Company's evaluations during fiscal year 2010 resulted in a non-cash charge of $16.3 million related to the impairment of store assets during the second quarter. The Company's evaluations during fiscal year 2009 resulted in a non-cash charge of $1.2 million related to the impairment of store assets during the fourth quarter. In connection with the Company's multi-year restructuring and cost reduction program launched in January 2009, the Company recorded a non-cash charge of $22.9 million during the fourth quarter of fiscal year 2008 related to the impairment of store assets.
Goodwill and Other Intangible Assets. ASC Topic 350, "IntangiblesGoodwill and Other," prohibits the amortization of goodwill and intangible assets with indefinite lives. The Company's intangible assets relate to the New York & Company trademarks, which were initially valued at $14.8 million. The trademarks were initially valued using the "relief from royalty method" and were determined to have indefinite lives by an independent appraiser.
The Company tests for impairment of goodwill and other intangible assets at least annually in the fourth quarter, or more frequently if events or circumstances indicate that the asset may be impaired. When applicable, goodwill impairment is determined in accordance with ASC 350. The impairment test for other intangible assets not subject to amortization is determined in accordance with ASC 350 and consists of a comparison of the fair value of the intangible asset with its carrying value. The Company estimates the fair value of intangible assets not subject to amortization, specifically trademarks, based on an income approach using the "relief from royalty method." This method is based on the theory that the owner of the trademark is relieved of paying a royalty or license fee for the use of the
41
trademark. This approach is dependent on a number of factors, including estimates of future growth and trends, royalty rates in the category of intellectual property, discount rates and other variables. The "relief from royalty method" involves two steps: (i) estimation of reasonable royalty rates for the trademarks and (ii) the application of these royalty rates to a net sales stream and discounting the resulting cash flows to determine a value. The calculated cost savings ("relief from royalty" payment) associated with the trademarks is determined by multiplying the selected royalty rate by the forecasted net sales stream. The cash flows are then discounted to present values using the selected discount rate and compared to the carrying value of the asset. The Company bases its fair value estimates on assumptions it believes to be reasonable, but which are unpredictable and inherently uncertain. Actual future results may differ from those estimates. If the carrying value of the intangible asset exceeds its fair value, an impairment loss is recognized in an amount equal to that excess.
The Company's fiscal year 2010, fiscal year 2009 and fiscal year 2008 impairment tests resulted in a fair value that significantly exceeded the carrying amount of the Company's trademarks. The Company performed a sensitivity analysis on the key assumptions used in the trademark impairment analysis and has determined that a significant, negative change in the assumptions would not impact the Company's conclusion that no impairment was required.
The calculation of estimated fair values used in the evaluation of goodwill and other intangible assets requires estimates of future cash flows, growth rates, discount rates and other variables, that are based on historical experience, knowledge, and market data. If actual experience differs materially from management's estimates or if changes in strategic direction occur, an impairment charge may be required. Management's estimates may be affected by factors such as those outlined in "Item 1A. Risk Factors." An impairment loss could have a material adverse impact on the Company's results of operations.
Income Taxes. Income taxes are calculated in accordance with ASC Topic 740, "Income Taxes" ("ASC 740"), which requires the use of the liability method. Deferred tax assets and liabilities are recognized based on the difference between the financial statement carrying amounts of assets and liabilities and their respective tax bases. Inherent in the measurement of deferred balances are certain judgments and interpretations of enacted tax laws and published guidance with respect to applicability to the Company's operations. A valuation allowance is established against deferred tax assets when it is more likely than not that some portion or all of the deferred tax assets will not be realized. The provisions in ASC 740 related to accounting for uncertain tax positions prescribe a comprehensive model of how a company should recognize, measure, present and disclose in its financial statements uncertain tax positions that the company has taken or expects to take on a tax return. In accordance with these provisions, the Company recognizes a tax benefit when a tax position is more-likely-than-not to be sustained upon examination, based solely on its technical merits. The Company measures the recognized tax benefit as the largest amount of tax benefit that has greater than a 50% likelihood of being realized upon the ultimate settlement with a taxing authority. The Company reverses a previously recognized tax benefit if it determines that the tax position no longer meets the more-likely-than-not threshold of being sustained. The Company accrues interest and penalties related to unrecognized tax benefits in income tax expense.
During the second quarter of fiscal year 2010, the Company concluded that a full valuation allowance against the Company's deferred tax assets was necessary in order to reflect the Company's assessment of its ability to realize the benefits of those deferred tax assets. The Company will continue to maintain a valuation allowance against its deferred tax assets until the Company believes it is more likely than not that these assets will be realized in the future. As of January 29, 2011, the Company reported a $40.0 million valuation allowance against its deferred tax assets. For further information related to deferred tax assets and the related valuation allowance, please refer to Note 14, "Income Taxes," in the Notes to Consolidated Financial Statements appearing elsewhere in this Annual Report on Form 10-K.
42
Adoption of New Accounting Standards
In January 2010, the FASB issued ASU No. 2010-06, "Improving Disclosures about Fair Value Measurements" ("ASU 2010-06"), which amends ASC 820 by providing new disclosures and clarifying existing disclosures. ASU 2010-06 requires reporting entities to disclose separately the amounts of significant transfers in and out of Level 1 and Level 2 fair value measurements and describe the reasons for the transfers. In addition, ASU 2010-06 requires the presentation of separate information regarding purchases, sales, issuances, and settlements for Level 3 fair value measurements. ASU 2010-06 also clarifies the existing disclosures about the level of disaggregation to require fair value measurement disclosures for each class of assets and liabilities and clarifies that a description of inputs and valuation techniques used to measure fair value is required for both recurring and nonrecurring fair value measurements classified as Level 2 or Level 3. The new disclosures and clarifications of existing disclosures are effective for interim and annual reporting periods beginning after December 15, 2009, except for disclosures about purchases, sales, issuances and settlements in the roll forward of activity in Level 3 fair value measurements, which are effective for fiscal years beginning after December 15, 2010, and for interim periods within those fiscal years. Except for the detailed Level 3 roll forward disclosures, the guidance in ASU 2010-06 was adopted by the Company on January 31, 2010 with no material impact on its financial position and results of operations. The Company does not anticipate that the adoption of the remaining provisions of ASU 2010-06 regarding detailed Level 3 roll forward disclosures will have a material impact on its financial position or results of operations.
Item 7A. Quantitative and Qualitative Disclosures About Market Risk
Interest Rates. The Company's market risks relate primarily to changes in interest rates. The Company's credit facilities carry floating interest rates that are tied to the Eurodollar rate and the Prime rate and therefore, the consolidated statements of operations and the consolidated statements of cash flows will be exposed to changes in interest rates. A 1.0% interest rate increase would increase interest expenses by approximately $0.1 million annually. The Company historically has not engaged in interest rate hedging activities.
Currency Exchange Rates. The Company historically has not been exposed to currency exchange rate risks with respect to inventory purchases as such expenditures have been, and continue to be, denominated in U.S. Dollars. The Company purchases some of its inventory from vendors in China, for which the Company pays U.S. Dollars. Since July 2005, China has been slowly increasing the value of the Chinese Yuan, which is now linked to a basket of world-currencies. If the exchange rate of the Chinese Yuan to the U.S. Dollar continues to increase, the Company may experience fluctuations in the cost of inventory purchased from China and the Company would adjust its supply chain accordingly.
Item 8. Financial Statements and Supplementary Data
The financial statements and schedule included in Part IV, "Item 15. Exhibits and Financial Statement Schedules" of this Annual Report on Form 10-K are incorporated herein by reference.
Item 9. Changes in and Disagreements with Accountants on Accounting and Financial Disclosure
None.
Item 9A. Controls and Procedures
The Company carried out an evaluation, as of January 29, 2011, under the supervision and with the participation of the Company's management, including the Company's Principal Executive Officer and Principal Financial Officer, of the effectiveness of the design and operation of the Company's
43
disclosure controls and procedures pursuant to Rule 13a-15(e) and 15d-15(e) of the Securities Exchange Act of 1934, as amended. Based upon that evaluation, the Principal Executive Officer and Principal Financial Officer concluded that the Company's disclosure controls and procedures are effective in ensuring that all information required to be filed in this Annual Report on Form 10-K was (i) recorded, processed, summarized and reported within the time period specified in the Securities and Exchange Commission's rules and forms (ii) and that the disclosure controls and procedures include, without limitation, controls and procedures designed to ensure that information required to be disclosed by the Company in the reports that the Company files or submits under the Exchange Act is accumulated and communicated to the Company's management, including its Principal Executive and Principal Financial Officers, as appropriate to allow timely decisions regarding required disclosure.
The Company's management is responsible for establishing and maintaining adequate internal control over financial reporting as defined in Rule 13a-15(f) and 15d-15(f) under the Securities Exchange Act of 1934, as amended. The Company's internal control over financial reporting is a process designed to provide reasonable assurance to the Company's management and Board of Directors regarding the reliability of financial reporting and the preparation and fair presentation of published financial statements in accordance with accounting principles generally accepted in the United States.
Because of its inherent limitations, internal control over financial reporting may not prevent or detect misstatements. Therefore, even those systems determined to be effective can provide only reasonable assurance with respect to financial statement preparation and presentation. Also, projections of any evaluation of the effectiveness to future periods are subject to the risk that controls may become inadequate because of changes in conditions, or that the degree of compliance with the policies or procedures may deteriorate.
Management assessed the effectiveness of the Company's internal control over financial reporting as of January 29, 2011. In making this assessment, management used the criteria established in the Internal ControlIntegrated Framework report issued by the Committee of Sponsoring Organizations of the Treadway Commission (the "COSO criteria").
Based upon management's assessment and the COSO criteria, management believes that the Company maintained effective internal control over financial reporting as of January 29, 2011.
The Company's independent auditors, Ernst & Young LLP, a registered public accounting firm, have audited and reported on the consolidated financial statements of the Company and the effectiveness of the Company's internal control over financial reporting. The reports of the independent auditors appear on page 50 herein and expressed unqualified opinions on the consolidated financial statements and the effectiveness of the Company's internal control over financial reporting.
There has been no change in the Company's internal control over financial reporting identified in connection with the evaluation required by paragraph (d) of Exchange Act Rule 13a-15 or 15d-15 that occurred during the Company's last fiscal quarter (the Company's fourth fiscal quarter in the case of an annual report) that has materially affected, or is reasonably likely to materially affect, the Company's internal control over financial reporting.
None.
44
Item 10. Directors, Executive Officers and Corporate Governance
The information required by this Item is incorporated herein by reference from the Company's Proxy Statement for the Annual Meeting of Stockholders to be held June 22, 2011.
Item 11. Executive Compensation
The information required by this Item is incorporated herein by reference from the Company's Proxy Statement for the Annual Meeting of Stockholders to be held June 22, 2011.
Item 12. Security Ownership of Certain Beneficial Owners and Management and Related Stockholder Matters
The information required by this Item is incorporated herein by reference from the Company's Proxy Statement for the Annual Meeting of Stockholders to be held June 22, 2011.
Item 13. Certain Relationships and Related Transactions, and Director Independence
The information required by this Item is incorporated herein by reference from the Company's Proxy Statement for the Annual Meeting of Stockholders to be held June 22, 2011.
Item 14. Principal Accountant Fees and Services
The information required by this Item is incorporated herein by reference from the Company's Proxy Statement for the Annual Meeting of Stockholders to be held June 22, 2011.
45
Item 15. Exhibits and Financial Statement Schedules
Fiscal Year
|
Reserve
Description |
Balance at
beginning of period |
Additions
Charged to Operations |
Deductions |
Balance at
end of period |
||||||||||
---|---|---|---|---|---|---|---|---|---|---|---|---|---|---|---|
|
|
(Amounts in thousands)
|
|||||||||||||
2008 |
Sales Return Reserve | $ | 2,017 | $ | 40,379 | $ | 40,717 | $ | 1,679 | ||||||
2009 |
Sales Return Reserve | $ | 1,679 | $ | 34,634 | $ | 34,589 | $ | 1,724 | ||||||
2010 |
Sales Return Reserve | $ | 1,724 | $ | 30,725 | $ | 30,783 | $ | 1,666 |
The exhibits listed in the accompanying Exhibit Index are filed or incorporated by reference as part of this Form 10-K.
46
Pursuant to the requirements of Section 13 or 15(d) of the Securities Exchange Act of 1934, as amended, the registrant has duly caused this report to be signed on its behalf by the undersigned, thereunto duly authorized, on April 11, 2011.
NEW YORK & COMPANY, INC.
(REGISTRANT) |
||
|
|
/s/ SHEAMUS TOAL Sheamus Toal Executive Vice President and Chief Financial Officer (Principal financial officer and Principal accounting officer) |
Pursuant to the requirements of the Securities Exchange Act of 1934, as amended, this report has been signed below by the following persons on behalf of the registrant and in the capacities indicated.
Name
|
Title
|
Date
|
||
---|---|---|---|---|
|
|
|
|
|
/s/ GREGORY SCOTT
Gregory Scott |
Chief Executive Officer and Director
(Principal executive officer) |
April 11, 2011 | ||
/s/ SHEAMUS TOAL Sheamus Toal |
|
Executive Vice President and Chief Financial Officer (Principal financial officer and Principal accounting officer) |
|
April 11, 2011 |
/s/ BODIL M. ARLANDER Bodil M. Arlander |
|
Director |
|
April 11, 2011 |
/s/ PHILIP M. CARPENTER III Philip M. Carpenter III |
|
Director |
|
April 11, 2011 |
/s/ DAVID H. EDWAB David H. Edwab |
|
Director |
|
April 11, 2011 |
/s/ JOHN D. HOWARD John D. Howard |
|
Director |
|
April 11, 2011 |
47
Name
|
Title
|
Date
|
||
---|---|---|---|---|
|
|
|
|
|
/s/ LOUIS LIPSCHITZ
Louis Lipschitz |
Director | April 11, 2011 | ||
/s/ EDWARD W. MONEYPENNY Edward W. Moneypenny |
|
Director |
|
April 11, 2011 |
/s/ GRACE NICHOLS Grace Nichols |
|
Director and Chair of the Board |
|
April 11, 2011 |
/s/ RICHARD L. PERKAL Richard L. Perkal |
|
Director |
|
April 11, 2011 |
/s/ ARTHUR E. REINER Arthur E. Reiner |
|
Director |
|
April 11, 2011 |
48
New York & Company, Inc. and Subsidiaries
Consolidated Financial Statements
Index to Financial Statements
49
REPORT OF INDEPENDENT REGISTERED PUBLIC ACCOUNTING FIRM
To the Board of Directors and Shareholders of New York & Company, Inc. and subsidiaries
We have audited New York & Company, Inc. and subsidiaries' internal control over financial reporting as of January 29, 2011, based on criteria established in Internal ControlIntegrated Framework issued by the Committee of Sponsoring Organizations of the Treadway Commission (the COSO criteria). New York & Company, Inc. and subsidiaries' management is responsible for maintaining effective internal control over financial reporting, and for its assessment of the effectiveness of internal control over financial reporting included in the accompanying Report of Management on Internal Control over Financial Reporting. Our responsibility is to express an opinion on the company's internal control over financial reporting based on our audit.
We conducted our audit in accordance with the standards of the Public Company Accounting Oversight Board (United States). Those standards require that we plan and perform the audit to obtain reasonable assurance about whether effective internal control over financial reporting was maintained in all material respects. Our audit included obtaining an understanding of internal control over financial reporting, assessing the risk that a material weakness exists, testing and evaluating the design and operating effectiveness of internal control based on the assessed risk, and performing such other procedures as we considered necessary in the circumstances. We believe that our audit provides a reasonable basis for our opinion.
A company's internal control over financial reporting is a process designed to provide reasonable assurance regarding the reliability of financial reporting and the preparation of financial statements for external purposes in accordance with generally accepted accounting principles. A company's internal control over financial reporting includes those policies and procedures that (1) pertain to the maintenance of records that, in reasonable detail, accurately and fairly reflect the transactions and dispositions of the assets of the company; (2) provide reasonable assurance that transactions are recorded as necessary to permit preparation of financial statements in accordance with generally accepted accounting principles, and that receipts and expenditures of the company are being made only in accordance with authorizations of management and directors of the company; and (3) provide reasonable assurance regarding prevention or timely detection of unauthorized acquisition, use, or disposition of the company's assets that could have a material effect on the financial statements.
Because of its inherent limitations, internal control over financial reporting may not prevent or detect misstatements. Also, projections of any evaluation of effectiveness to future periods are subject to the risk that controls may become inadequate because of changes in conditions, or that the degree of compliance with the policies or procedures may deteriorate.
In our opinion, New York & Company, Inc. and subsidiaries maintained, in all material respects, effective internal control over financial reporting as of January 29, 2011, based on the COSO criteria.
We also have audited, in accordance with the standards of the Public Company Accounting Oversight Board (United States), the consolidated balance sheets of New York & Company, Inc. and subsidiaries as of January 29, 2011 and January 30, 2010, and the related consolidated statements of operations, changes in stockholders' equity and cash flows for each of the three years in the period ended January 29, 2011 and our report dated April 11, 2011 expressed an unqualified opinion thereon.
|
/s/ ERNST & YOUNG LLP |
New
York, New York
April 11, 2011
50
REPORT OF INDEPENDENT REGISTERED PUBLIC ACCOUNTING FIRM
To the Board of Directors and Shareholders of New York & Company, Inc. and subsidiaries
We have audited the accompanying consolidated balance sheets of New York & Company, Inc. and subsidiaries (the "Company") as of January 29, 2011 and January 30, 2010, and the related consolidated statements of operations, stockholders' equity, and cash flows for each of the three years in the period ended January 29, 2011. Our audits also included the financial statement schedule listed in the index at Item 15(a). These financial statements and schedule are the responsibility of the Company's management. Our responsibility is to express an opinion on these financial statements and schedule based on our audits.
We conducted our audits in accordance with the standards of the Public Company Accounting Oversight Board (United States). Those standards require that we plan and perform the audit to obtain reasonable assurance about whether the financial statements are free of material misstatement. An audit includes examining, on a test basis, evidence supporting the amounts and disclosures in the financial statements. An audit also includes assessing the accounting principles used and significant estimates made by management, as well as evaluating the overall financial statement presentation. We believe that our audits provide a reasonable basis for our opinion.
In our opinion, the financial statements referred to above present fairly, in all material respects, the consolidated financial position of New York & Company, Inc. and subsidiaries at January 29, 2011 and January 30, 2010, and the consolidated results of their operations and their cash flows for each of the three years in the period ended January 29, 2011, in conformity with U.S. generally accepted accounting principles. Also, in our opinion, the related financial statement schedule, when considered in relation to the basic financial statements taken as a whole, present fairly in all material respects the information set forth therein.
We also have audited, in accordance with the standards of the Public Company Accounting Oversight Board (United States), New York & Company, Inc. and subsidiaries' internal control over financial reporting as of January 29, 2011, based on criteria established in Internal ControlIntegrated Framework issued by the Committee of Sponsoring Organizations of the Treadway Commission and our report dated April 11, 2011 expressed an unqualified opinion thereon.
|
/s/ ERNST & YOUNG LLP |
New
York, New York
April 11, 2011
51
New York & Company, Inc. and Subsidiaries
Consolidated Statements of Operations
(Amounts in thousands, except per share amounts)
|
Fiscal year
ended January 29, 2011 (52-weeks) |
Fiscal year
ended January 30, 2010 (52-weeks) |
Fiscal year
ended January 31, 2009 (52-weeks) |
||||||||
---|---|---|---|---|---|---|---|---|---|---|---|
Net sales |
$ | 1,021,699 | $ | 1,006,675 | $ | 1,139,853 | |||||
Cost of goods sold, buying and occupancy costs |
788,378 | 754,086 | 843,478 | ||||||||
Gross profit |
233,321 | 252,589 | 296,375 | ||||||||
Selling, general and administrative expenses |
298,419 | 274,139 | 306,101 | ||||||||
Restructuring charges |
1,281 | 2,376 | 24,529 | ||||||||
Operating loss |
(66,379 | ) | (23,926 | ) | (34,255 | ) | |||||
Interest expense, net of interest income of $51, $128 and $1,026, respectively |
697 | 755 | 726 | ||||||||
Loss from continuing operations before income taxes |
(67,076 | ) | (24,681 | ) | (34,981 | ) | |||||
Provision (benefit) for income taxes |
9,466 | (11,197 | ) | (14,683 | ) | ||||||
Loss from continuing operations |
(76,542 | ) | (13,484 | ) | (20,298 | ) | |||||
Income from discontinued operations, net of taxes |
81 | 3 | 491 | ||||||||
Net loss |
$ | (76,461 | ) | $ | (13,481 | ) | $ | (19,807 | ) | ||
Basic (loss) earnings per share: |
|||||||||||
Basic loss per share from continuing operations |
$ | (1.29 | ) | $ | (0.23 | ) | $ | (0.34 | ) | ||
Basic earnings per share from discontinued operations |
| | 0.01 | ||||||||
Basic loss per share |
$ | (1.29 | ) | $ | (0.23 | ) | $ | (0.33 | ) | ||
Diluted (loss) earnings per share: |
|||||||||||
Diluted loss per share from continuing operations |
$ | (1.29 | ) | $ | (0.23 | ) | $ | (0.34 | ) | ||
Diluted earnings per share from discontinued operations |
| | 0.01 | ||||||||
Diluted loss per share |
$ | (1.29 | ) | $ | (0.23 | ) | $ | (0.33 | ) | ||
Weighted average shares outstanding: |
|||||||||||
Basic shares of common stock |
59,443 | 59,457 | 59,650 | ||||||||
Diluted shares of common stock |
59,443 | 59,457 | 59,650 | ||||||||
See accompanying notes.
52
New York & Company, Inc. and Subsidiaries
Consolidated Balance Sheets
(Amounts in thousands, except per share amounts)
|
January 29,
2011 |
January 30,
2010 |
||||||
---|---|---|---|---|---|---|---|---|
Assets |
||||||||
Current assets: |
||||||||
Cash and cash equivalents |
$ | 77,392 | $ | 87,296 | ||||
Accounts receivable |
9,756 | 9,447 | ||||||
Income taxes receivable |
527 | 3,000 | ||||||
Inventories, net |
82,062 | 87,059 | ||||||
Prepaid expenses |
20,707 | 22,608 | ||||||
Other current assets |
1,202 | 1,417 | ||||||
Current assets of discontinued operations |
54 | 108 | ||||||
Total current assets |
191,700 | 210,935 | ||||||
Property and equipment, net |
144,561 | 187,079 | ||||||
Intangible assets |
14,879 | 14,879 | ||||||
Deferred income taxes |
3,362 | 22,637 | ||||||
Other assets |
708 | 997 | ||||||
Total assets |
$ | 355,210 | $ | 436,527 | ||||
Liabilities and stockholders' equity |
||||||||
Current liabilities: |
||||||||
Current portionlong-term debt |
$ | 7,500 | $ | 6,000 | ||||
Accounts payable |
73,611 | 72,019 | ||||||
Accrued expenses |
64,072 | 58,932 | ||||||
Income taxes payable |
260 | 991 | ||||||
Deferred income taxes |
3,362 | 4,774 | ||||||
Current liabilities of discontinued operations |
130 | 265 | ||||||
Total current liabilities |
148,935 | 142,981 | ||||||
Long-term debt, net of current portion |
| 7,500 | ||||||
Deferred rent |
66,862 | 72,020 | ||||||
Other liabilities |
5,576 | 5,862 | ||||||
Total liabilities |
221,373 | 228,363 | ||||||
Commitments and contingencies |
||||||||
Stockholders' equity: |
||||||||
Common stock, voting, par value $0.001; 300,000 shares authorized; 60,197 and 59,396 shares issued and outstanding at January 29, 2011 and January 30, 2010, respectively |
60 | 60 | ||||||
Additional paid-in capital |
157,021 | 154,495 | ||||||
Retained earnings (deficit) |
(17,784 | ) | 58,677 | |||||
Accumulated other comprehensive loss |
(2,063 | ) | (1,671 | ) | ||||
Treasury stock at cost; 1,000 shares at January 29, 2011 and January 30, 2010 |
(3,397 | ) | (3,397 | ) | ||||
Total stockholders' equity |
133,837 | 208,164 | ||||||
Total liabilities and stockholders' equity |
$ | 355,210 | $ | 436,527 | ||||
See accompanying notes.
53
New York & Company, Inc. and Subsidiaries
Consolidated Statements of Cash Flows
(Amounts in thousands)
|
Fiscal year
ended January 29, 2011 (52-weeks) |
Fiscal year
ended January 30, 2010 (52-weeks) |
Fiscal year
ended January 31, 2009 (52-weeks) |
|||||||||
---|---|---|---|---|---|---|---|---|---|---|---|---|
Operating activities |
||||||||||||
Net loss |
$ | (76,461 | ) | $ | (13,481 | ) | $ | (19,807 | ) | |||
Less: Income from discontinued operations, net of taxes |
81 | 3 | 491 | |||||||||
Loss from continuing operations |
(76,542 | ) | (13,484 | ) | (20,298 | ) | ||||||
Adjustments to reconcile net loss to net cash provided by operating activities of continuing operations: |
||||||||||||
Depreciation and amortization |
41,090 | 42,368 | 43,939 | |||||||||
Loss from impairment charges |
16,283 | 1,218 | 22,854 | |||||||||
Amortization of deferred financing costs |
216 | 216 | 232 | |||||||||
Share-based compensation expense |
2,474 | 1,768 | 1,575 | |||||||||
Deferred income taxes |
17,863 | (5,242 | ) | (19,361 | ) | |||||||
Changes in operating assets and liabilities: |
||||||||||||
Accounts receivable |
(309 | ) | 2,546 | 6,530 | ||||||||
Income taxes receivable |
2,473 | 7,202 | 1,528 | |||||||||
Inventories, net |
4,997 | 17,802 | (938 | ) | ||||||||
Prepaid expenses |
1,901 | 2,002 | (2,619 | ) | ||||||||
Accounts payable |
1,592 | 3,588 | (8,746 | ) | ||||||||
Accrued expenses |
5,140 | (2,189 | ) | 7,503 | ||||||||
Income taxes payable |
(731 | ) | 991 | | ||||||||
Deferred rent |
(5,158 | ) | (3,828 | ) | 3,311 | |||||||
Other assets and liabilities |
(486 | ) | 348 | (1,047 | ) | |||||||
Net cash provided by operating activities of continuing operations |
10,803 | 55,306 | 34,463 | |||||||||
Investing activities |
||||||||||||
Capital expenditures |
(15,695 | ) | (13,285 | ) | (44,576 | ) | ||||||
Acquisition of trademarks |
| | (36 | ) | ||||||||
Proceeds from sale of fixed assets |
936 | | 260 | |||||||||
Net cash used in investing activities of continuing operations |
(14,759 | ) | (13,285 | ) | (44,352 | ) | ||||||
Financing activities |
||||||||||||
Proceeds from borrowings under revolving credit facility |
21,000 | | 25,000 | |||||||||
Repayment of borrowings under revolving credit facility |
(21,000 | ) | | (25,000 | ) | |||||||
Repayment of debt |
(6,000 | ) | (6,000 | ) | (6,000 | ) | ||||||
Repurchase of treasury stock |
| (3,417 | ) | | ||||||||
Payment of financing costs |
| | (183 | ) | ||||||||
Proceeds from exercise of stock options |
95 | 86 | 167 | |||||||||
Excess tax benefit (reduction) from exercise of stock options |
(43 | ) | 331 | 2,381 | ||||||||
Net cash used in financing activities of continuing operations |
(5,948 | ) | (9,000 | ) | (3,635 | ) | ||||||
Cash flows from discontinued operations |
||||||||||||
Operating cash flows |
| (6 | ) | (6,152 | ) | |||||||
Investing cash flows |
| | | |||||||||
Financing cash flows |
| | | |||||||||
Net cash used in discontinued operations |
| (6 | ) | (6,152 | ) | |||||||
Net (decrease) increase in cash and cash equivalents |
(9,904 | ) | 33,015 | (19,676 | ) | |||||||
Cash and cash equivalents at beginning of period (including cash at discontinued operations of $0, $1 and $223, respectively) |
87,296 | 54,281 | 73,957 | |||||||||
Cash and cash equivalents at end of period (including cash at discontinued operations of $0, $0 and $1, respectively) |
$ | 77,392 | $ | 87,296 | $ | 54,281 | ||||||
Cash paid during the period for interest |
$ | 529 | $ | 675 | $ | 1,608 | ||||||
Cash (refunds) paid during the period for taxes |
$ | (9,774 | ) | $ | (16,057 | ) | $ | 3,555 | ||||
See accompanying notes.
54
New York & Company, Inc. and Subsidiaries
Consolidated Statements of Stockholders' Equity
|
Common Stock | Treasury Stock |
|
|
Accumulated
Other Comprehensive Loss |
|
|||||||||||||||||||
---|---|---|---|---|---|---|---|---|---|---|---|---|---|---|---|---|---|---|---|---|---|---|---|---|---|
|
Additional
Paid-in Capital |
Retained
Earnings (Deficit) |
|
||||||||||||||||||||||
(Amounts in thousands)
|
Shares | Amount | Shares | Amount | Total | ||||||||||||||||||||
Balance at February 2, 2008 |
59,286 | $ | 59 | | $ | | $ | 148,208 | $ | 91,974 | $ | (280 | ) | $ | 239,961 | ||||||||||
Stock options exercised |
820 | 1 | | | 166 | | | 167 | |||||||||||||||||
Restricted stock issued |
410 | | | | | | | | |||||||||||||||||
Restricted stock forfeits |
(8 | ) | | | | | | | | ||||||||||||||||
Excess tax benefit from exercise of stock options |
| | | | 2,381 | | | 2,381 | |||||||||||||||||
Share-based compensation expense |
| | | | 1,575 | | | 1,575 | |||||||||||||||||
Cumulative effect of adoption of ASC Topic 715, as it relates to measurement date provisions |
| | | | | (9 | ) | | (9 | ) | |||||||||||||||
Net loss |
| | | | | (19,807 | ) | | (19,807 | ) | |||||||||||||||
Minimum pension liability adjustment, net of tax |
| | | | | | (1,772 | ) | (1,772 | ) | |||||||||||||||
Comprehensive loss, net of tax |
| | | | | | | (21,579 | ) | ||||||||||||||||
Balance at January 31, 2009 |
60,508 | 60 | | | 152,330 | 72,158 | (2,052 | ) | 222,496 | ||||||||||||||||
Purchase of treasury stock |
(1,000 | ) | | 1,000 | (3,397 | ) | (20 | ) | | | (3,417 | ) | |||||||||||||
Stock options exercised |
220 | | | | 86 | | | 86 | |||||||||||||||||
Restricted stock issued |
49 | | | | | | | | |||||||||||||||||
Restricted stock forfeits |
(381 | ) | | | | | | | | ||||||||||||||||
Excess tax benefit from exercise of stock options |
| | | | 331 | | | 331 | |||||||||||||||||
Share-based compensation expense |
| | | | 1,768 | | | 1,768 | |||||||||||||||||
Net loss |
| | | | | (13,481 | ) | | (13,481 | ) | |||||||||||||||
Minimum pension liability adjustment, net of tax |
| | | | | | 381 | 381 | |||||||||||||||||
Comprehensive loss, net of tax |
| | | | | | | (13,100 | ) | ||||||||||||||||
Balance at January 30, 2010 |
59,396 | 60 | 1,000 | (3,397 | ) | 154,495 | 58,677 | (1,671 | ) | 208,164 | |||||||||||||||
Stock options exercised |
185 | | | | 95 | | | 95 | |||||||||||||||||
Restricted stock issued |
904 | | | | | | | | |||||||||||||||||
Restricted stock forfeits |
(288 | ) | | | | | | | | ||||||||||||||||
Reduction of excess tax benefit from exercise of stock options |
| | | | (43 | ) | | | (43 | ) | |||||||||||||||
Share-based compensation expense |
| | | | 2,474 | | | 2,474 | |||||||||||||||||
Net loss |
| | | | | (76,461 | ) | | (76,461 | ) | |||||||||||||||
Minimum pension liability adjustment, net of tax |
| | | | | | (392 | ) | (392 | ) | |||||||||||||||
Comprehensive loss, net of tax |
| | | | | | | (76,853 | ) | ||||||||||||||||
Balance at January 29, 2011 |
60,197 | $ | 60 | 1,000 | $ | (3,397 | ) | $ | 157,021 | $ | (17,784 | ) | $ | (2,063 | ) | $ | 133,837 | ||||||||
See accompanying notes.
55
New York & Company, Inc.
Notes to Consolidated Financial Statements
January 29, 2011
1. Organization and Basis of Presentation of Financial Statements
Formation of New York & Company, Inc.
New York & Company, Inc. (together with its subsidiaries, collectively the "Company") is a leading specialty retailer of women's fashion apparel and accessories offering the latest NY Style. The Company's proprietary branded New York & Company® merchandise is sold exclusively through its national network of retail stores and E-commerce store at www.nyandcompany.com . The target customers for the Company's merchandise are fashion-conscious, value-sensitive women between the ages of 25 and 45. As of January 29, 2011, the Company operated 555 stores in 43 states.
The Company was founded in 1918 and operated as a subsidiary of Limited Brands, Inc. ("Limited Brands") from 1985 to 2002. New York & Company, Inc., formerly known as NY & Co. Group, Inc., was incorporated in the state of Delaware on November 8, 2002. It was formed to acquire all of the outstanding stock of Lerner New York Holding, Inc. ("Lerner Holding") and its subsidiaries from Limited Brands, an unrelated company. On November 27, 2002, Irving Place Capital, formerly known as Bear Stearns Merchant Banking, completed the acquisition of Lerner Holding and its subsidiaries from Limited Brands. On October 6, 2004, the Company completed an initial public offering and listed its common stock on the New York Stock Exchange.
Basis of Presentation and Principles of Consolidation
The Company's fiscal year is a 52 or 53 week year that ends on the Saturday closest to January 31. The accompanying consolidated financial statements include the accounts of the Company for the 52-weeks ended January 29, 2011 ("fiscal year 2010"), the 52-weeks ended January 30, 2010 ("fiscal year 2009"), and the 52-weeks ended January 31, 2009 ("fiscal year 2008"). Lerner Holding's wholly owned subsidiaries consist of Lerner New York, Inc. (and its wholly owned subsidiaries, which includes Lerner New York Outlet, Inc.), Lernco, Inc., and Nevada Receivable Factoring, Inc. On a stand alone basis, without the consolidation of Lerner Holding and its subsidiaries, New York & Company, Inc. has no significant independent assets or operations. All significant intercompany balances and transactions have been eliminated in consolidation.
2. Summary of Significant Accounting Policies
Reclassifications
Certain amounts in prior periods have been reclassified to conform to the current period presentation.
Revenue Recognition
Revenue from the sale of merchandise at the Company's stores is recognized at the time the customer takes possession of the related merchandise and the purchases are paid for, primarily with either cash or credit card. Revenue from the sale of merchandise at the Company's E-commerce store is recognized when the merchandise is shipped to the customer and the purchases are paid for. Revenue for gift certificate and gift card sales and store credits is recognized at redemption. Prior to their redemption, the gift certificates, gift cards and store credits are recorded as a liability. Discounts and promotional coupons offered to customers are accounted for as a reduction of sales revenue at the time the coupons are tendered by the customer. The Company presents sales taxes collected from customers on a net basis (excluded from revenues).
The Company issues gift cards which do not contain provisions for expiration or inactivity fees. The portion of the dollar value of gift cards that ultimately is not used by customers to make purchases
56
New York & Company, Inc.
Notes to Consolidated Financial Statements (Continued)
January 29, 2011
2. Summary of Significant Accounting Policies (Continued)
is known as breakage. The Company recognizes gift card breakage as revenue as gift cards are redeemed over a three-year redemption period based on its historical gift card breakage rate. The Company considers the likelihood of redemption remote beyond a three-year redemption period, at which point any unrecognized gift card breakage is recognized as revenue. The Company determined the redemption period and the gift card breakage rate based on its historical redemption patterns.
Reserve for Returns
The Company reserves for sales returns through reductions in sales and gross margin based upon historical merchandise returns experience and current sales levels.
Cash and Cash Equivalents
Cash and cash equivalents include all cash in banks, cash on-hand, and all short-term investments with an original maturity of three months or less when purchased.
Inventories
Inventories are valued at the lower of average cost or market, on a weighted average cost basis, using the retail method.
Deferred Rent
The Company recognizes fixed minimum rent expense on non-cancelable leases on a straight-line basis over the term of each individual lease including the build-out period. The difference between recognized rental expense and amounts payable under the lease is recorded as a deferred lease liability. In addition, the Company recognizes landlord allowances as a deferred lease liability, which is amortized over the term of the related lease as a reduction to rent expense. For contingent rent expense based upon sales, the Company estimates annual contingent rent expense and recognizes a portion each month based on actual sales. At January 29, 2011 and January 30, 2010, the deferred lease liability was $66.9 million and $72.0 million, respectively, and is reported as deferred rent on the consolidated balance sheets.
Property and Equipment
Property and equipment are recorded at cost. Expenditures for new properties and improvements are capitalized, while the cost of repair and maintenance is charged to expense. Depreciation of property and equipment is provided on a straight-line basis over the estimated useful lives of the assets.
The estimated useful lives of property and equipment, for financial statement purposes, are as follows:
Depreciable Fixed Assets
|
Useful Life | |
---|---|---|
Land |
| |
Store fixtures and equipment |
3 - 10 years | |
Office furniture, fixtures, and equipment |
3 - 10 years | |
Software |
3 - 5 years | |
Leasehold improvements |
Lesser of the useful life or
the term of the lease |
57
New York & Company, Inc.
Notes to Consolidated Financial Statements (Continued)
January 29, 2011
2. Summary of Significant Accounting Policies (Continued)
Cost of Goods Sold, Buying and Occupancy Costs
Cost of goods sold, buying and occupancy costs is comprised of direct inventory costs for merchandise sold, distribution, payroll and related costs for the Company's design, sourcing, production, merchandising, planning and allocation personnel, and store occupancy and related costs.
Share-Based Compensation
The Company accounts for all share-based payments in accordance with Financial Accounting Standards Board ("FASB") Accounting Standards Codification ("ASC") Topic 718, "CompensationStock Compensation" ("ASC 718"). ASC 718 requires that the cost resulting from all share-based payment transactions be treated as compensation and recognized in the consolidated financial statements.
Marketing
Marketing costs, which consist primarily of direct mail and point-of-sale ("POS") advertising costs, are expensed at the time the promotion is mailed or first appears in the store. For the following periods, marketing costs reported in selling, general, and administrative expenses on the consolidated statements of operations were as follows:
Fiscal Year
|
(Amounts in thousands) | |||
---|---|---|---|---|
2010 |
$ | 27,569 | ||
2009 |
$ | 30,200 | ||
2008 |
$ | 32,217 |
At January 29, 2011 and January 30, 2010, marketing costs reported in prepaid expenses on the consolidated balance sheets amounted to $0.9 million and $2.0 million, respectively.
Pre-Opening Expenses
Costs, such as advertising and payroll costs, incurred prior to the opening of a new store are expensed as incurred.
Store Supplies
The initial inventory and subsequent shipments of supplies for new stores, including, but not limited to, hangers, signage, packaging and POS supplies, are expensed as incurred.
Deferred Financing Costs
Costs related to the issuance of debt are capitalized as other assets in the consolidated balance sheets and amortized as interest expense over the terms of the related debt. At January 29, 2011 and January 30, 2010, deferred financing costs were $0.3 million and $0.5 million, net of accumulated amortization of $1.5 million and $1.2 million, respectively.
Interest Expense
Interest expense, net of interest income, includes interest primarily related to the Company's revolving credit facility, long-term debt and amortization of deferred financing costs.
58
New York & Company, Inc.
Notes to Consolidated Financial Statements (Continued)
January 29, 2011
2. Summary of Significant Accounting Policies (Continued)
Impairment of Long-lived Assets
The Company evaluates the impairment of long-lived assets in accordance with ASC Topic 360, "Property, Plant and Equipment" ("ASC 360"). Long-lived assets are evaluated for recoverability in accordance with ASC 360 whenever events or changes in circumstances indicate that an asset may have been impaired. In evaluating an asset for recoverability, the Company estimates the future cash flows expected to result from the use of the asset and eventual disposition and market data assumptions. If the sum of the expected future undiscounted cash flows is less than the carrying amount of the asset, an impairment loss, equal to the excess of the carrying amount over the fair value of the asset, is recognized.
Intangible Assets
The Company follows ASC Topic 350, "IntangiblesGoodwill and Other" ("ASC 350"), which prohibits the amortization of goodwill and intangible assets with indefinite lives. ASC 350 requires that these assets be reviewed for impairment at least annually, or more frequently if events or circumstances indicate that the asset may be impaired. An impairment charge is recognized for the amount, if any, by which the carrying value of an intangible asset exceeds its fair value. Intangible assets with finite lives are amortized over their estimated useful lives.
Income Taxes
Income taxes are calculated in accordance with ASC Topic 740, "Income Taxes" ("ASC 740"), which requires the use of the liability method. Deferred tax assets and liabilities are recognized based on the difference between the financial statement carrying amounts of assets and liabilities and their respective tax bases. Inherent in the measurement of deferred balances are certain judgments and interpretations of enacted tax laws and published guidance with respect to applicability to the Company's operations. A valuation allowance is established against deferred tax assets when it is more likely than not that some portion or all of the deferred tax assets will not be realized. The provisions in ASC 740 related to accounting for uncertain tax positions prescribe a comprehensive model of how a company should recognize, measure, present and disclose in its financial statements uncertain tax positions that the company has taken or expects to take on a tax return. Under these provisions, the Company recognizes a tax benefit when a tax position is more-likely-than-not to be sustained upon examination, based solely on its technical merits. The Company measures the recognized tax benefit as the largest amount of tax benefit that has greater than a 50% likelihood of being realized upon the ultimate settlement with a taxing authority. The Company reverses a previously recognized tax benefit if it determines that the tax position no longer meets the more-likely-than-not threshold of being sustained. The Company accrues interest and penalties related to unrecognized tax benefits in income tax expense.
Comprehensive Income (Loss)
Comprehensive income (loss) is calculated in accordance with ASC Topic 220, "Comprehensive Income." Comprehensive income (loss) includes net income (loss) and other comprehensive income (loss). For fiscal year 2010, other comprehensive loss consisted of a minimum pension liability adjustment of $0.2 million, net of a $0.2 million tax benefit which was offset by a corresponding adjustment to the valuation allowance against deferred tax assets. For fiscal year 2009, other comprehensive income consisted of a minimum pension liability adjustment of $0.4 million, net of taxes of $0.3 million. For fiscal year 2008, other comprehensive loss consisted of a minimum pension liability
59
New York & Company, Inc.
Notes to Consolidated Financial Statements (Continued)
January 29, 2011
2. Summary of Significant Accounting Policies (Continued)
adjustment of $1.8 million, net of a $1.2 million tax benefit. Accumulated other comprehensive loss is reported separately in the consolidated statement of stockholders' equity.
Earnings (Loss) Per Share
Basic (loss) earnings per share are computed by dividing net (loss) income by the weighted average number of shares of common stock outstanding for the period. Except when the effect would be anti-dilutive at the continuing operations level, diluted (loss) earnings per share are calculated based on the weighted average number of outstanding shares of common stock plus the dilutive effect of share-based awards (stock options, stock appreciation rights, unvested restricted stock and performance awards) calculated under the treasury stock method. A reconciliation between basic and diluted earnings (loss) per share is as follows:
|
Fiscal Year
2010 |
Fiscal Year
2009 |
Fiscal Year
2008 |
||||||||
---|---|---|---|---|---|---|---|---|---|---|---|
|
(Amounts in thousands, except per
share amounts) |
||||||||||
Loss from continuing operations |
$ | (76,542 | ) | $ | (13,484 | ) | $ | (20,298 | ) | ||
Income from discontinued operations, net of taxes |
81 | 3 | 491 | ||||||||
Net loss |
$ | (76,461 | ) | $ | (13,481 | ) | $ | (19,807 | ) | ||
Basic (loss) earnings per share |
|||||||||||
Weighted average shares outstanding: |
|||||||||||
Basic shares of common stock |
59,443 | 59,457 | 59,650 | ||||||||
Basic loss per share from continuing operations |
$ | (1.29 | ) | $ | (0.23 | ) | $ | (0.34 | ) | ||
Basic earnings per share from discontinued operations |
| | 0.01 | ||||||||
Basic loss per share |
$ | (1.29 | ) | $ | (0.23 | ) | $ | (0.33 | ) | ||
Diluted (loss) earnings per share |
|||||||||||
Weighted average shares outstanding: |
|||||||||||
Basic shares of common stock |
59,443 | 59,457 | 59,650 | ||||||||
Plus impact of share-based awards |
| | | ||||||||
Diluted shares of common stock |
59,443 | 59,457 | 59,650 | ||||||||
Diluted loss per share from continuing operations |
$ | (1.29 | ) | $ | (0.23 | ) | $ | (0.34 | ) | ||
Diluted earnings per share from discontinued operations |
| | 0.01 | ||||||||
Diluted loss per share |
$ | (1.29 | ) | $ | (0.23 | ) | $ | (0.33 | ) | ||
The calculation of diluted loss per share from continuing operations for fiscal year 2010, fiscal year 2009, and fiscal year 2008 excludes 4,580,058 potential shares, 3,455,773 potential shares, and 2,613,297 potential shares, respectively, due to their antidilutive effect.
60
New York & Company, Inc.
Notes to Consolidated Financial Statements (Continued)
January 29, 2011
2. Summary of Significant Accounting Policies (Continued)
Recently Issued Accounting Pronouncements
In January 2010, the FASB issued ASU No. 2010-06, "Improving Disclosures about Fair Value Measurements" ("ASU 2010-06"), which amends ASC 820 by providing new disclosures and clarifying existing disclosures. ASU 2010-06 requires reporting entities to disclose separately the amounts of significant transfers in and out of Level 1 and Level 2 fair value measurements and describe the reasons for the transfers. In addition, ASU 2010-06 requires the presentation of separate information regarding purchases, sales, issuances, and settlements for Level 3 fair value measurements. ASU 2010-06 also clarifies the existing disclosures about the level of disaggregation to require fair value measurement disclosures for each class of assets and liabilities and clarifies that a description of inputs and valuation techniques used to measure fair value is required for both recurring and nonrecurring fair value measurements classified as Level 2 or Level 3. The new disclosures and clarifications of existing disclosures are effective for interim and annual reporting periods beginning after December 15, 2009, except for disclosures about purchases, sales, issuances and settlements in the roll forward of activity in Level 3 fair value measurements, which are effective for fiscal years beginning after December 15, 2010, and for interim periods within those fiscal years. Except for the detailed Level 3 roll forward disclosures, the guidance in ASU 2010-06 was adopted by the Company on January 31, 2010 with no material impact on its financial position and results of operations. The Company does not anticipate that the adoption of the remaining provisions of ASU 2010-06 regarding detailed Level 3 roll forward disclosures will have a material impact on its financial position or results of operations.
3. Fair Value Measurements
FASB ASC Topic 820, "Fair Value Measurements and Disclosures" ("ASC 820") establishes a common definition for fair value to be applied to United States generally accepted accounting principles ("GAAP") guidance requiring the use of fair value, establishes a framework for measuring fair value, and expands the disclosure about such fair value measurements. ASC 820 establishes a three-level fair value hierarchy that requires entities to maximize the use of observable inputs and minimize the use of unobservable inputs when measuring fair value. The three levels of inputs used to measure fair value are as follows:
Level 1: | Observable inputs such as quoted prices in active markets; | |
Level 2: |
|
Inputs, other than the quoted prices in active markets, that are observable either directly or indirectly; and |
Level 3: |
|
Unobservable inputs in which there is little or no market data and require the reporting entity to develop its own assumptions. |
The Company's financial instruments consist of cash and cash equivalents, short-term trade receivables, accounts payable, short-term borrowings, and long-term debt. The carrying values on the balance sheet for cash and cash equivalents, short-term trade receivables, accounts payable and short-term borrowings approximate their fair values due to the short-term maturities of such items. At January 29, 2011 and January 30, 2010, the carrying amount of the Company's long-term debt approximated its fair value due to the variable interest rate it carries, and as such it is classified within level 2 of the fair value hierarchy.
In accordance with the provisions of ASC 360, during the second quarter of fiscal year 2010, certain long-lived store assets held and used with a carrying value of $24.3 million were written down to their fair value of $8.0 million, resulting in a pre-tax non-cash impairment charge of $16.3 million, of
61
New York & Company, Inc.
Notes to Consolidated Financial Statements (Continued)
January 29, 2011
3. Fair Value Measurements (Continued)
which $15.2 million relates to underperforming New York & Company stores and is reported in "Selling, general and administrative expenses" and $1.1 million relates to a test accessories concept the Company exited and is reported in "Restructuring charges" on the Company's consolidated statements of operations. The Company classifies these store assets within level 3 of the fair value hierarchy. The Company evaluates long-lived assets for recoverability in accordance with ASC 360 whenever events or changes in circumstances indicate that an asset may have been impaired. In evaluating an asset for recoverability, the Company estimates the future cash flow expected to result from the use of the asset and eventual disposition and market data assumptions. If the sum of the expected future undiscounted cash flow is less than the carrying amount of the asset, an impairment loss, equal to the excess of the carrying amount over the fair value of the asset, is recognized.
4. Restructuring
On January 8, 2009, the Company announced the launch of a multi-year restructuring and cost reduction program that is expected to generate approximately $175 million in pre-tax savings over a five-year period. This program is designed to streamline the Company's organization by reducing costs and eliminating underperforming assets while enhancing efficiency and profitability.
The key components of the restructuring and cost reduction program include:
In total, the Company recorded pre-tax restructuring charges of $24.5 million during the fourth quarter of fiscal year 2008, which includes a non-cash charge of $22.9 million related to the impairment of store assets and a $1.7 million cash charge related primarily to severance and other costs necessary to implement the restructuring and cost reduction program. During fiscal year 2009, the Company recorded additional pre-tax restructuring charges totaling $2.4 million, which includes a non-cash charge of $1.2 million related to the impairment of store assets and $1.2 million of cash charges related to severance.
During fiscal year 2010, the Company exited an underperforming test accessories concept consisting of five stores. In connection with the exit of this concept, the Company recorded pre-tax restructuring charges totaling $2.1 million, which consist of non-cash charges of $1.1 million related to the impairment of store assets, $0.8 million related to the write-off of inventory and $0.2 million related primarily to lease exit and severance costs. The asset impairment charges, lease exit costs, and severance costs totaling $1.3 million are reported in "Restructuring charges" and the inventory write-off of $0.8 million is reported in "Cost of goods sold, buying and occupancy costs" on the Company's consolidated statements of operations.
As of January 30, 2010, restructuring related severance accruals of approximately $1.0 million are included in accrued expenses on the consolidated balance sheet. As of January 29, 2011, all severance liabilities related to the restructuring program had been substantially paid. Since the inception of the
62
New York & Company, Inc.
Notes to Consolidated Financial Statements (Continued)
January 29, 2011
4. Restructuring (Continued)
Company's restructuring activities in January 2009, it has paid $2.7 million in total for the severance liabilities described above.
5. Significant Risks and Uncertainties
Use of Estimates
The preparation of consolidated financial statements in conformity with accounting principles generally accepted in the United States requires the Company's management to make estimates and assumptions that affect the reported amounts of assets and liabilities at the date of the financial statements and the reported amounts of revenues and expenses during the reporting period. Actual results could differ from these estimates.
Concentration of Risk
The Company is subject to concentration of credit risk relating to cash, primarily store depository accounts, which are maintained with major financial institutions. The Company monitors the relative credit standing of these financial institutions and other entities and limits the amount of credit exposure with any one entity. The Company also monitors the creditworthiness of the entities to which it grants credit terms in the normal course of business.
The Company utilizes three major apparel vendors, which together represented approximately 73% of the Company's merchandise purchases during fiscal year 2010. The Company's largest country sources are China, Macau and Hong Kong, which represented approximately 60% of purchases in fiscal year 2010. No individual factory represented more than approximately 4% of the Company's merchandise purchases during fiscal year 2010.
Economic Uncertainty
The Company's business is impacted by general economic conditions and their effect on consumer confidence and the level of consumer spending on the merchandise the Company offers, which have deteriorated significantly and may continue to do so for the foreseeable future. The current economic conditions could negatively affect consumer purchases of the Company's merchandise and adversely impact the Company's results of operations, liquidity and continued growth. In addition, the current economic conditions could negatively impact the Company's merchandise vendors and their ability to deliver products, which may also adversely impact the Company's results of operations, liquidity and continued growth.
6. Proprietary Credit Card
The Company has a credit card processing agreement with a third party (the "administration company"), which provides the services of the Company's proprietary credit card program. The Company allows payments on this credit card to be made at its stores as a service to its customers. The administration company owns the credit card accounts, with no recourse from the Company. The Company's receivable due from the administration company at any time represents the standard processing time of approximately three days. The amount due at January 29, 2011 and January 30, 2010 was $1.2 million and $1.0 million, respectively. The Company does not have any off-balance sheet arrangements.
63
New York & Company, Inc.
Notes to Consolidated Financial Statements (Continued)
January 29, 2011
7. Goodwill and Other Intangible Assets
ASC 350 prohibits the amortization of goodwill and intangible assets with indefinite lives. The Company's intangible assets relate to the New York & Company trademarks, which were initially valued at $14.8 million. The trademarks were initially valued using the "relief from royalty method" and were determined to have indefinite lives by an independent appraiser.
The Company tests for impairment of goodwill and other intangible assets at least annually in the fourth quarter, or more frequently if events or circumstances indicate that the asset may be impaired. When applicable, goodwill impairment is determined in accordance with ASC 350. The impairment test for other intangible assets not subject to amortization is determined in accordance with ASC 350 and consists of a comparison of the fair value of the intangible asset with its carrying value. The Company estimates the fair value of intangible assets not subject to amortization, specifically trademarks, based on an income approach using the "relief from royalty method." This method is based on the theory that the owner of the trademark is relieved of paying a royalty or license fee for the use of the trademark. This approach is dependent on a number of factors, including estimates of future growth and trends, royalty rates in the category of intellectual property, discount rates and other variables. The "relief from royalty method" involves two steps: (i) estimation of reasonable royalty rates for the trademarks and (ii) the application of these royalty rates to a net sales stream and discounting the resulting cash flows to determine a value. The calculated cost savings ("relief from royalty" payment) associated with the trademarks is determined by multiplying the selected royalty rate by the forecasted net sales stream. The cash flows are then discounted to present values using the selected discount rate and compared to the carrying value of the asset. The Company bases its fair value estimates on assumptions it believes to be reasonable, but which are unpredictable and inherently uncertain. Actual future results may differ from those estimates. If the carrying value of the intangible asset exceeds its fair value, an impairment loss is recognized in an amount equal to that excess.
The Company's fiscal year 2010, fiscal year 2009 and fiscal year 2008 impairment tests resulted in a fair value that significantly exceeded the carrying amount of the Company's trademarks. The Company performed a sensitivity analysis on the key assumptions used in the trademark impairment analysis and has determined that a significant, negative change in the assumptions would not impact the Company's conclusion that no impairment was required.
8. Property and Equipment
Property and equipment at January 29, 2011 and January 30, 2010 consist of the following:
|
January 29,
2011 |
January 30,
2010 |
|||||
---|---|---|---|---|---|---|---|
|
(Amounts in thousands)
|
||||||
Land |
$ | 117 | $ | 117 | |||
Store fixtures and equipment |
163,487 | 163,278 | |||||
Office furniture, fixtures, and equipment |
15,474 | 15,706 | |||||
Leasehold improvements |
180,779 | 184,962 | |||||
Software |
30,748 | 26,153 | |||||
Construction in progress |
3,744 | 5,244 | |||||
Total |
394,349 | 395,460 | |||||
Less accumulated depreciation |
249,788 | 208,381 | |||||
Property and equipment, net |
$ | 144,561 | $ | 187,079 | |||
64
New York & Company, Inc.
Notes to Consolidated Financial Statements (Continued)
January 29, 2011
8. Property and Equipment (Continued)
Depreciation expense amounted to $41.0 million, $42.2 million and $43.8 million for fiscal year 2010, fiscal year 2009 and fiscal year 2008, respectively. In addition, during the second quarter of fiscal year 2010, the Company recorded a non-cash impairment charge of $16.3 million, of which $15.2 million relates to underperforming New York & Company stores and is reported in "Selling, general and administrative expenses" and $1.1 million relates to a test accessories concept the Company exited and is reported in "Restructuring charges" on the Company's consolidated statements of operations. During the fourth quarter of fiscal year 2009 and the fourth quarter of fiscal year 2008, the Company recorded non-cash charges related to the impairment of store assets in connection with its restructuring and cost reduction program of $1.2 million and $22.9 million, respectively, both of which are reported in "Restructuring charges" on the Company's consolidated statements of operations.
9. Commitments and Contingencies
The Company leases retail business locations, office and warehouse facilities, copier equipment and automotive equipment under various noncancelable operating leases expiring in various years through 2021. Leases on retail business locations specify minimum rentals plus common area maintenance ("CAM") charges, real estate taxes, other landlord charges and possible additional rentals based upon percentages of sales. Most of the retail business location leases have an original term of 10 years and provide renewal options at rates specified in the leases. In the normal course of business, these leases are generally renewed or replaced by other leases.
A summary of rent expense is as follows:
|
Fiscal Year
2010 |
Fiscal Year
2009 |
Fiscal Year
2008 |
|||||||
---|---|---|---|---|---|---|---|---|---|---|
|
(Amounts in thousands)
|
|||||||||
Fixed minimum rentals |
$ | 95,741 | $ | 99,129 | $ | 102,764 | ||||
Contingent rentals |
8,130 | 7,552 | 4,301 | |||||||
Total store rentals |
103,871 | 106,681 | 107,065 | |||||||
Office space rentals |
5,397 | 5,413 | 5,404 | |||||||
Equipment rentals |
1,131 | 1,100 | 1,115 | |||||||
Total rental expense |
$ | 110,399 | $ | 113,194 | $ | 113,584 | ||||
Sublease rental income |
$ | 486 | $ | 521 | $ | 668 | ||||
As of January 29, 2011 the aggregate minimum rent commitments under non-cancelable operating leases are as follows:
Fiscal Year
|
Fixed
Minimum Rent |
Sublease
Rental Income |
|||||
---|---|---|---|---|---|---|---|
|
(Amounts in thousands)
|
||||||
2011 |
$ | 109,917 | $ | 93 | |||
2012 |
103,389 | 44 | |||||
2013 |
97,424 | | |||||
2014 |
91,672 | | |||||
2015 |
73,153 | | |||||
Thereafter |
90,950 | | |||||
Total |
$ | 566,505 | $ | 137 | |||
65
New York & Company, Inc.
Notes to Consolidated Financial Statements (Continued)
January 29, 2011
9. Commitments and Contingencies (Continued)
The minimum lease payments above do not include CAM charges, real estate taxes or other landlord charges, which are also required contractual obligations under the Company's store and office operating leases. In many of the Company's leases, CAM charges are not fixed and can fluctuate from year to year. During fiscal year 2010, CAM charges and real estate taxes were $62.4 million and other landlord charges were $4.9 million.
As of January 29, 2011, the Company had open purchase commitments for merchandise totaling approximately $99.6 million.
Legal Proceedings
There are various claims, lawsuits and pending actions against the Company arising in the normal course of the Company's business. It is the opinion of management that the ultimate resolution of these matters will not have a material effect on the Company's financial condition, results of operations or cash flows.
10. Employee Benefit Plans
Savings and Retirement Plan
The Company contributes to a defined contribution savings and retirement plan (the "SARP") qualifying under section 401(k) of the Internal Revenue Code. Participation in the SARP is available to all associates, if not covered by the pension plan discussed below, who have completed 1,000 or more hours of service with the Company during certain twelve-month periods and have attained the age of 21. Participants are able to contribute up to 100% of their pay to the SARP, subject to Internal Revenue Service ("IRS") limits. The Company matches 100% of the employee's contribution up to a maximum of 4% of the employee's eligible pay. The Company match is immediately vested. Prior to fiscal year 2009, the Company also made discretionary retirement contributions ranging from 3% to 8% of each participant's eligible base salary depending on the length of service. For retirement contributions made prior to January 1, 2007, the Company's retirement contribution vests 20% per year, beginning in the third year of service. As a result of the adoption of new pension plan legislation in 2006, beginning in 2007, the vesting period for new contributions made by the Company begins in the second year of service.
The Company's costs under this plan were as follows:
Fiscal Year
|
(Amounts
in thousands) |
|||
---|---|---|---|---|
2010 |
$ | 1,293 | ||
2009 |
$ | 2,001 | ||
2008 |
$ | 6,117 |
Pension Plan
The Company sponsors a single employer defined benefit pension plan ("plan") covering substantially all union employees. Employees covered by collective bargaining agreements are primarily
66
New York & Company, Inc.
Notes to Consolidated Financial Statements (Continued)
January 29, 2011
10. Employee Benefit Plans (Continued)
non-management store associates, representing approximately 8% of the Company's workforce at January 29, 2011. The plan provides retirement benefits for union employees, consisting of non-management store associates, who have attained the age of 21 and complete 1,000 or more hours of service in any calendar year following the date of employment. The plan provides benefits based on length of service. The Company's funding policy for the pension plan is to contribute annually the amount necessary to provide for benefits based on accrued service. The Company anticipates contributing approximately $0.9 million to the plan during fiscal year 2011. The Company's pension plan weighted average asset allocation, by asset category, is as follows:
Asset Category
|
Fiscal Year
2010 |
Fiscal Year
2009 |
|||||
---|---|---|---|---|---|---|---|
Equity securities |
63 | % | 60 | % | |||
Fixed income |
36 | % | 38 | % | |||
Cash and cash equivalents |
1 | % | 2 | % |
The Company's investment policy generally targets 60% to 65% in equity securities and 35% to 40% in fixed income.
The fair values of the pension plan assets at January 29, 2011, utilizing the fair value hierarchy in accordance with ASC 820, is as follows:
|
|
Fair Value Measurements Using | ||||||||||||
---|---|---|---|---|---|---|---|---|---|---|---|---|---|---|
|
January 29,
2011 |
Quoted
Prices in Active Markets (Level 1) |
Significant
Other Observable Inputs (Level 2) |
Significant
Unobservable Inputs (Level 3) |
||||||||||
|
(Amounts in thousands)
|
|||||||||||||
Equity securities: |
||||||||||||||
U.S. common stocks |
$ | 2,986 | $ | 2,984 | $ | 2 | $ | | ||||||
International common stocks |
968 | 967 | 1 | | ||||||||||
Fixed income securities: |
||||||||||||||
U.S. treasuries / government bonds |
1,124 | | 1,124 | | ||||||||||
U.S. corporate bonds |
876 | | 876 | | ||||||||||
U.S. mortgage-backed securities |
262 | | 262 | | ||||||||||
Cash and cash equivalents: |
||||||||||||||
Cash equivalents |
66 | | 66 | | ||||||||||
Total |
$ | 6,282 | $ | 3,951 | $ | 2,331 | $ | | ||||||
67
New York & Company, Inc.
Notes to Consolidated Financial Statements (Continued)
January 29, 2011
10. Employee Benefit Plans (Continued)
The fair values of the pension plan assets at January 30, 2010, utilizing the fair value hierarchy in accordance with ASC 820, is as follows:
|
|
Fair Value Measurements Using | ||||||||||||
---|---|---|---|---|---|---|---|---|---|---|---|---|---|---|
|
January 30,
2010 |
Quoted
Prices in Active Markets (Level 1) |
Significant
Other Observable Inputs (Level 2) |
Significant
Unobservable Inputs (Level 3) |
||||||||||
|
(Amounts in thousands)
|
|||||||||||||
Equity securities: |
||||||||||||||
U.S. common stocks |
$ | 3,268 | $ | 3,268 | $ | | $ | | ||||||
International common stocks |
323 | 323 | | | ||||||||||
Fixed income securities: |
||||||||||||||
U.S. corporate bonds |
685 | | 685 | | ||||||||||
U.S. mortgage-backed securities |
1,576 | | 1,576 | | ||||||||||
Cash and cash equivalents: |
||||||||||||||
Cash equivalents |
93 | | 93 | | ||||||||||
Total |
$ | 5,945 | $ | 3,591 | $ | 2,354 | $ | | ||||||
In consideration of the fund's investment goals, demographics, time horizon available for investment and the overall risk tolerance of the board of trustees (consisting of two union trustees and two employer trustees) a long-term investment objective of long-term income and growth has been adopted for the fund's assets. This is a risk-averse balanced approach that seeks long-term growth in capital along with significant current income.
The following weighted average assumptions were used to determine benefit obligations:
|
Fiscal Year
2010 |
Fiscal Year
2009 |
|||||
---|---|---|---|---|---|---|---|
Discount rate |
5.20 | % | 5.50 | % |
The following weighted average assumptions were used to determine net periodic benefit cost:
|
Fiscal Year
2010 |
Fiscal Year
2009 |
Fiscal Year
2008 |
|||||||
---|---|---|---|---|---|---|---|---|---|---|
Discount rate |
5.50 | % | 6.50 | % | 5.90 | % | ||||
Long-term rate of return on assets |
8.00 | % | 8.00 | % | 8.00 | % |
68
New York & Company, Inc.
Notes to Consolidated Financial Statements (Continued)
January 29, 2011
10. Employee Benefit Plans (Continued)
The measurement dates for fiscal year 2010 and fiscal year 2009 are January 29, 2011 and January 30, 2010, respectively, for the determination of benefit obligations. The following table provides information for the pension plan:
|
Fiscal Year
2010 |
Fiscal Year
2009 |
|||||
---|---|---|---|---|---|---|---|
|
(Amounts in thousands)
|
||||||
Change in benefit obligation: |
|||||||
Benefit obligation, beginning of period |
$ | 9,282 | $ | 9,071 | |||
Service cost |
334 | 267 | |||||
Interest |
505 | 554 | |||||
Actuarial gain |
355 | 231 | |||||
Benefits paid |
(816 | ) | (841 | ) | |||
Benefit obligation, end of period |
$ | 9,660 | $ | 9,282 | |||
Change in plan assets: |
|||||||
Fair value of plan assets, beginning of period |
$ | 5,945 | $ | 5,598 | |||
Actual return on plan assets |
318 | 1,136 | |||||
Benefits paid |
(816 | ) | (841 | ) | |||
Employer contributions |
836 | 52 | |||||
Fair value of plan assets, end of period |
$ | 6,283 | $ | 5,945 | |||
Funded status |
$ | (3,377 | ) | $ | (3,337 | ) | |
Unrecognized net actuarial loss |
3,186 | 2,794 | |||||
Net amount recognized |
$ | (191 | ) | $ | (543 | ) | |
Amounts recognized in the consolidated balance sheets: |
|||||||
Accrued pension liability |
$ | (3,377 | ) | $ | (3,337 | ) | |
Accumulated other comprehensive loss |
3,186 | 2,794 | |||||
Net amount recognized |
$ | (191 | ) | $ | (543 | ) | |
At January 29, 2011 and January 30, 2010, the Company reported a minimum pension liability of $3.4 million and $3.3 million, respectively, due to the underfunded status of the plan. The minimum pension liability is reported in other liabilities on the consolidated balance sheets. Included in accumulated other comprehensive loss at January 29, 2011 is a net loss of $0.1 million that is expected to be recognized in net periodic benefit cost during fiscal year 2011.
69
New York & Company, Inc.
Notes to Consolidated Financial Statements (Continued)
January 29, 2011
10. Employee Benefit Plans (Continued)
Net periodic benefit cost includes the following components:
|
Fiscal Year
2010 |
Fiscal Year
2009 |
Fiscal Year
2008 |
|||||||
---|---|---|---|---|---|---|---|---|---|---|
|
(Amounts in thousands)
|
|||||||||
Service cost |
$ | 334 | $ | 267 | $ | 245 | ||||
Interest cost |
505 | 554 | 550 | |||||||
Expected return on plan assets |
(480 | ) | (412 | ) | (691 | ) | ||||
Amortization of unrecognized losses |
126 | 146 | | |||||||
Net periodic benefit cost |
$ | 485 | $ | 555 | $ | 104 | ||||
The following schedule shows the expected benefit payments over the next 10 years:
Fiscal Year
|
(Amounts
in thousands) |
|||
---|---|---|---|---|
2011 |
$ | 941 | ||
2012 |
902 | |||
2013 |
874 | |||
2014 |
835 | |||
2015 |
810 | |||
2016-2020 |
3,549 | |||
Total |
$ | 7,911 | ||
11. Share-Based Compensation
2006 Amended and Restated Long-Term Incentive Plan. The Company's board of directors and stockholders approved the 2006 Long-Term Incentive Plan (the "2006 Plan") on May 3, 2006, and June 21, 2006, respectively. On June 29, 2009, the Company's stockholders approved, among other matters: (i) an amendment to the 2006 Plan to increase the number of shares reserved for issuance by 2,500,000 shares and (ii) a one-time stock option exchange program. The aggregate number of shares of the Company's common stock that may now be issued under the New York & Company, Inc. Amended and Restated 2006 Long-Term Incentive Plan (the "Amended and Restated 2006 Plan") is 4,668,496 shares, and the maximum number of shares which may be used for awards other than stock options or stock appreciation rights ("SARs") is 1,750,000 shares. These shares may be in whole or in part authorized and unissued or held by the Company as treasury shares.
Amended and Restated 2002 Stock Option Plan. The Company originally adopted the 2002 Stock Option Plan on November 27, 2002 and approved the Amended and Restated 2002 Stock Option Plan (the "2002 Plan") to become effective on October 13, 2004. The 2002 Plan provides for the grant of either incentive stock options or non-qualified stock options. The shares to be issued upon the exercise of the options may be in whole or in part authorized and unissued shares or held by the Company as treasury shares. Upon stockholder approval of the 2006 Plan, the 2002 Plan ceased to be available for the grants of new incentive awards, other than awards granted wholly from shares returned to the 2002 Plan by forfeiture or expiration after May 5, 2006; all other new incentive awards are to be granted
70
New York & Company, Inc.
Notes to Consolidated Financial Statements (Continued)
January 29, 2011
11. Share-Based Compensation (Continued)
under the Amended and Restated 2006 Plan. There are options to purchase 2,320,526 shares of the Company's common stock that have been or will be subject to forfeiture or expiration under the 2002 Plan at January 29, 2011 and therefore will be potentially available for issuance under the 2002 Plan. Of these options, 1,936,426 were exercisable as of January 29, 2011.
Under both the 2002 Plan and the Amended and Restated 2006 Plan (together, referred to herein as the "Plans"), the Company is able to grant share-based awards to its executives, consultants, directors, or other key employees. Options and SARs generally have a maximum term of up to 10 years. Upon grant of share-based awards, the compensation committee of the Company's board of directors will determine the exercise price, if applicable, and term of any award at its discretion. The exercise price of an incentive stock option and a SAR; however, may not be less than 100% of the fair market value of a share of common stock on the date of grant. The exercise price of an incentive stock option awarded to a person who owns stock constituting more than 10% of the total combined voting power of all classes of stock of the Company may not be less than 110% of the fair market value on such date and the option must be exercised within five years of the date of grant. The aggregate fair market value of common stock for which an incentive stock option is exercisable for the first time during any calendar year, under all equity incentive plans of the Company, may not exceed $0.1 million. Upon the exercise of a SAR, a participant will receive a number of shares of the Company's common stock equal in value to the excess of the fair market value of a share of common stock over the exercise price per share, multiplied by the number of shares in respect of which the SAR is exercised. Vesting provisions for all share-based awards granted under the Plans are determined by the compensation committee of the Company's board of directors at the date of grant; however, subject to certain restrictions, all outstanding share-based awards may vest upon a sale of the Company. Shares that are not currently outstanding or reserved for outstanding performance units under the Plans and are available for issuance at January 29, 2011 amounted to 875,534.
Subsequent to receiving stockholder approval, the Company completed a value-for-value stock option exchange program on June 29, 2009. The stock option exchange program was open to associates of the Company, excluding the Chief Executive Officer, who held stock options with an exercise price greater than or equal to $12.43 per share. The program was not available to any former associates or members of the Company's board of directors. Pursuant to the stock option exchange program, 684,435 eligible stock options were canceled and replaced with 454,687 replacement stock options at an exercise price equal to the Company's closing stock price on the new option grant date (June 29, 2009), which was $3.28. The exchange ratio was calculated such that the value of the replacement options would equal the value of the canceled options, determined in accordance with the Black-Scholes option valuation model, with no incremental cost incurred by the Company. The replacement options have the same vesting schedule as the tendered eligible options, except that the vesting schedule for any options that were already vested on June 29, 2009 or that would have vest within two years of June 29, 2009 was reset such that those options will vest upon the two-year anniversary of the new option grant date, so long as the eligible option holder continues to provide services to the Company during the two-year period. The other terms and conditions of each replacement option grant are substantially similar to those of the surrendered options it replaced. Each replacement option was granted under the Amended and Restated 2006 Plan.
71
New York & Company, Inc.
Notes to Consolidated Financial Statements (Continued)
January 29, 2011
11. Share-Based Compensation (Continued)
A summary of the Company's stock options and SARs outstanding as of January 29, 2011 and activity for fiscal year 2010 is presented below:
|
Number
of Shares |
Weighted
Average Exercise Price |
Weighted
Average Remaining Contractual Term (years) |
Aggregate
Intrinsic Value |
|||||||||
---|---|---|---|---|---|---|---|---|---|---|---|---|---|
|
(Amounts in
thousands) |
|
|
(Amounts in
thousands) |
|||||||||
Outstanding, beginning of period |
3,799 | $ | 3.37 | ||||||||||
Granted |
2,098 | 4.08 | |||||||||||
Exercised |
(185 | ) | 0.52 | ||||||||||
Forfeited |
(592 | ) | 6.20 | ||||||||||
Expired |
(210 | ) | 10.14 | ||||||||||
Outstanding, end of period(1) |
4,910 | $ | 3.15 | 6.2 | $ | 11,953 | |||||||
Exercisable, end of period |
2,277 | $ | 2.17 | 3.3 | $ | 8,091 | |||||||
Aggregate intrinsic value for both outstanding and exercisable options and SARs, in the table above, represents the total pre-tax intrinsic value (the difference between the Company's closing stock price on the last trading day of fiscal year 2010 and the exercise price, multiplied by the number of in-the-money options and SARs) that would have been received by the option and SARs holders had all option and SARs holders exercised their options and SARs on January 29, 2011. This amount changes based on the fair market value of the Company's common stock. Total intrinsic value of options exercised for fiscal year 2010, fiscal year 2009 and fiscal year 2008 (based on the difference between the Company's stock price on the respective exercise date and the respective exercise price, multiplied by the number of respective options exercised) was $0.6 million, $0.8 million and $5.9 million, respectively.
In accordance with the adoption provisions of ASC 718, for compensation expense purposes, the fair value of each option granted, during the period the Company was a non-public entity, was estimated on the date granted using the Minimum-value option-pricing model for all employees and non-employee board members. In accordance with ASC 718, for compensation expense purposes, the fair value of each option and SAR granted, as a public entity, is estimated on the date granted using the Black-Scholes option-pricing model for all employees and non-employee board members. The weighted average fair value for options and SARs granted during fiscal year 2010, fiscal year 2009 and fiscal year 2008 was $2.54, $2.03, and $1.61, respectively. The total fair value of stock options and restricted stock vested during fiscal year 2010, fiscal year 2009 and fiscal year 2008 was $0.8 million, $1.7 million and $1.1 million, respectively.
72
New York & Company, Inc.
Notes to Consolidated Financial Statements (Continued)
January 29, 2011
11. Share-Based Compensation (Continued)
The following weighted average assumptions were used to value stock options and SARs:
|
Fiscal Year
2010 |
Fiscal Year
2009 |
Fiscal Year
2008 |
|||||||
---|---|---|---|---|---|---|---|---|---|---|
Expected volatility |
79.5 | % | 77.3 | % | 44.0 | % | ||||
Expected life |
4.6 years | 4.5 years | 4.6 years | |||||||
Risk-free interest rate |
2.08 | % | 2.14 | % | 2.20 | % | ||||
Expected dividend yield |
| % | | % | | % |
The risk-free interest rate used to value stock options and SARs is based on the U.S. Treasury yield curve in effect at the time of grant with maturity dates that coincide with the expected life of the options and SARs. The expected life represents the weighted average period the stock options and SARs are expected to remain outstanding and, with the exception of stock options subject to the Company's June 2009 stock option exchange program, is based primarily on industry averages due to the Company's limited historical data for employee exercises. Due to the unique nature of stock option exchange programs and the terms of the subject awards, the expected life of the stock options subject to the Company's stock option exchange program was calculated using the "simplified method," which is based on the midpoint between the vesting date and the contractual term of the stock option. Beginning in fiscal year 2009, the Company's assumption for volatility is based on its historical volatility calculated on the grant date of an award for a period of time that coincides with the expected life of the options. Prior to fiscal year 2009, the Company's assumption for volatility was based primarily on the volatility factor of other publicly traded companies in the retail industry that were similar in size and financial leverage, while still considering the Company's limited historical volatility for the period of time since its initial public offering on October 6, 2004.
The following table summarizes the restricted stock outstanding at January 29, 2011 and activity for fiscal year 2010:
|
Shares |
Weighted Average
Grant Date Fair Value |
|||||
---|---|---|---|---|---|---|---|
|
(Amounts in
thousands) |
|
|||||
Nonvested at January 30, 2010 |
72 | $ | 6.48 | ||||
Granted |
904 | 4.10 | |||||
Vested |
(54 | ) | 4.78 | ||||
Forfeited |
(288 | ) | 5.14 | ||||
Nonvested at January 29, 2011 |
634 | $ | 3.84 | ||||
The fair value of restricted stock is based on the closing stock price of an unrestricted share of the Company's common stock on the grant date. The 634,283 nonvested shares outstanding at January 29, 2011 vest subject to the passage of time through fiscal year 2014.
On January 28, 2009, Mr. Crystal, was granted a performance unit award, which is subject to a performance vesting requirement and continued employment with the Company through February 11, 2011. In order to meet the performance vesting requirement, the average closing stock price of the Company's common stock for the 30 trading days prior to February 11, 2011 (the "Average Closing
73
New York & Company, Inc.
Notes to Consolidated Financial Statements (Continued)
January 29, 2011
11. Share-Based Compensation (Continued)
Stock Price") shall be equal to or greater than $11.00 per share. If the performance units become vested on February 11, 2011, Mr. Crystal will receive the number of shares of common stock equal to (i) $3,000,000 divided by the Average Closing Stock Price if such Average Closing Stock Price is equal or greater to $11.00 per share but less than $20.00 per share or (ii) $5,000,000 divided by the Average Closing Stock Price if the Average Closing Stock Price is greater or equal to $20.00 per share. The fair value of the performance unit award was calculated on the grant date using the Monte Carlo simulation model, which resulted in a fair value of $0.1 million. The Monte Carlo model uses the same input assumptions as the Black-Scholes model; however, it also further incorporates into the fair value determination, the probability that the market condition may not be satisfied. The Monte Carlo simulation was computed using a risk-free rate of 0.83% and a volatility of 93.2%, which represents the Company's historical volatility for the two year period preceding the grant date. The Company's two year historical volatility was used, since the performance period of the award is two years. On February 11, 2011, Mr. Crystal's performance unit award was forfeited as a result of the Company not meeting the performance vesting requirements.
Total share-based compensation expense attributable to all share-based awards granted since the inception of the Plans was $2.5 million, $1.8 million and $1.6 million in fiscal year 2010, fiscal year 2009 and fiscal year 2008, respectively. The Company recognizes share-based compensation expense in the consolidated statements of operations over the requisite service period for each share-based payment award. The Company recognized a tax benefit in the consolidated statements of operations related to share-based compensation expense of $1.0 million, $0.7 million and $0.6 million in fiscal year 2010, fiscal year 2009 and fiscal year 2008, respectively. The tax benefit recognized in the fiscal year 2010 consolidated statement of operations was offset by corresponding adjustments to the valuation allowance against deferred tax assets. In addition, as a result of the deferred tax valuation allowance, the Company did not recognize an excess benefit related to the exercise of options during fiscal year 2010. For further information related to the deferred tax valuation allowance, please refer to Note 14, "Income Taxes" in these Notes to Consolidated Financial Statements. Unamortized share-based compensation expense at January 29, 2011 was $6.7 million and will be recognized in the consolidated statements of operations over a weighted average period of 2.0 years.
12. Accrued Expenses
Accrued expenses consist of the following:
|
January 29,
2011 |
January 30,
2010 |
|||||
---|---|---|---|---|---|---|---|
|
(Amounts in thousands)
|
||||||
Gift cards and certificates |
$ | 17,861 | $ | 15,579 | |||
Compensation and benefits |
14,508 | 12,572 | |||||
Other taxes |
8,012 | 6,511 | |||||
Construction in progress |
1,797 | 1,271 | |||||
Occupancy and related |
2,565 | 4,049 | |||||
Insurance |
4,408 | 4,215 | |||||
Other accrued expenses |
14,921 | 14,735 | |||||
Total accrued expenses |
$ | 64,072 | $ | 58,932 | |||
74
New York & Company, Inc.
Notes to Consolidated Financial Statements (Continued)
January 29, 2011
13. Long-Term Debt and Credit Facilities
On August 22, 2007, Lerner New York, Inc., Lernco, Inc. and Lerner New York Outlet, Inc. (formerly known as Jasmine Company, Inc.) entered into a Second Amended and Restated Loan and Security Agreement (the "Loan Agreement") with Wachovia Bank, National Association, as Agent for itself and the other lender party to the Loan Agreement.
The Company's credit facilities currently consist of a term loan, of which $7.5 million was outstanding at January 29, 2011, and a $90.0 million revolving credit facility (which includes a sub-facility available for issuance of letters of credit of up to $75.0 million), both having a maturity date of March 17, 2012.
The maximum borrowing availability under the Company's revolving credit facility is determined by a monthly borrowing base calculation that is based on the application of specified advance rates against inventory and certain other eligible assets. As of January 29, 2011, the Company had availability under its revolving credit facility of $46.3 million, net of letters of credit outstanding of $7.2 million and no revolving loans outstanding, as compared to availability of $48.4 million, net of letters of credit outstanding of $7.2 million and no revolving loans outstanding, as of January 30, 2010.
The revolving loans under the credit facilities bear interest, at the Company's option, either at a floating rate equal to the Eurodollar rate plus a margin of between 1.00% and 1.25% per year, depending upon the Company's financial performance, or the Prime rate. The Company pays the lenders under the revolving credit facility a monthly fee on outstanding commercial letters of credit at a rate of 0.625% per year and on standby letters of credit at a rate of between 1.00% and 1.25% per year, depending upon the Company's financial performance, plus a monthly fee on a proportion of the unused commitments under that facility at a rate of 0.20% per year. The term loan bears interest at a floating rate equal to the Eurodollar rate plus 2.50% per year. If any default were to exist under the revolving credit facility and for so long as such default were to continue, at the option of the agent or lenders, the monthly fee on outstanding standby letters of credit may increase to 3.25% per year, interest on the revolving loans may increase to 3.25% per year above the Eurodollar rate for Eurodollar rate loans and 2.00% per year above the Prime rate for all Prime rate loans, and interest on the term loan may increase to the Eurodollar rate plus 4.50% per year.
The Company's credit facilities contain certain covenants, including restrictions on the Company's ability to pay dividends on its common stock, incur additional indebtedness and to prepay, redeem, defease or purchase other debt. Subject to such restrictions, the Company may incur more debt for working capital, capital expenditures, stock repurchases, acquisitions and for other purposes. The terms of the Company's credit facilities also subject it to a minimum fixed charge coverage ratio of 1.00 to 1.00, if the Company's borrowing availability under its revolving credit facility plus qualified cash falls below $30.0 million ($20.0 million during March and November). If the Company fully repays its existing term loan, the Company will only be subject to the minimum fixed charge coverage ratio in the event that borrowing availability under its revolving credit facility falls below $12.5 million. In addition, the Company is required at all times to maintain minimum borrowing availability under its credit facility of $10.0 million. The Company is currently in compliance with the financial covenants referred to above.
The lenders have been granted a pledge of the common stock of Lerner Holding and certain of its subsidiaries, and a first priority security interest in substantially all other tangible and intangible assets
75
New York & Company, Inc.
Notes to Consolidated Financial Statements (Continued)
January 29, 2011
13. Long-Term Debt and Credit Facilities (Continued)
of New York & Company, Inc. and its subsidiaries, as collateral for the Company's obligations under the credit facilities. In addition, New York & Company, Inc. and certain of its subsidiaries have fully and unconditionally guaranteed the credit facilities, and such guarantees are joint and several.
The carrying amounts and fair values of debt as of January 29, 2011 and January 30, 2010, are as follows:
|
January 29, 2011 | January 30, 2010 | |||||||||||
---|---|---|---|---|---|---|---|---|---|---|---|---|---|
|
Carrying
Amount |
Estimated
Fair Value |
Carrying
Amount |
Estimated
Fair Value |
|||||||||
|
(Amounts in thousands)
|
||||||||||||
Term loan, due March 17, 2012 |
$ | 7,500 | $ | 7,500 | $ | 13,500 | $ | 13,500 | |||||
Less: current portion |
(7,500 | ) | (7,500 | ) | (6,000 | ) | (6,000 | ) | |||||
Total long-term debt, net of current |
$ | | $ | | $ | 7,500 | $ | 7,500 | |||||
In accordance with the Loan Agreement, the $7.5 million outstanding principal amount of the term loan will be repaid in fiscal year 2011.
14. Income Taxes
Income taxes for continuing operations consist of:
|
Fiscal Year
2010 |
Fiscal Year
2009 |
Fiscal Year
2008 |
||||||||
---|---|---|---|---|---|---|---|---|---|---|---|
|
(Amounts in thousands)
|
||||||||||
Federal: |
|||||||||||
Current |
$ | (5,423 | ) | $ | (7,013 | ) | $ | 3,579 | |||
Deferred |
14,307 | (1,315 | ) | (15,518 | ) | ||||||
State and Local: |
|||||||||||
Current |
(2,973 | ) | 1,058 | 1,099 | |||||||
Deferred |
3,555 | (3,927 | ) | (3,843 | ) | ||||||
|
$ | 9,466 | $ | (11,197 | ) | $ | (14,683 | ) | |||
76
New York & Company, Inc.
Notes to Consolidated Financial Statements (Continued)
January 29, 2011
14. Income Taxes (Continued)
The approximate tax effect of items giving rise to the net deferred income tax assets recognized in the Company's consolidated balance sheets is as follows:
|
January 29,
2011 |
January 30,
2010 |
|||||
---|---|---|---|---|---|---|---|
|
(Amounts in thousands)
|
||||||
Accrued expenses |
$ | 14,356 | $ | 14,122 | |||
Fixed assets and intangible assets |
7,122 | 1,770 | |||||
Inventory |
92 | 33 | |||||
Other assets |
8,946 | 6,526 | |||||
Net operating loss |
17,039 | 3,600 | |||||
Prepaid costs |
(7,520 | ) | (8,188 | ) | |||
Total deferred tax assets |
40,035 | 17,863 | |||||
Valuation allowance |
(40,035 | ) | | ||||
Net deferred tax assets |
$ | | $ | 17,863 | |||
During the second quarter of fiscal year 2010, the Company concluded that a full valuation allowance against the Company's deferred tax assets was necessary in order to reflect the Company's assessment of its ability to realize the benefits of those deferred tax assets. The Company made this determination after weighing both negative and positive evidence in accordance with ASC 740, which requires that deferred tax assets be reduced by a valuation allowance if, based on all available evidence, it is considered more likely than not that some portion or all of the recorded deferred tax assets will not be realized in a future period. The evidence weighed included a historical three-year cumulative loss related to earnings before taxes in addition to an assessment of sources of taxable income, availability of tax planning strategies, and future projections of earnings. The Company will continue to maintain a valuation allowance against its deferred tax assets until the Company believes it is more likely than not that these assets will be realized in the future. If sufficient positive evidence arises in the future indicating that all or a portion of the deferred tax assets meet the more-likely-than-not standard under ASC 740, the valuation allowance would be reversed accordingly in the period that such determination is made.
As of January 29, 2011, the Company had $147.7 million of state net operating loss carryforwards in various states and $29.2 million of federal net operating loss carryforwards.
77
New York & Company, Inc.
Notes to Consolidated Financial Statements (Continued)
January 29, 2011
14. Income Taxes (Continued)
The state net operating loss carryforwards are reported on a pre-apportioned basis that applies to various states with varying tax laws and expiration dates. Below is a summary of the Company's loss carryforwards and when they expire:
Tax Year Ended
|
State NOL
Carryover (Amounts in thousands) |
Expiration Year
Starting in |
Years
Remaining |
|||||||
---|---|---|---|---|---|---|---|---|---|---|
2/3/2007 |
$ | 5,146 | Jan 2012 | 1 to 16 | ||||||
2/2/2008 |
50,698 | Jan 2013 | 2 to 17 | |||||||
1/31/2009 |
32,434 | Jan 2014 | 3 to 18 | |||||||
1/30/2010 |
30,264 | Jan 2015 | 4 to 19 | |||||||
1/29/2011 |
29,202 | Jan 2016 | 5 to 20 | |||||||
|
$ | 147,744 | ||||||||
Tax Year Ended
|
Federal NOL
Carryover (Amounts in thousands) |
Expiration Year
Starting in |
Years
Remaining |
|||||||
---|---|---|---|---|---|---|---|---|---|---|
1/29/2011 |
$ | 29,202 | Jan 2032 | 20 | ||||||
A reconciliation of the statutory federal income tax expense for continuing operations is as follows:
|
Fiscal Year
2010 |
Fiscal Year
2009 |
Fiscal Year
2008 |
|||||||
---|---|---|---|---|---|---|---|---|---|---|
|
(Amounts in thousands)
|
|||||||||
Statutory 35% federal tax |
$ | (23,477 | ) | $ | (8,639 | ) | $ | (12,243 | ) | |
State and local income taxes, net of federal income tax benefit |
(5,164 | ) | (1,256 | ) | (1,783 | ) | ||||
Deferred tax valuation allowance |
37,774 | | | |||||||
Other, net |
333 | (1,302 | ) | (657 | ) | |||||
Income tax expense (benefit) |
$ | 9,466 | $ | (11,197 | ) | $ | (14,683 | ) | ||
The Company files U.S. federal income tax returns and income tax returns in various state and local jurisdictions. In November 2008, the Internal Revenue Service began its examination of the Company's U.S. federal income tax return for the 2006 tax year. Thereafter, the IRS expanded the 2006 tax year audit to include the Company's 2007, 2008 and 2009 federal income tax returns, as well as the Company's previously settled 2005 federal income tax return as a result of the Company's refund claims carrying back the Company's net operating losses. In addition, the Company is subject to U.S. federal income tax examinations for the Company's 2010 tax return and each year thereafter and state and local income tax examinations for the 2007 tax year and each year thereafter.
78
New York & Company, Inc.
Notes to Consolidated Financial Statements (Continued)
January 29, 2011
14. Income Taxes (Continued)
A reconciliation of the beginning and ending amounts of unrecognized tax benefits in accordance with ASC 740 is as follows:
|
Fiscal Year
2010 |
Fiscal Year
2009 |
|||||
---|---|---|---|---|---|---|---|
|
(Amounts in thousands)
|
||||||
Unrecognized tax benefits at beginning of period |
$ | 2,519 | $ | 3,554 | |||
Additions based on tax positions related to the current year |
| 399 | |||||
Additions for tax positions of prior years |
584 | 142 | |||||
Reductions for tax positions of prior years |
(458 | ) | (330 | ) | |||
Settlements |
| (99 | ) | ||||
Reductions for lapse of statute of limitations |
(447 | ) | (1,147 | ) | |||
Unrecognized tax benefits at end of period |
$ | 2,198 | $ | 2,519 | |||
At January 29, 2011, the Company reported a liability of $2.2 million in other liabilities on the consolidated balance sheet for unrecognized tax benefits, including interest and penalties, all of which would impact the Company's effective tax rate if recognized. The Company does not anticipate any significant increases or decreases to the balance of unrecognized tax benefits during the next twelve months.
The Company recognizes accrued interest and penalties related to unrecognized tax benefits in income tax expense. During fiscal year 2010, fiscal year 2009, and fiscal year 2008, the Company recorded a net benefit for interest and penalties in the consolidated statement of operations of $0.2 million, $0.7 million, and $0.2 million, respectively. At January 29, 2011 and January 30, 2010, the Company had accrued $0.6 million and $0.8 million, respectively, for the potential payment of interest and penalties.
15. Redeemable Preferred Stock
The Company is authorized to issue 5,000,000 shares of preferred stock, $0.001 par value. At January 29, 2011 and January 30, 2010, there were no shares of preferred stock outstanding.
16. Share Repurchases
On November 26, 2008, the Company announced that its board of directors had authorized the repurchase of up to 3,750,000 shares over a 12-month period. During fiscal year 2009, the Company repurchased 1,000,000 shares of its common stock at a cost of approximately $3.4 million.
79
Exhibit No. | Description | ||
---|---|---|---|
3.1 | Restated Certificate of Incorporation. | ||
|
3.2 |
|
Amended and Restated Bylaws. |
|
9.1 |
|
Stockholders Agreement by and among New York & Company, Inc. and the stockholders party thereto, dated August 25, 2004.** |
|
9.2 |
|
Amendment No. 4 to Stockholders Agreement by and among New York & Company, Inc. and the stockholders party thereto, dated May 22, 2006. |
|
9.3 |
|
Amendment No. 5 to Stockholders Agreement by and among New York & Company, Inc. and the stockholders party thereto, dated August 16, 2006.+ |
|
10.1 |
|
Second Amended and Restated Employment Agreement between New York & Company, Inc. and Richard P. Crystal, dated August 25, 2004.** |
|
10.2 |
|
Amendment No. 1 to Second Amended and Restated Employment Agreement, dated August 25, 2004, between New York & Company, Inc. and Richard P. Crystal, as amended on December 22, 2006.++ |
|
10.3 |
|
Amendment No. 2 to Second Amended and Restated Employment Agreement, dated August 25, 2004, between New York & Company, Inc. and Richard P. Crystal, as amended on May 4, 2007.++ |
|
10.4 |
|
Amendment No. 3 to Second Amended and Restated Employment Agreement, dated August 25, 2004, between New York & Company, Inc. and Richard P. Crystal, as amended on April 10, 2008.++ |
|
10.5 |
|
Amendment No. 4 to Second Amended and Restated Employment Agreement, dated August 25, 2004, between New York & Company, Inc. and Richard P. Crystal, as amended on January 28, 2009. |
|
10.6 |
|
Employment Letter, dated as of April 28, 2010, between New York & Company, Inc. and Gregory Scott. TTTTT |
|
10.7 |
|
Employment Letter, dated as of May 30, 2006, between New York & Company, Inc. and Kevin L. Finnegan. |
|
10.8 |
|
Employment Letter, dated as of March 13, 2006, between New York & Company, Inc. and Sandra Brooslin Viviano. |
|
10.9 |
|
Employment Letter, dated as of April 21, 2009, between New York & Company, Inc. and Leslie Goldmann. TTTT |
|
10.10 |
|
Employment Side Letter, dated as of April 1, 2008, between New York & Company, Inc. and Leslie Goldmann. TTTT |
|
10.11 |
|
Employment Letter, dated as of November 3, 2008, between New York & Company, Inc. and Sheamus Toal. |
|
10.12 |
|
Employment Letter, dated as of September 5, 2010, between New York & Company, Inc. and Eran Cohen. |
|
10.13 |
|
Employment Letter, dated as of November 14, 2010, between New York & Company, Inc. and Michele Parsons. |
80
Exhibit No. | Description | ||
---|---|---|---|
10.14 | Amendment No.1 to Employment Letter, dated as of May 30, 2006, between New York & Company, Inc. and Kevin L. Finnegan, as amended December 22, 2006. | ||
|
10.15 |
|
Amendment No.1 to Employment Letter, dated as of March 13, 2006, between New York & Company, Inc. and Sandra Brooslin Viviano, as amended December 22, 2006. |
|
10.16 |
|
Transition Services Agreement by and between Lerner New York Holding, Inc. and Limited Brands, Inc., dated as of November 27, 2002.* |
|
10.17 |
|
Amendment No. 1 to Transition Services Agreement, dated as of November 27, 2002, between Lerner New York Holding, Inc., New York & Company, Inc. as successor-in-interest to NY & Co. Group, Inc. and Limited Brands, Inc., as amended on April 19, 2006. T |
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10.18 |
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Amendment No. 2 to Transition Services Agreement, dated as of November 27, 2002, between Lerner New York Holding, Inc., New York & Company, Inc. as successor-in-interest to NY & Co. Group, Inc. and Limited Brands, Inc., as amended on October 11, 2007. |
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10.19 |
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Amendment No. 3 to Transition Services Agreement, dated as of November 27, 2002, between Lerner New York Holding, Inc., New York & Company, Inc. as successor-in-interest to NY & Co. Group, Inc. and Limited Brands, Inc., as amended on July 17, 2008. |
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10.20 |
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Amendment No. 4 to Transition Services Agreement, dated as of November 27, 2002, between Lerner New York Holding, Inc., New York & Company, Inc. as successor-in-interest to NY & Co. Group, Inc. and Limited Brands, Inc., as amended on April 6, 2009. |
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10.21 |
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Amendment No. 5 to Transition Services Agreement, dated as of November 27, 2002, between Lerner New York Holding, Inc., New York & Company, Inc. as successor-in-interest to NY & Co. Group, Inc. and Limited Brands, Inc., as amended on March 16, 2010. |
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10.22 |
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Amendment No. 6 to Transition Services Agreement, dated as of November 27, 2002, between Lerner New York Holding, Inc., New York & Company, Inc. as successor-in-interest to NY & Co. Group, Inc. and Limited Brands, Inc., as amended on September 14, 2010. |
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10.23 |
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Second Amended and Restated Loan and Security Agreement by and among Lerner New York, Inc., Lernco, Inc., Jasmine Company, Inc., Wachovia Bank, National Association, as Agent for itself and the other Lender named therein, dated as of August 22, 2007. |
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10.24 |
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Amendment No. 1 to Second Amended and Restated Loan and Security Agreement by and among Lerner New York, Inc., Lernco, Inc., Jasmine Company, Inc., Wachovia Bank, National Association, as Agent for itself and the other Lender named therein, dated as of December 9, 2008. TTT |
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10.25 |
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Second Amended and Restated Guarantee made by New York & Company, Inc., Lerner New York Holding, Inc., Nevada Receivable Factoring, Inc., Associated Lerner Shops of America, Inc. and Lerner New York GC, LLC in favor of Wachovia Bank, National Association, as Agent for itself and the other Lender named in the Second Amended and Restated Loan and Security Agreement, dated as of August 22, 2007. TT |
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10.26 |
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Second Amended and Restated Collateral Assignment of Trademarks made among Lernco, Inc. and Jasmine Company, Inc. in favor of Wachovia Bank, National Association, as Agent for itself and the other Lender named in the Second Amended and Restated Loan and Security Agreement, dated as of August 22, 2007. |
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Exhibit No. | Description | ||
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10.27 | Amended and Restated Collateral Assignment of Trademarks made among Lerner New York, Inc. in favor of Wachovia Bank, National Association, as Agent for itself and the other Lender named in the Second Amended and Restated Loan and Security Agreement, dated as of August 22, 2007. | ||
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10.28 |
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Second Amended and Restated Stock Pledge Agreement by and between Lerner New York, Inc. and Wachovia Bank, National Association, as Agent for itself and the other Lender named in the Second Amended and Restated Loan and Security Agreement, dated as of August 22, 2007. TT |
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10.29 |
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Second Amended and Restated Stock Pledge Agreement by and between Lerner New York Holding, Inc. and Wachovia Bank, National Association, as Agent for itself and the other Lender named in the Second Amended and Restated Loan and Security Agreement, dated as of August 22, 2007. TT |
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10.30 |
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Second Amended and Restated Stock Pledge Agreement by and between New York & Company, Inc. and Wachovia Bank, National Association, as Agent for itself and the other Lender named in the Second Amended and Restated Loan and Security Agreement, dated as of August 22, 2007. TT |
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10.31 |
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Second Amended and Restated Intercompany Subordination Agreement made among the Obligors, as defined in the Second Amended and Restated Loan and Security Agreement, and Wachovia Bank, National Association, as Agent for itself and the other Lender named in the Second Amended and Restated Loan and Security Agreement, dated as of August 22, 2007. TT |
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10.32 |
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Amendment No. 2 to Second Amended and Restated Loan and Security Agreement by and among Lerner New York, Inc., Lernco, Inc., Lerner New York Outlet, Inc., formerly known as Jasmine Company, Inc., Wells Fargo Bank, National Association, successor by merger to Wachovia Bank, National Association, as agent for itself and the other Lender named therein, dated as of October 19, 2010. |
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10.33 |
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Performance Unit Award Agreement, dated as of January 28, 2009, between New York & Company, Inc. and Richard P. Crystal. |
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10.34 |
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Form of Amended and Restated 2002 Stock Option Plan that became effective immediately prior to the consummation of the Company's initial public offering.** |
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10.35 |
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Form of Amended and Restated 2006 Long-Term Incentive Plan approved by the Company's Stockholders on June 29, 2009.*** |
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21.1 |
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Subsidiaries of the Registrant. |
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23.1 |
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Consent of Ernst & Young LLP, Independent Registered Public Accounting Firm. |
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31.1 |
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Certification by the Chief Executive Officer, pursuant to Section 302 of the Sarbanes-Oxley Act of 2002, dated April 11, 2011. |
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31.2 |
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Certification by the Chief Financial Officer, pursuant to Section 302 of the Sarbanes-Oxley Act of 2002, dated April 11, 2011. |
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32.1 |
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Written Statement of the Chief Executive Officer and the Chief Financial Officer pursuant to Section 906 of the Sarbanes-Oxley act of 2002, dated April 11, 2011. |
82
83
Exhibit 10.12
Mr. Eran Cohen
Re: Letter Agreement of Employment
Dear Eran:
This letter agreement (this Agreement ) sets forth the terms and conditions of your employment, and your employment relationship, with Lerner New York, Inc. (the Company ). Your execution of this Agreement will represent your acceptance of all of the terms set forth below.
1. Nature of Agreement and Relationship . This Agreement does not represent an employment contract for any specified term. Your employment relationship thus will remain at will, meaning that, subject to the terms hereof, either party to this Agreement may terminate the employment relationship at any time for any lawful reason.
2. Job Title and Duties . Your job title will be Chief Marketing Officer. You will be expected to devote all of your full time efforts to the performance of the duties and responsibilities normally associated with this position, including those from time to time that may be assigned to you by your Supervisor, the President, the Chief Executive Officer or the Board of Directors of the Company (or the designee of any of the foregoing).
3. Salary . For the 12 month period ending on the last Saturday of each January (the last day of the fiscal year), you will receive a base salary at the rate of $600,000 per annum ( Base Salary ), subject to the remaining provisions of this Section. For the remainder of the current fiscal year starting on the date of this Agreement, your Base Salary will be pro rated based on the number of days remaining in such fiscal year divided by 365. At the Companys sole discretion, your Base Salary may be increased or decreased based on your performance and the performance of the business. You will be paid in accordance with the Companys normal payroll policies and practices, with all applicable deductions being withheld from your paychecks.
4. Bonus . You will be eligible to participate in the Companys then current bonus plan, in accordance with its terms and conditions, and to receive performance based bonuses pursuant to any formula that may be established. For the Companys current fiscal year, your bonus target for the spring bonus (relating to the Companys results for the first and second fiscal quarters of each fiscal year) will be Twenty-One (21) percent of your Base Salary; for the fall bonus (relating to the Companys results for the third and fourth fiscal quarters of each fiscal year) will be Twenty-Seven (27) percent of your Base Salary; and for the annual bonus (relating to the Companys results for the fiscal year) will be Twelve (12) percent of your Base Salary. Any amount payable in respect of the spring bonus will be paid in the calendar month immediately following the end of the applicable performance period to which that bonus relates. Any amount payable in respect of the fall or the annual bonus will be paid within two and one half months
following the end of the applicable performance period to which that bonus relates. All bonuses are determined at the Companys sole discretion, and the Company has the sole discretion to modify or terminate any bonus plan and that plan will govern your right, if any, to a bonus payment upon termination of your employment.
5. SARs, and Other Long Term Incentives . You will be eligible to receive awards under SARs, restricted stock or other equity based long term incentive plans established by the Company (or an Affiliate) that cover executive officers of the Company. The term Affiliate means any corporation, partnership, limited liability company or other entity (other than the Company) that controls or is controlled by the Company, whether directly or indirectly, such as a parent company or subsidiary. All equity awards described in this paragraph are determined at the Companys sole discretion, and the Company has the sole discretion to modify or terminate any SARs, restricted stock or other equity based long term incentive plan and that plan will govern your rights, if any, relating to any equity award(s) you have received, or may be entitled to receive, upon termination of your employment.
6. Employee Benefits . You will be entitled to participate in all employee benefits plans, practices and programs maintained by the Company and made available to senior executives generally and as may be in effect from time to time (the Benefits Plans ). Your participation in the Benefits Plans will be on the same basis and terms as are applicable to senior executives of the Company generally. Benefits Plans include, but are not limited to, savings and retirement plans, deferred compensation, health and prescription drug benefits, disability benefits, other insurance programs, vacation and other leave, merchandise discounts and business expense procedures. Plan documents setting forth terms of certain of the Benefits Plans are available upon request, which plan documents control all questions of interpretation concerning applicable Benefits Plans, including your rights, if any, upon termination of your employment. The Benefits Plans are subject to modification or termination by the Company at any time, at its sole discretion, in accordance with their terms.
7. Severance Pay . Upon your termination of employment by the Company and all Affiliates without Cause (as defined below), but subject to your performance of all post employment obligations set forth in this Agreement, you will be entitled to receive severance pay for six (6) months if employment is terminated prior to the two year anniversary of the start date of employment under this letter and twelve (12) months if terminated thereafter (Severance Period) at your final Base Salary (Severance Pay), beginning the first pay period following your separation date and ending upon the earlier of: (i) your receipt of the number of weekly payments coinciding with the length of the Severance Period (such number of payments to be adjusted if any change is made to the frequency of regularly scheduled payroll dates) or (ii) your first day of employment with another employer, whichever is earlier. The Severance Pay shall be conditioned upon your execution and delivery to the Company of a general release of claims in favor of the Company in a form reasonably satisfactory to the Company. Such release shall be executed and delivered (and no longer subject to revocation, if applicable) within sixty (60) days following your termination of employment. If you fail to execute such release as provided above, you shall forfeit all of your rights to receive the Severance Pay. If you obtain employment at an annual salary that is lower than your final Base Salary, you will continue to receive the differential between the two rates of pay for the balance of the Severance Period. This Severance Pay, which will be subject to applicable deductions required by law, will be paid on the Companys regular payroll dates as in effect on the date of each such payment for the balance of the Severance Period following your termination date, as outlined above. For purposes of this Agreement, Cause means the occurrence of any of the following: (i) your willful failure to perform your duties to the Company (other than as a result of death or a physical or mental incapacity); (ii) your commission of, indictment for, conviction of, or plea of guilty or nolo contendere to, a felony (regardless of the nature of the felony) or any other crime involving dishonesty, fraud or moral turpitude; (iii) your gross negligence or willful misconduct (including, but not limited to, acts of fraud, criminal activity, professional misconduct, dishonesty, or breach of trust or other fiduciary duty) in connection with the performance of your duties and
responsibilities to the Company or with regard to the Company or its assets; (iv) your failure to comply with the rules and policies of the Company governing employee conduct or with the lawful directives of the Board of Directors of the Company or a more senior executive of the Company; or (v) your breach of this Agreement or any obligation under any non disclosure, non solicitation, non competition or other restrictive covenant, employment or any other agreement with the Company. Any determination of Cause will be made in the good faith discretion of the Company.
8. Code Section 409A Compliance .
8.1. It is the Companys intent that compensation and benefits to which you are entitled under this Agreement not be treated as nonqualified deferred compensation under Section 409A of the Internal Revenue Code of 1986, as amended, and the treasury regulations and other official guidance promulgated thereunder ( Code Section 409A ), and that any ambiguities in the construction of this Agreement be interpreted in order to effectuate such intent. In the event that the Company determines, in its sole discretion, that any compensation or benefits to which you are entitled under this Agreement could be treated as nonqualified deferred compensation under Code Section 409A unless this Agreement is amended or modified, the Company may, in its sole discretion, amend or modify this Agreement without obtaining any additional consent from you, so long as such amendment or modification does not materially affect the net present value of the compensation or benefits to which you otherwise would be entitled under this Agreement.
8.2. A termination of employment shall not be deemed to have occurred for purposes of any provision of this Agreement providing for the payment of any amounts or benefits upon or following a termination of employment unless such termination is also a separation from service within the meaning of Code Section 409A and, for purposes of any such provision of this Agreement, references to a termination, termination of employment or like terms shall mean separation from service. If you are deemed on the date of termination to be a specified employee within the meaning of that term under Code Section 409A(a)(2)(B), then with regard to any payment or the provision of any benefit that is considered nonqualified deferred compensation under Code Section 409A payable on account of a separation from service, such payment or benefit shall be made or provided at the date which is the earlier of (a) the expiration of the six (6) month period measured from the date of your separation from service, and (b) the date of your death (the Delay Period ). Upon the expiration of the Delay Period, all payments and benefits delayed pursuant to this Section (whether they would have otherwise been payable in a single sum or in installments in the absence of such delay) shall be paid or reimbursed to you in a lump sum, and any remaining payments and benefits due under this Agreement shall be paid or provided in accordance with the normal payment dates specified for them herein.
8.3. If a general release of claims, as contemplated under Section 7 hereof, is executed and delivered (and no longer subject to revocation) in the manner provided in said Section 7, then the following shall apply:
(a) To the extent that the Severance Pay is not nonqualified deferred compensation for purposes of Code Section 409A, then the Severance Pay shall commence upon the first scheduled payment date immediately following the date that the release is executed, delivered and no longer subject to revocation (the Release Effective Date ). The first such cash payment shall include payment of all amounts that otherwise would have been due prior to the Release Effective Date under the terms of this Agreement applied as though
such payments commenced immediately upon your termination of employment, and any payments made thereafter shall continue as provided herein.
(b) To the extent that the Severance Pay is nonqualified deferred compensation for purposes of Code Section 409A, then such payments or benefits shall be made or commence upon the sixtieth (60th) day following your termination of employment. The first such cash payment shall include payment of all amounts that otherwise would have been due prior thereto under the terms of this Agreement had such payments commenced immediately upon your termination of employment, and any payments made thereafter shall continue as provided herein.
8.4. For purposes of compliance with Code Section 409A, (a) all expenses or other reimbursements hereunder shall be made on or prior to the last day of the taxable year following the taxable year in which such expenses were incurred by you, (b) any right to reimbursement or in kind benefits is not subject to liquidation or exchange for another benefit, and (c) no such reimbursement, expenses eligible for reimbursement, or in kind benefits provided in any taxable year shall in any way affect the expenses eligible for reimbursement, or in kind benefits to be provided, in any other taxable year.
8.5. For purposes of Code Section 409A, your right to receive any installment payments pursuant to this Agreement shall be treated as a right to receive a series of separate and distinct payments.
8.6. In no event shall any payment under this Agreement that constitutes nonqualified deferred compensation for purposes of Code Section 409A be subject to offset by any other amount unless otherwise permitted by Code Section 409A.
8.7. In no event whatsoever shall the Company be liable for any additional tax, interest or penalty that may be imposed on you by Code Section 409A or damages for failing to comply with Code Section 409A.
9. Confidential Information, Intellectual Property .
9.1. Confidentiality . You agree not to disclose, distribute, publish, communicate or in any way cause to be disclosed, distributed, published, or communicated in any way or at any time, Confidential Information (as defined herein), or any part of Confidential Information, to any person, firm, corporation, association, or any other operation or entity except on behalf of the Company in performance of your duties and responsibilities for the Company, and then only in a fashion consistent with protecting the Confidential Information from unauthorized use or disclosure, except as otherwise approved by the Company. You further agree not to use or permit the reproduction of any Confidential Information except on behalf of the Company in your capacity as an employee of the Company. You agree to take all reasonable care to avoid the unauthorized disclosure or use of any Confidential Information. You assume responsibility for and agree to indemnify and hold harmless the Company from and against any disclosure or use of the Confidential Information in violation of this Agreement.
9.2. Confidential Information . For the purpose of this Agreement, Confidential Information shall mean any written or unwritten information which relates to or is used in the Companys business (including, without limitation, information related to the names, addresses, buying habits and other special information regarding past, present and potential customers, employees and suppliers of the Company;
customer and supplier contracts and transactions or price lists of the Company and suppliers; all agreements, files, books, logs, charts, records, studies, reports, processes, schedules and statistical information relating to the Company; all products, services, programs and processes sold, and all computer software licensed or developed by the Company; data, plans and specifications related to present or future development projects of the Company; financial or marketing data respecting the conduct of the present or future phases of business of the Company; computer programs, computer or web based training programs, systems or software; ideas, inventions, trademarks, business information, know how, processes, techniques, improvements, designs, redesigns, creations, discoveries and developments of the Company; and finances and financial information of the Company) which the Company deems confidential and proprietary, which is generally not known to others outside the Company, or which gives or tends to give the Company a competitive advantage over persons who do not possess such information or the secrecy of which is otherwise of value to the Company in the conduct of its business regardless of when and by whom such information was developed or acquired, and regardless of whether any of these are described in writing, copyrightable or considered copyrightable, patentable or considered patentable. Confidential Information shall not include general industry information or information which is publicly available or otherwise known to those persons outside the Company working in the area of the business of the Company or is otherwise in the public domain without breach of this Agreement or information which you have lawfully acquired without an obligation to maintain the information in confidence from a source other than the Company. Confidential Information specifically includes information received by the Company from others, including the Companys clients, that the Company has an obligation to treat as confidential and also includes any confidential information acquired or obtained by you while in the employment of any Affiliate.
9.3. Invention Ownership . With respect to information, inventions and discoveries developed, made or conceived by you, either alone or with others, at any time during your employment by the Company and whether or not within normal working hours, arising out of such employment or pertinent to any field of business or research in which, during such employment, the Company is engaged or (if such is known to or ascertainable by you) is considering engaging, you agree:
(a) that all such information, inventions and discoveries, whether or not patented or patentable, shall be and remain the sole property of the Company;
(b) to disclose promptly to an authorized representative of the Company all such information, inventions and discoveries and all information in your possession as to possible applications and uses thereof;
(c) not to file any patent applications relating to any such invention or discovery except with the prior consent of an authorized representative of the Company; and
(d) at the request of the Company, and without expense or additional compensation to you, to execute such documents and perform such other acts as the Company deems necessary, to obtain patents on such inventions in a jurisdiction or jurisdictions designated by the Company, and to assign to the Company or its designee such inventions and all patent applications and patents relating thereto.
Both the Company and you intend that all original works of authorship within the purview of the copyright laws of the United States authored or created by you in the course of your employment with the Company will be works for hire within the meaning of such copyright laws.
9.4. Confidentiality of Inventions; Return of Materials and Confidential Information . With respect to the information, inventions and discoveries referred to in Section 9.3, and also with respect to all other information, whatever its nature and form and whether obtained orally, by observation, from graphic materials, or otherwise (except such as is generally available through publication) obtained by you during or as a result of your employment by the Company and relating to any product, service, process, or apparatus or to any use of any of them, or to materials, tolerances, specifications, costs (including manufacturing costs), prices, or to any plans of the Company, you agree:
(a) to hold all such information, inventions and discoveries in strict confidence and not to publish or otherwise disclose any portion thereof except with the prior consent of an authorized representative of the Company;
(b) to take all reasonable precautions to ensure that all such information, inventions, and discoveries are properly protected from access by unauthorized persons;
(c) to make no use of any such information, invention, or discovery except as required or permitted in the performance of your duties and responsibilities for the Company; and
(d) upon termination of your employment by the Company, or at any time upon request of the Company, to deliver to the Company all graphic materials and all substances, models, prototypes and the like containing or relating to Confidential Information or any such information, invention, or discovery, all of which graphic materials and other things shall be and remain the sole property of the Company. The term graphic materials includes letters, memoranda, reports, notes, notebooks, books of account, drawings, prints, specifications, formulae, data printouts, microfilms, magnetic tapes and disks and other documents and recordings, together with all copies thereof.
10. Non Solicitation . Regardless of whether you are eligible to receive Severance Pay, you agree that, if your employment with the Company ends for any reason, you will not, for a period of twelve (12) months following such termination of employment, (i) directly or indirectly, either for yourself or for any other person, business, company or entity, hire from the Company or any Affiliate, or attempt to hire, divert or take away from the Company or any Affiliate, any of the then current officers or employees of the Company or any Affiliate, (ii) interfere with or harm, or attempt to interfere with or harm, the relationship of the Company or any Affiliate with any person who at any time was an employee, customer or supplier of the Company or any Affiliate or otherwise had a business relationship with the Company or any Affiliate, or (iii) unless compelled by law to do so, directly or indirectly, knowingly make any statement or other communication that impugns or attacks the reputation or character of the Company or any Affiliate, or damages the goodwill of the Company or any Affiliate, or knowingly take any action, directly or indirectly, that would interfere with any contractual or customer or supplier relationships of the Company or any Affiliate.
11. Non Competition . If you resign your employment, or if your employment is terminated with Cause, for a period of (6) months following such employment termination prior to the two year anniversary of the start date of employment under this agreement and twelve (12) months if terminated thereafter, you may not and will not, within the United States of America,
directly or indirectly, without the prior written consent of the Companys Chief Executive Officer or its Board of Directors (which may be given or withheld in its sole discretion), own, manage, operate, join, control, be employed by, consult with or participate in the ownership, management, operation or control of, or be connected with (as a stockholder, partner or otherwise) any business, partnership, firm, company, corporation or other entity engaged in the retail business of womens fashion apparel, accessories and related products or any other product sold or intended to be sold by the Company or an Affiliate during your employment with the Company. Notwithstanding the foregoing, your beneficial ownership after your termination of employment with the Company, either individually or as a member of a group, of not more than two percent (2%) of the voting stock of any publicly held corporation shall not be a violation of this provision.
12. Remedies . You acknowledge that money will not adequately compensate the Company for the substantial damages that will arise upon the breach of any provision of Sections 9, 10 and 11 of this Agreement and that the Company would have no adequate remedy at law. For this reason, any claim the Company may make that you have breached or are threatening to breach Sections 9, 10 or 11 is not subject to mandatory arbitration under Section 15. Instead, if you breach or threaten to breach any provision of Sections 9, 10 or 11, the Company will be entitled, in addition to other rights and remedies, to specific performance, injunctive relief and other equitable relief to prevent or restrain any breach or threatened breach of Sections 9, 10 or 11. The Company may obtain such relief from (i) any court of competent jurisdiction, (ii) an arbitrator acting pursuant to Section 15 hereof, or (iii) a combination of the two (e.g., by simultaneously seeking arbitration under Section 15 and a temporary injunction from a court pending the outcome of the arbitration). It shall be the Companys sole and exclusive right to elect which approach to use to vindicate its rights. You also agree that in the event of a breach (or any threat of breach) the Company shall be entitled to obtain an immediate injunction and restraining order to prevent such breach or threatened breach or continued breach, without having to prove damages, and to obtain all costs and expenses, including reasonable attorneys fees and costs. In addition, the existence of any claim or cause of action by you against the Company, whether predicated on this Agreement or otherwise, shall not constitute a defense to the enforcement by the Company of the restrictive covenants of this Agreement.
13. Acknowledgment of Reasonableness . You and the Company specifically agree that the provisions of the restrictive covenants contained in this Agreement, including the post employment covenants regarding non solicitation and non competition, are reasonable and that the Company would not have entered into this Agreement but for the inclusion of such covenants. You understand that the Companys business is nationwide, and, therefore, a nationwide restrictive covenant is reasonable. If a court or arbitrator determines that any provision of any such restrictive covenant is unreasonable, whether in period of time, geographical area, or otherwise, you and the Company agree that the covenant shall be interpreted and enforced to the maximum extent which a court or arbitrator deems reasonable. In addition, you and the Company authorize any such court or arbitrator to reform these restrictions to the minimum extent necessary.
14. Company Property . Upon your termination of employment for any reason, you will promptly return to the Company all Company related documents and Company property within your possession or control.
15. Arbitration of Disputes. Except as set forth in Section 12, any dispute, claim or difference arising out of or in relation to your employment will be settled exclusively by binding arbitration administered by the American Arbitration Association under its National Rules for the Resolution of Employment Disputes before a single arbitrator. You expressly understand and agree that claims subject to arbitration under this section include asserted violations of the Employee Retirement and Income Security Act of 1974; the Age Discrimination in Employment Act; the Older Workers Benefit Protection Act; the Americans with Disabilities Act; Title VII of the Civil Rights Act of 1964 (as amended); the Family and Medical Leave Act; and any law prohibiting discrimination, harassment or retaliation in employment, whether based on federal, state or local
law; any claim of breach of contract, tort, promissory estoppel or detrimental reliance, defamation, intentional infliction of emotional distress; or the public policy of any state, or any other federal, state or local law. The arbitration will be held in New York, New York unless you and the Company (each a Party , and jointly, the Parties ) mutually agree otherwise. To the extent permitted by law, each Party will bear its own costs and fees of the arbitration, and other fees and expenses of the arbitrator will be borne equally by the Parties; provided , however , that the arbitrator will be empowered to require any one or more of the Parties to bear all or any portion of fees and expenses of the Parties or the fees and expenses of the arbitrator in the event that the arbitrator determines such Party has acted in bad faith. The arbitrator will have the authority to award any remedy or relief that a court of the State of New York could order or grant. The decision and award of the arbitrator will be binding on all Parties. Either Party to the arbitration may seek to have the ruling of the arbitrator entered in any court having jurisdiction thereof. Each Party agrees that it will not file suit, motion, petition or otherwise commence any legal action or proceeding for any matter which is required to be submitted to arbitration as contemplated herein, except in connection with the enforcement of an award rendered by an arbitrator and except to seek the issuance of an injunction or temporary restraining order pending a final determination by the arbitrator.
16. Post Termination Cooperation . As is required of you during employment, you agree that during and after employment with the Company you will, without expense or additional compensation to you, cooperate with the Company or any Affiliate in the following areas:
16.1. Cooperation With the Company . You agree [a] to be reasonably available to answer questions for the Companys (or any Affiliates) officers regarding any matter, project, initiative or effort for which you were responsible while employed by the Company and [b] to cooperate with the Company (and with any Affiliate) during the course of all third party proceedings arising out of the Companys (or any Affiliates) business about which you have knowledge or information. For purposes of this Agreement, [c] proceedings includes internal investigations, administrative investigations or proceedings and lawsuits (including pre trial discovery and trial testimony) and [d] cooperation includes [i] your being reasonably available for interviews, meetings, depositions, hearings or trials without the need for subpoena or assurances by the Company (or any Affiliate), [ii] providing any and all documents in your possession that relate to the proceeding, and [iii] providing assistance in locating any and all relevant notes and documents.
16.2. Cooperation With Media . You agree not to communicate with, or give statements to, any member of the media (including print, television or radio media) relating to any matter (including pending or threatened lawsuits or administrative investigations) about which you have knowledge or information (other than knowledge or information that is not Confidential Information as defined in Section 9.3) as a result of employment with the Company. You also agree to notify the Chief Executive Officer or his designee immediately after being contacted by any member of the media with respect to any matter affected by this section.
17. Entire Agreement . This Agreement constitutes your entire agreement with the Company relating to the subject mater hereof, and supersedes in its entirety any and all prior agreements, understandings or arrangements with the Company.
18. Governing Law . All issues and questions concerning the construction, validity, enforcement and interpretation of this Agreement shall be governed by, and construed in accordance with, the laws of the State of New York, without regard to the choice of law principles thereof.
19. Survival of Provisions . Sections 8 through 18 will survive the termination of your employment for any reason and shall not be affected by any transfer(s) between the Company and its Affiliate(s).
20. Understandings and Representations . You should not sign this Agreement until you understand its terms and conditions. Your execution of this Agreement represents your acknowledgement that you have take all steps you believe necessary, including consultation with financial and legal advisors of your choice, to understand this Agreement.
Sincerely,
By: |
/s/ Gregory Scott |
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Dated: |
August 28, 2010 |
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Gregory Scott |
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President |
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By: |
/s/ Eran Cohen |
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Dated: |
September 5, 2010 |
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Eran Cohen |
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EVP, Chief Marketing Officer |
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Exhibit 10.13
Ms. Michele Parsons
Re: Letter Agreement of Employment
Dear Michele:
This letter agreement (this Agreement ) sets forth the terms and conditions of your employment, and your employment relationship, with Lerner New York, Inc. (the Company ). Your execution of this Agreement will represent your acceptance of all of the terms set forth below.
1. Nature of Agreement and Relationship . This Agreement does not represent an employment contract for any specified term. Your employment relationship thus will remain at will, meaning that, subject to the terms hereof, either party to this Agreement may terminate the employment relationship at any time for any lawful reason.
2. Job Title and Duties . Your job title will be EVP, Merchandising. You will be expected to devote all of your full time efforts to the performance of the duties and responsibilities normally associated with this position, including those from time to time that may be assigned to you by your Supervisor, the President, the Chief Executive Officer or the Board of Directors of the Company (or the designee of any of the foregoing).
3. Salary . For the 12 month period ending on the last Saturday of each January (the last day of the fiscal year), you will receive a base salary at the rate of $500,000 per annum ( Base Salary ), subject to the remaining provisions of this Section. For the remainder of the current fiscal year starting on the date of this Agreement, your Base Salary will be pro rated based on the number of days remaining in such fiscal year divided by 365. At the Companys sole discretion, your Base Salary may be increased, but not decreased, based on your performance and the performance of the business. You will be paid in accordance with the Companys normal payroll policies and practices, with all applicable deductions being withheld from your paychecks.
4. Bonus . You will be eligible to participate in the Companys then current bonus plan, in accordance with its terms and conditions, and to receive performance based bonuses pursuant to any formula that may be established. For the Companys fiscal year, your bonus target for the spring bonus (relating to the Companys results for the first and second fiscal quarters of each fiscal year) will be 17.5 percent of your Base Salary; for the fall bonus (relating to the Companys results for the third and fourth fiscal quarters of each fiscal year) will be 22.5 percent of your Base Salary; and for the annual bonus (relating to the Companys results for the fiscal year) will be 10 percent of your Base Salary. It should be noted that for Fall 2010 and Fiscal 2010 any bonus payments that you are eligible to receive will be prorated based on your date of hire. Any amount payable in respect of the spring bonus will be paid in the calendar month immediately following the end of the applicable performance period to which that bonus
relates. Any amount payable in respect of the fall or the annual bonus will be paid within two and one half months following the end of the applicable performance period to which that bonus relates. All bonuses are determined at the Companys sole discretion, and the Company has the sole discretion to modify or terminate any bonus plan. Upon your termination of employment by the Company and all Affiliates without Cause or by you for Good Reason (each, as defined below), but subject to your performance of all post employment obligations set forth in this Agreement, you will be entitled to receive a pro rata bonus with respect to the bonus period in which the termination occurs, such bonus (x) to be equal to the bonus which would have been payable under this Section 4 and the terms of the bonus plan for such bonus period had you continued to be an employee of the Company or its Affiliates during such bonus period, multiplied by a ratio, the numerator of which is the number of days in such bonus period during which you were an employee at the Company or its Affiliates and the denominator of which is the total number of days in such bonus period, and (y) to be payable when bonuses for such bonus period are paid to the Companys employees generally;
5. SARs, and Other Long Term Incentives . You will be eligible to receive awards under SARs, restricted stock or other equity based long term incentive plans established by the Company (or an Affiliate) that cover executive officers of the Company. The term Affiliate means any corporation, partnership, limited liability company or other entity (other than the Company) that controls or is controlled by the Company, whether directly or indirectly, such as a parent company or subsidiary. All equity awards described in this paragraph are determined at the Companys sole discretion, and the Company has the sole discretion to modify or terminate any SARs, restricted stock or other equity based long term incentive plan and that plan will govern your rights, if any, relating to any equity award(s) you have received, or may be entitled to receive, upon termination of your employment. Upon your commencement of employment, you shall be entitled to a grant of stock appreciation rights for 100,000 shares of the Companys common stock and a grant of a restricted stock award for 150,000 shares of the Companys common stock, subject to such terms and conditions as are contained in the Companys standard form of award agreement for such equity awards (the Initial Equity Awards).
6. Employee Benefits .
6.1. You will be entitled to participate in all employee benefits plans, practices and programs maintained by the Company and made available to senior executives generally and as may be in effect from time to time (the Benefits Plans ). Your participation in the Benefits Plans will be on the same basis and terms as are applicable to senior executives of the Company generally. Benefits Plans include, but are not limited to, savings and retirement plans, deferred compensation, health and prescription drug benefits, disability benefits, other insurance programs, vacation and other leave, merchandise discounts and business expense procedures. Plan documents setting forth terms of certain of the Benefits Plans are available upon request, which plan documents control all questions of interpretation concerning applicable Benefits Plans, including your rights, if any, upon termination of your employment. The Benefits Plans are subject to modification or termination by the Company at any time, at its sole discretion, in accordance with their terms.
6.2. Within two weeks following your commencement of employment with the Company, you shall be entitled to receive the sign-on bonus referenced in the offer letter previously provided to you from the Company consistent with the terms and conditions therein, subject to your continued employment with the Company and its Affiliates on the date of payment. It is further agreed that you will have no reimbursement obligations regarding the sign-on bonus in the event you are terminated by the Company without cause, you terminate your employment for Good Reason or resign due to disability.
7. Severance Pay; Accelerated Equity Vesting .
7.1. Upon your termination of employment by the Company and all Affiliates without Cause or by you for Good Reason (each, as defined below), but subject to your performance of all post employment obligations set forth in this Agreement, you will be entitled to receive severance pay for twelve (12) months (Severance Period) at your final Base Salary (Severance Pay), beginning the first pay period following your separation date and ending upon the earlier of: (i) your receipt of the number of weekly payments coinciding with the length of the Severance Period (such number of payments to be adjusted if any change is made to the frequency of regularly scheduled payroll dates) or (ii) your first day of employment with another employer, whichever is earlier. The Severance Pay shall be conditioned upon your execution and delivery to the Company of a general release of claims in favor of the Company in a form reasonably satisfactory to the Company. Such release shall be executed and delivered (and no longer subject to revocation, if applicable) within sixty (60) days following your termination of employment. If you fail to execute such release as provided above, you shall forfeit all of your rights to receive the Severance Pay. If you obtain employment at an annual salary that is lower than your final Base Salary, you will continue to receive the differential between the two rates of pay for the balance of the Severance Period. This Severance Pay, which will be subject to applicable deductions required by law, will be paid on the Companys regular payroll dates as in effect on the date of each such payment for the balance of the Severance Period following your termination date, as outlined above. In addition, upon your termination of employment by the Company and all Affiliates without Cause or by you for Good Reason prior to the two year anniversary of this Agreement, but subject to your performance of all post employment obligations set forth in this Agreement, 50% of the unvested portion of the Initial Equity Awards shall immediately vest and shall remain subject to the otherwise applicable provisions set forth in the applicable award agreement and equity plan under which such awards were granted.
7.2. For purposes of this Agreement, Cause means the occurrence of any of the following: (i) your willful failure to substantially perform your duties to the Company (other than as a result of death or a physical or mental incapacity); (ii) your conviction of, or plea of guilty or nolo contendere to, a felony (regardless of the nature of the felony) or any other crime involving dishonesty, fraud or moral turpitude; (iii) your gross negligence or willfull misconduct (including, but not limited to, acts of fraud, criminal activity, professional misconduct, dishonesty, or breach of trust or other fiduciary duty) in connection with the performance of your duties and responsibilities to the Company or with regard to the Company or its assets; (iv) your willfull failure to comply with the rules and policies of the Company governing employee conduct or with the lawful directives of the Board of Directors of the Company or a more senior executive of the Company; or (v) your material breach of any material term of this Agreement or any obligation under any non disclosure, non solicitation, non competition or other restrictive covenant, employment or any other agreement with the Company. Any determination of Cause will be made in the good faith discretion of the Company, provided that no such determination may be made until you have been given written notice detailing the specific Cause event and a period of thirty (30) days following receipt of such notice to cure such event (if susceptible to cure) to the satisfaction of the Company.
7.3. For purposes of this Agreement, Good Reason means the occurrence of any of the following: (i) a diminution in your title or a material diminution of your duties or the assignment to you of duties which are materially inconsistent with your
duties or which materially impair your ability to function as EVP - Merchandising of the Company; (ii) the Companys material breach of any material term of this Agreement, or (iii) relocation of your primary work location outside of a fifty (50) mile radius from the New York City metropolitan area; provided that no Good Reason shall exist unless (A) you have given written notice to the Company within thirty (30) days of the initial existence of the Good Reason condition(s) or event(s), such notice to provide specific details of such condition(s) or events(s), and (B) the Company has failed to cure each such condition or event within thirty (30) days after receiving such notice.
8. Code Section 409A Compliance .
8.1. It is the Companys intent that compensation and benefits to which you are entitled under this Agreement not be treated as nonqualified deferred compensation under Section 409A of the Internal Revenue Code of 1986, as amended, and the treasury regulations and other official guidance promulgated thereunder ( Code Section 409A ), and that any ambiguities in the construction of this Agreement be interpreted in order to effectuate such intent. In the event that the Company determines, in its sole discretion, that any compensation or benefits to which you are entitled under this Agreement could be treated as nonqualified deferred compensation under Code Section 409A unless this Agreement is amended or modified, the Company may, in its sole discretion, amend or modify this Agreement without obtaining any additional consent from you, so long as such amendment or modification does not materially affect the net present value of the compensation or benefits to which you otherwise would be entitled under this Agreement.
8.2. A termination of employment shall not be deemed to have occurred for purposes of any provision of this Agreement providing for the payment of any amounts or benefits upon or following a termination of employment unless such termination is also a separation from service within the meaning of Code Section 409A and, for purposes of any such provision of this Agreement, references to a termination, termination of employment or like terms shall mean separation from service. If you are deemed on the date of termination to be a specified employee within the meaning of that term under Code Section 409A(a)(2)(B), then with regard to any payment or the provision of any benefit that is considered nonqualified deferred compensation under Code Section 409A payable on account of a separation from service, such payment or benefit shall be made or provided at the date which is the earlier of (a) the expiration of the six (6) month period measured from the date of your separation from service, and (b) the date of your death (the Delay Period ). Upon the expiration of the Delay Period, all payments and benefits delayed pursuant to this Section (whether they would have otherwise been payable in a single sum or in installments in the absence of such delay) shall be paid or reimbursed to you in a lump sum, and any remaining payments and benefits due under this Agreement shall be paid or provided in accordance with the normal payment dates specified for them herein.
8.3. If a general release of claims, as contemplated under Section 7 hereof, is executed and delivered (and no longer subject to revocation) in the manner provided in said Section 7, then the following shall apply:
(a) To the extent that the Severance Pay is not nonqualified deferred compensation for purposes of Code Section 409A, then the Severance Pay shall commence upon the first scheduled payment date immediately following the date that the release is executed, delivered and no longer subject to revocation (the Release Effective Date). The first such cash payment shall
include payment of all amounts that otherwise would have been due prior to the Release Effective Date under the terms of this Agreement applied as though such payments commenced immediately upon your termination of employment, and any payments made thereafter shall continue as provided herein.
(b) To the extent that the Severance Pay is nonqualified deferred compensation for purposes of Code Section 409A, then such payments or benefits shall be made or commence upon the sixtieth (60th) day following your termination of employment. The first such cash payment shall include payment of all amounts that otherwise would have been due prior thereto under the terms of this Agreement had such payments commenced immediately upon your termination of employment, and any payments made thereafter shall continue as provided herein.
8.4. For purposes of compliance with Code Section 409A, (a) all expenses or other reimbursements hereunder shall be made on or prior to the last day of the taxable year following the taxable year in which such expenses were incurred by you, (b) any right to reimbursement or in kind benefits is not subject to liquidation or exchange for another benefit, and (c) no such reimbursement, expenses eligible for reimbursement, or in kind benefits provided in any taxable year shall in any way affect the expenses eligible for reimbursement, or in kind benefits to be provided, in any other taxable year.
8.5. For purposes of Code Section 409A, your right to receive any installment payments pursuant to this Agreement shall be treated as a right to receive a series of separate and distinct payments.
8.6. In no event shall any payment under this Agreement that constitutes nonqualified deferred compensation for purposes of Code Section 409A be subject to offset by any other amount unless otherwise permitted by Code Section 409A.
8.7. In no event whatsoever shall the Company be liable for any additional tax, interest or penalty that may be imposed on you by Code Section 409A or damages for failing to comply with Code Section 409A.
9. Confidential Information, Intellectual Property .
9.1. Confidentiality . You agree not to disclose, distribute, publish, communicate or in any way cause to be disclosed, distributed, published, or communicated in any way or at any time, Confidential Information (as defined herein), or any part of Confidential Information, to any person, firm, corporation, association, or any other operation or entity unless legally required or except on behalf of the Company in performance of your duties and responsibilities for the Company, and then only in a fashion consistent with protecting the Confidential Information from unauthorized use or disclosure, except as otherwise approved by the Company. You further agree not to use or permit the reproduction of any Confidential Information except on behalf of the Company in your capacity as an employee of the Company. You agree to take all reasonable care to avoid the unauthorized disclosure or use of any Confidential Information. You assume responsibility for and agree to indemnify and hold harmless the Company from and against any disclosure or use of the Confidential Information in violation of this Agreement.
9.2. Confidential Information . For the purpose of this Agreement, Confidential Information shall mean any written or unwritten information which relates to or is
used in the Companys business (including, without limitation, information related to the names, addresses, buying habits and other special information regarding past, present and potential customers, employees and suppliers of the Company; customer and supplier contracts and transactions or price lists of the Company and suppliers; all agreements, files, books, logs, charts, records, studies, reports, processes, schedules and statistical information relating to the Company; all products, services, programs and processes sold, and all computer software licensed or developed by the Company; data, plans and specifications related to present or future development projects of the Company; financial or marketing data respecting the conduct of the present or future phases of business of the Company; computer programs, computer or web based training programs, systems or software; ideas, inventions, trademarks, business information, know how, processes, techniques, improvements, designs, redesigns, creations, discoveries and developments of the Company; and finances and financial information of the Company) which the Company deems confidential and proprietary, which is generally not known to others outside the Company, or which gives or tends to give the Company a competitive advantage over persons who do not possess such information or the secrecy of which is otherwise of value to the Company in the conduct of its business regardless of when and by whom such information was developed or acquired, and regardless of whether any of these are described in writing, copyrightable or considered copyrightable, patentable or considered patentable. Confidential Information shall not include general industry information or information which is publicly available or otherwise known to those persons outside the Company working in the area of the business of the Company or is otherwise in the public domain without breach of this Agreement or information which you have lawfully acquired without an obligation to maintain the information in confidence from a source other than the Company. Confidential Information specifically includes information received by the Company from others, including the Companys clients, that the Company has an obligation to treat as confidential and also includes any confidential information acquired or obtained by you while in the employment of any Affiliate.
9.3. Invention Ownership . With respect to information, inventions and discoveries developed, made or conceived by you, either alone or with others, at any time during your employment by the Company and whether or not within normal working hours, arising out of such employment or pertinent to any field of business or research in which, during such employment, the Company is engaged or (if such is known to or ascertainable by you) is considering engaging, you agree:
(a) that all such information, inventions and discoveries, whether or not patented or patentable, shall be and remain the sole property of the Company;
(b) to disclose promptly to an authorized representative of the Company all such information, inventions and discoveries and all information in your possession as to possible applications and uses thereof;
(c) not to file any patent applications relating to any such invention or discovery except with the prior consent of an authorized representative of the Company; and
(d) at the request of the Company, and without expense or additional compensation to you, to execute such documents and perform such other acts as the Company deems necessary, to obtain patents on such inventions in a jurisdiction or jurisdictions designated by the Company, and to
assign to the Company or its designee such inventions and all patent applications and patents relating thereto.
Both the Company and you intend that all original works of authorship within the purview of the copyright laws of the United States authored or created by you in the course of your employment with the Company will be works for hire within the meaning of such copyright laws.
9.4. Confidentiality of Inventions; Return of Materials and Confidential Information . With respect to the information, inventions and discoveries referred to in Section 9.3, and also with respect to all other information, whatever its nature and form and whether obtained orally, by observation, from graphic materials, or otherwise (except such as is generally available through publication) obtained by you during or as a result of your employment by the Company and relating to any product, service, process, or apparatus or to any use of any of them, or to materials, tolerances, specifications, costs (including manufacturing costs), prices, or to any plans of the Company, you agree:
(a) to hold all such information, inventions and discoveries in strict confidence and not to publish or otherwise disclose any portion thereof except with the prior consent of an authorized representative of the Company;
(b) to take all reasonable precautions to ensure that all such information, inventions, and discoveries are properly protected from access by unauthorized persons;
(c) to make no use of any such information, invention, or discovery except as required or permitted in the performance of your duties and responsibilities for the Company; and
(d) upon termination of your employment by the Company, or at any time upon request of the Company, to deliver to the Company all graphic materials and all substances, models, prototypes and the like containing or relating to Confidential Information or any such information, invention, or discovery, all of which graphic materials and other things shall be and remain the sole property of the Company. The term graphic materials includes letters, memoranda, reports, notes, notebooks, books of account, drawings, prints, specifications, formulae, data printouts, microfilms, magnetic tapes and disks and other documents and recordings, together with all copies thereof.
10. Non Solicitation . Regardless of whether you are eligible to receive Severance Pay, you agree that, if your employment with the Company ends for any reason, you will not, for a period of twelve (12) months following such termination of employment, (i) directly or indirectly, either for yourself or for any other person, business, company or entity, hire from the Company or any Affiliate, or attempt to hire, divert or take away from the Company or any Affiliate, any of the then current officers or employees of the Company or any Affiliate, (ii) interfere with or harm, or attempt to interfere with or harm, the relationship of the Company or any Affiliate with any person who at any time was an employee, customer or supplier of the Company or any Affiliate or otherwise had a business relationship with the Company or any Affiliate, or (iii) unless compelled by law to do so, directly or indirectly, knowingly make any statement or other communication that impugns or attacks the reputation or character of the Company or any Affiliate, or damages the goodwill of the Company or any Affiliate, or knowingly take any action, directly or indirectly, that would interfere with any contractual or customer or supplier relationships of the Company or any Affiliate.
11. Non-Competition . If you resign your employment without Good Reason, or if your employment is terminated with Cause, for a period of twelve (12) months following such employment termination, you may not and will not, within the United States of America, directly or indirectly, without the prior written consent of the Companys Chief Executive Officer or its Board of Directors (which may be given or withheld in its sole discretion), own, manage, operate, join, control, be employed by, consult with or participate in the ownership, management, operation or control of, or be connected with (as a stockholder, partner or otherwise) any business, partnership, firm, company, corporation or other entity of which the majority of the business operations are engaged in the retail business of moderate womens fashion apparel, accessories and related products or any other product sold or intended to be sold by the Company or an Affiliate during your employment with the Company. Notwithstanding the foregoing, your passive, beneficial ownership after your termination of employment with the Company, either individually or as a member of a group, of not more than two percent (2%) of the voting stock of a corporation engaged in a business that is in competition with the Company or any of its Affiliates shall not be a violation of this provision so long as you have no active participation in the business of such corporation.
12. Remedies . You acknowledge that money will not adequately compensate the Company for the substantial damages that will arise upon the breach of any provision of Sections 9, 10 and 11 of this Agreement and that the Company would have no adequate remedy at law. For this reason, any claim the Company may make that you have breached or are threatening to breach Sections 9, 10 or 11 is not subject to mandatory arbitration under Section 15. Instead, if you breach or threaten to breach any provision of Sections 9, 10 or 11, the Company will be entitled, in addition to other rights and remedies, to specific performance, injunctive relief and other equitable relief to prevent or restrain any breach or threatened breach of Sections 9, 10 or 11. The Company may obtain such relief from (i) any court of competent jurisdiction, (ii) an arbitrator acting pursuant to Section 15 hereof, or (iii) a combination of the two (e.g., by simultaneously seeking arbitration under Section 15 and a temporary injunction from a court pending the outcome of the arbitration). It shall be the Companys sole and exclusive right to elect which approach to use to vindicate its rights. You also agree that in the event of a breach (or any threat of breach) the Company shall be entitled to obtain an immediate injunction and restraining order to prevent such breach or threatened breach or continued breach, without having to prove damages, and to obtain all costs and expenses, including reasonable attorneys fees and costs. In addition, the existence of any claim or cause of action by you against the Company, whether predicated on this Agreement or otherwise, shall not constitute a defense to the enforcement by the Company of the restrictive covenants of this Agreement.
13. Acknowledgment of Reasonableness . You and the Company specifically agree that the provisions of the restrictive covenants contained in this Agreement, including the post employment covenants regarding non solicitation and non competition, are reasonable and that the Company would not have entered into this Agreement but for the inclusion of such covenants. You understand that the Companys business is nationwide, and, therefore, a nationwide restrictive covenant is reasonable. If a court or arbitrator determines that any provision of any such restrictive covenant is unreasonable, whether in period of time, geographical area, or otherwise, you and the Company agree that the covenant shall be interpreted and enforced to the maximum extent which a court or arbitrator deems reasonable. In addition, you and the Company authorize any such court or arbitrator to reform these restrictions to the minimum extent necessary.
14. Company Property . Upon your termination of employment for any reason, you will promptly return to the Company all Company related documents and Company property within your possession or control.
15. Arbitration of Disputes. Except as set forth in Section 12, any dispute, claim or difference arising out of or in relation to your employment will be settled exclusively by binding arbitration administered by the American Arbitration Association under its National Rules for the
Resolution of Employment Disputes before a single arbitrator. You expressly understand and agree that claims subject to arbitration under this section include asserted violations of the Employee Retirement and Income Security Act of 1974; the Age Discrimination in Employment Act; the Older Workers Benefit Protection Act; the Americans with Disabilities Act; Title VII of the Civil Rights Act of 1964 (as amended); the Family and Medical Leave Act; and any law prohibiting discrimination, harassment or retaliation in employment, whether based on federal, state or local law; any claim of breach of contract, tort, promissory estoppel or detrimental reliance, defamation, intentional infliction of emotional distress; or the public policy of any state, or any other federal, state or local law. The arbitration will be held in New York, New York unless you and the Company (each a Party , and jointly, the Parties ) mutually agree otherwise. To the extent permitted by law, each Party will bear its own costs and fees of the arbitration, and other fees and expenses of the arbitrator will be borne equally by the Parties; provided , however , that the arbitrator will be empowered to require any one or more of the Parties to bear all or any portion of fees and expenses of the Parties or the fees and expenses of the arbitrator in the event that the arbitrator determines such Party has acted in bad faith. The arbitrator will have the authority to award any remedy or relief that a court of the State of New York could order or grant. The decision and award of the arbitrator will be binding on all Parties. Either Party to the arbitration may seek to have the ruling of the arbitrator entered in any court having jurisdiction thereof. Each Party agrees that it will not file suit, motion, petition or otherwise commence any legal action or proceeding for any matter which is required to be submitted to arbitration as contemplated herein, except in connection with the enforcement of an award rendered by an arbitrator and except to seek the issuance of an injunction or temporary restraining order pending a final determination by the arbitrator.
16. Post Termination Cooperation . As is required of you during employment, you agree that during and after employment with the Company you will, without expense or additional compensation to you, cooperate with the Company or any Affiliate in the following areas:
16.1. Cooperation With the Company . You agree (a) to be reasonably available to answer questions for the Companys (or any Affiliates) officers regarding any matter, project, initiative or effort for which you were responsible while employed by the Company and (b) to cooperate with the Company (and with any Affiliate) during the course of all third party proceedings arising out of the Companys (or any Affiliates) business about which you have knowledge or information. For purposes of this Agreement, (c) proceedings includes internal investigations, administrative investigations or proceedings and lawsuits (including pre trial discovery and trial testimony) and (d) cooperation includes (i) your being reasonably available for interviews, meetings, depositions, hearings or trials without the need for subpoena or assurances by the Company (or any Affiliate), (ii) providing any and all documents in your possession that relate to the proceeding, and (iii) providing assistance in locating any and all relevant notes and documents.
16.2. Cooperation With Media . You agree not to communicate with, or give statements to, any member of the media (including print, television or radio media) relating to any matter (including pending or threatened lawsuits or administrative investigations) about which you have knowledge or information (other than knowledge or information that is not Confidential Information as defined in Section 9.3) as a result of employment with the Company. You also agree to notify the Chief Executive Officer or his designee immediately after being contacted by any member of the media with respect to any matter affected by this section.
17. Entire Agreement . This Agreement constitutes your entire agreement with the Company relating to the subject mater hereof, and supersedes in its entirety any and all prior
agreements, understandings or arrangements with the Company. No provision of this Agreement may be modified, waived or discharged unless agreed to in writing by you and the Company.
18. Governing Law . All issues and questions concerning the construction, validity, enforcement and interpretation of this Agreement shall be governed by, and construed in accordance with, the laws of the State of New York, without regard to the choice of law principles thereof that would result in the application of the laws of any other jurisdiction.
19. Survival of Provisions . Sections 7 through 18 will survive the termination of your employment for any reason and shall not be affected by any transfer(s) between the Company and its Affiliate(s).
20. Understandings and Representations . You should not sign this Agreement until you understand its terms and conditions. Your execution of this Agreement represents your acknowledgement that you have take all steps you believe necessary, including consultation with financial and legal advisors of your choice, to understand this Agreement.
21. No Assignments . This Agreement is personal to each of the parties hereto. Except as provided in this Section 21 hereof, no party may assign or delegate any rights or obligations hereunder without first obtaining the written consent of the other party hereto. The Company may assign this Agreement to any successor to all or substantially all of the business and/or assets of the Company, provided that the Company shall require such successor to expressly assume and agree to perform this Agreement in the same manner and to the same extent that the Company would be required to perform it if no such succession had taken place.
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Sincerely,
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/s/ Gregory Scott |
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Dated: |
November 12, 2010 |
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Gregory Scott |
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President |
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By: |
/s/ Michele Parsons |
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Dated: |
November 14, 2010 |
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Michele Parsons |
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EVP, Merchandising |
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Exhibit 10.22
SIXTH AMENDMENT TO TRANSITION SERVICES AGREEMENT
This SIXTH AMENDMENT TO TRANSITION SERVICES AGREEMENT (Amendment), dated September 14, 2010 and deemed effective as of August 1, 2010, is made and entered into by and between Limited Brands, Inc. (Limited Brands) and Lerner New York Holding, Inc. and New York & Company, Inc., successor in interest to New York & Co. Group, Inc. (collectively, Buyer and/or Lerner). Defined terms that are used but not defined herein shall be as defined in the Transition Services Agreement dated November 27, 2002, as amended (TSA), between Limited Brands and Lerner. The parties wish to amend the TSA and Schedules as described below. It is therefore agreed as follows:
1. Schedule III, Section 1.13 shall be amended by replacing the language contained in the Fourth Amendment to Transition Services Agreement dated April 6, 2009 (Fourth Amendment), with the following provision:
Section 1.13. In addition to any other fees as stated herein, Lerner shall pay a Management Fee to Limited Brands, without offset or deduction, in the amount of 0.2% of net revenues on Lerner products distributed through Limited Brands facilities, determined in accordance with United States generally accepted accounting principles (Management Fee), but in no event shall the Management Fee be less than $2,000,000.00 in any Fiscal Year (Minimum Fee Amount). Lerner agrees that substantially all products intended for sale in Lerners stores in the United States of America shall be distributed through Limited Brands facilities during the term of the TSA, unless Limited Brands shall consent, in its sole discretion, to the distribution of any such products by Lerner or a third party. Lerner shall pay the Management Fee to Limited Brands on a monthly basis, in accordance with the monthly invoice payment process described below. Monthly invoices shall be based upon an estimate of net revenues provided by Lerner prior to the commencement of each quarter of each Fiscal Year. Within thirty (30) days following the end of each quarter of each Fiscal Year, Lerner shall reconcile the amount paid on the estimated net revenues to the actual net revenues, and shall notify Limited Brands of any overpayment or underpayment. Any such overpayment or underpayment shall be deducted from or added to, as the case may be, the subsequent monthly invoice. In the event that the Management Fee monthly payments shall be less than the Minimum Fee Amount for any Fiscal Year, a final reconciliation and payment shall be performed by Lerner within thirty (30) days following the end of such Fiscal Year to ensure that the Minimum Fee Amount is paid by Lerner. For any partial Fiscal Year at the end of the term, the Management Fee and Minimum Fee Amount shall be reduced in proportion to the number of months in such Fiscal Year that this Agreement shall be effective.
The parties acknowledge that regardless of the fact that Lerner has been paying a Management Fee based on the Management Fee Payment Schedule
outlined in the Fourth Amendment, this Section is to be effective retroactive to February 1, 2010. To effectuate such intent, Lerner shall continue paying based on the existing Management Fee Payment Schedule through July 31, 2010. Commencing August 1, 2010, Lerner shall commence paying the Management Fee based on the provisions of this Amendment. Within thirty (30) days following the receipt by both parties of a fully-executed counterpart of this Amendment, Lerner shall provide Limited Brands with sufficient detail to demonstrate the amount of any overpayment of the Management Fee through July 31, 2010 based on the new Management Fee effectuated by this Amendment. Any such overpayment shall be recouped by Lerner in equal monthly credits spread over the future Management Fee payments to be made by Lerner from August 1, 2010 through and including January 31, 2011.
2. Section 5.02 (a)(v) of the TSA shall be modified by replacing February 1, 2011 with February 1, 2014 .
3. Section 5.02(c) of the TSA shall be modified by replacing February 1, 2011 with February 1, 2014 .
4. Schedule III, Section 1.1 of the TSA shall be modified by replacing February 1, 2011 with February 1, 2014 .
5. This Amendment is supplementary to and modifies the TSA. This Amendment shall be incorporated as part of the TSA. The terms of this Amendment supersede the provisions in the TSA only to the extent that the terms of this Amendment and the TSA expressly conflict. However, nothing in this Amendment should be interpreted as invalidating the TSA, and provisions of the TSA will continue to cover relations between the parties insofar as they do not expressly conflict with this Amendment.
IN WITNESS WHEREOF, the parties hereto have executed this Amendment as of the date first written above.
LERNER NEW YORK HOLDING, INC. |
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LIMITED BRANDS, INC. |
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By: |
/s/ Sheamus Toal |
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By: |
/s/ Rick Jackson |
Name: |
Sheamus Toal |
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Name: |
Rick Jackson |
Title: |
EVP, Chief Financial Officer |
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Title: |
EVP, LLS |
Date: |
September 8, 2010 |
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Date: |
September 14, 2010 |
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NEW YORK & COMPANY, INC. |
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By: |
/s/ Sheamus Toal |
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Name: |
Sheamus Toal |
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Title: |
EVP, Chief Financial Officer |
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Date: |
September 8, 2010 |
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Exhibit 10.23
[Execution]
SECOND AMENDED AND RESTATED LOAN AND SECURITY AGREEMENT
by and among
LERNER NEW YORK, INC.,
LERNCO, INC. and
JASMINE COMPANY, INC.,
as Borrowers,
NEW YORK & COMPANY, INC.,
NEVADA RECEIVABLE FACTORING, INC.,
LERNER NEW YORK HOLDING, INC.,
LERNER NEW YORK GC, LLC and
ASSOCIATED LERNER SHOPS OF AMERICA, INC.,
as Guarantors
WACHOVIA BANK, NATIONAL ASSOCIATION,
as Agent,
WACHOVIA CAPITAL MARKETS, LLC,
as Sole Lead Arranger and Sole Bookrunner,
LASALLE RETAIL FINANCE, A DIVISION OF LASALLE BUSINESS CREDIT, LLC, AS
AGENT FOR LASALLE BANK MIDWEST, NATIONAL ASSOCIATION,
as Documentation Agent
and
THE PERSONS NAMED HEREIN,
as Lenders
Dated: August 22, 2007
TABLE OF CONTENTS
SECTION 1. |
DEFINITIONS |
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2 |
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SECTION 2. |
CREDIT FACILITIES |
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41 |
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2.1 |
Revolving Loans |
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41 |
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2.2 |
Letter of Credit Accommodations |
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42 |
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2.3 |
Existing Term Loan |
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46 |
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2.4 |
Commitments |
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49 |
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2.5 |
Bank Products |
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49 |
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SECTION 3. |
INTEREST AND FEES |
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50 |
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3.1 |
Interest |
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50 |
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3.2 |
Fees |
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51 |
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3.3 |
Changes in Laws and Increased Costs of Loans |
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52 |
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SECTION 4. |
CONDITIONS PRECEDENT |
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53 |
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4.1 |
Conditions Precedent to Effectiveness of Agreement |
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53 |
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4.2 |
Conditions Precedent to All Loans and Letter of Credit Accommodations |
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54 |
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SECTION 5. |
GRANT AND PERFECTION OF SECURITY INTEREST |
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55 |
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5.1 |
Grant of Security Interest |
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55 |
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5.2 |
Perfection of Security Interests |
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57 |
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SECTION 6. |
COLLECTION AND ADMINISTRATION |
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61 |
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6.1 |
Borrowers Loan Accounts |
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61 |
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6.2 |
Statements |
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61 |
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6.3 |
Collection of Accounts |
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62 |
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6.4 |
Payments |
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63 |
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6.5 |
Authorization to Make Loans |
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66 |
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6.6 |
Use of Proceeds |
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67 |
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6.7 |
Pro Rata Treatment |
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67 |
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6.8 |
Sharing of Payments, Etc. |
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67 |
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6.9 |
Settlement Procedures |
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68 |
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6.10 |
Obligations Several; Independent Nature of Lenders Rights |
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70 |
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SECTION 7. |
COLLATERAL REPORTING AND COVENANTS |
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71 |
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7.1 |
Collateral Reporting |
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71 |
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7.2 |
Accounts Covenants |
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72 |
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7.3 |
Inventory Covenants |
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73 |
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7.4 |
Equipment Covenants |
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74 |
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7.5 |
Bills of Lading and Other Documents of Title |
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75 |
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7.6 |
Power of Attorney |
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75 |
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7.7 |
Right to Cure |
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76 |
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7.8 |
Access to Premises |
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77 |
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SECTION 8. |
REPRESENTATIONS AND WARRANTIES |
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77 |
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8.1 |
Corporate Existence, Power and Authority |
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77 |
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8.2 |
Name; State of Organization; Chief Executive Office; Collateral Locations |
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78 |
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8.3 |
Financial Statements; No Material Adverse Change |
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78 |
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8.4 |
Priority of Liens; Title to Properties |
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78 |
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8.5 |
Tax Returns |
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79 |
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8.6 |
Litigation |
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79 |
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8.7 |
Compliance with Other Agreements and Applicable Laws |
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79 |
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8.8 |
Environmental Compliance |
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80 |
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8.9 |
Employee Benefits |
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80 |
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8.10 |
Bank Accounts, etc. |
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81 |
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8.11 |
Intellectual Property |
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81 |
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8.12 |
Subsidiaries; Affiliates; Capitalization; Solvency |
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82 |
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8.13 |
Labor Disputes |
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83 |
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8.14 |
Restrictions on Subsidiaries |
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83 |
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8.15 |
Material Contracts |
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83 |
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8.16 |
Credit Card Agreements |
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83 |
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8.17 |
Payable Practices |
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84 |
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8.18 |
Accuracy and Completeness of Information |
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84 |
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8.19 |
No Defaults |
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84 |
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8.20 |
Transition Services |
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84 |
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8.21 |
Survival of Warranties; Cumulative |
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84 |
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SECTION 9. |
AFFIRMATIVE AND NEGATIVE COVENANTS |
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85 |
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9.1 |
Maintenance of Existence |
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85 |
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9.2 |
New Collateral Locations |
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85 |
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9.3 |
Compliance with Laws, Regulations, Etc. |
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85 |
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9.4 |
Payment of Taxes and Claims |
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87 |
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9.5 |
Insurance |
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87 |
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9.6 |
Financial Statements and Other Information |
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87 |
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9.7 |
Sale of Assets, Consolidation, Merger, Dissolution, Etc. |
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89 |
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9.8 |
Encumbrances |
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92 |
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9.9 |
Indebtedness |
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93 |
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9.10 |
Prepayments and Amendments; Loans, Investments, Etc. |
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96 |
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9.11 |
Dividends and Redemptions |
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98 |
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9.12 |
Transactions with Affiliates |
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99 |
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9.13 |
Compliance with ERISA |
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99 |
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9.14 |
End of Fiscal Years; Fiscal Quarters |
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100 |
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9.15 |
Change in Business |
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100 |
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9.16 |
Limitation of Restrictions Affecting Subsidiaries |
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100 |
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9.17 |
Minimum Excess Availability |
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100 |
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9.18 |
Financial Covenants |
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101 |
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9.19 |
License Agreements |
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101 |
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9.20 |
After Acquired Real Property |
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102 |
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9.21 |
Costs and Expenses |
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103 |
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9.22 |
Credit Card Agreements |
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103 |
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9.23 |
Further Assurances |
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104 |
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9.24 |
Private Label Credit Cards |
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104 |
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9.25 |
Termination of Transition Services Agreement |
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104 |
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9.26 |
Cash Collateral Account |
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105 |
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9.27 |
Foreign Assets Control Regulations, Etc. |
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105 |
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SECTION 10. |
EVENTS OF DEFAULT AND REMEDIES |
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106 |
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10.1 |
Events of Default |
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106 |
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10.2 |
Remedies |
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108 |
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SECTION 11. |
JURY TRIAL WAIVER; OTHER WAIVERS AND CONSENTS; GOVERNING LAW |
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112 |
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11.1 |
Governing Law; Choice of Forum; Service of Process; Jury Trial Waiver |
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112 |
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11.2 |
Waiver of Notices |
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114 |
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11.3 |
Amendments and Waivers |
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114 |
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11.4 |
Waiver of Counterclaims |
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116 |
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11.5 |
Indemnification |
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116 |
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SECTION 12. |
THE AGENT |
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117 |
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12.1 |
Appointment, Powers and Immunities |
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117 |
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12.2 |
Reliance by Agent |
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118 |
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12.3 |
Events of Default |
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118 |
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12.4 |
Wachovia in its Individual Capacity |
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118 |
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12.5 |
Indemnification |
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119 |
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12.6 |
Non Reliance on Agent and Other Lenders |
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119 |
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12.7 |
Failure to Act |
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119 |
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12.8 |
Additional Revolving Loans |
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120 |
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12.9 |
Concerning the Collateral and the Related Financing Agreements |
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120 |
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12.10 |
Field Audit, Examination Reports and other Information; Disclaimer by Lenders |
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120 |
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12.11 |
Collateral Matters |
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121 |
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12.12 |
Agency for Perfection |
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123 |
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12.13 |
Successor Agent |
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123 |
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SECTION 13. |
JOINT AND SEVERAL LIABILITY; SURETYSHIP WAIVERS |
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123 |
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13.1 |
Independent Obligations; Subrogation |
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123 |
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13.2 |
Authority to Modify Obligations and Security |
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124 |
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13.3 |
Waiver of Defenses |
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124 |
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13.4 |
Exercise of Agents and Lenders Rights |
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124 |
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13.5 |
Additional Waivers |
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125 |
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13.6 |
Additional Indebtedness |
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125 |
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13.7 |
Notices, Demands, Etc. |
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126 |
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13.8 |
Revival |
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126 |
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13.9 |
Understanding of Waivers |
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126 |
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SECTION 14. |
TERM; MISCELLANEOUS |
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126 |
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14.1 |
Term |
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126 |
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14.2 |
Interpretative Provisions |
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127 |
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14.3 |
Notices |
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129 |
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14.4 |
Partial Invalidity |
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129 |
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14.5 |
Confidentiality |
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130 |
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14.6 |
Successors |
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131 |
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14.7 |
Assignments; Participations |
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131 |
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14.8 |
Entire Agreement |
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134 |
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14.9 |
USA Patriot Act |
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134 |
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14.10 |
Counterparts, Etc. |
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134 |
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SECTION 15. |
ACKNOWLEDGMENT AND RESTATEMENT |
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134 |
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15.1 |
Existing Obligations |
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134 |
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15.2 |
Acknowledgment of Security Interests |
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135 |
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15.3 |
Acknowledgment of Security Interests |
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135 |
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15.4 |
Existing Financing Agreements |
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135 |
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15.5 |
Restatement |
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135 |
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15.6 |
Release |
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135 |
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SECOND AMENDED AND RESTATED LOAN AND SECURITY AGREEMENT
This Second Amended and Restated Loan and Security Agreement (this Agreement), dated as of August 22, 2007, is entered into by and among Lerner New York, Inc., a Delaware corporation (Lerner), Lernco, Inc., a Delaware corporation (Lernco), and Jasmine Company, Inc., a Massachusetts corporation (Jasmine and together with Lerner and Lernco, collectively, Borrowers and individually each a Borrower), New York & Company, Inc., a Delaware corporation, formerly known as NY & Co. Group, Inc. (NY&Co), Lerner New York Holding, Inc., a Delaware corporation (Parent), Nevada Receivable Factoring, Inc., a Nevada corporation (Nevada Factoring), Associated Lerner Shops of America, Inc., a New York corporation (Associated Lerner), and Lerner New York GC, LLC, an Ohio limited liability company (Lerner GC and together with NY&Co, Parent, Nevada Factoring and Associated Lerner, collectively, Guarantors and each a Guarantor), the Lenders (as defined herein), Wachovia Bank, National Association, a national banking association, in its capacity as agent for the Lenders and the Bank Product Providers (in such capacity, Agent), LaSalle Retail Finance, a division of LaSalle Business Credit, LLC, as agent for LaSalle Bank Midwest, National Association, in its capacity as documentation agent for Lenders (in such capacity, Documentation Agent), and Wachovia Capital Markets, LLC, as sole lead arranger and sole bookrunner.
W I T N E S S E T H :
WHEREAS, Lerner, Lernco, the persons party thereto as lenders (the Existing Lenders), and Agent have previously entered into that certain Amended and Restated Loan and Security Agreement, dated as of March 16, 2004, as amended by the First Amendment to Amended and Restated Loan and Security Agreement, dated May 19, 2004, the Second Amendment to Amended and Restated Loan and Security Agreement, dated as of December 17, 2004, the Third Amendment to Amended and Restated Loan and Security Agreement, dated as of July 19, 2005, and the Fourth Amendment to Amended and Restated Loan and Security Agreement, dated as of January 4, 2006 (as amended, the Existing Loan Agreement as hereinafter further defined), pursuant to which, among other things, the Existing Lenders have provided certain loans and other financial accommodations to Lerner and Lernco;
WHEREAS, Borrowers are wholly-owned Subsidiaries of Parent, and together they are inter-related entities which collectively constitute an integrated clothing retailer;
WHEREAS, the directors of each Borrower view the entities as sufficiently dependent upon each other and so inter-related that any advance made hereunder to any Borrower would benefit each of the Borrowers as a result of their consolidated operations and identity of interests;
WHEREAS, each Borrower has requested that Agent and the Lenders treat them as co-borrowers hereunder, jointly and severally responsible for the obligations of each other hereunder;
WHEREAS, Borrowers have also requested that certain amendments be made to the Existing Loan Agreement, all as more fully set forth herein;
WHEREAS, each Lender is willing (severally and not jointly) to continue to make loans
and other financial accommodations to Borrowers, in each case on a pro rata basis according to its commitments provided for herein on the terms and conditions set forth therein, and Agent is willing to continue to act as agent for the Lenders on the terms and conditions set forth herein; and
WHEREAS, the parties hereto have agreed to amend and restate, in their entirety, the agreements contained in the Existing Loan Agreement on the terms and conditions set forth herein.
NOW, THEREFORE, in consideration of the mutual conditions and agreements set forth herein, and for other good and valuable consideration, the receipt and sufficiency of which is hereby acknowledged, the parties hereto amend and restate the Existing Loan Agreement and agree as follows:
For purposes of this Agreement, the following terms shall have the respective meanings given to them below:
1.1 Accounts shall mean all present and future rights of each Borrower and Guarantor to payment of a monetary obligation, whether or not earned by performance, which is not evidenced by chattel paper or an instrument, (a) for property that has been or is to be sold, leased, licensed, assigned, or otherwise disposed of, (b) for services rendered or to be rendered, (c) for a secondary obligation incurred or to be incurred, or (d) arising out of the use of a credit or charge card or information contained on or for use with any such card.
1.2 ACH Transactions shall mean any cash management or related services, including the automatic clearing house transfer of funds by Agent or any of its Affiliates for the account of a Borrower or a Guarantor pursuant to agreement, or overdrafts.
1.3 Additional Appraisal/Field Exam Period shall mean the period commencing after either (a) upon the occurrence of a Default or an Event of Default or (b) either (i) at any time the Obligations related to the Existing Term Loan are outstanding, Compliance Excess Availability shall be less than $30,000,000 for a period of five (5) consecutive Business Days or (ii) at any time after the Obligations related to the Existing Term Loan shall have been repaid in full in immediately available funds in accordance with the terms of this Agreement, Compliance Excess Availability shall be less than $20,000,000 for a period of five (5) consecutive Business Days (either (a) or (b) being referred to herein as an Additional Appraisal/Field Exam Trigger Event); provided , that , at any time after an Additional Appraisal/Field Exam Trigger Event has occurred, if (i) no Default or Event of Default shall exist or have occurred and be continuing, and (ii) either (A) during the time any of the Obligations related to the Existing Term Loan are outstanding, Compliance Excess Availability shall be not less than $30,000,000 for a period of thirty (30) consecutive days or (B) if all of the Obligations related to the Existing Term Loan have been paid in full in accordance with the terms of this Agreement, Compliance Excess Availability shall be not less than $20,000,000 for a period of not less than thirty (30) consecutive days, then such Additional Appraisal/Field Exam Period shall terminate upon the written acknowledgment of Agent to Borrowers. An Additional Appraisal/Field Exam Period
may thereafter be in effect if another Additional Appraisal/Field Exam Trigger Event occurs or reoccurs.
1.4 Adjusted Eurodollar Rate shall mean, with respect to each Interest Period for any Eurodollar Rate Loan, the rate per annum (rounded upwards, if necessary, to the next one-sixteenth (1/16) of one percent (1%)) determined by dividing (a) the Eurodollar Rate for such Interest Period by (b) a percentage equal to: (i) one (1) minus (ii) the Reserve Percentage. For purposes hereof, Reserve Percentage shall mean the reserve percentage, expressed as a decimal, prescribed by any United States or foreign banking authority for determining the reserve requirement which is or would be applicable to deposits of United States dollars in a non-United States or an international banking office of the Reference Bank used to fund a Eurodollar Rate Loan or any Eurodollar Rate Loan made with the proceeds of such deposit, whether or not the Reference Bank actually holds or has made any such deposits or loans. The Adjusted Eurodollar Rate shall be adjusted on and as of the effective day of any change in the Reserve Percentage.
1.5 Affiliate shall mean, with respect to a specific Person, any other Person which directly or indirectly, through one or more intermediaries, controls or is controlled by or is under common control with such Person. For the purposes of this definition, the term control (including with correlative meanings, the terms controlled by and under common control with), as used with respect to any Person, means the possession, directly or indirectly, of the power to direct or cause the direction of the management and policies of such Person, whether through the ownership of Voting Stock, by contract or otherwise.
1.6 Agent shall mean Wachovia Bank, National Association, a national banking association, successor by merger to Congress Financial Corporation, in its capacity as agent on behalf of Lenders pursuant to the terms hereof, and any replacement or successor agent hereunder.
1.7 Agent Payment Account shall mean account no. 5000000030279 of Agent at Wachovia Bank, National Association, located in Charlotte, North Carolina, ABA no. 053000219, or such other account of Agent as Agent may from time to time designate to Borrowers as the Agent Payment Account for purposes of this Agreement and the other Financing Agreements.
1.8 Applicable Margin shall mean
Tier |
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EBITDA/ Average Excess
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Applicable
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Applicable
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Applicable
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1 |
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EBITDA greater than or equal to $100,000,000 and Average Excess Availability greater than or equal to $25,000,000 |
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0 |
% |
1.00 |
% |
1.00 |
% |
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2 |
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EBITDA less than $100,000,000 or Average Excess Availability less than $25,000,000 |
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0 |
% |
1.25 |
% |
1.25 |
% |
1.9 Approved Fund shall mean with respect to any Lender that is a fund or similar investment vehicle that makes or invests in commercial loans, any fund or similar investment vehicle that invests in commercial loans which is managed or advised by the same investment advisor as such Lender or by an Affiliate of such investment advisor.
1.10 Assignment and Acceptance shall mean an Assignment and Acceptance substantially in the form of Exhibit A-1 or Exhibit A-2 attached hereto (with blanks appropriately completed) delivered to Agent in connection with an assignment of a Lenders interest hereunder in accordance with the provisions of Section 14.7 hereof.
1.11 Associated Lerner shall mean Associated Lerner Shops of America, Inc., a New York corporation.
1.12 Authorized Officer shall mean Richard Crystal, Ronald Ristau, Sheamus Toal
or such other person as the Board of Directors of each Borrower or both Richard Crystal and Ronald Ristau may designate by written notice to Agent.
1.13 Availability Compliance Period shall mean the period commencing after either (a) upon the occurrence of a Default or an Event of Default or (b) if Compliance Excess Availability shall at any time be less than $15,000,000; provided , that , if at any time the Compliance Excess Availability is less than $15,000,000 and all of the following conditions are, and continue to be, satisfied, a Compliance Triggering Event shall not be deemed to have occurred: (a) the outstanding balance of the Revolving Loans is $10,000,000 or less, (b) the Borrowers have $50,000,000 or more in Qualified Cash, as determined by Agent, and (c) the Compliance Excess Availability is equal to at least $10,000,000. (either (a) or (b) being referred to herein as an Availability Compliance Trigger Event); provided , that , at any time after an Availability Compliance Trigger Event has occurred, if (i) Borrowers have thereafter either (A) maintained a daily average Compliance Excess Availability of not less than $15,000,000 for a period of not less than thirty (30) consecutive days or (B) satisfied all of the following conditions: (1) the outstanding balance of the Revolving Loans is $10,000,000 or less, (B) the Borrowers have $50,000,000 or more in Qualified Cash, as determined by Agent, and (C) the Compliance Excess Availability is equal to at least $10,000,000 and (ii) no Default or Event of Default shall exist or have occurred and be continuing, then such Availability Compliance Period shall terminate upon the written acknowledgment of Agent to Borrowers. An Availability Compliance Period may thereafter be in effect if another Availability Compliance Trigger Event occurs or reoccurs.
1.14 Average Excess Availability shall mean the average daily amount, as determined by Agent for the immediately preceding fiscal quarter, of Excess Availability.
1.15 Average Compliance Excess Availability shall mean the average daily amount, as determined by Agent for the immediately preceding fiscal quarter, of Compliance Excess Availability.
1.16 Bank Products shall mean any one or more of the following types of services or facilities extended to a Borrower or a Guarantor by a Bank Product Provider: (a) credit cards, (b) ACH Transactions, (c) Hedging Transactions, and (d) foreign exchange contracts.
1.17 Bank Product Providers shall mean Agent and any of its Affiliates that may, from time to time, provide any Bank Products to any Borrower or Guarantor or any of their respective Subsidiaries.
1.18 Bank Product Reserve shall mean any and all reserves that Agent may establish from time to time, in its sole discretion, for the Bank Products then provided and outstanding so long as such reserve was established by Agent at the time the Bank Product related thereto was provided by a Bank Product Provider.
1.19 Blocked Accounts shall have the meaning set forth in Section 6.3(a) hereof.
1.20 Borrowing Base shall mean, at any time, the amount equal to:
(a) the lesser of:
(i) the amount equal to:
(A) the lesser of (a) the sum of (x) ninety percent (90%) of the Net Amount of Eligible Sell-Off Vendors Receivables of Borrowers, plus (y) ninety percent (90%) of the Net Amount of Eligible Damaged Goods Vendors Receivables of Borrowers, and (b) $4,000,000, plus
(B) ninety percent (90%) of the Net Amount of the Eligible Credit Card Receivables of Borrowers, plus
(C) the lesser of:
(a) the Inventory Loan Limit or
(b) the lesser of:
(y) the sum of:
(i) ninety percent (90%) multiplied by the sum of (A) the Value of the Eligible Landed Inventory of Lerner and Lernco minus (B) the amount of shrinkage and/or material variances in Inventory counts with respect to Eligible Landed Inventory of Lerner and Lernco as determined by Agent, plus
(ii) seventy-five percent (75%) multiplied by the sum of (A) the Value of the Eligible Landed Inventory of Jasmine minus (B) the amount of shrinkage and/or material variances in Inventory counts with respect to Eligible Landed Inventory of Jasmine as determined by Agent, plus
(iii) the lesser of (aa) the sum of (I) ninety (90%) multiplied by the Landed Value of Eligible In-Transit Inventory of Lerner and Lernco, plus (II) seventy-five percent (75%) multiplied by the Landed Value of Eligible In-Transit Inventory of Jasmine, plus (III) ninety percent (90%) multiplied by the Landed Value of Eligible In-Transit LC Inventory of Lerner and Lernco, plus (IV) seventy-five percent (75%) multiplied by the Landed Value of Eligible In-Transit LC Inventory of Jasmine, or (bb) $30,000,000, or
(z) ninety percent (90%) (or ninety two and one-half percent (92.5%) during the Seasonal Advance Period) of the Net Recovery Percentage applicable to such categories of Inventory of Lerner and Lernco multiplied by the Value of such Eligible Inventory of Lerner and Lernco, plus ninety percent (90%) of the Net Recovery Percentage applicable to such categories of Inventory of Jasmine multiplied by the Value of such Eligible Inventory, in each case as reflected on the most recent appraisal of the Inventory received and accepted by Agent prior to the date of calculation, plus
(D) one hundred percent (100%) of Eligible Cash Collateral; or
(ii) the Revolving Loan Limit, minus ,
(b) the Reserves and the Bank Product Reserves.
Notwithstanding the foregoing, (a) as to Jasmine, in no event will the amount of Revolving Loans available exceed $7,500,000; provided, that, if Jasmine delivers an opinion of Massachusetts counsel, in form and substance acceptable to Agent, with respect with respect to such matters as Agent may reasonably require, such $7,500,000 sublimit shall no longer be effective, and (b) each of the percentages specified in clauses (a)(i)(A) through (C) of this definition shall be five percent (5%) less than the amounts set forth in such clauses until such time as the Existing Term Loan and all Obligations related thereto are indefeasibly paid and satisfied in full in immediately available funds.
For purposes of this definition, the advance rates set forth in subparagraph (a)(i)(C)(2) above will be subject to be decreased, upon Agent providing not less than ten (10) Business Days prior telephonic or electronic notice only to Borrowers, based on the results satisfactory to Agent of appraisals of the Inventory conducted in accordance with Section 7.3 hereof and to be conducted on a going out of business sale basis, net of liquidation expenses, at the expense of Borrowers, conducted by appraisers acceptable to Agent. For purposes only of applying the Inventory Loan Limit, Agent may treat the then undrawn amounts of outstanding Letter of Credit Accommodations for the purpose of purchasing Eligible Inventory as Revolving Loans to the extent Agent is in effect basing the issuance of the Letter of Credit Accommodations on the Value of the Eligible Inventory being purchased with such Letter of Credit Accommodations. In determining the actual amounts of such Letter of Credit Accommodations to be so treated for purposes of the sublimit, the outstanding Revolving Loans and Reserves shall be attributed first to any components of the lending formulas set forth above that are not subject to such sublimit, before being attributed to the components of the lending formulas subject to such sublimit. The amounts of Eligible Inventory shall be determined based on the lesser of the amount of Inventory set forth in the general ledgers of Borrowers or the perpetual inventory records maintained by Borrowers. Agent shall have the right to establish Reserves against or sublimits in the Borrowing Base in such amounts and with respect to such matters as Agent in its sole discretion shall deem necessary or appropriate, at all times and after Agent has completed its updated field audits, examinations and appraisals of the Collateral; provided, however, that, so long as an Availability Compliance Period does not exist, Agent shall only give to Borrowers ten (10) Business Days telephonic or electronic notice if (a) Agent establishes Reserves relating to new categories of Reserves, (b) Agent changes the methodology of calculating Reserves, or (c) Agent establishes sublimits in the Borrowing Base. The foregoing notwithstanding, in the event Agent is required to establish Reserves to preserve or protect or maximize the value of the Collateral, Agent shall only provide Borrowers with notice at the time such Reserve is established.
1.21 Borrowers shall mean, collectively, the following (together with their respective successors and assigns): (a) Lerner, (b) Lernco, and (e) Jasmine; each sometimes being referred to herein individually as Borrower.
1.22 Borrowing Base Certificate shall have the meaning given in Section 7.1(a)(i)(c) hereof.
1.23 BSMB shall mean BSMB/NYCG, LLC, a Delaware limited liability company.
1.24 Business Day shall mean any day other than a Saturday, Sunday, or other day on which commercial banks are authorized or required to close under the laws of the State of New York, or the State of North Carolina, and a day on which Agent is open for the transaction of business, except that if a determination of a Business Day shall relate to any Eurodollar Rate Loans, the term Business Day shall also exclude any day on which banks are closed for dealings in dollar deposits in the London interbank market or other applicable Eurodollar Rate market.
1.25 Capital Expenditures shall mean, with respect to any Person and its Subsidiaries, all expenditures made and liabilities incurred for the acquisition of equipment, software, fixed assets, real property or improvements, or replacements or substitutions therefor, which are not, in accordance with GAAP, treated as expense items for such Person and its Subsidiaries in the year made or incurred or as a prepaid expense applicable to a future year or years.
1.26 Capital Leases shall mean, as applied to any Person, any lease of (or any agreement conveying the right to use) any property (whether real, personal or mixed) by such Person as lessee which in accordance with GAAP, is required to be reflected as a liability on the balance sheet of such Person.
1.27 Capital Stock shall mean, with respect to any Person, any and all shares, interests, participations or other equivalents (however designated) of such Persons capital stock or partnership, limited liability company or other equity interests at any time outstanding, and any and all rights, warrants or options exchangeable for or convertible into such capital stock or other interests (but excluding any debt security that is exchangeable for or convertible into such capital stock).
1.28 Cash Collateral Account shall mean a deposit account: (a) maintained by a Borrower as a collateral account with either Wachovia or LaSalle National Bank, and otherwise mutually satisfactory to Lerner, Agent and Lenders; (b) that is a money market account which does not contain stocks, bonds, other investment property or interests in such investment property; (c) used by such Borrower to deposit cash collateral for the purpose of supporting advances described in clause (a)(i)(E) of the definition of Borrowing Base; (d) which contains readily available funds sufficient to support any and all advances that may be requested by Borrowers pursuant to clause (a)(i)(E) of the definition of Borrowing Base, as determined by Agent; and (e) which is subject to the Cash Collateral Account Control Agreement. For purposes of clarification, there is no dollar limit on the amount of cash, Cash Equivalents or investment property that may be deposited in or credited to a Cash Collateral Account at any time.
1.29 Cash Collateral Account Control Agreement means a Deposit Account Control Agreement, which, among other things, (a) prohibits the Borrowers from withdrawing or transferring any amounts or investment property from such account except upon the conditions set forth in Section 9.26(f) hereof, (b) provides that the bank at which such account is maintained will provide to Agent a daily report as to the balance of such account, and (c) and is otherwise satisfactory to Agent in form and substance.
1.30 Cash Equivalents shall mean, at any time, (a) any evidence of Indebtedness with a maturity date of ninety (90) days or less issued or directly and fully guaranteed or insured
by the United States of America or any agency or instrumentality thereof; provided, that, the full faith and credit of the United States of America is pledged in support thereof; (b) certificates of deposit or bankers acceptances with a maturity of ninety (90) days or less of any financial institution that is a member of the Federal Reserve System having combined capital and surplus and undivided profits of not less than $250,000,000; (c) commercial paper (including variable rate demand notes) with a maturity of ninety (90) days or less issued by a corporation (except an Affiliate of any Borrower) organized under the laws of any State of the United States of America or the District of Columbia and rated at least A-1 by Standard & Poors Ratings Service, a division of The McGraw-Hill Companies, Inc. or at least P-1 by Moodys Investors Service, Inc.; (d) repurchase obligations with a term of not more than thirty (30) days for underlying securities of the types described in clause (a) above entered into with any financial institution having combined capital and surplus and undivided profits of not less than $250,000,000; (e) repurchase agreements and reverse repurchase agreements relating to marketable direct obligations issued or unconditionally guaranteed by the United States of America or issued by any governmental agency thereof and backed by the full faith and credit of the United States of America, in each case maturing within ninety (90) days or less from the date of acquisition; provided, that, the terms of such agreements comply with the guidelines set forth in the Federal Financial Agreements of Depository Institutions with Securities Dealers and Others, as adopted by the Comptroller of the Currency on October 31, 1985; (f) investments in money market funds and mutual funds which invest substantially all of their assets in securities of the types described in clauses (a) through (e) above; and (g) other investments as agreed by Agent in writing.
1.31 Central Collection Deposit Account shall mean any deposit account established by Borrowers that is used by Borrowers to receive deposits from local retail store deposit accounts or from sales of Inventory or other proceeds of Collateral arising from transactions other than sales at local retail stores.
1.32 Change of Control shall mean, as of any date of determination, the occurrence of any of the following: (a) any Person and/or one or more of its Affiliates, other than BSMB and/or one or more of its Affiliates, or group (within the meaning of the Securities Exchange Act of 1934, as amended) of Persons shall have acquired beneficial ownership (within the meaning of Rule 13d-3 of the Securities and Exchange Commission under the Securities Exchange Act of 1934, as amended) of twenty percent (20%) or more of the issued and outstanding Voting Stock of NY&Co, unless either (i) BSMB and/or one or more of its Affiliates, collectively, own more of the Voting Stock of NY&Co than such Person and/or its Affiliates or (ii) BSMB and/or one or more of its Affiliates has the right to elect, or cause to be elected, and has elected, or caused to be elected, a majority of the members of the Board of Directors of NY&Co, (b) during any period of twelve (12) consecutive calendar months, individuals who at the beginning of such period constituted the board of directors of NY&Co (together with any new directors whose election by the board of directors of NY&Co or whose nomination for election by the shareholders of NY&Co was approved by a vote of at least two-thirds of the directors then still in office who either were directors at the beginning of such period or whose elections or nomination for election was previously so approved) cease for any reason other than death or disability to constitute a majority of the directors then in office; or (c) except as permitted under the terms of Section 9.7 hereof, NY&Co shall cease to own (directly or indirectly) one hundred percent (100%) of the Capital Stock of each Borrower and each other Guarantor; or (d) any Borrower or Guarantor other than NY&Co does not own 100% of the Capital Stock of any of its Subsidiaries.
1.33 Code shall mean the Internal Revenue Code of 1986, as the same now exists or may from time to time hereafter be amended, modified, recodified or supplemented, together with all rules, regulations and interpretations thereunder or related thereto.
1.34 Collateral shall have the meaning set forth in Section 5 hereof.
1.35 Collateral Access Agreement shall mean an agreement in writing, in form and substance reasonably satisfactory to Agent, from any lessor of premises to any Borrower or Guarantor, or any other person to whom any Collateral is consigned or who has custody, control or possession of any such Collateral or is otherwise the owner or operator of any premises on which any of such Collateral is located, pursuant to which such lessor, consignee or other person, among other things, acknowledges the first priority security interest of Agent, for itself and the ratable benefit of the Lenders and the Bank Product Providers, in such Collateral, agrees to waive or subordinate any and all claims such lessor, consignee or other person may, at any time, have against such Collateral, whether for processing, storage or otherwise, and agrees to permit Agent access to, and the right to remain on, the premises of such lessor, consignee or other person so as to exercise Agents rights and remedies and otherwise deal with such Collateral and in the case of any consignee or other person who at any time has custody, control or possession of any Collateral, acknowledges that it holds and will hold possession of the Collateral for the benefit of Agent, the Lenders and the Bank Product Providers and agrees to follow all instructions of Agent with respect thereto.
1.36 Compliance Excess Availability shall mean the amount, as determined by Agent, calculated at any date, equal to: (a) the lesser of: (i) the Borrowing Base (calculated, for this purpose, without giving effect to the Total LC Reserve Amount) and (ii) the Revolving Loan Limit, minus (b) the sum of: (i) the amount of all then outstanding and unpaid Obligations (but not including for this purpose the then outstanding Letter of Credit Accommodations or the outstanding balance of the Existing Term Loan), which, for purposes of clarification, may be a credit balance arising from the overpayment of the Obligations, plus (ii) the Total LC Reserve Amount.
1.37 Covered Taxes shall have the meaning set forth in Section 6.4(d) hereof.
1.38 Credit Card Acknowledgments shall mean, collectively, the agreements by Credit Card Issuers or Credit Card Processors who are parties to Credit Card Agreements in favor of Agent acknowledging Agents first priority security interest, for and on behalf of Lenders, in the monies due and to become due to any Borrower or Guarantor (including, without limitation, credits and reserves) under the Credit Card Agreements, and agreeing to transfer all such amounts to the Blocked Accounts, as the same now exist or may hereafter be amended, modified, supplemented, extended, renewed, restated or replaced, sometimes being referred to herein individually as a Credit Card Acknowledgment.
1.39 Credit Card Agreements shall mean all agreements now or hereafter entered into by any Borrower or Guarantor with any Credit Card Issuer or any Credit Card Processor, as the same now exist or may hereafter be amended, modified, supplemented, extended, renewed, restated or replaced, including, but not limited to, the agreements set forth on Schedule 8.16 hereto.
1.40 Credit Card Issuer shall mean any person (other than a Borrower or Guarantor) who issues or whose members issue credit cards, including, without limitation, MasterCard or VISA bank credit or debit cards or other bank credit or debit cards issued through MasterCard International, Inc., Visa, U.S.A., Inc. or Visa International and American Express, Discover, Diners Club, Carte Blanche and other non-bank credit or debit cards, including, without limitation, credit or debit cards issued by or through American Express Travel Related Services Company, Inc.
1.41 Credit Card Processor shall mean any servicing or processing agent or any factor or financial intermediary who facilitates, services, processes or manages the credit authorization, billing transfer and/or payment procedures with respect to any Borrowers or Guarantors sales transactions involving credit card or debit card purchases by customers using credit cards or debit cards issued by any Credit Card Issuer.
1.42 Credit Card Receivables shall mean all domestic Accounts consisting of the present and future rights of any Borrower or Guarantor, but excluding the Private Label Credit Card Receivables, to payment by any Credit Card Processor or Credit Card Issuer and all information contained on or for use with a credit, charge or debit card issued by a Credit Card Issuer.
1.43 Credit Facility shall mean the Revolving Loan Facility and the Existing Term Loan.
1.44 Default shall mean an act, condition or event that with notice or passage of time or both would constitute an Event of Default.
1.45 Defaulting Lender shall have the meaning set forth in Section 6.9(c) hereof.
1.46 Deposit Account Control Agreement shall mean an agreement in writing, in form and substance satisfactory to Agent, by and among Agent, a Borrower or Guarantor with a deposit account at any bank, and the bank at which such deposit account is at any time maintained which provides that such bank will comply with instructions originated by Agent directing disposition of the funds in the deposit account without further consent by such Borrower or Guarantor and such other terms and conditions as Agent may require, including as to any such agreement with respect to any Blocked Account, providing that all items received or deposited in the Blocked Accounts are the property of Agent, for itself and the ratable benefit of the Lenders and the Bank Product Providers, that the bank has no lien upon, or right to setoff against, the Blocked Accounts, the items received for deposit therein, or the funds from time to time on deposit therein and that the bank will wire, or otherwise transfer, in immediately available funds, on a daily basis to the Agent Payment Account all funds received or deposited into the Blocked Accounts.
1.47 Documentation Agent shall mean LaSalle Retail Finance, a division of LaSalle Business Credit, LLC, as agent for LaSalle Bank Midwest, National Association.
1.48 Domestic In-Transit Inventory shall mean Inventory owned by a Borrower that is located in the continental United States of America which is in transit to one of the locations set forth on Exhibit E (as such schedule may be updated from time to time by Borrowers to
exclude locations which have been closed and/or include additional locations of Inventory which Borrowers are permitted to establish under the terms of this Agreement) being the premises of such Borrower in the United States of America which are either owned and controlled by such Borrower or leased by such Borrower.
1.49 EBITDA shall mean, for any period, without duplication, the total of the following for the Borrowers and Guarantors on a consolidated basis, each calculated for such period: Net Income plus (i) preferred dividends, plus (ii) income tax expense, plus (iii) Interest Expense (including all charges owed with respect to letters of credit), plus (iv) depreciation expense, plus (v) amortization expense, plus (vi) management fees and expenses, as permitted hereunder, paid or accrued, plus (vii) non-cash losses from any sale or disposition of assets, and minus (viii) non-cash gains from any sale or disposition of assets, plus (ix) any other non-cash charges, non-cash expenses (including non-cash straight line rent), non-cash losses or non-cash restructuring charges, minus (x) the amortization of construction or landlord tenant allowances of the Borrowers or any Subsidiary of a Borrower for such period, all of the foregoing determined in accordance with GAAP, adjusted as provided in Schedule 1.49(a) hereto; provided , however , for purposes of determining EBITDA for any fiscal month ending prior to the expiration of the twelve (12) months after the date hereof, EBITDA for each fiscal month ending prior to the date hereof shall be the amount set forth in Schedule 1.49(b) hereto. For purposes of calculating EBITDA for any Measurement Period, (A) acquisitions that have been made by such Person and its Subsidiaries, including through mergers or consolidated and including any related financing transactions, during the Measurement Period shall be deemed to have occurred on the first day of the Measurement Period; provided, however, that only the actual historical results of operations of the Persons so acquired, without adjustment for pro forma expense savings or revenue increases, shall be used for such calculation; and (B) the EBITDA of such Person and its Subsidiaries attributable to discontinued operations, as determined in accordance with GAAP, and operations or businesses disposed of prior to the end of such Measurement Period, shall be excluded.
1.50 Eligible Cash Collateral shall mean the cash or Cash Equivalents, in each case denominated in United States Dollars, of a Borrower which are: (a) pledged by such Borrower to Agent pursuant to the Cash Collateral Control Agreement, in form and substance reasonably satisfactory to Agent and duly authorized, executed and delivered by such bank or financial intermediary and such Borrower; (b) free and clear of any lien, security interest, claim or other encumbrance or restriction, except for (i) liens in favor of Agent and (ii) liens of the financial intermediary holding such cash or Cash Equivalents that are expressly permitted by the Cash Collateral Control Agreement; (c) subject to the first priority, valid and perfected security interest and pledge in favor of Agent, except (as to priority) for liens in favor of the financial intermediary holding such cash or Cash Equivalents to the extent such liens are expressly permitted to have priority by the Cash Collateral Control Agreement; and (d) available to such Borrower without condition or restriction except those arising pursuant to the pledge in favor of Agent; provided , that , no cash or Cash Equivalents shall constitute Eligible Cash Collateral prior to the date (if any) on which Agent shall have consented to the request by Borrowers to include Eligible Cash Collateral in the Borrowing Base.
1.51 Eligible Credit Card Receivables shall mean the gross amount of all Credit Card Receivables that are subject to a valid, exclusive, first priority and fully perfected security
interest in favor of Agent, for itself and the ratable benefit of the Lenders and the Bank Product Providers, which conform to all applicable warranties contained herein less, without duplication, the sum of all Credit Card Receivables: (a) for which Agent has not received a Credit Card Acknowledgment within sixty (60) days after the date hereof if the Credit Card Agreement exists on the date hereof (or if the Credit Card Agreement is entered into after the date hereof, no later than sixty (60) days after the date of such Credit Card Agreement or such later date as is acceptable to Agent), and (b) which are unpaid more than ten (10) days after the date submitted to the appropriate Credit Card Processor for payment.
1.52 Eligible Damaged Goods Vendors Receivables shall mean Accounts, other than Credit Card Receivables or Eligible Sell-Off Vendors Receivables, created by any Borrower which are and continue to be acceptable to Agent based on the criteria set forth below. In general, Accounts shall be Eligible Damaged Goods Vendors Receivables if:
(a) such Accounts arise from the actual and bona fide sale and delivery of damaged Inventory by such Borrower to a third-party off-price wholesaler satisfactory to Agent, in the ordinary course of such Borrowers business, which transactions are completed in accordance with the terms and provisions contained in any documents related thereto;
(b) such Accounts are not unpaid more than ninety (90) days after the date of the original invoice for them;
(c) such Accounts comply with the terms and conditions contained in Section 7.2(b) of this Agreement;
(d) such Accounts do not arise from sales on consignment, guaranteed sale, sale and return, sale on approval, or other terms under which payment by the account debtor may be conditional or contingent;
(e) the chief executive office of the account debtor with respect to such Accounts is located in the United States of America or Canada;
(f) such Accounts do not consist of progress billings (such that the obligation of the account debtors with respect to such Accounts is conditioned upon such Borrowers satisfactory completion of any further performance under the agreement giving rise thereto), bill and hold invoices or retainage invoices, except as to bill and hold invoices, if Agent shall have received an agreement in writing from the account debtor, in form and substance satisfactory to Agent, confirming the unconditional obligation of the account debtor to take the goods related thereto and pay such invoice;
(g) the account debtor with respect to such Accounts has not asserted a counterclaim, defense or dispute and does not have, and does not engage in transactions which may give rise to any right of setoff or recoupment against such Accounts (but the portion of the Accounts of such account debtor in excess of the amount at any time and from time to time owed by such Borrower to such account debtor or claimed to be owed by such account debtor may be deemed Eligible Damaged Goods Vendors Receivables);
(h) there are no facts, events or occurrences which would impair the validity,
enforceability or collectability of such Accounts or reduce the amount payable or delay payment thereunder;
(i) such Accounts are subject to the first priority, valid and perfected security interest of Agent and any goods giving rise thereto are not, and were not at the time of the sale thereof, subject to any liens except those of Agent or those permitted in this Agreement that are subject to an intercreditor agreement in form and substance satisfactory to Agent between the holder of such security interest or lien and Agent;
(j) neither the account debtor nor any officer or employee of the account debtor with respect to such Accounts is an officer, employee, agent or other Affiliate of any Borrower or Guarantor;
(k) the account debtors with respect to such Accounts are not any foreign government, the United States of America, any State, political subdivision, department, agency or instrumentality thereof, unless, if the account debtor is the United States of America, any State, political subdivision, department, agency or instrumentality thereof, upon Agents request, the Federal Assignment of Claims Act of 1940, as amended or any similar State or local law, if applicable, has been complied with in a manner satisfactory to Agent;
(l) there are no proceedings or actions which are threatened or pending against the account debtors with respect to such Accounts which are likely to result in any material adverse change in any such account debtors financial condition (including, without limitation, any bankruptcy, dissolution, liquidation, reorganization or similar proceeding);
(m) such Accounts are not evidenced by or arising under any instrument or chattel paper;
(n) such Accounts are not owed by an account debtor who has Accounts unpaid more than ninety (90) days after the original invoice date for them which constitute more than thirty-five percent (35%) of the total Accounts of such account debtor;
(o) the account debtor is not located in a state requiring the filing of a Notice of Business Activities Report or similar report in order for such Borrower to seek judicial enforcement in such State of payment of such Account, unless such Borrower has qualified to do business in such state or has filed a Notice of Business Activities Report or equivalent report for the then current year or such failure to file and inability to seek judicial enforcement is capable of being remedied without any material delay or material cost; and
(p) such Accounts do not constitute amounts which have been invoiced by such Borrower but with respect to which goods so invoiced have not been delivered to the account debtor.
The criteria for Eligible Damaged Goods Vendors Receivables set forth above may only be changed and any new criteria for Eligible Damaged Goods Vendors Receivables may only be established by Agent in good faith based on either: (i) an event, condition or other circumstance arising after the date hereof, or (ii) an event, condition or other circumstance existing on the date hereof to the extent Agent has no written notice thereof from Borrowers prior to the date hereof,
in either case under clause (i) or (ii) which adversely affects or could reasonably be expected to adversely affect the Accounts in the good faith determination of Agent. Any Accounts which are not Eligible Damaged Goods Vendors Receivables shall nevertheless be part of the Collateral.
1.53 Eligible Inventory shall mean Eligible Landed Inventory, Eligible In-Transit Inventory and Eligible In-Transit LC Inventory.
1.54 Eligible In-Transit Inventory shall mean Domestic In-Transit Inventory and Foreign In-Transit Inventory owned by a Borrower that otherwise satisfies the criteria for Eligible Landed Inventory; provided , that :
copy of the certificate of evidence of marine cargo insurance in connection therewith in which it has been named as an additional insured and lenders loss payee in a manner acceptable to Agent;
(a) work-in-process;
(b) raw materials;
(c) spare parts for equipment;
(d) packaging and shipping materials;
(e) supplies used or consumed in Borrowers business;
(f) Inventory at premises other than those owned or leased and controlled by a Borrower unless Agent has either (i) received a Collateral Access Agreement in form and substance satisfactory to Agent with respect to such location or (ii) established a Reserve in an
amount in accordance with the terms hereof with respect to such location;
(g) Inventory subject to a perfected security interest or lien in favor of any person other than Agent except those permitted in this Agreement including those that are subordinate to the security interest of Agent pursuant to an intercreditor agreement in form and substance satisfactory to Agent between Agent and the holder of such other security interest or lien;
(h) bill and hold goods;
(i) obsolete, out-of-season or slow moving Inventory;
(j) damaged and/or defective Inventory;
(k) Inventory returned by customers and not held for resale;
(l) Inventory consisting of samples or displays;
(m) Inventory held for return to vendors; and
(n) Inventory purchased or sold on consignment.
General criteria for Eligible Landed Inventory may only be made more restricted and any new criteria for Eligible Landed Inventory may only be established by Agent in good faith, based on either: (i) an event, condition or other circumstance arising after the date hereof, or (ii) existing on the date hereof to the extent Agent has no written notice thereof from Borrowers prior to the date hereof, in either case under clause (i) or (ii) which adversely affects or could reasonably be expected to adversely affect the Inventory in the good faith determination of Agent. Any Inventory which is not Eligible Landed Inventory shall nevertheless be part of the Collateral.
1.57 Eligible Sell-Off Vendors Receivables shall mean Accounts, other than Credit Card Receivables or Eligible Damaged Goods Vendor Receivables, created by any Borrower which are and continue to be acceptable to Agent based on the criteria set forth below. In general, Accounts shall be Eligible Sell-Off Vendors Receivables if:
(a) such Accounts arise from the actual and bona fide sale and delivery of out-of-season or slow moving Inventory by such Borrower to a third-party off-price wholesaler, including Ben Elias and Value City (or any other Person engaged in substantially the same business as Ben Elias or Value City and permitted by Agent), in the ordinary course of such Borrowers business, which transactions are completed in accordance with the terms and provisions contained in any documents related thereto;
(b) such Accounts are not unpaid more than ninety (90) days after the date of the original invoice for them;
(c) such Accounts comply with the terms and conditions contained in Section 7.2(b) of this Agreement;
(d) such Accounts do not arise from sales on consignment, guaranteed sale, sale and return, sale on approval, or other terms under which payment by the account debtor may be conditional or contingent;
(e) the chief executive office of the account debtor with respect to such Accounts is located in the United States of America or Canada;
(f) such Accounts do not consist of progress billings (such that the obligation of the account debtors with respect to such Accounts is conditioned upon such Borrowers satisfactory completion of any further performance under the agreement giving rise thereto), bill and hold invoices or retainage invoices, except as to bill and hold invoices, if Agent shall have received an agreement in writing from the account debtor, in form and substance satisfactory to Agent, confirming the unconditional obligation of the account debtor to take the goods related thereto and pay such invoice;
(g) the account debtor with respect to such Accounts has not asserted a counterclaim, defense or dispute and does not have, and does not engage in transactions which may give rise to any right of setoff or recoupment against such Accounts (but the portion of the Accounts of such account debtor in excess of the amount at any time and from time to time owed by such Borrower to such account debtor or claimed to be owed by such account debtor may be deemed Eligible Sell-Off Vendors Receivables),
(h) there are no facts, events or occurrences which would impair the validity, enforceability or collectability of such Accounts or reduce the amount payable or delay payment thereunder;
(i) such Accounts are subject to the first priority, valid and perfected security interest of Agent and any goods giving rise thereto are not, and were not at the time of the sale thereof, subject to any liens except those permitted in this Agreement that are subject to an intercreditor agreement in form and substance satisfactory to Agent between the holder of such security interest or lien and Agent;
(j) neither the account debtor nor any officer or employee of the account debtor with respect to such Accounts is an officer, employee, agent or other Affiliate of any Borrower or Guarantor;
(k) the account debtors with respect to such Accounts are not any foreign government, the United States of America, any State, political subdivision, department, agency or instrumentality thereof, unless, if the account debtor is the United States of America, any State, political subdivision, department, agency or instrumentality thereof, upon Agents request, the Federal Assignment of Claims Act of 1940, as amended or any similar State or local law, if applicable, has been complied with in a manner satisfactory to Agent;
(l) there are no proceedings or actions which are threatened or pending against the account debtors with respect to such Accounts which are likely to result in any material adverse change in any such account debtors financial condition (including, without limitation, any bankruptcy, dissolution, liquidation, reorganization or similar proceeding);
(m) such Accounts are not evidenced by or arising under any instrument or chattel paper;
(n) such Accounts are not owed by an account debtor who has Accounts unpaid more than ninety (90) days after the original invoice date for them which constitute more than thirty-five (35%) of the total Accounts of such account debtor;
(o) the account debtor is not located in a state requiring the filing of a Notice of Business Activities Report or similar report in order for such Borrower to seek judicial enforcement in such State of payment of such Account, unless such Borrower has qualified to do business in such state or has filed a Notice of Business Activities Report or equivalent report for the then current year or such failure to file and inability to seek judicial enforcement is capable of being remedied without any material delay or material cost; and
(p) such Accounts do not constitute amounts which have been invoiced by such Borrower but with respect to which goods so invoiced have not been delivered to the account debtor.
The criteria for Eligible Sell-Off Vendors Receivables set forth above may only be changed and any new criteria for Eligible Sell-Off Vendors Receivables may only be established by Agent in good faith based on either: (i) an event, condition or other circumstance arising after the date hereof, or (ii) an event, condition or other circumstance existing on the date hereof to the extent Agent has no written notice thereof from Borrowers prior to the date hereof, in either case under clause (i) or (ii) which adversely affects or could reasonably be expected to adversely affect the Accounts in the good faith determination of Agent. Any Accounts which are not Eligible Sell-Off Vendors Receivables shall nevertheless be part of the Collateral.
1.58 Eligible Transferee shall mean (a) any Lender; (b) the parent company of any Lender and/or any Affiliate of such Lender which is at least fifty percent (50%) owned by such Lender or its parent company; (c) any person (whether a corporation, partnership, trust or otherwise) that is engaged in the business of making, purchasing, holding or otherwise investing in bank loans and similar extensions of credit in the ordinary course of its business and is administered or managed by a Lender or with respect to any Lender that is a fund which invests in bank loans and similar extensions of credit, any other fund that invests in bank loans and similar extensions of credit and is managed by the same investment advisor as such Lender or by an Affiliate of such investment advisor, and in each case (unless otherwise provided herein with regard to the Existing Term Loan) is approved by Agent; and (d) any other commercial bank, financial institution or accredited investor (as defined in Regulation D under the Securities Act of 1933) approved by Agent, provided, that, (i) no Borrower, Guarantor, Affiliate of any Borrower or Guarantor, BSMB or any Affiliate of BSMB shall qualify as an Eligible Transferee, (ii) no Person to whom any Indebtedness which is in any way subordinated in right of payment to any other Indebtedness of any Borrower or Guarantor shall qualify as an Eligible Transferee, except as Agent may otherwise specifically agree and (iii) no Person that is organized under the laws of a jurisdiction other than the United States or any state thereof shall qualify as an Eligible Transferee.
1.59 Environmental Laws shall mean all foreign, Federal, State and local laws
(including common law), rules, codes, licenses, permits (including any conditions imposed therein), authorizations, judicial or administrative decisions, injunctions or agreements between any Borrower or Guarantor and any Governmental Authority, (a) relating to pollution and the protection, preservation or restoration of the environment (including air, water vapor, surface water, ground water, drinking water, drinking water supply, surface land, subsurface land, plant and animal life or any other natural resource), or to occupational health or safety, (b) relating to the exposure to, or the use, storage, recycling, treatment, generation, manufacture, processing, distribution, transportation, handling, labeling, production, release or disposal, or threatened release, of Hazardous Materials, or (c) relating to all laws with regard to recordkeeping, notification, disclosure and reporting requirements respecting Hazardous Materials. The term Environmental Laws includes (i) the Federal Comprehensive Environmental Response, Compensation and Liability Act of 1980, the Federal Superfund Amendments and Reauthorization Act, the Federal Water Pollution Control Act of 1972, the Federal Clean Water Act, the Federal Clean Air Act, the Federal Resource Conservation and Recovery Act of 1976 (including the Hazardous and Solid Waste Amendments thereto), the Federal Solid Waste Disposal and the Federal Toxic Substances Control Act, the Federal Insecticide, Fungicide and Rodenticide Act, and the Federal Safe Drinking Water Act of 1974, (ii) applicable state counterparts to such laws and (iii) any common law or equitable doctrine that may impose liability or obligations for injuries or damages due to, or threatened as a result of, the presence of or exposure to any Hazardous Materials.
1.60 Equipment shall mean all of each Borrowers and each Guarantors now owned and hereafter acquired equipment, wherever located, including machinery, data processing and computer equipment (whether owned or licensed and including embedded software), vehicles, tools, furniture, fixtures, all attachments, accessions and property now or hereafter affixed thereto or used in connection therewith, and substitutions and replacements thereof, wherever located.
1.61 ERISA shall mean the United States Employee Retirement Income Security Act of 1974, as amended, together with all rules, regulations and interpretations thereunder or related thereto.
1.62 ERISA Affiliate shall mean any person required to be aggregated with any Borrower or any Guarantor under Sections 414(b), 414(c), 414(m) or 414(o) of the Code.
1.63 ERISA Event shall mean (a) any reportable event, as defined in Section 4043(c) of ERISA or the regulations issued thereunder, with respect to a Pension Plan, except for any such event with respect to which notice has been waived pursuant to applicable regulations; (b) the adoption of any amendment to a Pension Plan that would require the provision of security pursuant to Section 401(a)(29) of the Code or Section 307 of ERISA; (c) the existence with respect to any Pension Plan of an accumulated funding deficiency (as defined in Section 412 of the Code or Section 302 of ERISA), whether or not waived; (d) the filing pursuant to Section 412 of the Code or Section 303(d) of ERISA of an application for a waiver of the minimum funding standard with respect to any Pension Plan; (e) the occurrence of a non-exempt prohibited transaction with respect to which any Borrower or Guarantor, or any of their respective Subsidiaries is a disqualified person (within the meaning of Section 4975 of the Code); (f) a complete or partial withdrawal by any Borrower, any Guarantor or any ERISA
Affiliate from a Multiemployer Plan or a cessation of operations which is treated as such a withdrawal or notification that a Multiemployer Plan is in reorganization; (g) the filing of a notice of intent to terminate, the treatment of a Pension Plan amendment as a termination under Section 4041 or 4041A of ERISA, or the commencement of proceedings by the Pension Benefit Guaranty Corporation to terminate a Pension Plan; (h) an event or condition which might reasonably be expected to constitute grounds under Section 4042 of ERISA for the termination of, or the appointment of a trustee to administer, any Pension Plan; and (i) the imposition of any liability under Title IV of ERISA, other than the Pension Benefit Guaranty Corporation premiums due but not delinquent under Section 4007 of ERISA, upon any Borrower, any Guarantor or any ERISA Affiliate in an amount that could reasonably be expected to have a Material Adverse Effect.
1.64 Eurodollar Rate shall mean with respect to the Interest Period for a Eurodollar Rate Loan, the interest rate per annum equal to the arithmetic average of the rates of interest per annum (rounded upwards, if necessary, to the next one-sixteenth (1/16) of one percent (1%)) at which the Reference Bank is offered deposits of United States dollars in the London interbank market (or other Eurodollar Rate market selected by Borrowers and approved by Agent) on or about 9:00 a.m. (New York time) two (2) Business Days prior to the commencement of such Interest Period in amounts substantially equal to the principal amount of the Eurodollar Rate Loans requested by and available to Borrowers in accordance with this Agreement, with a maturity of comparable duration to the Interest Period selected by or on behalf of Borrowers.
1.65 Eurodollar Rate Loans shall mean the Loans or portions thereof on which interest is payable based on the Adjusted Eurodollar Rate in accordance with the terms hereof.
1.66 Event of Default shall mean the occurrence or existence of any event or condition described in Section 10.1 hereof.
1.67 Excess Availability shall mean, the amount, as determined by Agent, calculated at any date, equal to: (a) the Borrowing Base (calculated, for this purpose, without giving effect to the Total LC Reserve Amount), minus (b) the sum of: (i) the amount of all then outstanding and unpaid Obligations (but not including for this purpose the then outstanding Letter of Credit Accommodations or the outstanding balance of the Existing Term Loan), which, for purposes of clarification, may be a credit balance arising from the overpayment of the Obligations, plus (ii) the Total LC Reserve Amount, plus (iii) the aggregate amount of all outstanding and unpaid trade payables and other obligations of any Borrower which, as reported on the most recent Borrowing Base Certificate for the most recent month end, are outstanding more than forty-five (45) days past due as of such time (other than trade payables or other obligations being contested or disputed by such Borrower in good faith), plus (iv) without duplication, the amount of checks issued by any Borrower to pay trade payables and other obligations which, as reported on the most recent Borrowing Base Certificate for the most recent month end, are more than forty-five (45) days past due as of such time (other than trade payables or other obligations being contested or disputed by such Borrower in good faith), but not yet sent.
1.68 Exchange Act shall mean the Securities Exchange Act of 1934, together with all rules, regulations and interpretations thereunder or related thereto.
1.69 Existing Financing Agreements shall mean, collectively, the Existing Loan Agreement, the Existing Guarantor Security Agreements, and all other documents, certificates, instruments, notes, guarantees, mortgages and agreements executed and delivered by Borrowers and Guarantors in connection therewith, whether or not specifically mentioned herein or therein as heretofore, amended and as in effect immediately prior to the date hereof.
1.70 Existing Guarantor Security Agreements shall mean, collectively, the Amended and Restated Guaranty and Security Agreement, dated March 16, 2004, by NY&Co in favor of Agent, the Amended and Restated Guaranty and Security Agreement, dated March 16, 2004, by Parent in favor of Agent, the Amended and Restated Guaranty and Security Agreement, dated March 16, 2004, by Nevada Factoring in favor of Agent, the Amended and Restated Guaranty and Security Agreement, dated March 16, 2004, by Associated Lerner in favor of Agent, Associated Lerner, and the Amended and Restated Guaranty and Security Agreement, dated March 16, 2004, by Lerner GC in favor of Agent as heretofore amended and as in effect immediately prior to the date hereof.
1.71 Existing Loan Agreement shall have the meaning set forth in the recitals hereof as heretofore amended and as in effect immediately prior to the date hereof.
1.72 Existing Term Loan shall have the meaning set forth in Section 2.3 hereof.
1.73 Existing Term Loan Commitment shall mean that portion of the Existing Term Loan made by and owing to Existing Term Loan Lender, as the same may be adjusted from time to time in accordance with the terms hereof.
1.74 Existing Term Loan Interest Rate shall mean, for any month during which any Obligations related to the Existing Term Loan are outstanding, a per annum rate equal to two and one-half (2.50%) percent per annum in excess of the Adjusted Eurodollar Rate (when calculated using the Eurodollar Rate existing as of the last day of the month ended immediately prior to such month and an Interest Period of one month); provided, that, (a) at Agents option or, upon the written direction of Existing Term Loan Lender, the Existing Term Loan Interest Rate shall be increased by two (2.0) percentage points either (i) for the period on and after the date of termination or non-renewal hereof until such time as all Obligations arising under the Existing Term Loan are indefeasibly paid and satisfied in full in immediately available funds, or (ii) for the period from and after the date of the occurrence of any Event of Default, and for so long as such Event of Default is continuing and (b) notwithstanding anything to the contrary contained herein, if any of the conditions described in Sections 3.3(b)(i), 3.3(b)(ii) or 3.3(b)(iii) hereof exist with respect to Eurodollar Rate Loans, or if the adoption of or any change in any law, treaty, rule or regulation or final, non-appealable determination of an arbitrator or a court or other Governmental Authority or in the interpretation or application thereof, in each case, occurring after the date hereof shall make it unlawful for Existing Term Loan Lender to maintain loans based on the Adjusted Eurodollar Rate, then Existing Term Loan Lender may, at its option, after notice to Agent and Borrowers, convert the interest rate on the Existing Term Loan on the last day of the then-current Interest Period to the Prime Rate (or at the option of Existing Term Loan Lender, after notice to Agent, for the period from and after the date of the occurrence of any Event of Default, and for so long as such Event of Default is continuing as determined by Agent, to two (2%) percent per annum in excess of the Prime Rate).
1.75 Existing Term Loan Lender shall mean Wachovia.
1.76 Existing Term Loan Maturity Date shall mean March 17, 2012.
1.77 Fee Letter shall mean that certain confidential letter agreement, captioned Fee Letter, dated as of the date hereof, among Borrowers and Agent.
1.78 Financing Agreements shall mean, collectively, this Agreement, any and all notes, the Fee Letter, the Guarantee, the Stock Pledge Agreements, the Collateral Access Agreements, the Credit Card Acknowledgments, the Deposit Account Control Agreements (together with all other agreements necessary for Agent to take (conditionally or otherwise) dominion of all cash receipts and payments on credit card receivables of each Borrower and Guarantor), the Investment Property Control Agreements, any other security agreements, the Intellectual Property Security Agreements, the Intercompany Subordination Agreement, and all other agreements, documents and instruments now or at any time hereafter executed and/or delivered by any Borrower or any Obligor in connection with this Agreement.
1.79 Fiscal Year-End shall mean the dates denoted as Fiscal Year-End dates on Exhibit F hereto.
1.80 First Quarter-End shall mean the dates denoted as First Quarter-End dates on Exhibit F hereto.
1.81 Fixed Charge Coverage Ratio shall mean, as to any Person and their Subsidiaries, calculated on a consolidated basis, for any applicable measurement period, measured as of the end of such, the ratio of: (a) the amount equal to sum of (i) EBITDA plus (ii) Qualified Cash to (b) Fixed Charges.
1.82 Fixed Charges shall mean, with respect to any Person and its Subsidiaries for any period, the sum of, without duplication, (a) all cash Interest Expense paid during such period (net of interest income of such Person during such Period and excluding, to the extent taken into account in the calculation of Interest Expense, upfront fees, costs and expenses in respect of this Agreement, the New Term Loan Documents and the transactions contemplated hereby and thereby), plus (b) all regularly scheduled mandatory principal payments with respect to Indebtedness for borrowed money (excluding payments in respect of Revolving Loans) paid or payable for such period, and Indebtedness with respect to Capital Leases paid during such period in cash (excluding the interest component with respect to Indebtedness under Capital Lease), plus (c) all income taxes paid during such period in cash (net of refunds or tax credits to such Person in respect to income taxes, and excluding income tax on extraordinary or non-recurring gains or gains from asset sales outside of the ordinary course of business), plus (d) all Capital Expenditures paid in cash during such period net of applicable construction or landlord tenant allowances during such period (other Capital Expenditures of such Person, made with the proceeds of Indebtedness permitted for such purpose hereunder), all of the foregoing as determined in accordance with GAAP.
1.83 Fourth Quarter-End shall mean the dates denoted as Fourth Quarter-End dates on Exhibit F hereto.
1.84 Foreign In-Transit Inventory shall mean Inventory owned by a Borrower that is not located in the continental United States of America and which is in transit to one of the locations set forth on Exhibit E hereto (as such schedule may be updated from time to time by Borrowers to exclude locations which have been closed and/or include additional locations of Inventory which Borrowers are permitted to establish under the terms of this Agreement) being either the premises of a Freight Forwarder in the United States of America or the premises of such Borrower in the United States of America which are either owned and controlled by such Borrower or leased by such Borrower.
1.85 Foreign Subsidiary shall mean any Subsidiary of any Borrower or Guarantor that is a corporation (or is treated as a corporation under the Code) and is not organized under the laws of the United States or a state thereof.
1.86 Freight Forwarders shall mean the persons listed on Schedule 1.86 hereto or such other person or persons as may be selected by Borrower after the date hereof and after written notice by Borrower to Agent who are reasonably acceptable to Agent to handle the receipt of Inventory within the United States of America and/or to clear Inventory through the Bureau of Customs and Border Protection (formerly the Customs Service) or other domestic or foreign export control authorities or otherwise perform port of entry services to process Inventory imported by Borrower from outside the United States of America (such persons sometimes being referred to herein individually as a Freight Forwarder), provided , that , as to each such person, (a) Agent shall have received a Collateral Access Agreement by such person in favor of Agent (in form and substance satisfactory to Agent) duly authorized, executed and delivered by such person, (b) such agreement shall be in full force and effect and (c) such person shall be in compliance in all material respects with the terms thereof.
1.87 Funding Bank shall have the meaning set forth in Section 3.3(a) hereof.
1.88 GAAP shall mean generally accepted accounting principles in the United States of America as in effect from time to time as set forth in the opinions and pronouncements of the Accounting Principles Board and the American Institute of Certified Public Accountants and the statements and pronouncements of the Financial Accounting Standards Board which are applicable to the circumstances as of the date of determination consistently applied, except that, for purposes of Section 9.18 hereof, GAAP shall be determined on the basis of such principles in effect on the date hereof and consistent with those used in the preparation of the most recent audited financial statements delivered to Agent prior to the date hereof.
1.89 Gift Certificate and Store Credit Reserve shall mean, as of any date of determination, a Reserve equal to the amount of fifty-one percent (51%) of all (i) accrued and outstanding gift certificates which any Borrower is obligated to honor and (ii) the aggregate amount of outstanding store credit to be honored by any Borrower.
1.90 Goods in Progress LC shall mean a documentary Letter of Credit Accommodation (a) initially requested for the purpose of ordering and ultimately purchasing Inventory which, upon its completion and deposit with a shipper who has executed a Collateral Access Agreement, in form and substance satisfactory to Agent, is reasonably anticipated to be deemed Eligible In-Transit Inventory or Eligible In-Transit LC Inventory, (b) which has not been
issued and outstanding for more than seventy-five (75) days and (c) which does not relate to Inventory which has in fact become finished goods which have been deposited for shipment to a Borrower with a Freight Forwarder who has executed a Collateral Access Agreement, in form and substance satisfactory to Agent; provided , that , after such goods become finished goods and have been so deposited with such a Freight Forwarder, then such Letter of Credit Accommodation shall no longer be deemed a Goods in Progress LC.
1.91 Governmental Authority shall mean any nation or government, any state, province, or other political subdivision thereof, any central bank (or similar monetary or regulatory authority) thereof, and any entity exercising executive, legislative, judicial, regulatory or administrative functions of government.
1.92 Guarantee shall mean the Amended and Restated Guarantee executed and delivered by each Borrower and Guarantor in favor of Agent, for itself and the ratable benefit of the Lenders and the Bank Product Providers, in form and substance satisfactory to Agent, as the same may be amended, modified or supplemented from time to time, and any other guaranty from time to time executed by any Guarantor in favor of Agent, for itself and the ratable benefit of the Lenders and the Bank Product Providers, as the same now exists or may hereafter be amended, modified, supplemented, extended, renewed, restated or replaced.
1.93 Guarantors shall mean collectively, the following (together with their respective successors and assigns): (a) NY&Co, (b) Parent, (c) Nevada Factoring, (d) Associated Lerner, and (e) Lerner GC; each sometimes being referred to herein individually as Guarantor.
1.94 Hazardous Materials shall mean any hazardous, toxic or dangerous substances, materials and wastes, including hydrocarbons (including naturally occurring or man-made petroleum and hydrocarbons), flammable explosives, asbestos, urea formaldehyde insulation, radioactive materials, polychlorinated biphenyls, pesticides, herbicides and any other kind and/or type of pollutants or contaminants, sewage, sludge, industrial slag, solvents and/or any other similar substances, materials, or wastes and including any other substances, materials or wastes that are or become classified as hazardous or toxic under any Environmental Law.
1.95 Hedging Transactions shall mean (a) any and all rate swap transactions, basis swaps, forward rate transactions, commodity swaps, commodity options, forward commodity contracts, equity or equity index swaps or options, bond or bond price or bond index swaps or options, forward bond or forward bond price or forward bond index transactions, interest rate options, forward foreign exchange transactions, cap transactions, floor transactions, collar transactions, currency swap transactions, cross-currency rate swap transaction, currency options or any other similar transactions or any combination of any of the foregoing (including any options to enter into any of the foregoing), whether or not any such transaction is governed by or subject to any master agreement, or (b) any and all transactions of any kind, and the related confirmations, that are subject to the terms or conditions of, or governed by, any form of master agreement published by the International Swaps and Derivatives Association, Inc., or any other master agreement, as amended, restated, extended, supplemented or otherwise modified in writing from time to time, including but not limited to, any such obligations or liabilities under any such agreement.
1.96 In Store Payment shall have the meaning set forth in the Private Label Credit Card Agreement.
1.97 Indebtedness shall mean, with respect to any Person and without duplication, any liability, whether or not contingent, (a) in respect of borrowed money (whether or not the recourse of the lender is to the whole of the assets of such Person or only to a portion thereof) or evidenced by bonds, notes, debentures or similar instruments; (b) representing the balance deferred and unpaid of the purchase price of any property or services (except any such balance that constitutes an account payable to a trade creditor (whether or not an Affiliate) created, incurred, assumed or guaranteed by such Person in the ordinary course of business of such Person in connection with obtaining goods, materials or services that is not overdue by more than ninety (90) days, unless the trade payable is being contested in good faith); (c) all obligations as lessee under leases which have been, or should be, in accordance with GAAP recorded as Capital Leases; (d) any contractual obligation, contingent or otherwise, of such Person to pay or be liable for the payment of any indebtedness described in this definition of another Person, including, without limitation, any such indebtedness, directly or indirectly guaranteed, or any agreement to purchase, repurchase, or otherwise acquire such indebtedness, obligation or liability or any security therefor, or to provide funds for the payment or discharge thereof, or to maintain solvency, assets, level of income, or other financial condition of another Person; (e) all obligations with respect to redeemable stock and redemption or repurchase obligations under any Capital Stock or other equity securities issued by such Person; (f) all reimbursement obligations and other liabilities of such Person with respect to surety bonds (whether bid, performance or otherwise), letters of credit, bankers acceptances, drafts or similar documents or instruments issued for such Persons account; (g) all indebtedness of such Person in respect of indebtedness of another Person for borrowed money or indebtedness of another Person otherwise described in this definition which is secured by any consensual lien, security interest, collateral assignment, conditional sale, mortgage, deed of trust, or other encumbrance on any asset of such Person, whether or not such obligations, liabilities or indebtedness are assumed by or are a personal liability of such Person, all as of such time; (h) all obligations, liabilities and indebtedness of such Person (marked to market) arising under swap agreements, cap agreements and collar agreements and other agreements or arrangements designed to protect such person against fluctuations in interest rates or currency or commodity values; and (i) all obligations owed by such Person under License Agreements with respect to non-refundable, advance or minimum guarantee royalty payments.
1.98 Indemnitee shall have the meaning set forth in Section 11.5 hereof.
1.99 Information Certificates shall mean the Information Certificates, dated the date hereof, of Borrowers and Guarantors collectively constituting Exhibit D hereto, containing material information with respect to such Person and such Persons businesses and assets provided by or on behalf of such Person to Agent in connection with the preparation of this Agreement and the other Financing Agreements and the financing arrangements provided for herein.
1.100 Insolvency Event shall mean, the commencement of any of the following with respect to any Borrower or Guarantor: (i) any case or proceeding with respect to such person under the Bankruptcy Code, or any other Federal, State or other bankruptcy, insolvency,
reorganization or other law affecting creditors rights or any other or similar proceedings seeking any stay, reorganization, arrangement, composition or readjustment of all or substantially all of the obligations and indebtedness of such person or (ii) any proceeding seeking the appointment of any receiver, trustee, administrator, liquidator, custodian or other insolvency official with similar powers with respect to such person or all or substantially all of its assets or (iii) any proceeding for liquidation, dissolution or other winding up of the business of such person or (iv) any general assignment for the benefit of creditors or any general marshaling of all or substantially all of the assets of such person.
1.101 Intellectual Property shall mean any Borrowers or any Guarantors now owned and hereafter arising or acquired: patents, patent rights, patent applications, copyrights, works which are the subject matter of copyrights, copyright registrations, trademarks, trade names, trade styles, trademark and service mark applications, and licenses and rights to use any of the foregoing; all extensions, renewals, reissues, divisions, continuations, and continuations-in-part of any of the foregoing; all rights to sue for past, present and future infringement of any of the foregoing; inventions, trade secrets, formulae, processes, compounds, drawings, designs, blueprints, surveys, reports, manuals, and operating standards; goodwill (including any goodwill associated with any trademark or the license of any trademark); customer and other lists in whatever form maintained; trade secret rights, copyright rights, rights in works of authorship, domain names and domain name registration; software and contract rights relating to computer software programs, in whatever form created or maintained.
1.102 Intellectual Property Security Agreements shall mean, collectively, the Lerner Trademark Agreement, the Lernco Trademark Agreement and any other security agreement concerning any Intellectual Property of any Borrower or Guarantor at any time delivered to Agent in connection with this Agreement, as the same now exist or may hereafter be amended, modified, supplemented, extended, renewed, restated or replaced.
1.103 Intercompany Subordination Agreement shall mean the Second Amended and Restated Intercompany Subordination Agreement, in form and substance satisfactory to Agent, dated of even date herewith, by and among Borrowers, certain of their Affiliates and Agent, as the same now exists or may hereafter be amended, modified, supplemented, extended, renewed, restated or replaced.
1.104 Interest Expense shall mean, for any period, total interest expense in accordance with GAAP of Borrowers and Guarantors on a consolidated basis with respect to all outstanding Indebtedness.
1.105 Interest Period shall mean for any Eurodollar Rate Loan, a period of approximately one (1), two (2), three (3) or six (6) months duration as Borrowers may elect, the exact duration to be determined in accordance with the customary practice in the applicable Eurodollar Rate market; provided, that, Borrowers may not elect an Interest Period which will end after the last day of the then-current term of this Agreement.
1.106 Inventory shall mean all of each Borrowers and each Guarantors now owned and hereafter existing or acquired goods, wherever located, which (a) are leased by such Borrower or Guarantor as lessor; (b) are held by such Borrower or Guarantor for sale or lease or
to be furnished under a contract of service; (c) are furnished by such Borrower or Guarantor under a contract of service; (d) consist of raw materials, work in process, finished goods or materials used or consumed in its business; or (e) are goods in transit to such Borrower or Guarantor.
1.107 Inventory Loan Limit shall mean $90,000,000.
1.108 Investment Property Control Agreement shall mean an agreement in writing, in form and substance satisfactory to Agent, by and among Agent, any Borrower or Guarantor (as the case may be) and any securities intermediary, commodity intermediary or other person who has custody, control or possession of any investment property of such Borrower or Guarantor acknowledging that such securities intermediary, commodity intermediary or other person has custody, control or possession of such investment property on behalf of Agent, that it will comply with entitlement orders originated by Agent with respect to such investment property, or other instructions of Agent, or (as the case may be) apply any value distributed on account of any commodity contract as directed by Agent, in each case, without the further consent of such Borrower or Guarantor and including such other terms and conditions as Agent may require.
1.109 Jasmine shall mean Jasmine Company, Inc., a Massachusetts corporation.
1.110 Landed Value shall mean, with respect to Eligible In-Transit Inventory or Eligible In-Transit LC Inventory, the sum of (a) the face amount of all documentary Letter of Credit Accommodations issued under this Agreement for purposes of purchasing such Inventory from a Person who is not an Affiliate of any Borrower plus (b) the amount of freight, customs, taxes and duty and other amounts which Agent estimates must be paid upon the arrival and in connection with the delivery of such Inventory to a Borrowers location for Eligible Landed Inventory within the United States of America.
1.111 LC Reserve Amount shall mean, with respect to each Letter of Credit Accommodation provided under this Agreement, the amount equal to:
(a) if such Letter of Credit Accommodation is a Goods in Progress LC and the Non-Reserved LC Amount does not then exceed $20,000,000, the sum of (i) twenty-five percent (25%) (or twenty percent (20%) during the Seasonal Advance Period) of the face amount of such Goods in Progress LC plus (ii) freight, taxes, duty, and other amounts which Agent estimates must be paid in connection with the delivery of the Inventory ordered thereunder to a Borrowers location for Eligible Landed Inventory within the United States of America; or
(b) if such Letter of Credit Accommodation is for any other purpose, including, if it does not meet any of the conditions for being a Goods in Progress LC or if the Non-Reserved LC Amount does then exceed $20,000,000, the sum of (i) one hundred percent (100%) of the face amount of the proposed Letter of Credit Accommodation plus (ii) if such Letter of Accommodation is for the purchase of Inventory, freight, taxes, duty, and other amounts which Agent estimates must be paid in connection with the delivery of such Inventory to a Borrowers location for Eligible Landed Inventory within the United States of America, plus (iii) all other commitments and obligations made or incurred by Agent with respect thereto.
1.112 Lender Register shall have the meaning given in Section 14.7(b) hereof.
1.113 Lenders shall mean the Persons who are signatories hereto as Lenders and other Persons made a party to this Agreement as a Lender in accordance with Section 14.7 hereof, and their respective successors and assigns; each sometimes being referred to herein individually as a Lender.
1.114 Lernco shall have the meaning set forth in the introduction hereto.
1.115 Lernco Trademark Agreement shall mean the Second Amended and Restated Collateral Assignment of Trademarks (Security Agreement), dated of even date herewith, by Lernco and Jasmine in favor of Agent, for itself and the ratable benefit of the Lenders and the Bank Product Providers, as the now exists or may hereafter be amended, modified, supplemented, extended, renewed, restated or replaced.
1.116 Lerner shall have the meaning set forth in the preamble hereto.
1.117 Lerner GC shall mean Lerner New York GC, LLC, an Ohio limited liability company.
1.118 Lerner Stock Pledge Agreement shall mean the Second Amended and Restated Stock Pledge Agreement, dated of even date herewith, by Lerner in favor of Agent, for itself and the ratable benefit of the Lenders and the Bank Product Providers, with respect to the pledge of 100% of the Capital Stock of Associated Lerner, Lernco, Lerner GC and Jasmine, owned by Lerner, as the now exists or may hereafter be amended, modified, supplemented, extended, renewed, restated or replaced.
1.119 Lerner Trademark Agreement shall mean the Amended and Restated Collateral Assignment of Trademarks (Security Agreement), dated of even date herewith, by Lerner in favor of Agent, for itself and the ratable benefit of the Lenders and the Bank Product Providers, as the same now exists or may hereafter be amended, modified, supplemented, extended, renewed, restated or replaced.
1.120 Letter of Credit Accommodations shall mean, collectively, the letters of credit, merchandise purchase or other guaranties, or acceptances of drafts relating to letters of credit, which are from time to time either (a) issued or opened by Agent or any Revolving Loan Lender for the account of any Borrower or any Obligor or for which Agent or any Revolving Loan Lender is the confirming bank or in respect of which it has otherwise agreed to make any payment or (b) with respect to which Agent or Revolving Loan Lenders have agreed to indemnify the issuer or guaranteed to the issuer the performance by any Borrower or any Obligor of its obligations to such issuer; sometimes being referred to herein individually as a Letter of Credit Accommodation.
1.121 Letter of Credit Fee shall have the meaning set forth in Section 2.2(b) hereof.
1.122 Leverage Ratio shall mean, at the end of any fiscal month, the ratio computed for the period consisting of twelve (12) consecutive fiscal months ended on such date of (a) the principal amounts of the Loans and any other secured Indebtedness of any Borrower or Guarantors that are outstanding as of the last day of such period, to (b) EBITDA of Borrowers and Guarantors for such period.
1.123 License Agreements shall have the meaning set forth in Section 8.11 hereof.
1.124 Loan Parties means the Borrowers, the Guarantors and the other Obligors.
1.125 Loans shall mean the Revolving Loans, the Special Agent Advances, the Existing Term Loan and the Letter of Credit Accommodations.
1.126 Material Adverse Effect shall mean a material adverse effect on (a) the financial condition, business, performance or operations of the Borrowers taken as a whole or the Loan Parties taken as a whole; (b) the legality, validity or enforceability of this Agreement or any of the other Financing Agreements; (c) the legality, validity, enforceability, perfection or priority of the security interests and liens of Agent upon the Collateral; (d) the Collateral or its value; (e) the ability of the Borrowers, taken as a whole, to repay the Obligations or of the Borrowers, taken as a whole, or the Loan Parties, taken as a whole, to perform their obligations under this Agreement or any of the other Financing Agreements as and when to be performed; or (f) the ability of Agent or any Lender to enforce the Obligations or realize upon the Collateral or otherwise with respect to the rights and remedies of Agent and Lenders under this Agreement or any of the other Financing Agreements.
1.127 Material Contract shall mean (a) any contract or other agreement (other than the Financing Agreements), written or oral, of any Borrower or Obligor involving liability for $5,000,000 or more of Indebtedness owed to any Person (other than another Loan Party) or (b) any other contract or other agreement (other than the Financing Agreements), whether written or oral, to which any Borrower is a party as to which the breach, nonperformance, cancellation or failure to renew by any party thereto would have a Material Adverse Effect.
1.128 Maximum Credit shall mean (a) prior to the repayment in full of the Existing Term Loan and all Obligations related thereto, the amount equal to $118,500,000, less the then outstanding principal amount of the Existing Term Loan, and (b) upon the repayment in full of the Existing Term Loan and all Obligations related thereto, the amount of $90,000,000.
1.129 Measurement Period shall mean the twelve-month period ending on the last day of any month in which EBITDA is to be measured, taken as a single accounting period.
1.130 Multiemployer Plan shall mean a multi-employer plan as defined in Section 4001(a)(3) of ERISA which is or was at any time during the current year or the immediately preceding six (6) years contributed to by any Borrower or any ERISA Affiliate.
1.131 Net Amount of Eligible Credit Card Receivables shall mean, the gross amount of the Eligible Credit Card Receivables less returns, discounts, claims, credits and allowances of any nature at any time issued, owing, granted, outstanding, available or claimed with respect thereto.
1.132 Net Amount of Eligible Damaged Goods Vendors Receivables shall mean the gross amount of the Eligible Damaged Goods Vendors Receivables less returns, discounts, claims, credits and allowances of any nature at any time issued, owing, granted, outstanding, available or claimed with respect thereto.
1.133 Net Amount of Eligible Sell-Off Vendors Receivables shall mean, the gross amount of the Eligible Sell-Off Vendors Receivables less returns, discounts, claims, credits and allowances of any nature at any time issued, owing, granted, outstanding, available or claimed with respect thereto.
1.134 Net Cash Proceeds shall mean the aggregate cash proceeds received by any Borrower or Guarantor (i) in respect of any sale, lease, transfer or other disposition of any assets or properties, or interest in assets and properties, in each case outside the ordinary course of business of such Borrower or Guarantor, or (ii) as proceeds of any loans or other financial accommodations provided to any Borrower or Guarantor (either of clause (i) or (ii) of this definition, a Specified Disposition), in each case net of (A) the reasonable costs relating to such Specified Disposition (including, without limitation, legal, accounting and investment banking fees, and sales commissions), (B) the portion of such proceeds deposited in an escrow account or otherwise required to be reserved pursuant to the purchase agreements related to such Specified Disposition for purchase price adjustments or indemnification payments payable by such Borrower or Guarantor to the purchaser thereof (but only until such time as such portion of such proceeds is received by such Borrower or Guarantor), (C) taxes paid or estimated to be payable as a result thereof (after taking into account any available tax credits or deductions and any tax sharing arrangements), and (D) amounts applied to the repayment of Indebtedness secured by a valid and enforceable lien on the asset or assets that are the subject of such Specified Disposition required to be repaid in connection with such transaction. For purposes of this definition, a Specified Disposition described in clause (i) above shall exclude (x) sales, leases, transfers and other dispositions of Inventory permitted under Section 9.7(b)(vi) or Section 9.7(b)(x) hereof, and (y) sales and other dispositions of defective, obsolete, out-of-season or slow moving Inventory to a third-party off-price wholesaler, including Ben Elias and Value City, or any other Person engaged in substantially the same business as Ben Elias or Value City and permitted by Agent. Net Cash Proceeds shall exclude any non-cash proceeds received by any Borrower or Guarantor from any Specified Disposition, but shall include such proceeds when and as converted by any Borrower or Guarantor to cash or other immediately available funds.
1.135 Net Income shall mean, for any period, the net income (or loss) of the Borrowers and Obligors on a consolidated basis for such period taken as a single accounting period as determined in accordance with GAAP; provided, however, there shall be excluded therefrom (i) unrealized gains and losses due solely to fluctuations in currency values and the related tax effects according to GAAP and (ii) items classified as a cumulative effect of an accounting change or as extraordinary items, in accordance with GAAP; provided, further, for clarification purposes, stores openings and closings in ordinary course shall not be considered extraordinary for the purposes hereof.
1.136 Net Recovery Percentage shall mean the fraction, expressed as a percentage, (a) the numerator of which is the amount equal to the amount of the recovery in respect of the Inventory at such time a net orderly liquidation value basis as set forth in the most recent acceptable appraisal of Inventory received by Agent in accordance with Section 7.3 hereof, net of operating expenses, liquidation expenses and commissions, and (b) the denominator of which is the applicable Value of the aggregate amount of the Inventory subject to such appraisal.
1.137 Nevada Factoring shall mean Nevada Receivable Factoring, Inc., a Nevada
corporation.
1.138 New Term Loan Agent shall mean Wachovia Bank, National Association, a national banking association, or such other financial institution reasonably acceptable to Agent, in its capacity as administrative agent acting for and on behalf of the New Term Loan Lenders pursuant to the New Term Loan Agreement and any replacement or successor agent thereunder.
1.139 New Term Loan Agreement shall mean a credit agreement among New Term Loan Agent, New Term Loan Lenders, Borrowers and Guarantors to evidence the terms and condition of the New Term Loan, as such agreement will exist upon the execution and delivery thereof, and as may be thereafter be amended, modified, supplemented, extended, renewed, restated or replaced.
1.140 New Term Loan Documents shall mean, collectively, the following: (a) the New Term Loan Agreement and (b) all agreements, documents and instruments to be executed and delivered in connection therewith and related thereto, as such agreements, documents and instruments will exist upon the execution and delivery thereof, and as may be thereafter be amended, modified, supplemented, extended, renewed, restated or replaced.
1.141 New Term Loan Intercreditor Agreement shall mean the intercreditor agreement to be executed and delivered between Agent and New Term Loan Agent, as acknowledged and agreed to by Borrowers and Guarantors, in connection with the New Term Loan, as such agreement will exist upon the execution and delivery thereof, and as may be thereafter be amended, modified, supplemented, extended, renewed, restated or replaced.
1.142 New Term Loan Lenders shall mean, collectively, the financial institutions from time to time party to the New Term Loan Agreement as lenders, and their respective successors and assigns; each sometimes being referred to herein individually as a New Term Loan Lender.
1.143 New Term Loan shall mean the term loan made by New Term Loan Lenders to Borrowers on or after the date hereof pursuant to the New Term Loan Agreement.
1.144 Non-Borrower Receivables shall mean those receivables owned by World Bank, Nevada Factoring or any Person other than a Borrower, with respect to which the proceeds thereof are, at any time, in the possession of a Borrower or in a deposit account of a Borrower and such Borrower maintains possession or control of such proceeds for the benefit of World Bank, Nevada Factoring or any other such Person pursuant to the Private Label Credit Card Agreement or any other agreement.
1.145 Non-Consenting Lender shall have the meaning set forth in Section 11.3(d) hereof.
1.146 Non-Recourse Agreement shall mean that certain agreement dated as of November 27, 2002 and entered into by and among Lerner, Nevada Factoring and World Bank.
1.147 Non-Reserved LC Amount shall mean, as of any date of determination, seventy-five percent (75%) (or eighty percent (80%) during the Seasonal Advance Period) of the
face amount of each Goods in Progress LC then outstanding.
1.148 Non-Seasonal Advance Period shall mean those periods during any calendar year other than the Seasonal Advance Period.
1.149 Notice of Default or Failure of Condition shall have the meaning set forth in Section 12.3(a) hereof.
1.150 NY&Co shall have the meaning set forth in the preamble hereto.
1.151 NY&Co Stock Pledge Agreement shall mean that certain Second Amended and Restated Stock Pledge Agreement, dated of even date herewith, by NY&Co in favor of Agent, for itself and the ratable benefit of the Lenders and the Bank Product Providers, with respect to the pledge of 100% of the Capital Stock of Parent owned by NY&Co, as the same may be amended, modified, supplemented, extended, renewed, restated or replaced.
1.152 Obligations shall mean the Existing Term Loan, any and all Revolving Loans, Letter of Credit Accommodations and all other obligations, liabilities and indebtedness of every kind, nature and description owing by any Borrower or any Guarantor to Agent or any Lender and/or any of their Affiliates, including all obligations arising under or in connection with Bank Products, whether consisting of principal, interest, charges, fees, costs and expenses, fees relating to Letters of Credit, however evidenced, whether as principal, surety, endorser, guarantor or otherwise, arising under this Agreement or any of the other Financing Agreements, whether now existing or hereafter arising, in each case under this Agreement or the other Financing Agreements, whether arising before, during or after the initial or any renewal term of this Agreement or after the commencement of any case with respect to any Borrower or any Guarantor or Obligor under the United States Bankruptcy Code or any similar statute (including the payment of interest and other amounts which would accrue and become due but for the commencement of such case, whether or not such amounts are allowed or allowable in whole or in part in such case), whether direct or indirect, absolute or contingent, joint or several, due or not due, primary or secondary, liquidated or unliquidated, or secured or unsecured.
1.153 Obligor shall mean any guarantor, endorser, acceptor, surety or other person liable on or with respect to the Obligations or who is the owner of any property which is security for the Obligations (including, without limitation, Guarantors, other than Borrowers).
1.154 Parent shall have the meaning set forth in the preamble hereof.
1.155 Parent Stock Pledge Agreement shall mean that certain Second Amended and Restated Stock Pledge Agreement, dated of even date herewith, by Parent in favor of Agent, for itself and the ratable benefit of the Lenders and the Bank Product Providers, with respect to the pledge of 100% of the Capital Stock of Lerner, Lernco and Nevada Factoring owned by Parent, as the same may be amended, modified or supplemented from time to time.
1.156 Participant shall mean any Person that acquires and holds a participation in the interest of any Lender in any of the Revolving Loans, Letter of Credit Accommodations or the Existing Term Loan in conformity with the provisions of Section 14.7 of this Agreement governing participations.
1.157 Pension Plan shall mean a Plan that is subject to Title IV of ERISA.
1.158 Person or person shall mean any individual, sole proprietorship, partnership, corporation (including any corporation which elects subchapter S status under the Code), limited liability company, limited liability partnership, business trust, unincorporated association, joint stock corporation, trust, joint venture or other entity or any government or any agency or instrumentality or political subdivision thereof.
1.159 Plan shall mean an employee benefit plan (as defined in Section 3(3) of ERISA) which any Borrower or Guarantor or, solely with respect to an employee benefit plan subject to Title IV of ERISA, an ERISA Affiliate sponsors or to which it contributes, or a Multiemployer Plan.
1.160 Prime Rate shall mean the rate from time to time publicly announced by Wachovia Bank, National Association, or its successors, as its prime rate, whether or not such announced rate is the best rate available at such bank.
1.161 Prime Rate Loans shall mean the Loans or any portion thereof on which interest is payable based on the Prime Rate in accordance with the terms thereof.
1.162 Priority Event shall mean the occurrence of any one or more of the following: (a) the occurrence and continuance of an Event of Default under Section 10.1(a)(i) hereof with respect to any Borrowers failure to pay any of the Obligations related to the Revolving Loans (including principal, interest, fees and expenses attributable thereto); (b) the occurrence and continuance of an Event of Default under Sections 10.1(g) or 10.1(h) hereof; or (c) the occurrence of any other Event of Default and the acceleration by Agent of the payment of all or a material portion of the Obligations related to the Revolving Loans.
1.163 Private Label Credit Card Agreement shall mean that certain Private Label Credit Card Program Agreement, dated as of August 8, 2002 as amended, and as may be further amended from time to time in accordance with the terms hereof, and entered into by and among Lerner, Nevada Factoring, and World Bank.
1.164 Private Label Credit Card Receivables shall mean those Accounts and other indebtedness owed to Lerner arising under Lerners private label credit card program and sold or otherwise assigned or transferred by Lerner to Nevada Factoring or World Bank, directly or indirectly.
1.165 Pro Rata Share shall mean:
(a) with respect to a Revolving Loan Lenders obligation to make Revolving Loans and right to receive payments relative thereto, the fraction (expressed as a percentage) the numerator of which is such Lenders Revolving Loan Commitment and the denominator of which is the aggregate amount of all of the Revolving Loan Commitments of all Revolving Loan Lenders; and
(b) with respect to all other matters (including the indemnification obligations arising under Section 12.5 hereof), the fraction (expressed as a percentage) the numerator of
which is such Lenders Total Commitment and the denominator of which is the aggregate amount of all of the Total Commitments of all Lenders.
1.166 Provision for Taxes shall mean an amount equal to all taxes imposed on or measured by net income, whether Federal, State, Provincial, county or local, and whether foreign or domestic, that are paid or payable by any Person in respect of any period in accordance with GAAP.
1.167 Qualified Cash shall mean, as of any date of determination, the amount of cash carried by any Borrower on its balance sheet, other than cash in the Cash Collateral Account, cash constituting Eligible Cash Collateral or cash in any Blocked Account, which is in an account subject to a Deposit Account Control Agreement and with respect to which Agent has received statements of the available balances thereof from the bank or other financial institution at which such account is maintained which confirm such amounts.
1.168 Real Property shall mean all now owned and hereafter acquired real property of any Borrower and Guarantor, including leasehold interests, together with all buildings, structures, and other improvements located thereon and all licenses, easements and appurtenances relating thereto, wherever located.
1.169 Receivables shall mean all of the following now owned or hereafter arising or acquired property of each Borrower and Guarantor: (a) all Accounts; (b) all interest, fees, late charges, penalties, collection fees and other amounts due or to become due or otherwise payable in connection with any Account; (c) all payment intangibles; (d) letters of credit, indemnities, guarantees, security or other deposits and proceeds thereof issued payable to such Borrower or Guarantor or otherwise in favor of or delivered to such Borrower or Guarantor in connection with any Account; or (e) all other accounts, contract rights, chattel paper, instruments, notes, general intangibles and other forms of obligations owing to such Borrower or Guarantor, whether from the sale and lease of goods or other property, licensing of any property (including Intellectual Property or other general intangibles), rendition of services or from loans or advances by such Borrower or Guarantor or to or for the benefit of any third person (including loans or advances to any Affiliates or Subsidiaries of any Borrower or Guarantor) or otherwise associated with any Accounts, Inventory or general intangibles of such Borrower or Guarantor (including, without limitation, choses in action, causes of action, tax refunds, tax refund claims, any funds which may become payable to such Borrower or Guarantor in connection with the termination of any Plan or other employee benefit plan and any other amounts payable to such Borrower or Guarantor from any Plan or other employee benefit plan, rights and claims against carriers and shippers, rights to indemnification, business interruption insurance and proceeds thereof, casualty or any similar types of insurance and any proceeds thereof and proceeds of insurance covering the lives of employees on which such Borrower or Guarantor is a beneficiary).
1.170 Records shall mean all of each Borrowers or Guarantors present and future books of account of every kind or nature, purchase and sale agreements, invoices, ledger cards, bills of lading and other shipping evidence, statements, correspondence, memoranda, credit files and other data relating to the Collateral or any account debtor, together with the tapes, disks, diskettes and other data and software storage media and devices, file cabinets or containers in or
on which the foregoing are stored (including any rights of such Borrower or Guarantor with respect to the foregoing maintained with or by any other person).
1.171 Reference Bank shall mean Wachovia Bank, National Association, or such other bank as Agent may from time to time designate.
1.172 Register shall have the meaning set forth in Section 14.7(b) hereof.
1.173 Renewal Date shall have the meaning set forth in Section 14.1(a) hereof.
1.174 Report or Reports shall have the meaning set forth in Section 12.10(a) hereof.
1.175 Required Lenders shall mean, at any time, those Lenders whose Pro Rata Shares aggregate sixty-six and two-thirds percent (66 2 / 3 %) or more of the aggregate of the Total Commitments of all Lenders.
1.176 Required Revolving Loan Lenders shall mean, at any time, those Revolving Loan Lenders whose Pro Rata Shares aggregate sixty-six and two-thirds percent (66 2 / 3 %) or more of the aggregate of the Revolving Loan Commitments of all Revolving Loan Lenders.
1.177 Reserves shall mean as of any date of determination, such amounts as Agent may from time to time establish and revise in good faith reducing the amount of Revolving Loans and Letter of Credit Accommodations which would otherwise be available to Borrowers under the lending formula(s) provided for herein: (a) to reflect events, conditions, contingencies or risks which, as determined by Agent in good faith, adversely affect, or would have a reasonable likelihood of adversely affecting, either (i) the Collateral or any other property which is security for the Obligations or its value or (ii) the assets or business of any Borrower or any Obligor or (iii) the security interests and other rights of Agent or any Lender in the Collateral (including the enforceability, perfection and priority thereof) or (b) to reflect Agents good faith belief that any collateral report or financial information furnished by or on behalf of any Borrower or any Obligor to Agent is or may have been incomplete, inaccurate or misleading in any material respect. To the extent Agent may decrease the lending formulas used to determine the Borrowing Base or establish new criteria or revise existing criteria for Eligible Sell-Off Vendors Receivables, Eligible Damaged Goods Vendors Receivables, Eligible Credit Card Receivables or Eligible Inventory so as to address any circumstances, condition, event or contingency in a manner satisfactory to Agent, Agent shall not establish a Reserve for the same purpose. The amount of any Reserve established by Agent shall have a reasonable relationship to the event, condition or other matter which is the basis for such reserve as determined by Agent in good faith. For purposes of this definition, and without limiting the foregoing, Reserves shall include: (u) the Total LC Reserve Amount, (v) the Gift Certificate and Store Credit Reserve, (w) such amounts, as determined by Agent, for amounts at any time due or to become past due in the good faith judgment of Agent to the owner, lessor or operator of any facility at which Eligible Inventory may be located with respect to which Agent has not received a Collateral Access Agreement, in form and substance satisfactory to Agent, provided that, with respect to facilities leased by a Borrower or Guarantor which are located in a jurisdiction which affords the lessor thereof a lien, or other such rights, on any of the Collateral for unpaid rent or other amounts, which lien may have priority over Agents liens on or rights to the Collateral,
such amount shall equal three (3) months rent for such facility plus any amounts past due, (x) such amounts, as determined by Agent, for sales, excise or similar taxes that are (i) past due and (ii) not being contested in good faith and not subject to liens filed against any Borrower or Guarantor with respect thereto, (y) such amounts, as determined by Agent, for payments owed by any Borrower or Guarantor to bailees, customs brokers or freight forwarders for the services provided by such bailees, customs brokers or freight forwarders in an amount not to exceed $1,000,000, plus such freight, customs, taxes and duty and other amounts which Agent estimates must be paid upon the arrival and in connection with the delivery to a Borrowers location for Eligible Inventory within the United States of America of any Inventory ordered or purchased by any Borrower under a documentary Letter of Credit Accommodation or which constitutes any portion of the Borrowing Base, and (z) upon an Event of Default or if Borrowers Compliance Excess Availability is less than $10,000,000, such amounts, as determined by Agent, for Service Costs owed to Limited Brands, Inc. or any of its Affiliates and payable by any Borrower or any of their Affiliates arising from logistic or information technology services to be provided by Limited Brands, Inc. for the benefit of any Borrower or its Affiliates pursuant to the Transition Services Agreement in an amount not to exceed $1,000,000.
1.178 Revolving Loan Commitment shall mean, as to any Lender: (a) at any time prior to the termination of the Revolving Loan Commitments, the amount of such Lenders revolving loan commitment as set forth on Schedule 1.196 or on Schedule 1 to the Assignment and Acceptance Agreement pursuant to which such Lender became a Lender under this Agreement, as such amount may be adjusted from time to time in accordance with the provisions of Section 14.7 hereof, and (b) after the termination of the Revolving Loan Commitments, the unpaid amount of Revolving Loans and Special Agent Advances made by such Lender and such Lenders interest in the outstanding Letter of Credit Accommodations, in each case as the same may be adjusted from time to time in accordance with the terms hereof.
1.179 Revolving Loan Credit Facility shall mean the Revolving Loans and Letter of Credit Accommodations provided to or for the benefit of Borrowers pursuant to the terms of this Agreement.
1.180 Revolving Loan Interest Rate shall mean:
(a) Subject to clause (b) of this definition below:
(i) as to Revolving Loans that are Prime Rate Loans, a rate equal to the Prime Rate plus the Applicable Margin for Prime Rate Loans,
(ii) as to Revolving Loans that are Eurodollar Rate Loans, a rate equal to the Adjusted Eurodollar Rate plus the Applicable Margin for Eurodollar Rate Loans (in each case, based on the Eurodollar Rate applicable for the Interest Period selected by Borrowers as in effect two (2) Business Days after the date of receipt by Agent of the request of or on behalf of Borrowers for such Eurodollar Rate Loans in accordance with the terms hereof, whether such rate is higher or lower than any rate previously quoted to Borrowers).
(b) Notwithstanding anything to the contrary contained in clause (a) of this definition, the Applicable Margin otherwise used to calculate the Interest Rate for Prime Rate
Loans and Eurodollar Rate Loans shall be the percentage set forth in the definition of the term Applicable Margin for each category of Loans that is then applicable plus two (2.00%) percent per annum, at Agents option, or, upon the written direction of Required Revolving Loan Lenders (i) either (A) for the period from and after the effective date of termination or non-renewal hereof until such time as all Obligations are indefeasibly paid and satisfied in full in immediately available funds, or (B) for the period from and after the date of the occurrence of any Event of Default, and for so long as such Event of Default is continuing as determined by Agent and (ii) on the Revolving Loans at any time outstanding in excess of the Borrowing Base or the Revolving Loan Limit (whether or not such excess(es) arise or are made with or without Agents or any Lenders knowledge or consent and whether made before or after an Event of Default).
1.181 Revolving Loan Lender shall mean any Lender having a Revolving Loan Commitment.
1.182 Revolving Loan Limit shall mean $90,000,000 unless Borrowers shall have exercised their right to reduce such amount pursuant to Section 2.1(e) hereof, in which event Revolving Loan Limit shall mean such reduced amount.
1.183 Revolving Loans shall mean the loans now or hereafter made by or on behalf of any Revolving Loan Lender or by Agent for the account of any Revolving Loan Lender on a revolving basis (involving advances, repayments and readvances) as set forth in Section 2.1 hereof.
1.184 Seasonal Advance Period shall mean the period commencing on May 1 and ending on November 30 of each calendar year.
1.185 Second Quarter-End shall mean the dates denoted as Second Quarter-End dates on Exhibit F hereto.
1.186 Service Costs shall have the meaning set forth in the Transition Services Agreement.
1.187 Settlement Period shall have the meaning set forth in Section 6.9(b) hereof.
1.188 Solvent shall mean, at any time with respect to any Person, that at such time such Person (a) is able to pay its debts as they mature and has (and has a reasonable basis to believe it will continue to have) sufficient capital (and not unreasonably small capital) to carry on its business consistent with its practices as of the date hereof, and (b) the assets and properties of such Person at a fair valuation (and including as assets for this purpose at a fair valuation all rights of subrogation, contribution or indemnification arising pursuant to any guarantees given by such Person) are greater than the Indebtedness of such Person, and including subordinated and contingent liabilities computed at the amount which, such person has a reasonable basis to believe, represents an amount which can reasonably be expected to become an actual or matured liability (and including as to contingent liabilities arising pursuant to any guarantee the face amount of such liability as reduced to reflect the probability of it becoming a matured liability).
1.189 Special Agent Advances shall have the meaning set forth in Section 12.11 hereof.
1.190 Specified Amounts shall have the meaning set forth in Section 6.4(b)(i) hereof.
1.191 Specified Excess Availability Amount shall mean (a) until such time as the Existing Term Loan and all Obligations related thereto are indefeasibly paid and satisfied in full in immediately available funds, the amount of $30,000,000, and (b) upon the indefeasible payment and satisfaction in full of the Existing Term Loan and all Obligations related thereto in immediately available funds, the amount of $20,000,000.
1.192 Stock Pledge Agreements shall mean, collectively, the NY&Co Stock Pledge Agreement, the Parent Stock Pledge Agreement, the Lerner Stock Pledge Agreement and any other stock pledge agreement at any time made in favor of Agent, for itself and the ratable benefit of the Lenders and the Bank Product Providers, in connection with this Agreement.
1.193 Subsidiary or subsidiary shall mean, with respect to any Person, any corporation, limited liability company, limited liability partnership or other limited or general partnership, trust, association or other business entity of which an aggregate of at least a majority of the outstanding Capital Stock or other interests entitled to vote in the election of the board of directors of such corporation (irrespective of whether, at the time, Capital Stock of any other class or classes of such corporation shall have or might have voting power by reason of the happening of any contingency), managers, trustees or other controlling persons, or an equivalent controlling interest therein, of such Person is, at the time, directly or indirectly, owned by such Person and/or one or more subsidiaries of such Person.
1.194 Taxes shall have the meaning set forth in Section 6.4(d) hereof.
1.195 Third Quarter-End shall mean the dates denoted as Third Quarter-End dates on Exhibit F hereto.
1.196 Total Commitment shall mean, as to each Lender, the sum of such Lenders Revolving Loan Commitment, if any, plus such Lenders Existing Term Loan Commitment, if any, in each case as set forth on Schedule 1.196 hereto, or on Schedule 1 to the Assignment and Acceptance Agreement pursuant to which such Lender became a Lender under this Agreement, as such amounts may be adjusted from time to time in accordance with the provisions of Section 14.7 hereof.
1.197 Total LC Reserve Amount shall mean, as of any date of determination, the aggregate amount of all LC Reserve Amounts for all Letter of Credit Accommodations then outstanding.
1.198 Transition Services Agreement shall mean collectively, those certain transition services agreements, dated as of November 27, 2002, and entered into by and among Seller, NY&Co and Lerner.
1.199 UCC shall mean the Uniform Commercial Code as in effect in the State of New York and any successor statute, as in effect from time to time (except that terms used herein
which are defined in the Uniform Commercial Code as in effect in the State of New York on the date hereof shall continue to have the same meaning notwithstanding any replacement or amendment of such statute except as Agent may otherwise determine); provided, that, if, with respect to any financing statement or by reason of any provisions of law, the perfection or the effect of perfection or non-perfection of the security interests granted to the Agent pursuant to the applicable Financing Agreement is governed by the Uniform Commercial Code as in effect in a jurisdiction of the United States other than the State of New York, then UCC means the Uniform Commercial Code as in effect from time to time in such other jurisdiction for purposes of the provisions of each Financing Agreement and any financing statement relating to such perfection or effect of perfection or non-perfection.
1.200 Unused Line Fee shall have the meaning set forth in Section 3.2(a) hereof.
1.201 Value shall mean, as determined by Agent in good faith, with respect to Inventory, the lower of (a) cost computed on a specific identification basis in accordance with GAAP or (b) market value; provided, that, for purposes of the calculation of the Borrowing Base, (i) the Value of the Inventory shall not include: (A) the portion of the value of Inventory equal to the profit earned by a Borrower or any Affiliate of any Borrower on the sale thereof to any Borrower or (B) write-ups or write-downs in value with respect to currency exchange rates and (ii) notwithstanding anything to the contrary contained herein, the cost of the Inventory shall be computed in the same manner and consistent with the most recent appraisal of the Inventory received and accepted by Agent prior to the date hereof, if any.
1.202 Voting Stock shall mean with respect to any Person, (a) one (1) or more classes of Capital Stock of such Person having general voting powers to elect at least a majority of the board of directors, managers or trustees of such Person, irrespective of whether at the time Capital Stock of any other class or classes have or might have voting power by reason of the happening of any contingency, and (b) any Capital Stock of such Person convertible or exchangeable without restriction at the option of the holder thereof into Capital Stock of such Person described in clause (a) of this definition.
1.203 Wachovia shall mean Wachovia Bank, National Association, a national banking association, in its individual capacity, and its successors and assigns.
1.204 World Bank shall mean World Financial Network National Bank.
faith that: (i) the number of days of the turnover of the Inventory for any period has adversely changed or (ii) the liquidation value of the Eligible Inventory, or any category thereof, has decreased, including any decrease attributable to a material change in the nature, quality or mix of the Inventory. The amount of any decrease in the lending formulas shall have a reasonable relationship to the event, condition or circumstance which is the basis for such decrease as determined by Agent in good faith. In determining whether to reduce the lending formula(s), Agent may consider events, conditions, contingencies or risks which are also considered in determining Eligible Sell-Off Vendors Receivables, Eligible Damaged Goods Vendors Receivables, Eligible Credit Card Receivables, Eligible Inventory or in establishing Reserves.
generally and no request or directive (whether or not having the force of law) from any Governmental Authority with jurisdiction over money center banks generally shall prohibit, or request that the proposed issuer of such Letter of Credit Accommodation refrain from, the issuance of letters of credit generally or the issuance of such Letters of Credit Accommodation; and (iii) after giving effect to the LC Reserve Amount applicable to such requested Letter of Credit Accommodation, the aggregate amount of the Obligations then outstanding would not exceed the Borrowing Base. Effective on the issuance of each Letter of Credit Accommodation, a Reserve shall be established in an amount equal to the LC Reserve Amount for such Letter of Credit Accommodation.
by such Borrower to Agent for the ratable benefit of Revolving Loan Lenders and to apply in all respects to such Borrower.
unconditionally owing by Lerner and Lernco to Agent and Lenders, without offset, defense or counterclaim of any kind, nature and description whatsoever.
money described in clause (a) of the definition of Indebtedness on or after the date hereof (which shall exclude for purposes of this Section 2.3(e) the Indebtedness permitted under Sections 9.9(e), (f), (g), (h) and (i) hereof), Borrowers shall, absolutely and unconditionally and without notice or demand, prepay the then outstanding principal amount of the Existing Term Loan in an amount equal to fifty (50%) percent of the amount by which such Net Cash Proceeds exceed $20,000,000; provided , that , in the event that all or a portion of the Net Cash Proceeds from the incurrence or issuance of such Indebtedness is used by Borrowers to build a distribution center, such prepayment shall be in an amount equal to fifty (50%) percent of the amount by which such Net Cash Proceeds exceed the sum of (x) the amount of such Net Cash Proceeds used by Borrowers to build such distribution center (up to $45,000,000), and (y) $20,000,000. Notwithstanding the foregoing, immediately upon the receipt by Borrowers of the Net Cash Proceeds from the New Term Loan, Borrowers shall, absolutely and unconditionally and without notice or demand, prepay in full the then outstanding balance of the Existing Term Loan and all Obligations related thereto.
required to) request that the Agent provide or arrange for such Person to obtain Bank Products from Agent or its Affiliates, and Agent may, in its sole discretion, provide or arrange for such Person to obtain the requested Bank Products. Any Borrower or Guarantor that obtains Bank Products shall indemnify and hold Agent, each Lender and their respective Affiliates harmless from any and all obligations now or hereafter owing to any other Person by Agent or its Affiliates in connection with any Bank Products. Each Borrower and Guarantor acknowledges and agrees that the obtaining of Bank Products from the Agent and its Affiliates (a) is in the sole discretion of the Agent or such Affiliate, as the case may be, and (b) is subject to all rules and regulations of the Person that provides the Bank Product.
market to fund any Eurodollar Rate Loans, but the provisions hereof shall be deemed to apply as if Agent and Lenders had purchased such deposits to fund the Eurodollar Rate Loans.
connection therewith, such documents where requested by Agent or its counsel to be certified by appropriate corporate officers or Governmental Authority;
earlier date (in which case such representations and warranties shall have been true and accurate on and as of such earlier date);
Notwithstanding anything herein to the contrary, in no event shall the Collateral include, and no Borrower or Guarantor shall be deemed to have granted a security interest in, (i) any personal and real property, fixtures and interests of such Borrower or Guarantor which are not assignable or are incapable of being encumbered as a matter of law, except for the products and proceeds thereof, (ii) such Borrowers or Guarantors rights or interests in any license, contract or agreement to which such Borrower or Guarantor is a party or any of its rights or interests thereunder to the extent, but only to the extent, that such a grant would, under the terms of such license, contract or agreement, applicable laws or otherwise, result in a breach of the terms of, or constitute a default under any license, contract or agreement to which such Borrower or Guarantor is a party (except for the products and proceeds thereof); provided, however, upon the
ineffectiveness, lapse or termination of any such provision, the Collateral shall include, and such Borrower or Guarantor shall be deemed to have granted a security interest in, all such rights and interests as if such provision had never been in effect, and (iii) the Capital Stock of any Foreign Subsidiary to the extent that such Capital Stock constitutes more than sixty-five percent (65%) of the Voting Stock of all classes of the Capital Stock of such Foreign Subsidiary that are entitled to vote, except for the products and proceeds thereof. In addition, the Collateral shall exclude any rights to any Intellectual Property, License Agreements or software that would be rendered invalid or unenforceable under the terms thereof or under applicable laws by the grant of a security interest created pursuant to the terms of this Agreement, for as long as such prohibition or reason for invalidity exists, except for the products and proceeds thereof.
or on behalf of such Borrower or Guarantor (including by any agent or representative), such Borrower or Guarantor shall deliver, or cause to be delivered to Agent, all tangible chattel paper and instruments that such Borrower or Guarantor has or may at any time acquire, accompanied by such instruments of transfer or assignment duly executed in blank as Agent may from time to time specify, in each case except as Agent may otherwise agree. At Agents option, such Borrower or Guarantor shall, or Agent may at any time on behalf of such Borrower or Guarantor, cause the originals of any such instruments and chattel paper that have a fair market value in excess of $100,000 individually or in the aggregate, to be conspicuously marked in a form and manner acceptable to Agent with the following legend referring to chattel paper or instruments as applicable: This [chattel paper][instrument] is subject to the security interest of Wachovia Bank, National Association, and any sale, transfer, assignment or encumbrance of this [chattel paper][instrument] violates the rights of such secured party.
amounts in such accounts to be sent to the Agent Payment Account except as provided by Section 6.3 hereof.
a fair market value in excess of $100,000 are at any time after the date hereof in the custody, control or possession of any other person not referred to in a Borrowers or Guarantors Information Certificate or such carriers, such Borrower or Guarantor shall promptly notify Agent thereof in writing. Promptly upon Agents request, such Borrower or Guarantor shall deliver to Agent a Collateral Access Agreement duly authorized, executed and delivered by such person and such Borrower or Guarantor.
Loans then outstanding (whether or not then due) until paid in full;
and Revolving Loans shall receive payment in full of the Specified Amounts (but not the items excluded from Specified Amounts above) before any payment of the Existing Term Loan or any Obligations related to the Existing Term Loan; provided, that nothing herein shall prevent Agent or the Revolving Loans from recovering any default interest charged during the existence of an Event of Default from any Borrower or Guarantor not subject to an Insolvency Event, which amounts shall be payable to Agent and Revolving Loans before any payment of the Existing Term Loan or any Obligations related to the Existing Term Loan;
Borrowers shall be liable to pay to Agent and Lenders, and do hereby indemnify and hold Agent and Lenders harmless for the amount of any payments or proceeds surrendered or returned. This Section 6.4(c) shall remain effective notwithstanding any contrary action which may be taken by Agent or any Lender in reliance upon such payment or proceeds. This Section 6.4(c) shall survive the payment of the Obligations and the termination of this Agreement.
amount of the requested Loan. Requests received after 12:00 p.m. New York time on any day shall be deemed to have been made as of the opening of business on the immediately following Business Day. All Loans under this Agreement shall be conclusively presumed to have been made to, and at the request of and for the benefit of, Borrowers or when deposited to the credit of any Borrower or otherwise disbursed or established in accordance with the instructions of Borrowers or in accordance with the terms and conditions of this Agreement.
due hereunder or thereunder by Borrowers to such Lender than the percentage thereof received by any other Lender, it shall promptly pay to Agent, for the benefit of Lenders, the amount of such excess and simultaneously purchase from such other Lenders a participation in the Loans or such other amounts, respectively, owing to such other Lenders (or such interest due thereon, as the case may be) in such amounts, and make such other adjustments from time to time as shall be equitable, to the end that all Lenders shall share the benefit of such excess payment (net of any expenses that may be incurred by such Lender in obtaining or preserving such excess payment) in accordance with their respective Pro Rata Shares or as otherwise agreed by Lenders. To such end all Lenders shall make appropriate adjustments among themselves (by the resale of participation sold or otherwise) if such payment is rescinded or must otherwise be restored.
time, then such Lender shall make the settlement transfer described in this Section by no later than 3:00 p.m. New York time on the same Business Day and if received by a Lender after 12:00 p.m. New York time, then such Lender shall make the settlement transfer by no later than 3:00 p.m. New York time on the next Business Day following the date of receipt. If, as of the end of any Settlement Period, the amount of a Lenders Pro Rata Share of the outstanding Loans is more than such Lenders Pro Rata Share of the outstanding Loans as of the end of the previous Settlement Period, then such Lender shall forthwith (but in no event later than the time set forth in the preceding sentence) transfer to Agent by wire transfer in immediately available funds the amount of the increase. Alternatively, if the amount of a Lenders Pro Rata Share of the outstanding Loans in any Settlement Period is less than the amount of such Lenders Pro Rata Share of the outstanding Loans for the previous Settlement Period, then, if the summary statement is prepared and delivered to Lenders by Agent prior to 12:00 p.m. New York time, then Agent shall make the transfer described in this Section by no later than 3:00 p.m. New York time on the same Business Day and if prepared and delivered to Lenders by Agent after 12:00 p.m. New York time, then Agent shall make the transfer by no later than 3:00 p.m. New York time on the next Business Day following the date of receipt, by wire transfer in immediately available funds the amount of the decrease. The obligation of each of the Lenders and the Agent to transfer such funds and effect such settlement shall be irrevocable. Agent and each Lender agrees to mark its books and records at the end of each Settlement Period to show at all times the dollar amount of its Pro Rata Share of the outstanding Loans and Letter of Credit Accommodations. Each Lender shall only be entitled to receive interest on its Pro Rata Share of the Loans to the extent such Loans have been funded by such Lender. Because the Agent on behalf of Lenders may be advancing and/or may be repaid Loans prior to the time when Lenders will actually advance and/or be repaid such Loans, interest with respect to Loans shall be allocated by Agent in accordance with the amount of Loans actually advanced by and repaid to each Lender and the Agent and shall accrue from and including the date such Loans are so advanced to but excluding the date such Loans are either repaid by Borrowers or actually settled with the applicable Lender as described in this Section.
corresponding amount available to Borrowers and such corresponding amount is not in fact made available to Agent by such Lender, Agent shall be entitled to recover such corresponding amount on demand from such Lender together with interest thereon for each day from the date such payment was due until the date such amount is paid to Agent at the Federal Funds Rate for each day during such period (as published by the Federal Reserve Bank of New York or at Agents option based on the arithmetic mean determined by Agent of the rates for the last transaction in overnight Federal funds arranged prior to 9:00 a.m. (New York City time) on that day by each of the three leading brokers of Federal funds transactions in New York City selected by Agent) and if such amounts are not paid within three (3) days of Agents demand, at the highest interest rate provided for in Section 3.1 hereof applicable to such Loans. During the period in which such Lender has not paid such corresponding amount to Agent, notwithstanding anything to the contrary contained in this Agreement or any of the other Financing Agreements, the amount so advanced by Agent to or for the benefit of Borrowers shall, for all purposes hereof, be a Loan made by Agent for its own account. Upon any such failure by a Lender to pay Agent, Agent shall promptly thereafter notify Borrowers of such failure and Borrowers shall pay such corresponding amount to Agent for its own account within five (5) Business Days of Borrowers receipt of such notice. A Lender who fails to pay Agent its Pro Rata Share of any Loans made available by the Agent on such Lenders behalf, or any Lender who fails to pay any other amount owing by it to Agent, in each case within two (2) Business Days after the date such payment is due, is a Defaulting Lender. Agent shall not be obligated to transfer to a Defaulting Lender any payments received by Agent for the Defaulting Lenders benefit, nor shall a Defaulting Lender be entitled to the sharing of any payments hereunder (including any principal, interest or fees). Amounts payable to a Defaulting Lender shall instead be paid to or retained by Agent. Agent may hold and, in its discretion, relend to Borrowers the amount of all such payments received or retained by it for the account of such Defaulting Lender. For purposes of voting or consenting to matters with respect to this Agreement and the other Financing Agreements and determining Pro Rata Shares, such Defaulting Lender shall be deemed not to be a Lender and such Lenders Total Commitment shall be deemed to be zero (0). This Section shall remain effective with respect to a Defaulting Lender until such default is cured. The operation of this Section shall not be construed to increase or otherwise affect the Revolving Loan Commitment or Existing Term Loan Commitment of any Lender, or relieve or excuse the performance by any Borrower or any Obligor of their duties and obligations hereunder.
necessary for any other Lender to be joined as an additional party in any proceeding for such purpose.
lessors of retail store locations, (b) copies of all bank statements, (c) copies of shipping and delivery documents, and (d) copies of purchase orders, invoices and delivery documents for Inventory and Equipment acquired by any Borrower or Guarantor;
any account debtor, Credit Card Issuer or Credit Card Processor except in the ordinary course of such Borrowers or Guarantors business in accordance with the current practices of such Borrower or Guarantor as in effect on the date hereof. So long as an Event of Default exists or has occurred and is continuing, no Borrower or Guarantor shall, without the prior consent of Agent, settle, adjust or compromise any material claim, offset, counterclaim or dispute with any account debtor, Credit Card Issuer, Credit Card Processor. At any time that an Event of Default exists or has occurred and is continuing, Agent shall, at its option, have the exclusive right to settle, adjust or compromise any claim, offset, counterclaim or dispute with account debtors, Credit Card Issuers or Credit Card Processors or grant any credits, discounts or allowances.
except for sales of Inventory in the ordinary course of such Borrowers or Guarantors business and except to move Inventory directly from one location set forth or permitted herein to another such location and except for Inventory shipped from the manufacturer thereof to such Borrower or Guarantor which is in transit to the locations set forth or permitted herein; (d) upon Agents request, Borrowers and Guarantors shall, at their expense, no more than one (1) time in any twelve (12) month period, but at any time or times as Agent may request at Agents expense, or at any time or times as Agent may reasonably request at Borrowers expense during an Additional Appraisal/Field Exam Period, deliver or cause to be delivered to Agent written reports or appraisals as to the Inventory in form, scope and methodology acceptable to Agent and by an appraiser acceptable to Agent, addressed to Agent and upon which Agent and Lenders are expressly permitted to rely; (e) upon Agents request, Borrowers and Guarantors shall, at their expense, conduct through RGIS Inventory Specialists, Inc. or another inventory counting service acceptable to Agent, a physical count of the Inventory in form, scope and methodology acceptable to Agent no more than one (1) time in any twelve (12) month period, and at a time to coincide with Borrowers and or Guarantors physical count of the Inventory, so long as no Availability Compliance Period exists, the results of which shall be reported directly by such inventory counting service to Agent and Borrowers and Guarantors shall promptly deliver confirmation in a form reasonably satisfactory to Agent that appropriate adjustments have been made to the inventory records of Borrowers and Guarantors to reconcile the inventory count to Borrowers and Guarantors inventory records; (f) each Borrower and Guarantor shall produce, use, store and maintain the Inventory, with all reasonable care and caution and in accordance with applicable standards of any insurance and in conformity with applicable laws (including the requirements of the Federal Fair Labor Standards Act of 1938, as amended and all rules, regulations and orders related thereto); (g) none of the Inventory or other Collateral constitutes farm products or the proceeds thereof; (h) each Borrower and Guarantor assumes all responsibility and liability arising from or relating to the production, use, sale or other disposition of the Inventory; (i) no Borrower or Guarantor shall sell Inventory to any customer on approval, or any other basis which entitles the customer to return or may obligate such Borrower or Guarantor to repurchase such Inventory except for the right of return given to retail customers of any Borrower or Guarantor in the ordinary course of the business of such Borrower or Guarantor in accordance with the then current return policy of such Borrower; (j) each Borrower and Guarantor shall keep the Inventory in good and marketable condition; and (k) no Borrower or Guarantor shall, without prior written notice to Agent or the specific identification of such Inventory in a report with respect thereto provided by such Borrower or Guarantor to Agent pursuant to Section 7.1(a) hereof, acquire or accept any Inventory on consignment or approval.
Guarantors and not for personal, family, household or farming use; (e) Borrowers and Guarantors shall not remove any Equipment from the locations set forth or permitted herein, except to the extent necessary to have any Equipment repaired or maintained in the ordinary course of its business or to move Equipment directly from one location set forth or permitted herein to another such location and except for the movement of motor vehicles used by or for the benefit of Borrowers and Guarantors in the ordinary course of business; (f) the Equipment is now and shall remain personal property and Borrowers and Guarantors shall not permit any of the Equipment to be or become a part of or affixed to real property; and (g) Borrowers and Guarantors assume all responsibility and liability arising from the use of the Equipment.
dispose of all mail addressed to such Borrower or Guarantor and handle and store all mail relating to the Collateral, (ix) do all acts and things which are necessary, in Agents determination, to fulfill such Borrowers or Guarantors obligations under this Agreement and the other Financing Agreements, (x) take control in any manner of any item of payment in respect of Receivables or constituting Collateral or otherwise received in or for deposit in the Blocked Accounts or otherwise received by Agent or any Lender, (xi) have access to any lockbox or postal box into which remittances from account debtors or other obligors in respect of Receivables or other proceeds of Collateral are sent or received, (xii) endorse such Borrowers or Guarantors name upon any items of payment in respect of Receivables or constituting Collateral or otherwise received by Agent and any Lender and deposit the same in Agents account for application to the Obligations, (xiii) endorse such Borrowers or Guarantors name upon any chattel paper, document, instrument, invoice, or similar document or agreement relating to any Receivable or any goods pertaining thereto or any other Collateral, including any warehouse or other receipts, or bills of lading and other negotiable or non-negotiable documents, (xiv) clear Inventory the purchase of which was financed with Letter of Credit Accommodations through U.S. Customs or foreign export control authorities in such Borrowers or Guarantors name, Agents name or the name of Agents designee, and to sign and deliver to customs officials powers of attorney in such Borrowers or Guarantors own name for such purpose, and to complete in such Borrowers or Guarantors or Agents name, any order, sale or transaction, obtain the necessary documents in connection therewith and collect the proceeds thereof, and (xv) sign such Borrowers or Guarantors name on any verification of Receivables and notices thereof to account debtors or any secondary obligors or other obligors in respect thereof. Each Borrower and Guarantor hereby releases Agent and Lenders and their respective officers, employees and designees from any liabilities arising from any act or acts under this power of attorney and in furtherance thereof, whether of omission or commission, except as a result of Agents or any Lenders own gross negligence or willful misconduct as determined pursuant to a final non-appealable order of a court of competent jurisdiction.
Each Borrower and Guarantor hereby represents and warrants to Agent and Lenders the following (which shall survive the execution and delivery of this Agreement), the truth and accuracy of which are a continuing condition of the making of Loans and providing Letter of Credit Accommodations to Borrowers:
appropriate documents (including UCC financing statements and filings with the U.S. Patent and Trademark Office and the U.S. Copyright Office), but only if and to the extent that a security interest may be so perfected under applicable laws, constitute valid and perfected first priority liens and security interests in and upon the Collateral subject only to the liens indicated on the Information Certificates and the other liens permitted under Section 9.8 hereof.
of the Code, and no application for a funding waiver or an extension of any amortization period pursuant to Section 412 of the Code has been made with respect to any such Pension Plan.
method, substance or other Intellectual Property or goods bearing or using any Intellectual Property presently contemplated to be sold by or employed by any Borrower or Guarantor infringes any patent, trademark, servicemark, tradename, copyright, license or other Intellectual Property owned by any other Person presently, (ii) and no claim or litigation is pending or threatened against or affecting any Borrower or Guarantor contesting its right to sell or use any such Intellectual Property. Each Borrowers and Guarantors Information Certificate sets forth all of the agreements of such Borrower or Guarantor pursuant to which such Borrower or Guarantor has a license or other right to use any material trademarks, logos, designs or other material Intellectual Property owned by another person as in effect on the date hereof and the dates of the expiration of such agreements (collectively, together with such agreements or other arrangements as may be entered into by any Borrower or Guarantor after the date hereof, collectively, the License Agreements and individually, a License Agreement). No trademark, servicemark, copyright or other Intellectual Property at any time used by any Borrower or Guarantor which is owned by another person, or owned by such Borrower or Guarantor subject to any security interest, lien, collateral assignment, pledge or other encumbrance in favor of any person other than Agent, is affixed to any Eligible Inventory, except (a) as set forth on such Borrowers or Guarantors Information Certificate, (b) to the extent permitted under the term of the License Agreements listed on such Borrowers or Guarantors Information Certificate, and (c) to the extent the sale of Inventory to which such Intellectual Property is affixed is permitted to be sold by such Borrower or Guarantor under applicable law (including the United States Copyright Act of 1976).
transaction contemplated hereunder.
such Borrower or Guarantor has entered into a Credit Card Agreement in accordance with Section 9.22 hereof. Each of the Credit Card Agreements constitutes the legal, valid and binding obligations of the Borrower or Guarantor that is party thereto and to the best of each Borrower and Guarantors knowledge, the other parties thereto, enforceable in accordance with their respective terms and is in full force and effect. Except as could not reasonably (i) be expected to have a Material Adverse Effect or (ii) result in the cessation of the transfer of payments under any Credit Card Agreement to the Blocked Accounts as required under this Agreement, no default or event of default, or act, condition or event which after notice or passage of time or both, would constitute a default or an event of default under any of the Credit Card Agreements exists or has occurred. The applicable Borrower and Guarantors and the other parties thereto have complied with all of the terms and conditions of the Credit Card Agreements to the extent necessary for such Borrower or Guarantor to be entitled to receive all payments thereunder which constitute proceeds of Eligible Credit Card Receivables. Borrowers and Guarantors have delivered, or caused to be delivered to Agent, true, correct and complete copies of all of the Credit Card Agreements.
Agent or any Lender.
and orders promulgated thereunder), all Federal, State and local statutes, regulations, rules and orders pertaining to sales of consumer goods (including, without limitation, the Consumer Products Safety Act of 1972, as amended, and the Federal Trade Commission Act of 1914, as amended, and all regulations, rules and orders promulgated thereunder) and all statutes, rules, regulations, orders, permits and stipulations relating to environmental pollution and employee health and safety, including all of the Environmental Laws.
misconduct of Agent or any Lender. All representations, warranties and indemnifications in this Section 9.3 shall survive the payment of the Obligations and the termination of this Agreement.
operations of Borrowers and Guarantors, and Borrowers and Guarantors shall notify their auditors and accountants that Agent is authorized to obtain such information directly from them. Without limiting the foregoing, Borrowers and Guarantors shall furnish or cause to be furnished to Agent, the following: (i) within thirty (30) days after the end of each fiscal month, monthly unaudited consolidated financial statements, and unaudited consolidating financial statements (including in each case balance sheets, statements of income and loss, statements of cash flow, and statements of shareholders equity), all in reasonable detail, fairly presenting the financial position and the results of the operations of NY&Co and its Subsidiaries as of the end of and through such fiscal month, certified to be correct by either the chief accounting officer or the or chief financial officer of each Borrower, subject to normal year-end adjustments and accompanied by a compliance certificate substantially in the form of Exhibit C hereto, along with a schedule in a form reasonably satisfactory to Agent of the calculations used in determining, as of the end of such month, whether Borrowers and Guarantors are in compliance with the covenants set forth in Sections 9.17 and 9.18 of this Agreement for such month, (ii) during any Availability Compliance Period or any Additional Appraisal/ Field Exam Period, on the last Business Day of any month therein, Borrowers will deliver to Agent a compliance report, in form and substance reasonably satisfactory to Agent, along with a schedule of the calculations used in determining, as of the end of such month and such other date determined by Borrowers in their sole discretion, whether either or both an Availability Compliance Period and an Additional Appraisal/Field Exam Period has ceased to exist, and (iii) without duplication within ninety (90) days after each Fiscal Year-End, audited consolidated financial statements and unaudited consolidating financial statements of NY&Co and its Subsidiaries (including in each case balance sheets, statements of income and loss, statements of cash flow, and statements of shareholders equity), and the accompanying notes thereto, all in reasonable detail, fairly presenting the financial position and the results of the operations of NY&Co and its Subsidiaries as of the Fiscal Year-End of and for such fiscal year, together with the unqualified opinion of independent certified public accountants with respect to the audited consolidated financial statements, which accountants shall be an independent accounting firm selected by NY&Co and reasonably acceptable to Agent, that such audited consolidated financial statements have been prepared in accordance with GAAP, and present fairly the results of operations and financial condition of NY&Co and its Subsidiaries as of the Fiscal Year-End then ended.
securities exchange or the National Association of Securities Dealers, Inc. Borrowers shall, in addition to the foregoing, promptly after the sending of all material business reports which any Borrower or Guarantor sends to its stockholders generally furnish or cause to be furnished to Agent copies thereof.
exclusively and directly to the operations of such store; provided , that , as to each and all such sales and closings, on the date of, and after giving effect to, any such closing or sale, (A) the number of retail store locations closed or sold by such Borrower in any fiscal year minus the number of retail stores opened by such Borrower in such fiscal year, shall not exceed the amount equal to fifteen percent (15%) of the number of retail store locations of such Borrower as of the end of the immediately preceding fiscal year, (B) Agent shall have received not less than ten (10) Business Days prior written notice of such sale or closing, which notice shall set forth in reasonable detail satisfactory to Agent, the parties to such sale or other disposition, the assets to be sold or otherwise disposed of, the purchase price and the manner of payment thereof and such other information with respect thereto as Agent may request, (C) as of the date of such sale or other disposition and after giving effect thereto, no Default or Event of Default shall exist or have occurred and be continuing, (D) such sale shall be on commercially reasonable prices and terms in a bona fide arms length transaction, and (E) any and all proceeds payable or delivered to such Borrower or any Guarantor in respect of such sale or other disposition shall be paid or delivered, or caused to be paid or delivered, to Agent in accordance with the terms of this Agreement (except to the extent such proceeds reflect payment in respect of Indebtedness secured by a properly perfected first priority security interest in the assets sold, in which case, such proceeds shall be applied to such Indebtedness secured thereby),
No Borrower or Guarantor shall, nor shall it permit any of its Subsidiaries to, create, incur, assume or suffer to exist any security interest, mortgage, pledge, lien, charge or other encumbrance of any nature whatsoever on any of its assets or properties, including the Collateral, or file or permit the filing of, or permit to remain in effect, any financing statement or other similar notice of any security interest or lien with respect to any such assets or properties, except:
interest in, any of the Collateral in an agreement, in form and substance satisfactory to Agent;
amend, modify, alter or change the terms of such Indebtedness or any of the New Term Loan Documents in any manner prohibited by the New Term Loan Intercreditor Agreement; and
by any Person (or the representative of such Person) in respect of Indebtedness of such Person owing to such Borrower or Guarantor in connection with the insolvency, bankruptcy, receivership or reorganization of such Person or a composition or readjustment of the debts of such Person; provided, that, the original of any such stock or instrument evidencing such obligations shall be promptly delivered to Agent, upon Agents request, together with such stock power, assignment or endorsement by such Borrower or Guarantor as Agent may request;
No Borrower or Guarantor shall, directly or indirectly, declare or pay any dividends on account of any shares of class of any Capital Stock of such Borrower or Guarantor now or hereafter outstanding, or set aside or otherwise deposit or invest any sums for such purpose, or redeem, retire, defease, purchase or otherwise acquire any shares of any class of Capital Stock (or set aside or otherwise deposit or invest any sums for such purpose) for any consideration or apply or set apart any sum, or make any other distribution (by reduction of capital or otherwise) in respect of any such shares or agree to do any of the foregoing, except that:
law; (b) cause each Plan which is qualified under Section 401(a) of the Code to maintain such qualification; (c) not terminate any Pension Plan so as to incur any material liability to the Pension Benefit Guaranty Corporation; (d) not allow or suffer to exist any non-exempt prohibited transaction which would be reasonably likely to subject any Borrower or Guarantor or any ERISA Affiliate to a material tax or penalty or other liability on prohibited transactions imposed under Section 4975 of the Code or ERISA; (e) make all required contributions to any Pension Plan under Section 302 of ERISA, Section 412 of the Code or the terms of such Pension Plan; (f) not allow or suffer to exist any accumulated funding deficiency, whether or not waived, with respect to any Pension Plan; or (g) allow or suffer to exist any occurrence of a reportable event or any other event or condition which presents a material risk of termination by the Pension Benefit Guaranty Corporation of any Pension Plan that is a single employer plan, which termination could result in any material liability to any Borrower or Guarantor.
Availability of at least $7,500,000, subject to adjustment pursuant to Section 2.3(g) hereof.
Agreement in the ordinary course of the business of such Borrower or Guarantor; provided, that, such Borrower or Guarantor shall give Agent not less than thirty (30) days prior written notice of its intention to so cancel, surrender and release any such material License Agreement, (iv) give Agent prompt written notice of any material License Agreement entered into by such Borrower or Guarantor after the date hereof, together with a true, correct and complete copy thereof and such other information with respect thereto as Agent may request (subject to any obligation of confidentiality contained therein), (v) give Agent prompt written notice of any notice of default sent to another party to a material License Agreement by such Borrower or Guarantor of any material breach of any obligation, or any default, by such party under any material License Agreement, and deliver to Agent (promptly upon the receipt thereof by such Borrower or Guarantor in the case of a notice to such Borrower or Guarantor and concurrently with the sending thereof in the case of a notice from such Borrower or Guarantor) a copy of each notice of default and every other notice and other communication received or delivered by such Borrower or Guarantor in connection with any material License Agreement which relates to the right of such Borrower or Guarantor to continue to use the property subject to such License Agreement, and (vi) furnish to Agent, promptly upon the request of Agent, such information and evidence as Agent may reasonably require from time to time concerning the observance, performance and compliance by such Borrower or Guarantor or the other party or parties thereto with the material terms, covenants or provisions of any material License Agreement.
determine, in form and substance satisfactory to Agent and as to any provisions relating to specific state laws satisfactory to Agent and in form appropriate for recording in the real estate records of the jurisdiction in which such Real Property or other property is located granting to Agent a first and only lien and mortgage on and security interest in such Real Property, fixtures or other property (except as such Borrower or Guarantor would otherwise be permitted to incur hereunder or under its Guaranty, as applicable, or as otherwise consented to in writing by Agent ) and such other agreements, documents and instruments as Agent may reasonable require in connection therewith. Notwithstanding any provisions to the contrary herein, no Borrower or Guarantor shall be required to deliver to Agent a mortgage, deed of trust or deed to secure debt if the Real Property to be secured thereby is a leasehold interest, and the granting of such security interest is prohibited under the lease and the landlord has withheld its consent to such security interest. Except as provided in Section 9.8 hereof or if Agents prior written consent shall have been obtained, no Borrower shall grant to any Person other than Agent a lien on or security interest in the Real Property located on 466-472 53rd Street, Brooklyn, New York.
suffer or refrain from doing anything, as a result of which there could be a default under or breach of any of the terms of any of the Credit Card Agreements and at all times maintain in full force and effect the Credit Card Agreements and not terminate, cancel, surrender, modify, amend, waive or release any of the Credit Card Agreements, or consent to or permit to occur any of the foregoing; except, that, any Borrower or Guarantor may terminate or cancel any of the Credit Card Agreements in the ordinary course of the business of such Borrower or Guarantor; provided, that, such Borrower or Guarantor shall give Agent not less than ten (10) Business Days prior written notice of its intention to so terminate or cancel any of the Credit Card Agreements; (c) not enter into any new Credit Card Agreements with any new Credit Card Issuer unless Agent shall have received not less than ten (10) Business Days prior written notice of the intention of such Borrower or Guarantor to enter into such agreement (together with such other information with respect thereto as Agent may request) and such Borrower or Guarantor delivers, or causes to be delivered to Agent, a Credit Card Acknowledgment in favor of Agent; (d) give Agent immediate written notice of any Credit Card Agreement entered into by such Borrower or Guarantor after the date hereof, together with a true, correct and complete copy thereof and such other information with respect thereto as Agent may reasonably request; (e) furnish to Agent, promptly upon the request of Agent, such information and evidence as Agent may require from time to time concerning the observance, performance and compliance by such Borrower or Guarantor or the other party or parties thereto with the terms, covenants or provisions of the Credit Card Agreements; and (f) not modify any instructions given by Agent to any Credit Card Issuer or Credit Card Processor provided for in any Credit Card Acknowledgement or otherwise direct the remittance of payments under any Credit Card Agreement to any account other than the Blocked Account.
Credit Card Issuer or Credit Card Processor such that in the aggregate all of such funds in the reserve account, other amounts held as collateral and the amount of such letters of credit, guarantees, indemnities or similar instruments shall exceed an aggregate for Borrowers and Guarantors of $5,000,000 at any one time or (iv) debits or deducts any amounts from any deposit account of any Borrower or Guarantor;
remedies and powers granted to Agent and Lenders hereunder, under any of the other Financing Agreements, the UCC or other applicable law, are cumulative, not exclusive and enforceable, in Agents discretion, alternatively, successively, or concurrently on any one or more occasions, and shall include, without limitation, the right to apply to a court of equity for an injunction to restrain a breach or threatened breach by any Borrower or any Obligor of this Agreement or any of the other Financing Agreements. Subject to Section 12 hereof, Agent may, and at the direction of the Required Lenders shall, at any time or times, proceed directly against any Borrower or any Obligor to collect the Obligations without prior recourse to the Collateral.
that Agent may exercise all rights and remedies provided to Agent under, and in accordance with, the terms of the Financing Agreements and applicable law (including, without limitation, with respect to the liens granted to Agent).
license (exercisable upon the occurrence of and during the continuation of an Event of Default) without payment of royalty or other compensation to any Borrower or Guarantor, to use, assign, license or sublicense any of the trademarks, service-marks, trade names, business names, trade styles, designs, logos and other source of business identifiers and other Intellectual Property and general intangibles now owned or hereafter acquired by such Borrower, wherever the same maybe located, including in such license reasonable access to all media in which any of the licensed items may be recorded or stored and to all computer programs used for the compilation or printout thereof.
matters shall be heard only in the courts described above (except that Agent and Lenders shall have the right to bring any action or proceeding against any Borrower or Guarantor or its or their property in the courts of any other jurisdiction which Agent deems necessary or appropriate in order to realize on the Collateral or to otherwise enforce its rights against any Borrower or Guarantor or its or their property).
waivers and certifications set forth in this Section 11.1 and elsewhere herein and therein.
above, in connection with any amendment, waiver, discharge or termination, in the event that any Lender whose consent thereto is required shall fail to consent or fail to consent in a timely manner (such Lender being referred to herein as a Non-Consenting Lender), but the consent of any other Lenders to such amendment, waiver, discharge or termination that is required is obtained, if any, then Wachovia shall have the right, but not the obligation, at any time thereafter, and upon the exercise by Wachovia of such right, such Non-Consenting Lender shall have the obligation, to sell, assign and transfer to Wachovia or such Eligible Transferee as Wachovia may specify, the Total Commitment of such Non-Consenting Lender and all rights and interests of such Non-Consenting Lender pursuant thereto. Wachovia shall provide the Non-Consenting Lender with prior written notice of its intent to exercise its right under this Section, which notice shall specify on the date on which such purchase and sale shall occur. Such purchase and sale shall be pursuant to the terms of an Assignment and Acceptance (whether or not executed by the Non-Consenting Lender), except that on the date of such purchase and sale, Wachovia, or such Eligible Transferee specified by Wachovia, shall pay to the Non-Consenting Lender the amount equal to: (i) the principal balance of the Loans held by the Non-Consenting Lender outstanding as of the close of business on the business day immediately preceding the effective date of such purchase and sale, plus (ii) amounts accrued and unpaid in respect of interest and fees payable to the Non-Consenting Lender to the effective date of the purchase, minus (iii) if such Non-Consenting Lender is a Revolving Loan Lender, the amount of any closing fee received by such Non-Consenting Lender in connection with the Existing Loan Agreement and any closing, consent or amendment fee received by such Non-Consenting Lender in connection with this Agreement, multiplied by the fraction, the numerator of which is the number of months remaining, in the then current term of the Revolving Loan Facility and the denominator of which is the total number of months in the then current term of the Revolving Loan Facility. Such purchase and sale shall be effective on the date of the payment of such amount to the Non-Consenting Lender and the Total Commitment of the Non-Consenting Lender shall terminate on such date.
related to the negotiation, preparation, execution, delivery, enforcement, performance or administration of this Agreement, any other Financing Agreements, or any undertaking or proceeding related to any of the transactions contemplated hereby or any act, omission, event or transaction related or attendant thereto, including amounts paid in settlement, court costs, and the fees and expenses of counsel except that no Borrower or Guarantor shall not have any obligation under this Section 11.5 to indemnify an Indemnitee with respect to a matter covered hereby resulting from the gross negligence or willful misconduct of such Indemnitee as determined pursuant to a final, non-appealable order of a court of competent jurisdiction (but without limiting the obligations of any Borrower or Guarantor as to any other Indemnitee). To the extent that the undertaking to indemnify, pay and hold harmless set forth in this Section may be unenforceable because it violates any law or public policy, Borrowers and Guarantors shall pay the maximum portion which they are permitted to pay under applicable law to Agent and Lenders in satisfaction of indemnified matters under this Section. To the extent permitted by applicable law, no Borrower or Guarantor shall assert, and each Borrower and Guarantor hereby waives, any claim against any Indemnitee, on any theory of liability, for special, indirect, consequential or punitive damages (as opposed to direct or actual damages) arising out of, in connection with, or as a result of, this Agreement, any of the other Financing Agreements or any undertaking or transaction contemplated hereby. All amounts due under this Section shall be payable upon demand. The foregoing indemnity shall survive the payment of the Obligations and the termination or non-renewal of this Agreement.
generally engage in any kind of business with any Borrower or Guarantor (and any of its Subsidiaries or Affiliates) as if it were not acting as Agent, and Wachovia and its Affiliates may accept fees and other consideration from any Borrower or any Guarantor and any of its Subsidiaries and Affiliates for services in connection with this Agreement or otherwise without having to account for the same to Lenders.
any and all liability and expense that may be incurred by it by reason of taking or continuing to take any such action.
day by each of the three leading brokers of Federal funds transactions in New York City selected by Agent) and if such amounts are not paid within three (3) days of Agents demand, at the highest Revolving Loan Interest Rate provided for in Section 3.1 hereof applicable to Prime Rate Loans.
appropriate, in its discretion, given Agents own interest in the Collateral as a Lender and that Agent shall have no duty or liability whatsoever to any other Lender.
against the other Borrowers and Guarantors with respect to the Obligations until the Obligations are fully paid and finally discharged. Each Borrower and Guarantor also hereby waives any rights of recourse to or with respect to any asset of the other Borrowers and Guarantors until the Obligations are fully paid and finally discharged.
hereby authorizes and empowers Agent and Lenders in their sole discretion, without any notice or demand to such Borrower or Guarantor whatsoever and without affecting the liability of such Borrower or Guarantor hereunder, to exercise any right or remedy which Agent or any Lender may have available to them against the other Borrowers and Guarantors.
at any time upon ten (10) days prior written notice to Agent (which notice shall be irrevocable) and Agent may, at its option, and shall at the direction of Required Revolving Loan Lenders, terminate this Agreement at any time on or after the occurrence and during the continuance of an Event of Default, subject to any cure periods specified in Section 10.1 hereof. Upon the Renewal Date or any other effective date of termination of the Financing Agreements, Borrowers shall pay to Agent all outstanding and unpaid Obligations (other than contingent indemnification obligations and other contingent Obligations which expressly survive the termination of this Agreement and the other Financing Agreements) and shall furnish cash collateral to Agent (or at Agents option, a letter of credit issued for the account of Borrowers and at Borrowers expense, in form and substance satisfactory to Agent, by an issuer acceptable to Agent and payable to Agent as beneficiary) in such amounts as Agent determines are reasonably necessary to secure Agent, Lenders and any Revolving Lender that is an issuing bank from loss, cost, damage or expense, including attorneys fees and expenses, in connection with any contingent Obligations, including issued and outstanding Letter of Credit Accommodations and checks or other payments provisionally credited to the Obligations and/or as to which Agent or any Lender has not yet received final payment and any continuing obligations of Agent or any Lender pursuant to any Deposit Account Control Agreement. The amount of such cash collateral (or letter of credit, as Agent may determine) as to any Letter of Credit Accommodations shall be in the amount equal to one hundred five (105%) percent of the amount of the Letter of Credit Accommodations plus the amount of any fees and expenses payable in connection therewith through the end of the latest expiration date of the letters of credit giving rise to such Letter of Credit Accommodations. Such payments in respect of the Obligations and cash collateral shall be remitted by wire transfer in Federal funds to the Agent Payment Account or such other bank account of Agent, as Agent may, in its discretion, designate in writing to Borrowers for such purpose. Interest shall be due until and including the next Business Day, if the amounts so paid by Borrowers to the Agent Payment Account or other bank account designated by Agent are received in such bank account later than 12:00 noon, New York time.
Agreement.
of reference only and shall not affect the interpretation of this Agreement.
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If to any Borrower or Guarantor: |
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Lerner New York, Inc. |
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450 West 33rd Street |
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Attention: Chief Financial Officer |
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Telephone No.: (212) 884-2110 |
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Telecopy No.: (212) 884-2103 |
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with a copy to: |
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Kirkland & Ellis LLP |
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Citigroup Center |
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153 East 53rd Street |
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New York, NY 10022 |
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Attention: Binta Niambi Brown, Esq. |
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Telephone No.: (212) 446-4800 |
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Telecopy No.: (212) 446-4900 |
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If to Agent: |
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Wachovia Bank, National Association, as Agent |
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1133 Avenue of the Americas |
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New York, New York 10036 |
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Attention:Portfolio Manager-Lerner New York, Inc. |
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Telephone No.: (212) 545-4280 |
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Telecopy No.: (212) 545-4283 |
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held to be invalid or unenforceable and the rights and obligations of the parties shall be construed and enforced only to such extent as shall be permitted by applicable law.
purposes of this Agreement. The Register and Lender Register shall be available for inspection by Borrowers and any Lender at any reasonable time and from time to time upon reasonable prior notice.
to the other parties hereto for the performance of such obligations, and Borrowers, the other Lenders and Agent shall continue to deal solely and directly with such Lender in connection with such Lenders rights and obligations under this Agreement and the other Financing Agreements, (iii) the Participant shall not have any rights under this Agreement or any of the other Financing Agreements (the Participants rights against such Lender in respect of such participation to be those set forth in the agreement executed by such Lender in favor of the Participant relating thereto) and all amounts payable by Borrowers or any Guarantor hereunder (including any amounts payable under Sections 3.3 or 6.4(d) hereof) shall be determined as if such Lender had not sold such participation.
for, and the participation of relevant management in meetings and conference calls with, potential Lenders or Participants. Borrowers shall certify the correctness, completeness and accuracy, in all material respects, of all descriptions of Borrowers and their affairs provided, prepared or reviewed by Borrowers that are contained in any selling materials and all other information provided by it and included in such materials.
Providers, and their respective officers, directors, agents and employees and their respective predecessors, successors and assigns harmless from all claims, demands, debts, sums of money, accounts, damages, judgments, financial obligations, actions, causes of action, suits at law or in equity, of any kind or nature whatsoever, whether or not now existing or known, which any Borrower, any Guarantor or their respective successors or assigns has had or may now or hereafter claim to have against Agent, any Lender, any Bank Product Provider or their respective officers, directors, agents and employees and their respective predecessors, successors and assigns in any way arising from or connected with the Existing Financing Agreements or the arrangements set forth therein or transactions thereunder up to and including the date hereof, except to the extent Borrowers shall notify Agent in writing of any specific exceptions to charges for interest, fees, costs and expenses set forth in the most recent monthly statement of Borrowers loan accounts sent by Agent to Borrowers prior to the date hereof pursuant to the Existing Financing Agreements within thirty (30) days after the date hereof.
[REMAINDER OF THIS PAGE INTENTIONALLY LEFT BLANK]
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be duly executed as of the day and year first above written.
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LERNER NEW YORK, INC. |
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LERNCO, INC. |
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JASMINE COMPANY, INC. |
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NEW YORK & COMPANY, INC. |
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NEVADA RECEIVABLE FACTORING, INC. |
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Secretary |
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[SIGNATURES CONTINUED ON NEXT PAGE]
Signature Page to Second Amended and
Restated Loan and Security Agreement
[SIGNATURES CONTINUED FROM PREVIOUS PAGE]
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LERNER NEW YORK HOLDING, INC. |
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LERNER NEW YORK GC, LLC |
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[SIGNATURES CONTINUED ON NEXT PAGE]
Signature Page to Second Amended and
Restated Loan and Security Agreement
[SIGNATURES CONTINUED FROM PREVIOUS PAGE]
LENDERS |
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WACHOVIA BANK, NATIONAL ASSOCIATION |
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LASALLE RETAIL FINANCE, a division of
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Signature Page to Second Amended and
Restated Loan and Security Agreement
EXHIBIT A-1
TO
SECOND AMENDED AND RESTATED LOAN AND SECURITY AGREEMENT
Form of Revolving Loan Lender
ASSIGNMENT AND ACCEPTANCE AGREEMENT
This ASSIGNMENT AND ACCEPTANCE AGREEMENT (this Assignment and Acceptance ) dated as of , 200 is made between (the Assignor ) and (the Assignee ). Initially capitalized terms used herein without definitions shall have the meanings given in the Loan Agreement (as defined below).
W I T N E S S E T H:
WHEREAS, Wachovia Bank, National Association, as arranger, Wachovia Bank National Association, in its capacity as agent pursuant to the Loan Agreement (as hereinafter defined) acting for and on behalf of the Persons which are parties thereto as lenders (in such capacity, Agent ), and the Persons which are parties to the Loan Agreement as lenders (individually, each a Lender and collectively, Lenders ) have entered or are about to enter into financing arrangements pursuant to which Agent and Lenders may make loans and, with regard to Revolving Loan Lenders only, provide other financial accommodations to Lerner New York, Inc. ( Lerner ), Lernco, Inc. ( Lernco ), and Jasmine Company, Inc. ( Jasmine and together with Lerner, Borrowers and individually each a Borrower ) as set forth in that certain Second Amended and Restated Loan and Security Agreement, dated , 2007, by and among Borrowers, certain of their affiliates, Agent, and Lenders (as the same now exists or may hereafter be amended, modified, supplemented, extended, renewed, restated or replaced, the Loan Agreement ), and the other agreements, documents and instruments referred to therein or at any time executed and/or delivered in connection therewith or related thereto (all of the foregoing, together with the Loan Agreement, as the same now exist or may hereafter be amended, modified, supplemented, extended, renewed, restated or replaced, being collectively referred to herein as the Financing Agreements );
WHEREAS, as provided under the Loan Agreement, Assignor committed to making Revolving Loans (the Committed Revolving Loans ) to Borrowers in an aggregate amount not to exceed Dollars ($ ) (the Commitment );
WHEREAS, Assignor wishes to assign to Assignee [part of the] [all] rights and obligations of Assignor under the Loan Agreement in respect of its Commitment in an amount equal to $ (the Assigned Commitment Amount ) on the terms and subject to the conditions set forth herein and Assignee wishes to accept assignment of such rights and to assume such obligations from Assignor on such terms and subject to such conditions;
NOW, THEREFORE, in consideration of the foregoing and the mutual agreements
contained herein, the parties hereto agree as follows:
1. Assignment and Acceptance .
(a) Subject to the terms and conditions of this Assignment and Acceptance, Assignor hereby sells, transfers and assigns to Assignee, and Assignee hereby purchases, assumes and undertakes from Assignor, without recourse and without representation or warranty (except as provided in this Assignment and Acceptance) an interest in (i) the Commitment and each of the Committed Revolving Loans of Assignor and (ii) all related rights, benefits, obligations, liabilities and indemnities of the Assignor under and in connection with the Loan Agreement and the other Financing Agreements, so that after giving effect thereto, the Commitment of Assignee shall be as set forth below and the Pro Rata Share of Assignee shall be ( %).
(b) With effect on and after the Effective Date (as defined in Section 5 hereof), Assignee shall be a party to the Loan Agreement and succeed to all of the rights and be obligated to perform all of the obligations of a Lender under the Loan Agreement, including the requirements concerning confidentiality and the payment of indemnification, with a Commitment in an amount equal to the Assigned Commitment Amount. Assignee agrees that it will perform in accordance with their terms all of the obligations which by the terms of the Loan Agreement are required to be performed by it as a Lender. It is the intent of the parties hereto that the Commitment of Assignor shall, as of the Effective Date, be reduced by an amount equal to the Assigned Commitment Amount and Assignor shall relinquish its rights and be released from its obligations under the Loan Agreement to the extent such obligations have been assumed by Assignee; provided, that, Assignor shall not relinquish its rights under Sections 2.1, 6.4, 6.8 and 6.9 of the Loan Agreement to the extent such rights relate to the time prior to the Effective Date.
(c) After giving effect to the assignment and assumption set forth herein, on the Effective Date Assignees Commitment will be Dollars ($ ).
(d) After giving effect to the assignment and assumption set forth herein, on the Effective Date Assignors Commitment will be Dollars ($ ) (as such amount may be further reduced by any other assignment by Assignor on or after the date hereof).
2. Payments .
(a) As consideration for the sale, assignment and transfer contemplated in Section 1 hereof, Assignee shall pay to Assignor on the Effective Date in immediately available funds an amount equal to Dollars ($ ), representing Assignees Pro Rata Share of the amount owed by Borrowers with respect to the Committed Revolving Loans assigned hereunder.
(b) Assignee shall pay to Agent the processing fee in the amount specified in Section 14.7(a) of the Loan Agreement.
3. Reallocation of Payments . Any interest, fees and other payments accrued to the Effective Date with respect to the Commitment, Committed Revolving Loans and outstanding Letter of Credit Accommodations shall be for the account of Assignor. Any interest, fees and other payments accrued on and after the Effective Date with respect to the Assigned Commitment Amount shall be for the account of Assignee. Each of Assignor and Assignee agrees that it will hold in trust for the other party any interest, fees and other amounts which it may receive to which the other party is entitled pursuant to the preceding sentence and pay to the other party any such amounts which it may receive promptly upon receipt.
4. Independent Credit Decision . Assignee acknowledges that it has received a copy of the Loan Agreement and the Schedules and Exhibits thereto, together with copies of the most recent financial statements of the Borrowers and their Subsidiaries, and such other documents and information as it has deemed appropriate to make its own credit and legal analysis and decision to enter into this Assignment and Acceptance and agrees that it will, independently and without reliance upon Assignor, Agent or any Lender and based on such documents and information as it shall deem appropriate at the time, continue to make its own credit and legal decisions in taking or not taking action under the Loan Agreement.
5. Effective Date; Notices .
(a) As between Assignor and Assignee, the effective date for this Assignment and Acceptance shall be , 200 (the Effective Date ); provided , that , the following conditions precedent have been satisfied on or before the Effective Date:
(i) this Assignment and Acceptance shall be executed and delivered by Assignor and Assignee;
(ii) (ii) the consent of Agent as required for an effective assignment of the Assigned Commitment Amount by Assignor to Assignee shall have been duly obtained and shall be in full force and effect as of the Effective Date;
(iii) written notice of such assignment, together with payment instructions, addresses and related information with respect to Assignee, shall have been given to Borrowers and Agent;
(iv) Assignee shall pay to Assignor all amounts due to Assignor under this Assignment and Acceptance; and
(v) the processing fee referred to in Section 2(b) hereof shall have been paid to Agent.
(b) Promptly following the execution of this Assignment and Acceptance, Assignor shall deliver to Borrowers and Agent for acknowledgment by Agent, a Notice of Assignment in the form attached hereto as Schedule 1.
6. Agent .[INCLUDE ONLY IF ASSIGNOR IS AN AGENT]
(a) Assignee hereby appoints and authorizes Wachovia Bank, National Association in its capacity as Agent to take such action as agent on its behalf to exercise such powers under the Loan Agreement as are delegated to Agent by Lenders pursuant to the terms of the Loan Agreement.
(b) Assignee shall assume no duties or obligations held by Assignor in its capacity as [Agent] [Documentation Agent] under the Loan Agreement.]
7. Withholding Tax . Assignee (a) represents and warrants to Assignor, Agent and Borrowers that under applicable law and treaties no tax will be required to be withheld by Assignee, Agent or Borrowers with respect to any payments to be made to Assignee hereunder or under any of the Financing Agreements, (b) agrees to furnish (if it is organized under the laws of any jurisdiction other than the United States or any State thereof) to Agent and Borrowers prior to the time that Agent or Borrowers are required to make any payment of principal, interest or fees hereunder, duplicate executed originals of either U.S. Internal Revenue Service Form 4224 or U.S. Internal Revenue Service Form 1001 (wherein Assignee claims entitlement to the benefits of a tax treaty that provides for a complete exemption from U.S. federal income withholding tax on all payments hereunder) and agrees to provide new Forms 4224 or 1001 upon the expiration of any previously delivered form or comparable statements in accordance with applicable U.S. law and regulations and amendments thereto, duly executed and completed by Assignee, and (c) agrees to comply with all applicable U.S. laws and regulations with regard to such withholding tax exemption.
8. Representations and Warranties .
(a) Assignor represents and warrants that (i) it is the legal and beneficial owner of the interest being assigned by it hereunder and that such interest is free and clear of any security interest, lien, encumbrance or other adverse claim, (ii) it is duly organized and existing and it has the full power and authority to take, and has taken, all action necessary to execute and deliver this Assignment and Acceptance and any other documents required or permitted to be executed or delivered by it in connection with this Assignment and Acceptance and to fulfill its obligations hereunder, (iii) no notices to, or consents, authorizations or approvals of, any Person are required (other than any already given or obtained) for its due execution, delivery and performance of this Assignment and Acceptance, and apart from any agreements or undertakings or filings required by the Loan Agreement, no further action by, or notice to, or filing with, any Person is required of it for such execution, delivery or performance, and (iv) this Assignment and Acceptance has been duly executed and delivered by it and constitutes the legal, valid and binding obligation of Assignor, enforceable against Assignor in accordance with the terms hereof, subject, as to enforcement, to bankruptcy, insolvency, moratorium, reorganization and other laws of general application relating to or affecting creditors rights and to general equitable principles.
(b) Assignor makes no representation or warranty and assumes no responsibility with respect to any statements, warranties or representations made in or in
connection with the Loan Agreement or any of the other Financing Agreements or the execution, legality, validity, enforceability, genuineness, sufficiency or value of the Loan Agreement or any other instrument or document furnished pursuant thereto. Assignor makes no representation or warranty in connection with, and assumes no responsibility with respect to, the solvency, financial condition or statements of Borrowers, or the performance or observance by Borrowers or any other Person, of any of its respective obligations under the Loan Agreement or any other instrument or document furnished in connection therewith.
(c) Assignee represents and warrants that (i) it is duly organized and existing and it has full power and authority to take, and has taken, all action necessary to execute and deliver this Assignment and Acceptance and any other documents required or permitted to be executed or delivered by it in connection with this Assignment and Acceptance, and to fulfill its obligations hereunder, (ii) no notices to, or consents, authorizations or approvals of, any Person are required (other than any already given or obtained) for its due execution, delivery and performance of this Assignment and Acceptance, and apart from any agreements or undertakings or filings required by the Loan Agreement, no further action by, or notice to, or filing with, any Person is required of it for such execution, delivery or performance; and (v) this Assignment and Acceptance has been duly executed and delivered by it and constitutes the legal, valid and binding obligation of Assignee, enforceable against Assignee in accordance with the terms hereof, subject, as to enforcement, to bankruptcy, insolvency, moratorium, reorganization and other laws of general application relating to or affecting creditors rights to general equitable principles.
9. Further Assurances . Assignor and Assignee each hereby agree to execute and deliver such other instruments, and take such other action, as either party may reasonably request in connection with the transactions contemplated by this Assignment and Acceptance, including the delivery of any notices or other documents or instruments to Borrowers or Agent, which may be required in connection with the assignment and assumption contemplated hereby.
10. Miscellaneous .
(a) Any amendment or waiver of any provision of this Assignment and Acceptance shall be in writing and signed by the parties hereto. No failure or delay by either party hereto in exercising any right, power or privilege hereunder shall operate as a waiver thereof and any waiver of any breach of the provisions of this Assignment and Acceptance shall be without prejudice to any rights with respect to any other for further breach thereof.
(b) All payments made hereunder shall be made without any set-off or counterclaim.
(c) Assignor and Assignee shall each pay its own costs and expenses incurred in connection with the negotiation, preparation, execution and performance of this Assignment and Acceptance.
(d) This Assignment and Acceptance may be executed in any number of counterparts and all of such counterparts taken together shall be deemed to constitute one and the
same instrument.
(e) THIS ASSIGNMENT AND ACCEPTANCE SHALL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE LAW OF THE STATE OF NEW YORK. Assignor and Assignee each irrevocably submits to the non-exclusive jurisdiction of any State or Federal court sitting in New York County, New York over any suit, action or proceeding arising out of or relating to this Assignment and Acceptance and irrevocably agrees that all claims in respect of such action or proceeding may be heard and determined in such New York State or Federal court. Each party to this Assignment and Acceptance hereby irrevocably waives, to the fullest extent it may effectively do so, the defense of an inconvenient forum to the maintenance of such action or proceeding.
(f) ASSIGNOR AND ASSIGNEE EACH HEREBY KNOWINGLY, VOLUNTARILY AND INTENTIONALLY WAIVE ANY RIGHTS THEY MAY HAVE TO A TRIAL BY JURY IN RESPECT OF ANY LITIGATION BASED HEREON, OR ARISING OUT OF, UNDER, OR IN CONNECTION WITH THIS ASSIGNMENT AND ACCEPTANCE, THE LOAN AGREEMENT, ANY OF THE OTHER FINANCING AGREEMENTS OR ANY RELATED DOCUMENTS AND AGREEMENTS OR ANY COURSE OF CONDUCT, COURSE OF DEALING, OR STATEMENTS (WHETHER ORAL OR WRITTEN).
IN WITNESS WHEREOF, Assignor and Assignee have caused this Assignment and Acceptance to be executed and delivered by their duly authorized officers as of the date first above written.
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SCHEDULE 1
NOTICE OF ASSIGNMENT AND ACCEPTANCE
, 20
Wachovia Bank, National Association
1133 Avenue of the Americas
New York, New York 10036
Attn.: Portfolio Manager
Ladies and Gentlemen:
Wachovia Bank, National Association, as arranger, Wachovia Financial Corporation, in its capacity as agent pursuant to the Loan Agreement (as hereinafter defined) acting for and on behalf of the Persons which are parties thereto as lenders (in such capacity, Agent ), LaSalle Retail Finance, a division of LaSalle Business Credit, LLC, as agent for LaSalle Bank Midwest, National Association, as documentation agent (in such capacity, Documentation Agent ), and the Persons which are parties to the Loan Agreement as lenders (individually, each a Lender and collectively, Lenders ) have entered or are about to enter into financing arrangements pursuant to which Agent and Lenders may make loans and, with regard to Revolving Loan Lenders only, provide other financial accommodations, to Lerner New York, Inc. ( Lerner ), Lernco, Inc. ( Lernco ), and Jasmine Company, Inc. ( Jasmine and together with Lerner, Borrowers and individually each a Borrower ) as set forth in that certain Second Amended and Restated Loan and Security Agreement, dated , 2007, by and among Borrowers, certain of their affiliates, Agent and Lenders (as the same now exists or may hereafter be amended, modified, supplemented, extended, renewed, restated or replaced, the Loan Agreement ), and the other agreements, documents and instruments referred to therein or at any time executed and/or delivered in connection therewith or related thereto (all of the foregoing, together with the Loan Agreement, as the same now exist or may hereafter be amended, modified, supplemented, extended, renewed, restated or replaced, being collectively referred to herein as the Financing Agreements ). Capitalized terms not otherwise defined herein shall have the respective meanings ascribed thereto in the Loan Agreement.
We hereby give you notice of, and request your consent to, the assignment by (the Assignor ) to (the Assignee ) such that after giving effect to the assignment Assignee shall have an interest equal to ( %) of the total Commitments pursuant to the Assignment and Acceptance Agreement attached hereto (the Assignment and Acceptance ). We understand that the Assignors Commitment shall be reduced by Dollars ($ ), as the same may be further reduced by other assignments on or after the date hereof.
Assignee agrees that, upon receiving the consent of Agent to such assignment, Assignee will be bound by the terms of the Loan Agreement as fully and to the same extent as if the Assignee were the Lender originally holding such interest under the Loan Agreement.
The following administrative details apply to Assignee:
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You are entitled to rely upon the representations, warranties and covenants of each of Assignor and Assignee contained in the Assignment and Acceptance.
IN WITNESS WHEREOF, Assignor and Assignee have caused this Notice of Assignment and Acceptance to be executed by their respective duly authorized officials, officers or agents as of the date first above mentioned.
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EXHIBIT A-2
TO
SECOND AMENDED AND RESTATED LOAN AND SECURITY AGREEMENT
Form of Existing Term Loan Lender
ASSIGNMENT AND ACCEPTANCE AGREEMENT
This ASSIGNMENT AND ACCEPTANCE AGREEMENT (this Assignment and Acceptance ) dated as of , 200 is made between (the Assignor ) and (the Assignee ). Initially capitalized terms used herein without definitions shall have the meanings given in the Loan Agreement (as defined below).
W I T N E S S E T H :
WHEREAS, Wachovia Bank, National Association, as arranger, Wachovia Bank, National Association, in its capacity as agent pursuant to the Loan Agreement (as hereinafter defined) acting for and on behalf of the Persons which are parties thereto as lenders (in such capacity, Agent ), and the Persons which are parties to the Loan Agreement as lenders (individually, each a Lender and collectively, Lenders ) have entered or are about to enter into financing arrangements pursuant to which Agent and Lenders may make loans and, with regard to Revolving Loan Lenders only, provide other financial accommodations to Lerner New York, Inc. ( Lerner ), Lernco, Inc. ( Lernco ), and Jasmine Company, Inc. ( Jasmine and together with Lerner, Borrowers and individually each a Borrower ) as set forth in that certain Second Amended and Restated Loan and Security Agreement, dated , 2007, by and among Borrowers, certain of their affiliates, Agent, Documentation Agent and Lenders (as the same now exists or may hereafter be amended, modified, supplemented, extended, renewed, restated or replaced, the Loan Agreement ), and the other agreements, documents and instruments referred to therein or at any time executed and/or delivered in connection therewith or related thereto (all of the foregoing, together with the Loan Agreement, as the same now exist or may hereafter be amended, modified, supplemented, extended, renewed, restated or replaced, being collectively referred to herein as the Financing Agreements );
WHEREAS, as provided under the Loan Agreement, Assignor has made a term loan to Borrowers (the Commitment );
WHEREAS, Assignor wishes to assign to Assignee [part of the] [all] rights and obligations of Assignor under the Loan Agreement in respect of its Commitment in an amount equal to $ (the Assigned Commitment Amount ) on the terms and subject to the conditions set forth herein and Assignee wishes to accept assignment of such rights and to assume such obligations from Assignor on such terms and subject to such conditions;
NOW, THEREFORE, in consideration of the foregoing and the mutual agreements contained herein, the parties hereto agree as follows:
1. Assignment and Acceptance .
(a) Subject to the terms and conditions of this Assignment and Acceptance, Assignor hereby sells, transfers and assigns to Assignee, and Assignee hereby purchases, assumes and undertakes from Assignor, without recourse and without representation or warranty (except as provided in this Assignment and Acceptance) an interest in (i) the Commitment of Assignor and (ii) all related rights, benefits, obligations, liabilities and indemnities of the Assignor under and in connection with the Loan Agreement and the other Financing Agreements, so that after giving effect thereto, the Commitment of Assignee shall be as set forth below and the Pro Rata Share of Assignee shall be ( %).
(b) With effect on and after the Effective Date (as defined in Section 5 hereof), Assignee shall be a party to the Loan Agreement and succeed to all of the rights and be obligated to perform all of the obligations of a Lender under the Loan Agreement, including the requirements concerning confidentiality and the payment of indemnification, with a Commitment in an amount equal to the Assigned Commitment Amount. Assignee agrees that it will perform in accordance with their terms all of the obligations which by the terms of the Loan Agreement are required to be performed by it as a Lender. It is the intent of the parties hereto that the Commitment of Assignor shall, as of the Effective Date, be reduced by an amount equal to the Assigned Commitment Amount and Assignor shall relinquish its rights and be released from its obligations under the Loan Agreement to the extent such obligations have been assumed by Assignee; provided, that, Assignor shall not relinquish its rights under Sections 2.3, 6.4, 6.8 and 6.9 of the Loan Agreement to the extent such rights relate to the time prior to the Effective Date.
(c) After giving effect to the assignment and assumption set forth herein, on the Effective Date Assignees Commitment will be Dollars ($ ).
2. Payments . As consideration for the sale, assignment and transfer contemplated in Section 1 hereof, Assignee shall pay to Assignor on the Effective Date in immediately available funds an amount equal to Dollars ($ ), representing Assignees Pro Rata Share of the amount owed by Borrowers with respect to the Commitment assigned hereunder.
3. Real location of Payments . Any interest, fees and other payments accrued to the Effective Date with respect to the Commitment shall be for the account of Assignor. Any interest, fees and other payments accrued on and after the Effective Date with respect to the Assigned Commitment Amount shall be for the account of Assignee. Each of Assignor and Assignee agrees that it will hold in trust for the other party any interest, fees and other amounts which it may receive to which the other party is entitled pursuant to the preceding sentence and pay to the other party any such amounts which it may receive promptly upon receipt.
4. Independent Credit Decision. Assignee acknowledges that it has received a copy of the Loan Agreement and the Schedules and Exhibits thereto, together with copies of the most recent financial statements of the Borrowers and their Subsidiaries, and such other documents
and information as it has deemed appropriate to make its own credit and legal analysis and decision to enter into this Assignment and Acceptance and agrees that it will, independently and without reliance upon Assignor, Agent or any Lender and based on such documents and information as it shall deem appropriate at the time, continue to make its own credit and legal decisions in taking or not taking action under the Loan Agreement.
5. Effective Date.
(a) As between Assignor and Assignee, the effective date for this Assignment and Acceptance shall be , 200 (the Effective Date); provided, that, the following conditions precedent have been satisfied on or before the Effective Date:
(i) this Assignment and Acceptance shall be executed and delivered by Assignor and Assignee;
(ii) Assignee shall pay to Assignor all amounts due to Assignor under this Assignment and Acceptance; and
6. Agent . Assignee hereby appoints and authorizes Wachovia Bank, National Association in its capacity as Agent to take such action as agent on its behalf to exercise such powers under the Loan Agreement as are delegated to Agent by Lenders pursuant to the terms of the Loan Agreement.
7. Withholding Tax . Assignee (a) represents and warrants to Assignor, Agent and Borrowers that under applicable law and treaties no tax will be required to be withheld by Assignee, Agent or Borrowers with respect to any payments to be made to Assignee hereunder or under any of the Financing Agreements, (b) agrees to furnish (if it is organized under the laws of any jurisdiction other than the United States or any State thereof) to Agent and Borrowers prior to the time that Agent or Borrowers are required to make any payment of principal, interest or fees hereunder, duplicate executed originals of either U.S. Internal Revenue Service Form 4224 or U.S. Internal Revenue Service Form 1001 (wherein Assignee claims entitlement to the benefits of a tax treaty that provides for a complete exemption from U.S. federal income withholding tax on all payments hereunder) and agrees to provide new Forms 4224 or 1001 upon the expiration of any previously delivered form or comparable statements in accordance with applicable U.S. law and regulations and amendments thereto, duly executed and completed by Assignee, and (c) agrees to comply with all applicable U.S. laws and regulations with regard to such withholding tax exemption.
8. Representations and Warranties.
(a) Assignor represents and warrants that (i) it is the legal and beneficial owner of the interest being assigned by it hereunder and that such interest is free and clear of any security interest, lien, encumbrance or other adverse claim, (ii) it is duly organized and existing and it has the full power and authority to take, and has taken, all action necessary to execute and deliver this Assignment and Acceptance and any other documents required or permitted to be executed or delivered by it in connection with this Assignment and Acceptance and to fulfill its obligations hereunder, (iii) no notices to, or consents, authorizations or approvals of, any Person are required (other than any already given or obtained) for its due execution, delivery and
performance of this Assignment and Acceptance, and apart from any agreements or undertakings or filings required by the Loan Agreement, no further action by, or notice to, or filing with, any Person is required of it for such execution, delivery or performance, and (iv) this Assignment and Acceptance has been duly executed and delivered by it and constitutes the legal, valid and binding obligation of Assignor, enforceable against Assignor in accordance with the terms hereof, subject, as to enforcement, to bankruptcy, insolvency, moratorium, reorganization and other laws of general application relating to or affecting creditors rights and to general equitable principles.
(b) Assignor makes no representation or warranty and assumes no responsibility with respect to any statements, warranties or representations made in or in connection with the Loan Agreement or any of the other Financing Agreements or the execution, legality, validity, enforceability, genuineness, sufficiency or value of the Loan Agreement or any other instrument or document furnished pursuant thereto. Assignor makes no representation or warranty in connection with, and assumes no responsibility with respect to, the solvency, financial condition or statements of Borrowers, or the performance or observance by Borrowers or any other Person, of any of its respective obligations under the Loan Agreement or any other instrument or document furnished in connection therewith.
(c) Assignee represents and warrants that (i) it is duly organized and existing and it has full power and authority to take, and has taken, all action necessary to execute and deliver this Assignment and Acceptance and any other documents required or permitted to be executed or delivered by it in connection with this Assignment and Acceptance, and to fulfill its obligations hereunder, (ii) no notices to, or consents, authorizations or approvals of, any Person are required (other than any already given or obtained) for its due execution, delivery and performance of this Assignment and Acceptance, and apart from any agreements or undertakings or filings required by the Loan Agreement, no further action by, or notice to, or filing with, any Person is required of it for such execution, delivery or performance; and (v) this Assignment and Acceptance has been duly executed and delivered by it and constitutes the legal, valid and binding obligation of Assignee, enforceable against Assignee in accordance with the terms hereof, subject, as to enforcement, to bankruptcy, insolvency, moratorium, reorganization and other laws of general application relating to or affecting creditors rights to general equitable principles.
9. Further Assurances . Assignor and Assignee each hereby agree to execute and deliver such other instruments, and take such other action, as either party may reasonably request in connection with the transactions contemplated by this Assignment and Acceptance, including the delivery of any notices or other documents or instruments to Borrowers or Agent, which may be required in connection with the assignment and assumption contemplated hereby.
10. Miscellaneous.
(a) Any amendment or waiver of any provision of this Assignment and Acceptance shall be in writing and signed by the parties hereto. No failure or delay by either party hereto in exercising any right, power or privilege hereunder shall operate as a waiver thereof and any waiver of any breach of the provisions of this Assignment and Acceptance shall be without prejudice to any rights with respect to any other for further breach thereof.
(b) All payments made hereunder shall be made without any set-off or counterclaim.
(c) Assignor and Assignee shall each pay its own costs and expenses incurred in connection with the negotiation, preparation, execution and performance of this Assignment and Acceptance.
(d) This Assignment and Acceptance may be executed in any number of counterparts and all of such counterparts taken together shall be deemed to constitute one and the same instrument.
(e) THIS ASSIGNMENT AND ACCEPTANCE SHALL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE LAW OF THE STATE OF NEW YORK. Assignor and Assignee each irrevocably submits to the non-exclusive jurisdiction of any State or Federal court sitting in New York County, New York over any suit, action or proceeding arising out of or relating to this Assignment and Acceptance and irrevocably agrees that all claims in respect of such action or proceeding may be heard and determined in such New York State or Federal court. Each party to this Assignment and Acceptance hereby irrevocably waives, to the fullest extent it may effectively do so, the defense of an inconvenient forum to the maintenance of such action or proceeding.
(f) ASSIGNOR AND ASSIGNEE EACH HEREBY KNOWINGLY, VOLUNTARILY AND INTENTIONALLY WAIVE ANY RIGHTS THEY MAY HAVE TO A TRIAL BY JURY IN RESPECT OF ANY LITIGATION BASED HEREON, OR ARISING OUT OF, UNDER, OR IN CONNECTION WITH THIS ASSIGNMENT AND ACCEPTANCE, THE LOAN AGREEMENT, ANY OF THE OTHER FINANCING AGREEMENTS OR ANY RELATED DOCUMENTS AND AGREEMENTS OR ANY COURSE OF CONDUCT, COURSE OF DEALING, OR STATEMENTS (WHETHER ORAL OR WRITTEN).
IN WITNESS WHEREOF, Assignor and Assignee have caused this Assignment and Acceptance to be executed and delivered by their duly authorized officers as of the date first above written.
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EXHIBIT B
TO
SECOND AMENDED AND RESTATED LOAN AND SECURITY AGREEMENT
Form of Borrowing Base Certificate
See attached.
Lerner New York, Inc, Lernco, Inc, and Jasmine Company, Inc
Second Amended and Restated Loan and Security Agreement - Borrowing Base Calculation under Section 7.1(a)(i)(C)
June 2007 (Balances as of 7/7/2007) = SEASONAL ADVANCE PERIOD
Eligible Sell- Off Vendors and Damaged Goods Vendors Receivables
(x) Total Eligible Sell-Off Vendors Receivables
(y) Total Eligible Damaged Goods Vendors Receivables
Total Eligible Sell-Off Vendors and Damaged Goods Vendors Receivables
(a) 90% of Net Amount of Eligible Sell-Off Vendors and Damaged Goods Vendors Receivables (7) [85% so long as Existing Term Loan is outstanding]
(b) Cap of $4.0M
A. The lesser of (a) or (b)
Eligible Credit Card Receivables
MasterCard-Visa Chase Merchants
Discover Charges
Amounts unpaid more than 10 days
Eligible Credit Card Receivables
B. 90% of Net Amount of Eligible Credit Card Receivables (7) [85% so long as Existing Term Loan is outstanding]
Eligible Landed Inventory - Lerner and Lernco
Landed Inventory
Exclusions:
(a) Work-in-progress
(b) Raw materials
(c) Spare parts for equipment
(d) Packaging and shipping materials
(e) Supplies used or consumed in Borrowers business
(f) Inventory subject to a perfected security interest or lien in favor of any person other than Agent
(g) Bill and hold goods
(h) Obsolete, out-of-season or slow moving Inventory
(i) Damaged and/or defective Inventory
(j) Inventory returned by customers and not held for resale
(k) Inventory consisting of samples or displays
(l) Inventory held for return to vendors
(m) Inventory purchased or sold on consignment
Reserves:
(a) Reserve for Inventory located in states with liens against Borrower
(b) Reserves for shrinkage and/or material variances in Inventory counts
Eligible Landed Inventory
(i) 90% of Eligible Landed Inventory of Lerner and Lernco (7) [85% so long as Existing Term Loan is outstanding]
Eligible Landed Inventory - Jasmine
Landed Inventory
Exclusions:
(a) Work-in-progress
(b) Raw Materials
(c) Spare parts for equipment
(d) Packaging and shipping materials
(e) Supplies used or consumed in Borrowers business
(f) Inventory subject to a perfected security interest or lien in favor of any person other than Agent
(g) Bill and hold goods
(h) Obsolete, out-of-season or slow moving Inventory
(i) Damaged and/or defective Inventory
(j) Inventory returned by customers and not held for resale
(k) Inventory consisting of samples or displays
(l) Inventory held for return to vendors
(m) Inventory purchased or sold on consignment
Reserves:
(a) Reserve for Inventory located in states with liens against Borrower
(b) Reserves for shrinkage and/or material variances in Inventory counts
Eligible Landed Inventory
(ii) 75% of Eligible Landed Inventory of Jasmine (7) [70% so long as Existing Term Loan is outstanding]
Eligible in-Transit Inventory and in-Transit Inventory subject to Letter of Credit
Eligible In-Transit Inventory of Lerner and Lernco (1)
(I) 90% of Value of the Eligible In-Transit Inventory of Lerner and Lernco (7) [85% so long as Existing Term Loan is outstanding]
Eligible In-Transit Inventory of Jasmine (1)
(II) 75% of Value of the Eligible In-Transit Inventory of Jasmine (7) [70% so long as Existing Term Loan is outstanding]
In-Transit Inventory of Lerner and Lernco subject to L/C Accommodation (1)
(III) 90% of the Value of the Eligible In-Transit Inventory of Lerner and Lernco subject to L/C (7) [85% so long as Existing Term Loan is outstanding]
In-Transit Inventory of Jasmine subject to L/C Accommodation (1)
(IV) 75% of the Value of the Eligible In-Transit Inventory of Jasmine subject to L/C (7) [70% so long as Existing Term Loan is outstanding]
(aa) \ Sum of Eligible In-Transit Inventory & In-Transit L/C [(I) + (II) + (III) + (IV)]
(bb) Cap of $30M
(iii) The lesser of (aa) or (bb)
(y) Sum of Eligible Landed Inventory, In-Transit and In-Transit L/C [(I) + (II) + (III)]
Eligible Inventory (Elig.Landed + Elig.In-Transit + Elig. In-Transit L/C) of Lerner and Lernco
Net Recovery Percentage of Lerner and Lernco (2)
Net Recovery Value of Lerner and Lernco Inventory
92.5% of Net Recovery Value of Lerner and Lernco (90.0% in Non-Seasonal Advance Period) (7) [87.5%/85% so long as Existing Term Loan is outstanding]
Eligible Inventory (Elig.Landed + Elig.In-Transit + Elig. In-Transit L/C) of Jasmine
Net Recovery Percentage of Jasmine (2)
Net Recovery Value of Jasmine Inventory
90% of Net Recovery Value of Jasmine (7) [85% so long as Existing Term Loan is outstanding]
(z) Sum of Net Recovery Values of Lerner, Larnco and Jasmine
(a) Inventory Loan Limit
(b) The lesser of (y) or (z)
C. The lesser of (a) or (b)
Lerner New York, Inc, Lernco, Inc, and Jasmine Company, Inc
Second Amended and Restated Loan and Security Agreement - Borrowing Base Calculation under Section 7.1(a)(i)(C)
June 2007 (Balances as of 7/7/2007) = SEASONAL ADVANCE PERIOD
Cash Collateral Account
D. |
100% of Eligible Cash Collateral |
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(a) |
the lesser of either the Base for Collateral or the Revolving Loan Limit |
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(I) |
Base for Collateral (A+B+C+D) |
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(II) |
Revolving Loan Limit |
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Borrowing Base before Reserves (The lesser of I or II) |
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L/C Face Value |
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Reserve % |
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Reserve $ |
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(b) |
Minus the sum of the Reserves: |
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(a) Collateral Reserve (3) |
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Gift Certificate and Store Credit Reserve |
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Gift Cards Liability (less gift card breakage reserve) |
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Paper Gift Certificates and Store Credit Liability |
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Total Gift Certificates and Store Credit |
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(b) Gift Certificate and Store Credit Reserve: 51% of outstanding Gift Certificates and Store Credit |
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(c) Reserve for sales, excise or similar taxes past due, not being contested and not subject to liens |
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L/C Face Value |
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Reserve Rate |
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Reserve $ |
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Letters of Credit Accommodations and Revolving Loans attributed to Eligible Inventory: |
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L/Cs on Eligible In-Transit Inventory (100%) |
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L/Cs on Eligible Landed Inventory (100%) |
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L/Cs for Goods In Progress (20%/25% in NonSeas.Adv.Period, 100% if Non L/C Res. of 80%/75% > cap of $20M) (4) |
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L/Cs for Other than Inventory (100%) |
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Total Letter of Credit Accommodations |
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(d) Reserve for Letter of Credit Accommodations and Revolving Loans attributed to Eligible Inventory |
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(e) Reserve for payments owed by Borrower in bailees, custom brokers or freight forwarders (not to exceed $1M on Merchandise L/Cs) |
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Reserve for freight, customs, taxes and duty and other amounts in connection with Eligible Inventory (5): |
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Reserve for freight |
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L/Cs on Eligible In-Transit Inventory (at 7.54%) |
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L/Cs on Eligible Landed Inventory (at 7.54%) |
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L/Cs for Goods in Progress (at 7.54%) |
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Total Letter of Credit Accommodations |
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Total Reserve for freight |
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Reserve for taxes & other amounts |
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L/Cs on Eligible In-Transit Inventory (at 5.04%) |
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L/Cs on Eligible Landed Inventory (at 5.04%) |
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L/C for Goods in Progress (at 5.04%) |
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Total Letter of Credit Accommodations |
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Total Reserve for taxes & other amounts |
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Reserve for customs & duty |
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L/Cs on Eligible In-Transit Inventory (at 17.39%) |
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L/Cs on Eligible Landed Inventory (at 17.39%) |
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L/C for Goods in Progress (at 17.39%) |
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Total Letter of Credit Accommodations |
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Sum of Reserve for customs & duty on L/Cs |
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Offset of $2M Customs Standby L/C (6) |
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Total Reserve for customs & duty |
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(f) Reserve for freight, customs, taxes and duty and other amounts in connection with Eligible Inventory |
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(g) Reserve upon Event of Default or if Borrowers Compliance Excess Availability is less than $10M, for Service Costs owed to Limited Brands |
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Total Reserves |
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Borrowing Base |
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Footnotes
(1) |
Eligible In-Transit Inventory excludes Domestic In-Transit Inventory in-transit more than 14 days and all other in-transit inventory in-transit more than 75 days. |
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Eligible In-Transit inventory is on a Landed Duties Paid basis vs. Letters of Credits for purchase of Eligible Inventory which reflects only First Cost. |
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L/C Face Value is determined as 23.24% less than the Landed Cost vs. Eligible In-Transit Inventory is 30.28% above the L/C Face Value |
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(2) |
Per GB Asset Advisors, LLC, the most recent inventory valuation report as of February 3, 2007 estimates Net Recovery Percentage at 94.0 Lerner/Lernco and 80.5 for Jasmine%. |
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(3) |
3 months rent reserve for States with priority landlord liens. Based on straight line minimum rent, plus percent rent and excess rent for the month. The stores included in the rent reserve are in accordance with individual state statutory landlord lien laws. |
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(4) |
Reserve rate for L/C Accommodations determined as the inverse of the advance rate. |
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(5) |
Starting in March 2007, the reserve for freight, customs, taxes and duty and other amounts on L/C Value are calculated based on rates established from 2006 fees. |
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(6) |
The Surety L/C is used to offset reserves for customs and duty as it represents a $2M Surety Bond by Letter of Credit to cover all payments to Customs of customs & duty. |
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(7) |
Rate reflects a 5% reduction so long as the the existing term loan obligation is outstanding per section 1.20 of the Second Amended & Restated Loan and Security Agreement. |
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(8) |
As to Jasmine, in no event will the amount of Revolving Loans available exceed $7,500,000; provided, that if, Jasmine delivers an opinion of Massachusetts counsel, in form and substance acceptable to Agent, with respect to such matters as Agent may reasonably require, such $7,500,000 sublimit shall no longer be effective. |
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As of the date of this Certificate, no Event of Default exists or has occurred and is continuing. Borrower acknowledges that the Loans and Letter of Credit Accommodations by Lender to Borrower are based upon Lenders reliance on the information contained herein and all representations and warranties with respect to Accounts and Inventory in the Loan Agreement are applicable to the Accounts and Inventory included in this Certificate. The reliance by Lender on this Certificate should not be deemed to limit the right of Lender to establish or revise criteria of eligibility or Availability Reserves or otherwise limit, impair, or affect in any manner the rights of Lender under the Loan Agreement. In the event of any conflict between the determination of Lender of the amount of the Loans and Letter of Credit Accommodations available to Borrower in accordance with the terms of the Loan Agreement and the determination by Borrower of such amounts, the determination of the Lender shall govern. All capitalized terms used in this Certificates shall have the meaning assigned to them in the Loan Agreement.
Prepared by: |
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Certified by: |
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Name |
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Name |
mm/dd/yyyy |
Senior Banking Analyst |
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Senior Vice President and Chief Accounting Officer |
Lerner New York, Inc, Lernco, Inc and Jasmine Company, Inc.
Second Amended and Restated Loan and Security Agreement - Compliance & Excess Availability
June 2007 (Balances as of 7/7/2007) = SEASONAL ADVANCE PERIOD
Borrowing Base
Compliance Excess Availability - Section 1.36
Shall mean the amount, as determined by Agent, calculated at any date, equal to:
(a) the lesser of:
(i) the sum of:
Borrowing Base
Add back: Total LC Reserve
Borrowing Base without Reserves established in respect of Letter of Credit Accommodations
(ii) Revolving Loan Limit
The lesser of (i) and (ii)
(b) minus the sum of:
(i) Amount of all then outstanding and unpaid Obligations (not including the then outstanding) Letter of Credit Accommodations), which may be a credit balance for overpayment of Obligations (1)
(ii) L/C Reserve Amount
The sum of (i)+(ii)
Compliance Excess Availability
Cash Balance
Revolving Loan outstanding
If Cash Balance exceeds $50M and the Revolving Loan outstanding is less than $10M, then the Compliance Excess Availability Limit is $10M pursuant to Section 1.13
Compliance Excess Availability Limit
Compliance Excess Availability Variance vs. Compliance Excess Availability Limit
Total Excess Availability - Section 1.67
Shall mean the amount, as determined by Agent, calculated at any date, equal to:
(a) Borrowing Base without Reserves established in respect of Letter of Credit Accommodations
minus the sum of:
(i) Amount of all then outstanding and unpaid Obligations (not including the then outstanding Letter of Credit Accommodations), which may be a credit balance for overpayment of Obligations (1)
(ii) L/C Reserve Amount
(iii) Aggregate of outstanding and unpaid trade payables and other obligations outstanding more than 45 days past due excluding trade payables or obligations being contested or disputed by Borrower in good faith
(iv) Checks issued by Borrower to pay trade payables and other obligations which are more than 45 days past due excluding trade payables or obligations being contested or disputed
(b) The sum of (i)+(ii)+(iii)+(iv)
Total Excess Availability
Excess Availability Limit - Section 9.17
Excess Availability Variance vs. Excess Availability Limit
Limit for outstanding Letter of Credit Accommodations - Section 1.112 and 2.2(e)
Shall mean that except with the consent of all lenders, the amount shall not exceed:
(a) Outstanding Letter of Credit Accommodations
(b) Sub limit for outstanding Letter of Credit Accommodations
Variance of Outstanding Letter of Credit Accommodations vs. Sub limit
Amount exceeding Sub limit for outstanding Letter of Credit Accommodations
(a) Outstanding Letter of Credit Accommodations for Goods in Progress Inventory not consisting of finished goods after giving effect to the Reserves is not to exceed $20M
(b) Sub limit for outstanding Letter of Credit Accommodations
Variance of Outstanding Letter of Credit Accommodations vs. Sub limit
Amount exceeding Sub limit for outstanding Letter of Credit Accommodations not on finished goods
Footnotes
None
Lerner New York, Inc, Lernco, Inc and Jasmine Company, Inc.
Second Amended and Restated Loan and Security Agreement - Credit Facilities on Revolving Loans
June 2007 (Balances as of 7/7/2007) = SEASONAL ADVANCE PERIOD
Borrowing Base
Revolving Loans - Section 2.1(a)
Each Lender severally agrees to fund its Pro Rata Share of Revolving Loans to Borrower from time to time in amounts requested by Borrower up to the amount at any time equal to the Borrowing Base.
Loans - Section 2.1(c)
Except with the consent of all Lenders.
(i) Aggregate amount of Loans outstanding at any time shall not exceed the Maximum Credit
Revolving Loan outstanding
Letter of Credit Accommodations outstanding
Existing Term Loan outstanding
Aggregate amount of Loans outstanding
Maximum Credit
Aggregate (i) amount exceeding Maximum Credit:
(ii) Aggregate principal amount of the Revolving Loans and Letter of Credit Accommodations outstanding at any time shall not exceed the Borrowing Base
Revolving Loan outstanding
Letter of Credit Accommodations outstanding
(a) Aggregate amount of the Revolving Loans and Letter of Credit Accommodations outstanding
(b) Borrowing Base
Aggregate amount (ii) exceeding the Borrowing Base:
(iii) Aggregate principal amount of the Revolving Loans based on Eligible Inventory shall not exceed the Inventory Loan Limit
Revolving Loans based on Eligible Inventory
Inventory Loan Limit
Aggregate amount (iii) exceeding Inventory Loan Limit:
Sub Limit for outstanding Letter of Credit Accommodations - Section 2.2(e)
Shall mean that except with the consent of all Lenders, the amount shall not exceed the sub limit:
Aggregate amount of outstanding Letter of Credit Accommodations
Sub limit of Letter of Credit Accommodations as set forth in Section 2.2(e)
Aggregate amount of outstanding Letter of Credit Accommodations exceeding Sub Limit:
Revolving Loans - Section 2.1(d)
In the event that any of the cases as outlined in Section 2.1(c) or Section 2.2(e), such event shall not limit, waive or otherwise affect any rights of Agent or Lenders in such circumstances or on any future occasions and Borrower shall immediately repay to Agent the entire amount of any such excesses.
Section 2.1(c )(i)
Aggregate amount of Loans outstanding exceeding Maximum Credit:
Section 2.1(c)(ii)
Aggregate principal amount of the Revolving Loans and Letter of Credit Accommodations outstanding exceeding the Borrowing Base
Section 2.1(c)(iii)
Aggregate principal amount of the Revolving Loans based on Eligible Inventory exceeding Inventory Loan Limit:
Section 2.2(e)
Aggregate amount of outstanding Letter of Credit Accommodations exceeding Sub Limit:
Amount of Excesses to repay to Agent
Lerner New York, Inc.
Second Amended and Restated Loan and Security Agreement
Financial Covenants pursuant to Sections 9.17 and 9.18
June 2007
(in millions)
Minimum Excess Availability - Section 9.17
Excess Availability at July 7, 2007
Minimum requirement pursuant to Section 9.17
Amount in excess of Minimum Requirement pursuant to Section 9.17
Financial Covenants - Section 9.18
Pursuant to Section 9.18(a), until such time as the Existing Term Loan and all Obligations related thereto are indefeasibly paid and satisfied full in immediately available funds in accordance with the terms of the Second Amended and Restated Loan and Security Agreement:
(i) If the sum of Excess Availability plus Qualified Cash is greater than $30,000,000, (A) Borrowers shall be required to maintain a Leverage Ratio of not greater than 2.75 to 1.00 when measured as of each Fiscal Quarter End; and (B) Borrowers shall be required to maintain a Fixed Charge Coverage Ratio of not less than 1.0 to 1.0 calculated on a trailing twelve month basis when measured as of each Fiscal Quarter End.
(ii) If the sum of Excess Availability plus Qualified Cash is equal to or less than $30,000,000, then the aforementioned ratios must be maintained monthly.
Leverage Ratio calculated pursuant to Section 1.123: |
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Principal of Revolving Loan |
L/C Accommodations |
Existing Term Loan |
Other Indebtedness |
Total Indebtedness |
EBITDA For Measurement Period (1)(2) |
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Leverage Ratio not to exceed |
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Total Leverage Ratio at July 7, 2007 |
Fixed Charge Coverage Ratio pursuant to Sections 1.81 and 1.82: |
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Cash Interest Expense, net of interest income |
Required Principal on Existing Term Loan |
Required Principal on Capital Leases |
Income Taxes Paid |
Capital Expenditures, net of tenant allowances |
Total Fixed Charges |
(A) EBITDA For Measurement Period (1)(2) |
(B) Plus: Qualifed Cash |
(i) Sum of (A) and (B) |
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Fixed Charge Coverage Ratio not less than |
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Total Fixed Charge Coverage Ratio at July 7, 2007 |
Pursuant to section 9.18(b), upon the indefeasible payment and satisfaction in full of the Existing Term Loan and all Obligations related thereto in immediately available funds, in accordance with the terms of the Agreement, as of the end of any fiscal month of the Borrowers the average amount of Borrowers Excess Availability is less than $10,000,000, Borrowers shall be required to maintain a Fixed Charge Coverage Ratio of not less than 1.00 to 1.00 calculated on a trailing twelve (12) month basis when measured as of the end of each fiscal month.
Excess Availability at July 7, 2007
Excess Availability minimum requirement pursuant to Section 9.18(b)
Amount in excess of Minimum Requirement pursuant to Section 9.18(b)
(1) EBITDA calculated in accordance with the definition of EBITDA pursuant to Section 1.49 and Schedule 1.49(a) of the Second Amended and Restated Loan and Security Agreement.
(2) Measurement Period as defined in Section 1.130 of the Second Amended and Restated Loan and Security Agreement for the purposes of this calculation is the twelve months ended July 7, 2007 taken as a single accounting period.
Lerner New York, Inc.
Second Amended and Restated Loan and Security Agreement
Financial Covenants pursuant to Section 2.3
June 2007
(in millions)
Optional Prepayment Compliance: Excess Availability - 2.3(d)(i)(A)
Excess Availability at July 7, 2007
Qualifed Cash at July 7, 2007
Borrowers Excess Availability plus Qualified Cash
Minimum requirement pursuant to Section 2.3(d)(i)(A)
Amount in excess of Minimum Requirement pursuant to Section 2.3(d)(i)(A) (3)
Optional Prepayment Compliance: Minimum EBITDA - 2.3(d)(i)(B)
EBITDA For Measurement Period (1)(2)
Minimum EBITDA Requirement
Amount in excess of Minimum Requirement pursuant to Section 2.3(d)(i)(B)
Mandatory Prepayment Compliance: Excess Availability - Section 2.3(g)(i)
Excess Availability at July 7, 2007
Qualified Cash at July 7, 2007
Borrowers Excess Availability plus Qualified Cash
Minimum requirement pursuant to Section 2.3(g)(i)
Amount in excess of Minimum Requirement pursuant to Section 2.3(g)(i)
Mandatory Prepayment Compliance: Minimum EBITDA - Section 2.3(g)(ii)
EBITDA For Measurement Period (1)(2)
Minimum EBITDA Requirement
Amount in excess of Minimum Requirement pursuant to Section 2.3(g)(ii)
(1) EBITDA calculated in accordance with the definition of EBITDA pursuant to Section 1.49 and Schedule 1.49(a) of the Second Amended and Restated Loan and Security Agreement.
(2) Measurement Period as defined in Section 1.130 of the Second Amended and Restated Loan and Security Agreement for the purposes of this calculation is the twelve months ended July 7, 2007 taken as a single accounting period.
(3) Section 2.3(d)(i)(A) requires any contemplated payment of the Existing Term Loan to be deducted from the Borrowers Excess Availability in order to test for the $40,000,000 minimum requirement.
EXHIBIT C
TO
SECOND AMENDED AND RESTATED LOAN AND SECURITY AGREEMENT
Form of Compliance Certificate
COMPLIANCE CERTIFICATE
To
Wachovia Bank, National Association
1133 Avenue of the Americas
New York, New York 10036
Ladies and Gentlemen:
Each of the undersigned hereby certifies to you pursuant to Section of the Loan Agreement (as defined below) as follows:
1. HE/SHE IS THE DULY ELECTED CHIEF FINANCIAL OFFICER OF EACH BORROWER (AS DEFINED BELOW) WITH RESPECT TO WHICH SUCH PERSON HAS EXECUTED THIS DOCUMENT. CAPITALIZED TERMS USED HEREIN WITHOUT DEFINITION SHALL HAVE THE MEANINGS GIVEN TO SUCH TERMS IN THE SECOND AMENDED AND RESTATED LOAN AND SECURITY AGREEMENT, DATED AUGUST , 2007 (AS THE NOW EXISTS OR MAY HEREAFTER BE AMENDED, MODIFIED, SUPPLEMENTED, EXTENDED, RENEWED, RESTATED OR REPLACED, THE LOAN AGREEMENT ), BY AND AMONG WACHOVIA BANK, NATIONAL ASSOCIATION, AS ARRANGER, WACHOVIA BANK, NATIONAL ASSOCIATION AS AGENT FOR THE PERSONS PARTY THERETO AS LENDERS (IN SUCH CAPACITY, AGENT ), LASALLE RETAIL FINANCE, A DIVISION OF LASALLE BUSINESS CREDIT, LLC, AS AGENT FOR LASALLE BANK MIDWEST, NATIONAL ASSOCIATION, AS DOCUMENTATION AGENT, THE PERSONS PARTY THERETO AS LENDERS (COLLECTIVELY, LENDERS ), LERNER NEW YORK, INC. ( LERNER ), LERNCO, INC. ( LERNCO ), AND JASMINE COMPANY, INC. ( JASMINE AND TOGETHER WITH LERNER, BORROWERS AND INDIVIDUALLY EACH A BORROWER ).
2. He/She has reviewed the terms of the Loan Agreement, and has made, or has caused to be made under his/her supervision, a review in reasonable detail of the transactions and the financial condition of Borrowers and their Subsidiaries, during the immediately preceding fiscal month.
3. The review described in Section 2 above did not disclose the existence during or at the end of such fiscal month, and he/she has no knowledge of the existence and continuance on the date hereof, of any condition or event which constitutes a Default or an Event of Default, except as set forth on Schedule I attached hereto. Described on Schedule I attached hereto are
the exceptions, if any, to this Section 3 listing, in detail, the nature of the condition or event, the period during which it has existed and the action which Borrowers or any Obligor has taken, is taking, or proposes to take with respect to such condition or event.
4. He/She further certifies that, based on the review described in Section 2 above, no Borrower or Guarantor has at any time during or at the end of such fiscal month, except as specifically described on Schedule II attached hereto or as permitted by the Loan Agreement, done any of the following:
(a) Changed its corporate name, or transacted business under any trade name, style, or fictitious name, other than those previously described to you and set forth in the Financing Agreements.
(b) Changed the location of its chief executive office, changed its jurisdiction of incorporation, changed its type of organization or changed the location of or disposed of any of its properties or assets (other than pursuant to the sale of Inventory in the ordinary course of its business or as otherwise permitted by Section of the Loan Agreement), or established any new asset locations.
(c) Materially changed the terms upon which it sells goods (including sales on consignment) or provides services, nor has any vendor or trade supplier to any Borrower or any Guarantor during or at the end of such period materially adversely changed the terms upon which it supplies goods to such Borrower or such Guarantor.
(d) Permitted or suffered to exist any security interest in or liens on any of its properties, whether real or personal, other than as specifically permitted in the Financing Agreements.
(e) Received any notice of, or obtained knowledge of any of the following not previously disclosed to Agent: (i) the occurrence of any event involving the release, spill or discharge of any Hazardous Material in violation of applicable Environmental Law in a material respect or (ii) any investigation, proceeding, complaint, order, directive, claims, citation or notice with respect to: (A) any non-compliance with or violation of any applicable Environmental Law by any Borrower or any Guarantor in any material respect or (B) the release, spill or discharge of any Hazardous Material in violation of applicable Environmental Law in a material respect or (C) the generation, use, storage, treatment, transportation, manufacture, handling, production or disposal of any Hazardous Materials in violation of applicable Environmental Laws in a material respect or (D) any other environmental, health or safety matter, which has a material adverse effect on any Borrower or any Guarantor or its business, operations or assets or any properties at which such Borrower or such Guarantor transported, stored or disposed of any Hazardous Materials.
(f) Become aware of, obtained knowledge of, or received notification of, any breach or violation of any material covenant contained in any instrument or agreement in respect of Indebtedness for money borrowed by any Borrower or any Guarantor.
5. Attached hereto as Schedule III are the calculations used in determining, as of the end of such fiscal month whether Borrowers are in compliance with the covenants set forth in
The foregoing certifications are made and delivered this day of , 20 .
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Very truly yours, |
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LERNER NEW YORK, INC. |
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By: |
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Title: Chief Financial Officer |
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LERNCO, INC. |
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By: |
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Title: Chief Financial Officer |
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JASMINE COMPANY, INC. |
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By: |
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Title: Chief Financial Officer |
EXHIBIT D
TO
SECOND AMENDED AND RESTATED LOAN AND SECURITY AGREEMENT
Information Certificates
See Attached.
INFORMATION CERTIFICATE
OF
LERNER NEW YORK, INC.
Dated: August 22, 2007
Wachovia Bank, National Association, as Agent
1133 Avenue of the Americas
New York, NY 10036
In order to assist you in the evaluation of the financing you are considering of Lerner New York, Inc. (the Company ), pursuant to the Second Amended and Restated Loan and Security Agreement, dated of even date herewith, Wachovia Bank, National Association, as Agent (in such capacity Agent or you), for the persons thereto as Lenders (collectively Lenders or you), the Company certain affiliates of the Company (as the same now exists or may hereafter be amended, modified, supplemented, renewed, restated or registered, the Loan Agreement), to expedite the preparation of required documentation, and to induce you to provide financing to the Company, we represent and warrant to you and the Lenders the following information about the Company, its organizational structure and other matters of interest to you:
1. |
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The Company has been formed by filing the following document with the Secretary of State of the Delaware: |
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Certificate/Articles of Incorporation |
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Certificate/Articles of Organization |
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Other [specify] |
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The date of formation of the Company by the filing of the document specified above with the Secretary of State was March 1, 1985. |
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The Company was not formed by filing a document with any Secretary of State. The Company is organized as a [specify type of organization, (e.g., general partnership, sole proprietorship, etc.)] . The Companys governing document is a [name legal document, if one exists, (e.g., partnership agreement, etc.) Not applicable |
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The full and exact name of the Company as set forth in the document specified in Item 1 or 2, or (if no document is specified in Item 1 or 2) the full and exact legal name used in the Companys business, is: |
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Lerner New York, Inc. |
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The Company uses and owns the following trade name(s) in the operation of its business (e.g. billing, advertising, etc.; note: do not include names which are product names only): |
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Lerner New York, New York & Company, Lerner Stores |
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[Check one of the boxes below.] |
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We have attached a blank sample of every invoice that uses a tradename. |
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We do not use any tradename other than the tradenames listed in Item 4 on any invoices. |
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The Company maintains offices, leases or owns real estate, has employees, pays taxes, or otherwise conducts business in the following States (including the State of its organization): |
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See Schedule 5. |
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The Company has filed the necessary documents with the Secretary of State to qualify as a foreign corporation in the following States: |
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See Schedule 6. |
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The Companys authority to do business has been revoked or suspended, or the Company is otherwise not in good standing in the following States: |
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None. |
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The Company and its subsidiaries have all licenses and permits necessary for the operation of the business of the Company, as such business is being operated as of the date hereof. |
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In conducting its business activities, the Company is subject to regulation by federal, state or local agencies or authorities (e.g., FDA, EPA, state or municipal liquor licensing agencies, federal or state carrier commissions, etc.) as follows: |
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Not applicable. |
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The Company has never been involved in a bankruptcy or reorganization except: [explain] |
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None since the Parents purchase of the company in 1985. We have no knowledge of a bankruptcy or reorganization of the Company prior to that time. |
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Between the date the Company was formed and now, the Company has used other names as set forth below: |
Period of Time |
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Prior Name |
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From |
3/1/85 to 4/12/85 |
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Milton Acquisition Corp. |
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4/12/85 to 9/13/90 |
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Lerner Stores, Inc. |
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From to |
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Between the date the Company was formed and now, the Company has made or entered into mergers or acquisitions with other companies as set forth below: |
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Acquired Jasmine Company, Inc. on July 19, 2005. |
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The chief executive office of the Company is located at the street address set forth below, which is in New York County, in the State of New York: |
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450 W. 33 rd St. |
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New York, NY 10001 |
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The books and records of the Company pertaining to accounts, contract rights, inventory, etc. are located at the following street address: |
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450 W. 33 rd St. |
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New York, NY 10001 |
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In addition to the chief executive office, the Company has inventory, equipment or other assets located at the addresses set forth below. In each case, we have noted whether the location is owned, leased or operated by third parties and the names and addresses of any mortgagee, lessor or third party operator: |
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In the course of its business, the Companys inventory and/or other assets are handled by the following customs brokers and/or freight forwarders: |
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Type of Service/Assets Handled |
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See Schedule 16. |
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The places of business or other locations of any assets used by the Company during the last four (4) months other than those listed above are as follows: |
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None. |
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The Company is affiliated with, or has ownership in, the following entities (including subsidiaries): |
Name of Entity |
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Chief Executive Office |
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Jurisdiction of
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Ownership
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New York & Company, Inc. |
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450 West 33
rd
Street
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Delaware |
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Ultimate Parent / 100% |
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Lerner New York Holding, Inc. |
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450 West 33
rd
Street
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Delaware |
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Parent / 100% |
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Lernco, Inc. |
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1105 North Market Street
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Delaware |
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Subsidiary of Parent / 100% |
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Nevada Receivable Factoring, Inc. |
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3800 Howard Hughes
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Nevada |
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Subsidiary of Parent / 100% |
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Associated Lerner Shops of America |
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450 West 33r
d
Street
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New York |
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Subsidiary / 100% |
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Lerner New York GC, LLC |
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10 West Broad Street,
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Ohio |
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Subsidiary / 100% |
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Jasmine Company, Inc. |
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450 W. 33rd St. - 5th Floor
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Massachusetts |
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Subsidiary / 100% |
19. |
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The Federal Employer Identification Number of the Company is 13-3262137 |
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Under the Companys charter documents, and under the laws of the State in which the Company is organized, the shareholders, members or other equity holders do not have to consent in order for the Company to borrow money, incur debt or obligations, pledge or mortgage the property of the Company, grant a security interest in the property of the Company or guaranty the debt of obligations of another person or entity. |
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x True |
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Incorrect [explain]: |
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The power to take the foregoing actions is vested exclusively in the Board of Directors. |
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The officers of the Company (or people performing similar functions) and their respective titles are as follows: |
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Title |
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Name |
Richard P. Crystal |
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Chairman and CEO |
Ronald W. Ristau |
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President, CFO and Secretary |
Sandra Brooslin Viviano |
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Executive Vice President Human Resources |
John DeWolf |
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Executive Vice President Real Estate |
Steven Ellis |
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Executive Vice President Planning & |
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Allocation and Assistant Secretary |
Kevin Finnegan |
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Executive Vice President National Sales Leader |
William Voit |
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Executive Vice President Chief Information Officer |
Sheamus Toal |
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Senior Vice President, Chief Accounting Officer and Treasurer |
The following people will have signatory powers as to all your of transactions with the Company:
The Officers authorized in the Companys Board of Director resolutions
22. With respect to the officers noted above, such officers are affiliated with and hold a 5% or more beneficial ownership in the following corporations (indicate name and address of affiliated companies, type of operations, ownership percentage or other relationship):
None.
23. The Company is governed by the Board of Directors. The members of such governing body of the Company are:
Richard P. Crystal, Ronald W. Ristau, John D. Howard, Bodil M. Arlander, Philip M. Carpenter III, David H. Edwab, Louis Lipschitz, Edward W. Moneypenny, Arthur E. Reiner, Richard L. Perkal, Pamela Grunder Sheiffer
24. The name of the stockholders, members, partners or other equity holders of the Company and their equity holdings are as follows (if equity interests are widely held indicate only equity owners with 10% or more of the equity interests):
Name |
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No. of Shares or Units |
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Ownership Percentage |
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Lerner New York Holding, Inc. |
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100 Common Shares |
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100 |
% |
25. There are no judgments or litigation pending by or against the Company, its subsidiaries and/or affiliates or any of its officers/principals, except as follows:
See Schedule 25.
26. At the present time, there are no delinquent taxes due (including, but not limited to, all payroll taxes, personal property taxes, real estate taxes or income taxes) except as follows:
None.
27. The Companys assets are owned and held free and clear of any security interests, liens or attachments, except as follows:
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Amount of Debt |
Lienholder |
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Assets Pledged |
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Secured |
As set forth in Schedule 27. |
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28. The Company has not guaranteed and is not otherwise liable for the obligations of others, except as follows:
None.
29. The Company does not own or license any trademarks, patents, copyrights or other intellectual property, except as follows (indicate type of intellectual property and whether owned or licensed, registration number, date of registration, and, if licensed, the name and address of the licensor):
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Registration |
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Name and Address |
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Number and Date of |
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Owned or |
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Registration |
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Licensed |
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Licensor |
See Schedule 29. |
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30. The Company owns or uses the following materials (e.g., software, film footage, scripts, etc.) that are subject to registration with the United States Copyright Office, though at present copyright registrations have not been filed with respect to such materials:
None.
31. The Company does not have any deposit or investment accounts with any bank, savings and loan or other financial institution, except as follows, for the purposes and of the types indicated:
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Contact Person and |
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Bank Name and Branch Address |
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Phone Number |
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Account No. |
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Purpose/Type |
See Schedule 31 |
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32. The Company has no processing arrangements for credit card payments or payments made by check (e.g. Telecheck) except as follows:
Bank Name and Branch
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Contact Person and Phone Number |
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Account No. |
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Chase |
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ADS |
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AMEX |
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Discover |
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SOLUTRAN |
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Telecheck |
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Check Plus |
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SVS |
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33. The Company owns or has registered to it the following motor vehicles, the original title certificates for which shall be delivered to Lender prior to closing: None.
34. With regard to any pension or profit sharing plan:
35. The Companys fiscal year is a 52 or 53 week year that ends on the Saturday closest to January 31. The results for fiscal year 2006 represents the fifty-three week period ending February 3, 2007. The results for fiscal years 2005, 2004, 2003 and 2002 represents the fifty-two week period ending January 28, 2006, January 29, 2005, January 31, 2004 and February 1, 2003, respectively.
36. Certified Public Accountants for the Company is the firm of:
Name: |
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Ernst & Young |
Address: |
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5 Times Square |
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New York, NY 10036-6530 |
Telephone: |
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(212) 773-1181 |
Facsimile: |
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(212) 773-1275 |
E-Mail: |
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carmine.romano@ey.com |
Partner Handling Relationship: |
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Carmine Romano |
Were statements uncertified for any fiscal year? |
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Statements for year end 2006
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37. The Companys counsel with respect to the proposed loan transaction is the firm of:
Name: |
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Kirkland & Ellis |
Address: |
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Citigroup Center |
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153 East 53 rd Street |
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New York, NY 10022 |
Telephone: |
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(212) 446-4800 |
Facsimile: |
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(212) 446-4900 |
Facsimile: |
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(212) 446-4900 |
E-Mail: |
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medsall@kirkland.com |
Partner Handling Relationship: |
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Michael Edsall |
38. The Companys counsel with respect to matters other than the proposed loan transaction, if different, is the firm of:
Name: |
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Same as above |
Address: |
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Telephone: |
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Facsimile: |
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E-Mail: |
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Partner Handling Relationship: |
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We agree to give you prompt written notice of any change or amendment with respect to any of the foregoing information. Until you receive such notice, you will be entitled to rely in all respects on the foregoing information.
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Very truly yours, |
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LERNER NEW YORK, INC |
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By: |
/s/ Ronald W. Ristau |
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Title: |
President, Chief Financial Officer and Secretary |
SCHEDULE 5
Alabama
Arizona
Arkansas
California
Colorado
Connecticut
Delaware
District of Columbia
Florida
Georgia
Idaho
Illinois
Indiana
Iowa
Kansas
Kentucky
Louisiana
Maine
Maryland
Massachusetts
Michigan
Minnesota
Mississippi
Missouri
Nebraska
Nevada
New Hampshire
New Jersey
New Mexico
New York
North Carolina
Ohio
Oklahoma
Pennsylvania
Rhode Island
South Carolina
South Dakota
Tennessee
Texas
Utah
Vermont
Virginia
Washington
SCHEDULE 6
Alabama
Arizona
Arkansas
California
Colorado
Connecticut
Delaware
District of Columbia
Florida
Georgia
Idaho
Illinois
Indiana
Iowa
Kansas
Kentucky
Louisiana
Maine
Maryland
Massachusetts
Michigan
Minnesota
Mississippi
Missouri
Nebraska
Nevada
New Hampshire
New Jersey
New Mexico
New York
North Carolina
Ohio
Oklahoma
Pennsylvania
Rhode Island
South Carolina
South Dakota
Tennessee
Texas
Utah
Vermont
Virginia
Washington
West Virginia
SCHEDULE 16
AS OF 8/2/07
1. Custom Brokers
a) Barthco
COLUMBUS OFFICE
6431 Alum Creek Drive
Suite H
Groveport, OH 43125
Phone: 614-409-9460 Fax: 614-409-9540
CHICAGO OFFICE
1255-1285 Mark Street
Bensenville, IL 60106
Phone: 630-694-1250 Fax: 630-694-1407
NEW YORK OFFICE
JFK International Airport
390 Franklin Avenue
Franklin Square, NY 11010
Phone: 516-616-2900 Fax: 516-616-2999
MIAMI OFFICE
1825 NW 87 Ave
Miami, FL 33172
Phone: 305-471-0071 Fax: 305-471-1161
SEATTLE OFFICE
18900 8 th Avenue South
Suite 400
SeaTac, WA 98148
Phone: 206-243-4004 Fax: 206-244-0378
b) Exel Global Logistics
COLUMBUS OFFICE
2144A John Glenn Avenue
Columbus, OH- 43217
Phone: 614-409-4500 Fax: 614-409-2701
CHICAGO OFICE
90 Division Street, Suite 105
Bensenville
Illinois 60106
Phone: 630-616-6800 Fax: 630-595-2239
2. Freight Forwarders - OCEAN CARRIERS
a) Maersk Line
Elizabeth Hassert
Strategic Account Manager
Maersk, Inc.
2021 Spring Road Suite 500 Oak Brook, IL 60523-1859
PH: 630-645-3622
FX: 630-645-3667
b) Mitsui
Stephen J. Schoenhaus
Senior VP
Mitsui OSK Lines (America), Inc.
188 Industrial Drive
Suite 300
Elmhurst, IL 60126
PH: 630-592-7031
FX: 630-592-7402
c) P&O Nedlloyd (acquired by Maersk in 2004)
Chris Dombalis
Senior Vice President
Sales and Marketing, North America
P&O Nedlloyd Limited
One Meadowlands Plaza
East Rutherford, NJ 07073
PH: 201-896-6769
FX 201-896-6371
d) APL
Ann Hasse
Law Dept
111 Broadway
Oakland, CA 94607
PH: 510-272-7284
FX: 510-272-8932
e) NYK Lines
Gary Garback
NYK Line (North America) Inc.
377 East Butterfield Road
Fifth Floor
Lombard, IL 60148
PH: 630-435-7803
FX: 630-435-3100
f) APL-Logistics (ocean consolidator)
Ann Hasse
Law Dept
APL-Logistics
1111 Broadway
Oakland, CA 94607
PH: 510-272-7284
FX: 510-272-8932
3. Freight Forwarders - AIRFREIGHT FORWARDERS
a) Morrison Express
Doug Haring
Vice President
USA Sales and marketing
Morrison Express Corp (USA)
2000 Hughes Way
El Segundo, CA 90245
PH: 310-322-8999 ext 230
FX: 310-322-6688
b) BAX Global
Brady Borycki
BAX Global
11101 Metro Airport Center Drive Ste. 108
Romulus, MI 48174
PH: 734-229-3349
FX: 734-955-2010
c) STAR Trans International Ltd
Anthony Chan
Star Airfreight Co. Ltd
149-35 177th Street
Jamaica, New York 11434
PH: 718-656 5360
FX: 718-656 2597
d) EGL United States
Eagle Global Logistics
Attn: Ron Scott
6700 Port Road
Groveport, Ohio 43125
PH: 614-489-5177
FX: 614-489-5171
e) FedEX Corporation
942 South Shady Grove Road
Memphis, TN 38120
PH: 901-369-3600
f) Panalpina
950 Tower Lane, Suite 1600
Foster City, CA 94404
PH: 650-653-6600
FX: 650-653-6735
Email: info.noram@panalpina.com
g) Sovereign
4348 Albany Post Road
Hyde Park, NY 12538
PH: 845-229-8808
FX: 845-229-8828
h) Expo
29, Josier Street, Nungambakkam,
Chennai 600 034
PH: + 91 44 28223458
FX: + 91 44 28223463
Email: cs@expofreight.com
i) Speedmark
1525 Adrian Road,
Burlingame, CA 94010
PH: 650-652-0288
FX: 650-652-0290
Email: info.uac@speedmark.com
j) Expeditors
1015 Third Avenue, 12 th Floor
Seattle, WA 98104
PH: 206-674-3400
4. E-Commerce Warehouse
a) Accretive Commerce
Keith Bolt
EVP-CFO
13801 W. Rees Blvd
SCHEDULE 25
Litigation
ASSOCIATE
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TYPE OF ACTION
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DESCRIPTION |
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DATE
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CURRENT STATUS |
ACTIVE CASES |
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The litigation set forth on this Schedule is disclosed for informational purposes and none of such litigation individually or in total if adversely determined against any Borrower or Guarantor would have or could reasonably be expected to have a Material Adverse Effect.
SCHEDULE 27
Permitted Liens
JURISDICTION |
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DEBTOR |
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SECURED PARTY |
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DATE
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FILE NO. |
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DESCRIPTIO N |
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SOS, New York |
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Lerner New York, Inc.
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Copelco Capital Inc.
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5/19/99 |
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100173 |
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Canon Copier System |
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NY County, NY |
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Lerner New York, Inc.
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Copelco Capital Inc.
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5/20/99 |
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99PN27407 |
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Canon Copier System |
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SOS, Delaware |
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Lerner New York, Inc.
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Lerner New York GC, LLC
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2/6/02 |
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2054463 9 |
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Consigned gift certificates and cards, merchandise credit certificates and cards |
Trademarks
TM Rights (Grouped by country) |
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Report Date: 8/23/2007 |
TM Rights (Grouped by country) |
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Report Date: 8/23/2007 |
Country: |
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Guatemala |
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ID |
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Mark |
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Classes |
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Reg. Owner |
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App. # |
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App. Dt |
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Reg. # |
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Reg. Dt |
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Allow. Dt |
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ITU |
12644 |
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CITY CREPE |
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25 |
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Lerner New York, Inc. |
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487-05 |
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1/25/2005 |
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138,693 |
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10/28/2005 |
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No |
12643 |
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CITY SPA |
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25 |
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Lerner New York, Inc. |
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486-05 |
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1/25/2005 |
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138,696 |
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10/28/2005 |
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No |
12007 |
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CITY STRETCH |
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25 |
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Lerner New York, Inc. |
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0320-04 |
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1/20/2004 |
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134,501 |
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2/23/2005 |
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No |
1332 |
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DAVID BENJAMIN |
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25 |
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Lerner Stores, Inc. |
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8/13/1987 |
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55,589 |
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8/12/1988 |
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No |
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Country: |
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Hong Kong |
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ID |
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Mark |
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Classes |
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Reg. Owner |
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App. # |
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App. Dt |
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Reg. # |
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Reg. Dt |
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Allow. Dt |
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ITU |
12698 |
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CITY CREPE |
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25 |
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Lerner New York, Inc. |
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300359811 |
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1/25/2005 |
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300359811 |
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6/15/2005 |
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No |
12697 |
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CITY SPA |
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25 |
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Lerner New York, Inc. |
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300359802 |
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1/25/2005 |
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300359802 |
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6/15/2005 |
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No |
11974 |
|
CITY STRETCH |
|
25 |
|
Lerner New York, Inc. |
|
300135044 |
|
12/30/2003 |
|
300135044 |
|
6/2/2004 |
|
|
|
No |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Country: |
|
Indonesia |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
ID |
|
Mark |
|
Classes |
|
Reg. Owner |
|
App. # |
|
App. Dt |
|
Reg. # |
|
Reg. Dt |
|
Allow. Dt |
|
ITU |
12878 |
|
CITY CREPE |
|
25 |
|
Lerner New York, Inc. |
|
D00-2005-04523-04561 |
|
2/17/2005 |
|
|
|
|
|
|
|
No |
12877 |
|
CITY SPA |
|
25 |
|
Lerner New York, Inc. |
|
D00-2005-04522-04560 |
|
2/17/2005 |
|
|
|
|
|
|
|
No |
12031 |
|
CITY STRETCH |
|
25 |
|
Lerner New York, Inc. |
|
D00-2004-00270-00271 |
|
1/7/2007 |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Country: |
|
Italy |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
ID |
|
Mark |
|
Classes |
|
Reg. Owner |
|
App. # |
|
App. Dt |
|
Reg. # |
|
Reg. Dt |
|
Allow. Dt |
|
ITU |
12667 |
|
CITY CREPE |
|
25 |
|
Lerner New York, Inc. |
|
844,333 |
|
1/21/2005 |
|
844,333 |
|
4/7/2005 |
|
|
|
No |
12676 |
|
CITY SPA |
|
25 |
|
Lerner New York, Inc. |
|
844,334 |
|
1/21/2005 |
|
844,334 |
|
4/7/2005 |
|
|
|
No |
12658 |
|
CITY STRETCH |
|
25 |
|
Lerner New York, Inc. |
|
844,335 |
|
1/21/2005 |
|
844,335 |
|
4/7/2005 |
|
|
|
No |
TM Rights (Grouped by country) |
|
Report Date: 8/23/2007 |
Country: |
|
Japan |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
ID |
|
Mark |
|
Classes |
|
Reg. Owner |
|
App. # |
|
App. Dt |
|
Reg. # |
|
Reg. Dt |
|
Allow. Dt |
|
ITU |
12668 |
|
CITY CREPE |
|
25 |
|
Lerner New York, Inc. |
|
844,333 |
|
1/21/2005 |
|
844,333 |
|
4/7/2005 |
|
|
|
No |
12677 |
|
CITY SPA |
|
25 |
|
Lerner New York, Inc. |
|
844,334 |
|
1/21/2005 |
|
844,334 |
|
4/7/2005 |
|
|
|
No |
12659 |
|
CITY STRETCH |
|
25 |
|
Lerner New York, Inc. |
|
844,335 |
|
1/21/2005 |
|
844,335 |
|
4/7/2005 |
|
|
|
No |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Country: |
|
Macao |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
ID |
|
Mark |
|
Classes |
|
Reg. Owner |
|
App. # |
|
App. Dt |
|
Reg. # |
|
Reg. Dt |
|
Allow. Dt |
|
ITU |
12825 |
|
CITY CREPE |
|
25 |
|
Lerner New York, Inc. |
|
N/16028 |
|
2/7/2005 |
|
N/16028 |
|
6/8/2005 |
|
|
|
No |
12826 |
|
CITY SPA |
|
25 |
|
Lerner New York, Inc. |
|
N/16029 |
|
2/7/2005 |
|
N/16029 |
|
6/8/2005 |
|
|
|
No |
12046 |
|
CITY STRETCH |
|
25 |
|
Lerner New York, Inc. |
|
N/012906 |
|
1/12/2004 |
|
N/012906 |
|
5/11/2004 |
|
|
|
No |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Country: |
|
Mexico |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
ID |
|
Mark |
|
Classes |
|
Reg. Owner |
|
App. # |
|
App. Dt |
|
Reg. # |
|
Reg. Dt |
|
Allow. Dt |
|
ITU |
13251 |
|
CITY CREPE |
|
25 |
|
Lerner New York, Inc. |
|
699,019 |
|
1/27/2005 |
|
|
|
|
|
|
|
No |
13252 |
|
CITY SPA |
|
25 |
|
Lerner New York, Inc. |
|
699,020 |
|
1/27/2005 |
|
875,034 |
|
3/31/2005 |
|
|
|
No |
14907 |
|
CITY STRETCH |
|
25 |
|
Lerner New York, Inc. |
|
851,073 |
|
4/26/2007 |
|
|
|
|
|
|
|
No |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Country: |
|
Nicaragua |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
ID |
|
Mark |
|
Classes |
|
Reg. Owner |
|
App. # |
|
App. Dt |
|
Reg. # |
|
Reg. Dt |
|
Allow. Dt |
|
ITU |
12972 |
|
CITY CREPE |
|
25 |
|
Lerner New York, Inc. |
|
2005/00625 |
|
2/28/2005 |
|
83,715 |
|
10/18/2005 |
|
|
|
No |
12977 |
|
CITY SPA |
|
25 |
|
Lerner New York, Inc. |
|
2005/00627 |
|
2/28/2005 |
|
83,655 |
|
10/18/2005 |
|
|
|
No |
12973 |
|
CITY STRETCH |
|
25 |
|
Lerner New York, Inc. |
|
2005/00626 |
|
2/28/2005 |
|
83,716 |
|
10/18/2005 |
|
|
|
No |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Country: |
|
Panama |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
ID |
|
Mark |
|
Classes |
|
Reg. Owner |
|
App. # |
|
App. Dt |
|
Reg. # |
|
Reg. Dt |
|
Allow. Dt |
|
ITU |
1341 |
|
DAVID BENJAMIN |
|
25 |
|
Lerner Stores, Inc. |
|
|
|
3/13/1987 |
|
43,716 |
|
4/8/1988 |
|
|
|
No |
1340 |
|
DAVID BENJAMIN |
|
18 |
|
Lerner Stores, Inc. |
|
|
|
3/12/1987 |
|
43,704 |
|
4/8/1988 |
|
|
|
No |
1339 |
|
DAVID BENJAMIN |
|
14 |
|
Lerner Stores, Inc. |
|
|
|
3/12/1987 |
|
43,703 |
|
4/8/1988 |
|
|
|
No |
TM Rights (Grouped by country) |
|
Report Date: 8/23/2007 |
Country: |
|
Philippines |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
ID |
|
Mark |
|
Classes |
|
Reg. Owner |
|
App. # |
|
App. Dt |
|
Reg. # |
|
Reg. Dt |
|
Allow. Dt |
|
ITU |
14182 |
|
CITY CREPE |
|
|
|
Lerner New York, Inc. |
|
4-2005-0000999 |
|
2/2/2005 |
|
|
|
|
|
|
|
No |
14920 |
|
CITY SPA |
|
25 |
|
Lerner New York, Inc. |
|
4-2005-000998 |
|
2/2/2005 |
|
4-2005-000998 |
|
4/28/2006 |
|
|
|
No |
12073 |
|
CITY STRETCH |
|
25 |
|
Lerner New York, Inc. |
|
4-2004-000206 |
|
1/9/2004 |
|
4-2004-000206 |
|
3/10/2006 |
|
|
|
No |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Country: |
|
Puerto Rico |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
ID |
|
Mark |
|
Classes |
|
Reg. Owner |
|
App. # |
|
App. Dt |
|
Reg. # |
|
Reg. Dt |
|
Allow. Dt |
|
ITU |
12981 |
|
CITY CREPE |
|
25 |
|
Lerner New York, Inc. |
|
64,560 |
|
3/8/2005 |
|
64,560 |
|
2/21/2006 |
|
|
|
No |
12982 |
|
CITY SPA |
|
25 |
|
Lerner New York, Inc. |
|
64,561 |
|
3/8/2005 |
|
64,561 |
|
2/21/2006 |
|
|
|
No |
12052 |
|
CITY STRETCH |
|
25 |
|
Lerner New York, Inc. |
|
60,138 |
|
2/2/2004 |
|
60,138 |
|
11/3/2005 |
|
|
|
No |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Country: |
|
South Korea |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
ID |
|
Mark |
|
Classes |
|
Reg. Owner |
|
App. # |
|
App. Dt |
|
Reg. # |
|
Reg. Dt |
|
Allow. Dt |
|
ITU |
12669 |
|
CITY CREPE |
|
25 |
|
Lerner New York, Inc. |
|
844,333 |
|
1/21/2005 |
|
844,333 |
|
4/7/2005 |
|
|
|
No |
12678 |
|
CITY SPA |
|
25 |
|
Lerner New York, Inc. |
|
844,334 |
|
1/21/2005 |
|
844,334 |
|
4/7/2005 |
|
|
|
No |
12660 |
|
CITY STRETCH |
|
25 |
|
Lerner New York, Inc. |
|
844,335 |
|
1/21/2005 |
|
844,335 |
|
4/7/2005 |
|
|
|
No |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Country: |
|
Spain |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
ID |
|
Mark |
|
Classes |
|
Reg. Owner |
|
App. # |
|
App. Dt |
|
Reg. # |
|
Reg. Dt |
|
Allow. Dt |
|
ITU |
12670 |
|
CITY CREPE |
|
25 |
|
Lerner New York, Inc. |
|
844,333 |
|
1/21/2005 |
|
844,333 |
|
4/7/2005 |
|
|
|
No |
12679 |
|
CITY SPA |
|
25 |
|
Lerner New York, Inc. |
|
844,334 |
|
1/21/2005 |
|
844,334 |
|
4/7/2005 |
|
|
|
No |
12661 |
|
CITY STRETCH |
|
25 |
|
Lerner New York, Inc. |
|
844,335 |
|
1/21/2005 |
|
844,335 |
|
4/7/2005 |
|
|
|
No |
TM Rights (Grouped by country) |
|
Report Date: 8/23/2007 |
Country: |
|
Sri Lanka |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
ID |
|
Mark |
|
Classes |
|
Reg. Owner |
|
App. # |
|
App. Dt |
|
Reg. # |
|
Reg. Dt |
|
Allow. Dt |
|
ITU |
12892 |
|
CITY CREPE |
|
25 |
|
Lerner New York, Inc. |
|
123,755 |
|
2/8/2005 |
|
|
|
|
|
|
|
No |
12893 |
|
CITY SPA |
|
25 |
|
Lerner New York, Inc. |
|
123,753 |
|
2/8/2005 |
|
|
|
|
|
|
|
No |
12891 |
|
CITY STRETCH |
|
25 |
|
Lerner New York, Inc. |
|
123,754 |
|
2/8/2005 |
|
|
|
|
|
|
|
No |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Country: |
|
Taiwan |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
ID |
|
Mark |
|
Classes |
|
Reg. Owner |
|
App. # |
|
App. Dt |
|
Reg. # |
|
Reg. Dt |
|
Allow. Dt |
|
ITU |
12730 |
|
CITY CREPE |
|
25 |
|
Lerner New York, Inc. |
|
94004484 |
|
1/28/2005 |
|
1,175,833 |
|
10/1/2005 |
|
|
|
No |
12729 |
|
CITY SPA |
|
25 |
|
Lerner New York, Inc. |
|
94004485 |
|
1/28/2005 |
|
1,175,834 |
|
10/1/2005 |
|
|
|
No |
12731 |
|
CITY STRETCH |
|
25 |
|
Lerner New York, Inc. |
|
94004482 |
|
1/28/2005 |
|
1,175,832 |
|
10/1/2005 |
|
|
|
No |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Country: |
|
United Kingdom |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
ID |
|
Mark |
|
Classes |
|
Reg. Owner |
|
App. # |
|
App. Dt |
|
Reg. # |
|
Reg. Dt |
|
Allow. Dt |
|
ITU |
12671 |
|
CITY CREPE |
|
25 |
|
Lerner New York, Inc. |
|
844,333 |
|
1/21/2005 |
|
844,333 |
|
4/7/2005 |
|
|
|
No |
12680 |
|
CITY SPA |
|
25 |
|
Lerner New York, Inc. |
|
844,334 |
|
1/21/2005 |
|
844,334 |
|
4/7/2005 |
|
|
|
No |
12662 |
|
CITY STRETCH |
|
25 |
|
Lerner New York, Inc. |
|
844,335 |
|
1/21/2005 |
|
844,335 |
|
4/7/2005 |
|
|
|
No |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Country: |
|
United States |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
ID |
|
Mark |
|
Classes |
|
Reg. Owner |
|
App. # |
|
App. Dt |
|
Reg.# |
|
Reg. Dt |
|
Allow. Dt |
|
ITU |
14894 |
|
CHELSEA CHIC |
|
3 |
|
Lerner New York, Inc. |
|
77/182,801 |
|
5/16/2007 |
|
|
|
|
|
|
|
Yes |
14941 |
|
CITY BEAUTY |
|
3 |
|
Lerner New York, Inc. |
|
77/245,507 |
|
8/2/2007 |
|
|
|
|
|
|
|
Yes |
11541 |
|
CITY CREPE |
|
25 |
|
Lerner New York, Inc. |
|
78/273,754 |
|
7/14/2003 |
|
2,862,833 |
|
7/13/2004 |
|
|
|
No |
14713 |
|
CITY MOODS |
|
3 |
|
Lerner New York, Inc. |
|
77/006,335 |
|
9/25/2006 |
|
|
|
|
|
|
|
Yes |
14898 |
|
CITY MOODS |
|
4 |
|
Lerner New York, Inc. |
|
77/179,195 |
|
5/11/2007 |
|
|
|
|
|
|
|
No |
11544 |
|
CITY SPA |
|
25 |
|
Lerner New York, Inc. |
|
78/273,779 |
|
7/14/2003 |
|
2,858,086 |
|
6/29/2004 |
|
|
|
No |
11365 |
|
CITY STRETCH |
|
25 |
|
Lerner New York, Inc. |
|
76/502,113 |
|
3/26/2003 |
|
2,912,135 |
|
12/21/2004 |
|
|
|
No |
14762 |
|
CITY STYLE |
|
14,25 |
|
Lerner New York, Inc. |
|
77/045,359 |
|
11/16/2006 |
|
|
|
|
|
|
|
No |
TM Rights (Grouped by country) |
|
Report Date: 8/23/2007 |
14905 |
|
DOWNTOWN DARLING |
|
3 |
|
Lerner New York, Inc. |
|
77/193,891 |
|
5/31/2007 |
|
|
|
|
|
|
|
Yes |
14903 |
|
EMPIRE DREAM |
|
3 |
|
Lerner New York, Inc. |
|
77/193,888 |
|
5/31/2007 |
|
|
|
|
|
|
|
Yes |
14897 |
|
FABULOUS ON FIFTH |
|
3 |
|
Lerner New York, Inc. |
|
77/183,988 |
|
5/17/2007 |
|
|
|
|
|
|
|
Yes |
14901 |
|
GOTHAM GODDESS |
|
3 |
|
Lerner New York, Inc. |
|
77/182,820 |
|
5/16/2007 |
|
|
|
|
|
|
|
Yes |
13442 |
|
GREAT STYLE. GREAT VALUE. ALWAYS SEXY. |
|
35 |
|
Lerner New York, Inc. |
|
78/672,385 |
|
7/18/2005 |
|
3,109,349 |
|
6/27/2006 |
|
|
|
No |
14387 |
|
LEFT POCKET STITCHING DESIGN |
|
25 |
|
Lerner New York, Inc. |
|
78/847,060 |
|
3/27/2006 |
|
3,263,673 |
|
7/10/2007 |
|
|
|
No |
14393 |
|
LEFT WAVE STITCHING DESIGN |
|
25 |
|
Lerner New York, Inc. |
|
78/849,251 |
|
3/29/2006 |
|
3,263,679 |
|
7/10/2007 |
|
|
|
No |
14904 |
|
MANHATTAN MOMENT |
|
3 |
|
Lerner New York, Inc. |
|
77/193,876 |
|
5/31/2007 |
|
|
|
|
|
|
|
Yes |
14902 |
|
MISS MANHATTAN |
|
3 |
|
Lerner New York, Inc. |
|
77/182,833 |
|
5/16/2007 |
|
|
|
|
|
|
|
Yes |
6203 |
|
NEW YORK & COMPANY |
|
35 |
|
Lerner New York, Inc. |
|
75/648,424 |
|
2/23/1999 |
|
2,507,567 |
|
11/13/2001 |
|
|
|
Yes |
4996 |
|
NEW YORK JEANS |
|
25 |
|
Lerner New York, Inc. |
|
74/641,983 |
|
3/3/1995 |
|
2,714,767 |
|
5/13/2003 |
|
|
|
Yes |
6978 |
|
NY JEANS NEW YORK & COMPANY |
|
25 |
|
Lerner New York, Inc. |
|
720,617 |
|
6/3/1999 |
|
2,387,472 |
|
9/19/2000 |
|
|
|
No |
9701 |
|
NY JEANS NEW YORK & COMPANY |
|
25 |
|
Lerner New York, Inc. |
|
78/034,551 |
|
11/9/2000 |
|
2,573,780 |
|
5/28/2002 |
|
|
|
Yes |
14947 |
|
REFRESH, INDULGE & PAMPER |
|
35 |
|
Lerner New York, Inc. |
|
77/255,645 |
|
8/15/2007 |
|
|
|
|
|
|
|
Yes |
14386 |
|
RIGHT POCKET STITCHING DESIGN |
|
25 |
|
Lerner New York, Inc. |
|
78/847,085 |
|
3/27/2006 |
|
3,263,674 |
|
7/10/2007 |
|
|
|
No |
14394 |
|
RIGHT WAVE STITCHING DESIGN |
|
25 |
|
Lerner New York, Inc. |
|
78/849,306 |
|
3/29/2006 |
|
3,263,680 |
|
7/10/2007 |
|
|
|
No |
14896 |
|
UPTOWN ANGEL |
|
3 |
|
Lerner New York, Inc. |
|
77/182,846 |
|
5/16/2007 |
|
|
|
|
|
|
|
Yes |
Country: |
|
Vietnam |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
ID |
|
Mark |
|
Classes |
|
Reg. Owner |
|
App. # |
|
App. Dt |
|
Reg. # |
|
Reg. Dt |
|
Allow. D t |
|
ITU |
12834 |
|
CITY CREPE |
|
25 |
|
Lerner New York, Inc. |
|
4-2005-01222 |
|
1/31/2005 |
|
75,950 |
|
10/10/2006 |
|
|
|
No |
12835 |
|
CITY SPA |
|
25 |
|
Lerner New York, Inc. |
|
4-2005-01223 |
|
1/31/2005 |
|
75,951 |
|
10/10/2006 |
|
|
|
No |
11976 |
|
CITY STRETCH |
|
25 |
|
Lerner New York, Inc. |
|
4-2004-00110 |
|
1/5/2004 |
|
62,940 |
|
5/23/2005 |
|
|
|
No |
TM Rights (Grouped by country) |
|
Report Date: 8/23/2007 |
Country: |
|
WIPO |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
ID |
|
Mark |
|
Classes |
|
Reg. Owner |
|
App. # |
|
App. Dt |
|
Reg. # |
|
Reg. Dt |
|
Allow. Dt |
|
ITU |
12663 |
|
CITY CREPE |
|
25 |
|
Lerner New York, Inc. |
|
844,333 |
|
1/21/2005 |
|
844,333 |
|
4/7/2005 |
|
|
|
No |
12672 |
|
CITY SPA |
|
25 |
|
Lerner New York, Inc. |
|
844,334 |
|
1/21/2005 |
|
844,334 |
|
4/7/2005 |
|
|
|
No |
12654 |
|
CITY STRETCH |
|
25 |
|
Lerner New York, Inc. |
|
844,335 |
|
1/21/2005 |
|
844,335 |
|
4/7/2005 |
|
|
|
No |
SCHEDULE 31
Bank Account Information
Bank Account Contact Information
CORPORATE BANK ACCOUNTS
Bank Name |
|
Bank Address |
|
Contact Person |
|
Phone Number |
|
Account
|
|
Type of Account |
|
|
|
|
|
|
|
|
|
|
|
The Bank of New York |
|
|
|
|
|
|
|
|
|
Lerner New York Accounts Payable |
|
|
|
|
|
|
|
|
|
|
|
The Bank of New York |
|
|
|
|
|
|
|
|
|
Lerner New York Payroll |
|
|
|
|
|
|
|
|
|
|
|
The Bank of New York |
|
|
|
|
|
|
|
|
|
NY&CO Group Payroll |
|
|
|
|
|
|
|
|
|
|
|
The Bank of New York |
|
|
|
|
|
|
|
|
|
NY&CO Group Account Payable |
|
|
|
|
|
|
|
|
|
|
|
The Bank of New York |
|
|
|
|
|
|
|
|
|
NY&CO Group Master Account |
|
|
|
|
|
|
|
|
|
|
|
The Bank of New York |
|
|
|
|
|
|
|
|
|
Jasmine Group Master Account |
|
|
|
|
|
|
|
|
|
|
|
The Bank of New York |
|
|
|
|
|
|
|
|
|
Jasmine Payroll |
|
|
|
|
|
|
|
|
|
|
|
The Bank of New York |
|
|
|
|
|
|
|
|
|
Jasmine Accounts Payable |
|
|
|
|
|
|
|
|
|
|
|
Citibank |
|
|
|
|
|
|
|
|
|
Lerner New York Collection |
|
|
|
|
|
|
|
|
|
|
|
Huntington |
|
|
|
|
|
|
|
|
|
Tax Payment |
|
|
|
|
|
|
|
|
|
|
|
Fleet Bank |
|
|
|
|
|
|
|
|
|
UnitedHealth Medical Claims Escrow Account |
|
|
|
|
|
|
|
|
|
|
|
Fleet Bank |
|
|
|
|
|
|
|
|
|
UnitedHealth FSA/CERA Escrow Account |
|
|
|
|
|
|
|
|
|
|
|
Chase Metlife |
|
|
|
|
|
|
|
|
|
Metlife Dental Medical Claims Escrow Account |
|
|
|
|
|
|
|
|
|
|
|
JP Morgan Chase |
|
|
|
|
|
|
|
|
|
Restrictive Cash |
|
|
|
|
|
|
|
|
|
|
|
Farmers State Bank |
|
|
|
|
|
|
|
|
|
Solutran RCK |
STORE DEPOSITORY ACCOUNTS
Amsouth |
|
|
|
|
|
|
|
|
|
Consolidated |
|
|
|
|
|
|
|
|
|
|
|
Bank of America |
|
|
|
|
|
|
|
|
|
Consolidated |
|
|
|
|
|
|
|
|
|
|
|
Bank of America |
|
|
|
|
|
|
|
|
|
Consolidated |
|
|
|
|
|
|
|
|
|
|
|
Bank of America / Fleet |
|
|
|
|
|
|
|
|
|
Consolidated |
|
|
|
|
|
|
|
|
|
|
|
JP Morgan Chase |
|
|
|
|
|
|
|
|
|
Consolidated |
|
|
|
|
|
|
|
|
|
|
|
Citizens |
|
|
|
|
|
|
|
|
|
Consolidated |
|
|
|
|
|
|
|
|
|
|
|
Comerica |
|
|
|
|
|
|
|
|
|
Consolidated |
|
|
|
|
|
|
|
|
|
|
|
Fifth Third |
|
|
|
|
|
|
|
|
|
Consolidated |
|
|
|
|
|
|
|
|
|
|
|
First Tennessee |
|
|
|
|
|
|
|
|
|
Consolidated |
|
|
|
|
|
|
|
|
|
|
|
Wachovia |
|
|
|
|
|
|
|
|
|
Consolidated |
|
|
|
|
|
|
|
|
|
|
|
HSBC |
|
|
|
|
|
|
|
|
|
Consolidated |
|
|
|
|
|
|
|
|
|
|
|
Huntington |
|
|
|
|
|
|
|
|
|
Consolidated |
|
|
|
|
|
|
|
|
|
|
|
IBC |
|
|
|
|
|
|
|
|
|
Consolidated |
|
|
|
|
|
|
|
|
|
|
|
Key Bank |
|
|
|
|
|
|
|
|
|
Consolidated |
|
|
|
|
|
|
|
|
|
|
|
National City |
|
|
|
|
|
|
|
|
|
Consolidated |
|
|
|
|
|
|
|
|
|
|
|
National City |
|
|
|
|
|
|
|
|
|
Consolidated |
|
|
|
|
|
|
|
|
|
|
|
National City |
|
|
|
|
|
|
|
|
|
Consolidated |
|
|
|
|
|
|
|
|
|
|
|
National City |
|
|
|
|
|
|
|
|
|
Consolidated |
|
|
|
|
|
|
|
|
|
|
|
National City |
|
|
|
|
|
|
|
|
|
Consolidated |
|
|
|
|
|
|
|
|
|
|
|
PNC |
|
|
|
|
|
|
|
|
|
Consolidated |
|
|
|
|
|
|
|
|
|
|
|
Regions |
|
|
|
|
|
|
|
|
|
Consolidated |
|
|
|
|
|
|
|
|
|
|
|
Suntrust |
|
|
|
|
|
|
|
|
|
Consolidated |
|
|
|
|
|
|
|
|
|
|
|
Suntrust |
|
|
|
|
|
|
|
|
|
Consolidated |
|
|
|
|
|
|
|
|
|
|
|
Suntrust |
|
|
|
|
|
|
|
|
|
Consolidated |
|
|
|
|
|
|
|
|
|
|
|
Suntrust |
|
|
|
|
|
|
|
|
|
Consolidated |
|
|
|
|
|
|
|
|
|
|
|
Suntrust |
|
|
|
|
|
|
|
|
|
Consolidated |
|
|
|
|
|
|
|
|
|
|
|
US Bank |
|
|
|
|
|
|
|
|
|
Consolidated |
|
|
|
|
|
|
|
|
|
|
|
Wells Fargo |
|
|
|
|
|
|
|
|
|
Consolidated |
|
|
|
|
|
|
|
|
|
|
|
SOVEREIGN BANK |
|
|
|
|
|
|
|
|
|
Outlier |
|
|
|
|
|
|
|
|
|
|
|
ASTORIA FEDERAL SAVINGS |
|
|
|
|
|
|
|
|
|
Outlier |
|
|
|
|
|
|
|
|
|
|
|
VALLEY NATIONAL BANK |
|
|
|
|
|
|
|
|
|
Outlier |
PROVIDENT BANK |
|
|
|
|
|
|
|
|
|
Outlier |
|
|
|
|
|
|
|
|
|
|
|
UNITED NATIONAL BANK |
|
|
|
|
|
|
|
|
|
Outlier |
|
|
|
|
|
|
|
|
|
|
|
M&T BANK |
|
|
|
|
|
|
|
|
|
Outlier |
|
|
|
|
|
|
|
|
|
|
|
Hudson United Bank - Bank of America |
|
|
|
|
|
|
|
|
|
Consolidated |
|
|
|
|
|
|
|
|
|
|
|
SALEM FIVE CENTS SAVINGS BANK |
|
|
|
|
|
|
|
|
|
Outlier |
|
|
|
|
|
|
|
|
|
|
|
Charter One |
|
|
|
|
|
|
|
|
|
Outlier |
|
|
|
|
|
|
|
|
|
|
|
CAPITAL ONE |
|
|
|
|
|
|
|
|
|
Outlier |
|
|
|
|
|
|
|
|
|
|
|
STERLING BANK |
|
|
|
|
|
|
|
|
|
Outlier |
|
|
|
|
|
|
|
|
|
|
|
CTIZENS NATIONAL BANK |
|
|
|
|
|
|
|
|
|
Outlier |
|
|
|
|
|
|
|
|
|
|
|
BANK CHAMPAIGN |
|
|
|
|
|
|
|
|
|
Outlier |
|
|
|
|
|
|
|
|
|
|
|
BANK NORTH |
|
|
|
|
|
|
|
|
|
Outlier |
|
|
|
|
|
|
|
|
|
|
|
COLE TAYLOR BANK |
|
|
|
|
|
|
|
|
|
Outlier |
|
|
|
|
|
|
|
|
|
|
|
M&T Bank |
|
|
|
|
|
|
|
|
|
Outlier |
|
|
|
|
|
|
|
|
|
|
|
Hancock Bank |
|
|
|
|
|
|
|
|
|
Outlier |
|
|
|
|
|
|
|
|
|
|
|
PLAZA BANK |
|
|
|
|
|
|
|
|
|
Outlier |
|
|
|
|
|
|
|
|
|
|
|
LaSalle Bank N.A. |
|
|
|
|
|
|
|
|
|
Outlier |
|
|
|
|
|
|
|
|
|
|
|
ASTORIA FEDERAL |
|
|
|
|
|
|
|
|
|
Outlier |
|
|
|
|
|
|
|
|
|
|
|
BANK NORTH |
|
|
|
|
|
|
|
|
|
Outlier |
|
|
|
|
|
|
|
|
|
|
|
UNITED NATIONAL BANK |
|
|
|
|
|
|
|
|
|
Outlier |
|
|
|
|
|
|
|
|
|
|
|
CHEVY CHASE BANK |
|
|
|
|
|
|
|
|
|
Outlier |
|
|
|
|
|
|
|
|
|
|
|
Sovereign Bank |
|
|
|
|
|
|
|
|
|
Outlier |
|
|
|
|
|
|
|
|
|
|
|
Washington Mutual Bank, FA |
|
|
|
|
|
|
|
|
|
Outlier |
|
|
|
|
|
|
|
|
|
|
|
NORTHWEST BANK & TRUST |
|
|
|
|
|
|
|
|
|
Outlier |
|
|
|
|
|
|
|
|
|
|
|
JP MORGAN |
|
|
|
|
|
|
|
|
|
Outlier |
|
|
|
|
|
|
|
|
|
|
|
Webster Five |
|
|
|
|
|
|
|
|
|
Outlier |
|
|
|
|
|
|
|
|
|
|
|
FIRST CITIZENS BANK |
|
|
|
|
|
|
|
|
|
Outlier |
|
|
|
|
|
|
|
|
|
|
|
LA SALLE BANK |
|
|
|
|
|
|
|
|
|
Outlier |
|
|
|
|
|
|
|
|
|
|
|
Washington Mutual Bank, FA |
|
|
|
|
|
|
|
|
|
Outlier |
|
|
|
|
|
|
|
|
|
|
|
FIRST GUARANTY BANK |
|
|
|
|
|
|
|
|
|
Outlier |
|
|
|
|
|
|
|
|
|
|
|
Highland Bank |
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Outlier |
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UMB Bank, N.A. |
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Outlier |
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FIRST AMERICAN BANK |
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Outlier |
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SKI BANK |
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Outlier |
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MB Financial Bank |
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Outlier |
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UNITED NATIONAL BANK |
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Outlier |
HUNTINGTON FEDERAL SAVINGS BANK |
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Outlier |
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CHEVY CHASE BANK |
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Outlier |
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CAPITAL ONE |
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Outlier |
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LA SALLE BANK |
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Outlier |
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UNIVEST NATIONAL BANK |
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Outlier |
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Wayne Bank |
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Outlier |
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NBT BANK |
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Outlier |
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LA SALLE BANK |
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Outlier |
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FIRST AMERICAN BANK |
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Outlier |
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LA SALLE BANK |
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Outlier |
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FRUST NATIONAL BANK |
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Outlier |
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LIBERTY BANK |
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Outlier |
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SKI BANK |
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Outlier |
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BANK FINANCIAL |
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Outlier |
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AMERICAN BANK OF TEXAS |
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Outlier |
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FIRSTMERIT BANK, N.A. |
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Outlier |
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MERCANTILE-SAFE DEPOSIT AND TRUST CO |
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Outlier |
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Republic Bank |
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Outlier |
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OAK BROOK BANK |
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Outlier |
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TRUSTMARK NATIONAL BANK |
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Outlier |
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BOONE COUNTY NATIONAL BANK |
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Outlier |
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LA SALLE BANK |
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Outlier |
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BANCORP SOUTH |
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Outlier |
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First National Bank of Colorado Bank Financial |
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Outlier |
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MARSHALL & ILSLEY BANK PRINCIPAL BANK TD BANKNORTH ARVEST BANK |
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Outlier
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NORTHWEST SAVINGS BANK |
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Outlier |
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WASHINGTON MUTUAL |
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Outlier |
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FIRST NATIONAL BANK |
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Outlier |
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UMB BANK |
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Outlier |
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HEARTLAND BANK |
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Outlier |
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METROPOLITAN NATIONAL BANK |
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Outlier |
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SOUTH BANK |
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Outlier |
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CITIBANK |
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Outlier |
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FIRST NATIONAL BANK |
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Outlier |
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BM&T |
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Outlier |
INFORMATION CERTIFICATE
OF
LERNCO, INC.
Dated: August 22, 2007
Wachovia Bank, National Association, as Agent
1133 Avenue of the Americas
New York, NY 10036
In order to assist you in the evaluation of the financing you are considering of Lernco, Inc. (the Company ), pursuant to the Second Amended and Restated Loan and Security Agreement, dated of even date herewith, Wachovia Bank, National Association, as Agent (in such capacity Agent or you), for the persons thereto as Lenders (collectively Lenders or you), the Company certain affiliates of the Company (as the same now exists or may hereafter be amended, modified, supplemented, renewed, restated or registered, the Loan Agreement), to expedite the preparation of required documentation, and to induce you to provide financing to the Company, we represent and warrant to you and the Lenders the following information about the Company, its organizational structure and other matters of interest to you:
1. The Company has been formed by filing the following document with the Secretary of State of Delaware:
x Certificate/Articles of Incorporation
o Certificate/Articles of Organization
o Other [specify]
The date of formation of the Company by the filing of the document specified above with the Secretary of State was May 2, 1985.
2. The Company was not formed by filing a document with any Secretary of State. The Company is organized as a [specify type of organization, (e.g., general partnership, sole proprietorship, etc.)] . The Companys governing document is a [name legal document, if one exists, (e.g., partnership agreement, etc.) Not applicable
3. The full and exact name of the Company as set forth in the document specified in Item 1 or 2, or (if no document is specified in Item 1 or 2) the full and exact legal name used in the Companys business, is:
Lernco, Inc.
4. The Company uses and owns the following trade name(s) in the operation of its business (e.g. billing, advertising, etc.; note: do not include names which are product names only):
None.
[Check one of the boxes below.]
o We have attached a blank sample of every invoice that uses a tradename.
x We do not use any tradename other than the tradenames listed in Item 4 on any invoices.
5. The Company maintains offices, leases or owns real estate, has employees, pays taxes, or otherwise conducts business in the following States (including the State of its organization):
Delaware.
6. The Company has filed the necessary documents with the Secretary of State to qualify as a foreign corporation in the following States:
Delaware.
7. The Companys authority to do business has been revoked or suspended, or the Company is otherwise not in good standing in the following States:
None.
8. The Company and its subsidiaries have all licenses and permits necessary for the operation of the business of the Company, as such business is being operated as of the date hereof.
9. In conducting its business activities, the Company is subject to regulation by federal, state or local agencies or authorities (e.g., FDA, EPA, state or municipal liquor licensing agencies, federal or state carrier commissions, etc.) as follows:
Not applicable
10. The Company has never been involved in a bankruptcy or reorganization except: [explain]
None.
11. Between the date the Company was formed and now, the Company has used other names as set forth below:
Period of Time |
|
Prior Name |
|
|
|
None. |
|
|
|
|
|
|
|
|
12. Between the date the Company was formed and now, the Company has made or entered into mergers or acquisitions with other companies as set forth below:
None other than mergers and reorganizations of internal companies in the ordinary course of business.
13. The chief executive office of the Company is located at the street address set forth below::
1105 North Market Street, Suite 1056
Wilmington, DE 19801
14. The books and records of the Company pertaining to accounts, contract rights, inventory, etc. are located at the following street address:
1105 North Market Street, Suite 1056
Wilmington, DE 19801
15. In addition to the chief executive office, the Company has inventory, equipment or other assets located at the addresses set forth below. In each case, we have noted whether the location is owned, leased or operated by third parties and the names and addresses of any mortgagee, lessor or third party operator:
|
|
|
|
Name and Address of Third |
|
|
|
|
Party with Interest in Location |
|
|
Companys Interest |
|
(e.g., mortgagee, lessor or |
Street Address with County |
|
(e.g., owner, lessee or bailee) |
|
warehouseman) |
|
|
|
|
|
Exhibit E to the Loan Agreement. |
|
|
|
|
16. In the course of its business, the Companys inventory and/or other assets are handled by the following customs brokers and/or freight forwarders:
Name |
|
Address |
|
Type of Service/Assets Handled |
|
|
|
|
|
None. |
|
|
|
|
17. The places of business or other locations of any assets used by the Company during the last four (4) months other than those listed above are as follows:
None.
18. The Company is affiliated with, or has ownership in, the following entities (including subsidiaries):
Name of Entity |
|
Chief Executive Office |
|
Jurisdiction of
|
|
Ownership
|
|
|
|
|
|
|
|
New York & Company, Inc. |
|
450 West 33
rd
Street
|
|
Delaware |
|
Ultimate Parent / 100% |
|
|
|
|
|
|
|
Lerner New York Holding, Inc. |
|
450 West 33
rd
Street
|
|
Delaware |
|
Parent / 100% |
|
|
|
|
|
|
|
Lerner New York, Inc. |
|
450 West 33rd Street
|
|
Delaware |
|
Subsidiary of Parent / 100% |
|
|
|
|
|
|
|
Nevada Receivable Factoring, Inc. |
|
3800 Howard Hughes
|
|
Nevada |
|
Subsidiary of Parent / 100% |
|
|
|
|
|
|
|
Associated Lerner Shops of America |
|
450 West 33rd Street
|
|
New York |
|
Subsidiary / 100% |
|
|
|
|
|
|
|
Lerner New York GC, LLC |
|
10 West Broad Street, Suite 2100
|
|
Ohio |
|
Subsidiary / 100% |
|
|
|
|
|
|
|
Jasmine Company, Inc. |
|
450 W. 33
rd
St.
|
|
Massachusetts |
|
Subsidiary / 100% |
19. The Federal Employer Identification Number of the Company is 51-0284787
20. Under the Companys charter documents, and under the laws of the State in which the Company is organized, the shareholders, members or other equity holders do not have to consent in order for the Company to borrow money, incur debt or obligations, pledge or mortgage the property of the Company, grant a security interest in the property of the Company or guaranty the debt of obligations of another person or entity.
x True o Incorrect [explain]:
The power to take the foregoing actions is vested exclusively in the Board of Directors.
21. The officers of the Company (or people performing similar functions) and their respective titles are as follows:
Title |
|
Name |
|
|
|
Ronald W. Ristau |
|
President |
John Gargano |
|
Vice President |
Chris Consi |
|
Treasurer |
William Bechstein |
|
Secretary |
Sheamus Toal |
|
Assistant Treasurer |
William K. Langan |
|
Assistant Secretary |
The following people will have signatory powers as to all your of transactions with the Company:
The Officers authorized in the Companys Board of Director resolutions
22. With respect to the officers noted above, such officers are affiliated with and hold a 5% or more beneficial ownership in the following corporations (indicate name and address of affiliated companies, type of operations, ownership percentage or other relationship):
None.
23. The Company is governed by the Board of Directors. The members of such governing body of the Company are:
Ronald W. Ristau, Philip M. Carpenter III, Chris Consi, William Bechstein, John Gargano, Sheamus Toal, William K. Langan Ryan A. Schreiber
24. The name of the stockholders, members, partners or other equity holders of the Company and their equity holdings are as follows (if equity interests are widely held indicate only equity owners with 10% or more of the equity interests):
Name |
|
No. of Shares or Units |
|
Ownership Percentage |
|
|
|
|
|
|
|
Lerner New York Holding, Inc. |
|
100 Common shares |
|
100 |
% |
25. There are no judgments or litigation pending by or against the Company, its subsidiaries and/or affiliates or any of its officers/principals, except as follows:
None.
26. At the present time, there are no delinquent taxes due (including, but not limited to, all payroll taxes, personal property taxes, real estate taxes or income taxes) except as follows:
None.
27. The Companys assets are owned and held free and clear of any security interests, liens or attachments, except as follows:
|
|
|
|
Amount of Debt |
Lienholder |
|
Assets Pledged |
|
Secured |
|
|
|
|
|
None. |
|
|
|
|
28. The Company has not guaranteed and is not otherwise liable for the obligations of others, except as follows:
None.
29. The Company does not own or license any trademarks, patents, copyrights or other intellectual property, except as follows (indicate type of intellectual property and whether owned or licensed, registration number, date of registration, and, if licensed, the name and address of the licensor):
|
|
Registration |
|
|
|
Name and Address |
Type of Intellectual |
|
Number and Date of |
|
Owned or |
|
of |
Property |
|
Registration |
|
Licensed |
|
Licensor |
See Schedule 29 |
|
|
|
|
|
|
30. The Company owns or uses the following materials (e.g., software, film footage, scripts, etc.) that are subject to registration with the United States Copyright Office, though at present copyright registrations have not been filed with respect to such materials:
None.
31. The Company does not have any deposit or investment accounts with any bank, savings and loan or other financial institution, except as follows, for the purposes and of the types indicated:
Bank Name and Branch Address |
|
Contact Person and
|
|
Account No. |
|
Purpose/Type |
Wilmington Trust |
|
|
|
|
|
Checking |
Wilmington Trust |
|
|
|
|
|
Customary Acct. |
32. The Company has no processing arrangements for credit card payments or payments made by check (e.g. Telecheck) except as follows:
Bank Name and Branch
|
|
Contact Person and Phone Number |
|
Account No. |
None. |
|
|
|
|
33. The Company owns or has registered to it the following motor vehicles, the original title certificates for which shall be delivered to Lender prior to closing: None.
34. With regard to any pension or profit sharing plan:
None.
35. The Companys fiscal year is a 52 or 53 week year that ends on the Saturday closest to January 31. The results for fiscal year 2006 represents the fifty-three week period ending February 3, 2007. The results for fiscal years 2005, 2004, 2003 and 2002 represents the fifty-two week period ending January 28, 2006, January 29, 2005, January 31, 2004 and February 1, 2003, respectively.
36. Certified Public Accountants for the Company is the firm of:
Name: |
|
Ernst & Young |
Address: |
|
5 Times Square |
|
|
New York, NY 10036-6530 |
Telephone: |
|
(212) 773-1181 |
Facsimile: |
|
(212) 773-1275 |
E-Mail: |
|
carmine.romano@ey.com |
Partner Handling Relationship: |
|
Carmine Romano |
Were statements uncertified for any fiscal year? |
|
Statements for year end 2006 (1/29/06-2/3/07) were certified |
37. The Companys counsel with respect to the proposed loan, transaction is the firm of:
Name: |
|
Kirkland & Ellis |
Address: |
|
Citigroup Center |
|
|
153 East 53 rd Street |
|
|
New York, NY 10022 |
Telephone: |
|
(212) 446-4800 |
Facsimile: |
|
(212) 446-4900 |
E-Mail: |
|
medsall@kirkland.com |
Partner Handling Relationship: |
|
Michael Edsall |
38. The Companys counsel with respect to matters other than the proposed loan transaction, if different, is the firm of:
Partner Handling Relationship: |
|
Michael Edsall |
38. The Companys counsel with respect to matters other than the proposed loan transaction, if different, is the firm of:
Name: |
|
Same as above |
Address: |
|
|
Telephone: |
|
|
Facsimile: |
|
|
E-Mail: |
|
|
Partner Handling Relationship: |
|
|
We agree to give you prompt written notice of any change or amendment with respect to any of the foregoing information. Until you receive such notice, you will be entitled to rely in all respects on the foregoing information.
|
Very truly yours, |
|
|
|
|
|
LERNCO INC |
|
|
|
|
|
|
|
|
By: |
/s/ Ronald W. Ristau |
|
|
Title: President |
Trademarks
TM Rights (Grouped by country) |
|
Report Date: 8/23/2007 |
Country: |
|
Andorra |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
ID |
|
Mark |
|
Classes |
|
Reg. Owner |
|
App. # |
|
App. Dt |
|
Reg. # |
|
Reg. Dt |
|
Allow. Dt |
|
ITU |
6006 |
|
LERNER NEW YORK |
|
3, 14, 18, 25, 35, 39 |
|
Lernco, Inc. |
|
7,236 |
|
7/4/1997 |
|
6,876 |
|
7/4/1997 |
|
|
|
No |
8292 |
|
NY & CO AND DESIGN |
|
3, 25, 35, 39 |
|
Lernco, Inc. |
|
14,355 |
|
3/24/2000 |
|
14,355 |
|
4/6/2000 |
|
|
|
No |
Country: |
|
Argentina |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
ID |
|
Mark |
|
Classes |
|
Reg. Owner |
|
App. # |
|
App. Dt |
|
Reg. # |
|
Reg. Dt |
|
Allow. Dt |
|
ITU |
4321 |
|
LERNER NEW YORK |
|
25 |
|
Lernco, Inc. |
|
1,923,128 |
|
6/6/1994 |
|
1,683,033 |
|
8/25/1998 |
|
|
|
No |
4322 |
|
LERNER NEW YORK |
|
42 |
|
Lernco, Inc. |
|
1,923,129 |
|
6/6/1994 |
|
1,683,036 |
|
8/25/1998 |
|
|
|
No |
7968 |
|
NY & CO AND DESIGN |
|
35 |
|
Lernco, Inc. |
|
2,275,343 |
|
3/21/2000 |
|
1,884,659 |
|
9/11/2002 |
|
|
|
No |
7967 |
|
NY & CO AND DESIGN |
|
25 |
|
Lernco, Inc. |
|
2,275,342 |
|
3/21/2000 |
|
1,841,389 |
|
8/24/2001 |
|
|
|
No |
7966 |
|
NY & CO AND DESIGN |
|
3 |
|
Lernco, Inc. |
|
2,275,341 |
|
3/21/2000 |
|
|
|
|
|
|
|
No |
Country: |
|
Australia |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
ID |
|
Mark |
|
Classes |
|
Reg. Owner |
|
App. # |
|
App. Dt |
|
Reg. # |
|
Reg. Dt |
|
Allow. Dt |
|
ITU |
2295 |
|
LERNER |
|
25 |
|
Lernco, Inc. |
|
443,663 |
|
4/11/1986 |
|
B443,663 |
|
7/4/1990 |
|
|
|
No |
2296 |
|
LERNER |
|
42 |
|
Lernco, Inc. |
|
443,665 |
|
4/11/1986 |
|
B443,665 |
|
7/4/1990 |
|
|
|
No |
14783 |
|
NEW YORK & COMPANY |
|
3, 9, 14, 18, 20, 25, 26, 35, 36 |
|
Lernco, Inc. |
|
926,844 |
|
1/3/2007 |
|
926,844 |
|
7/19/2007 |
|
|
|
No |
7931 |
|
NY & CO AND DESIGN |
|
3, 25, 35 |
|
Lernco, Inc. |
|
826,6727 |
|
3/7/2000 |
|
A826,672 |
|
4/5/2001 |
|
|
|
No |
Country: |
|
Austria |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
ID |
|
Mark |
|
Classes |
|
Reg. Owner |
|
App. # |
|
App. Dt |
|
Reg. # |
|
Reg. Dt |
|
Allow. Dt |
|
ITU |
4444 |
|
LERNER NEW YORK |
|
25, 39, 42 |
|
Lernco, Inc. |
|
AM 3638/94 |
|
7/21/1994 |
|
155,919 |
|
12/22/1994 |
|
|
|
No |
14784 |
|
NEW YORK & COMPANY |
|
3, 9, 14, 18, 20, 25, 26, 35, 36 |
|
Lernco, Inc. |
|
926,844 |
|
1/3/2007 |
|
926,844 |
|
7/19/2007 |
|
|
|
No |
8288 |
|
NY & CO AND DESIGN |
|
3, 25, 39, 42 |
|
Lernco, Inc. |
|
AM 1734/2000 |
|
3/13/2000 |
|
189,173 |
|
6/15/2000 |
|
|
|
No |
TM Rights (Grouped by country) |
|
Report Date: 8/23/2007 |
Country |
|
Bahamas |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
ID |
|
Mark |
|
Classes |
|
Reg. Owner |
|
App. # |
|
App. Dt |
|
Reg. # |
|
Reg. Dt |
|
Allow. Dt |
|
ITU |
5036 |
|
LERNER |
|
38 |
|
Lernco, Inc. |
|
16,594 |
|
7/15/1994 |
|
16,594 |
|
12/7/1995 |
|
|
|
No |
4549 |
|
LERNER NEW YORK |
|
38 |
|
Lernco, Inc. |
|
16,594 |
|
7/15/1994 |
|
16,594 |
|
12/7/1995 |
|
|
|
No |
8616 |
|
NY & CO AND DESIGN |
|
39 |
|
Lernco, Inc. |
|
22,701 |
|
5/11/2000 |
|
22,701 |
|
2/4/2003 |
|
|
|
No |
8617 |
|
NY & CO AND DESIGN |
|
38 |
|
Lernco, Inc. |
|
22,702 |
|
5/11/2000 |
|
22,702 |
|
2/17/2003 |
|
|
|
No |
8618 |
|
NY & CO AND DESIGN |
|
48 |
|
Lernco, Inc. |
|
22,703 |
|
|
|
|
|
|
|
|
|
No |
Country |
|
Bahrain |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
ID |
|
Mark |
|
Classes |
|
Reg. Owner |
|
App. # |
|
App. Dt |
|
Reg. # |
|
Reg. Dt |
|
Allow. Dt |
|
ITU |
8370 |
|
NY & CO AND DESIGN |
|
3 |
|
Lernco, Inc. |
|
1112/2000 |
|
5/15/2000 |
|
27,598 |
|
4/7/2003 |
|
|
|
No |
8371 |
|
NY & CO AND DESIGN |
|
35 |
|
Lernco, Inc. |
|
1110/2000 |
|
5/15/2000 |
|
SM3627 |
|
11/19/2001 |
|
|
|
No |
8328 |
|
NY & CO. AND RECTANGULAR DESIGN |
|
25 |
|
Lernco, Inc. |
|
1111/2000 |
|
5/15/2000 |
|
27,599 |
|
4/7/2003 |
|
|
|
No |
Country |
|
Bangladesh |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
ID |
|
Mark |
|
Classes |
|
Reg. Owner |
|
App. # |
|
App. Dt |
|
Reg. # |
|
Reg. Dt |
|
Allow. Dt |
|
ITU |
3985 |
|
LERNER NEW YORK |
|
25 |
|
Lernco, Inc. |
|
40,456 |
|
4/27/1994 |
|
40,456 |
|
9/23/2003 |
|
|
|
No |
8121 |
|
NY & CO AND DESIGN |
|
25 |
|
Lernco, Inc. |
|
64,231 |
|
4/2/2000 |
|
|
|
|
|
|
|
No |
8122 |
|
NY & CO AND DESIGN |
|
16 |
|
Lernco, Inc. |
|
64,232 |
|
4/2/2000 |
|
|
|
|
|
|
|
No |
8123 |
|
NY & CO AND DESIGN |
|
3 |
|
Lernco, Inc. |
|
64,227 |
|
4/2/2000 |
|
|
|
|
|
|
|
No |
Country |
|
Barbados |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
ID |
|
Mark |
|
Classes |
|
Reg. Owner |
|
App. # |
|
App. Dt |
|
Reg. # |
|
Reg. Dt |
|
Allow. Dt |
|
ITU |
8435 |
|
NY & CO AND DESIGN |
|
3 |
|
Lernco, Inc. |
|
|
|
3/24/2000 |
|
81/15098 |
|
11/27/2000 |
|
|
|
No |
8436 |
|
NY & CO AND DESIGN |
|
25 |
|
Lernco, Inc. |
|
|
|
3/24/2000 |
|
81/15099 |
|
11/27/2000 |
|
|
|
No |
8437 |
|
NY & CO AND DESIGN |
|
42 |
|
Lernco, Inc. |
|
|
|
3/24/2000 |
|
81/15100 |
|
11/27/2000 |
|
|
|
No |
Country |
|
Benelux |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
ID |
|
Mark |
|
Classes |
|
Reg. Owner |
|
App. # |
|
App. Dt |
|
Reg. # |
|
Reg. Dt |
|
Allow. Dt |
|
ITU |
2301 |
|
LERNER |
|
40, 41, 42 |
|
Lernco, Inc. |
|
|
|
1/7/1987 |
|
424,555 |
|
1/7/1987 |
|
|
|
No |
2300 |
|
LERNER |
|
25 |
|
Lernco, Inc. |
|
684,304 |
|
6/3/1986 |
|
418,590 |
|
6/3/1986 |
|
|
|
No |
14785 |
|
NEW YORK & COMPANY |
|
3, 9, 14, 18, 20, 25, 26, 35, 36 |
|
Lernco, Inc. |
|
926,844 |
|
1/3/2007 |
|
926,844 |
|
7/19/2007 |
|
|
|
No |
8103 |
|
NY & CO AND DESIGN |
|
3, 25, 35 |
|
Lernco, Inc. |
|
961,522 |
|
4/4/2000 |
|
682,310 |
|
8/1/2001 |
|
|
|
No |
Country: |
|
Bermuda |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
ID |
|
Mark |
|
Classes |
|
Reg. Owner |
|
App. # |
|
App. Dt |
|
Reg. # |
|
Reg. Dt |
|
Allow. Dt |
|
ITU |
7943 |
|
NY & CO AND DESIGN |
|
3 |
|
Lernco, Inc. |
|
31,617 |
|
3/23/2000 |
|
31,617 |
|
1/30/2002 |
|
|
|
No |
7945 |
|
NY & CO AND DESIGN |
|
35 |
|
Lernco, Inc. |
|
31,619 |
|
3/23/2000 |
|
31,619 |
|
1/30/2002 |
|
|
|
No |
7944 |
|
NY & CO AND DESIGN |
|
25 |
|
Lernco, Inc. |
|
31,618 |
|
3/23/2000 |
|
31,618 |
|
1/30/2002 |
|
|
|
No |
TM Rights (Grouped by country) |
|
Report Date: 8/23/2007 |
Country |
|
Bolivia |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
ID |
|
Mark |
|
Classes |
|
Reg. Owner |
|
App. # |
|
App. Dt |
|
Reg. # |
|
Reg. Dt |
|
Allow. Dt |
|
ITU |
2297 |
|
LERNER |
|
25 |
|
Lernco, Inc. |
|
|
|
4/9/1986 |
|
A-51,353 |
|
6/23/1987 |
|
|
|
No |
2298 |
|
LERNER |
|
42 |
|
Lernco, Inc. |
|
|
|
4/9/1986 |
|
A-51,354 |
|
6/23/1987 |
|
|
|
No |
8396 |
|
NY & CO AND DESIGN |
|
25 |
|
Lernco, Inc. |
|
|
|
4/18/2000 |
|
83,886-C |
|
3/27/2001 |
|
|
|
No |
8394 |
|
NY & CO AND DESIGN |
|
42 |
|
Lernco, Inc. |
|
|
|
4/18/2000 |
|
83,896-C |
|
3/27/2001 |
|
|
|
No |
8395 |
|
NY & CO AND DESIGN |
|
3 |
|
Lernco, Inc. |
|
|
|
4/18/2000 |
|
83,887-C |
|
3/27/2001 |
|
|
|
No |
Country: |
|
Brazil |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
ID |
|
Mark |
|
Classes |
|
Reg. Owner |
|
App. # |
|
App. Dt |
|
Reg. # |
|
Reg. Dt |
|
Allow. Dt |
|
ITU |
5585 |
|
LERNER |
|
25,10 |
|
Lernco, Inc. |
|
812,694,376 |
|
7/10/1986 |
|
812,694,376 |
|
2/25/1997 |
|
|
|
No |
5327 |
|
LERNER |
|
25,10 |
|
Lernco, Inc. |
|
819,174,602 |
|
4/15/1996 |
|
819,174,602 |
|
10/6/1998 |
|
|
|
No |
2299 |
|
LERNER |
|
42 |
|
Lernco, Inc. |
|
812,694,384 |
|
7/10/1986 |
|
812,694,384 |
|
10/30/1990 |
|
|
|
No |
7857 |
|
NY & CO |
|
35 |
|
Lernco, Inc. |
|
822,421,763 |
|
1/28/2000 |
|
822,421,763 |
|
12/6/2005 |
|
|
|
No |
7856 |
|
NY & CO |
|
25 |
|
Lernco, Inc. |
|
822,421,755 |
|
1/28/2000 |
|
|
|
|
|
|
|
No |
7855 |
|
NY & CO |
|
3 |
|
Lernco, Inc. |
|
822,421,747 |
|
1/28/2000 |
|
|
|
|
|
|
|
No |
Country |
|
Bulgaria |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
ID |
|
Mark |
|
Classes |
|
Reg. Owner |
|
App. # |
|
App. Dt |
|
Reg. # |
|
Reg. Dt |
|
Allow. Dt |
|
ITU |
4038 |
|
LERNER NEW YORK |
|
3, 14, 18, 25 |
|
Lernco, Inc. |
|
26,937 |
|
4/13/1994 |
|
26,627 |
|
8/24/1995 |
|
|
|
No |
4060 |
|
LERNER NEW YORK |
|
42 |
|
Lernco, Inc. |
|
26,938 |
|
4/13/1994 |
|
4,341 |
|
8/24/1995 |
|
|
|
No |
14786 |
|
NEW YORK & COMPANY |
|
3, 9, 14, 18, 20, 25, 26, 35, 36 |
|
Lernco, Inc. |
|
926,844 |
|
1/3/2007 |
|
926,844 |
|
7/19/2007 |
|
|
|
No |
8085 |
|
NY & CO AND DESIGN |
|
3, 25, 42 |
|
Lernco, Inc. |
|
49,225 |
|
3/14/2000 |
|
40,296 |
|
7/25/2001 |
|
|
|
No |
Country |
|
Cambodia (Kampuchea) |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
ID |
|
Mark |
|
Classes |
|
Reg. Owner |
|
App. # |
|
App. Dt |
|
Reg. # |
|
Reg. Dt |
|
Allow. Dt |
|
ITU |
12131 |
|
LERNER |
|
3 |
|
Lernco, Inc. |
|
19932/04 |
|
1/13/2004 |
|
19380/04 |
|
3/2/2004 |
|
|
|
No |
12132 |
|
LERNER |
|
25 |
|
Lernco, Inc. |
|
19933/04 |
|
1/13/2004 |
|
19381/04 |
|
3/2/2004 |
|
|
|
No |
12133 |
|
LERNER |
|
35 |
|
Lernco, Inc. |
|
19934/04 |
|
1/13/2004 |
|
19382/04 |
|
3/2/2004 |
|
|
|
No |
12135 |
|
NEW YORK & COMPANY |
|
3 |
|
Lernco, Inc. |
|
19938/04 |
|
1/19/2004 |
|
20237/04 |
|
9/9/2004 |
|
|
|
No |
12136 |
|
NEW YORK & COMPANY |
|
25 |
|
Lernco, Inc. |
|
19939/04 |
|
1/19/2004 |
|
20238/04 |
|
9/9/2004 |
|
|
|
No |
12137 |
|
NEW YORK & COMPANY |
|
35 |
|
Lernco, Inc. |
|
19940/04 |
|
1/19/2004 |
|
20239/04 |
|
9/9/2004 |
|
|
|
No |
Country: |
|
Canada |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
ID |
|
Mark |
|
Classes |
|
Reg. Owner |
|
App. # |
|
App. Dt |
|
Reg. # |
|
Reg. Dt |
|
Allow. Dt |
|
ITU |
2302 |
|
LERNER |
|
25 |
|
Lernco, Inc. |
|
423,797 |
|
4/21/1978 |
|
262,235 |
|
9/4/1981 |
|
|
|
No |
2303 |
|
LERNER |
|
42 |
|
Lernco, Inc. |
|
423,798 |
|
4/21/1978 |
|
262,236 |
|
9/4/1981 |
|
|
|
No |
12334 |
|
NEW YORK & COMPANY |
|
3, 9, 14, 18, 20, 25, 26, 35, 36 |
|
Lernco, Inc. |
|
1,217,425 |
|
5/19/2004 |
|
|
|
|
|
|
|
No |
7908 |
|
NY & CO AND DESIGN |
|
3, 25, 35 |
|
Lernco, Inc. |
|
1,050,520 |
|
3/13/2000 |
|
|
|
|
|
|
|
No |
TM Rights (Grouped by country) |
|
Report Date: 8/23/2007 |
Country: |
|
Chile |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
ID |
|
Mark |
|
Classes |
|
Reg. Owner |
|
App. # |
|
App. Dt |
|
Reg. # |
|
Reg. Dt |
|
Allow. Dt |
|
ITU |
1362 |
|
LERNER |
|
42 |
|
Lernco, Inc. |
|
347,474 |
|
6/19/1986 |
|
778,705 |
|
10/7/1996 |
|
|
|
No |
2305 |
|
LERNER |
|
25 |
|
Lernco, Inc. |
|
|
|
6/19/1986 |
|
777,132 |
|
10/7/1996 |
|
|
|
No |
2306 |
|
LERNER |
|
25 |
|
Lernco, Inc. |
|
|
|
1/7/1987 |
|
487,211 |
|
4/9/1987 |
|
|
|
No |
8548 |
|
NY & CO AND DESIGN |
|
42 |
|
Lernco, Inc. |
|
488,773 |
|
6/2/2000 |
|
|
|
|
|
|
|
No |
8547 |
|
NY & CO AND DESIGN |
|
3,25 |
|
Lernco, Inc. |
|
489,690 |
|
6/9/2000 |
|
673,571 |
|
9/16/2003 |
|
|
|
No |
8549 |
|
NY & CO AND DESIGN |
|
3,25 |
|
Lernco, Inc. |
|
488,772 |
|
6/2/2000 |
|
670,610 |
|
8/8/2003 |
|
|
|
No |
Country: |
|
China (Peoples Republic of) |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
ID |
|
Mark |
|
Classes |
|
Reg. Owner |
|
App. # |
|
App. Dt |
|
Reg. # |
|
Reg. Dt |
|
Allow. Dt |
|
ITU |
2307 |
|
LERNER |
|
25 |
|
Lernco, Inc. |
|
|
|
10/7/1986 |
|
288,874 |
|
5/30/1987 |
|
|
|
No |
3673 |
|
LERNER |
|
42 |
|
Lernco, Inc. |
|
93/068,880 |
|
8/14/1993 |
|
776,376 |
|
1/21/1995 |
|
|
|
No |
14787 |
|
NEW YORK & COMPANY |
|
3, 9, 14, 18, 20, 25, 26, 35, 36 |
|
Lernco, Inc. |
|
926,844 |
|
1/3/2007 |
|
926,844 |
|
7/19/2007 |
|
|
|
No |
8094 |
|
NY & CO AND DESIGN |
|
35 |
|
Lernco, Inc. |
|
2000047617 |
|
4/13/2000 |
|
1,595,953 |
|
6/28/2001 |
|
|
|
No |
8096 |
|
NY & CO AND DESIGN |
|
3 |
|
Lernco, Inc. |
|
2000047615 |
|
4/13/2000 |
|
1,596,375 |
|
7/7/2001 |
|
|
|
No |
8095 |
|
NY & CO AND DESIGN |
|
25 |
|
Lernco, Inc. |
|
2000047616 |
|
4/13/2000 |
|
1,589,200 |
|
6/21/2001 |
|
|
|
No |
Country: |
|
Colombia |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
ID |
|
Mark |
|
Classes |
|
Reg. Owner |
|
App. # |
|
App. Dt |
|
Reg. # |
|
Reg. Dt |
|
Allow. Dt |
|
ITU |
2308 |
|
LERNER |
|
25 |
|
Lernco, Inc. |
|
255,743 |
|
4/29/1986 |
|
127,086 |
|
12/14/1989 |
|
|
|
No |
4365 |
|
LERNER NEW YORK |
|
42 |
|
Lernco, Inc. |
|
024,439 |
|
6/7/1994 |
|
173,073 |
|
1/25/1995 |
|
|
|
No |
8132 |
|
NY & CO AND DESIGN |
|
42 |
|
Lernco, Inc. |
|
26583 |
|
4/11/2000 |
|
233,703 |
|
3/29/2001 |
|
|
|
No |
8072 |
|
NY & CO AND DESIGN |
|
3 |
|
Lernco, Inc. |
|
26,584 |
|
4/11/2000 |
|
233,704 |
|
3/29/2001 |
|
|
|
No |
8100 |
|
NY & CO AND DESIGN |
|
25 |
|
Lernco, Inc. |
|
26582 |
|
4/11/2000 |
|
233,702 |
|
3/29/2001 |
|
|
|
No |
Country: |
|
Costa Rica |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
ID |
|
Mark |
|
Classes |
|
Reg. Owner |
|
App. # |
|
App. Dt |
|
Reg. # |
|
Reg. Dt |
|
Allow. Dt |
|
ITU |
692 |
|
LERNER |
|
25 |
|
Lernco, Inc. |
|
89,911 |
|
8/22/1994 |
|
90,099 |
|
2/6/1995 |
|
|
|
No |
681 |
|
LERNER NEW YORK AND DESIGN |
|
42 |
|
Lernco, Inc. |
|
89,970 |
|
8/22/1994 |
|
90,104 |
|
2/6/1995 |
|
|
|
No |
13458 |
|
NY & CO AND DESIGN |
|
35 |
|
Lernco, Inc. |
|
2002-346 |
|
1/17/2002 |
|
|
|
|
|
|
|
No |
Country: |
|
Czech Republic |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
ID |
|
Mark |
|
Classes |
|
Reg. Owner |
|
App. # |
|
App. Dt |
|
Reg. # |
|
Reg. Dt |
|
Allow. Dt |
|
ITU |
4695 |
|
LERNER NEW YORK |
|
25, 39 |
|
Lernco, Inc. |
|
94/91009 |
|
7/1/1994 |
|
192,038 |
|
7/24/1996 |
|
|
|
No |
14788 |
|
NEW YORK & COMPANY |
|
3, 9, 14, 18, 20, 25, 26, 35, 36 |
|
Lernco, Inc. |
|
926,844 |
|
1/3/2007 |
|
926,844 |
|
7/19/2007 |
|
|
|
No |
8254 |
|
NY & CO AND DESIGN |
|
3, 25, 39 |
|
Lernco, Inc. |
|
153,799 |
|
3/31/2000 |
|
234,336 |
|
6/25/2001 |
|
|
|
No |
TM Rights (Grouped by country) |
|
Report Date: 8/23/2007 |
Country: |
|
Denmark |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
ID |
|
Mark |
|
Classes |
|
Reg. Owner |
|
App. # |
|
App. Dt |
|
Reg. # |
|
Reg. Dt |
|
Allow. Dt |
|
ITU |
2310 |
|
LERNER |
|
42 |
|
Lernco, Inc. |
|
2709-1986 |
|
4/24/1986 |
|
1685-1988 |
|
4/25/1988 |
|
|
|
No |
2311 |
|
LERNER |
|
25 |
|
Lernco, Inc. |
|
2887-1987 |
|
5/6/1987 |
|
2052-1989 |
|
5/5/1989 |
|
|
|
No |
14789 |
|
NEW YORK & COMPANY |
|
3, 9, 14, 18, 20, 25, 26, 35, 36 |
|
Lernco, Inc. |
|
926,844 |
|
1/3/2007 |
|
926,844 |
|
7/19/2007 |
|
|
|
No |
7982 |
|
NY & CO AND DESIGN |
|
3, 25, 35 |
|
Lernco, Inc. |
|
VA200001315 |
|
3/23/2000 |
|
VR2000 02381 |
|
5/31/2000 |
|
|
|
No |
Country: |
|
Dominican Republic |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
ID |
|
Mark |
|
Classes |
|
Reg. Owner |
|
App. # |
|
App. Dt |
|
Reg. # |
|
Reg. Dt |
|
Allow. Dt |
|
ITU |
4598 |
|
LERNER NEW YORK |
|
44 |
|
Lernco, Inc. |
|
26,326 |
|
7/7/1994 |
|
74,353 |
|
10/15/1994 |
|
|
|
No |
14883 |
|
NEW YORK & COMPANY |
|
3, 14, 18, 25, 35 |
|
Lernco, Inc. |
|
2007-22845 |
|
4/9/2007 |
|
|
|
|
|
|
|
No |
8130 |
|
NY & CO AND DESIGN |
|
3 |
|
Lernco, Inc. |
|
19,085 |
|
4/12/2000 |
|
114,278 |
|
8/15/2000 |
|
|
|
No |
8131 |
|
NY & CO AND DESIGN |
|
16 |
|
Lernco, Inc. |
|
19,086 |
|
4/12/2000 |
|
114,334 |
|
8/30/2000 |
|
|
|
No |
8129 |
|
NY & CO AND DESIGN |
|
25 |
|
Lernco, Inc. |
|
19,087 |
|
4/12/2000 |
|
114,250 |
|
8/15/2000 |
|
|
|
No |
Country: |
|
Egypt |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
ID |
|
Mark |
|
Classes |
|
Reg. Owner |
|
App. # |
|
App. Dt |
|
Reg. # |
|
Reg. Dt |
|
Allow. Dt |
|
ITU |
4533 |
|
LERNER NEW YORK |
|
25 |
|
Lernco, Inc. |
|
91,363 |
|
6/23/1994 |
|
91,363 |
|
2/27/2000 |
|
|
|
No |
10253 |
|
LERNER NEW YORK |
|
35 |
|
Lernco, Inc. |
|
144,516 |
|
8/13/2001 |
|
144,516 |
|
10/10/2006 |
|
|
|
No |
14926 |
|
NEW YORK & COMPANY |
|
18 |
|
Lernco, Inc. |
|
203,434 |
|
7/1/2007 |
|
|
|
|
|
|
|
No |
14819 |
|
NEW YORK & COMPANY |
|
35 |
|
Lernco, Inc. |
|
195,562 |
|
1/10/2007 |
|
|
|
|
|
|
|
No |
14818 |
|
NEW YORK & COMPANY |
|
25 |
|
Lernco, Inc. |
|
195,561 |
|
1/10/2007 |
|
|
|
|
|
|
|
No |
14925 |
|
NEW YORK & COMPANY |
|
3 |
|
Lernco, Inc. |
|
203,433 |
|
7/1/2007 |
|
|
|
|
|
|
|
No |
8445 |
|
NY & CO AND DESIGN |
|
35 |
|
Lernco, Inc. |
|
132,741 |
|
5/10/2000 |
|
|
|
|
|
|
|
No |
8446 |
|
NY & CO AND DESIGN |
|
3 |
|
Lernco, Inc. |
|
132,739 |
|
5/10/2000 |
|
132,739 |
|
1/15/2005 |
|
|
|
No |
8447 |
|
NY & CO AND DESIGN |
|
25 |
|
Lernco, Inc. |
|
132,740 |
|
5/10/2000 |
|
132,740 |
|
12/12/2004 |
|
|
|
No |
TM Rights (Grouped by country) |
|
Report Date: 8/23/2007 |
Country: |
|
EI Salvador |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
ID |
|
Mark |
|
Classes |
|
Reg. Owner |
|
App. # |
|
App. Dt |
|
Reg. # |
|
Reg. Dt |
|
Allow. Dt |
|
ITU |
4131 |
|
LERNER NEW YORK |
|
25 |
|
Lernco, Inc. |
|
1567/94 |
|
5/2/1994 |
|
237 Book 104 P 475-6 |
|
5/25/2000 |
|
|
|
No |
4130 |
|
LERNER NEW YORK |
|
18 |
|
Lernco, Inc. |
|
1568/94 |
|
5/2/1994 |
|
3 Book 49 Pages |
|
2/17/1997 |
|
|
|
No |
4132 |
|
LERNER NEW YORK |
|
42 |
|
Lernco, Inc. |
|
1564/94 |
|
5/2/1994 |
|
105 Book 104 P211-212 |
|
5/16/2000 |
|
|
|
No |
4129 |
|
LERNER NEW YORK |
|
14 |
|
Lernco, Inc. |
|
1566/94 |
|
5/2/1994 |
|
69 Book 107 P139-40 |
|
6/23/2000 |
|
|
|
No |
4128 |
|
LERNER NEW YORK |
|
3 |
|
Lernco, Inc. |
|
19887/2001 |
|
5/2/1994 |
|
79 Book 170 P159-160 |
|
3/21/2003 |
|
|
|
No |
8114 |
|
NY & CO AND DESIGN |
|
3 |
|
Lernco, Inc. |
|
2306/2000 |
|
3/28/2000 |
|
109 Book 187 P223-4 |
|
10/13/2004 |
|
|
|
No |
8118 |
|
NY & CO AND DESIGN |
|
25 |
|
Lernco, Inc. |
|
2305/2000 |
|
3/28/2000 |
|
|
|
|
|
|
|
No |
8119 |
|
NY & CO AND DESIGN |
|
35 |
|
Lernco, Inc. |
|
2304/2000 |
|
3/28/2000 |
|
108 Book 187 P221-2 |
|
10/13/2004 |
|
|
|
No |
8120 |
|
NY & CO AND DESIGN |
|
42 |
|
Lemco, Inc. |
|
2303/2000 |
|
3/28/2000 |
|
|
|
|
|
|
|
No |
Country: |
|
European Union |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
ID |
|
Mark |
|
Classes |
|
Reg. Owner |
|
App. # |
|
App. Dt |
|
Reg. # |
|
Reg. Dt |
|
Allow. Dt |
|
ITU |
7174 |
|
LERNER NEW YORK |
|
3, 25, 42 |
|
Lernco, Inc. |
|
325,431 |
|
8/13/1996 |
|
325,431 |
|
12/4/1998 |
|
|
|
No |
14790 |
|
NEW YORK & COMPANY |
|
3, 9, 14, 18, 20, 25, 26, 35, 36 |
|
Lernco, Inc. |
|
926,844 |
|
1/3/2007 |
|
926,844 |
|
7/19/2007 |
|
|
|
No |
Country: |
|
Finland |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
ID |
|
Mark |
|
Classes |
|
Reg. Owner |
|
App. # |
|
App. Dt |
|
Reg. # |
|
Reg. Dt |
|
Allow. Dt |
|
ITU |
4451 |
|
LERNER NEW YORK |
|
25, 35, 42 |
|
Lernco, Inc. |
|
3154/94 |
|
6/21/1994 |
|
140,801 |
|
11/20/1995 |
|
|
|
No |
14791 |
|
NEW YORK & COMPANY |
|
3, 9, 14, 18, 20, 25, 26, 35, 36 |
|
Lernco, Inc. |
|
926,844 |
|
1/3/2007 |
|
926,844 |
|
7/19/2007 |
|
|
|
No |
7932 |
|
NY & CO AND DESIGN |
|
3, 25, 35 |
|
Lernco, Inc. |
|
T200000859 |
|
3/14/2000 |
|
219,910 |
|
12/29/2000 |
|
|
|
No |
Country: |
|
France |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
ID |
|
Mark |
|
Classes |
|
Reg. Owner |
|
App. # |
|
App. Dt |
|
Reg. # |
|
Reg. Dt |
|
Allow. Dt |
|
ITU |
2313 |
|
LERNER |
|
25 |
|
Lernco, Inc. |
|
|
|
5/22/1986 |
|
1,355,689 |
|
5/22/1986 |
|
|
|
No |
2314 |
|
LERNER |
|
35 |
|
Lernco, Inc. |
|
|
|
7/21/1986 |
|
1,386,464 |
|
7/21/1986 |
|
|
|
No |
14792 |
|
NEW YORK & COMPANY |
|
3, 9, 14, 18, 20, 25, 26, 35, 36 |
|
Lernco, Inc. |
|
926,844 |
|
1/3/2007 |
|
926,844 |
|
7/19/2007 |
|
|
|
No |
8148 |
|
NY & CO AND DESIGN |
|
3, 16, 25 |
|
Lernco, Inc. |
|
00 3015839 |
|
3/21/2000 |
|
00 3015839 |
|
3/21/2000 |
|
|
|
No |
TM Rights (Grouped by country) |
|
Report Date: 8/23/2007 |
Country: |
|
Gaza District |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
ID |
|
Mark |
|
Classes |
|
Reg. Owner |
|
App. # |
|
App. Dt |
|
Reg. # |
|
Reg. Dt |
|
Allow. Dt |
|
ITU |
7161 |
|
LERNER NEW YORK |
|
35 |
|
Lernco, Inc. |
|
4,904 |
|
7/24/1997 |
|
4,904 |
|
6/3/1998 |
|
|
|
No |
7160 |
|
LERNER NEW YORK |
|
25 |
|
Lernco, Inc. |
|
4,903 |
|
7/24/1997 |
|
4,903 |
|
6/3/1998 |
|
|
|
No |
8078 |
|
NY & CO AND DESIGN |
|
25 |
|
Lernco, Inc. |
|
6,992 |
|
3/30/2000 |
|
6,992 |
|
8/4/2001 |
|
|
|
No |
8079 |
|
NY & CO AND DESIGN |
|
35 |
|
Lernco, Inc. |
|
6,993 |
|
3/30/2000 |
|
6,993 |
|
8/4/2001 |
|
|
|
No |
8077 |
|
NY & CO AND DESIGN |
|
3 |
|
Lernco, Inc. |
|
6,991 |
|
3/30/2000 |
|
6,991 |
|
8/4/2001 |
|
|
|
No |
Country: |
|
Germany |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
ID |
|
Mark |
|
Classes |
|
Reg. Owner |
|
App. # |
|
App. Dt |
|
Reg. # |
|
Reg. Dt |
|
Allow. Dt |
|
ITU |
2309 |
|
LERNER |
|
25 |
|
Lernco, Inc. |
|
L 29287/25 Wz |
|
7/28/1986 |
|
1,103,100 |
|
4/3/1987 |
|
|
|
No |
5244 |
|
LERNER NEW YORK |
|
35,42 |
|
Lernco, Inc. |
|
395 46 914.7 |
|
11/17/1995 |
|
395 46 914 |
|
7/3/1996 |
|
|
|
No |
14793 |
|
NEW YORK & COMPANY |
|
3, 9, 14, 18, 20, 25, 26, 35, 36 |
|
Lernco, Inc. |
|
926,844 |
|
1/3/2007 |
|
926,844 |
|
7/19/2007 |
|
|
|
No |
8141 |
|
NY & CO AND DESIGN |
|
3, 25, 35 |
|
Lernco, Inc. |
|
300 19 077.8/03 |
|
3/13/2000 |
|
300 19 077 |
|
10/16/2000 |
|
|
|
No |
Country: |
|
Guatemala |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
ID |
|
Mark |
|
Classes |
|
Reg. Owner |
|
App. # |
|
App. Dt |
|
Reg. # |
|
Reg. Dt |
|
Allow. Dt |
|
ITU |
11043 |
|
LERNER |
|
42 |
|
Lernco, Inc. |
|
|
|
|
|
115,671 |
|
2/21/2002 |
|
|
|
No |
3907 |
|
LERNER NEW YORK |
|
25 |
|
Lernco, Inc. |
|
|
|
4/21/1994 |
|
|
|
|
|
|
|
No |
3908 |
|
LERNER NEW YORK |
|
42 |
|
Lernco, Inc. |
|
|
|
4/21/1994 |
|
78,737 |
|
4/30/1996 |
|
|
|
No |
14854 |
|
NEW YORK & COMPANY |
|
25 |
|
Lernco, Inc. |
|
2245-07 |
|
3/15/2007 |
|
|
|
|
|
|
|
No |
14855 |
|
NEW YORK & COMPANY |
|
35 |
|
Lernco, Inc. |
|
2244-07 |
|
3/15/2007 |
|
|
|
|
|
|
|
No |
9437 |
|
NY & CO AND DESIGN |
|
3 |
|
Lernco, Inc. |
|
|
|
|
|
108,906 |
|
1/22/2001 |
|
|
|
No |
9438 |
|
NY & CO AND DESIGN |
|
25 |
|
Lernco, Inc. |
|
|
|
|
|
108,908 |
|
1/22/2001 |
|
|
|
No |
9436 |
|
NY & CO AND DESIGN |
|
42 |
|
Lernco, Inc. |
|
|
|
|
|
108,877 |
|
1/19/2001 |
|
|
|
No |
TM Rights (Grouped by country) |
|
Report Date: 8/23/2007 |
Country: |
|
Honduras |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
ID |
|
Mark |
|
Classes |
|
Reg. Owner |
|
App. # |
|
App. Dt |
|
Reg. # |
|
Reg. Dt |
|
Allow. Dt |
|
ITU |
3949 |
|
LERNER NEW YORK |
|
42 |
|
Lernco, Inc. |
|
2771/94 |
|
4/13/1994 |
|
1,935 |
|
1/12/1995 |
|
|
|
No |
3948 |
|
LERNER NEW YORK |
|
25 |
|
Lernco, Inc. |
|
2770/94 |
|
4/13/1994 |
|
61,511 |
|
5/12/1995 |
|
|
|
No |
8126 |
|
NY & CO AND DESIGN |
|
3 |
|
Lernco, Inc. |
|
5726/2000 |
|
4/10/2000 |
|
80,240 |
|
12/27/2000 |
|
|
|
No |
8127 |
|
NY & CO AND DESIGN |
|
25 |
|
Lernco, Inc. |
|
5725/2000 |
|
4/10/2000 |
|
80,064 |
|
12/13/2000 |
|
|
|
No |
8128 |
|
NY & CO AND DESIGN |
|
42 |
|
Lernco, Inc. |
|
5724/2000 |
|
4/10/2000 |
|
7,341 |
|
12/27/2000 |
|
|
|
No |
Country: |
|
Hong Kong |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
ID |
|
Mark |
|
Classes |
|
Reg. Owner |
|
App. # |
|
App. Dt |
|
Reg. # |
|
Reg. Dt |
|
Allow. Dt |
|
ITU |
3623 |
|
LEARNER |
|
25 |
|
Lernco, Inc. |
|
|
|
9/30/1987 |
|
B781 of 1989 |
|
3/17/1989 |
|
|
|
No |
966 |
|
LEARNER |
|
42 |
|
Lernco, Inc. |
|
12445/1995 |
|
10/4/1995 |
|
B10848/1997 |
|
11/5/1997 |
|
|
|
No |
14820 |
|
NEW YORK & COMPANY |
|
3, 14, 18, 25, 35 |
|
Lernco, Inc. |
|
300790885 |
|
1/4/2007 |
|
|
|
|
|
|
|
No |
7979 |
|
NY & CO AND DESIGN |
|
3, 25,35 |
|
Lernco, Inc. |
|
5222/2000 |
|
4/4/2003 |
|
300126116A A |
|
12/29/2003 |
|
|
|
No |
Country: |
|
Hungary |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
ID |
|
Mark |
|
Classes |
|
Reg. Owner |
|
App. # |
|
App. Dt |
|
Reg. # |
|
Reg. Dt |
|
Allow. Dt |
|
ITU |
2316 |
|
LERNER |
|
25,42 |
|
Lernco, Inc. |
|
|
|
5/26/1986 |
|
126,001 |
|
2/6/1987 |
|
|
|
No |
14795 |
|
NEW YORK & COMPANY |
|
3, 9, 14, 18, 20, 25, 26, 35, 36 |
|
Lernco, Inc. |
|
926,844 |
|
1/3/2007 |
|
926,844 |
|
7/19/2007 |
|
|
|
No |
8107 |
|
NY & CO AND DESIGN |
|
3, 25, 42 |
|
Lernco, Inc. |
|
M000I545 |
|
3/17/2000 |
|
172,142 |
|
9/23/2002 |
|
|
|
No |
Country: |
|
India |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
ID |
|
Mark |
|
Classes |
|
Reg. Owner |
|
App. # |
|
App. Dt |
|
Reg. # |
|
Reg. Dt |
|
Allow. Dt |
|
ITU |
3903 |
|
LERNER NEW YORK |
|
25 |
|
Lernco, Inc. |
|
625,620 |
|
4/19/1994 |
|
625,620 |
|
7/15/2003 |
|
|
|
No |
11759 |
|
LERNER NEW YORK |
|
35 |
|
Lernco, Inc. |
|
1,236,592 |
|
9/15/2003 |
|
1,236,592 |
|
12/26/2005 |
|
|
|
No |
14822 |
|
NEW YORK & COMPANY |
|
3, 14, 18, 25, 35 |
|
Lernco, Inc. |
|
1,523,588 |
|
1/15/2007 |
|
|
|
|
|
|
|
No |
13482 |
|
NY & CO AND DESIGN |
|
35 |
|
Lernco, Inc. |
|
1,250,055 |
|
11/17/2003 |
|
1,250,055 |
|
12/29/2005 |
|
|
|
No |
8498 |
|
NY & CO AND DESIGN |
|
25 |
|
Lernco, Inc. |
|
912,079 |
|
3/24/2000 |
|
|
|
|
|
|
|
No |
8499 |
|
NY & CO AND DESIGN |
|
3 |
|
Lernco, Inc. |
|
912,077 |
|
3/24/2000 |
|
912,077 |
|
10/21/2005 |
|
|
|
No |
8500 |
|
NY & CO AND DESIGN |
|
16 |
|
Lernco, Inc. |
|
912,078 |
|
3/24/2000 |
|
912,078 |
|
2/2/2006 |
|
|
|
No |
TM Rights (Grouped by country) |
|
Report Date: 8/23/2007 |
Country: |
|
Indonesia |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
ID |
|
Mark |
|
Classes |
|
Reg. Owner |
|
App. # |
|
App. Dt |
|
Reg. # |
|
Reg. Dt |
|
Allow. Dt |
|
ITU |
7599 |
|
LERNER |
|
25 |
|
Lernco, Inc. |
|
D96-9111 |
|
5/7/1996 |
|
380,327 |
|
8/15/1997 |
|
|
|
No |
12186 |
|
LERNER NEW YORK |
|
35 |
|
Lernco, Inc. |
|
J00-2004-05091-05134 |
|
3/1/2004 |
|
IDM000050 333 |
|
9/14/2005 |
|
|
|
No |
14861 |
|
NEW YORK & COMPANY |
|
35 |
|
Lernco, Inc. |
|
J00-2007-001249 |
|
1/15/2007 |
|
|
|
|
|
|
|
No |
14862 |
|
NEW YORK & COMPANY |
|
25 |
|
Lernco, Inc. |
|
D00-2007-001248 |
|
1/15/2007 |
|
|
|
|
|
|
|
No |
8147 |
|
NY & CO and Design |
|
35 |
|
Lernco, Inc. |
|
J00-5127 |
|
5/29/2000 |
|
477,684 |
|
5/25/2001 |
|
|
|
No |
8125 |
|
NY & CO AND DESIGN |
|
25 |
|
Lernco, Inc. |
|
D00.5126 |
|
5/29/2000 |
|
477,683 |
|
5/25/2001 |
|
|
|
No |
8113 |
|
NY & CO AND DESIGN |
|
3 |
|
Lernco, Inc. |
|
DOO-5125 |
|
5/29/2000 |
|
481,085 |
|
6/21/2001 |
|
|
|
No |
Country: |
|
Ireland |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
ID |
|
Mark |
|
Classes |
|
Reg. Owner |
|
App. # |
|
App. Dt |
|
Reg. # |
|
Reg. Dt |
|
Allow. Dt |
|
ITU |
4456 |
|
LERNER NEW YORK |
|
25 |
|
Lernco, Inc. |
|
94/3591 |
|
6/14/1994 |
|
161,697 |
|
11/23/1995 |
|
|
|
No |
7346 |
|
LERNER NEW YORK |
|
42 |
|
Lernco, Inc. |
|
95/3611 |
|
7/1/1996 |
|
205,951 |
|
7/7/1999 |
|
|
|
No |
7348 |
|
LERNER NEW YORK |
|
16,41 |
|
Lernco, Inc. |
|
98/3073 |
|
7/28/1998 |
|
210,091 |
|
4/27/2000 |
|
|
|
No |
14796 |
|
NEW YORK & COMPANY |
|
3, 9, 14, 18, 20, 25, 26, 35, 36 |
|
Lernco, Inc. |
|
926,844 |
|
1/3/2007 |
|
926,844 |
|
7/19/2007 |
|
|
|
No |
7952 |
|
NY & CO AND DESIGN |
|
3, 25, 35, 39 |
|
Lernco, Inc. |
|
2000/00926 |
|
3/20/2000 |
|
222,496 |
|
9/11/2002 |
|
|
|
No |
Country: |
|
Israel |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
ID |
|
Mark |
|
Classes |
|
Reg. Owner |
|
App. # |
|
App. Dt |
|
Reg. # |
|
Reg. Dt |
|
Allow. Dt |
|
ITU |
3918 |
|
LERNER NEW YORK |
|
25 |
|
Lernco, Inc. |
|
92,118 |
|
4/12/1994 |
|
92,118 |
|
5/1/1996 |
|
|
|
No |
3919 |
|
LERNER NEW YORK |
|
42 |
|
Lernco, Inc. |
|
92,119 |
|
4/12/1994 |
|
92,119 |
|
5/1/1996 |
|
|
|
No |
8222 |
|
NY & CO AND DESIGN |
|
25 |
|
Lernco, Inc. |
|
136,076 |
|
3/21/2000 |
|
136,076 |
|
9/5/2001 |
|
|
|
No |
8221 |
|
NY & CO AND DESIGN |
|
3 |
|
Lernco, Inc. |
|
136,075 |
|
3/21/2000 |
|
136,075 |
|
9/5/2001 |
|
|
|
No |
8223 |
|
NY & CO AND DESIGN |
|
35 |
|
Lernco, Inc. |
|
136,077 |
|
3/21/2000 |
|
136,077 |
|
9/5/2001 |
|
|
|
No |
Country: |
|
Jamaica |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
ID |
|
Mark |
|
Classes |
|
Reg. Owner |
|
App. # |
|
App. Dt |
|
Reg. # |
|
Reg. Dt |
|
Allow. Dt |
|
ITU |
10497 |
|
NY & CO AND DESIGN |
|
35 |
|
Lernco, Inc. |
|
41,390 |
|
10/12/2001 |
|
41,390 |
|
5/16/2003 |
|
|
|
No |
8143 |
|
NY & CO and Design |
|
16 |
|
Lernco, Inc. |
|
16/3001 |
|
3/16/2000 |
|
38,708 |
|
5/15/2002 |
|
|
|
No |
8144 |
|
NY & CO and Design |
|
25 |
|
Lernco, Inc. |
|
25/2269 |
|
3/16/2000 |
|
38,769 |
|
6/11/2002 |
|
|
|
No |
8142 |
|
NY & CO and Design |
|
3 |
|
Lernco, Inc. |
|
3/4078 |
|
3/16/2000 |
|
38,732 |
|
5/14/2002 |
|
|
|
No |
TM Rights (Grouped by country) |
|
Report Date: 8/23/2007 |
Country: |
|
Japan |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
ID |
|
Mark |
|
Classes |
|
Reg. Owner |
|
App. # |
|
App. Dt |
|
Reg. # |
|
Reg. Dt |
|
Allow. Dt |
|
ITU |
2319 |
|
LERNER |
|
17 |
|
Lernco, Inc. |
|
|
|
5/15/1986 |
|
2,114,688 |
|
2/21/1989 |
|
|
|
No |
1216 |
|
LERNER NEW YORK |
|
35 |
|
Lernco, Inc. |
|
73507/94 |
|
7/20/1994 |
|
3,357,873 |
|
11/7/1997 |
|
|
|
No |
4484 |
|
LERNER NEW YORK |
|
39 |
|
Lernco, Inc. |
|
73508/94 |
|
7/20/1994 |
|
3,352,532 |
|
10/17/1997 |
|
|
|
No |
14798 |
|
NEW YORK & COMPANY |
|
3, 9, 14, 18, 20, 25, 26, 35, 36 |
|
Lernco, Inc. |
|
926,844 |
|
1/3/2007 |
|
926,844 |
|
7/19/2007 |
|
|
|
No |
7986 |
|
NY & CO AND DESIGN |
|
35 |
|
Lernco, Inc. |
|
2000-038466 |
|
3/22/2000 |
|
4,477,894 |
|
5/25/2001 |
|
|
|
No |
7987 |
|
NY & CO AND DESIGN |
|
25 |
|
Lernco, Inc. |
|
2000-038465 |
|
3/22/2000 |
|
4,446,389 |
|
1/19/2001 |
|
|
|
No |
Country: |
|
Jordan |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
ID |
|
Mark |
|
Classes |
|
Reg. Owner |
|
App. # |
|
App. Dt |
|
Reg. # |
|
Reg. Dt |
|
Allow. Dt |
|
ITU |
4518 |
|
LERNER NEW YORK |
|
25 |
|
Lernco, Inc. |
|
35,872 |
|
8/15/1994 |
|
35,872 |
|
6/29/1995 |
|
|
|
No |
8434 |
|
LERNER NEW YORK |
|
42 |
|
Lernco, Inc. |
|
61,905 |
|
5/11/2000 |
|
61,905 |
|
10/27/2002 |
|
|
|
No |
14945 |
|
NEW YORK & COMPANY |
|
18 |
|
Lernco, Inc. |
|
|
|
7/19/2007 |
|
|
|
|
|
|
|
No |
14942 |
|
NEW YORK & COMPANY |
|
25 |
|
Lernco, Inc. |
|
|
|
7/19/2007 |
|
|
|
|
|
|
|
No |
14943 |
|
NEW YORK & COMPANY |
|
42 |
|
Lernco, Inc. |
|
|
|
7/19/2007 |
|
|
|
|
|
|
|
No |
14944 |
|
NEW YORK & COMPANY |
|
3 |
|
Lernco, Inc. |
|
|
|
7/19/2007 |
|
|
|
|
|
|
|
No |
8488 |
|
NY & CO AND DESIGN |
|
42 |
|
Lernco, Inc. |
|
61,448 |
|
5/11/2000 |
|
61,448 |
|
9/15/2002 |
|
|
|
No |
8489 |
|
NY & CO AND DESIGN |
|
3 |
|
Lernco, Inc. |
|
57,894 |
|
5/11/2000 |
|
57,894 |
|
12/10/2001 |
|
|
|
No |
8490 |
|
NY & CO AND DESIGN |
|
25 |
|
Lernco, Inc. |
|
57,893 |
|
5/11/2000 |
|
57,893 |
|
12/10/2001 |
|
|
|
No |
Country: |
|
Kenya |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
ID |
|
Mark |
|
Classes |
|
Reg. Owner |
|
App. # |
|
App. Dt |
|
Reg. # |
|
Reg. Dt |
|
Allow. Dt |
|
ITU |
14799 |
|
NEW YORK & COMPANY |
|
3, 9, 14, 18, 20, 25, 26, 35, 36 |
|
Lernco, Inc. |
|
926,844 |
|
1/3/2007 |
|
926,844 |
|
7/19/2007 |
|
|
|
No |
Country: |
|
Kuwait |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
ID |
|
Mark |
|
Classes |
|
Reg. Owner |
|
App. # |
|
App. Dt |
|
Reg. # |
|
Reg. Dt |
|
Allow. Dt |
|
ITU |
4656 |
|
LERNER |
|
25 |
|
Lernco, Inc. |
|
29,447 |
|
9/26/1994 |
|
27,144 |
|
12/16/1997 |
|
|
|
No |
11050 |
|
NY & CO AND DESIGN |
|
3 |
|
Lernco, Inc. |
|
47,028 |
|
6/21/2000 |
|
44,249 |
|
5/7/2003 |
|
|
|
No |
11051 |
|
NY & CO AND DESIGN |
|
35 |
|
Lernco, Inc. |
|
47,029 |
|
6/21/2000 |
|
44,248 |
|
5/7/2003 |
|
|
|
No |
8458 |
|
NY & CO. AND RECTANGULAR DESIGN |
|
25 |
|
Lernco, Inc. |
|
47,030 |
|
6/21/2000 |
|
44,247 |
|
5/5/2003 |
|
|
|
No |
TM Rights (Grouped by country) |
|
Report Date: 8/23/2007 |
Country: |
|
Lesotho |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
ID |
|
Mark |
|
Classes |
|
Reg. Owner |
|
App. # |
|
App. Dt |
|
Reg. # |
|
Reg. Dt |
|
Allow. Dt |
|
ITU |
13016 |
|
LERNER |
|
3, 25, 35 |
|
Lernco, Inc. |
|
LS/M/04/00157 |
|
1/21/2004 |
|
LS/M/04/00 157 |
|
7/19/2005 |
|
|
|
No |
12696 |
|
NEW YORK & COMPANY |
|
3, 25, 35 |
|
Lernco, Inc. |
|
LS/M/04/00156 |
|
1/21/2004 |
|
LS/M/04/00 156 |
|
7/19/2005 |
|
|
|
No |
Country: |
|
Macao |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
ID |
|
Mark |
|
Classes |
|
Reg. Owner |
|
App. # |
|
App. Dt |
|
Reg. # |
|
Reg. Dt |
|
Allow. Dt |
|
ITU |
3994 |
|
LERNER NEW YORK |
|
42 |
|
Lernco, Inc. |
|
13.527-M |
|
4/18/1994 |
|
13.527-M |
|
4/12/1995 |
|
|
|
No |
3993 |
|
LERNER NEW YORK |
|
25 |
|
Lernco, Inc. |
|
13.526-M |
|
4/18/1994 |
|
13.526-M |
|
4/12/1995 |
|
|
|
No |
Country: |
|
Madagascar |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
ID |
|
Mark |
|
Classes |
|
Reg. Owner |
|
App. # |
|
App. Dt |
|
Reg. # |
|
Reg. Dt |
|
Allow. Dt |
|
ITU |
12028 |
|
LERNER |
|
3, 25, 35 |
|
Lernco, Inc. |
|
2004/0058 |
|
2/13/2004 |
|
6,210 |
|
1/3/2005 |
|
|
|
No |
12029 |
|
NEW YORK & COMPANY |
|
3, 25, 35 |
|
Lernco, Inc. |
|
2004/0059 |
|
2/13/2004 |
|
6,209 |
|
1/3/2005 |
|
|
|
No |
Country: |
|
Malaysia |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
ID |
|
Mark |
|
Classes |
|
Reg. Owner |
|
App. # |
|
App. Dt |
|
Reg. # |
|
Reg. Dt |
|
Allow. Dt |
|
ITU |
7008 |
|
LERNER NEW YORK |
|
35 |
|
Lernco, Inc. |
|
97/18386 |
|
12/1/1997 |
|
97018386 |
|
3/30/2002 |
|
|
|
No |
4009 |
|
LERNER NEW YORK |
|
25 |
|
Lernco, Inc. |
|
94/07748 |
|
8/27/1994 |
|
94/07748 |
|
10/11/1996 |
|
|
|
No |
3335 |
|
LERNER NEW YORK |
|
3 |
|
Lernco, Inc. |
|
97/09744 |
|
7/18/1997 |
|
|
|
|
|
|
|
No |
8510 |
|
NY & CO AND DESIGN |
|
3 |
|
Lernco, Inc. |
|
2000/05121 |
|
4/25/2000 |
|
|
|
|
|
|
|
No |
8511 |
|
NY & CO AND DESIGN |
|
25 |
|
Lernco, Inc. |
|
2000/05122 |
|
4/25/2000 |
|
|
|
|
|
|
|
No |
8512 |
|
NY & CO AND DESIGN |
|
35 |
|
Lernco, Inc. |
|
2000/05123 |
|
4/25/2000 |
|
|
|
|
|
|
|
No |
Country: |
|
Mauritius |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
ID |
|
Mark |
|
Classes |
|
Reg. Owner |
|
App. # |
|
App. Dt |
|
Reg. # |
|
Reg. Dt |
|
Allow. Dt |
|
ITU |
2324 |
|
LERNER |
|
25 |
|
Lernco, Inc. |
|
|
|
6/19/1986 |
|
A/27 No. 112 |
|
10/30/1986 |
|
|
|
No |
10756 |
|
NY & CO AND DESIGN |
|
3, 16, 25 |
|
Lernco, Inc. |
|
|
|
4/6/2000 |
|
A/47 No. 235 |
|
2/25/2002 |
|
|
|
No |
TM Rights (Grouped by country) |
|
Report Date: 8/23/2007 |
Country: |
|
Mexico |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
ID |
|
Mark |
|
Classes |
|
Reg. Owner |
|
App. # |
|
App. Dt |
|
Reg. # |
|
Reg. Dt |
|
Allow. Dt |
|
ITU |
14627 |
|
LERNER |
|
35 |
|
Lernco, Inc. |
|
790,485 |
|
6/23/2006 |
|
957,595 |
|
10/13/2006 |
|
|
|
No |
14628 |
|
LERNER |
|
25 |
|
Lernco, Inc. |
|
790,486 |
|
6/23/2006 |
|
946,937 |
|
7/31/2006 |
|
|
|
No |
14860 |
|
NEW YORK & COMPANY |
|
35 |
|
Lernco, Inc. |
|
835,242 |
|
2/9/2007 |
|
976,631 |
|
3/14/2007 |
|
|
|
No |
14859 |
|
NEW YORK & COMPANY |
|
25 |
|
Lernco, Inc. |
|
835,240 |
|
2/9/2007 |
|
|
|
|
|
|
|
No |
8145 |
|
NY & CO AND DESIGN |
|
42 |
|
Lernco, Inc. |
|
419,339 |
|
4/4/2000 |
|
665,781 |
|
7/27/2000 |
|
|
|
No |
8101 |
|
NY & CO AND DESIGN |
|
3 |
|
Lernco, Inc. |
|
419,324 |
|
4/4/2000 |
|
658,030 |
|
5/31/2000 |
|
|
|
No |
11503 |
|
NY & CO NEW YORK & COMPANY AND DESIGN |
|
25 |
|
Lernco, Inc. |
|
602,178 |
|
5/23/2003 |
|
|
|
|
|
|
|
No |
11534 |
|
NY & CO NEW YORK & COMPANY AND DESIGN |
|
3 |
|
Lernco, Inc. |
|
604,054 |
|
6/5/2003 |
|
801,098 |
|
7/23/2003 |
|
|
|
No |
Country: |
|
Mongolia |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
ID |
|
Mark |
|
Classes |
|
Reg. Owner |
|
App. # |
|
App. Dt |
|
Reg. # |
|
Reg. Dt |
|
Allow. Dt |
|
ITU |
12001 |
|
LERNER |
|
3, 25, 35 |
|
Lernco, Inc. |
|
4,922 |
|
1/16/2004 |
|
4,557 |
|
1/16/2004 |
|
|
|
No |
12002 |
|
NEW YORK & COMPANY |
|
3, 25, 35 |
|
Lernco, Inc. |
|
4,923 |
|
1/16/2004 |
|
4,870 |
|
1/16/2004 |
|
|
|
No |
Country: |
|
Morocco |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
ID |
|
Mark |
|
Classes |
|
Reg. Owner |
|
App. # |
|
App. Dt |
|
Reg. # |
|
Reg. Dt |
|
Allow. Dt |
|
ITU |
4509 |
|
LERNER NEW YORK |
|
25,42 |
|
Lernco, Inc. |
|
|
|
7/25/1994 |
|
54,393 |
|
7/25/1994 |
|
|
|
No |
14800 |
|
NEW YORK & COMPANY |
|
3, 9, 14, 18, 20, 25, 26, 35, 36 |
|
Lernco, Inc. |
|
926,844 |
|
1/3/2007 |
|
926,844 |
|
7/19/2007 |
|
|
|
No |
7936 |
|
NY & CO AND DESIGN |
|
3, 25, 35 |
|
Lernco, Inc. |
|
72,818 |
|
3/20/2000 |
|
72,818 |
|
6/28/2000 |
|
|
|
No |
TM Rights (Grouped by country) |
|
Report Date: 8/23/2007 |
Country: |
|
New Zealand |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
ID |
|
Mark |
|
Classes |
|
Reg. Owner |
|
App. # |
|
App. Dt |
|
Reg. # |
|
Reg. Dt |
|
Allow. Dt |
|
ITU |
4608 |
|
LERNER NEW YORK |
|
25 |
|
Lernco, Inc. |
|
238,130 |
|
6/21/1994 |
|
238,130 |
|
4/15/1997 |
|
|
|
No |
4609 |
|
LERNER NEW YORK |
|
42 |
|
Lernco, Inc. |
|
238,131 |
|
6/21/1994 |
|
238,131 |
|
4/15/1997 |
|
|
|
No |
8053 |
|
NY & CO AND DESIGN |
|
3 |
|
Lernco, Inc. |
|
610,336 |
|
3/14/2000 |
|
610,336 |
|
9/14/2000 |
|
|
|
No |
8054 |
|
NY & CO AND DESIGN |
|
25 |
|
Lernco, Inc. |
|
610,337 |
|
3/14/2000 |
|
610,337 |
|
9/14/2000 |
|
|
|
No |
8055 |
|
NY & CO AND DESIGN |
|
35 |
|
Lernco, Inc. |
|
610,338 |
|
3/14/2000 |
|
610,338 |
|
9/14/2000 |
|
|
|
No |
Country: |
|
Nicaragua |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
ID |
|
Mark |
|
Classes |
|
Reg. Owner |
|
App. # |
|
App. Dt |
|
Reg. # |
|
Reg. Dt |
|
Allow. Dt |
|
ITU |
4676 |
|
LERNER |
|
25 |
|
Lernco, Inc. |
|
|
|
10/3/1994 |
|
27,890 |
|
3/7/1995 |
|
|
|
No |
4677 |
|
LERNER NEW YORK |
|
42 |
|
Lernco, Inc. |
|
|
|
10/3/1994 |
|
28,498 |
|
5/4/1995 |
|
|
|
No |
8198 |
|
NY & CO AND DESIGN |
|
25 |
|
Lernco, Inc. |
|
2000/01852 |
|
4/27/2000 |
|
51,053 |
|
9/11/2001 |
|
|
|
No |
8203 |
|
NY & CO AND DESIGN |
|
42 |
|
Lernco, Inc. |
|
2000/01853 |
|
4/27/2000 |
|
51,052 |
|
9/11/2001 |
|
|
|
No |
8201 |
|
NY & CO AND DESIGN |
|
3 |
|
Lernco, Inc. |
|
2000/01851 |
|
4/27/2000 |
|
51,054 |
|
9/11/2001 |
|
|
|
No |
Country: |
|
Norway |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
ID |
|
Mark |
|
Classes |
|
Reg. Owner |
|
App. # |
|
App. Dt |
|
Reg. # |
|
Reg. Dt |
|
Allow. Dt |
|
ITU |
2327 |
|
LERNER |
|
25,42 |
|
Lernco, Inc. |
|
|
|
4/11/1986 |
|
129,602 |
|
7/23/1987 |
|
|
|
No |
14801 |
|
NEW YORK & COMPANY |
|
3, 9, 14, 18, 20, 25, 26, 35, 36 |
|
Lernco, Inc. |
|
926,844 |
|
1/3/2007 |
|
926,844 |
|
7/19/2007 |
|
|
|
No |
8139 |
|
NY & CO AND DESIGN |
|
3, 25, 35, 39 |
|
Lernco, Inc. |
|
2000 03114 |
|
3/15/2000 |
|
206,761 |
|
2/1/2001 |
|
|
|
No |
Country: |
|
Pakistan |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
ID |
|
Mark |
|
Classes |
|
Reg. Owner |
|
App. # |
|
App. Dt |
|
Reg. # |
|
Reg. Dt |
|
Allow. Dt |
|
ITU |
8138 |
|
NY & CO AND DESIGN |
|
25 |
|
Lernco, Inc. |
|
161,735 |
|
3/21/2000 |
|
|
|
|
|
|
|
No |
12469 |
|
NY & CO AND DESIGN |
|
35 |
|
Lernco, Inc. |
|
201,229 |
|
9/21/2004 |
|
|
|
|
|
|
|
No |
8133 |
|
NY & CO AND DESIGN |
|
16 |
|
Lernco, Inc. |
|
162,207 |
|
4/13/2000 |
|
162,207 |
|
12/28/2006 |
|
|
|
No |
8137 |
|
NY & CO AND DESIGN |
|
3 |
|
Lernco, Inc. |
|
161,736 |
|
3/21/2000 |
|
|
|
|
|
|
|
No |
TM Rights (Grouped by country) |
|
Report Date: 8/23/2007 |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Country: |
|
Panama |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
ID |
|
Mark |
|
Classes |
|
Reg. Owner |
|
App. # |
|
App. Dt |
|
Reg. # |
|
Reg. Dt |
|
Allow. Dt |
|
ITU |
2328 |
|
LERNER |
|
42 |
|
Lernco, Inc. |
|
|
|
3/10/1987 |
|
43,689 |
|
11/24/1987 |
|
|
|
No |
2331 |
|
LERNER |
|
25 |
|
Lernco, Inc. |
|
|
|
3/11/1987 |
|
43,695 |
|
11/24/1987 |
|
|
|
No |
2330 |
|
LERNER |
|
18 |
|
Lernco, Inc. |
|
|
|
3/10/1987 |
|
43,691 |
|
11/24/1987 |
|
|
|
No |
2329 |
|
LERNER |
|
14 |
|
Lernco, Inc. |
|
|
|
3/10/1987 |
|
43,690 |
|
11/24/1987 |
|
|
|
No |
8880 |
|
NY & CO AND DESIGN |
|
3 |
|
Lernco, Inc. |
|
109,369 |
|
8/11/2000 |
|
109,369 |
|
10/15/2001 |
|
|
|
No |
8881 |
|
NY & CO AND DESIGN |
|
25 |
|
Lernco, Inc. |
|
109,370 |
|
8/11/2000 |
|
109,370 |
|
3/22/2005 |
|
|
|
No |
8882 |
|
NY & CO AND DESIGN |
|
35 |
|
Lernco, Inc. |
|
109,371 |
|
8/11/2000 |
|
109,371 |
|
10/15/2001 |
|
|
|
No |
Country: |
|
Paraguay |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
ID |
|
Mark |
|
Classes |
|
Reg. Owner |
|
App. # |
|
App. Dt |
|
Reg. # |
|
Reg. Dt |
|
Allow. Dt |
|
ITU |
2339 |
|
LERNER |
|
35 |
|
Lernco, Inc. |
|
|
|
6/19/1986 |
|
292,153 |
|
10/28/1986 |
|
|
|
No |
2340 |
|
LERNER |
|
25 |
|
Lernco, Inc. |
|
|
|
6/19/1986 |
|
292,154 |
|
10/28/1986 |
|
|
|
No |
8212 |
|
NY & CO and Design |
|
25 |
|
Lernco, Inc. |
|
8506-2000 |
|
4/13/2000 |
|
239,104 |
|
9/10/2001 |
|
|
|
No |
8211 |
|
NY & CO and Design |
|
3 |
|
Lernco, Inc. |
|
8507-2000 |
|
4/13/2000 |
|
239,105 |
|
9/10/2001 |
|
|
|
No |
8213 |
|
NY & CO and Design |
|
42 |
|
Lernco, Inc. |
|
8508-2000 |
|
4/13/2000 |
|
239,106 |
|
9/10/2001 |
|
|
|
No |
Country: |
|
Peru |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
ID |
|
Mark |
|
Classes |
|
Reg. Owner |
|
App. # |
|
App. Dt |
|
Reg. # |
|
Reg. Dt |
|
Allow. Dt |
|
ITU |
1076 |
|
LERNER NEW YORK |
|
39 |
|
Lernco, Inc. |
|
250,581 |
|
9/13/1994 |
|
003,318 |
|
1/18/1995 |
|
|
|
No |
4381 |
|
LERNER NEW YORK |
|
25 |
|
Lernco, Inc. |
|
247,082 |
|
7/19/1994 |
|
11,223 |
|
11/3/1994 |
|
|
|
No |
10143 |
|
LERNER NEW YORK |
|
35 |
|
Lernco, Inc. |
|
136,777 |
|
10/22/2001 |
|
28,269 |
|
1/16/2002 |
|
|
|
No |
14873 |
|
NEW YORK & COMPANY |
|
25 |
|
Lernco, Inc. |
|
310,827 |
|
4/4/2007 |
|
|
|
|
|
|
|
No |
14874 |
|
NEW YORK & COMPANY |
|
35 |
|
Lernco, Inc. |
|
310,828 |
|
4/4/2007 |
|
|
|
|
|
|
|
No |
8169 |
|
NY & CO AND DESIGN |
|
3 |
|
Lernco, Inc. |
|
105,816 |
|
5/9/2000 |
|
66,068 |
|
9/8/2000 |
|
|
|
No |
8205 |
|
NY & CO AND DESIGN |
|
25 |
|
Lernco, Inc. |
|
106505-2000 |
|
5/18/2000 |
|
78,796 |
|
3/11/2002 |
|
|
|
No |
Country: |
|
Philippines |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
ID |
|
Mark |
|
Classes |
|
Reg. Owner |
|
App. # |
|
App. Dt |
|
Reg. # |
|
Reg. Dt |
|
Allow. Dt |
|
ITU |
12607 |
|
LERNER |
|
18 |
|
Lernco, Inc. |
|
4-2004-010623 |
|
11/9/2004 |
|
|
|
|
|
|
|
No |
12788 |
|
LERNER |
|
25 |
|
Lernco, Inc. |
|
4-2005-000322 |
|
1/11/2005 |
|
|
|
|
|
|
|
No |
12789 |
|
LERNER |
|
42 |
|
Lernco, Inc. |
|
4-2005-000323 |
|
1/11/2005 |
|
|
|
|
|
|
|
No |
12620 |
|
LERNER |
|
14 |
|
Lernco, Inc. |
|
4-2005-000321 |
|
1/11/2005 |
|
|
|
|
|
|
|
No |
14885 |
|
NEW YORK & COMPANY |
|
3, 14, 18, 25, 35 |
|
Lernco, Inc. |
|
4-2007-000374 |
|
1/11/2007 |
|
|
|
|
|
|
|
No |
14483 |
|
NY & CO AND DESIGN |
|
3,35 |
|
Lernco, Inc. |
|
4-2006-005756 |
|
5/31/2006 |
|
|
|
|
|
|
|
No |
14593 |
|
NY & CO AND DESIGN |
|
3,42 |
|
Lernco, Inc. |
|
4-2006-005756 |
|
5/31/2006 |
|
|
|
|
|
|
|
No |
8140 |
|
NY & CO AND DESIGN |
|
3, 25, 42 |
|
Lernco, Inc. |
|
4-2000-002256 |
|
3/22/2000 |
|
4-2000-002256 |
|
4/28/2006 |
|
|
|
No |
TM Rights (Grouped by country) |
|
Report Date: 8/23/2007 |
Country: |
|
Poland |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
ID |
|
Mark |
|
Classes |
|
Reg. Owner |
|
App. # |
|
App. Dt |
|
Reg. # |
|
Reg. Dt |
|
Allow. Dt |
|
ITU |
4706 |
|
LERNER NEW YORK |
|
25,39 |
|
Lernco, Inc. |
|
|
|
7/29/1994 |
|
98,228 |
|
7/29/1994 |
|
|
|
No |
14802 |
|
NEW YORK & COMPANY |
|
3, 9, 14, 18, 20, 25, 26, 35, 36 |
|
Lernco, Inc. |
|
926,844 |
|
1/3/2007 |
|
926,844 |
|
7/19/2007 |
|
|
|
No |
8253 |
|
NY & CO AND DESIGN |
|
3, 25, 35, 39 |
|
Lernco, Inc. |
|
Z-216047 |
|
3/29/2000 |
|
149,292 |
|
12/15/2003 |
|
|
|
No |
Country: |
|
Portugal |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
ID |
|
Mark |
|
Classes |
|
Reg. Owner |
|
App. # |
|
App. Dt |
|
Reg. # |
|
Reg. Dt |
|
Allow. Dt |
|
ITU |
2338 |
|
LERNER |
|
25 |
|
Lernco, Inc. |
|
234,715 |
|
5/5/1986 |
|
234,715 |
|
10/1/1991 |
|
|
|
No |
2337 |
|
LERNER |
|
42 |
|
Lernco, Inc. |
|
234,716 |
|
5/5/1986 |
|
234,716 |
|
12/3/1991 |
|
|
|
No |
14803 |
|
NEW YORK & COMPANY |
|
3, 9, 14, 18, 20, 25, 26, 35, 36 |
|
Lernco, Inc. |
|
926,844 |
|
1/3/2007 |
|
926,844 |
|
7/19/2007 |
|
|
|
No |
14910 |
|
NEW YORK & COMPANY |
|
35 |
|
Lernco, Inc. |
|
N/28945 |
|
5/21/2007 |
|
|
|
|
|
|
|
No |
14911 |
|
NEW YORK & COMPANY |
|
25 |
|
Lernco, Inc. |
|
N/28944 |
|
5/21/2007 |
|
|
|
|
|
|
|
No |
7996 |
|
NY & CO AND DESIGN |
|
3, 25, 35 |
|
Lernco, Inc. |
|
344,857 |
|
3/17/2000 |
|
344,857 |
|
3/22/2001 |
|
|
|
No |
Country: |
|
Puerto Rico |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
ID |
|
Mark |
|
Classes |
|
Reg. Owner |
|
App. # |
|
App. Dt |
|
Reg. # |
|
Reg. Dt |
|
Allow. Dt |
|
ITU |
14529 |
|
LERNER |
|
14 |
|
Lernco, Inc. |
|
69,015 |
|
6/19/2006 |
|
|
|
|
|
|
|
No |
14526 |
|
LERNER |
|
16 |
|
Lernco, Inc. |
|
69,017 |
|
6/19/2006 |
|
|
|
|
|
|
|
No |
14525 |
|
LERNER |
|
18 |
|
Lernco, Inc. |
|
69,018 |
|
6/19/2006 |
|
|
|
|
|
|
|
No |
14530 |
|
LERNER |
|
25 |
|
Lernco, Inc. |
|
69,019 |
|
6/19/2006 |
|
|
|
|
|
|
|
No |
2335 |
|
LERNER |
|
14 |
|
Lernco, Inc. |
|
|
|
7/24/1986 |
|
27,285 |
|
12/23/1986 |
|
|
|
No |
5189 |
|
LERNER |
|
14, 18, 25 |
|
Lernco, Inc. |
|
|
|
5/15/1990 |
|
7,507 |
|
3/10/1987 |
|
|
|
No |
2336 |
|
LERNER |
|
16 |
|
Lernco, Inc. |
|
|
|
7/24/1986 |
|
27,286 |
|
12/23/1986 |
|
|
|
No |
2334 |
|
LERNER |
|
25 |
|
Lernco, Inc. |
|
|
|
8/28/1981 |
|
23,928-A |
|
12/10/1981 |
|
|
|
No |
11632 |
|
LERNER |
|
35 |
|
Lernco, Inc. |
|
|
|
6/24/2003 |
|
59,906 |
|
10/27/2004 |
|
|
|
No |
10604 |
|
LERNER |
|
42 |
|
Lernco, Inc. |
|
|
|
|
|
7,158 |
|
4/15/1980 |
|
|
|
No |
10330 |
|
LERNER |
|
42 |
|
Lernco, Inc. |
|
|
|
|
|
7,159 |
|
7/10/1979 |
|
|
|
No |
11628 |
|
LERNER NEW YORK |
|
3 |
|
Lernco, Inc. |
|
|
|
6/24/2003 |
|
59,901 |
|
10/27/2004 |
|
|
|
No |
11630 |
|
LERNER NEW YORK |
|
25 |
|
Lernco, Inc. |
|
|
|
6/24/2003 |
|
59,902 |
|
10/27/2004 |
|
|
|
No |
11631 |
|
LERNER NEW YORK |
|
35 |
|
Lernco, Inc. |
|
|
|
6/24/2003 |
|
59,905 |
|
10/27/2004 |
|
|
|
No |
11697 |
|
LERNER NY |
|
3 |
|
Lernco, Inc. |
|
|
|
8/29/2003 |
|
|
|
|
|
|
|
No |
11696 |
|
LERNER NY |
|
35 |
|
Lernco, Inc. |
|
|
|
8/29/2003 |
|
60,275 |
|
10/27/2004 |
|
|
|
No |
11695 |
|
LERNER NY |
|
25 |
|
Lernco, Inc. |
|
|
|
8/29/2003 |
|
60,274 |
|
10/27/2004 |
|
|
|
No |
11490 |
|
NEW YORK & COMPANY |
|
35 |
|
Lernco, Inc. |
|
|
|
5/8/2003 |
|
59,655 |
|
10/28/2004 |
|
|
|
No |
11489 |
|
NEW YORK & COMPANY |
|
25 |
|
Lernco, Inc. |
|
|
|
5/8/2003 |
|
59,656 |
|
10/27/2004 |
|
|
|
No |
11488 |
|
NEW YORK & COMPANY |
|
3 |
|
Lernco, Inc. |
|
|
|
5/8/2003 |
|
59,564 |
|
10/27/2004 |
|
|
|
No |
TM Rights (Grouped by country) |
|
Report Date: 8/23/2007 |
Country: |
|
Qatar |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
ID |
|
Mark |
|
Classes |
|
Reg. Owner |
|
App. # |
|
App. Dt |
|
Reg. # |
|
Reg. Dt |
|
Allow. Dt |
|
ITU |
14866 |
|
NEW YORK & COMPANY |
|
35 |
|
Lernco, Inc. |
|
43,198 |
|
2/12/2007 |
|
|
|
|
|
|
|
No |
14865 |
|
NEW YORK & COMPANY |
|
25 |
|
Lernco, Inc. |
|
43,197 |
|
2/12/2007 |
|
|
|
|
|
|
|
No |
8217 |
|
NY & CO AND DESIGN |
|
35 |
|
Lernco, Inc. |
|
22,572 |
|
4/1/2000 |
|
|
|
|
|
|
|
No |
8219 |
|
NY & CO AND DESIGN |
|
25 |
|
Lernco, Inc. |
|
22,571 |
|
4/1/2000 |
|
|
|
|
|
|
|
No |
8218 |
|
NY & CO AND DESIGN |
|
3 |
|
Lernco, Inc. |
|
22,570 |
|
4/1/2000 |
|
|
|
|
|
|
|
No |
Country: |
|
Romania |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
ID |
|
Mark |
|
Classes |
|
Reg. Owner |
|
App. # |
|
App. Dt |
|
Reg. # |
|
Reg. Dt |
|
Allow. Dt |
|
ITU |
3275 |
|
LERNER NEW YORK |
|
25,42 |
|
Lernco, Inc. |
|
32,461 |
|
8/31/1994 |
|
24,183 |
|
8/31/1994 |
|
|
|
No |
14804 |
|
NEW YORK & COMPANY |
|
3, 9, 14, 18, 20, 25, 26, 35, 36 |
|
Lernco, Inc. |
|
926,844 |
|
1/3/2007 |
|
926,844 |
|
7/19/2007 |
|
|
|
No |
8369 |
|
NY & CO AND DESIGN |
|
3, 25, 42 |
|
Lernco, Inc. |
|
M 2000 01204 |
|
3/14/2000 |
|
42,317 |
|
3/14/2000 |
|
|
|
No |
Country: |
|
Russian Federation |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
ID |
|
Mark |
|
Classes |
|
Reg. Owner |
|
App. # |
|
App. Dt |
|
Reg. # |
|
Reg. Dt |
|
Allow. Dt |
|
ITU |
4070 |
|
LERNER NEW YORK |
|
3, 14,18,25,42 |
|
Lernco, Inc. |
|
94,019,044 |
|
6/1/1994 |
|
134,936 |
|
11/24/1995 |
|
|
|
No |
14805 |
|
NEW YORK & COMPANY |
|
3, 9, 14, 18, 20, 25, 26, 35, 36 |
|
Lernco, Inc. |
|
926,844 |
|
1/3/2007 |
|
926,844 |
|
7/19/2007 |
|
|
|
No |
8105 |
|
NY & CO AND DESIGN |
|
3, 25, 42 |
|
Lernco, Inc. |
|
2000705692 |
|
3/15/2000 |
|
217,209 |
|
7/17/2002 |
|
|
|
No |
Country: |
|
Saudi Arabia |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
ID |
|
Mark |
|
Classes |
|
Reg. Owner |
|
App. # |
|
App. Dt |
|
Reg. # |
|
Reg. Dt |
|
Allow. Dt |
|
ITU |
4580 |
|
LERNER NEW YORK |
|
42 |
|
Lernco, Inc. |
|
28,302 |
|
2/1/1995 |
|
364/31 |
|
12/24/1995 |
|
|
|
No |
4579 |
|
LERNER NEW YORK |
|
25 |
|
Lernco, Inc. |
|
26,708 |
|
10/8/1994 |
|
341/66 |
|
5/29/1995 |
|
|
|
No |
5009 |
|
LERNER NEW YORK |
|
39 |
|
Lernco, Inc. |
|
28,290 |
|
2/1/1995 |
|
364/30 |
|
12/24/1995 |
|
|
|
No |
14928 |
|
NEW YORK & COMPANY |
|
18 |
|
Lernco, Inc. |
|
119,240 |
|
7/4/2007 |
|
|
|
|
|
|
|
No |
14929 |
|
NEW YORK & COMPANY |
|
25 |
|
Lernco, Inc. |
|
119,241 |
|
7/4/2007 |
|
|
|
|
|
|
|
No |
14927 |
|
NEW YORK & COMPANY |
|
3 |
|
Lernco, Inc. |
|
119,239 |
|
7/4/2007 |
|
|
|
|
|
|
|
No |
14930 |
|
NEW YORK & COMPANY |
|
35 |
|
Lernco, Inc. |
|
119,242 |
|
7/4/2007 |
|
|
|
|
|
|
|
No |
8367 |
|
NY & CO AND DESIGN |
|
3 |
|
Lernco, Inc. |
|
64,048 |
|
4/26/2000 |
|
742/33 |
|
8/25/2004 |
|
|
|
No |
8368 |
|
NY & CO AND DESIGN |
|
25 |
|
Lernco, Inc. |
|
64,049 |
|
4/26/2000 |
|
742/34 |
|
8/25/2004 |
|
|
|
No |
8366 |
|
NY & CO AND DESIGN |
|
35 |
|
Lernco, Inc. |
|
64,157 |
|
5/1/2000 |
|
572/64 |
|
5/29/2001 |
|
|
|
No |
TM Rights (Grouped by country) |
|
Report Date: 8/23/2007 |
Country: |
|
Singapore |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
ID |
|
Mark |
|
Classes |
|
Reg. Owner |
|
App. # |
|
App. Dt |
|
Reg. # |
|
Reg. Dt |
|
Allow. Dt |
|
ITU |
3587 |
|
LERNER NEW YORK |
|
25 |
|
Lernco, Inc. |
|
10330/96 |
|
9/26/1996 |
|
T96/10330G |
|
9/26/1996 |
|
|
|
No |
6620 |
|
LERNER NEW YORK |
|
35 |
|
Lernco, Inc. |
|
T99/00470I |
|
1/15/1999 |
|
T99/00470I |
|
1/15/1999 |
|
|
|
No |
3568 |
|
LERNER NEW YORK AND LADY DESIGN |
|
42 |
|
Lernco, Inc. |
|
448/97 |
|
1/15/1997 |
|
T97/00448E |
|
1/15/1997 |
|
|
|
No |
14807 |
|
NEW YORK & COMPANY |
|
3, 9, 14, 18, 20, 25, 26, 35, 36 |
|
Lernco, Inc. |
|
926,844 |
|
1/3/2007 |
|
926,844 |
|
7/19/2007 |
|
|
|
No |
8005 |
|
NY & CO AND DESIGN |
|
25 |
|
Lernco, Inc. |
|
T00/04986A |
|
3/28/2000 |
|
T00/04986A |
|
3/28/2000 |
|
|
|
No |
8006 |
|
NY & CO AND DESIGN |
|
35 |
|
Lernco, Inc. |
|
T00/04988H |
|
3/28/2000 |
|
T00/04988H |
|
2/13/2003 |
|
|
|
No |
8004 |
|
NY & CO AND DESIGN |
|
3 |
|
Lernco, Inc. |
|
TOO/04987Z |
|
3/28/2000 |
|
T00/04987Z |
|
10/28/2002 |
|
|
|
No |
Country: |
|
Republic Slovak |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
ID |
|
Mark |
|
Classes |
|
Reg. Owner |
|
App. # |
|
App. Dt |
|
Reg. # |
|
Reg. Dt |
|
Allow. Dt |
|
ITU |
14808 |
|
NEW YORK & COMPANY |
|
3, 9, 14, 18, 20, 25, 26, 35, 36 |
|
Lernco, Inc. |
|
926,844 |
|
1/3/2007 |
|
926,844 |
|
7/19/2007 |
|
|
|
No |
8236 |
|
NY & CO AND DESIGN |
|
3, 25, 35, 39 |
|
Lernco, Inc. |
|
POZ 1318-2000 |
|
5/2/2000 |
|
196,141 |
|
7/16/2001 |
|
|
|
No |
Country: |
|
South Africa |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
ID |
|
Mark |
|
Classes |
|
Reg. Owner |
|
App. # |
|
App. Dt |
|
Reg. # |
|
Reg. Dt |
|
Allow. Dt |
|
ITU |
8134 |
|
NY & CO AND DESIGN |
|
3 |
|
Lernco, Inc. |
|
2000/04509 |
|
3/14/2000 |
|
2000/04509 |
|
2/18/2005 |
|
|
|
No |
8136 |
|
NY & CO AND DESIGN |
|
35 |
|
Lernco, Inc. |
|
2000/04511 |
|
3/14/2000 |
|
2000/04511 |
|
2/18/2005 |
|
|
|
No |
8135 |
|
NY & CO AND DESIGN |
|
25 |
|
Lernco, Inc. |
|
2000/04510 |
|
3/14/2000 |
|
2000/04510 |
|
2/18/2005 |
|
|
|
No |
Country: |
|
South Korea |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
ID |
|
Mark |
|
Classes |
|
Reg. Owner |
|
App. # |
|
App. Dt |
|
Reg. # |
|
Reg. Dt |
|
Allow. Dt |
|
ITU |
2320 |
|
LERNER |
|
36 |
|
Lernco, Inc. |
|
86-734 |
|
5/14/1986 |
|
7,100 |
|
6/10/1987 |
|
|
|
No |
2321 |
|
LERNER |
|
45 |
|
Lernco, Inc. |
|
86-8748 |
|
5/14/1986 |
|
143,701 |
|
7/30/1987 |
|
|
|
No |
3567 |
|
LERNER NEW YORK |
|
35,36,44,45 |
|
Lernco, Inc. |
|
93-2091 |
|
4/20/1993 |
|
32,539 |
|
7/29/1996 |
|
|
|
No |
14809 |
|
NEW YORK & COMPANY |
|
3, 9, 14, 18, 20, 25, 26, 35, 36 |
|
Lernco, Inc. |
|
926,844 |
|
1/3/2007 |
|
926,844 |
|
7/19/2007 |
|
|
|
No |
7975 |
|
NY & CO AND DESIGN |
|
3, 25, 35 |
|
Lernco, Inc. |
|
2000-1324 |
|
3/21/2000 |
|
5,471 |
|
5/28/2002 |
|
|
|
No |
TM Rights (Grouped by country) |
|
Report Date: 8/23/2007 |
Country: |
|
Spain |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
ID |
|
Mark |
|
Classes |
|
Reg. Owner |
|
App. # |
|
App. Dt |
|
Reg. # |
|
Reg. Dt |
|
Allow. Dt |
|
ITU |
2312 |
|
LERNER |
|
42 |
|
Lernco, Inc. |
|
1,188,761 |
|
4/7/1987 |
|
1,188,761 |
|
10/2/1989 |
|
|
|
No |
4431 |
|
LERNER NEW YORK |
|
25 |
|
Lernco, Inc. |
|
1,910,655 |
|
6/27/1994 |
|
1,910,655 |
|
3/5/1995 |
|
|
|
No |
14810 |
|
NEW YORK & COMPANY |
|
3, 9, 14, 18, 20, 25, 26, 35, 36 |
|
Lernco, Inc. |
|
926,844 |
|
1/3/2007 |
|
926,844 |
|
7/19/2007 |
|
|
|
No |
7995 |
|
NY & CO AND DESIGN |
|
25 |
|
Lernco, Inc. |
|
2,302,983 |
|
3/24/2000 |
|
2,302,983 |
|
2/5/2001 |
|
|
|
No |
7991 |
|
NY & CO AND DESIGN |
|
3 |
|
Lernco, Inc. |
|
2,302,982 |
|
3/24/2000 |
|
2,302,982 |
|
2/5/2001 |
|
|
|
No |
8124 |
|
NY & CO AND DESIGN |
|
35 |
|
Lernco, Inc. |
|
2,302,984 |
|
3/24/2000 |
|
2,302,984 |
|
4/20/2001 |
|
|
|
No |
Country: |
|
Sri Lanka |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
ID |
|
Mark |
|
Classes |
|
Reg. Owner |
|
App. # |
|
App. Dt |
|
Reg. # |
|
Reg. Dt |
|
Allow. Dt |
|
ITU |
2323 |
|
LERNER |
|
42 |
|
Lernco, Inc. |
|
51,353 |
|
5/14/1986 |
|
51,353 |
|
9/10/1990 |
|
|
|
No |
2322 |
|
LERNER |
|
25 |
|
Lernco, Inc. |
|
51,351 |
|
5/14/1986 |
|
51,351 |
|
3/19/1992 |
|
|
|
No |
14823 |
|
NEW YORK & COMPANY |
|
35 |
|
Lernco, Inc. |
|
137,090 |
|
1/12/2007 |
|
|
|
|
|
|
|
No |
14824 |
|
NEW YORK & COMPANY |
|
25 |
|
Lernco, Inc. |
|
137,091 |
|
1/12/2007 |
|
|
|
|
|
|
|
No |
8044 |
|
NY & CO AND DESIGN |
|
42 |
|
Lernco, Inc. |
|
96,998 |
|
3/23/2000 |
|
96,998 |
|
9/14/2004 |
|
|
|
No |
8043 |
|
NY & CO AND DESIGN |
|
25 |
|
Lernco, Inc. |
|
96,999 |
|
3/23/2000 |
|
96,999 |
|
4/28/2006 |
|
|
|
No |
8045 |
|
NY & CO AND DESIGN |
|
3 |
|
Lernco, Inc. |
|
96,996 |
|
3/23/2000 |
|
|
|
|
|
|
|
No |
Country: |
|
Sweden |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
ID |
|
Mark |
|
Classes |
|
Reg. Owner |
|
App. # |
|
App. Dt |
|
Reg. # |
|
Reg. Dt |
|
Allow. Dt |
|
ITU |
4468 |
|
LERNER NEW YORK |
|
25, 35, 39 |
|
Lernco, Inc. |
|
94-06793 |
|
6/29/1994 |
|
302,523 |
|
6/2/1995 |
|
|
|
No |
14811 |
|
NEW YORK & COMPANY |
|
3, 9, 14, 18, 20, 25, 26, 35, 36 |
|
Lernco, Inc. |
|
926,844 |
|
1/3/2007 |
|
926,844 |
|
7/19/2007 |
|
|
|
No |
8028 |
|
NY & CO AND DESIGN |
|
3, 25, 35 |
|
Lernco, Inc. |
|
00-02356 |
|
3/23/2000 |
|
348,299 |
|
8/31/2001 |
|
|
|
No |
Country: |
|
Switzerland |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
ID |
|
Mark |
|
Classes |
|
Reg. Owner |
|
App. # |
|
App. Dt |
|
Reg. # |
|
Reg. Dt |
|
Allow. Dt |
|
ITU |
2304 |
|
LERNER |
|
25 |
|
Lernco, Inc. |
|
|
|
6/4/1986 |
|
P348,915 |
|
11/21/1986 |
|
|
|
No |
3898 |
|
LERNER NEW YORK |
|
35, 36, 39, 40, 41, 42 |
|
Lernco, Inc. |
|
5319-1993.9 |
|
4/1/1993 |
|
409,696 |
|
5/24/1994 |
|
|
|
No |
14812 |
|
NEW YORK & COMPANY |
|
3, 9, 14, 18, 20, 25, 26, 35, 36 |
|
Lernco, Inc. |
|
926,844 |
|
1/3/2007 |
|
926,844 |
|
7/19/2007 |
|
|
|
No |
8214 |
|
NY & CO AND DESIGN |
|
3, 25, 35 |
|
Lernco, Inc. |
|
02987/2000 |
|
3/14/2000 |
|
477,497 |
|
10/26/2000 |
|
|
|
No |
TM Rights (Grouped by country) |
|
Report Date: 8/23/2007 |
Country: |
|
Taiwan |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
ID |
|
Mark |
|
Classes |
|
Reg. Owner |
|
App. # |
|
App. Dt |
|
Reg. # |
|
Reg. Dt |
|
Allow. Dt |
|
ITU |
1753 |
|
LERNER |
|
25 |
|
Lernco, Inc. |
|
85053969 |
|
10/23/1996 |
|
774,403 |
|
9/1/1997 |
|
|
|
No |
1285 |
|
LERNER |
|
18 |
|
Lernco, Inc. |
|
85053968 |
|
10/23/1996 |
|
783,341 |
|
11/1/1997 |
|
|
|
No |
2344 |
|
LERNER |
|
5 |
|
Lernco, Inc. |
|
78,021,889 |
|
|
|
492,681 |
|
8/1/1990 |
|
|
|
No |
7883 |
|
LERNER |
|
3 |
|
Lernco, Inc. |
|
89007339 |
|
2/14/2000 |
|
942,268 |
|
6/1/2001 |
|
|
|
No |
5295 |
|
LERNER NEW YORK |
|
42 |
|
Lernco, Inc. |
|
84065884 |
|
12/30/1995 |
|
91,398 |
|
6/1/1997 |
|
|
|
No |
14379 |
|
NEW YORK & COMPANY |
|
3, 35 |
|
Lernco, Inc. |
|
95011196 |
|
3/9/2006 |
|
|
|
|
|
|
|
No |
14821 |
|
NEW YORK & COMPANY |
|
3, 14, 18, 25, 35 |
|
Lernco, Inc. |
|
96001392 |
|
1/10/2007 |
|
|
|
|
|
|
|
No |
14909 |
|
NEW YORK & COMPANY |
|
3, 35 |
|
Lernco, Inc. |
|
|
|
3/9/2006 |
|
|
|
|
|
|
|
No |
8117 |
|
NY & CO AND DESIGN |
|
25 |
|
Lernco, Inc. |
|
89016388 |
|
3/27/2000 |
|
1,037,822 |
|
3/16/2003 |
|
|
|
No |
8116 |
|
NY & CO AND DESIGN |
|
35 |
|
Lernco, Inc. |
|
89016385 |
|
3/27/2000 |
|
150,290 |
|
10/16/2001 |
|
|
|
No |
8115 |
|
NY & CO AND DESIGN |
|
3 |
|
Lernco, Inc. |
|
89016393 |
|
3/27/2000 |
|
991,763 |
|
4/1/2002 |
|
|
|
No |
Country: |
|
Tangier |
Zone |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
ID |
|
Mark |
|
Classes |
|
Reg. Owner |
|
App. # |
|
App. Dt |
|
Reg. # |
|
Reg. Dt |
|
Allow. Dt |
|
ITU |
|
2408 |
|
LERNER NEW YORK |
|
25, 42 |
|
Lernco, Inc. |
|
|
|
8/18/1994 |
|
9,947 |
|
10/20/1994 |
|
|
|
No |
Country: |
|
Thailand |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
ID |
|
Mark |
|
Classes |
|
Reg. Owner |
|
App. # |
|
App. Dt |
|
Reg. # |
|
Reg . Dt |
|
Allow. Dt |
|
ITU |
2341 |
|
LERNER |
|
25 |
|
Lernco, Inc. |
|
309,914 |
|
6/13/1986 |
|
46,404 |
|
12/30/1986 |
|
|
|
No |
14833 |
|
NEW YORK & COMPANY |
|
25 |
|
Lernco, Inc. |
|
651,561 |
|
1/25/2007 |
|
|
|
|
|
|
|
No |
14832 |
|
NEW YORK & COMPANY |
|
35 |
|
Lernco, Inc. |
|
651,562 |
|
1/25/2007 |
|
|
|
|
|
|
|
No |
8111 |
|
NY & CO AND DESIGN |
|
3 |
|
Lernco, Inc. |
|
415,518 |
|
3/28/2000 |
|
148,214 |
|
11/22/2001 |
|
|
|
No |
Country: |
|
Turkey |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
ID |
|
Mark |
|
Classes |
|
Reg. Owner |
|
App. # |
|
App. Dt |
|
Reg. # |
|
Reg. Dt |
|
Allow. Dt |
|
ITU |
2342 |
|
LERNER |
|
25 |
|
Lernco, Inc. |
|
|
|
6/15/1987 |
|
100,004 |
|
6/15/1987 |
|
|
|
No |
12104 |
|
LERNER |
|
35 |
|
Lernco, Inc. |
|
2004/01334 |
|
1/21/2004 |
|
2004/01334 |
|
1/21/2004 |
|
|
|
No |
12090 |
|
NEW YORK & COMPANY |
|
25, 35 |
|
Lernco, Inc. |
|
2004/01330 |
|
1/21/2004 |
|
2004/01330 |
|
1/21/2004 |
|
|
|
No |
TM Rights (Grouped by country) |
|
Report Date: 8/23/2007 |
Country: |
|
Ukraine |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
ID |
|
Mark |
|
Classes |
|
Reg. Owner |
|
App. # |
|
App. Dt |
|
Reg. # |
|
Reg. Dt |
|
Allow. Dt |
|
ITU |
4491 |
|
LERNER NEW YORK |
|
25, 42 |
|
Lernco, Inc. |
|
94083022/T |
|
8/23/1994 |
|
12,102 |
|
6/7/1999 |
|
|
|
No |
14813 |
|
NEW YORK & COMPANY |
|
3, 9, 14, 18, 20, 25, 26, 35, 36 |
|
Lernco, Inc. |
|
926,844 |
|
1/3/2007 |
|
926,844 |
|
7/19/2007 |
|
|
|
No |
8247 |
|
NY & CO AND DESIGN |
|
3, 25, 35 |
|
Lernco, Inc. |
|
2000041478 |
|
4/11/2000 |
|
26,696 |
|
8/15/2002 |
|
|
|
No |
Country: |
|
United Arab Emirates |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
ID |
|
Mark |
|
Classes |
|
Reg. Owner |
|
App. # |
|
App. Dt |
|
Reg. # |
|
Reg. Dt |
|
Allow. Dt |
|
ITU |
14938 |
|
NEW YORK & COMPANY |
|
35 |
|
Lernco, Inc. |
|
97,122 |
|
7/5/2007 |
|
|
|
|
|
|
|
No |
14935 |
|
NEW YORK & COMPANY |
|
3 |
|
Lernco, Inc. |
|
97,119 |
|
7/5/2007 |
|
|
|
|
|
|
|
No |
14936 |
|
NEW YORK & COMPANY |
|
18 |
|
Lernco, Inc. |
|
97,120 |
|
7/5/2007 |
|
|
|
|
|
|
|
No |
8501 |
|
NY & CO AND DESIGN |
|
42 |
|
Lernco, Inc. |
|
36,973 |
|
6/18/2000 |
|
28,862 |
|
10/15/2001 |
|
|
|
No |
8502 |
|
NY & CO AND DESIGN |
|
3 |
|
Lernco, Inc. |
|
36,971 |
|
6/18/2000 |
|
28,860 |
|
10/15/2001 |
|
|
|
No |
8503 |
|
NY & CO AND DESIGN |
|
25 |
|
Lernco, Inc. |
|
36,972 |
|
6/18/2000 |
|
28,861 |
|
10/15/2001 |
|
|
|
No |
Country: |
|
United Kingdom |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
ID |
|
Mark |
|
Classes |
|
Reg. Owner |
|
App. # |
|
App. Dt |
|
Reg. # |
|
Reg. Dt |
|
Allow. Dt |
|
ITU |
3913 |
|
LERNER |
|
25 |
|
Lernco, Inc. |
|
1,568,311 |
|
10/31/1994 |
|
1,568,311 |
|
2/16/1996 |
|
|
|
No |
3914 |
|
LERNER |
|
42 |
|
Lernco, Inc. |
|
1,568,723 |
|
10/31/1994 |
|
1,568,723 |
|
12/29/1995 |
|
|
|
No |
1812 |
|
LERNER |
|
16 |
|
Lernco, Inc. |
|
2,025,502 |
|
6/29/1995 |
|
2,025,502 |
|
1/3/1997 |
|
|
|
No |
14814 |
|
NEW YORK & COMPANY |
|
3, 9, 14, 18, 20, 25, 26, 35, 36 |
|
Lernco, Inc. |
|
926,844 |
|
1/3/2007 |
|
926,844 |
|
7/19/2007 |
|
|
|
No |
7907 |
|
NY & CO AND DESIGN |
|
3, 25 |
|
Lernco, Inc. |
|
2,225,601 |
|
3/13/2000 |
|
2,225,601 |
|
8/25/2000 |
|
|
|
No |
7906 |
|
NY & CO AND DESIGN |
|
35 |
|
Lernco, Inc. |
|
2,225,577 |
|
3/13/2000 |
|
2,225,577 |
|
7/28/2001 |
|
|
|
No |
Country: |
|
United States |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
ID |
|
Mark |
|
Classes |
|
Reg. Owner |
|
App. # |
|
App. Dt |
|
Reg. # |
|
Reg. Dt |
|
Allow. Dt |
|
ITU |
14867 |
|
LERNER |
|
35 |
|
Lernco, Inc. |
|
77/152,566 |
|
4/10/2007 |
|
|
|
|
|
|
|
Yes |
2349 |
|
LERNER |
|
14, 18, 25 |
|
Lernco, Inc. |
|
608,444 |
|
7/8/1986 |
|
1,431,895 |
|
3/10/1987 |
|
|
|
No |
2350 |
|
LERNER |
|
42 |
|
Lernco, Inc. |
|
156,600 |
|
1/26/1978 |
|
1,122,084 |
|
7/10/1979 |
|
|
|
No |
2756 |
|
LERNER AND DESIGN |
|
42 |
|
Lernco, Inc. |
|
193,271 |
|
11/14/1978 |
|
1,133,390 |
|
4/15/1980 |
|
|
|
No |
6206 |
|
LERNER NEW YORK |
|
35 |
|
Lernco, Inc. |
|
474,151 |
|
4/24/1998 |
|
2,260,860 |
|
7/13/1999 |
|
|
|
No |
1539 |
|
LERNER NEW YORK |
|
42 |
|
Lernco, Inc. |
|
703,353 |
|
7/19/1995 |
|
1,987,113 |
|
7/16/1996 |
|
|
|
No |
14893 |
|
LERNER WOMAN |
|
18, 25, 35 |
|
Lernco, Inc. |
|
77/187,934 |
|
5/23/2007 |
|
|
|
|
|
|
|
Yes |
8337 |
|
NEW YORK & COMPANY |
|
18, 25, 36 |
|
Lernco, Inc. |
|
76/068,009 |
|
6/12/2000 |
|
2,629,986 |
|
10/8/2002 |
|
|
|
Yes |
11925 |
|
NEW YORK & COMPANY |
|
3 |
|
Lernco, Inc. |
|
78/349,358 |
|
1/8/2004 |
|
|
|
|
|
|
|
Yes |
11936 |
|
NEW YORK & COMPANY |
|
9, 14, 18, 20, 25, 26 |
|
Lernco, Inc. |
|
78/349,339 |
|
1/8/2004 |
|
3,026,644 |
|
12/13/2005 |
|
|
|
No |
TM Rights (Grouped by country) |
|
Report Date: 8/23/2007 |
14680 |
|
NEW YORK & COMPANY REWARDS CLUB |
|
35 |
|
Lernco, Inc. |
|
77/001,769 |
|
9/18/2006 |
|
|
|
|
|
|
|
Yes |
12230 |
|
NY & C AND DESIGN |
|
18, 25 |
|
Lernco, Inc. |
|
78/402,450 |
|
4/15/2004 |
|
|
|
|
|
|
|
No |
13267 |
|
NY & C PLATINUM |
|
25 |
|
Lernco, Inc. |
|
78/631,404 |
|
5/17/2005 |
|
|
|
|
|
|
|
Yes |
14900 |
|
NY & C PLATINUM AND RECTANGLE DESIGN |
|
18 |
|
Lernco, Inc. |
|
77/181,232 |
|
5/15/2007 |
|
|
|
|
|
|
|
Yes |
14388 |
|
NY POCKET STITCHING DESIGN |
|
25 |
|
Lernco,Inc. |
|
78/847,002 |
|
3/27/2006 |
|
|
|
|
|
|
|
No |
Country: |
|
Uruguay |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
ID |
|
Mark |
|
Classes |
|
Reg. Owner |
|
App. # |
|
App. Dt |
|
Reg. # |
|
Reg. Dt |
|
Allow. Dt |
|
ITU |
2351 |
|
LERNER |
|
25, 42 |
|
Lernco, Inc. |
|
|
|
5/20/1986 |
|
297,612 |
|
10/13/1987 |
|
|
|
No |
7956 |
|
NY & CO AND DESIGN |
|
3, 25, 35 |
|
Lernco, Inc. |
|
321,188 |
|
3/14/2000 |
|
321,188 |
|
10/10/2000 |
|
|
|
No |
Country: |
|
Venezuela |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
ID |
|
Mark |
|
Classes |
|
Reg. Owner |
|
App. # |
|
App. Dt |
|
Reg. # |
|
Reg. Dt |
|
Allow. Dt |
|
ITU |
4353 |
|
LERNER NEW YORK |
|
42 |
|
Lernco, Inc. |
|
7,936-94 |
|
6/3/1994 |
|
|
|
|
|
|
|
No |
4352 |
|
LERNER NEW YORK |
|
25 |
|
Lernco, Inc. |
|
1994-007935 |
|
6/16/1994 |
|
P-231269 |
|
9/10/1999 |
|
|
|
No |
8001 |
|
NY & CO AND DESIGN |
|
25 |
|
Lernco, Inc. |
|
2000-001738 |
|
2/7/2000 |
|
|
|
|
|
|
|
No |
8355 |
|
NY & CO AND DESIGN |
|
|
|
Lernco, Inc. |
|
2000-001737 |
|
2/7/2000 |
|
|
|
|
|
|
|
No |
8002 |
|
NY & CO AND DESIGN |
|
3 |
|
Lernco, Inc. |
|
2000-001739 |
|
2/7/2000 |
|
|
|
|
|
|
|
No |
Country: |
|
Vietnam |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
ID |
|
Mark |
|
Classes |
|
Reg. Owner |
|
App. # |
|
App. Dt |
|
Reg. # |
|
Reg. Dt |
|
Allow. Dt |
|
ITU |
3569 |
|
LERNER NEW YORK |
|
3, 14, 18, 25, 42 |
|
Lernco, Inc. |
|
12,936 |
|
4/24/1993 |
|
10,850 |
|
1/24/1994 |
|
|
|
No |
14815 |
|
NEW YORK & COMPANY |
|
3, 9, 14, 18, 20, 25, 26, 35, 36 |
|
Lernco, Inc. |
|
926,844 |
|
1/3/2007 |
|
926,844 |
|
7/19/2007 |
|
|
|
No |
8645 |
|
NY & CO AND DESIGN |
|
3, 25, 35 |
|
Lernco, Inc. |
|
45,632 |
|
3/14/2000 |
|
37,733 |
|
7/11/2001 |
|
|
|
No |
Country: |
|
Virgin Islands (US) |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
ID |
|
Mark |
|
Classes |
|
Reg. Owner |
|
App. # |
|
App. Dt |
|
Reg. # |
|
Reg. Dt |
|
Allow. Dt |
|
ITU |
7368 |
|
LERNER |
|
42 |
|
Lernco, Inc. |
|
|
|
|
|
6,783 |
|
4/2/1996 |
|
|
|
No |
2761 |
|
LERNER |
|
14, 18, 25 |
|
Lernco, Inc. |
|
|
|
4/2/1996 |
|
6,379 |
|
4/2/1996 |
|
|
|
No |
10732 |
|
LERNER AND DESIGN |
|
42 |
|
Lernco, Inc. |
|
|
|
|
|
6,784 |
|
3/17/1986 |
|
|
|
No |
TM Rights (Grouped by country) |
|
Report Date: 8/23/2007 |
Country: |
|
West Bank |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
ID |
|
Mark |
|
Classes |
|
Reg. Owner |
|
App. # |
|
App. Dt |
|
Reg. # |
|
Reg. Dt |
|
Allow. Dt |
|
ITU |
7154 |
|
LERNER NEW YORK |
|
35 |
|
Lernco, Inc. |
|
5,510 |
|
8/30/1997 |
|
5,510 |
|
9/11/2001 |
|
|
|
No |
7153 |
|
LERNER NEW YORK |
|
25 |
|
Lernco, Inc. |
|
5,509 |
|
8/30/1997 |
|
5,509 |
|
9/11/2001 |
|
|
|
No |
8725 |
|
NY & CO AND DESIGN |
|
35 |
|
Lernco, Inc. |
|
8,057 |
|
4/5/2000 |
|
8,057 |
|
12/1/2004 |
|
|
|
No |
8723 |
|
NY & CO AND DESIGN |
|
3 |
|
Lernco, Inc. |
|
8,056 |
|
4/5/2000 |
|
8,056 |
|
12/1/2004 |
|
|
|
No |
8724 |
|
NY & CO AND DESIGN |
|
25 |
|
Lernco, Inc. |
|
8,058 |
|
4/5/2000 |
|
8,058 |
|
12/1/2004 |
|
|
|
No |
Country: |
|
WIPO |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
ID |
|
Mark |
|
Classes |
|
Reg. Owner |
|
App. # |
|
App. Dt |
|
Reg. # |
|
Reg. Dt |
|
Allow. Dt |
|
ITU |
14782 |
|
NEW YORK & COMPANY |
|
3, 9, 14, 18, 20, 25, 26, 35, 36 |
|
Lernco, Inc. |
|
926,844 |
|
1/3/2007 |
|
926,844 |
|
7/19/2007 |
|
|
|
No |
Country: |
|
Zimbabwe |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
ID |
|
Mark |
|
Classes |
|
Reg. Owner |
|
App. # |
|
App. Dt |
|
Reg. # |
|
Reg. Dt |
|
Allow. Dt |
|
ITU |
8207 |
|
NY & CO AND DESIGN |
|
25 |
|
Lernco, Inc. |
|
376/2000 |
|
3/28/2000 |
|
376/2000 |
|
10/7/2002 |
|
|
|
No |
7950 |
|
NY & CO AND DESIGN |
|
3 |
|
Lernco, Inc. |
|
375/2000 |
|
3/28/2000 |
|
375/2000 |
|
10/7/2002 |
|
|
|
No |
8206 |
|
NY & CO AND DESIGN |
|
35 |
|
Lernco, Inc. |
|
377/2000 |
|
3/28/2000 |
|
377/2000 |
|
10/7/2002 |
|
|
|
No |
INFORMATION CERTIFICATE
OF
JASMINE COMPANY, INC.
Dated: August 22, 2007
Wachovia Bank, National Association, as Agent
1133 Avenue of the Americas
New York, NY 10036
In order to assist you in the evaluation of the financing you are considering of Jasmine Company, Inc. (the Company ), pursuant to the Second Amended and Restated Loan and Security Agreement, dated of even date herewith, Wachovia Bank, National Association, as Agent (in such capacity Agent or you), for the persons thereto as Lenders (collectively Lenders or you), the Company certain affiliates of the Company (as the same now exists or may hereafter be amended, modified, supplemented, renewed, restated or registered, the Loan Agreement), to expedite the preparation of required documentation, and to induce you to provide financing to the Company, we represent and warrant to you and the Lenders the following information about the Company, its organizational structure and other matters of interest to you:
1. |
|
The Company has been formed by filing the following document with the Secretary of State of the Commonwealth of Massachusetts: |
|
|
|
|
|
|
|
o |
Certificate/Articles of Incorporation |
|
|
x |
Certificate/Articles of Organization |
|
|
o |
Other [specify] |
|
|
|
|
The date of formation of the Company by the filing of the document specified above with the Secretary of State was July 2, 1973. |
|||
|
|
|
|
2. |
|
The Company was not formed by filing a document with any Secretary of State. The Company is organized as a [specify type of organization, (e.g., general partnership, sole proprietorship, etc.)] . The Companys governing document is a [name legal document, if one exists, (e.g., partnership agreement, etc.) Not applicable |
|
|
|
|
|
3. |
|
The full and exact name of the Company as set forth in the document specified in Item 1 or 2, or (if no document is specified in Item 1 or 2) the full and exact legal name used in the Companys business, is: |
Jasmine Company, Inc. |
||
|
|
|
4. |
|
The Company uses and owns the following trade name(s) in the operation of its business (e.g. billing, advertising, etc.; note: do not include names which are product names only): |
|
|
|
JasmineSola |
||
|
|
|
[Check one of the boxes below.] |
||
|
|
|
o |
|
We have attached a blank sample of every invoice that uses a tradename. |
o |
|
We do not use any tradename other than the tradenames listed in Item 4 on any invoices. |
|
|
|
5. |
|
The Company maintains offices, leases or owns real estate, has employees, pays taxes, or otherwise conducts business in the following States (including the State of its organization): |
|
|
|
|
|
CT, FL, MA, NJ, NY, RI |
|
|
|
6. |
|
The Company has filed the necessary documents with the Secretary of State to qualify as a foreign corporation in the following States: |
|
|
|
|
|
CT, FL, MA, NJ, NY, RI |
|
|
|
7. |
|
The Companys authority to do business has been revoked or suspended, or the Company is otherwise not in good standing in the following States: |
|
|
|
|
|
None. |
|
|
|
8. |
|
The Company and its subsidiaries have all licenses and permits necessary for the operation of the business of the Company, as such business is being operated as of the date hereof. |
|
|
|
9. |
|
In conducting its business activities, the Company is subject to regulation by federal, state or local agencies or authorities (e.g., FDA, EPA, state or municipal liquor licensing agencies, federal or state carrier commissions, etc.) as follows: |
|
|
|
|
|
None. |
|
|
|
10. |
|
The Company has never been involved in a bankruptcy or reorganization except: [explain] |
|
|
|
|
|
None. |
|
|
|
11. |
|
Between the date the Company was formed and now, the Company has used other names as set forth below: |
Period of Time |
|
Prior Name |
|
|
|
From NONE |
|
|
From |
|
|
From to |
|
|
12. |
|
Between the date the Company was formed and now, the Company has made or entered into mergers or acquisitions with other companies as set forth below: |
|
|
|
|
|
|
|
Merged with Shoe-Shine, Inc. (7/1/94); Merged with Flirt, Inc. (12/10/04); Acquired by Lerner New York Inc (7/19/05). |
|
|
|
|
|
13. |
|
The chief executive office of the Company is located at the street address set forth below, which is in New York County, in the State of New York: |
|
|
|
|
|
|
|
|
450 W. 33 rd St. 5 th Floor |
|
|
|
New York, NY 10001 |
|
|
|
|
14. |
|
The books and records of the Company pertaining to accounts, contract rights, inventory, etc. are located at the following street address: |
|
|
|
|
|
|
|
|
450 W. 33 rd St. 5 th Floor |
|
|
|
New York, NY 10001 |
|
|
|
|
15. |
|
In addition to the chief executive office, the Company has inventory, equipment or other assets located at the addresses set forth below. In each case, we have noted whether the location is owned, leased or operated by third parties and the names and addresses of any mortgagee, lessor or third party operator: |
16. |
|
In the course of its business, the Companys inventory and/or other assets are handled by the following customs brokers and/or freight forwarders: |
Name |
|
Address |
|
Type of Service/Assets Handled |
|
|
|
|
|
None. |
|
|
|
|
17. |
|
The places of business or other locations of any assets used by the Company during the last four (4) months other than those listed above are as follows: |
|
|
|
None. |
||
|
|
|
18. |
|
The Company is affiliated with, or has ownership in, the following entities (including subsidiaries): |
Name of Entity |
|
Chief Executive Office |
|
Jurisdiction of
|
|
Ownership
|
New York & Company, Inc. |
|
450 West 33
rd
Street
|
|
Delaware |
|
Ultimate Parent / 100% |
|
|
|
|
|
|
|
Lerner New York Holding, Inc. |
|
450 West 33
rd
Street
|
|
Delaware |
|
Parent / 100% |
|
|
|
|
|
|
|
Lernco, Inc. |
|
1105 North Market Street
|
|
Delaware |
|
Subsidiary of Parent / 100% |
|
|
|
|
|
|
|
Nevada Receivable Factoring, Inc. |
|
3800 Howard Hughes
|
|
Nevada |
|
Subsidiary of Parent / 100% |
|
|
|
|
|
|
|
Associated Lerner Shops of America |
|
450 West 33
rd
Street
|
|
New York |
|
Subsidiary / 100% |
|
|
|
|
|
|
|
Lerner New York GC, LLC |
|
10 West Broad Street,
|
|
Ohio |
|
Subsidiary / 100% |
|
|
|
|
|
|
|
Lerner New York, Inc. |
|
450 West 33rd Street
|
|
Delaware |
|
Subsidiary of Parent / 100% |
19. |
|
The Federal Employer Identification Number of the Company is 04-2526617 |
|||
|
|
|
|||
20. |
|
Under the Companys charter documents, and under the laws of the State in which the Company is organized, the shareholders, members or other equity holders do not have to consent in order for the Company to borrow money, incur debt or obligations, pledge or mortgage the property of the Company, grant a security interest in the property of the Company or guaranty the debt of obligations of another person or entity. |
|||
|
|
|
|||
|
|
x |
True |
o |
Incorrect [explain]: |
|
|
|
|||
|
|
|
|||
|
|
The power to take the foregoing actions is vested exclusively in the Board of Directors. |
|||
|
|
|
|||
21. |
|
The officers of the Company (or people performing similar functions) and their respective titles are as follows: |
Title |
|
Name |
|
|
|
Chief Executive Officer |
|
Richard P. Crystal |
President |
|
Ronald W. Ristau |
Treasurer |
|
Sheamus Toal |
|
|
The following people will have signatory powers as to all your of transactions with the Company: |
|
|
The Officers authorized in the Companys Board of Director resolutions |
|
|
|
22. |
|
With respect to the officers noted above, such officers are affiliated with and hold a 5% or more beneficial ownership in the following corporations (indicate name and address of affiliated companies, type of operations, ownership percentage or other relationship): |
|
|
|
|
|
None. |
|
|
|
23. |
|
The Company is governed by the Board of Directors. The members of such governing body of the Company are: |
|
|
|
|
|
Richard P. Crystal, Ronald W. Ristau, Sheamus Toal |
|
|
|
24. |
|
The name of the stockholders, members, partners or other equity holders of the Company and their equity holdings are as follows (if equity interests are widely held indicate only equity owners with 10% or more of the equity interests): |
Name |
|
No. of Shares or Units |
|
Ownership Percentage |
|
|
|
|
|
|
|
Lerner New York, Inc. |
|
100,300 Common Shares |
|
100 |
% |
25. |
|
There are no judgments or litigation pending by or against the Company, its subsidiaries and/or affiliates or any of its officers/principals, except as follows: |
|
|
|
|
|
None. |
|
|
|
26. |
|
At the present time, there are no delinquent taxes due (including, but not limited to, all payroll taxes, personal property taxes, real estate taxes or income taxes) except as follows: |
|
|
|
|
|
None. |
27. |
|
The Companys assets are owned and held free and clear of any security interests, liens or attachments, except as follows: |
Lienholder |
|
Assets Pledged |
|
Amount of Debt
|
|
|
|
|
|
None. |
|
|
|
|
28. |
|
The Company has not guaranteed and is not otherwise liable for the obligations of others, except as follows: |
|
|
|
|
|
None. |
|
|
|
29. |
|
The Company does not own or license any trademarks, patents, copyrights or other intellectual property, except as follows (indicate type of intellectual property and whether owned or licensed, registration number, date of registration, and, if licensed, the name and address of the licensor): |
|
|
Registration |
|
|
|
Name and Address |
Type of Intellectual |
|
Number and Date of |
|
Owned or |
|
of |
Property |
|
Registration |
|
Licensed |
|
Licensor |
See schedule 29 |
|
|
|
|
|
|
30. |
|
The Company owns or uses the following materials (e.g., software, film footage, scripts, etc.) that are subject to registration with the United States Copyright Office, though at present copyright registrations have not been filed with respect to such materials: |
|
|
|
None. |
||
|
|
|
31. |
|
The Company does not have any deposit or investment accounts with any bank, savings and loan or other financial institution, except as follows, for the purposes and of the types indicated: |
Bank Name and Branch Address |
|
Contact Person and
|
|
Account No. |
|
Purpose/Type |
Bank of America |
|
|
|
|
|
Depository Account |
Bank of America |
|
|
|
|
|
Collection Account |
Bank of New York |
|
|
|
|
|
AP Disbursement Account |
Bank of New York |
|
|
|
|
|
Payroll Disbursement Account |
32. |
|
The Company has no processing arrangements for credit card payments or payments made by check (e.g. Telecheck) except as follows: |
Bank Name and Branch
|
|
Contact Person and Phone Number |
|
Account No. |
||
Chase |
|
|
|
|
|
|
ADS |
|
|
|
|
|
|
AMEX |
|
|
|
|
|
|
Discover |
|
|
|
|
|
|
SOLUTRAN |
|
|
|
|
|
|
Telecheck |
|
|
|
|
|
|
Check Plus |
|
|
|
|
|
|
SVS |
|
|
|
|
|
|
33. |
|
The Company owns or has registered to it the following motor vehicles, the original title certificates for which shall be delivered to Lender prior to closing: None. |
|
|
|
34. |
|
With regard to any pension or profit sharing plan: |
|
|
|
|
|
See Schedule 34 |
|
|
|
35. |
|
The Companys fiscal year is a 52 or 53 week year that ends on the Saturday closest to January 31. The results for fiscal year 2006 represents the fifty-three week period ending February 3, 2007. The results for fiscal years 2005, 2004, 2003 and 2002 represents the fifty-two week period ending January 28, 2006, January 29, 2005, January 31, 2004 and February l, 2003, respectively. |
|
|
|
36. |
|
Certified Public Accountants for the Company is the firm of: |
Name: |
|
Ernst & Young |
Address: |
|
5 Times Square |
|
|
New York, NY 10036-6530 |
Telephone: |
|
(212) 773-1181 |
Facsimile: |
|
(212) 773-1275 |
E-Mail: |
|
carmine.romano@ey.com |
Partner Handling Relationship: |
|
Carmine Romano |
Were statements uncertified for any fiscal year? |
|
Statements for year end 2006 (1/29/06-2/3/07) were certified |
37. |
|
The Companys counsel with respect to the proposed loan transaction is the firm of: |
Name: |
|
Kirkland & Ellis |
Address: |
|
Citigroup Center |
|
|
153 East 53
rd
Street
|
Telephone: |
|
(212) 446-4800 |
Address: |
|
Citigroup Center
|
Telephone: |
|
(212) 446-4800 |
Facsimile: |
|
(212) 446-4900 |
E-Mail: |
|
medsall@kirkland.com |
Partner Handling Relationship: |
|
Michael Edsall |
38. |
|
The Companys counsel with respect to matters other than the proposed loan transaction, if different, is the firm of: |
Name: |
|
Same as above |
Address: |
|
|
Telephone: |
|
|
Facsimile: |
|
|
E-Mail: |
|
|
Partner Handling Relationship: |
|
|
We agree to give you prompt written notice of any change or amendment with respect to any of the foregoing information. Until you receive such notice, you will be entitled to rely in all respects on the foregoing information.
|
|
Very truly yours, |
|
|
|
|
|
|
|
JASMINE COMPANY, INC. |
|
|
|
|
|
|
|
|
|
|
|
By: |
/s/ Ronald W. Ristau |
|
|
|
Title: President |
Trademarks
TM Rights (Grouped by country) |
Report Date: |
8/23/2007 |
Country: United States
ID |
|
Mark |
|
Classes |
|
Reg. Owner |
|
App. # |
|
App. Dt |
|
Reg. # |
|
Reg. Dt |
|
Allow. Dt |
|
ITU |
14906 |
|
JASCLUB |
|
35 |
|
Jasmine Company, Inc. |
|
77/193,913 |
|
5/31/2007 |
|
|
|
|
|
|
|
Yes |
14753 |
|
JASMINESOLA |
|
3 |
|
Jasmine Company, Inc. |
|
77/025,204 |
|
10/19/2006 |
|
|
|
|
|
|
|
Yes |
14078 |
|
JASMINESOLA |
|
35 |
|
Jasmine Company, Inc. |
|
78/543,879 |
|
1/7/2005 |
|
3,111,420 |
|
7/4/2006 |
|
|
|
No |
14080 |
|
JASMINESOLA |
|
35 |
|
Jasmine Company, Inc. |
|
78/547,849 |
|
1/14/2005 |
|
|
|
|
|
|
|
Yes |
14079 |
|
JASMINESOLA |
|
14, 18, 25 |
|
Jasmine Company, Inc. |
|
78/547,059 |
|
1/13/2005 |
|
3,156,359 |
|
10/17/2006 |
|
|
|
No |
14752 |
|
JASMINESOLA AND DESIGN |
|
3 |
|
Jasmine Company, Inc. |
|
77/025,225 |
|
10/19/2006 |
|
|
|
|
|
|
|
Yes |
SCHEDULE 34
Employee Benefit Plans
a) Savings and Retirement Plan
The Company contributes to a defined contribution savings and retirement plan (the SARP) qualifying under section 401(k) of the Internal Revenue Code. Participation in the SARP is available to all associates, if not covered by the pension plan discussed below, who have completed 1,000 or more hours of service with the Company during certain twelve-month periods and have attained the age of 21. Participants may contribute an aggregate of up to 15% of their pay to the SARP, subject to the Internal Revenue Service (IRS) limits. The Company matches 100% of the employees contribution up to a maximum of 4% of the employees pay, subject to IRS limits. The Company match is immediately vested. In addition, the Company makes a discretionary retirement contribution ranging from 3% to 8% of each participants base salary depending on the length of service, which is also subject to IRS limits. For retirement contributions made prior to January 1, 2007, the Companys retirement contribution vests 20% per year, beginning in the third year of service. As a result of the adoption of new pension plan legislation in 2006, beginning in 2007, the vesting period for new contributions made by the Company will begin in the second year of service.
b) Pension Plan
The Company sponsors a single-employer defined benefit pension plan (plan) covering substantially all union employees, representing approximately 10% of the Companys workforce at February 3, 2007. The plan provides retirement benefits for union employees, consisting of non-management store associates, who have attained the age of 18 and completed 425 hours of service in the twelve-month period following the date of employment. The plan provides benefits based on length of service. The Companys funding policy for the pension plan is to contribute annually the amount necessary to provide for benefits based on accrued service.
INFORMATION CERTIFICATE
OF
NEW YORK & COMPANY, INC.
Dated: August 22, 2007
Wachovia Bank, National Association, as Agent
1133 Avenue of the Americas
New York, NY 10036
In order to assist you in the evaluation of the financing you are considering of New York & Company, Inc. (the Company ), pursuant to the Second Amended and Restated Loan and Security Agreement, dated of even date herewith, Wachovia Bank, National Association, as Agent (in such capacity Agent or you), for the persons thereto as Lenders (collectively Lenders or you), the Company certain affiliates of the Company (as the same now exists or may hereafter be amended, modified, supplemented, renewed, restated or registered, the Loan Agreement), to expedite the preparation of required documentation, and to induce you to provide financing to the Company, we represent and warrant to you and the Lenders the following information about the Company, its organizational structure and other matters of interest to you:
1. |
|
The Company has been formed by filing the following document with the Secretary of State of Delaware: |
|
|
|
|
|
|
|
x |
Certificate/Articles of Incorporation |
|
|
o |
Certificate/Articles of Organization |
|
|
o |
Other [specify] |
|
|
|
|
The date of formation of the Company by the filing of the document specified above with the Secretary of State was November 8, 2002. |
|||
|
|
|
|
2. |
|
The Company was not formed by filing a document with any Secretary of State. The Company is organized as a [specify type of organization, (e.g., general partnership, sole proprietorship, etc.)] . The Companys governing document is a [name legal document, if one exists, (e.g., partnership agreement, etc.) Not applicable |
|
|
|
|
|
3. |
|
The full and exact name of the Company as set forth in the document specified in Item 1 or 2, or (if no document is specified in Item 1 or 2) the full and exact legal name used in the Companys business, is: |
|
|
|
|
|
New York & Company, Inc. |
4. |
|
The Company uses and owns the following trade name(s) in the operation of its business (e.g. billing, advertising, etc.; note: do not include names which are product names only): |
|
|
|
|
|
None |
|
|
|
o |
|
We have attached a blank sample of every invoice that uses a tradename. |
o |
|
We do not use any tradename other than the tradenames listed in Item 4 on any invoices. |
|
|
|
5. |
|
The Company maintains offices, leases or owns real estate, has employees, pays taxes, or otherwise conducts business in the following States (including the State of its organization): |
|
|
|
|
|
Delaware. |
|
|
|
6. |
|
The Company has filed the necessary documents with the Secretary of State to qualify as a foreign corporation in the following States: |
|
|
|
|
|
Delaware. |
|
|
|
7. |
|
The Companys authority to do business has been revoked or suspended, or the Company is otherwise not in good standing in the following States: |
|
|
|
|
|
None. |
|
|
|
8. |
|
The Company and its subsidiaries have all licenses and permits necessary for the operation of the business of the Company, as such business is being operated as of the date hereof. |
|
|
|
9. |
|
In conducting its business activities, the Company is subject to regulation by federal, state or local agencies or authorities (e.g., FDA, EPA, state or municipal liquor licensing agencies, federal or state carrier commissions, etc.) as follows: |
|
|
|
|
|
Not applicable. |
|
|
|
10. |
|
The Company has never been involved in a bankruptcy or reorganization except: [explain] |
|
|
|
|
|
None. Since the Parents purchase of the Company in 1985. We have no knowledge of a bankruptcy or reorganization of the Company prior to that time. |
|
|
|
11. |
|
Between the date the Company was formed and now, the Company has used other names as set forth below: |
Period of Time |
|
Prior Name |
|
|
|
From 11/8/02 to 5/20/04 |
|
NY & CO GROUP, INC. |
From to |
|
|
From to |
|
|
12. |
|
Between the date the Company was formed and now, the Company has made or entered into mergers or acquisitions with other companies as set forth below: |
|
|
|
|
|
|
|
None other than mergers and reorganizations of internal companies in the ordinary course of business. |
|
|
|
|
|
13. |
|
The chief executive office of the Company is located at the street address set forth below, which is in New York County, in the State of New York: |
|
|
|
|
|
|
|
|
450 W. 33 rd St. |
|
|
|
New York, NY 10001 |
|
|
|
|
14. |
|
The books and records of the Company pertaining to accounts, contract rights, inventory, etc. are located at the following street address: |
|
|
|
|
|
|
|
|
450 W. 33 rd St. |
|
|
|
New York, NY 10001 |
|
|
|
|
15. |
|
In addition to the chief executive office, the Company has inventory, equipment or other assets located at the addresses set forth below. In each case, we have noted whether the location is owned, leased or operated by third parties and the names and addresses of any mortgagee, lessor or third party operator: |
|
|
|
|
Name and Address of Third |
|
|
|
|
Party with Interest in Location |
|
|
Companys Interest |
|
(e.g., mortgagee, lessor or |
Street Address with County |
|
(e.g., owner, lessee or bailee) |
|
warehouseman) |
|
|
|
|
|
None. |
|
|
|
|
16. |
|
In the course of its business, the Companys inventory and/or other assets are handled by the following customs brokers and/or freight forwarders: |
Name |
|
Address |
|
Type of Service/Assets Handled |
|
|
|
|
|
None. |
|
|
|
|
17. |
|
The places of business or other locations of any assets used by the Company during the last four (4) months other than those listed above are as follows: |
|
|
|
None. |
||
|
|
|
18. |
|
The Company is affiliated with, or has ownership in, the following entities (including subsidiaries): |
Name of Entity |
|
Chief Executive Office |
|
Jurisdiction of
|
|
Ownership
|
Lerner New York, Inc. |
|
450 West 33rd Street
|
|
Delaware |
|
Subsidiary of Parent / 100% |
Lerner New York Holding, Inc. |
|
450 West 33
rd
Street
|
|
Delaware |
|
Parent / 100% |
Lernco, Inc. |
|
1105 North Market Street
|
|
Delaware |
|
Subsidiary of Parent / 100% |
Nevada Receivable Factoring, Inc. |
|
3800 Howard Hughes
|
|
Nevada |
|
Subsidiary of Parent / 100% |
Associated Lerner Shops of America |
|
450 West 33r
d
Street
|
|
New York |
|
Subsidiary / 100% |
Lerner New York GC, LLC |
|
10 West Broad Street,
|
|
Ohio |
|
Subsidiary / 100% |
Jasmine Company, Inc. |
|
450 W. 33
rd
St.
|
|
Massachusetts |
|
Subsidiary / 100% |
19. The Federal Employer Identification Number of the Company is 33-1031445
20. Under the Companys charter documents, and under the laws of the State in which the Company is organized, the shareholders, members or other equity holders do not have to consent in order for the Company to borrow money, incur debt or obligations, pledge or mortgage the property of the Company, grant a security interest in the property of the Company or guaranty the debt of obligations of another person or entity.
x True o Incorrect [explain]:
The power to take the foregoing actions is vested exclusively in the Board of Directors.
21. The officers of the Company (or people performing similar functions) and their respective titles are as follows:
Title |
|
Name |
|
|
|
Richard P. Crystal |
|
Chairman & CEO |
Ronald W. Ristau |
|
President, CFO and Secretary |
Sandra Brooslin Viviano |
|
Executive Vice President, Human Resources |
John DeWolf |
|
Executive Vice President, Real Estate |
Sheamus Toal |
|
Senior Vice President, Chief Accounting Officer, Treasurer & Assistant Secretary |
The following people will have signatory powers as to all your of transactions with the Company:
The Officers authorized in the Companys Board of Director resolutions
22. With respect to the officers noted above, such officers are affiliated with and hold a 5% or more beneficial ownership in the following corporations (indicate name and address of affiliated companies, type of operations, ownership percentage or other relationship):
None.
23. The Company is governed by the Board of Directors. The members of such governing body of the Company are:
Richard P. Crystal, Ronald W. Ristau, John D. Howard, Bodil M. Arlander, Philip M. Carpenter III, David H. Edwab, Louis Lipschitz, Edward W. Moneypenny, Arthur E. Reiner, Richard L. Perkal, Pamela Grunder Sheiffer
24. The name of the stockholders, members, partners or other equity holders of the Company and their equity holdings are as follows (if equity interests are widely held indicate only equity owners with 10% or more of the equity interests):
Name |
|
No. of Shares or Units |
|
Ownership Percentage |
|
|
|
|
|
|
|
Bear Sterns Merchant Banking |
|
31,618,972 |
|
54.2 |
% |
25. There are no judgments or litigation pending by or against the Company, its subsidiaries and/or affiliates or any of its officers/principals, except as follows:
None.
26. At the present time, there are no delinquent taxes due (including, but not limited to, all payroll taxes, personal property taxes, real estate taxes or income taxes) except as follows:
None.
27. The Companys assets are owned and held free and clear of any security interests, liens or attachments, except as follows:
|
|
|
|
Amount of Debt |
|
Lienholder |
|
Assets Pledged |
|
Secured |
|
|
|
|
|
|
|
None. |
|
|
|
|
|
28. The Company has not guaranteed and is not otherwise liable for the obligations of others, except as follows:
None.
29. The Company does not own or license any trademarks, patents, copyrights or other intellectual property, except as follows (indicate type of intellectual property and whether owned or licensed, registration number, date of registration, and, if licensed, the name and address of the licensor):
|
|
Registration |
|
|
|
Name and Address |
|
Type of Intellectual |
|
Number and Date of |
|
Owned or |
|
of |
|
Property |
|
Registration |
|
Licensed |
|
Licensor |
|
None. |
|
|
|
|
|
|
|
30. The Company owns or uses the following materials (e.g., software, film footage, scripts, etc.) that are subject to registration with the United States Copyright Office, though at present copyright registrations have not been filed with respect to such materials:
None.
31. The Company does not have any deposit or investment accounts with any bank, savings and loan or other financial institution, except as follows, for the purposes and of the types indicated:
Bank Name and Branch Address |
|
Contact Person and
|
|
Account No. |
|
Purpose/Type |
None. |
|
|
|
|
|
|
32. The Company has no processing arrangements for credit card payments or payments made by check (e.g. Telecheck) except as follows:
Bank Name |
|
|
|
|
|
and Branch |
|
|
|
|
|
Address |
|
Contact Person and Phone Number |
|
Account No. |
|
|
|
|
|
|
|
None. |
|
|
|
|
|
33. The Company owns or has registered to it the following motor vehicles, the original title certificates for which shall be delivered to Lender prior to closing: None.
34. With regard to any pension or profit sharing plan:
None.
35. The Companys fiscal year is a 52 or 53 week year that ends on the Saturday closest to January 31. The results for fiscal year 2006 represents the fifty-three week period ending February 3, 2007. The results for fiscal years 2005, 2004, 2003 and 2002 represents the fifty-two week period ending January 28, 2006, January 29, 2005, January 31, 2004 and February 1, 2003, respectively.
36. Certified Public Accountants for the Company is the firm of:
Name: |
|
Ernst & Young |
Address: |
|
5 Times Square |
|
|
New York, NY 10036-6530 |
Telephone: |
|
(212) 773-1181 |
Facsimile: |
|
(212) 773-1275 |
E-Mail: |
|
carmine.romano@ey.com |
Partner Handling Relationship: |
|
Carmine Romano |
Were statements uncertified for any fiscal year? |
|
Statements for year end 2006 (1/29/06-2/3/07) were certified |
37. The Companys counsel with respect to the proposed loan transaction is the firm of:
Name: |
|
Kirkland & Ellis |
Address: |
|
Citigroup Center |
|
|
153 East 53 rd Street |
|
|
New York, NY 10022 |
Telephone: |
|
(212) 446-4800 |
Facsimile: |
|
(212) 446-4900 |
E-Mail: |
|
medsall@kirkland.com |
Partner Handling Relationship: |
|
Michael Edsall |
Telephone: |
|
(212) 446-4800 |
Facsimile: |
|
(212) 446-4900 |
E-Mail: |
|
medsall@kirkland.com |
Partner Handling Relationship: |
|
Michael Edsall |
38. The Companys counsel with respect to matters other than the proposed loan transaction, if different, is the firm of:
Name: |
|
Same as above |
Address: |
|
|
Telephone: |
|
|
Facsimile: |
|
|
E-Mail: |
|
|
Partner Handling Relationship: |
|
|
We agree to give you prompt written notice of any change or amendment with respect to any of the foregoing information. Until you receive such notice, you will be entitled to rely in all respects on the foregoing information.
|
Very truly yours, |
|
|
|
|
|
NEW YORK & COMPANY, INC. |
|
|
|
|
|
|
|
|
By: |
/s/ Ronald W. Ristau |
|
|
Title: President, Chief Financial Officer and Secretary |
INFORMATION CERTIFICATE
OF
NEVADA RECEIVABLE FACTORING, INC
Dated: August 22, 2007
Wachovia Bank, National Association, as Agent
1133 Avenue of the Americas
New York, NY 10036
In order to assist you in the evaluation of the financing you are considering of Nevada Receivable Factoring, Inc. (the Company ), pursuant to the Second Amended and Restated Loan and Security Agreement, dated of even date herewith, Wachovia Bank, National Association, as Agent (in such capacity Agent or you), for the persons thereto as Lenders (collectively Lenders or you), the Company certain affiliates of the Company (as the same now exists or may hereafter be amended, modified, supplemented, renewed, restated or registered, the Loan Agreement), to expedite the preparation of required documentation, and to induce you to provide financing to the Company, we represent and warrant to you and the Lenders the following information about the Company, its organizational structure and other matters of interest to you:
1. The Company has been formed by filing the following document with the Secretary of State of Nevada:
x Certificate/Articles of Incorporation
o Certificate/Articles of Organization
o Other [specify]
The date of formation of the Company by the filing of the document specified above with the Secretary of State was August 24, 1993.
2. The Company was not formed by filing a document with any Secretary of State. The Company is organized as a [specify type of organization, (e.g., general partnership, sole proprietorship, etc.)] . The Companys governing document is a [name legal document, if one exists, (e.g., partnership agreement, etc.) Not applicable
3. The full and exact name of the Company as set forth in the document specified in Item 1 or 2, or (if no document is specified in Item 1 or 2) the full and exact legal name used in the Companys business, is:
Nevada Receivable Factoring, Inc.
4. The Company uses and owns the following trade name(s) in the operation of its business (e.g. billing, advertising, etc.; note: do not include names which are product names only):
None.
[Check one of the boxes below.]
o We have attached a blank sample of every invoice that uses a tradename.
o We do not use any tradename other than the tradenames listed in Item 4 on any invoices.
5. The Company maintains offices, leases or owns real estate, has employees, pays taxes, or otherwise conducts business in the following States (including the State of its organization):
Nevada.
6. The Company has filed the necessary documents with the Secretary of State to qualify as a foreign corporation in the following States:
Nevada.
7. The Companys authority to do business has been revoked or suspended, or the Company is otherwise not in good standing in the following States:
None.
8. The Company and its subsidiaries have all licenses and permits necessary for the operation of the business of the Company, as such business is being operated as of the date hereof.
9. In conducting its business activities, the Company is subject to regulation by federal, state or local agencies or authorities (e.g., FDA, EPA, state or municipal liquor licensing agencies, federal or state carrier commissions, etc.) as follows:
Not applicable
10. The Company has never been involved in a bankruptcy or reorganization except: [explain]
None.
11. Between the date the Company was formed and now, the Company has used other names as set forth below:
Period of Time |
|
Prior Name |
|
|
|
|
|
From 8/24/93 to 1/18/94 |
|
Lerner New York Factoring, Inc. |
|
From |
|
|
|
12. Between the date the Company was formed and now, the Company has made or entered into mergers or acquisitions with other companies as set forth below:
None.
13. The chief executive office of the Company is located at the street address set forth below:
3800 Howard Hughes Pkwy, 7 th Floor
Las Vegas, Nevada
14. The books and records of the Company pertaining to accounts, contract rights, inventory, etc. are located at the following street address:
3800 Howard Hughes Pkwy, 7 th Floor
Las Vegas, Nevada
15. In addition to the chief executive office, the Company has inventory, equipment or other assets located at the addresses set forth below. In each case, we have noted whether the location is owned, leased or operated by third parties and the names and addresses of any mortgagee, lessor or third party operator:
16. In the course of its business, the Companys inventory and/or other assets are handled by the following customs brokers and/or freight forwarders:
N ame |
|
Address |
|
Type of Service/Assets Handled |
|
|
|
|
|
None. |
|
|
|
|
17. The places of business or other locations of any assets used by the Company during the last four (4) months other than those listed above are as follows:
None.
18. The Company is affiliated with, or has ownership in, the following entities (including subsidiaries):
Name of Entity |
|
Chief Executive Office |
|
Jurisdiction of
|
|
Ownership
|
New York & Company, Inc. |
|
450 West 33
rd
Street
|
|
Delaware |
|
Ultimate Parent / 100% |
Lerner New York Holding, Inc. |
|
450 West 33
rd
Street
|
|
Delaware |
|
Parent / 100% |
Lernco, Inc. |
|
1105 North Market Street |
|
Delaware |
|
Subsidiary of Parent / 100% |
Name of Entity |
|
Chief Executive Office |
|
Jurisdiction of
|
|
Ownership
|
|
|
Wilmington, DE 19899 |
|
|
|
|
Lerner New York, Inc. |
|
450 West 33rd Street
|
|
Delaware |
|
Subsidiary of Parent / 100% |
Associated Lerner Shops of America |
|
450 West 33
rd
Street
|
|
New York |
|
Subsidiary / 100% |
Lerner New York GC, LLC |
|
10 West Broad Street,
|
|
Ohio |
|
Subsidiary / 100% |
Jasmine Company, Inc. |
|
450 W. 33
rd
St.
|
|
Massachusetts |
|
Subsidiary / 100% |
19. The Federal Employer Identification Number of the Company is 88-0306309
20. Under the Companys charter documents, and under the laws of the State in which the Company is organized, the shareholders, members or other equity holders do not have to consent in order for the Company to borrow money, incur debt or obligations, pledge or mortgage the property of the Company, grant a security interest in the property of the Company or guaranty the debt of obligations of another person or entity.
x True |
|
o Incorrect [explain]: |
The power to take the foregoing actions is vested exclusively in the Board of Directors.
21. The officers of the Company (or people performing similar functions) and their respective titles are as follows:
Title |
|
Name |
|
|
|
Richard P. Crystal |
|
President and CEO |
Ronald W. Ristau |
|
Secretary |
John Brewer |
|
Assistant Secretary |
Jackie Smith |
|
Treasurer |
Sheamus Toal |
|
Assistant Treasurer |
The following people will have signatory powers as to all your of transactions with the Company:
The Officers authorized in the Companys Board of Director resolutions
22. With respect to the officers noted above, such officers are affiliated with and hold a 5% or more beneficial ownership in the following corporations (indicate name and address of affiliated companies, type of operations, ownership percentage or other relationship):
None.
23. The Company is governed by the Board of Directors. The members of such governing body of the Company are:
Ronald W. Ristau, Philip M. Carpenter III, Chris Consi, John Brewer (resident member), John Gargano, Jackie Smith, Charles H. Buckingham, Sheamus Toal
24. The name of the stockholders, members, partners or other equity holders of the Company and their equity holdings are as follows (if equity interests are widely held indicate only equity owners with 10% or more of the equity interests):
Name |
|
No. of Shares or Units |
|
Ownership Percentage |
|
|
|
|
|
|
|
Lerner New York Holding, Inc. |
|
100 Common Shares |
|
100 |
% |
25. There are no judgments or litigation pending by or against the Company, its subsidiaries and/or affiliates or any of its officers/principals, except as follows:
None.
26. At the present time, there are no delinquent taxes due (including, but not limited to, all payroll taxes, personal property taxes, real estate taxes or income taxes) except as follows:
None.
27. The Companys assets are owned and held free and clear of any security interests, liens or attachments, except as follows:
|
|
|
|
Amount of Debt |
Lienholder |
|
Assets Pledged |
|
Secured |
|
|
|
|
|
None. |
|
|
|
|
28. The Company has not guaranteed and is not otherwise liable for the obligations of others, except as follows:
None.
29. The Company does not own or license any trademarks, patents, copyrights or other intellectual property, except as follows (indicate type of intellectual property and whether owned or licensed, registration number, date of registration, and, if licensed, the name and address of the licensor):
|
|
Registration |
|
|
|
Name and Address |
Type of Intellectual |
|
Number and Date of |
|
Owned or |
|
of |
Property |
|
Registration |
|
Licensed |
|
Licensor |
None. |
|
|
|
|
|
|
30. The Company owns or uses the following materials (e.g., software, film footage, scripts, etc.) that are subject to registration with the United States Copyright Office, though at present copyright registrations have not been filed with respect to such materials:
None.
31. The Company does not have any deposit or investment accounts with any bank, savings and loan or other financial institution, except as follows, for the purposes and of the types indicated:
|
|
Contact Person and |
|
|
|
|
Bank Name and Branch Address |
|
Phone Number |
|
Account No. |
|
Purpose/Type |
|
|
|
|
|
|
|
None. |
|
|
|
|
|
|
32. The Company has no processing arrangements for credit card payments or payments made by check (e.g. Telecheck) except as follows:
Bank Name and Branch |
|
|
|
|
Address |
|
Contact Person and Phone Number |
|
Account No. |
None. |
|
|
|
|
33. The Company owns or has registered to it the following motor vehicles, the original title certificates for which shall be delivered to Lender prior to closing: None.
34. With regard to any pension or profit sharing plan:
None.
35. The Companys fiscal year is a 52 or 53 week year that ends on the Saturday closest to January 31. The results for fiscal year 2006 represents the fifty-three week period ending February 3, 2007. The results for fiscal years 2005, 2004, 2003 and 2002 represents the fifty-two week period ending January 28, 2006, January 29, 2005, January 31, 2004 and February 1, 2003, respectively.
36. Certified Public Accountants for the Company is the firm of:
Name: |
|
Ernst & Young |
Address: |
|
5 Times Square |
|
|
New York, NY 10036-6530 |
Telephone: |
|
(212) 773-1181 |
Facsimile: |
|
(212) 773-1275 |
E-Mail: |
|
carmine.romano@ey.com |
Partner Handling Relationship: |
|
Carmine Romano |
Were statements uncertified for any fiscal year? |
|
Statements for year end 2002 (11/8/02-2/1/03) were certified |
37. The Companys counsel with respect to the proposed loan transaction is the firm of:
Name: |
|
Kirkland & Ellis |
Address: |
|
Citigroup Center |
|
|
153 East 53
rd
Street
|
Telephone: |
|
(212) 446-4800 |
Facsimile: |
|
(212) 446-4900 |
E-Mail: |
|
medsall@kirkland.com |
Partner Handling Relationship: |
|
Michael Edsall |
38. The Companys counsel with respect to matters other than the proposed loan transaction, if different, is the firm of:
Name: |
|
Same as above |
Address: |
|
|
Telephone: |
|
|
Facsimile: |
|
|
Name: |
|
Same as above |
Address: |
|
|
Telephone: |
|
|
Facsimile: |
|
|
E-Mail: |
|
|
Partner Handling Relationship: |
|
|
We agree to give you prompt written notice of any change or amendment with respect to any of the foregoing information. Until you receive such notice, you will be entitled to rely in all respects on the foregoing information.
|
Very truly yours, |
|
|
|
|
|
NEVADA RECEIVABLE FACTORING, INC |
|
|
|
|
|
|
|
|
By: |
/s/ Ronald W. Ristau |
|
|
Title: Secretary |
INFORMATION CERTIFICATE
OF
LERNER NEW YORK HOLDING, INC
Dated: August 22, 2007
Wachovia Bank, National Association, as Agent
1133 Avenue of the Americas
New York, NY 10036
In order to assist you in the evaluation of the financing you are considering of Lerner New York Holding, Inc. (the Company ), pursuant to the Second Amended and Restated Loan and Security Agreement, dated of even date herewith, Wachovia Bank, National Association, as Agent (in such capacity Agent or you), for the persons thereto as Lenders (collectively Lenders or you), the Company certain affiliates of the Company (as the same now exists or may hereafter be amended, modified, supplemented, renewed, restated or registered, the Loan Agreement), to expedite the preparation of required documentation, and to induce you to provide financing to the Company, we represent and warrant to you and the Lenders the following information about the Company, its organizational structure and other matters of interest to you:
1. The Company has been formed by filing the following document with the Secretary of State of Delaware:
x Certificate/Articles of Incorporation
o Certificate/Articles of Organization
o Other [specify]
The date of formation of the Company by the filing of the document specified above with the Secretary of State was November 4, 1994.
2. The Company was not formed by filing a document with any Secretary of State. The Company is organized as a [specify type of organization, (e.g., general partnership, sole proprietorship, etc.)] . The Companys governing document is a [name legal document, if one exists, (e.g., partnership agreement, etc.) Not applicable
3. The full and exact name of the Company as set forth in the document specified in Item 1 or 2, or (if no document is specified in Item 1 or 2) the full and exact legal name used in the Companys business, is:
Lerner New York Holding, Inc.
4. The Company uses and owns the following trade name(s) in the operation of its business (e.g. billing, advertising, etc.; note; do not include names which are product names only):
None.
[Check one of the boxes below.]
o We have attached a blank sample of every invoice that uses a tradename.
o We do not use any tradename other than the tradenames listed in Item 4 on any invoices.
5. The Company maintains offices, leases or owns real estate, has employees, pays taxes, or otherwise conducts business in the following States (including the State of its organization):
Delaware.
6. The Company has filed the necessary documents with the Secretary of State to qualify as a foreign corporation in the following States:
Delaware.
7. The Companys authority to do business has been revoked or suspended, or the Company is otherwise not in good standing in the following States:
None.
8. The Company and its subsidiaries have all licenses and permits necessary for the operation of the business of the Company, as such business is being operated as of the date hereof.
9. In conducting its business activities, the Company is subject to regulation by federal, state or local agencies or authorities (e.g., FDA, EPA, state or municipal liquor licensing agencies, federal or state carrier commissions, etc.) as follows:
Not applicable.
10. The Company has never been involved in a bankruptcy or reorganization except: [explain]
None.
11. Between the date the Company was formed and now, the Company has used other names as set forth below:
Period of Time |
|
Prior Name |
|
|
|
From 11/4/1994 to 5/15/2001 |
|
Fifth Co., Inc. |
From |
|
|
From to |
|
|
12. Between the date the Company was formed and now, the Company has made or entered into mergers or acquisitions with other companies as set forth below:
None other than mergers and reorganizations of internal companies in the ordinary course of business.
13. The chief executive office of the Company is located at the street address set forth below, which is in New York County, in the State of New York:
450 W. 33 rd Street
New York, NY 10001
14. The books and records of the Company pertaining to accounts, contract rights, inventory, etc. are located at the following street address:
450 W. 33 rd Street
New York, NY 10001
15. In addition to the chief executive office, the Company has inventory, equipment or other assets located at the addresses set forth below. In each case, we have noted whether the location is owned, leased or operated by third parties and the names and addresses of any mortgagee, lessor or third party operator:
16. In the course of its business, the Companys inventory and/or other assets are handled by the following customs brokers and/or freight forwarders:
N ame |
|
Address |
|
Type of Service/Assets Handled |
|
|
|
|
|
None. |
|
|
|
|
17. The places of business or other locations of any assets used by the Company during the last four (4) months other than those listed above are as follows:
None
18. The Company is affiliated with, or has ownership in, the following entities (including subsidiaries):
Name of Entity |
|
Chief Executive Office |
|
Jurisdiction of
|
|
Ownership
|
New York & Company, Inc. |
|
450 West 33
rd
Street
|
|
Delaware |
|
Ultimate Parent / 100% |
Lerner New York, Inc. |
|
450 West 33
rd
Street
|
|
Delaware |
|
Subsidiary of Parent / 100% |
Lernco, Inc. |
|
1105 North Market Street
|
|
Delaware |
|
Subsidiary of Parent / 100% |
|
|
|
|
|
|
|
Nevada Receivable Factoring, Inc. |
|
3800 Howard Hughes
|
|
Nevada |
|
Subsidiary of Parent / 100% |
Associated Lerner Shops of America |
|
450 West 33
rd
Street
|
|
New York |
|
Subsidiary / 100% |
Lerner New York GC, LLC |
|
10 West Broad Street,
|
|
Ohio |
|
Subsidiary / 100% |
Jasmine Company, Inc. |
|
450 W. 33
rd
St.
|
|
Massachusetts |
|
Subsidiary / 100% |
19. The Federal Employer Identification Number of the Company is 31-1422460
20. Under the Companys charter documents, and under the laws of the State in which the Company is organized, the shareholders, members or other equity holders do not have to consent in order for the Company to borrow money, incur debt or obligations, pledge or mortgage the property of the Company, grant a security interest in the property of the Company or guaranty the debt of obligations of another person or entity.
x True |
|
o Incorrect [explain]: |
The power to take the foregoing actions is vested exclusively in the Board of Directors.
21. The officers of the Company (or people performing similar functions) and their respective titles are as follows:
Title |
|
Name |
|
|
|
Richard P. Crystal |
|
Chairman and CEO |
Ronald W. Ristau |
|
President, CFO and Secretary |
Sheamus Toal |
|
SVP, Chief Accounting Officer, Treasurer and Assistant Secretary |
The following people will have signatory powers as to all your of transactions with the Company:
The Officers authorized in the Companys Board of Director resolutions
22. With respect to the officers noted above, such officers are affiliated with and hold a 5% or more beneficial ownership in the following corporations (indicate name and address of affiliated companies, type of operations, ownership percentage or other relationship):
None.
23. The Company is governed by the Board of Directors. The members of such governing body of the Company are:
Richard P. Crystal, Ronald W. Ristau, John D. Howard, Bodil M. Arlander, Philip M. Carpenter III, David H. Edwab, Louis Lipschitz, Edward W. Moneypenny, Arthur E. Reiner, Richard L. Perkal, Pamela Grunder Sheiffer
24. The name of the stockholders, members, partners or other equity holders of the Company and their equity holdings are as follows (if equity interests are widely held indicate only equity owners with 10% or more of the equity interests):
Name |
|
No. of Shares or Units |
|
Ownership Percentage |
|
|
|
|
|
|
|
New York & Company, Inc. |
|
100 Common Shares |
|
100 |
% |
25. There are no judgments or litigation pending by or against the Company, its subsidiaries and/or affiliates or any of its officers/principals, except as follows:
None.
26. At the present time, there are no delinquent taxes due (including, but not limited to, all payroll taxes, personal property taxes, real estate taxes or income taxes) except as follows:
None.
27. The Companys assets are owned and held free and clear of any security interests, liens or attachments, except as follows:
|
|
|
|
Amount of Debt |
Lienholder |
|
Assets Pledged |
|
Secured |
|
|
|
|
|
None. |
|
|
|
|
28. The Company has not guaranteed and is not otherwise liable for the obligations of others, except as follows:
None.
29. The Company does not own or license any trademarks, patents, copyrights or other intellectual property, except as follows (indicate type of intellectual property and whether owned or licensed, registration number, date of registration, and, if licensed, the name and address of the licensor):
|
|
Registration |
|
|
|
Name and Address |
Type of Intellectual |
|
Number and Date of |
|
Owned or |
|
of |
Property |
|
Registration |
|
Licensed |
|
Licensor |
|
|
|
|
|
|
|
None. |
|
|
|
|
|
|
30. The Company owns or uses the following materials (e.g., software, film footage, scripts, etc.) that are subject to registration with the United States Copyright Office, though at present copyright registrations have not been filed with respect to such materials:
None.
31. The Company does not have any deposit or investment accounts with any bank, savings and loan or other financial institution, except as follows, for the purposes and of the types indicated:
|
|
Contact Person and |
|
|
|
|
|
Bank Name and Branch Address |
|
Phone Number |
|
Account No. |
|
Purpose/Type |
|
|
|
|
|
|
|
|
|
None. |
|
|
|
|
|
|
|
32. The Company has no processing arrangements for credit card payments or payments made by check (e.g. Telecheck) except as follows:
Bank Name and Branch |
|
|
|
|
|
Address |
|
Contact Person and Phone Number |
|
Account No. |
|
|
|
|
|
|
|
None. |
|
|
|
|
|
33. The Company owns or has registered to it the following motor vehicles, the original title certificates for which shall be delivered to Lender prior to closing: None.
34. With regard to any pension or profit sharing plan:
None.
35. The Companys fiscal year is a 52 or 53 week year that ends on the Saturday closest to January 31. The results for fiscal year 2006 represents the fifty-three week period ending February 3, 2007. The results for fiscal years 2005, 2004, 2003 and 2002 represents the fifty-two week period ending January 28, 2006, January 29, 2005, January 31, 2004 and February 1, 2003, respectively.
36. Certified Public Accountants for the Company is the firm of:
Name: |
|
Ernst & Young |
Address: |
|
5 Times Square |
|
|
New York, NY 10036-6530 |
Telephone: |
|
(212) 773-1181 |
Facsimile: |
|
(212) 773-1275 |
E-Mail: |
|
carmine.romano@ey.com |
Partner Handling Relationship: |
|
Carmine Romano |
Were statements uncertified for any fiscal year? |
|
Statements for year end 2006 (1/29/06-2/3/07) were certified |
37. The Companys counsel with respect to the proposed loan transaction is the firm of:
Name: |
|
Kirkland & Ellis |
Address: |
|
Citigroup Center |
|
|
153 East 53
rd
Street
|
Telephone: |
|
(212) 446-4800 |
Facsimile: |
|
(212) 446-4900 |
E-Mail: |
|
medsall@kirkland.com |
Partner Handling Relationship: |
|
Michael Edsall |
38. The Companys counsel with respect to matters other than the proposed loan transaction, if different, is the firm of:
Partner Handling Relationship: |
|
Michael Edsall |
38. The Companys counsel with respect to matters other than the proposed loan transaction, if different, is the firm of:
Name: |
|
Same as above |
Address: |
|
|
Telephone: |
|
|
Facsimile: |
|
|
E-Mail: |
|
|
Partner Handling Relationship: |
|
|
We agree to give you prompt written notice of any change or amendment with respect to any of the foregoing information. Until you receive such notice, you will be entitled to rely in all respects on the foregoing information.
|
Very truly yours, |
||
|
|
||
|
LERNER NEW YORK HOLDINGS, INC |
||
|
|
||
|
By: |
/s/ Ronald W. Ristau |
|
|
|
Title: |
President, Chief Financial Officer and Secretary |
INFORMATION CERTIFICATE
OF
LERNER NEW YORK GC, LLC
Dated: August 22, 2007
Wachovia Bank, National Association, as Agent
1133 Avenue of the Americas
New York, NY 10036
In order to assist you in the evaluation of the financing you are considering of Lerner New York GC, LLC. (the Company ), pursuant to the Second Amended and Restated Loan and Security Agreement, dated of even date herewith, Wachovia Bank, National Association, as Agent (in such capacity Agent or you), for the persons thereto as Lenders (collectively Lenders or you), the Company certain affiliates of the Company (as the same now exists or may hereafter be amended, modified, supplemented, renewed, restated or registered, the Loan Agreement), to expedite the preparation of required documentation, and to induce you to provide financing to the Company, we represent and warrant to you and the Lenders the following information about the Company, its organizational structure and other matters of interest to you:
1. |
The Company has been formed by filing the following document with the Secretary of State of Ohio: |
o Certificate/Articles of Incorporation
x Certificate/Articles of Organization
o Other [specify]
The date of formation of the Company by the filing of the document specified above with the Secretary of State was November 19, 2001. |
|||
|
|
|
|
2. |
The Company was not formed by filing a document with any Secretary of State. The Company is organized as a [specify type of organization, (e.g., general partnership, sole proprietorship, etc.)] . The Companys governing document is a [name legal document, if one exists, (e.g., partnership agreement, etc.) Not applicable |
||
|
|
|
|
3. |
The full and exact name of the Company as set forth in the document specified in Item 1 or 2, or (if no document is specified in Item 1 or 2) the full and exact legal name used in the Companys business, is: |
||
Lerner New York GC, LLC
4. |
The Company uses and owns the following trade name(s) in the operation of its business (e.g. billing, advertising, etc.; note: do not include names which are product names only): |
||||
|
|
|
|||
None |
|||||
|
|
|
|||
[Check one of the boxes below.] |
|||||
|
|
|
|||
o |
We have attached a blank sample of every invoice that uses a tradename. |
||||
o |
We do not use any tradename other than the tradenames listed in Item 4 on any invoices. |
||||
|
|||||
5. |
The Company maintains offices, leases or owns real estate, has employees, pays taxes, or otherwise conducts business in the following States (including the State of its organization): |
||||
|
|
|
|||
|
Ohio. |
||||
|
|
|
|||
6. |
The Company has filed the necessary documents with the Secretary of State to qualify as a foreign corporation in the following States: |
||||
|
|
|
|||
|
Ohio. |
||||
|
|
|
|||
7. |
The Companys authority to do business has been revoked or suspended, or the Company is otherwise not in good standing in the following States: |
||||
|
|
|
|||
|
None. |
||||
|
|
|
|||
8. |
The Company and its subsidiaries have all licenses and permits necessary for the operation of the business of the Company, as such business is being operated as of the date hereof. |
||||
|
|
|
|||
9. |
In conducting its business activities, the Company is subject to regulation by federal, state or local agencies or authorities (e.g., FDA, EPA, state or municipal liquor licensing agencies, federal or state carrier commissions, etc.) as follows: |
||||
|
|
|
|||
|
|
Not applicable. |
|||
|
|
|
|||
10. |
The Company has never been involved in a bankruptcy or reorganization except: [explain] |
||||
|
|
|
|||
|
None |
||||
|
|
|
|||
11. |
Between the date the Company was formed and now, the Company has used other names as set forth below: |
||||
Period of Time |
|
Prior Name |
None. |
|
|
12. |
Between the date the Company was formed and now, the Company has made or entered into mergers or acquisitions with other companies as set forth below: |
||
|
|
|
|
|
None other than mergers and reorganizations of internal companies in the ordinary course of business. |
||
|
|
|
|
13. |
The chief executive office of the Company is located at the street address set forth below, which is in New York County, in the State of New York: |
||
|
|
|
|
|
|
450 West 33rd Street |
|
|
|
|
|
|
|
New York, NY 10001 |
|
|
|
|
|
14. |
The books and records of the Company pertaining to accounts, contract rights, inventory, etc. are located at the following street address: |
||
|
|
|
|
|
|
450 West 33rd Street |
|
|
|
|
|
|
|
New York, NY 10001 |
|
|
|
|
|
15. |
In addition to the chief executive office, the Company has inventory, equipment or other assets located at the addresses set forth below. In each case, we have noted whether the location is owned, leased or operated by third parties and the names and addresses of any mortgagee, lessor or third party operator: |
||
|
|
|
|
Name and Address of Third |
|
|
|
|
Party with Interest in Location |
|
|
Companys Interest |
|
(e.g., mortgagee, lessor or |
Street Address with County |
|
(e.g., owner, lessee or bailee) |
|
warehouseman) |
|
|
|
|
|
None |
|
|
|
|
16. |
In the course of its business, the Companys inventory and/or other assets are handled by the following customs brokers and/or freight forwarders: |
Name |
|
Address |
|
Type of Service/Assets Handled |
|
|
|
|
|
None . |
|
|
|
|
17. |
The places of business or other locations of any assets used by the Company during the last four (4) months other than those listed above are as follows: |
|
|
None. |
18. |
The Company is affiliated with, or has ownership in, the following entities (including subsidiaries): |
Name of Entity |
|
Chief Executive Office |
|
Jurisdiction of
|
|
Ownership
|
New York & Company, Inc. |
|
450 West 33
rd
Street
|
|
Delaware |
|
Ultimate Parent / 100% |
|
|
|
|
|
|
|
Lerner New York Holding, Inc. |
|
450 West 33
rd
Street
|
|
Delaware |
|
Parent / 100% |
|
|
|
|
|
|
|
Lernco, Inc. |
|
1105 North Market Street
|
|
Delaware |
|
Subsidiary of Parent / 100% |
|
|
|
|
|
|
|
Nevada Receivable Factoring, Inc. |
|
3800 Howard Hughes
|
|
Nevada |
|
Subsidiary of Parent / 100% |
|
|
|
|
|
|
|
Associated Lerner Shops of America |
|
450 West 33
rd
Street
|
|
New York |
|
Subsidiary / 100% |
|
|
|
|
|
|
|
Lerner New York, Inc. |
|
450 West 33rd Street
|
|
Delaware |
|
Subsidiary of Parent / 100% |
|
|
|
|
|
|
|
Jasmine Company, Inc. |
|
450 W. 33
rd
St.
|
|
Massachusetts |
|
Subsidiary / 100% |
19. |
The Federal Employer Identification Number of the Company is 31-1816095 |
||||||
|
|
||||||
20. |
Under the Companys charter documents, and under the laws of the State in which the Company is organized, the shareholders, members or other equity holders do not have to consent in order for the Company to borrow money, incur debt or obligations, pledge or mortgage the property of the Company, grant a security interest in the property of the Company or guaranty the debt of obligations of another person or entity. |
||||||
|
|
||||||
|
x |
True |
o |
Incorrect [explain]: |
|||
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
The power to take the foregoing actions is vested exclusively in the Board of Directors. |
||||||
|
|
|
|
|
|
|
|
21. |
The officers of the Company (or people performing similar functions) and their respective titles are as follows: |
||||||
Title |
|
Name |
Ronald W. Ristau |
|
President |
Chris Consi |
|
Secretary |
Kevin Katchmar |
|
Vice President |
Sheamus Toal |
|
Treasurer |
The following people will have signatory powers as to all your of transactions with the Company:
The Officers authorized in the Companys Board of Director resolutions
22. With respect to the officers noted above, such officers are affiliated with and hold a 5% or more beneficial ownership in the following corporations (indicate name and address of affiliated companies, type of operations, ownership percentage or other relationship):
None.
23. The Company is governed by the Board of Directors. The members of such governing body of the Company are:
None.
24. The name of the stockholders, members, partners or other equity holders of the Company and their equity holdings are as follows (if equity interests are widely held indicate only equity owners with 10% or more of the equity interests):
Name |
|
No. of Shares or Units |
|
Ownership Percentage |
|
|
|
|
|
None. |
|
|
|
|
25. There are no judgments or litigation pending by or against the Company, its subsidiaries and/or affiliates or any of its officers/principals, except as follows:
None.
26. At the present time, there are no delinquent taxes due (including, but not limited to, all payroll taxes, personal property taxes, real estate taxes or income taxes) except as follows:
None.
27. The Companys assets are owned and held free and clear of any security interests, liens or attachments, except as follows:
Lienholder |
|
Assets Pledged |
|
Amount of Debt
|
|
|
|
|
|
None. |
|
|
|
|
28. The Company has not guaranteed and is not otherwise liable for the obligations of others, except as follows:
None.
29. The Company does not own or license any trademarks, patents, copyrights or other intellectual property, except as follows (indicate type of intellectual property and whether owned or licensed, registration number, date of registration, and, if licensed, the name and address of the licensor):
|
|
Registration |
|
|
|
Name and Address |
Type of Intellectual |
|
Number and Date of |
|
Owned or |
|
of |
Property |
|
Registration |
|
Licensed |
|
Licensor |
None. |
|
|
|
|
|
|
30. The Company owns or uses the following materials (e.g., software, film footage, scripts, etc.) that are subject to registration with the United States Copyright Office, though at present copyright registrations have not been filed with respect to such materials:
None.
31. The Company does not have any deposit or investment accounts with any bank, savings and loan or other financial institution, except as follows, for the purposes and of the types indicated:
Bank Name and Branch Address |
|
Contact Person and
|
|
Account No. |
|
Purpose/Type |
|
|
|
|
|
|
|
None. |
|
|
|
|
|
|
32. The Company has no processing arrangements for credit card payments or payments made by check (e.g. Telecheck) except as follows:
Bank Name and Branch
|
|
Contact Person and Phone Number |
|
Account No. |
None. |
|
|
|
|
33. The Company owns or has registered to it the following motor vehicles, the original title certificates for which shall be delivered to Lender prior to closing: None.
34. With regard to any pension or profit sharing plan:
None.
35. The Companys fiscal year is a 52 or 53 week year that ends on the Saturday closest to January 31. The results for fiscal year 2006 represents the fifty-three week period ending February 3, 2007. The results for fiscal years 2005, 2004, 2003 and 2002 represents the fifty-two week period ending January 28, 2006, January 29, 2005, January 31, 2004 and February 1, 2003, respectively.
36. Certified Public Accountants for the Company is the firm of:
Name: |
Ernst & Young |
Address: |
5 Times Square |
|
New York, NY 10036-6530 |
Telephone: |
(212) 773-1181 |
Facsimile: |
(212) 773-1275 |
E-Mail: |
carmine.romano@ey.com |
Partner Handling Relationship: |
Carmine Romano |
Were statements uncertified for any fiscal year? |
Statements for year end 2002 (1/29/02-2/3/03) were certified |
37. The Companys counsel with respect to the proposed loan transaction is the firm of:
Name: |
Kirkland & Ellis |
Address: |
Citigroup Center |
|
153 East 53
rd
Street
|
Telephone: |
(212) 446-4800 |
Facsimile: |
(212) 446-4900 |
E-Mail: |
medsall@kirkland.com |
Partner Handling Relationship: |
Michael Edsall |
38. The Companys counsel with respect to matters other than the proposed loan transaction, if different, is the firm of:
Name: |
Same as above |
Address: |
|
38. The Companys counsel with respect to matters other than the proposed loan transaction, if different, is the firm of:
Name: |
Same as above |
Address: |
|
Telephone: |
|
Facsimile: |
|
E-Mail: |
|
Partner Handling Relationship: |
|
We agree to give you prompt written notice of any change or amendment with respect to any of the foregoing information. Until you receive such notice, you will be entitled to rely in all respects on the foregoing information.
|
Very truly yours, |
|
|
|
|
|
LERNER NEW YORK GC, LLC |
|
|
|
|
|
|
|
|
By: |
/s/ Ronald W. Ristau |
|
|
Title: President |
INFORMATION CERTIFICATE
OF
ASSOCIATED LERNER SHOPS OF AMERICA, INC.
Dated: August 22, 2007
Wachovia Bank, National Association, as Agent
1133 Avenue of the Americas
New York, NY 10036
In order to assist you in the evaluation of the financing you are considering of Associated Lerner Shops of America, Inc. (the Company ), pursuant to the Second Amended and Restated Loan and Security Agreement, dated of even date herewith, Wachovia Bank, National Association, as Agent (in such capacity Agent or you), for the persons thereto as Lenders (collectively Lenders or you), the Company certain affiliates of the Company (as the same now exists or may hereafter be amended, modified, supplemented, renewed, restated or registered, the Loan Agreement), to expedite the preparation of required documentation, and to induce you to provide financing to the Company, we represent and warrant to you and the Lenders the following information about the Company, its organizational structure and other matters of interest to you:
1. The Company has been formed by filing the following document with the Secretary of State of New York:
x |
|
Certificate/Articles of Incorporation |
o |
|
Certificate/Articles of Organization |
o |
|
Other [specify] |
The date of formation of the Company by the filing of the document specified above with the Secretary of State was January 24, 1933.
2. The Company was not formed by filing a document with any Secretary of State. The Company is organized as a [specify type of organization, (e.g., general partnership, sole proprietorship, etc.)] . The Companys governing document is a [name legal document, if one exists, (e.g., partnership agreement, etc.) Not applicable
3. The full and exact name of the Company as set forth in the document specified in Item 1 or 2, or (if no document is specified in Item 1 or 2) the full and exact legal name used in the Companys business, is:
Associated Lerner Shops of America, Inc.
4. The Company uses and owns the following trade name(s) in the operation of its business (e.g. billing, advertising, etc.; note: do not include names which are product names only):
None
[Check one of the boxes below.]
o We have attached a blank sample of every invoice that uses a tradename.
o We do not use any tradename other than the tradenames listed in Item 4 on any invoices.
5. The Company maintains offices, leases or owns real estate, has employees, pays taxes, or otherwise conducts business in the following States (including the State of its organization):
New York.
6. The Company has filed the necessary documents with the Secretary of State to qualify as a foreign corporation in the following States:
New York.
7. The Companys authority to do business has been revoked or suspended, or the Company is otherwise not in good standing in the following States:
None.
8. The Company and its subsidiaries have all licenses and permits necessary for the operation of the business of the Company, as such business is being operated as of the date hereof.
9. In conducting its business activities, the Company is subject to regulation by federal, state or local agencies or authorities (e.g., FDA, EPA, state or municipal liquor licensing agencies, federal or state carrier commissions, etc.) as follows:
Not applicable.
10. The Company has never been involved in a bankruptcy or reorganization except: [explain]
None.
11. Between the date the Company was formed and now, the Company has used other names as set forth below:
Period of Time |
|
Prior Name |
|
|
|
From NONE |
|
|
From |
|
|
From to |
|
|
12. Between the date the Company was formed and now, the Company has made or entered into mergers or acquisitions with other companies as set forth below:
None other than mergers and reorganizations of internal companies in the ordinary course of business.
13. The chief executive office of the Company is located at the street address set forth below, which is in New York County, in the State of New York:
450 W. 33 rd Street
New York, NY 10001
14. The books and records of the Company pertaining to accounts, contract rights, inventory, etc. are located at the following street address:
450 W. 33 rd Street
New York, NY 10001
15. In addition to the chief executive office, the Company has inventory, equipment or other assets located at the addresses set forth below. In each case, we have noted whether the location is owned, leased or operated by third parties and the names and addresses of any mortgagee, lessor or third party operator:
Street Address with County |
|
Companys Interest
|
|
Name and Address of Third
|
|
|
|
|
|
None. |
|
|
|
|
16. In the course of its business, the Companys inventory and/or other assets are handled by the following customs brokers and/or freight forwarders:
Name |
|
Address |
|
Type of Service/Assets Handled |
|
|
|
|
|
None. |
|
|
|
|
17. The places of business or other locations of any assets used by the Company during the last four (4) months other than those listed above are as follows:
None.
18. The Company is affiliated with, or has ownership in, the following entities (including subsidiaries):
Name of Entity |
|
Chief Executive Office |
|
Jurisdiction of
|
|
Ownership
|
New York & Company, Inc. |
|
450 West 33
rd
Street
|
|
Delaware |
|
Ultimate Parent / 100% |
|
|
|
|
|
|
|
Lerner New York Holding, Inc. |
|
450 West 33
rd
Street
|
|
Delaware |
|
Parent / 100% |
|
|
|
|
|
|
|
Lernco, Inc. |
|
1105 North Market Street
|
|
Delaware |
|
Subsidiary of Parent / 100% |
|
|
|
|
|
|
|
Nevada Receivable Factoring, Inc. |
|
3800 Howard Hughes
|
|
Nevada |
|
Subsidiary of Parent / 100% |
|
|
|
|
|
|
|
Lerner New York, Inc. |
|
450 West 33rd Street
|
|
Delaware |
|
Subsidiary of Parent / 100% |
|
|
|
|
|
|
|
Lerner New York GC, LLC |
|
10 West Broad Street,
|
|
Ohio |
|
Subsidiary / 100% |
|
|
|
|
|
|
|
Jasmine Company, Inc. |
|
450 W. 33
rd
St.
|
|
Massachusetts |
|
Subsidiary / 100% |
19. The Federal Employer Identification Number of the Company is 13-5566483
20. Under the Companys charter documents, and under the laws of the State in which the Company is organized, the shareholders, members or other equity holders do not have to consent in order for the Company to borrow money, incur debt or obligations, pledge or mortgage the property of the Company, grant a security interest in the property of the Company or guaranty the debt of obligations of another person or entity.
x True |
o |
Incorrect [explain]: |
The power to take the foregoing actions is vested exclusively in the Board of Directors.
21. The officers of the Company (or people performing similar functions) and their respective titles are as follows:
Title |
|
Name |
|
|
|
Richard P. Crystal |
|
President and CEO |
Ronald W. Ristau |
|
Secretary |
Sheamus Toal |
|
Assistant Secretary |
The following people will have signatory powers as to all your of transactions with the Company:
The Officers authorized in the Companys Board of Director resolutions
22. With respect to the officers noted above, such officers are affiliated with and hold a 5% or more beneficial ownership in the following corporations (indicate name and address of affiliated companies, type of operations, ownership percentage or other relationship):
None
23. The Company is governed by the Board of Directors. The members of such governing body of the Company are:
Richard P. Crystal, Ronald W. Ristau, John D. Howard, Bodil M. Arlander, Philip M. Carpenter III, David H. Edwab, Louis Lipschitz, Edward W. Moneypenny, Arthur E. Reiner, Richard L. Perkal, Pamela Grunder Sheiffer
24. The name of the stockholders, members, partners or other equity holders of the Company and their equity holdings are as follows (if equity interests are widely held indicate only equity owners with 10% or more of the equity interests):
Name |
|
No. of Shares or Units |
|
Ownership Percentage |
|
|
|
|
|
|
|
Lerner New York, Inc. |
|
250 Common Shares |
|
100 |
% |
25. There are no judgments or litigation pending by or against the Company, its subsidiaries and/or affiliates or any of its officers/principals, except as follows:
None.
26. At the present time, there are no delinquent taxes due (including, but not limited to, all payroll taxes, personal property taxes, real estate taxes or income taxes) except as follows:
None.
27. The Companys assets are owned and held free and clear of any security interests, liens or attachments, except as follows:
Lienholder |
|
Assets Pledged |
|
Amount of Debt
|
|
|
|
|
|
None. |
|
|
|
|
28. The Company has not guaranteed and is not otherwise liable for the obligations of others, except as follows:
None.
29. The Company does not own or license any trademarks, patents, copyrights or other intellectual property, except as follows (indicate type of intellectual property and whether owned or licensed, registration number, date of registration, and, if licensed, the name and address of the licensor):
|
|
Registration |
|
|
|
Name and Address |
Type of Intellectual |
|
Number and Date of |
|
Owned or |
|
of |
Property |
|
Registration |
|
Licensed |
|
Licensor |
None. |
|
|
|
|
|
|
30. The Company owns or uses the following materials (e.g., software, film footage, scripts, etc.) that are subject to registration with the United States Copyright Office, though at present copyright registrations have not been filed with respect to such materials:
None.
31. The Company does not have any deposit or investment accounts with any bank, savings and loan or other financial institution, except as follows, for the purposes and of the types indicated:
|
|
Contact Person and |
|
|
|
|
Bank Name and Branch Address |
|
Phone Number |
|
Account No. |
|
Purpose/Type |
None. |
|
|
|
|
|
|
32. The Company has no processing arrangements for credit card payments or payments made by check (e.g. Telecheck) except as follows: None.
Bank Name and Branch
|
|
Contact Person and Phone Number |
|
Account No. |
None. |
|
|
|
|
33. The Company owns or has registered to it the following motor vehicles, the original title certificates for which shall be delivered to Lender prior to closing: None.
34. With regard to any pension or profit sharing plan:
None.
35. The Companys fiscal year is a 52 or 53 week year that ends on the Saturday closest to January 31. The results for fiscal year 2006 represents the fifty-three week period ending February 3, 2007. The results for fiscal years 2005, 2004, 2003 and 2002 represents the fifty-two week period ending January 28, 2006, January 29, 2005, January 31, 2004 and February 1, 2003, respectively.
36. Certified Public Accountants for the Company is the firm of:
Name: |
Ernst & Young |
Address: |
5 Times Square |
|
New York, NY 10036-6530 |
Telephone: |
(212) 773-1181 |
Facsimile: |
(212) 773-1275 |
E-Mail: |
carmine.romano@ey.com |
Partner Handling Relationship: |
Carmine Romano |
Were statements uncertified for any fiscal year? |
Statements for year end 2006 (1/29/06-2/3/07) were certified |
37. The Companys counsel with respect to the proposed loan transaction is the firm of:
Name: |
|
Kirkland & Ellis |
Address: |
|
Citigroup Center
|
Telephone: |
|
(212) 446-4800 |
Facsimile: |
|
(212) 446-4900 |
E-Mail: |
|
medsall@kirkland.com |
Partner Handling Relationship: |
|
Michael Edsall |
38. The Companys counsel with respect to matters other than the proposed loan transaction, if different, is the firm of:
Name: |
|
Same as above |
Address: |
|
|
Telephone: |
|
|
Facsimile: |
|
|
E-Mail: |
|
|
Partner Handling Relationship: |
|
|
Telephone: |
|
|
Facsimile: |
|
|
E-Mail: |
|
|
Partner Handling Relationship: |
|
|
We agree to give you prompt written notice of any change or amendment with respect to any of the foregoing information. Until you receive such notice, you will be entitled to rely in all respects on the foregoing information.
|
Very truly yours, |
|
|
|
|
|
ASSOCIATED LERNER SHOPS OF AMERICA, INC. |
|
|
|
|
|
|
|
|
By: |
/s/ Ronald W. Ristau |
|
|
Title: Secretary |
EXHIBIT E
TO
SECOND AMENDED AND RESTATED LOAN AND SECURITY AGREEMENT
Locations of Inventory
1.
450 West 33
rd
Street
New York, NY 10001
2.
Three Limited Parkway
Columbus, OH 43216
3. 466-472 53 rd Street, Brooklyn, NY (owned property)
4. See attached lease summaries for store listings (schedule 1.64).
5. Sublease Agreement, dated December 1, 2002 between Wilmington Trust Sp Services, Inc. and Lernco, Inc.
6. Premises described in First Amendment dated October 31, 2003 to the Lease Agreement, dated as of January 1, 2003, between Nevada Receivable Factoring, Inc. and Smith & Francis. (144 sq. ft. - term of 24 months - expires on December 31, 2008)
7. Premises described in First Amendment dated October 31, 2003 to the Lease Agreement, dated January 1, 2003, between Lerner New York Holding, Inc. and Smith & Francis (144 sq. ft. - term of 24 months - expires on December 31, 2008).
8. Premises described in First Amendment dated October 31, 2003 to the Lease Agreement, dated May 1, 2001, between Lerner New York Holding, Inc. and Smith & Francis (192 sq. ft. - term of 30 years - expires on April 30, 2031).
9.
Accretive (e-commerce warehouse)
307 Hollie Drive
Martinsville, 24112
EXHIBIT F
TO
SECOND AMENDED AND RESTATED LOAN AND SECURITY AGREEMENT
Fiscal Year-End; First Quarter End: Second Quarter End
Third Quarter End and Fourth Quarter End
|
|
2006 |
|
2007 |
|
2008 |
|
2009 |
|
2010 |
|
2011 |
|
2012 |
Monthly Closing Dates: |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
February |
|
February 25, 2006 |
|
March 3, 2007 |
|
March 1, 2008 |
|
February 28, 2009 |
|
February 27, 2010 |
|
February 26, 2011 |
|
February 25, 2012 |
March |
|
April 1, 2006 |
|
April 7, 2007 |
|
April 5, 2008 |
|
April 4, 2009 |
|
April 3, 2010 |
|
April 2, 2011 |
|
March 31, 2012 |
April |
|
April 29, 2006 |
|
May 5, 2007 |
|
May 3, 2008 |
|
May 2, 2009 |
|
May 1, 2010 |
|
April 30, 2011 |
|
April 28, 2012 |
May |
|
May 27, 2006 |
|
June 2, 2007 |
|
May 31, 2008 |
|
May 30, 2009 |
|
May 29, 2010 |
|
May 28, 2011 |
|
May 26, 2012 |
June |
|
July 1, 2006 |
|
July 7, 2007 |
|
July 5, 2008 |
|
July 4, 2009 |
|
July 3, 2010 |
|
July 2, 2011 |
|
June 30, 2012 |
July |
|
July 29, 2006 |
|
August 4, 2007 |
|
August 2, 2008 |
|
August 1, 2009 |
|
July 31, 2010 |
|
July 30, 2011 |
|
July 28, 2012 |
August |
|
August 26, 2006 |
|
September 1, 2007 |
|
August 30, 2008 |
|
August 29, 2009 |
|
August 28, 2010 |
|
August 27, 2011 |
|
August 25, 2012 |
September |
|
September 30, 2006 |
|
October 6, 2007 |
|
October 4, 2008 |
|
October 3, 2009 |
|
October 2, 2010 |
|
October 1, 2011 |
|
September 29, 2012 |
October |
|
October 28, 2006 |
|
November 3, 2007 |
|
November 1, 2008 |
|
October 31, 2009 |
|
October 30, 2010 |
|
October 29, 2011 |
|
October 27, 2012 |
November |
|
November 25, 2006 |
|
December 1, 2007 |
|
November 29, 2008 |
|
November 28, 2009 |
|
November 27, 2010 |
|
November 26, 2011 |
|
November 24, 2012 |
December |
|
December 30, 2006 |
|
January 5, 2008 |
|
January 3, 2009 |
|
January 2, 2010 |
|
January 1, 2011 |
|
December 31, 2011 |
|
December 29, 2012 |
January |
|
February 3, 2007 |
|
February 2, 2008 |
|
January 31, 2009 |
|
January 30, 2010 |
|
January 29, 2011 |
|
January 28, 2012 |
|
February 2, 2013 |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Quarterly Closing Dates: |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Q1 |
|
April 29, 2006 |
|
May 5, 2007 |
|
May 3, 2008 |
|
May 2, 2009 |
|
May 1, 2010 |
|
April 30, 2011 |
|
April 28, 2012 |
Q2 |
|
July 29, 2006 |
|
August 4, 2007 |
|
August 2, 2008 |
|
August 1, 2009 |
|
July 31, 2010 |
|
July 30, 2011 |
|
July 28, 2012 |
Q3 |
|
October 28, 2006 |
|
November 3, 2007 |
|
November 1, 2008 |
|
October 31, 2009 |
|
October 30, 2010 |
|
October 29, 2011 |
|
October 27, 2012 |
Q4 |
|
February 3, 2007 |
|
February 2, 2008 |
|
January 31, 2009 |
|
January 30, 2010 |
|
January 29, 2011 |
|
January 28, 2012 |
|
February 2, 2013 |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Annual Closing Dates: |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Fiscal 2006 |
|
February 3, 2007 |
|
|
|
|
|
|
|
|
|
|
|
|
Fiscal 2007 |
|
|
|
February 2, 2008 |
|
|
|
|
|
|
|
|
|
|
Fiscal 2008 |
|
|
|
|
|
January 31, 2009 |
|
|
|
|
|
|
|
|
Fiscal 2009 |
|
|
|
|
|
|
|
January 30, 2010 |
|
|
|
|
|
|
Fiscal 2010 |
|
|
|
|
|
|
|
|
|
January 29, 2011 |
|
|
|
|
Fiscal 2011 |
|
|
|
|
|
|
|
|
|
|
|
January 28, 2012 |
|
|
Fiscal 2012 |
|
|
|
|
|
|
|
|
|
|
|
|
|
February 2, 2013 |
SCHEDULE 1.196
TO
SECOND AMENDED AND RESTATED LOAN AND SECURITY AGREEMENT
Total Commitments
Lender |
|
Revolving Loan
|
|
Existing Term Loan
|
|
Lenders Total
|
|
|||
|
|
|
|
|
|
|
|
|||
Wachovia Bank, National Association |
|
$ |
50,000,000 |
|
$ |
28,500,000 |
|
$ |
78,500,000 |
|
|
|
|
|
|
|
|
|
|||
LaSalle Retail Finance, a division of LaSalle Business Credit, LLC, as agent for LaSalle Bank Midwest, National Association |
|
$ |
40,000,000 |
|
$ |
0 |
|
$ |
40,000,000 |
|
|
|
|
|
|
|
|
|
|||
Total Commitments: |
|
$ |
90,000,000 |
|
$ |
28,500,000 |
|
$ |
118,500,000 |
|
SCHEDULE 1.49(a)
TO
SECOND AMENDED AND RESTATED LOAN AND SECURITY AGREEMENT
EBITDA Adjustments
Adjustments to EBITDA:
Plus: One-time expenses incurred in connection with the closing of this Agreement and the transactions contemplated to occur on the date hereof
Plus: Non-cash compensation expenses, including, but not limited to, those arising from or relating to the issuance of stock, restricted stock, options to purchase stock, stock appreciation rights (i.e., phantom stock) and deferred compensation to the officers, employees and directors of the Borrowers and Obligors
Plus: Without duplication, amortization of intangibles
Plus: Any other non-cash charges, non-cash expenses (including non-cash straight line rent), non-cash losses or non-cash restructuring charges of any Borrower or any of its Subsidiaries for such period
Plus: Employee compensation incurred prior to the date hereof in connection with the transactions contemplated hereby
Minus: Amortization of construction or landlord tenant allowances
SCHEDULE 1.49(b)
TO
SECOND AMENDED AND RESTATED LOAN AND SECURITY AGREEMENT
Monthly Consolidated EBITDA
July 2006 |
|
$ |
|
|
|
|
|
|
|
August 2006 |
|
$ |
|
|
|
|
|
|
|
September 2006 |
|
$ |
|
|
|
|
|
|
|
October 2006 |
|
$ |
|
|
|
|
|
|
|
November 2006 |
|
$ |
|
|
|
|
|
|
|
December 2006 |
|
$ |
|
|
|
|
|
|
|
January 2007 |
|
$ |
|
|
|
|
|
|
|
February 2007 |
|
$ |
|
|
|
|
|
|
|
March 2007 |
|
$ |
|
|
|
|
|
|
|
April 2007 |
|
$ |
|
|
|
|
|
|
|
May 2007 |
|
$ |
|
|
|
|
|
|
|
June 2007 |
|
$ |
|
|
SCHEDULE 1.86
TO
SECOND AMENDED AND RESTATED LOAN AND SECURITY AGREEMENT
Freight Forwarders
Freight Forwarders - OCEAN CARRIERS
a) Maersk Line
Elizabeth Hassert
Strategic Account Manager
Maersk, Inc.
2021 Spring Road Suite 500 Oak Brook, IL 60523-1859
PH: 630-645-3622
FX: 630-645-3667
b) Mitsui
Stephen J. Schoenhaus
Senior VP
Mitsui OSK Lines (America), Inc.
188 Industrial Drive
Suite 300
Elmhurst, IL 60126
PH: 630-592-7031
FX: 630-592-7402
c) P&O Nedlloyd (acquired by Maersk in 2004)
Chris Dombalis
Senior Vice President
Sales and Marketing, North America
P&O Nedlloyd Limited
One Meadowlands Plaza
East Rutherford, NJ 07073
PH: 201-896-6769
FX 201-896-6371
d) APL
Ann Hasse
Law Dept
111 Broadway
Oakland, CA 94607
PH: 510-272-7284
FX: 510-272-8932
e) NYK Lines
Gary Garback
NYK Line (North America) Inc.
377 East Butterfield Road
Fifth Floor
Lombard, IL 60148
PH: 630-435-7803
FX: 630-435-3100
f) APL-Logistics (ocean consolidator)
Ann Hasse
Law Dept
APL-Logistics
1111 Broadway
Oakland, CA 94607
PH: 510-272-7284
FX: 510-272-8932
Freight Forwarders - AIRFREIGHT FORWARDERS
a) Morrison Express
Doug Haring
Vice President
USA Sales and marketing
Morrison Express Corp (USA)
2000 Hughes Way
El Segundo, CA 90245
PH: 310-322-8999 ext 230
FX: 310-322-6688
b) BAX Global
Brady Borycki
BAX Global
11101 Metro Airport Center Drive Ste. 108
Romulus, MI 48174
PH: 734-229-3349
FX: 734-955-2010
c) STAR Trans International Ltd
Anthony Chan
Star Airfreight Co. Ltd
149-35 177th Street
Jamaica, New York 11434
PH: 718-656 5360
FX: 718-656 2597
d) EGL United States
Eagle Global Logistics
Attn: Ron Scott
6700 Port Road
Groveport, Ohio 43125
PH: 614-489-5177
FX: 614-489-5171
e) FedEX Corporation
942 South Shady Grove Road
Memphis, TN 38120
PH: 901-369-3600
f) Panalpina
950 Tower Lane, Suite 1600
Foster City, CA 94404
PH: 650-653-6600
FX: 650-653-6735
Email: info.noram@panalpina.com
g) Sovereign
4348 Albany Post Road
Hyde Park, NY 12538
PH: 845-229-8808
FX: 845-229-8828
h) Expo
29, Josier Street, Nungambakkam,
Chennai 600 034
PH: + 91 44 28223458
FX: + 91 44 28223463
Email: cs@expofreight.com
i) Speedmark
1525 Adrian Road,
Burlingame, CA 94010
PH: 650-652-0288
FX: 650-652-0290
Email: info.uac@speedmark.com
j) Expeditors
1015 Third Avenue, 12 th Floor
Seattle, WA 98104
PH: 206-674-3400
E-Commerce Warehouse
a) Accretive Commerce
Keith Bolt
EVP-CFO
13801 W. Rees Blvd
Hunterville, NC 28078
PH: 704-370-5000
FX: 704-370-5050
SCHEDULE 2.3(f)
TO
SECOND AMENDED AND RESTATED LOAN AND SECURITY AGREEMENT
Specified Trademarks
NONE.
SCHEDULE 5.2(b)
TO
SECOND AMENDED AND RESTATED LOAN AND SECURITY AGREEMENT
Chattel Paper and Instruments
None.
SCHEDULE 5.2 (e)
TO
SECOND AMENDED AND RESTATED LOAN AND SECURITY AGREEMENT
List of Investment Property
1. Lerner New York, Inc. Citifunds Investment Cash Reserve Class S (money market account)
2. Lerner New York, Inc. Federated Tax-Free Obligation Institutional Fund (Bear Stearns)
SCHEDULE 5.2(f)
TO
SECOND AMENDED AND RESTATED LOAN AND SECURITY AGREEMENT
Letters of Credit
None.
SCHEDULE 5.2(g)
TO
SECOND AMENDED AND RESTATED LOAN AND SECURITY AGREEMENT
Commercial Tort Claims
None.
SCHEDULE 8.13
TO
SECOND AMENDED AND RESTATED LOAN AND SECURITY AGREEMENT
Collective Bargaining Agreements
1. Collective Bargaining Agreement between Local 1102, RWDSU, UFCW AFL-CIO and Lerner Stores, Inc. and New York & Company (New York City Metropolitan Area, Maryland, Pennsylvania and Upstate New York), dated September 1, 2002. Agreement is under renegotiation. A signed extension agreement through October 2007 is currently being negotiated.
2. Collective Bargaining Agreement, dated January 15, 2004, between Lerner New York, Inc. and International Union, United Automobile, Aerospace and Agricultural Implement Workers of America, UAW-AFL-CIO, and its Local Union 2179. The Agreement was effective from January 15, 2004 to January 14, 2007. A new contract was negotiated that is effective from January 15, 2007 through January 14, 2010.
3. Agreement, dated February 6, 2003, by and between Lerner New York, Inc. and the New England Joint Board, affiliated with the Retail, Wholesale and Department Store Union/UFCW, AFL-CIO, CLC. The Agreement was effective from February 6, 2003 through February 5, 2006. The current agreement is effective from February 6, 2006 through February 9, 2009.
SCHEDULE 8.14
TO
SECOND AMENDED AND RESTATED LOAN AND SECURITY AGREEMENT
Material Contracts
1. Amended and Restated Private Label Credit Card Program Agreement Between World Financial Network National Bank and New York & Company, Inc. Dated as of November 1, 2004.
2. Transition Services Agreement, dated as of November 27, 2002, by and between Lerner New York Holdings, Inc. and Limited Brands, Inc., as amended on April 12, 2006.
3. Information Technology:
a) Master Services Agreement, dated April 8, 2003 between Infocrossing, Inc. and NY & Co. Group, Inc.
b) Database Service Agreement, dated September 1, 2003 between ADS Alliance Data Systems, Inc. and NY & Co. Group, Inc.
SCHEDULE 8.16
TO
SECOND AMENDED AND RESTATED LOAN AND SECURITY AGREEMENT
Credit Card Agreements
1. Merchant Services Bankcard Agreement, dated September 11, 2002, between Limited Brands, Inc., Lerner New York, Inc. (as a Customer listed in Attachment I), JP Morgan Chase Bank and Chase Merchant Services L.L.C.
2. American Express Service Agreement by and among American Express Travel Related Services, Inc., The Limited, Inc. and its subsidiaries.
3. Merchant Services Agreement, dated June 21, 1991, between Lerner New York, Inc. and Discover Card Services, Inc.
4. Amended and Restated Private Label Credit Card Program Agreement Between World Financial Network National Bank and New York & Company, Inc. Dated as of November 1, 2004.
5. Co-Branded Credit Card Program Agreement Between World Financial Network National Bank and New York & Company, Inc. Dated as of November 1, 2005.
SCHEDULE 8.8
TO
SECOND AMENDED AND RESTATED LOAN AND SECURITY AGREEMENT
Environmental Compliance
None.
SCHEDULE 8.9(c)
TO
SECOND AMENDED AND RESTATED LOAN AND SECURITY AGREEMENT
ERISA Affiliates Transactions
None.
SCHEDULE 9.9(h)
TO
SECOND AMENDED AND RESTATED LOAN AND SECURITY AGREEMENT
Permitted Intercompany Indebtedness
1. Promissory Note in favor of Nevada Receivable Factoring, Inc. in the principal amount of $163,390,000 (such Note to be cancelled in the event of consolidation).
2. Promissory Note in favor of Lernco, Inc. in the principal amount of $47,487,897.
SCHEDULE 9.10
TO
SECOND AMENDED AND RESTATED LOAN AND SECURITY AGREEMENT
Permitted Loans
Incidental travel and relocation expenses to employees.
SCHEDULE 9.11(f)
TO
SECOND AMENDED AND RESTATED LOAN AND SECURITY AGREEMENT
Permitted Uses of Certain Permitted Dividends
1. Professional Audit & Consulting Fees
2. Insurance Consulting
3. Legal Fees and Settlements
4. Real Estate/Construction Consulting
5. Benefits Consulting
6. Public Relations
7. General Insurance, Liability, Auto, Workers Compensation
8. Transition Services Agreement - Real Estate
- Tax
- Treasury
9. Head Office Rent
10. Management Bonus and payments
11. Other reasonable ordinary course compensation to officers, directors and employees
12. Internal Processing Fees
Exhibit 10.26
Executed
SECOND AMENDED AND RESTATED
COLLATERAL ASSIGNMENT OF TRADEMARKS
(SECURITY AGREEMENT)
THIS SECOND AMENDED AND RESTATED COLLATERAL ASSIGNMENT OF TRADEMARKS (SECURITY AGREEMENT) (this Agreement ), dated August 22, 2007, is made among LERNCO, INC., a Delaware corporation (Lernco), and Jasmine Company, Inc., a Massachusetts corporation (Jasmine and together with Lernco, each individually a Pledgeor and collectively, Pledgors ), each with offices at 450 West 33 rd Street, New York, New York 10001, in favor of WACHOVIA BANK, NATIONAL ASSOCIATION, a national banking association, with an office at 1133 Avenue of the Americas, New York, New York 10036, in its capacity as agent (in such capacity, Pledgee ), for the Lenders and Bank Product Providers (as defined in the Loan Agreement).
W I T N E S S E T H:
WHEREAS, Lernco has previously entered into the Amended and Restated Collateral Assignment of Trademarks (Security Agreement), dated as of March 16, 2004 (the Existing Security Agreement ), in order to further evidence Lerncos grant in favor of Pledgee, of a security interest in the Trademarks (as defined herein) and the goodwill and certain other assets with respect to the Trademarks, as further set forth therein.
WHEREAS, Pledgee, Pledgors, Lerner New York, Inc. ( Lerner and together with Pledgors, collectively, Borrowers), Guarantors, and the Persons from time to time party thereto as lenders ( Lenders ), have amended and restated or are about to amend and restate the existing financing arrangements of Pledgee, Lenders, Borrowers and Guarantors pursuant to which Lenders (or Pledgee on behalf of Lenders) may make loans and advances and provide other financial accommodations to Borrowers as set forth in the Second Amended and Restated Loan and Security Agreement, dated as of the date hereof, by and among Pledgee, Lenders, Borrowers and Guarantors (as the same now exists or may hereafter be amended, modified, supplemented, extended, renewed, restated or replaced, the Loan Agreement ) and other agreements, documents and instruments referred to therein or at any time executed and/or delivered in connection therewith or related thereto, including, but not limited to, this Guarantee (all of the foregoing, together with the Loan Agreement, as the same now exist or may hereafter be amended, modified, supplemented, extended, renewed, restated or replaced, being collectively referred to herein as the Financing Agreements ).
WHEREAS, Lernco owns all right, title, and interest in and to, among other things, all the trademarks, United States trademarks and trademark registrations, and the trademark applications and tradenames, set forth on Exhibit A-1 hereto (the Lernco Trademarks ) and Jasmine owns all right, title, and interest in and to, among other things, all the trademarks, United States trademarks and trademark registrations, and the trademark applications and tradenames, set forth on Exhibit A-2 hereto (the Jasmine Trademarks , and collectively, together with the Lernco Trademarks, the Trademarks); and
WHEREAS, in furtherance of the terms of the Financing Agreements and in consideration of Pledgee and the Lenders entering into the Loan Agreement, Pledgors and Pledgee wish to amend and restate the Existing Security Agreement.
NOW THEREFORE, for valuable consideration received and to be received, and as security for the full payment and performance of the Obligations (as defined in the Loan Agreement) arising from the Loan Agreement, and to induce Pledgee and the Lenders to make and continue to make loans and advances to the Borrowers under the Loan Agreement, Pledgors and Pledgee hereby amend and restate the Existing Security Agreement in its entirety as set forth in this Agreement and Pledgors hereby grant to Pledgee, for itself and the ratable benefit of the Lenders and Bank Product Providers, a security interest in:
(a) the Trademarks;
(b) all registrations of the Trademarks in any State of the United States and any foreign countries and localities;
(c) all tradenames, trademarks and trademark registrations hereafter adopted or acquired and used, including, but not limited to, those which are based upon or derived from the Trademarks or any variations thereof (the Future Trademarks );
(d) all extensions, renewals, and continuations of the Trademarks and Future Trademarks and the registrations referred to in clause (b) above;
(e) all rights to sue for past, present and future infringements of the Trademarks and Future Trademarks;
(f) all packaging, labeling, trade names, service marks, logos, and trade dress including or containing the Trademarks and Future Trademarks, or a representation thereof, or any variation thereof;
(g) all licenses and other agreements under which each Pledgor is licensor, but only to the extent that the grant of a security interest therein would not be prohibited by or be a breach of terms thereof, and all fees, rents, royalties, proceeds or monies thereunder, relating to the Trademarks and Future Trademarks and the use thereof; and
(h) all goodwill of each Pledgors business connected with, symbolized by or in any way related to the items set forth in clauses (a) through (g) above.
All of the foregoing items set forth in clauses (a) through (h) are hereinafter referred to collectively as the Collateral .
AND Pledgors hereby covenants with Pledgee as follows:
1. Pledgors Obligations . Each Pledgor agrees that, notwithstanding this Agreement, it will perform and discharge and remain liable for all its covenants, duties, and obligations arising in connection with the Collateral and any licenses and agreements related thereto. Pledgee shall have no obligation or liability in connection with the Collateral or any licenses or
agreements relating thereto by reason of this Agreement or any payment received by Pledgee or any Lender relating to the Collateral, nor shall Pledgee or any Lender be required to perform any covenant, duty, or obligation of each Pledgor arising in connection with the Collateral or any license or agreement related thereto or to take any other action regarding the Collateral or any such licenses or agreement.
2. Representations and Warranties . Each Pledgor represents and warrants to Pledgee that:
(a) Pledgors are the owner of the Collateral, and no adverse claims have been made with respect to its title to or the validity of the Collateral;
(b) the Trademarks are the only trademarks, trademark registrations, trademark applications and trade names in which Pledgors have all right, title and interest;
(c) none of the Collateral is subject to any prior mortgage, pledge, lien, security interest, lease, charge, encumbrance or license (by Pledgors as licensor), except for Pledgees interests granted hereunder and under the Existing Security Agreement; and
(d) when this Agreement is filed in the United States Patent and Trademark Office (the Trademark Office ) and the Pledgee has taken the other actions contemplated in this Agreement and by the Financing Agreements, if, and to the extent that a security interest may be perfected in such Collateral under applicable law this Agreement will create a legal and valid perfected and continuing lien on and security interest in the Collateral in favor of Pledgee (except for any non-U.S. Trademarks), enforceable against Pledgors and all third parties, subject to no other prior mortgage, lien, charge, encumbrance, or security or other interest.
3. Covenants . Each Pledgor will maintain the Collateral, defend the Collateral against the claims of all persons, and will maintain and renew all registrations of the Collateral; notwithstanding the foregoing, Pledgors will not be required to maintain, renew or defend any Collateral which, in Pledgors reasonable judgment, no longer has any material economic value. Pledgors will maintain at least the same standards of quality (which Pledgee has reviewed) for the goods and services in connection with which the Trademarks are used as Pledgors maintained for such goods and services prior to entering into this Agreement. Pledgee shall have the right to enter upon Pledgors premises as provided in the Financing Agreements to monitor such quality standards. Without limiting the generality of the foregoing, and so long as any Trademark or Future Trademark, in Pledgors reasonable judgment, has material economic value, Pledgors shall not permit the expiration, termination or abandonment of such Trademark or Future Trademark without the prior written consent of Pledgee. If, before the Obligations have been satisfied in full and the Financing Agreements have been terminated, Pledgors shall be licensed to use any new trademark, or become entitled to the benefit of any trademark application or trademark registration, the provisions of Section 1 hereof shall automatically apply thereto and Pledgors shall give Pledgee prompt notice thereof in writing.
4. Use Prior to Default . Effective until Pledgees exercise of its rights and remedies upon an Event of Default under and as defined in the Financing Agreements (an Event of
Default ), Pledgors shall be entitled to use the Collateral in the ordinary course of its business, subject to the terms and covenants of the Financing Agreements and this Agreement.
5. Remedies Upon Default . Whenever any Event of Default shall occur and be continuing, Pledgee shall have all the rights and remedies granted to it in such event by the Financing Agreements, which rights and remedies are specifically incorporated herein by reference and made a part hereof, and any and all rights and remedies of law available to Pledgee. Pledgee in such event may collect directly any payments due to Pledgors in respect of the Collateral and may sell, license, lease, assign, or otherwise dispose of the Collateral in the manner set forth in the Financing Agreements. Each Pledgor agrees that, in the event of any disposition of the Collateral upon and during the continuance of any such Event of Default, it will duly execute, acknowledge, and deliver all documents necessary or advisable to record title to the Collateral in any transferee or transferees thereof, including, without limitation, valid, recordable assignments of the Trademarks or Future Trademarks. In the event Pledgors fail or refuse to execute and deliver such documents, each Pledgor hereby irrevocably appoints Pledgee as its attorney-in-fact, with power of substitution, to execute, deliver, and record any such documents on each Pledgors behalf as provided in the Financing Agreements. Notwithstanding any provision hereof to the contrary, during the continuance of an Event of Default, Pledgors may sell any merchandise or services bearing the Trademarks and Future Trademarks in the ordinary course of its business and in a manner consistent with its past practices, until it receives written notice from Pledgee to the contrary. The preceding sentence shall not limit any right or remedy granted to Pledgee with respect to each Pledgors inventory under the Financing Agreements or any other agreement now or hereinafter in effect.
6. Cumulative Remedies . The rights and remedies provided herein are cumulative and not exclusive of any other rights or remedies provided by law. The rights and remedies provided herein are intended to be in addition to and not in substitution of the rights and remedies provided by the Financing Agreements or any other agreement or instrument delivered in connection therewith.
7. Amendments and Waivers . This Agreement may not be modified, supplemented, or amended, or any of its provisions waived except in a writing signed by Pledgors and Pledgee. Pledgors hereby authorize Pledgee to modify this Agreement by amending Exhibit A hereto to include any Future Trademarks.
8. Waiver of Rights . No course of dealing between the parties to this Agreement or any failure or delay on the part of any such party in exercising any rights or remedies hereunder shall operate as a waiver of any rights and remedies of such party or any other party, and no single or partial exercise of any rights or remedies by one party hereunder shall operate as a waiver or preclude the exercise of any other rights and remedies of such party or any other party. No waiver by Pledgee of any breach or default by Pledgors shall be deemed a waiver of any other previous breach or default or of any breach or default occurring thereafter.
9. Assignment . The provisions of this Agreement shall be binding upon and inure to the benefit of the respective successors and assigns of the parties hereto; provided, however, that no interest herein or in or to the Collateral may be assigned by Pledgors without the prior written
consent of Pledgee; and, provided further, that Pledgee may assign the rights and benefits hereof to any party acquiring any interest in the Obligations or any part thereof.
10. Future Acts . Until the Obligations shall have been paid in full, Pledgors shall have the duty to make applications on material unregistered, but registrable as trademarks, Collateral owned by each Pledgor in any location where each Pledgor does business, to prosecute such applications diligently, and to preserve and maintain all rights in the material Trademarks and the other material Collateral, except to the extent Pledgors reasonably determine that such Trademarks do not have any material economic value. Any expenses incurred in connection with such applications and other actions shall be borne by Pledgors. Pledgors shall not abandon any right to file a trademark application or registration for any trademark, or abandon any such pending trademark application or registration, without the consent of Pledgee, except to the extent that Pledgors reasonably determines that the trademark covered by such application or registration has no material economic value.
11. Enforcement . Upon Pledgors failure to do so after Pledgees demand, or upon the occurrence and during the continuance of an Event of Default, Pledgee shall have the right but shall in no way be obligated to bring suit in its own name to enforce the Trademarks and Future Trademarks and any license thereunder, having material economic value to the Pledgee, in which event Pledgors shall at the request of Pledgee do any and all lawful acts and execute any and all proper documents required by Pledgee in aid of such enforcement and Pledgors shall promptly, upon demand, reimburse and indemnify Pledgee or its agents for all costs and expenses incurred by Pledgee in the exercise of its rights under this Section 11.
12. Release . At such time as Pledgors shall completely satisfy all of the non-contingent Obligations, and the Financing Agreements have been terminated, other than upon enforcement of Pledgees remedies under the Financing Agreements after an Event of Default, Pledgee will, at Pledgors sole cost and expense, execute and deliver to each Pledgor a release or other instrument as may be necessary or proper to release each Pledgors lien in the Collateral, subject to any dispositions thereof which may have been made by Pledgee pursuant hereto and as may be necessary to record such release with the U.S. Patents and Trademarks Office, or equivalent authority.
13. Severability . If any clause or provision of this Agreement shall be held invalid or unenforceable, in whole or in part, in any jurisdiction, such invalidity or unenforceability shall attach only to such clause or provision, or part thereof, in such jurisdiction, and shall not in any manner affect such or any other clause or provision in any other jurisdiction.
14. Notices . All notices, requests and demands to or upon Pledgors or Pledgee under this Agreement shall be given in the manner prescribed by the Financing Agreements.
15. Governing Law . This Agreement shall be governed by and construed, applied, and enforced in accordance with the federal laws of the United States of America applicable to trademarks and the laws of the State of New York, except that no doctrine of choice of law shall be used to apply the laws of any other State or jurisdiction. The parties agree that all actions or proceedings arising in connection with this Agreement shall be tried and litigated only in the state and federal courts located in the State of New York, New York County, or in the United
States District Court for the Southern District of New York, whichever Pledgee may elect (except that Pledgee shall have the right to bring any action or proceeding against any Pledgor or its property in the courts of any other jurisdiction which Pledgee deems necessary or appropriate in order to realize on the Collateral or to otherwise enforce its rights against any Pledgor or its property). PLEDGORS AND PLEDGEE EACH WAIVES THE RIGHT TO TRIAL BY JURY OF ANY CLAIM, DEMAND, ACTION, OR CAUSE OF ACTION ARISING UNDER THIS AGREEMENT, WHETHER NOW EXISTING OR HEREAFTER ARISING, AND ANY RIGHT EITHER MAY HAVE TO ASSERT THE DOCTRINE OF FORUM NON CONVENIENS, LACK OF PERSONAL JURISDICTION, OR TO OBJECT TO VENUE TO THE EXTENT ANY PROCEEDING IS BROUGHT IN ACCORDANCE WITH THIS SECTION.
16. Counterparts, etc. This Agreement may be executed in any number of counterparts, each of which shall be an original, but all of which taken together shall constitute one and the same agreement. Delivery of an executed counterpart of this Agreement by telefacsimile shall have the same force and effect as the delivery of an original executed counterpart of this Agreement. Any party delivering an executed counterpart of this Agreement by telefacsimile shall also deliver an original executed counterpart, but the failure to do so shall not affect the validity, enforceability or binding effect of this Agreement.
17. Supplement . This Agreement is a supplement to, and is hereby incorporated into, the Financing Agreements and made a part thereof.
18. Interpretation . To the extent that any covenants set forth in Section 3 hereto, or representations or warranties set forth in Section 2 hereto are in direct conflict with the terms of any covenants, representations or warranties contained in the Financing Agreements, the terms of this Agreement shall control. To the extent any other provisions of this Agreement are in direct conflict with the terms of any other provisions of the Financing Agreements, the terms of the Financing Agreements shall control.
19. Acknowledgment and Restatement .
(a) Each Pledgor hereby acknowledges, confirms and agrees that each Pledgor is indebted to Pledgee and Lenders in respect of any obligations, liabilities or indebtedness for loans, advances and letter of credit accommodations to Pledgee under the Existing Loan Agreement, the Existing Security Agreement or the other Existing Financing Agreements, together with all interest accrued and accruing thereon, and all fees, costs, expenses and other charges relating thereto, all of which are unconditionally owing by each Pledgor to Pledgee without offset, defense, or counterclaim of any kind, nature or description whatsoever. Each Pledgor hereby ratifies, assents, adopts and agrees to pay all of the Obligations arising before, on or after the date hereof.
(b) Each Pledgor hereby acknowledges, confirms and agrees that Pledgee has and shall continue to have, for itself and the benefit of Lenders, valid, enforceable and perfected first priority security interests in and liens upon all of the Collateral heretofore granted to Pledgee pursuant to the Existing Security Agreement to secure all of the Obligations subject only to liens permitted under the Loan Agreement and the other Financing Agreements.
(c) Each Pledgor hereby acknowledges, confirms and agrees that: (i) the Existing Security Agreement has been duly executed and delivered by Pledgors and is in full force and effect as of the date hereof; (ii) the agreements and obligations of Pledgors contained in the Existing Security Agreement constitute legal, valid and binding obligations of Pledgors enforceable against it in accordance with the terms thereof, and Pledgors have no valid defense, offset or counterclaim to the enforcement of such obligations; and (iii) Pledgee and Lenders are entitled to all of the rights, remedies and benefits provided for in the Existing Security Agreement.
(d) Except as otherwise stated in Section 19(b) hereof and in this Section 19(d), as of the date hereof, the terms, conditions, agreements, covenants, representations and warranties set forth in the Existing Security Agreement are hereby amended and restated in their entirety, and as so amended and restated, are replaced and superseded by the terms, conditions agreements, covenants, representations and warranties set forth in this Agreement, except that nothing herein shall impair or adversely affect the continuation of the liability of Pledgors for the obligations or the security interests and liens heretofore granted, pledged or assigned to Pledgee for itself and the benefit of Lenders. The amendment and restatement contained herein shall not, in any manner, be construed to constitute payment of, or impair, limit, cancel or extinguish, or constitute a novation in respect of, the indebtedness and other obligations and liabilities of Pledgors evidenced by or arising under the Existing Security Agreement and any of the other Existing Financing Agreements to which Pledgors are a party, and the liens and security interests securing such indebtedness and other obligations and liabilities shall not in any manner be impaired, limited, terminated, waived or released.
[REMAINDER OF PAGE INTENTIONALLY LEFT BLANK]
IN WITNESS WHEREOF, the parties have entered into this Agreement as of the date first written above.
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PLEDGORS |
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LERNCO, INC., |
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a Delaware corporation |
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By: |
/s/ Ronald W. Ristau |
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Name: |
Ronald W. Ristau |
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Title: |
President |
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JASMINE COMPANY, INC., |
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a Massachusetts corporation |
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By: |
/s/ Ronald W. Ristau |
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Name: |
Ronald W. Ristau |
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Title: |
President |
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PLEDGEE |
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WACHOVIA BANK, NATIONAL ASSOCIATION, as
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By: |
/s/ Laurence Forte |
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Name: |
Laurence Forte |
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Title: |
Managing Director |
Trademarks
Country: |
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Andorra |
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ID |
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Mark |
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Classes |
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Reg. Owner |
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App. # |
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App. Dt |
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Reg. # |
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Reg. Dt |
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Allow. Dt |
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ITU |
6006 |
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LERNER NEW YORK |
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3, 14, 18, 25, 35, 39 |
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Lernco, Inc. |
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7,236 |
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7/4/1997 |
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6,876 |
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7/4/1997 |
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No |
8292 |
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NY & CO AND DESIGN |
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3, 25, 35, 39 |
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Lernco, Inc. |
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14,355 |
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3/24/2000 |
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14,355 |
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4/6/2000 |
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No |
Country: |
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Aruba |
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ID |
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Mark |
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Classes |
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Reg. Owner |
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App. # |
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App. Dt |
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Reg. # |
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Reg. Dt |
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Allow. Dt |
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ITU |
4637 |
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LERNER NEW YORK |
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25,42 |
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Lernco, Inc. |
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94,062,322 |
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6/23/1994 |
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16,816 |
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7/11/1994 |
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No |
7948 |
|
NY & CO AND DESIGN |
|
3, 25, 42 |
|
Lernco, Inc. |
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IM-2000/0316.18 |
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3/16/2000 |
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20,455 |
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4/11/2000 |
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No |
Country: |
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Australia |
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ID |
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Mark |
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Classes |
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Reg. Owner |
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App. # |
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App. Dt |
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Reg. # |
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Reg. Dt |
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Allow. Dt |
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ITU |
2295 |
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LERNER |
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25 |
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Lernco, Inc. |
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443,663 |
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4/11/1986 |
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B443,663 |
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7/4/1990 |
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No |
2296 |
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LERNER |
|
42 |
|
Lernco, Inc. |
|
443,665 |
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4/11/1986 |
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B443,665 |
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7/4/1990 |
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No |
14783 |
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NEW YORK & COMPANY |
|
3, 9, 14, 18, 20, 25, 26, 35, 36 |
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Lernco, Inc. |
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926,844 |
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1/3/2007 |
|
926,844 |
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7/19/2007 |
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No |
7931 |
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NY & CO AND DESIGN |
|
3, 25, 35 |
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Lernco, Inc. |
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826,6727 |
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3/7/2000 |
|
A826,672 |
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4/5/2001 |
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No |
Country: |
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Austria |
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ID |
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Mark |
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Classes |
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Reg. Owner |
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App. # |
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App. Dt |
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Reg. # |
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Reg. Dt |
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Allow. Dt |
|
ITU |
4444 |
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LERNER NEW YORK |
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25, 39, 42 |
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Lernco, Inc. |
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AM 3638/94 |
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7/21/1994 |
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155,919 |
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12/22/1994 |
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No |
14784 |
|
NEW YORK & COMPANY |
|
3, 9, 14, 18, 20, 25, 26, 35, 36 |
|
Lernco, Inc. |
|
926,844 |
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1/3/2007 |
|
926,844 |
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7/19/2007 |
|
|
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No |
8288 |
|
NY & CO AND DESIGN |
|
3, 25, 39, 42 |
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Lernco, Inc. |
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AM 1734/2000 |
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3/13/2000 |
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189,173 |
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6/15/2000 |
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No |
Country |
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Bahamas |
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ID |
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Mark |
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Classes |
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Reg. Owner |
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App. # |
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App. Dt |
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Reg. # |
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Reg. Dt |
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Allow. Dt |
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ITU |
5036 |
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LERNER |
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38 |
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Lernco, Inc. |
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16,594 |
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7/15/1994 |
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16,594 |
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12/7/1995 |
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No |
4549 |
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LERNER NEW YORK |
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38 |
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Lernco, Inc. |
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16,594 |
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7/15/1994 |
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16,594 |
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12/7/1995 |
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No |
8616 |
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NY & CO AND DESIGN |
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39 |
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Lernco, Inc. |
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22,701 |
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5/11/2000 |
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22,701 |
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2/4/2003 |
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No |
8617 |
|
NY & CO AND DESIGN |
|
38 |
|
Lernco, Inc. |
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22,702 |
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5/11/2000 |
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22,702 |
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2/17/2003 |
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No |
8618 |
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NY & CO AND DESIGN |
|
48 |
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Lernco, Inc. |
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22,703 |
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No |
Country |
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Bahrain |
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ID |
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Mark |
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Classes |
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Reg. Owner |
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App. # |
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App. Dt |
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Reg. # |
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Reg. Dt |
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Allow. Dt |
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ITU |
8370 |
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NY & CO AND DESIGN |
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3 |
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Lernco, Inc. |
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1112/2000 |
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5/15/2000 |
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27,598 |
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4/7/2003 |
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No |
8371 |
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NY & CO AND DESIGN |
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35 |
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Lernco, Inc. |
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1110/2000 |
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5/15/2000 |
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SM3627 |
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11/19/2001 |
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No |
8328 |
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NY & CO. AND RECTANGULAR DESIGN |
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25 |
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Lernco, Inc. |
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1111/2000 |
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5/15/2000 |
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27,599 |
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4/7/2003 |
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No |
Country |
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Bangladesh |
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ID |
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Mark |
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Classes |
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Reg. Owner |
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App. # |
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App. Dt |
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Reg. # |
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Reg. Dt |
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Allow. Dt |
|
ITU |
3985 |
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LERNER NEW YORK |
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25 |
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Lernco, Inc. |
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40,456 |
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4/27/1994 |
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40,456 |
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9/23/2003 |
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No |
8121 |
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NY & CO AND DESIGN |
|
25 |
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Lernco, Inc. |
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64,231 |
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4/2/2000 |
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No |
8122 |
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NY & CO AND DESIGN |
|
16 |
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Lernco, Inc. |
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64,232 |
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4/2/2000 |
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No |
8123 |
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NY & CO AND DESIGN |
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3 |
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Lernco, Inc. |
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64,227 |
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4/2/2000 |
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No |
Country |
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Barbados |
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ID |
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Mark |
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Classes |
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Reg. Owner |
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App. # |
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App. Dt |
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Reg. # |
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Reg. Dt |
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Allow. Dt |
|
ITU |
8435 |
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NY & CO AND DESIGN |
|
3 |
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Lernco, Inc. |
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3/24/2000 |
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81/15098 |
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11/27/2000 |
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No |
8436 |
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NY & CO AND DESIGN |
|
25 |
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Lernco, Inc. |
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3/24/2000 |
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81/15099 |
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11/27/2000 |
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No |
8437 |
|
NY & CO AND DESIGN |
|
42 |
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Lernco, Inc. |
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3/24/2000 |
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81/15100 |
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11/27/2000 |
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No |
Country |
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Benelux |
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ID |
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Mark |
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Classes |
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Reg. Owner |
|
App. # |
|
App. Dt |
|
Reg. # |
|
Reg. Dt |
|
Allow. Dt |
|
ITU |
2301 |
|
LERNER |
|
40, 41, 42 |
|
Lernco, Inc. |
|
|
|
1/7/1987 |
|
424,555 |
|
1/7/1987 |
|
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No |
2300 |
|
LERNER |
|
25 |
|
Lernco, Inc. |
|
684,304 |
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6/3/1986 |
|
418,590 |
|
6/3/1986 |
|
|
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No |
14785 |
|
NEW YORK & COMPANY |
|
3, 9, 14, 18, 20, 25, 26, 35, 36 |
|
Lernco, Inc. |
|
926,844 |
|
1/3/2007 |
|
926,844 |
|
7/19/2007 |
|
|
|
No |
8103 |
|
NY & CO AND DESIGN |
|
3, 25, 35 |
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Lernco, Inc. |
|
961,522 |
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4/4/2000 |
|
682,310 |
|
8/1/2001 |
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No |
Country: |
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Bermuda |
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ID |
|
Mark |
|
Classes |
|
Reg. Owner |
|
App. # |
|
App. Dt |
|
Reg. # |
|
Reg. Dt |
|
Allow. Dt |
|
ITU |
7943 |
|
NY & CO AND DESIGN |
|
3 |
|
Lernco, Inc. |
|
31,617 |
|
3/23/2000 |
|
31,617 |
|
1/30/2002 |
|
|
|
No |
7945 |
|
NY & CO AND DESIGN |
|
35 |
|
Lernco, Inc. |
|
31,619 |
|
3/23/2000 |
|
31,619 |
|
1/30/2002 |
|
|
|
No |
7944 |
|
NY & CO AND DESIGN |
|
25 |
|
Lernco, Inc. |
|
31,618 |
|
3/23/2000 |
|
31,618 |
|
1/30/2002 |
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No |
Country |
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Bolivia |
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ID |
|
Mark |
|
Classes |
|
Reg. Owner |
|
App. # |
|
App. Dt |
|
Reg. # |
|
Reg. Dt |
|
Allow. Dt |
|
ITU |
2297 |
|
LERNER |
|
25 |
|
Lernco, Inc. |
|
|
|
4/9/1986 |
|
A-51,353 |
|
6/23/1987 |
|
|
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No |
2298 |
|
LERNER |
|
42 |
|
Lernco, Inc. |
|
|
|
4/9/1986 |
|
A-51,354 |
|
6/23/1987 |
|
|
|
No |
8396 |
|
NY & CO AND DESIGN |
|
25 |
|
Lernco, Inc. |
|
|
|
4/18/2000 |
|
83,886-C |
|
3/27/2001 |
|
|
|
No |
8394 |
|
NY & CO AND DESIGN |
|
42 |
|
Lernco, Inc. |
|
|
|
4/18/2000 |
|
83,896-C |
|
3/27/2001 |
|
|
|
No |
8395 |
|
NY & CO AND DESIGN |
|
3 |
|
Lernco, Inc. |
|
|
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4/18/2000 |
|
83,887-C |
|
3/27/2001 |
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|
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No |
Country |
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Cambodia (Kampuchea) |
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|
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ID |
|
Mark |
|
Classes |
|
Reg. Owner |
|
App. # |
|
App. Dt |
|
Reg. # |
|
Reg. Dt |
|
Allow. Dt |
|
ITU |
12131 |
|
LERNER |
|
3 |
|
Lernco, Inc. |
|
19932/04 |
|
1/13/2004 |
|
19380/04 |
|
3/2/2004 |
|
|
|
No |
12132 |
|
LERNER |
|
25 |
|
Lernco, Inc. |
|
19933/04 |
|
1/13/2004 |
|
19381/04 |
|
3/2/2004 |
|
|
|
No |
12133 |
|
LERNER |
|
35 |
|
Lernco, Inc. |
|
19934/04 |
|
1/13/2004 |
|
19382/04 |
|
3/2/2004 |
|
|
|
No |
12135 |
|
NEW YORK & COMPANY |
|
3 |
|
Lernco, Inc. |
|
19938/04 |
|
1/19/2004 |
|
20237/04 |
|
9/9/2004 |
|
|
|
No |
12136 |
|
NEW YORK & COMPANY |
|
25 |
|
Lernco, Inc. |
|
19939/04 |
|
1/19/2004 |
|
20238/04 |
|
9/9/2004 |
|
|
|
No |
12137 |
|
NEW YORK & COMPANY |
|
35 |
|
Lernco, Inc. |
|
19940/04 |
|
1/19/2004 |
|
20239/04 |
|
9/9/2004 |
|
|
|
No |
Country: |
|
Canada |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
ID |
|
Mark |
|
Classes |
|
Reg. Owner |
|
App. # |
|
App. Dt |
|
Reg. # |
|
Reg. Dt |
|
Allow. Dt |
|
ITU |
2302 |
|
LERNER |
|
25 |
|
Lernco, Inc. |
|
423,797 |
|
4/21/1978 |
|
262,235 |
|
9/4/1981 |
|
|
|
No |
2303 |
|
LERNER |
|
42 |
|
Lernco, Inc. |
|
423,798 |
|
4/21/1978 |
|
262,236 |
|
9/4/1981 |
|
|
|
No |
12334 |
|
NEW YORK & COMPANY |
|
3, 9, 14, 18, 20, 25, 26, 35, 36 |
|
Lernco, Inc. |
|
1,217,425 |
|
5/19/2004 |
|
|
|
|
|
|
|
No |
7908 |
|
NY & CO AND DESIGN |
|
3, 25, 35 |
|
Lernco, Inc. |
|
1,050,520 |
|
3/13/2000 |
|
|
|
|
|
|
|
No |
Country: |
|
China (Peoples Republic of) |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
ID |
|
Mark |
|
Classes |
|
Reg. Owner |
|
App. # |
|
App. Dt |
|
Reg. # |
|
Reg. Dt |
|
Allow. Dt |
|
ITU |
2307 |
|
LERNER |
|
25 |
|
Lernco, Inc. |
|
|
|
10/7/1986 |
|
288,874 |
|
5/30/1987 |
|
|
|
No |
3673 |
|
LERNER |
|
42 |
|
Lernco, Inc. |
|
93/068,880 |
|
8/14/1993 |
|
776,376 |
|
1/21/1995 |
|
|
|
No |
14787 |
|
NEW YORK & COMPANY |
|
3, 9, 14, 18, 20, 25, 26, 35, 36 |
|
Lernco, Inc. |
|
926,844 |
|
1/3/2007 |
|
926,844 |
|
7/19/2007 |
|
|
|
No |
8094 |
|
NY & CO AND DESIGN |
|
35 |
|
Lernco, Inc. |
|
2000047617 |
|
4/13/2000 |
|
1,595,953 |
|
6/28/2001 |
|
|
|
No |
8096 |
|
NY & CO AND DESIGN |
|
3 |
|
Lernco, Inc. |
|
2000047615 |
|
4/13/2000 |
|
1,596,375 |
|
7/7/2001 |
|
|
|
No |
8095 |
|
NY & CO AND DESIGN |
|
25 |
|
Lernco, Inc. |
|
2000047616 |
|
4/13/2000 |
|
1,589,200 |
|
6/21/2001 |
|
|
|
No |
Country: |
|
Colombia |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
ID |
|
Mark |
|
Classes |
|
Reg. Owner |
|
App. # |
|
App. Dt |
|
Reg. # |
|
Reg. Dt |
|
Allow. Dt |
|
ITU |
2308 |
|
LERNER |
|
25 |
|
Lernco, Inc. |
|
255,743 |
|
4/29/1986 |
|
127,086 |
|
12/14/1989 |
|
|
|
No |
4365 |
|
LERNER NEW YORK |
|
42 |
|
Lernco, Inc. |
|
024,439 |
|
6/7/1994 |
|
173,073 |
|
1/25/1995 |
|
|
|
No |
8132 |
|
NY & CO AND DESIGN |
|
42 |
|
Lernco, Inc. |
|
26583 |
|
4/11/2000 |
|
233,703 |
|
3/29/2001 |
|
|
|
No |
8072 |
|
NY & CO AND DESIGN |
|
3 |
|
Lernco, Inc. |
|
26,584 |
|
4/11/2000 |
|
233,704 |
|
3/29/2001 |
|
|
|
No |
8100 |
|
NY & CO AND DESIGN |
|
25 |
|
Lernco, Inc. |
|
26582 |
|
4/11/2000 |
|
233,702 |
|
3/29/2001 |
|
|
|
No |
Country: |
|
Costa Rica |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
ID |
|
Mark |
|
Classes |
|
Reg. Owner |
|
App. # |
|
App. Dt |
|
Reg. # |
|
Reg. Dt |
|
Allow. Dt |
|
ITU |
692 |
|
LERNER |
|
25 |
|
Lernco, Inc. |
|
89,911 |
|
8/22/1994 |
|
90,099 |
|
2/6/1995 |
|
|
|
No |
681 |
|
LERNER NEW YORK AND DESIGN |
|
42 |
|
Lernco, Inc. |
|
89,970 |
|
8/22/1994 |
|
90,104 |
|
2/6/1995 |
|
|
|
No |
13458 |
|
NY & CO AND DESIGN |
|
35 |
|
Lernco, Inc. |
|
2002-346 |
|
1/17/2002 |
|
|
|
|
|
|
|
No |
Country: |
|
Czech Republic |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
ID |
|
Mark |
|
Classes |
|
Reg. Owner |
|
App. # |
|
App. Dt |
|
Reg. # |
|
Reg. Dt |
|
Allow. Dt |
|
ITU |
4695 |
|
LERNER NEW YORK |
|
25,39 |
|
Lernco, Inc. |
|
94/91009 |
|
7/1/1994 |
|
192,038 |
|
7/24/1996 |
|
|
|
No |
14788 |
|
NEW YORK & COMPANY |
|
3, 9, 14, 18, 20, 25, 26, 35, 36 |
|
Lernco, Inc. |
|
926,844 |
|
1/3/2007 |
|
926,844 |
|
7/19/2007 |
|
|
|
No |
8254 |
|
NY & CO AND DESIGN |
|
3, 25, 39 |
|
Lernco, Inc. |
|
153,799 |
|
3/31/2000 |
|
234,336 |
|
6/25/2001 |
|
|
|
No |
Country: |
|
Denmark |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
ID |
|
Mark |
|
Classes |
|
Reg. Owner |
|
App. # |
|
App. Dt |
|
Reg. # |
|
Reg. Dt |
|
Allow. Dt |
|
ITU |
2310 |
|
LERNER |
|
42 |
|
Lernco, Inc. |
|
2709-1986 |
|
4/24/1986 |
|
1685-1988 |
|
4/25/1988 |
|
|
|
No |
2311 |
|
LERNER |
|
25 |
|
Lernco, Inc. |
|
2887-1987 |
|
5/6/1987 |
|
2052-1989 |
|
5/5/1989 |
|
|
|
No |
14789 |
|
NEW YORK & COMPANY |
|
3, 9, 14, 18, 20, 25,26, 35, 36 |
|
Lernco, Inc. |
|
926,844 |
|
1/3/2007 |
|
926,844 |
|
7/19/2007 |
|
|
|
No |
7982 |
|
NY & CO AND DESIGN |
|
3, 25, 35 |
|
Lernco, Inc. |
|
VA2000 01315 |
|
3/23/2000 |
|
VR2000 02381 |
|
5/31/2000 |
|
|
|
No |
Country: |
|
Dominican Republic |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
ID |
|
Mark |
|
Classes |
|
Reg. Owner |
|
App. # |
|
App. Dt |
|
Reg. # |
|
Reg. Dt |
|
Allow. Dt |
|
ITU |
4598 |
|
LERNER NEW YORK |
|
44 |
|
Lernco, Inc. |
|
26,326 |
|
7/7/1994 |
|
74,353 |
|
10/15/1994 |
|
|
|
No |
14883 |
|
NEW YORK & COMPANY |
|
3, 14, 18, 25, 35 |
|
Lernco, Inc. |
|
2007-22845 |
|
4/9/2007 |
|
|
|
|
|
|
|
No |
8130 |
|
NY & CO AND DESIGN |
|
3 |
|
Lernco, Inc. |
|
19,085 |
|
4/12/2000 |
|
114,278 |
|
8/15/2000 |
|
|
|
No |
8131 |
|
NY & CO AND DESIGN |
|
16 |
|
Lernco, Inc. |
|
19,086 |
|
4/12/2000 |
|
114,334 |
|
8/30/2000 |
|
|
|
No |
8129 |
|
NY & CO AND DESIGN |
|
25 |
|
Lernco, Inc. |
|
19,087 |
|
4/12/2000 |
|
114,250 |
|
8/15/2000 |
|
|
|
No |
Country: |
|
Egypt |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
ID |
|
Mark |
|
Classes |
|
Reg. Owner |
|
App. # |
|
App. Dt |
|
Reg. # |
|
Reg. Dt |
|
Allow. Dt |
|
ITU |
4533 |
|
LERNER NEW YORK |
|
25 |
|
Lernco, Inc. |
|
91,363 |
|
6/23/1994 |
|
91,363 |
|
2/27/2000 |
|
|
|
No |
10253 |
|
LERNER NEW YORK |
|
35 |
|
Lernco, Inc. |
|
144,516 |
|
8/13/2001 |
|
144,516 |
|
10/10/2006 |
|
|
|
No |
14926 |
|
NEW YORK & COMPANY |
|
18 |
|
Lernco, Inc. |
|
203,434 |
|
7/1/2007 |
|
|
|
|
|
|
|
No |
14819 |
|
NEW YORK & COMPANY |
|
35 |
|
Lernco, Inc. |
|
195,562 |
|
1/10/2007 |
|
|
|
|
|
|
|
No |
14818 |
|
NEW YORK & COMPANY |
|
25 |
|
Lernco, Inc. |
|
195,561 |
|
1/10/2007 |
|
|
|
|
|
|
|
No |
14925 |
|
NEW YORK & COMPANY |
|
3 |
|
Lernco, Inc. |
|
203,433 |
|
7/1/2007 |
|
|
|
|
|
|
|
No |
8445 |
|
NY & CO AND DESIGN |
|
35 |
|
Lernco, Inc. |
|
132,741 |
|
5/10/2000 |
|
|
|
|
|
|
|
No |
8446 |
|
NY & CO AND DESIGN |
|
3 |
|
Lernco, Inc. |
|
132,739 |
|
5/10/2000 |
|
132,739 |
|
1/15/2005 |
|
|
|
No |
8447 |
|
NY & CO AND DESIGN |
|
25 |
|
Lernco, Inc. |
|
132,740 |
|
5/10/2000 |
|
132,740 |
|
12/12/2004 |
|
|
|
No |
Country: |
|
European Union |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
ID |
|
Mark |
|
Classes |
|
Reg. Owner |
|
App. # |
|
App. Dt |
|
Reg. # |
|
Reg. Dt |
|
Allow. Dt |
|
ITU |
7174 |
|
LERNER NEW YORK |
|
3, 25, 42 |
|
Lernco, Inc. |
|
325,431 |
|
8/13/1996 |
|
325,431 |
|
12/4/1998 |
|
|
|
No |
14790 |
|
NEW YORK & COMPANY |
|
3, 9, 14, 18, 20, 25, 26, 35, 36 |
|
Lernco, Inc. |
|
926,844 |
|
1/3/2007 |
|
926,844 |
|
7/19/2007 |
|
|
|
No |
Country: |
|
Finland |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
ID |
|
Mark |
|
Classes |
|
Reg. Owner |
|
App. # |
|
App. Dt |
|
Reg. # |
|
Reg. Dt |
|
Allow. Dt |
|
ITU |
4451 |
|
LERNER NEW YORK |
|
25, 35, 42 |
|
Lernco, Inc. |
|
3154/94 |
|
6/21/1994 |
|
140,801 |
|
11/20/1995 |
|
|
|
No |
14791 |
|
NEW YORK & COMPANY |
|
3, 9, 14, 18, 20, 25, 26, 35, 36 |
|
Lernco, Inc. |
|
926,844 |
|
1/3/2007 |
|
926,844 |
|
7/19/2007 |
|
|
|
No |
7932 |
|
NY & CO AND DESIGN |
|
3, 25, 35 |
|
Lernco, Inc. |
|
T200000859 |
|
3/14/2000 |
|
219,910 |
|
12/29/2000 |
|
|
|
No |
Country: |
|
France |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
ID |
|
Mark |
|
Classes |
|
Reg. Owner |
|
App. # |
|
App. Dt |
|
Reg. # |
|
Reg. Dt |
|
Allow. Dt |
|
ITU |
2313 |
|
LERNER |
|
25 |
|
Lernco, Inc. |
|
|
|
5/22/1986 |
|
1,355,689 |
|
5/22/1986 |
|
|
|
No |
2314 |
|
LERNER |
|
35 |
|
Lernco, Inc. |
|
|
|
7/21/1986 |
|
1,386,464 |
|
7/21/1986 |
|
|
|
No |
14792 |
|
NEW YORK & COMPANY |
|
3, 9, 14, 18, 20, 25, 26, 35, 36 |
|
Lernco, Inc. |
|
926,844 |
|
1/3/2007 |
|
926,844 |
|
7/19/2007 |
|
|
|
No |
8148 |
|
NY & CO AND DESIGN |
|
3, 16, 25 |
|
Lernco, Inc. |
|
00 3015839 |
|
3/21/2000 |
|
00 3015839 |
|
3/21/2000 |
|
|
|
No |
Country: |
|
Germany |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
ID |
|
Mark |
|
Classes |
|
Reg. Owner |
|
App. # |
|
App. Dt |
|
Reg. # |
|
Reg. Dt |
|
Allow. Dt |
|
ITU |
2309 |
|
LERNER |
|
25 |
|
Lernco, Inc. |
|
L 29287/25 Wz |
|
7/28/1986 |
|
1,103,100 |
|
4/3/1987 |
|
|
|
No |
5244 |
|
LERNER NEW YORK |
|
35,42 |
|
Lernco, Inc. |
|
395 46 914.7 |
|
11/17/1995 |
|
395 46 914 |
|
7/3/1996 |
|
|
|
No |
14793 |
|
NEW YORK & COMPANY |
|
3, 9, 14, 18, 20, 25, 26, 35, 36 |
|
Lernco, Inc. |
|
926,844 |
|
1/3/2007 |
|
926, 844 |
|
7/19/2007 |
|
|
|
No |
8141 |
|
NY & CO AND DESIGN |
|
3, 25, 35 |
|
Lernco, Inc. |
|
300 19077.8/03 |
|
3/13/2000 |
|
300 19 077 |
|
10/16/2000 |
|
|
|
No |
Country: |
|
Greece |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
ID |
|
Mark |
|
Classes |
|
Reg. Owner |
|
App. # |
|
App. Dt |
|
Reg. # |
|
Reg. Dt |
|
Allow. Dt |
|
ITU |
2315 |
|
LERNER |
|
25 |
|
Lernco, Inc. |
|
|
|
7/2/1986 |
|
83,091 |
|
4/18/1989 |
|
|
|
No |
14794 |
|
NEW YORK & COMPANY |
|
3, 9, 14, 18, 20, 25, 26, 35, 36 |
|
Lernco, Inc. |
|
926,844 |
|
1/3/2007 |
|
926,844 |
|
7/19/2007 |
|
|
|
No |
Country: |
|
Guatemala |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
ID |
|
Mark |
|
Classes |
|
Reg. Owner |
|
App. # |
|
App. Dt |
|
Reg. # |
|
Reg. Dt |
|
Allow. Dt |
|
ITU |
11043 |
|
LERNER |
|
42 |
|
Lernco, Inc. |
|
|
|
|
|
115,671 |
|
2/21/2002 |
|
|
|
No |
3907 |
|
LERNER NEW YORK |
|
25 |
|
Lernco, Inc. |
|
|
|
4/21/1994 |
|
|
|
|
|
|
|
No |
3908 |
|
LERNER NEW YORK |
|
42 |
|
Lernco, Inc. |
|
|
|
4/21/1994 |
|
78,737 |
|
4/30/1996 |
|
|
|
No |
14854 |
|
NEW YORK & COMPANY |
|
25 |
|
Lernco, Inc. |
|
2245-07 |
|
3/15/2007 |
|
|
|
|
|
|
|
No |
14855 |
|
NEW YORK & COMPANY |
|
35 |
|
Lernco, Inc. |
|
2244-07 |
|
3/15/2007 |
|
|
|
|
|
|
|
No |
9437 |
|
NY & CO AND DESIGN |
|
3 |
|
Lernco, Inc. |
|
|
|
|
|
108,906 |
|
1/22/2001 |
|
|
|
No |
9438 |
|
NY & CO AND DESIGN |
|
25 |
|
Lernco, Inc. |
|
|
|
|
|
108,908 |
|
1/22/2001 |
|
|
|
No |
9436 |
|
NY & CO AND DESIGN |
|
42 |
|
Lernco, Inc. |
|
|
|
|
|
108,877 |
|
1/19/2001 |
|
|
|
No |
Country: |
|
Honduras |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
ID |
|
Mark |
|
Classes |
|
Reg. Owner |
|
App. # |
|
App. Dt |
|
Reg. # |
|
Reg. Dt |
|
Allow. Dt |
|
ITU |
3949 |
|
LERNER NEW YORK |
|
42 |
|
Lernco, Inc. |
|
2771/94 |
|
4/13/1994 |
|
1,935 |
|
1/12/1995 |
|
|
|
No |
3948 |
|
LERNER NEW YORK |
|
25 |
|
Lernco, Inc. |
|
2770/94 |
|
4/13/1994 |
|
61,511 |
|
5/12/1995 |
|
|
|
No |
8126 |
|
NY & CO AND DESIGN |
|
3 |
|
Lernco, Inc. |
|
5726/2000 |
|
4/10/2000 |
|
80,240 |
|
12/27/2000 |
|
|
|
No |
8127 |
|
NY & CO AND DESIGN |
|
25 |
|
Lernco, Inc. |
|
5725/2000 |
|
4/10/2000 |
|
80,064 |
|
12/13/2000 |
|
|
|
No |
8128 |
|
NY & CO AND DESIGN |
|
42 |
|
Lernco, Inc. |
|
5724/2000 |
|
4/10/2000 |
|
7,341 |
|
12/27/2000 |
|
|
|
No |
Country: |
|
Hong Kong |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
ID |
|
Mark |
|
Classes |
|
Reg. Owner |
|
App. # |
|
App. Dt |
|
Reg. # |
|
Reg. Dt |
|
Allow. Dt |
|
ITU |
3623 |
|
LEARNER |
|
25 |
|
Lernco, Inc. |
|
|
|
9/30/1987 |
|
B781 of 1989 |
|
3/17/1989 |
|
|
|
No |
966 |
|
LEARNER |
|
42 |
|
Lernco, Inc. |
|
12445/1995 |
|
10/4/1995 |
|
B10848/1997 |
|
11/5/1997 |
|
|
|
No |
14820 |
|
NEW YORK & COMPANY |
|
3, 14, 18, 25, 35 |
|
Lernco, Inc. |
|
300790885 |
|
1/4/2007 |
|
|
|
|
|
|
|
No |
7979 |
|
NY & CO AND DESIGN |
|
3, 25, 35 |
|
Lernco, Inc. |
|
5222/2000 |
|
4/4/2003 |
|
300126116AA |
|
12/29/2003 |
|
|
|
No |
Country: |
|
Hungary |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
ID |
|
Mark |
|
Classes |
|
Reg. Owner |
|
App. # |
|
App. Dt |
|
Reg. # |
|
Reg. Dt |
|
Allow. Dt |
|
ITU |
2316 |
|
LERNER |
|
25,42 |
|
Lernco, Inc. |
|
|
|
5/26/1986 |
|
126,001 |
|
2/6/1987 |
|
|
|
No |
14795 |
|
NEW YORK & COMPANY |
|
3, 9, 14, 18, 20, 25, 26, 35, 36 |
|
Lernco, Inc. |
|
926,844 |
|
1/3/2007 |
|
926,844 |
|
7/19/2007 |
|
|
|
No |
8107 |
|
NY & CO AND DESIGN |
|
3, 25, 42 |
|
Lernco, Inc. |
|
M0001545 |
|
3/17/2000 |
|
172,142 |
|
9/23/2002 |
|
|
|
No |
Country: |
|
India |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
ID |
|
Mark |
|
Classes |
|
Reg. Owner |
|
App. # |
|
App. Dt |
|
Reg. # |
|
Reg. Dt |
|
Allow. Dt |
|
ITU |
3903 |
|
LERNER NEW YORK |
|
25 |
|
Lernco, Inc. |
|
625,620 |
|
4/19/1994 |
|
625,620 |
|
7/15/2003 |
|
|
|
No |
11759 |
|
LERNER NEW YORK |
|
35 |
|
Lernco, Inc. |
|
1,236,592 |
|
9/15/2003 |
|
1,236,592 |
|
12/26/2005 |
|
|
|
No |
14822 |
|
NEW YORK & COMPANY |
|
3, 14, 18, 25, 35 |
|
Lernco, Inc. |
|
1,523,588 |
|
1/15/2007 |
|
|
|
|
|
|
|
No |
13482 |
|
NY & CO AND DESIGN |
|
35 |
|
Lernco, Inc. |
|
1,250,055 |
|
11/17/2003 |
|
1,250,055 |
|
12/29/2005 |
|
|
|
No |
8498 |
|
NY & CO AND DESIGN |
|
25 |
|
Lernco, Inc. |
|
912,079 |
|
3/24/2000 |
|
|
|
|
|
|
|
No |
8499 |
|
NY & CO AND DESIGN |
|
3 |
|
Lernco, Inc. |
|
912,077 |
|
3/24/2000 |
|
912,077 |
|
10/21/2005 |
|
|
|
No |
8500 |
|
NY & CO AND DESIGN |
|
16 |
|
Lernco, Inc. |
|
912,078 |
|
3/24/2000 |
|
912,078 |
|
2/2/2006 |
|
|
|
No |
Country: |
|
Indonesia |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
ID |
|
Mark |
|
Classes |
|
Reg. Owner |
|
App. # |
|
App. Dt |
|
Reg. # |
|
Reg. Dt |
|
Allow. Dt |
|
ITU |
7599 |
|
LERNER |
|
25 |
|
Lernco, Inc. |
|
D96-9111 |
|
5/7/1996 |
|
380,327 |
|
8/15/1997 |
|
|
|
No |
12186 |
|
LERNER NEW YORK |
|
35 |
|
Lernco, Inc. |
|
J00-2004-05091-05134 |
|
3/1/2004 |
|
IDM000050333 |
|
9/14/2005 |
|
|
|
No |
14861 |
|
NEW YORK & COMPANY |
|
35 |
|
Lernco, Inc. |
|
J00-2007-001249 |
|
1/15/2007 |
|
|
|
|
|
|
|
No |
14862 |
|
NEW YORK & COMPANY |
|
25 |
|
Lernco, Inc. |
|
D00-2007-001248 |
|
1/15/2007 |
|
|
|
|
|
|
|
No |
8147 |
|
NY & CO and Design |
|
35 |
|
Lernco, Inc. |
|
J00-5127 |
|
5/29/2000 |
|
477,684 |
|
5/25/2001 |
|
|
|
No |
8125 |
|
NY & CO AND DESIGN |
|
25 |
|
Lernco, Inc. |
|
D00-5126 |
|
5/29/2000 |
|
477,683 |
|
5/25/2001 |
|
|
|
No |
8113 |
|
NY & CO AND DESIGN |
|
3 |
|
Lernco, Inc. |
|
D00-5125 |
|
5/29/2000 |
|
481,085 |
|
6/21/2001 |
|
|
|
No |
Country: |
|
Jamaica |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
ID |
|
Mark |
|
Classes |
|
Reg. Owner |
|
App. # |
|
App. Dt |
|
Reg. # |
|
Reg.Dt |
|
Allow. Dt |
|
ITU |
10497 |
|
NY & CO AND DESIGN |
|
35 |
|
Lernco, Inc. |
|
41,390 |
|
10/12/2001 |
|
41,390 |
|
5/16/2003 |
|
|
|
No |
8143 |
|
NY & CO and Design |
|
16 |
|
Lernco, Inc. |
|
16/3001 |
|
3/16/2000 |
|
38,708 |
|
5/15/2002 |
|
|
|
No |
8144 |
|
NY & CO and Design |
|
25 |
|
Lernco, Inc. |
|
25/2269 |
|
3/16/2000 |
|
38,769 |
|
6/11/2002 |
|
|
|
No |
8142 |
|
NY & CO and Design |
|
3 |
|
Lernco, Inc. |
|
3/4078 |
|
3/16/2000 |
|
38,732 |
|
5/14/2002 |
|
|
|
No |
Country: |
|
Jordan |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
ID |
|
Mark |
|
Classes |
|
Reg. Owner |
|
App. # |
|
App. Dt |
|
Reg. # |
|
Reg. Dt |
|
Allow. Dt |
|
ITU |
4518 |
|
LERNER NEW YORK |
|
25 |
|
Lernco, Inc. |
|
35,872 |
|
8/15/1994 |
|
35,872 |
|
6/29/1995 |
|
|
|
No |
8434 |
|
LERNER NEW YORK |
|
42 |
|
Lernco, Inc. |
|
61,905 |
|
5/11/2000 |
|
61,905 |
|
10/27/2002 |
|
|
|
No |
14945 |
|
NEW YORK & COMPANY |
|
18 |
|
Lernco, Inc. |
|
|
|
7/19/2007 |
|
|
|
|
|
|
|
No |
14942 |
|
NEW YORK & COMPANY |
|
25 |
|
Lernco, Inc. |
|
|
|
7/19/2007 |
|
|
|
|
|
|
|
No |
14943 |
|
NEW YORK & COMPANY |
|
42 |
|
Lernco, Inc. |
|
|
|
7/19/2007 |
|
|
|
|
|
|
|
No |
14944 |
|
NEW YORK & COMPANY |
|
3 |
|
Lernco, Inc. |
|
|
|
7/19/2007 |
|
|
|
|
|
|
|
No |
8488 |
|
NY & CO AND DESIGN |
|
42 |
|
Lernco, Inc. |
|
61,448 |
|
5/11/2000 |
|
61,448 |
|
9/15/2002 |
|
|
|
No |
8489 |
|
NY & CO AND DESIGN |
|
3 |
|
Lernco, Inc. |
|
57,894 |
|
5/11/2000 |
|
57,894 |
|
12/10/2001 |
|
|
|
No |
8490 |
|
NY & CO AND DESIGN |
|
25 |
|
Lernco, Inc. |
|
57,893 |
|
5/11/2000 |
|
57,893 |
|
12/10/2001 |
|
|
|
No |
Country: |
|
Kenya |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
ID |
|
Mark |
|
Classes |
|
Reg. Owner |
|
App. # |
|
App. Dt |
|
Reg. # |
|
Reg. Dt |
|
Allow. Dt |
|
ITU |
14799 |
|
NEW YORK & COMPANY |
|
3, 9, 14, 18, 20, 25, 26, 35, 36 |
|
Lernco, Inc. |
|
926,844 |
|
1/3/2007 |
|
926,844 |
|
7/19/2007 |
|
|
|
No |
Country: |
|
Kuwait |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
ID |
|
Mark |
|
Classes |
|
Reg. Owner |
|
App. # |
|
App. Dt |
|
Reg. # |
|
Reg. Dt |
|
Allow. Dt |
|
ITU |
4656 |
|
LERNER |
|
25 |
|
Lernco, Inc. |
|
29,447 |
|
9/26/1994 |
|
27,144 |
|
12/16/1997 |
|
|
|
No |
11050 |
|
NY & CO AND DESIGN |
|
3 |
|
Lernco, Inc. |
|
47,028 |
|
6/21/2000 |
|
44,249 |
|
5/7/2003 |
|
|
|
No |
11051 |
|
NY & CO AND DESIGN |
|
35 |
|
Lernco, Inc. |
|
47,029 |
|
6/21/2000 |
|
44,248 |
|
5/7/2003 |
|
|
|
No |
8458 |
|
NY & CO. AND RECTANGULAR DESIGN |
|
25 |
|
Lernco, Inc. |
|
47,030 |
|
6/21/2000 |
|
44,247 |
|
5/5/2003 |
|
|
|
No |
Country: |
|
Lesotho |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
ID |
|
Mark |
|
Classes |
|
Reg. Owner |
|
App. # |
|
App. Dt |
|
Reg. # |
|
Reg. Dt |
|
Allow. Dt |
|
ITU |
13016 |
|
LERNER |
|
3, 25, 35 |
|
Lernco, Inc. |
|
LS/M/04/00157 |
|
1/21/2004 |
|
LS/M/04/00157 |
|
7/19/2005 |
|
|
|
No |
12696 |
|
NEW YORK & COMPANY |
|
3, 25, 35 |
|
Lernco, Inc. |
|
LS/M/04/00156 |
|
1/21/2004 |
|
LS/M/04/00156 |
|
7/19/2005 |
|
|
|
No |
Country: |
|
Macao |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
ID |
|
Mark |
|
Classes |
|
Reg. Owner |
|
App. # |
|
App. Dt |
|
Reg. # |
|
Reg. Dt |
|
Allow. Dt |
|
ITU |
3994 |
|
LERNER NEW YORK |
|
42 |
|
Lernco, Inc. |
|
13.527-M |
|
4/18/1994 |
|
13.527-M |
|
4/12/1995 |
|
|
|
No |
3993 |
|
LERNER NEW YORK |
|
25 |
|
Lernco, Inc. |
|
13.526-M |
|
4/18/1994 |
|
13.526-M |
|
4/12/1995 |
|
|
|
No |
Country: |
|
Madagascar |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
ID |
|
Mark |
|
Classes |
|
Reg. Owner |
|
App. # |
|
App. Dt |
|
Reg. # |
|
Reg. Dt |
|
Allow. Dt |
|
ITU |
12028 |
|
LERNER |
|
3, 25, 35 |
|
Lernco, Inc. |
|
2004/0058 |
|
2/13/2004 |
|
6,210 |
|
1/3/2005 |
|
|
|
No |
12029 |
|
NEW YORK & COMPANY |
|
3, 25, 35 |
|
Lernco, Inc. |
|
2004/0059 |
|
2/13/2004 |
|
6,209 |
|
1/3/2005 |
|
|
|
No |
Country: |
|
Mauritius |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
ID |
|
Mark |
|
Classes |
|
Reg. Owner |
|
App. # |
|
App. Dt |
|
Reg. # |
|
Reg. Dt |
|
Allow. Dt |
|
ITU |
2324 |
|
LERNER |
|
25 |
|
Lernco, Inc. |
|
|
|
6/19/1986 |
|
A/27 No. 112 |
|
10/30/1986 |
|
|
|
No |
10756 |
|
NY & CO AND DESIGN |
|
3, 16, 25 |
|
Lernco, Inc. |
|
|
|
4/6/2000 |
|
A/47 No. 235 |
|
2/25/2002 |
|
|
|
No |
Country: |
|
Mexico |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
ID |
|
Mark |
|
Classes |
|
Reg. Owner |
|
App. # |
|
App. Dt |
|
Reg. # |
|
Reg. Dt |
|
Allow. Dt |
|
ITU |
14627 |
|
LERNER |
|
35 |
|
Lernco, Inc. |
|
790,485 |
|
6/23/2006 |
|
957,595 |
|
10/13/2006 |
|
|
|
No |
14628 |
|
LERNER |
|
25 |
|
Lernco, Inc. |
|
790,486 |
|
6/23/2006 |
|
946,937 |
|
7/31/2006 |
|
|
|
No |
14860 |
|
NEW YORK & COMPANY |
|
35 |
|
Lernco, Inc. |
|
835,242 |
|
2/9/2007 |
|
976,631 |
|
3/14/2007 |
|
|
|
No |
14859 |
|
NEW YORK & COMPANY |
|
25 |
|
Lernco, Inc. |
|
835,240 |
|
2/9/2007 |
|
|
|
|
|
|
|
No |
8145 |
|
NY & CO AND DESIGN |
|
42 |
|
Lernco, Inc. |
|
419,339 |
|
4/4/2000 |
|
665,781 |
|
7/27/2000 |
|
|
|
No |
8101 |
|
NY & CO AND DESIGN |
|
3 |
|
Lernco, Inc. |
|
419,324 |
|
4/4/2000 |
|
658,030 |
|
5/31/2000 |
|
|
|
No |
11503 |
|
NY & CO NEW YORK & COMPANY AND DESIGN |
|
25 |
|
Lernco, Inc. |
|
602,178 |
|
5/23/2003 |
|
|
|
|
|
|
|
No |
11534 |
|
NY & CO NEW YORK & COMPANY AND DESIGN |
|
3 |
|
Lernco, Inc. |
|
604,054 |
|
6/5/2003 |
|
801,098 |
|
7/23/2003 |
|
|
|
No |
Country: |
|
Mongolia |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
ID |
|
Mark |
|
Classes |
|
Reg. Owner |
|
App. # |
|
App. Dt |
|
Reg. # |
|
Reg. Dt |
|
Allow. Dt |
|
ITU |
12001 |
|
LERNER |
|
3, 25, 35 |
|
Lernco, Inc. |
|
4,922 |
|
1/16/2004 |
|
4,557 |
|
1/16/2004 |
|
|
|
No |
12002 |
|
NEW YORK & COMPANY |
|
3, 25, 35 |
|
Lernco, Inc. |
|
4,923 |
|
1/16/2004 |
|
4,870 |
|
1/16/2004 |
|
|
|
No |
Country: |
|
Nepal |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
ID |
|
Mark |
|
Classes |
|
Reg. Owner |
|
App. # |
|
App. Dt |
|
Reg. # |
|
Reg. Dt |
|
Allow. Dt |
|
ITU |
5444 |
|
LERNER NEW YORK |
|
|
|
Lernco, Inc. |
|
|
|
|
|
11520/052 |
|
4/11/1996 |
|
|
|
No |
5443 |
|
LERNER NEW YORK |
|
|
|
Lernco, Inc. |
|
|
|
|
|
11519/052 |
|
4/11/1996 |
|
|
|
No |
5442 |
|
LERNER NEW YORK |
|
|
|
Lernco, Inc. |
|
|
|
|
|
11518/052 |
|
4/11/1996 |
|
|
|
No |
1287 |
|
LERNER NEW YORK |
|
|
|
Lernco, Inc. |
|
|
|
|
|
11377/052 |
|
2/16/1996 |
|
|
|
No |
9090 |
|
NY AND CO. |
|
25 |
|
Lernco, Inc. |
|
|
|
|
|
15414/057 |
|
6/15/2000 |
|
|
|
No |
Country: |
|
Norway |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
ID |
|
Mark |
|
Classes |
|
Reg. Owner |
|
App. # |
|
App. Dt |
|
Reg. # |
|
Reg. Dt |
|
Allow. Dt |
|
ITU |
2327 |
|
LERNER |
|
25,42 |
|
Lernco, Inc. |
|
|
|
4/11/1986 |
|
129,602 |
|
7/23/1987 |
|
|
|
No |
14801 |
|
NEW YORK & COMPANY |
|
3, 9, 14, 18, 20, 25, 26, 35, 36 |
|
Lernco, Inc. |
|
926,844 |
|
1/3/2007 |
|
926,844 |
|
7/19/2007 |
|
|
|
No |
8139 |
|
NY & CO AND DESIGN |
|
3, 25, 35, 39 |
|
Lernco, Inc. |
|
200003114 |
|
3/15/2000 |
|
206,761 |
|
2/1/2001 |
|
|
|
No |
Country: |
|
Pakistan |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
ID |
|
Mark |
|
Classes |
|
Reg. Owner |
|
App. # |
|
App. Dt |
|
Reg. # |
|
Reg. Dt |
|
Allow. Dt |
|
ITU |
8138 |
|
NY & CO AND DESIGN |
|
25 |
|
Lernco, Inc. |
|
161,735 |
|
3/21/2000 |
|
|
|
|
|
|
|
No |
12469 |
|
NY & CO AND DESIGN |
|
35 |
|
Lernco, Inc. |
|
201,229 |
|
9/21/2004 |
|
|
|
|
|
|
|
No |
8133 |
|
NY & CO AND DESIGN |
|
16 |
|
Lernco, Inc. |
|
162,207 |
|
4/13/2000 |
|
162,207 |
|
12/28/2006 |
|
|
|
No |
8137 |
|
NY & CO AND DESIGN |
|
3 |
|
Lernco, Inc. |
|
161,736 |
|
3/21/2000 |
|
|
|
|
|
|
|
No |
Country: |
|
Peru |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
ID |
|
Mark |
|
Classes |
|
Reg. Owner |
|
App. # |
|
App. Dt |
|
Reg. # |
|
Reg. Dt |
|
Allow. Dt |
|
ITU |
1076 |
|
LERNER NEW YORK |
|
39 |
|
Lernco, Inc. |
|
250,581 |
|
9/13/1994 |
|
003,318 |
|
1/18/1995 |
|
|
|
No |
4381 |
|
LERNER NEW YORK |
|
25 |
|
Lernco, Inc. |
|
247,082 |
|
7/19/1994 |
|
11,223 |
|
11/3/1994 |
|
|
|
No |
10143 |
|
LERNER NEW YORK |
|
35 |
|
Lernco, Inc. |
|
136,777 |
|
10/22/2001 |
|
28,269 |
|
1/16/2002 |
|
|
|
No. |
14873 |
|
NEW YORK & COMPANY |
|
25 |
|
Lernco, Inc. |
|
310,827 |
|
4/4/2007 |
|
|
|
|
|
|
|
No |
14874 |
|
NEW YORK & COMPANY |
|
35 |
|
Lernco, Inc. |
|
310,828 |
|
4/4/2007 |
|
|
|
|
|
|
|
No |
8169 |
|
NY & CO AND DESIGN |
|
3 |
|
Lernco, Inc. |
|
105,816 |
|
5/9/2000 |
|
66,068 |
|
9/8/2000 |
|
|
|
No |
8205 |
|
NY & CO AND DESIGN |
|
25 |
|
Lernco, Inc. |
|
106505-2000 |
|
5/18/2000 |
|
78,796 |
|
3/11/2002 |
|
|
|
No |
Country: |
|
Poland |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
ID |
|
Mark |
|
Classes |
|
Reg. Owner |
|
App. # |
|
App. Dt |
|
Reg. # |
|
Reg. Dt |
|
Allow. Dt |
|
ITU |
4706 |
|
LERNER NEW YORK |
|
25,39 |
|
Lernco, Inc. |
|
|
|
7/29/1994 |
|
98,228 |
|
7/29/1994 |
|
|
|
No |
14802 |
|
NEW YORK & COMPANY |
|
3, 9, 14, 18, 20, 25, 26, 35, 36 |
|
Lernco, Inc. |
|
926,844 |
|
1/3/2007 |
|
926,844 |
|
7/19/2007 |
|
|
|
No |
8253 |
|
NY & CO AND DESIGN |
|
3, 25, 35, 39 |
|
Lernco, Inc. |
|
Z-216047 |
|
3/29/2000 |
|
149,292 |
|
12/15/2003 |
|
|
|
No |
Country: |
|
Puerto Rico |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
ID |
|
Mark |
|
Classes |
|
Reg. Owner |
|
App. # |
|
App. Dt |
|
Reg. # |
|
Reg. Dt |
|
Allow. Dt |
|
ITU |
14529 |
|
LERNER |
|
14 |
|
Lernco, Inc. |
|
69,015 |
|
6/19/2006 |
|
|
|
|
|
|
|
No |
14526 |
|
LERNER |
|
16 |
|
Lernco, Inc. |
|
69,017 |
|
6/19/2006 |
|
|
|
|
|
|
|
No |
14525 |
|
LERNER |
|
18 |
|
Lernco, Inc. |
|
69,018 |
|
6/19/2006 |
|
|
|
|
|
|
|
No |
14530 |
|
LERNER |
|
25 |
|
Lernco, Inc. |
|
69,019 |
|
6/19/2006 |
|
|
|
|
|
|
|
No |
2335 |
|
LERNER |
|
14 |
|
Lernco, Inc. |
|
|
|
7/24/1986 |
|
27,285 |
|
12/23/1986 |
|
|
|
No |
5189 |
|
LERNER |
|
14, 18, 25 |
|
Lernco, Inc. |
|
|
|
5/15/1990 |
|
7,507 |
|
3/10/1987 |
|
|
|
No |
2336 |
|
LERNER |
|
16 |
|
Lernco, Inc. |
|
|
|
7/24/1986 |
|
27,286 |
|
12/23/1986 |
|
|
|
No |
2334 |
|
LERNER |
|
25 |
|
Lernco, Inc. |
|
|
|
8/28/1981 |
|
23,928-A |
|
12/10/1981 |
|
|
|
No |
11632 |
|
LERNER |
|
35 |
|
Lernco, Inc. |
|
|
|
6/24/2003 |
|
59,906 |
|
10/27/2004 |
|
|
|
No |
10604 |
|
LERNER |
|
42 |
|
Lernco, Inc. |
|
|
|
|
|
7,158 |
|
4/15/1980 |
|
|
|
No |
10330 |
|
LERNER |
|
42 |
|
Lernco, Inc. |
|
|
|
|
|
7,159 |
|
7/10/1979 |
|
|
|
No |
11628 |
|
LERNER NEW YORK |
|
3 |
|
Lernco, Inc. |
|
|
|
6/24/2003 |
|
59,901 |
|
10/27/2004 |
|
|
|
No |
11630 |
|
LERNER NEW YORK |
|
25 |
|
Lernco, Inc. |
|
|
|
6/24/2003 |
|
59,902 |
|
10/27/2004 |
|
|
|
No |
11631 |
|
LERNER NEW YORK |
|
35 |
|
Lernco, Inc. |
|
|
|
6/24/2003 |
|
59,905 |
|
10/27/2004 |
|
|
|
No |
11697 |
|
LERNER NY |
|
3 |
|
Lernco, Inc. |
|
|
|
8/29/2003 |
|
|
|
|
|
|
|
No |
11696 |
|
LERNER NY |
|
35 |
|
Lernco, Inc. |
|
|
|
8/29/2003 |
|
60,275 |
|
10/27/2004 |
|
|
|
No |
11695 |
|
LERNER NY |
|
25 |
|
Lernco, Inc. |
|
|
|
8/29/2003 |
|
60,274 |
|
10/27/2004 |
|
|
|
No |
11490 |
|
NEW YORK & COMPANY |
|
35 |
|
Lernco, Inc. |
|
|
|
5/8/2003 |
|
59,655 |
|
10/28/2004 |
|
|
|
No |
11489 |
|
NEW YORK & COMPANY |
|
25 |
|
Lernco, Inc. |
|
|
|
5/8/2003 |
|
59,656 |
|
10/27/2004 |
|
|
|
No |
11488 |
|
NEW YORK & COMPANY |
|
3 |
|
Lernco, Inc. |
|
|
|
5/8/2003 |
|
59,564 |
|
10/27/2004 |
|
|
|
No |
Country: |
|
Qatar |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
ID |
|
Mark |
|
Classes |
|
Reg. Owner |
|
App. # |
|
App. Dt |
|
Reg. # |
|
Reg. Dt |
|
Allow. Dt |
|
ITU |
14866 |
|
NEW YORK & COMPANY |
|
35 |
|
Lernco, Inc. |
|
43,198 |
|
2/12/2007 |
|
|
|
|
|
|
|
No |
14865 |
|
NEW YORK & COMPANY |
|
25 |
|
Lernco, Inc. |
|
43,197 |
|
2/12/2007 |
|
|
|
|
|
|
|
No |
8217 |
|
NY & CO AND DESIGN |
|
35 |
|
Lernco, Inc. |
|
22,572 |
|
4/1/2000 |
|
|
|
|
|
|
|
No |
8219 |
|
NY & CO AND DESIGN |
|
25 |
|
Lernco, Inc. |
|
22,571 |
|
4/1/2000 |
|
|
|
|
|
|
|
No |
8218 |
|
NY & CO AND DESIGN |
|
3 |
|
Lernco, Inc. |
|
22,570 |
|
4/1/2000 |
|
|
|
|
|
|
|
No |
Country: |
|
Russian Federation |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
ID |
|
Mark |
|
Classes |
|
Reg. Owner |
|
App. # |
|
App. Dt |
|
Reg. # |
|
Reg. Dt |
|
Allow. Dt |
|
ITU |
4070 |
|
LERNER NEW YORK |
|
3, 14, 18, 25, 42 |
|
Lernco, Inc. |
|
94,019,044 |
|
6/1/1994 |
|
134,936 |
|
11/24/1995 |
|
|
|
No |
14805 |
|
NEW YORK & COMPANY |
|
3, 9, 14, 18, 20, 25, 26, 35, 36 |
|
Lernco, Inc. |
|
926,844 |
|
1/3/2007 |
|
926,844 |
|
7/19/2007 |
|
|
|
No |
8105 |
|
NY & CO AND DESIGN |
|
3, 25, 42 |
|
Lernco, Inc. |
|
2000705692 |
|
3/15/2000 |
|
217,209 |
|
7/17/2002 |
|
|
|
No |
Country: |
|
Saudi Arabia |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
ID |
|
Mark |
|
Classes |
|
Reg. Owner |
|
App. # |
|
App. Dt |
|
Reg. # |
|
Reg. Dt |
|
Allow. Dt |
|
ITU |
4580 |
|
LERNER NEW YORK |
|
42 |
|
Lernco, Inc. |
|
28,302 |
|
2/1/1995 |
|
364/31 |
|
12/24/1995 |
|
|
|
No |
4579 |
|
LERNER NEW YORK |
|
25 |
|
Lernco, Inc. |
|
26,708 |
|
10/8/1994 |
|
341/66 |
|
5/29/1995 |
|
|
|
No |
5009 |
|
LERNER NEW YORK |
|
39 |
|
Lernco, Inc. |
|
28,290 |
|
2/1/1995 |
|
364/30 |
|
12/24/1995 |
|
|
|
No |
14928 |
|
NEW YORK & COMPANY |
|
18 |
|
Lernco, Inc. |
|
119,240 |
|
7/4/2007 |
|
|
|
|
|
|
|
No |
14929 |
|
NEW YORK & COMPANY |
|
25 |
|
Lernco, Inc. |
|
119,241 |
|
7/4/2007 |
|
|
|
|
|
|
|
No |
14927 |
|
NEW YORK & COMPANY |
|
3 |
|
Lernco, Inc. |
|
119,239 |
|
7/4/2007 |
|
|
|
|
|
|
|
No |
14930 |
|
NEW YORK & COMPANY |
|
35 |
|
Lernco, Inc. |
|
119,242 |
|
7/4/2007 |
|
|
|
|
|
|
|
No |
8367 |
|
NY & CO AND DESIGN |
|
3 |
|
Lernco, Inc. |
|
64,048 |
|
4/26/2000 |
|
742/33 |
|
8/25/2004 |
|
|
|
No |
8368 |
|
NY & CO AND DESIGN |
|
25 |
|
Lernco, Inc. |
|
64,049 |
|
4/26/2000 |
|
742/34 |
|
8/25/2004 |
|
|
|
No |
8366 |
|
NY & CO AND DESIGN |
|
35 |
|
Lernco, Inc. |
|
64,157 |
|
5/1/2000 |
|
572/64 |
|
5/29/2001 |
|
|
|
No |
Country: |
|
Singapore |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
ID |
|
Mark |
|
Classes |
|
Reg. Owner |
|
App. # |
|
App. Dt |
|
Reg. # |
|
Reg. Dt |
|
Allow. Dt |
|
ITU |
3587 |
|
LERNER NEW YORK |
|
25 |
|
Lernco, Inc. |
|
10330/96 |
|
9/26/1996 |
|
T96/10330G |
|
9/26/1996 |
|
|
|
No |
6620 |
|
LERNER NEW YORK |
|
35 |
|
Lernco, Inc. |
|
T99/00470I |
|
1/15/1999 |
|
T99/00470I |
|
1/15/1999 |
|
|
|
No |
3568 |
|
LERNER NEW YORK AND LADY DESIGN |
|
42 |
|
Lernco, Inc. |
|
448/97 |
|
1/15/1997 |
|
T97/00448E |
|
1/15/1997 |
|
|
|
No |
14807 |
|
NEW YORK & COMPANY |
|
3, 9, 14, 18, 20, 25, 26, 35, 36 |
|
Lernco, Inc. |
|
926,844 |
|
1/3/2007 |
|
926,844 |
|
7/19/2007 |
|
|
|
No |
8005 |
|
NY & CO AND DESIGN |
|
25 |
|
Lernco, Inc. |
|
T00/04986A |
|
3/28/2000 |
|
T00/04986A |
|
3/28/2000 |
|
|
|
No |
8006 |
|
NY & CO AND DESIGN |
|
35 |
|
Lernco, Inc. |
|
T00/04988H |
|
3/28/2000 |
|
T00/04988H |
|
2/13/2003 |
|
|
|
No |
8004 |
|
NY & CO AND DESIGN |
|
3 |
|
Lernco, Inc. |
|
T00/04987Z |
|
3/28/2000 |
|
T00/04987Z |
|
10/28/2002 |
|
|
|
No |
Country: |
|
South Africa |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
ID |
|
Mark |
|
Classes |
|
Reg. Owner |
|
App. # |
|
App. Dt |
|
Reg. # |
|
Reg. Dt |
|
Allow. Dt |
|
ITU |
8134 |
|
NY & CO AND DESIGN |
|
3 |
|
Lernco, Inc. |
|
2000/04509 |
|
3/14/2000 |
|
2000/04509 |
|
2/18/2005 |
|
|
|
No |
8136 |
|
NY & CO AND DESIGN |
|
35 |
|
Lernco, Inc. |
|
2000/04511 |
|
3/14/2000 |
|
2000/04511 |
|
2/18/2005 |
|
|
|
No |
8135 |
|
NY & CO AND DESIGN |
|
25 |
|
Lernco, Inc. |
|
2000/04510 |
|
3/14/2000 |
|
2000/04510 |
|
2/18/2005 |
|
|
|
No |
Country: |
|
Sri Lanka |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
ID |
|
Mark |
|
Classes |
|
Reg. Owner |
|
App. # |
|
App. Dt |
|
Reg. # |
|
Reg. Dt |
|
Allow. Dt |
|
ITU |
2323 |
|
LERNER |
|
42 |
|
Lernco, Inc. |
|
51,353 |
|
5/14/1986 |
|
51,353 |
|
9/10/1990 |
|
|
|
No |
2322 |
|
LERNER |
|
25 |
|
Lernco, Inc. |
|
51,351 |
|
5/14/1986 |
|
51,351 |
|
3/19/1992 |
|
|
|
No |
14823 |
|
NEW YORK & COMPANY |
|
35 |
|
Lernco, Inc. |
|
137,090 |
|
1/12/2007 |
|
|
|
|
|
|
|
No |
14824 |
|
NEW YORK & COMPANY |
|
25 |
|
Lernco, Inc. |
|
137,091 |
|
1/12/2007 |
|
|
|
|
|
|
|
No |
8044 |
|
NY & CO AND DESIGN |
|
42 |
|
Lernco, Inc. |
|
96,998 |
|
3/23/2000 |
|
96,998 |
|
9/14/2004 |
|
|
|
No |
8043 |
|
NY & CO AND DESIGN |
|
25 |
|
Lernco, Inc. |
|
96,999 |
|
3/23/2000 |
|
96,999 |
|
4/28/2006 |
|
|
|
No |
8045 |
|
NY & CO AND DESIGN |
|
3 |
|
Lernco, Inc. |
|
96,996 |
|
3/23/2000 |
|
|
|
|
|
|
|
No |
Country: |
|
Sweden |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
ID |
|
Mark |
|
Classes |
|
Reg. Owner |
|
App. # |
|
App. Dt |
|
Reg. # |
|
Reg. Dt |
|
Allow. Dt |
|
ITU |
4468 |
|
LERNER NEW YORK |
|
25, 35, 39 |
|
Lernco, Inc. |
|
94-06793 |
|
6/29/1994 |
|
302,523 |
|
6/2/1995 |
|
|
|
No |
14811 |
|
NEW YORK & COMPANY |
|
3, 9, 14, 18, 20, 25, 26, 35, 36 |
|
Lernco, Inc. |
|
926,844 |
|
1/3/2007 |
|
926,844 |
|
7/19/2007 |
|
|
|
No |
8028 |
|
NY & CO AND DESIGN |
|
3, 25, 35 |
|
Lernco, Inc. |
|
00-02356 |
|
3/23/2000 |
|
348,299 |
|
8/31/2001 |
|
|
|
No |
Country: |
|
Switzerland |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
ID |
|
Mark |
|
Classes |
|
Reg. Owner |
|
App. # |
|
App. Dt |
|
Reg. # |
|
Reg. Dt |
|
Allow. Dt |
|
ITU |
2304 |
|
LERNER |
|
25 |
|
Lernco, Inc. |
|
|
|
6/4/1986 |
|
P348,915 |
|
11/21/1986 |
|
|
|
No |
3898 |
|
LERNER NEW YORK |
|
35, 36, 39, 40, 41, 42 |
|
Lernco, Inc. |
|
5319-1993.9 |
|
4/1/1993 |
|
409,696 |
|
5/24/1994 |
|
|
|
No |
14812 |
|
NEW YORK & COMPANY |
|
3, 9, 14, 18, 20, 25, 26, 35, 36 |
|
Lernco, Inc. |
|
926,844 |
|
1/3/2007 |
|
926,844 |
|
7/19/2007 |
|
|
|
No |
8214 |
|
NY & CO AND DESIGN |
|
3, 25, 35 |
|
Lernco, Inc. |
|
02987/2000 |
|
3/14/2000 |
|
477,497 |
|
10/26/2000 |
|
|
|
No |
Country: |
|
Taiwan |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
ID |
|
Mark |
|
Classes |
|
Reg. Owner |
|
App. # |
|
App. Dt |
|
Reg. # |
|
Reg. Dt |
|
Allow. Dt |
|
ITU |
1753 |
|
LERNER |
|
25 |
|
Lernco, Inc. |
|
85053969 |
|
10/23/1996 |
|
774,403 |
|
9/1/1997 |
|
|
|
No |
1285 |
|
LERNER |
|
18 |
|
Lernco, Inc. |
|
85053968 |
|
10/23/1996 |
|
783,341 |
|
11/1/1997 |
|
|
|
No |
2344 |
|
LERNER |
|
5 |
|
Lernco, Inc. |
|
78,021,889 |
|
|
|
492,681 |
|
8/1/1990 |
|
|
|
No |
7883 |
|
LERNER |
|
3 |
|
Lernco, Inc. |
|
89007339 |
|
2/14/2000 |
|
942,268 |
|
6/1/2001 |
|
|
|
No |
5295 |
|
LERNER NEW YORK |
|
42 |
|
Lernco, Inc. |
|
84065884 |
|
12/30/1995 |
|
91,398 |
|
6/1/1997 |
|
|
|
No |
14379 |
|
NEW YORK & COMPANY |
|
3, 35 |
|
Lernco, Inc. |
|
95011196 |
|
3/9/2006 |
|
|
|
|
|
|
|
No |
14821 |
|
NEW YORK & COMPANY |
|
3, 14, 18, 25, 35 |
|
Lernco, Inc. |
|
96001392 |
|
1/10/2007 |
|
|
|
|
|
|
|
No |
14909 |
|
NEW YORK & COMPANY |
|
3, 35 |
|
Lernco, Inc. |
|
|
|
3/9/2006 |
|
|
|
|
|
|
|
No |
8117 |
|
NY & CO AND DESIGN |
|
25 |
|
Lernco, Inc. |
|
89016388 |
|
3/27/2000 |
|
1,037,822 |
|
3/16/2003 |
|
|
|
No |
8116 |
|
NY & CO AND DESIGN |
|
35 |
|
Lernco, Inc. |
|
89016385 |
|
3/27/2000 |
|
150,290 |
|
10/16/2001 |
|
|
|
No |
8115 |
|
NY & CO AND DESIGN |
|
3 |
|
Lernco, Inc. |
|
89016393 |
|
3/27/2000 |
|
991,763 |
|
4/1/2002 |
|
|
|
No |
Country: |
|
Tangier |
|
Zone |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
ID |
|
Mark |
|
Classes |
|
Reg. Owner |
|
App. # |
|
App. Dt |
|
Reg. # |
|
Reg. Dt |
|
Allow. Dt |
|
ITU |
2408 |
|
LERNER NEW YORK |
|
25,42 |
|
Lernco, Inc. |
|
|
|
8/18/1994 |
|
9,947 |
|
10/20/1994 |
|
|
|
No |
Country: |
|
Thailand |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
ID |
|
Mark |
|
Classes |
|
Reg. Owner |
|
App. # |
|
App. Dt |
|
Reg. # |
|
Reg. Dt |
|
Allow. Dt |
|
ITU |
2341 |
|
LERNER |
|
25 |
|
Lernco, Inc. |
|
309,914 |
|
6/13/1986 |
|
46,404 |
|
12/30/1986 |
|
|
|
No |
14833 |
|
NEW YORK & COMPANY |
|
25 |
|
Lernco, Inc. |
|
651,561 |
|
1/25/2007 |
|
|
|
|
|
|
|
No |
14832 |
|
NEW YORK & COMPANY |
|
35 |
|
Lernco, Inc. |
|
651,562 |
|
1/25/2007 |
|
|
|
|
|
|
|
No |
8111 |
|
NY & CO AND DESIGN |
|
3 |
|
Lernco, Inc. |
|
415,518 |
|
3/28/2000 |
|
148,214 |
|
11/22/2001 |
|
|
|
No |
Country: |
|
Turkey |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
ID |
|
Mark |
|
Classes |
|
Reg. Owner |
|
App. # |
|
App. Dt |
|
Reg. # |
|
Reg. Dt |
|
Allow. Dt |
|
ITU |
2342 |
|
LERNER |
|
25 |
|
Lernco, Inc. |
|
|
|
6/15/1987 |
|
100,004 |
|
6/15/1987 |
|
|
|
No |
12104 |
|
LERNER |
|
35 |
|
Lernco, Inc. |
|
2004/01334 |
|
1/21/2004 |
|
2004/01334 |
|
1/21/2004 |
|
|
|
No |
12090 |
|
NEW YORK & COMPANY |
|
25,35 |
|
Lernco, Inc. |
|
2004/01330 |
|
1/21/2004 |
|
2004/01330 |
|
1/21/2004 |
|
|
|
No |
Country: |
|
Ukraine |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
ID |
|
Mark |
|
Classes |
|
Reg. Owner |
|
App. # |
|
App. Dt |
|
Reg. # |
|
Reg. Dt |
|
Allow. Dt |
|
ITU |
4491 |
|
LERNER NEW YORK |
|
25, 42 |
|
Lernco, Inc. |
|
94083022/T |
|
8/23/1994 |
|
12,102 |
|
6/7/1999 |
|
|
|
No |
14813 |
|
NEW YORK & COMPANY |
|
3, 9, 14, 18, 20, 25, 26, 35, 36 |
|
Lernco, Inc. |
|
926,844 |
|
1/3/2007 |
|
926,844 |
|
7/19/2007 |
|
|
|
No |
8247 |
|
NY & CO AND DESIGN |
|
3, 25, 35 |
|
Lernco, Inc. |
|
2000041478 |
|
4/11/2000 |
|
26,696 |
|
8/15/2002 |
|
|
|
No |
Country: |
|
United Arab Emirates |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
ID |
|
Mark |
|
Classes |
|
Reg. Owner |
|
App. # |
|
App. Dt |
|
Reg. # |
|
Reg. Dt |
|
Allow. Dt |
|
ITU |
14938 |
|
NEW YORK & COMPANY |
|
35 |
|
Lernco, Inc. |
|
97,122 |
|
7/5/2007 |
|
|
|
|
|
|
|
No |
14935 |
|
NEW YORK & COMPANY |
|
3 |
|
Lernco, Inc. |
|
97,119 |
|
7/5/2007 |
|
|
|
|
|
|
|
No |
14936 |
|
NEW YORK & COMPANY |
|
18 |
|
Lernco, Inc. |
|
97,120 |
|
7/5/2007 |
|
|
|
|
|
|
|
No |
8501 |
|
NY & CO AND DESIGN |
|
42 |
|
Lernco, Inc. |
|
36,973 |
|
6/18/2000 |
|
28,862 |
|
10/15/2001 |
|
|
|
No |
8502 |
|
NY & CO AND DESIGN |
|
3 |
|
Lernco, Inc. |
|
36,971 |
|
6/18/2000 |
|
28,860 |
|
10/15/2001 |
|
|
|
No |
8503 |
|
NY & CO AND DESIGN |
|
25 |
|
Lernco, Inc. |
|
36,972 |
|
6/18/2000 |
|
28,861 |
|
10/15/2001 |
|
|
|
No |
14680 |
|
NEW YORK & COMPANY REWARDS CLUB |
|
35 |
|
Lernco, Inc. |
|
77/001,769 |
|
9/18/2006 |
|
|
|
|
|
|
|
Yes |
12230 |
|
NY & C AND DESIGN |
|
18,25 |
|
Lernco, Inc. |
|
78/402,450 |
|
4/15/2004 |
|
|
|
|
|
|
|
No |
13267 |
|
NY & C PLATINUM |
|
25 |
|
Lernco, Inc. |
|
78/631,404 |
|
5/17/2005 |
|
|
|
|
|
|
|
Yes |
14900 |
|
NY & C PLATINUM AND RECTANGLE DESIGN |
|
18 |
|
Lernco, Inc. |
|
77/181,232 |
|
5/15/2007 |
|
|
|
|
|
|
|
Yes |
14388 |
|
NY POCKET STITCHING DESIGN |
|
25 |
|
Lernco,Inc. |
|
78/847,002 |
|
3/27/2006 |
|
|
|
|
|
|
|
No |
Country: |
|
Uruguay |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
ID |
|
Mark |
|
Classes |
|
Reg. Owner |
|
App. # |
|
App. Dt |
|
Reg. # |
|
Reg. Dt |
|
Allow. Dt |
|
ITU |
2351 |
|
LERNER |
|
25,42 |
|
Lernco, Inc. |
|
|
|
5/20/1986 |
|
297,612 |
|
10/13/1987 |
|
|
|
No |
7956 |
|
NY & CO AND DESIGN |
|
3, 25, 35 |
|
Lernco, Inc. |
|
321,188 |
|
3/14/2000 |
|
321,188 |
|
10/10/2000 |
|
|
|
No |
Country: |
|
Venezuela |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
ID |
|
Mark |
|
Classes |
|
Reg. Owner |
|
App. # |
|
App. Dt |
|
Reg. # |
|
Reg. Dt |
|
Allow. Dt |
|
ITU |
4353 |
|
LERNER NEW YORK |
|
42 |
|
Lernco, Inc. |
|
7,936-94 |
|
6/3/1994 |
|
|
|
|
|
|
|
No |
4352 |
|
LERNER NEW YORK |
|
25 |
|
Lernco, Inc. |
|
1994-007935 |
|
6/16/1994 |
|
P-231269 |
|
9/10/1999 |
|
|
|
No |
8001 |
|
NY & CO AND DESIGN |
|
25 |
|
Lernco, Inc. |
|
2000-001738 |
|
2/7/2000 |
|
|
|
|
|
|
|
No |
8355 |
|
NY & CO AND DESIGN |
|
|
|
Lernco, Inc. |
|
2000-001737 |
|
2/7/2000 |
|
|
|
|
|
|
|
No |
8002 |
|
NY & CO AND DESIGN |
|
3 |
|
Lernco, Inc. |
|
2000-001739 |
|
2/7/2000 |
|
|
|
|
|
|
|
No |
Country: |
|
Vietnam |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
ID |
|
Mark |
|
Classes |
|
Reg. Owner |
|
App. # |
|
App. Dt |
|
Reg. # |
|
Reg. Dt |
|
Allow. Dt |
|
ITU |
3569 |
|
LERNER NEW YORK |
|
3, 14, 18, 25, 42 |
|
Lernco, Inc. |
|
12,936 |
|
4/24/1993 |
|
10,850 |
|
1/24/1994 |
|
|
|
No |
14815 |
|
NEW YORK & COMPANY |
|
3, 9, 14, 18, 20, 25, 26, 35, 36 |
|
Lernco, Inc. |
|
926,844 |
|
1/3/2007 |
|
926,844 |
|
7/19/2007 |
|
|
|
No |
8645 |
|
NY & CO AND DESIGN |
|
3, 25, 35 |
|
Lernco, Inc. |
|
45,632 |
|
3/14/2000 |
|
37,733 |
|
7/11/2001 |
|
|
|
No |
Country: |
|
Virgin Islands (US) |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
ID |
|
Mark |
|
Classes |
|
Reg. Owner |
|
App. # |
|
App. Dt |
|
Reg. # |
|
Reg. Dt |
|
Allow. Dt |
|
ITU |
7368 |
|
LERNER |
|
42 |
|
Lernco, Inc. |
|
|
|
|
|
6,783 |
|
4/2/1996 |
|
|
|
No |
2761 |
|
LERNER |
|
14, 18, 25 |
|
Lernco, Inc. |
|
|
|
4/2/1996 |
|
6,379 |
|
4/2/1996 |
|
|
|
No |
10732 |
|
LERNER AND DESIGN |
|
42 |
|
Lernco, Inc. |
|
|
|
|
|
6,784 |
|
3/17/1986 |
|
|
|
No |
Country: |
|
WIPO |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
ID |
|
Mark |
|
Classes |
|
Reg. Owner |
|
App. # |
|
App. Dt |
|
Reg. # |
|
Reg. Dt |
|
Allow. Dt |
|
ITU |
14782 |
|
NEW YORK & COMPANY |
|
3, 9, 14, 18, 20, 25, 26, 35, 36 |
|
Lernco, Inc. |
|
926,844 |
|
1/3/2007 |
|
926,844 |
|
7/19/2007 |
|
|
|
No |
Trademarks
Country: |
|
United States |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
ID |
|
Mark |
|
Classes |
|
Reg. Owner |
|
App. # |
|
App. Dt |
|
Reg. # |
|
Reg. Dt |
|
Allow. Dt |
|
ITU |
14906 |
|
JASCLUB |
|
35 |
|
Jasmine Company, Inc. |
|
77/193,913 |
|
5/31/2007 |
|
|
|
|
|
|
|
Yes |
14753 |
|
JASMINESOLA |
|
3 |
|
Jasmine Company, Inc. |
|
77/025,204 |
|
10/19/2006 |
|
|
|
|
|
|
|
Yes |
14078 |
|
JASMINESOLA |
|
35 |
|
Jasmine Company, Inc. |
|
78/543,879 |
|
1/7/2005 |
|
3,111,420 |
|
7/4/2006 |
|
|
|
No |
14080 |
|
JASMINESOLA |
|
35 |
|
Jasmine Company, Inc. |
|
78/547,849 |
|
1/14/2005 |
|
|
|
|
|
|
|
Yes |
14079 |
|
JASMINESOLA |
|
14, 18, 25 |
|
Jasmine Company, Inc. |
|
78/547,059 |
|
1/13/2005 |
|
3,156,359 |
|
10/17/2006 |
|
|
|
No |
14752 |
|
JASMINESOLA AND DESIGN |
|
3 |
|
Jasmine Company, Inc. |
|
77/025,225 |
|
10/19/2006 |
|
|
|
|
|
|
|
Yes |
SPECIAL POWER OF ATTORNEY
STATE OF NEW YORK |
) |
|
) ss.: |
COUNTY OF NEW YORK |
) |
KNOW ALL MEN BY THESE PRESENTS, that LERNCO, INC. (Debtor), having an office at 450 West 33 rd Street, New York, New York 10001 hereby appoints and constitutes, severally, WACHOVIA BANK, NATIONAL ASSOCIATION, as Agent (Secured Party), and each of its officers, its true and lawful attorney, with full power of substitution and with full power and authority to perform the following acts on behalf of Debtor:
1. Execution and delivery of any and all agreements, documents, instrument of assignment, or other papers which Secured Party, in its discretion, deems necessary or advisable for the purpose of assigning, selling, or otherwise disposing of all right, title, and interest of Debtor in and to any trademarks and all registrations, recordings, reissues, extensions, and renewals thereof, or for the purpose of recording, registering and filing of, or accomplishing any other formality with respect to the foregoing.
2. Execution and delivery of any and all documents, statements, certificates or other papers which Secured Party, in its discretion, deems necessary or advisable to further the purposes described in Subparagraph 1 hereof.
This Power of Attorney is made pursuant to the Amended and Restated Collateral Assignment of Trademarks, dated of even date herewith, between Debtor and Secured Party (the Security Agreement) and is subject to the terms and provisions thereof. This Power of Attorney, being coupled with an interest, is irrevocable until all Obligations, as such term is defined in the Security Agreement, are paid in full and the Security Agreement is terminated in writing by Secured Party.
Dated: August 22, 2007 |
LERNCO, INC. |
|
|
|
|
|
By: |
/s/ Ronald W. Ristau |
|
|
|
|
|
|
|
Title: |
President |
STATE OF NEW YORK |
) |
|
) ss.: |
COUNTY OF NEW YORK |
) |
On this 22 day of August 2007, before me personally came Ronald Ristau, to me known, who being duly sworn, did depose and say, that he is the President of LERNCO, INC., the corporation described in and which executed the foregoing instrument; and that he signed his name thereto by order of the Board of Directors of said corporation.
|
/s/ Doris M. Arroyo |
|
Notary Public |
|
DORIS M. ARROYO |
|
Notary Public, State of New York |
|
No. 41-4876603 |
|
Qualified in Queens County |
|
Cert. Filed in New Yolk County |
|
Commission Expires December 15, 2010 |
Exhibit 10.27
[Execution]
AMENDED AND RESTATED
COLLATERAL ASSIGNMENT OF TRADEMARKS
(SECURITY AGREEMENT)
THIS AMENDED AND RESTATED COLLATERAL ASSIGNMENT OF TRADEMARKS (SECURITY AGREEMENT) (this Agreement ), dated August 22, 2007, is made among LERNER NEW YORK, INC., a Delaware corporation ( Pledgor ), with an office at 450 West 33 rd Street, New York, New York 10001, in favor of WACHOVIA BANK, NATIONAL ASSOCIATION, a national banking association, with an office at 1133 Avenue of the Americas, New York, New York 10036, in its capacity as agent (in such capacity, Pledgee ), for the Lenders and Bank Product Providers (as defined in the Loan Agreement).
W I T N E S S E T H:
WHEREAS, Pledgor has previously entered into the Collateral Assignment of Trademarks (Security Agreement), dated as of November 27, 2002 (the Existing Security Agreement ), in order to further evidence Pledgors grant in favor of Pledgee, of a security interest in the Trademarks (as defined herein) and the goodwill and certain other assets with respect to the Trademarks, as further set forth therein.
WHEREAS, Pledgee, Pledgor, Lernco, Inc. ( Lernco ) and Jasmine Company, Inc. ( Jasmine and together with Pledgor, and Lernco, collectively, Borrowers), Guarantors, and the Persons from time to time party thereto as lenders ( Lenders ), have amended and restated or are about to amend and restate the existing financing arrangements of Pledgee, Lenders, Borrowers and Guarantors pursuant to which Lenders (or Pledgee on behalf of Lenders) may make loans and advances and provide other financial accommodations to Borrowers as set forth in the Second Amended and Restated Loan and Security Agreement, dated as of the date hereof, by and among Pledgee, Lenders, Borrowers and Guarantors (as the same now exists or may hereafter be amended, modified, supplemented, extended, renewed, restated or replaced, the Loan Agreement ) and other agreements, documents and instruments referred to therein or at any time executed and/or delivered in connection therewith or related thereto, including, but not limited to, this Guarantee (all of the foregoing, together with the Loan Agreement, as the same now exist or may hereafter be amended, modified, supplemented, extended, renewed, restated or replaced, being collectively referred to herein as the Financing Agreements ).
WHEREAS, Pledgor owns all right, title, and interest in and to, among other things, all the trademarks, United States trademarks and trademark registrations, and the trademark applications and tradenames, set forth on Exhibit A hereto (the Trademarks ); and
WHEREAS, in furtherance of the terms of the Financing Agreements and in consideration of Agent and the Lenders entering into the Loan Agreement, Pledgor and Pledgee wish to amend and restate the Existing Security Agreement.
NOW THEREFORE, for valuable consideration received and to be received, and as security for the full payment and performance of the Obligations (as defined in the Loan Agreement) arising from the Loan Agreement, and to induce Pledgee and the Lenders to make and continue to make loans and advances to the Borrowers under the Loan Agreement, Pledgor and Pledgee hereby amend and restate the Existing Security Agreement in its entirety as set forth in this Agreement and Pledgor hereby grants to Pledgee, for itself and the ratable benefit of the Lenders and Bank Product Providers, a security interest in:
(a) the Trademarks;
(b) all registrations of the Trademarks in any State of the United States and any foreign countries and localities;
(c) all tradenames, trademarks and trademark registrations hereafter adopted or acquired and used, including, but not limited to, those which are based upon or derived from the Trademarks or any variations thereof (the Future Trademarks );
(d) all extensions, renewals, and continuations of the Trademarks and Future Trademarks and the registrations referred to in clause (b) above;
(e) all rights to sue for past, present and future infringements of the Trademarks and Future Trademarks;
(f) all packaging, labeling, trade names, service marks, logos, and trade dress including or containing the Trademarks and Future Trademarks, or a representation thereof, or any variation thereof;
(g) all licenses and other agreements under which Pledgor is licensor, but only to the extent that the grant of a security interest therein would not be prohibited by or be a breach of terms thereof, and all fees, rents, royalties, proceeds or monies thereunder, relating to the Trademarks and Future Trademarks and the use thereof; and
(h) all goodwill of Pledgors business connected with, symbolized by or in any way related to the items set forth in clauses (a) through (g) above.
All of the foregoing items set forth in clauses (a) through (h) are hereinafter referred to collectively as the Collateral .
AND Pledgor hereby covenants with Pledgee as follows:
1. Pledgors Obligations . Pledgor agrees that, notwithstanding this Agreement, it will perform and discharge and remain liable for all its covenants, duties, and obligations arising in connection with the Collateral and any licenses and agreements related thereto. Pledgee shall have no obligation or liability in connection with the Collateral or any licenses or agreements relating thereto by reason of this Agreement or any payment received by Pledgee or any Lender relating to the Collateral, nor shall Pledgee or any Lender be required to perform any covenant, duty, or obligation of Pledgor arising in connection with the Collateral or any license or
agreement related thereto or to take any other action regarding the Collateral or any such licenses or agreement.
2. Representations and Warranties . Pledgor represents and warrants to Pledgee that:
(a) Pledgor is the owner of the Collateral, and no adverse claims have been made with respect to its title to or the validity of the Collateral;
(b) the Trademarks are the only trademarks, trademark registrations, trademark applications and trade names in which Pledgor has all right, title and interest;
(c) none of the Collateral is subject to any prior mortgage, pledge, lien, security interest, lease, charge, encumbrance or license (by Pledgor as licensor), except for Pledgees interests granted hereunder and under the Existing Security Agreement; and
(d) when this Agreement is filed in the United States Patent and Trademark Office (the Trademark Office ) and the Pledgee has taken the other actions contemplated in this Agreement and by the Financing Agreements, if, and to the extent that a security interest may be perfected in such Collateral under applicable law this Agreement will create a legal and valid perfected and continuing lien on and security interest in the Collateral in favor of Pledgee (except for any non-U.S. Trademarks), enforceable against Pledgor and all third parties, subject to no other prior mortgage, lien, charge, encumbrance, or security or other interest.
3. Covenants . Pledgor will maintain the Collateral, defend the Collateral against the claims of all persons, and will maintain and renew all registrations of the Collateral; notwithstanding the foregoing, Pledgor will not be required to maintain, renew or defend any Collateral which, in Pledgors reasonable judgment, no longer has any material economic value. Pledgor will maintain at least the same standards of quality (which Pledgee has reviewed) for the goods and services in connection with which the Trademarks are used as Pledgor maintained for such goods and services prior to entering into this Agreement. Pledgee shall have the right to enter upon Pledgors premises as provided in the Financing Agreements to monitor such quality standards. Without limiting the generality of the foregoing, and so long as any Trademark or Future Trademark, in Pledgors reasonable judgment, has material economic value, Pledgor shall not permit the expiration, termination or abandonment of such Trademark or Future Trademark without the prior written consent of Pledgee. If, before the Obligations have been satisfied in full and the Financing Agreements have been terminated, Pledgor shall be licensed to use any new trademark, or become entitled to the benefit of any trademark application or trademark registration, the provisions of Section 1 hereof shall automatically apply thereto and Pledgor shall give Pledgee prompt notice thereof in writing.
4. Use Prior to Default . Effective until Pledgees exercise of its rights and remedies upon an Event of Default under and as defined in the Financing Agreements (an Event of Default ), Pledgor shall be entitled to use the Collateral in the ordinary course of its business, subject to the terms and covenants of the Financing Agreements and this Agreement.
5. Remedies Upon Default . Whenever any Event of Default shall occur and be continuing, Pledgee shall have all the rights and remedies granted to it in such event by the Financing Agreements, which rights and remedies are specifically incorporated herein by
reference and made a part hereof, and any and all rights and remedies of law available to Pledgee. Pledgee in such event may collect directly any payments due to Pledgor in respect of the Collateral and may sell, license, lease, assign, or otherwise dispose of the Collateral in the manner set forth in the Financing Agreements. Pledgor agrees that, in the event of any disposition of the Collateral upon and during the continuance of any such Event of Default, it will duly execute, acknowledge, and deliver all documents necessary or advisable to record title to the Collateral in any transferee or transferees thereof, including, without limitation, valid, recordable assignments of the Trademarks or Future Trademarks. In the event Pledgor fails or refuses to execute and deliver such documents, Pledgor hereby irrevocably appoints Pledgee as its attorney-in-fact, with power of substitution, to execute, deliver, and record any such documents on Pledgors behalf as provided in the Financing Agreements. Notwithstanding any provision hereof to the contrary, during the continuance of an Event of Default, Pledgor may sell any merchandise or services bearing the Trademarks and Future Trademarks in the ordinary course of its business and in a manner consistent with its past practices, until it receives written notice from Pledgee to the contrary. The preceding sentence shall not limit any right or remedy granted to Pledgee with respect to Pledgors inventory under the Financing Agreements or any other agreement now or hereinafter in effect.
6. Cumulative Remedies . The rights and remedies provided herein are cumulative and not exclusive of any other rights or remedies provided by law. The rights and remedies provided herein are intended to be in addition to and not in substitution of the rights and remedies provided by the Financing Agreements or any other agreement or instrument delivered in connection therewith.
7. Amendments and Waivers . This Agreement may not be modified, supplemented, or amended, or any of its provisions waived except in a writing signed by Pledgor and Pledgee. Pledgor hereby authorizes Pledgee to modify this Agreement by amending Exhibit A hereto to include any Future Trademarks.
8. Waiver of Rights . No course of dealing between the parties to this Agreement or any failure or delay on the part of any such party in exercising any rights or remedies hereunder shall operate as a waiver of any rights and remedies of such party or any other party, and no single or partial exercise of any rights or remedies by one party hereunder shall operate as a waiver or preclude the exercise of any other rights and remedies of such party or any other party. No waiver by Pledgee of any breach or default by Pledgor shall be deemed a waiver of any other previous breach or default or of any breach or default occurring thereafter.
9. Assignment . The provisions of this Agreement shall be binding upon and inure to the benefit of the respective successors and assigns of the parties hereto; provided, however, that no interest herein or in or to the Collateral may be assigned by Pledgor without the prior written consent of Pledgee; and, provided further, that Pledgee may assign the rights and benefits hereof to any party acquiring any interest in the Obligations or any part thereof.
10. Future Acts . Until the Obligations shall have been paid in full, Pledgor shall have the duty to make applications on material unregistered, but registrable as trademarks, Collateral owned by Pledgor in any location where Pledgor does business, to prosecute such applications diligently, and to preserve and maintain all rights in the material Trademarks and the other
material Collateral, except to the extent Pledgor reasonably determines that such Trademarks do not have any material economic value. Any expenses incurred in connection with such applications and other actions shall be borne by Pledgor. Pledgor shall not abandon any right to file a trademark application or registration for any trademark, or abandon any such pending trademark application or registration, without the consent of Pledgee, except to the extent that Pledgor reasonably determines that the trademark covered by such application or registration has no material economic value.
11. Enforcement . Upon Pledgors failure to do so after Pledgees demand, or upon the occurrence and during the continuance of an Event of Default, Pledgee shall have the right but shall in no way be obligated to bring suit in its own name to enforce the Trademarks and Future Trademarks and any license thereunder, having material economic value to the Pledgee, in which event Pledgor shall at the request of Pledgee do any and all lawful acts and execute any and all proper documents required by Pledgee in aid of such enforcement and Pledgor shall promptly, upon demand, reimburse and indemnify Pledgee or its agents for all costs and expenses incurred by Pledgee in the exercise of its rights under this Section 11.
12. Release . At such time as Pledgor shall completely satisfy all of the non-contingent Obligations, and the Financing Agreements have been terminated, other than upon enforcement of Pledgees remedies under the Financing Agreements after an Event of Default, Pledgee will, at Pledgors sole cost and expense, execute and deliver to Pledgor a release or other instrument as may be necessary or proper to release Pledgors lien in the Collateral, subject to any dispositions thereof which may have been made by Pledgee pursuant hereto and as may be necessary to record such release with the U.S. Patents and Trademarks Office, or equivalent authority.
13. Severability . If any clause or provision of this Agreement shall be held invalid or unenforceable, in whole or in part, in any jurisdiction, such invalidity or unenforceability shall attach only to such clause or provision, or part thereof, in such jurisdiction, and shall not in any manner affect such or any other clause or provision in any other jurisdiction.
14. Notices . All notices, requests and demands to or upon Pledgor or Pledgee under this Agreement shall be given in the manner prescribed by the Financing Agreements.
15. Governing Law . This Agreement shall be governed by and construed, applied, and enforced in accordance with the federal laws of the United States of America applicable to trademarks and the laws of the State of New York, except that no doctrine of choice of law shall be used to apply the laws of any other State or jurisdiction. The parties agree that all actions or proceedings arising in connection with this Agreement shall be tried and litigated only in the state and federal courts located in the State of New York, New York County, or in the United States District Court for the Southern District of New York, whichever Pledgee may elect (except that Pledgee shall have the right to bring any action or proceeding against Pledgor or its property in the courts of any other jurisdiction which Pledgee deems necessary or appropriate in order to realize on the Collateral or to otherwise enforce its rights against Pledgor or its property). PLEDGOR AND PLEDGEE EACH WAIVES THE RIGHT TO TRIAL BY JURY OF ANY CLAIM, DEMAND, ACTION, OR CAUSE OF ACTION ARISING UNDER THIS AGREEMENT, WHETHER NOW EXISTING OR HEREAFTER ARISING, AND ANY
RIGHT EITHER MAY HAVE TO ASSERT THE DOCTRINE OF FORUM NON CONVENIENS, LACK OF PERSONAL JURISDICTION, OR TO OBJECT TO VENUE TO THE EXTENT ANY PROCEEDING IS BROUGHT IN ACCORDANCE WITH THIS SECTION 15.
16. Counterparts, etc. This Agreement may be executed in any number of counterparts, each of which shall be an original, but all of which taken together shall constitute one and the same agreement. Delivery of an executed counterpart of this Agreement by telefacsimile shall have the same force and effect as the delivery of an original executed counterpart of this Agreement. Any party delivering an executed counterpart of this Agreement by telefacsimile shall also deliver an original executed counterpart, but the failure to do so shall not affect the validity, enforceability or binding effect of this Agreement.
17. Supplement . This Agreement is a supplement to, and is hereby incorporated into, the Financing Agreements and made a part thereof.
18. Interpretation . To the extent that any covenants set forth in Section 3 hereto, or representations or warranties set forth in Section 2 hereto are in direct conflict with the terms of any covenants, representations or warranties contained in the Financing Agreements, the terms of this Agreement shall control. To the extent any other provisions of this Agreement are in direct conflict with the terms of any other provisions of the Financing Agreements, the terms of the Financing Agreements shall control.
19. Acknowledgment and Restatement .
(a) Pledgor hereby acknowledges, confirms and agrees that Pledgor is indebted to Pledgee and Lenders in respect of any obligations, liabilities or indebtedness for loans, advances and letter of credit accommodations to Pledgee under the Existing Loan Agreement, the Existing Security Agreement or the other Existing Financing Agreements, together with all interest accrued and accruing thereon, and all fees, costs, expenses and other charges relating thereto, all of which are unconditionally owing by Pledgor to Pledgee without offset, defense, or counterclaim of any kind, nature or description whatsoever. Pledgor hereby ratifies, assents, adopts and agrees to pay all of the Obligations arising before, on or after the date hereof.
(b) Pledgor hereby acknowledges, confirms and agrees that Pledgee has and shall continue to have, for itself and the benefit of Lenders, valid, enforceable and perfected first priority security interests in and liens upon all of the Collateral heretofore granted to Pledgee pursuant to the Existing Security Agreement to secure all of the Obligations subject only to liens permitted under the Loan Agreement and the other Financing Agreements.
(c) Pledgor hereby acknowledges, confirms and agrees that: (i) the Existing Security Agreement has been duly executed and delivered by Pledgor and is in full force and effect as of the date hereof; (ii) the agreements and obligations of Pledgor contained in the Existing Security Agreement constitute legal, valid and binding obligations of Pledgor enforceable against it in accordance with the terms thereof, and Pledgor has no valid defense, offset or counterclaim to the enforcement of such obligations; and (iii) Pledgee and Lenders are
entitled to all of the rights, remedies and benefits provided for in the Existing Security Agreement.
(d) Except as otherwise stated in Section 19(b) hereof and in this Section 19(d), as of the date hereof, the terms, conditions, agreements, covenants, representations and warranties set forth in the Existing Security Agreement are hereby amended and restated in their entirety, and as so amended and restated, are replaced and superseded by the terms, conditions agreements, covenants, representations and warranties set forth in this Agreement, except that nothing herein shall impair or adversely affect the continuation of the liability of Pledgor for the obligations or the security interests and liens heretofore granted, pledged or assigned to Pledgee for itself and the benefit of Lenders. The amendment and restatement contained herein shall not, in any manner, be construed to constitute payment of, or impair, limit, cancel or extinguish, or constitute a novation in respect of, the indebtedness and other obligations and liabilities of Pledgor evidenced by or arising under the Existing Security Agreement and any of the other Existing Financing Agreements to which Pledgor is a party, and the liens and security interests securing such indebtedness and other obligations and liabilities shall not in any manner be impaired, limited, terminated, waived or released.
[REMAINDER OF PAGE INTENTIONALLY LEFT BLANK]
IN WITNESS WHEREOF, the parties have entered into this Agreement as of the date first written above.
|
PLEDGORS |
|
|
|
|
|
|
|
|
LERNER NEW YORK, INC., |
|
|
a Delaware corporation |
|
|
|
|
|
|
|
|
By: |
/s/ Ronald W. Ristau |
|
Name: |
Ronald W. Ristau |
|
Title: |
President, Chief Financial Officer and Secretary |
|
|
|
|
|
|
|
PLEDGEE |
|
|
|
|
|
|
|
|
WACHOVIA BANK, NATIONAL ASSOCIATION, as |
|
|
Agent |
|
|
|
|
|
|
|
|
By: |
/s/ Laurence Forte |
|
Name: |
Laurence Forte |
|
Title: |
Managing Director |
Trademarks
TM Rights (Grouped by country) |
|
Report Date: 8/23/2007 |
Country: |
|
Canada |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
ID |
|
Mark |
|
Classes |
|
Reg. Owner |
|
App. # |
|
App. Dt |
|
Reg. # |
|
Reg. Dt |
|
Allow. Dt |
|
ITU |
12638 |
|
CITY CREPE |
|
25 |
|
Lerner New York, Inc. |
|
1,244,680 |
|
1/25/2005 |
|
|
|
|
|
|
|
No |
12642 |
|
CITY SPA |
|
25 |
|
Lerner New York, Inc. |
|
1,244,681 |
|
1/25/2005 |
|
|
|
|
|
|
|
No |
11934 |
|
CITY STRETCH |
|
25 |
|
Lerner New York, Inc. |
|
1,200,819 |
|
12/30/2003 |
|
|
|
|
|
|
|
No |
Country: |
|
France |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
ID |
|
Mark |
|
Classes |
|
Reg. Owner |
|
App. # |
|
App. Dt |
|
Reg. # |
|
Reg. Dt |
|
Allow. Dt |
|
ITU |
12665 |
|
CITY CREPE |
|
25 |
|
Lerner New York, Inc. |
|
844,333 |
|
1/21/2005 |
|
844,333 |
|
4/7/2005 |
|
|
|
No |
12674 |
|
CITY SPA |
|
25 |
|
Lerner New York, Inc. |
|
844,334 |
|
1/21/2005 |
|
844,334 |
|
4/7/2005 |
|
|
|
No |
12656 |
|
CITY STRETCH |
|
25 |
|
Lerner New York, Inc. |
|
844,335 |
|
1/21/2005 |
|
844,335 |
|
4/7/2005 |
|
|
|
No |
Country: |
|
Germany |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
ID |
|
Mark |
|
Classes |
|
Reg. Owner |
|
App. # |
|
App. Dt |
|
Reg. # |
|
Reg. Dt |
|
Allow. Dt |
|
ITU |
12666 |
|
CITY CREPE |
|
25 |
|
Lerner New York, Inc. |
|
844,333 |
|
1/21/2005 |
|
844,333 |
|
4/7/2005 |
|
|
|
No |
12675 |
|
CITY SPA |
|
25 |
|
Lerner New York, Inc. |
|
844,334 |
|
1/21/2005 |
|
844,334 |
|
4/7/2005 |
|
|
|
No |
12657 |
|
CITY STRETCH |
|
25 |
|
Lerner New York, Inc. |
|
844,335 |
|
1/21/2005 |
|
844,335 |
|
4/7/2005 |
|
|
|
No |
Country: |
|
Guatemala |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
ID |
|
Mark |
|
Classes |
|
Reg. Owner |
|
App. # |
|
App. Dt |
|
Reg. # |
|
Reg. Dt |
|
Allow. Dt |
|
ITU |
12644 |
|
CITY CREPE |
|
25 |
|
Lerner New York, Inc. |
|
487-05 |
|
1/25/2005 |
|
138,693 |
|
10/28/2005 |
|
|
|
No |
12643 |
|
CITY SPA |
|
25 |
|
Lerner New York, Inc. |
|
486-05 |
|
1/25/2005 |
|
138,696 |
|
10/28/2005 |
|
|
|
No |
12007 |
|
CITY STRETCH |
|
25 |
|
Lerner New York, Inc. |
|
0320-04 |
|
1/20/2004 |
|
134,501 |
|
2/23/2005 |
|
|
|
No |
1332 |
|
DAVID BENJAMIN |
|
25 |
|
Lerner Stores, Inc. |
|
|
|
8/13/1987 |
|
55,589 |
|
8/12/1988 |
|
|
|
No |
Country: |
|
Hong Kong |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
ID |
|
Mark |
|
Classes |
|
Reg. Owner |
|
App. # |
|
App. Dt |
|
Reg. # |
|
Reg. Dt |
|
Allow. Dt |
|
ITU |
12698 |
|
CITY CREPE |
|
25 |
|
Lerner New York, Inc. |
|
300359811 |
|
1/25/2005 |
|
300359811 |
|
6/15/2005 |
|
|
|
No |
12697 |
|
CITY SPA |
|
25 |
|
Lerner New York, Inc. |
|
300359802 |
|
1/25/2005 |
|
300359802 |
|
6/15/2005 |
|
|
|
No |
11974 |
|
CITY STRETCH |
|
25 |
|
Lerner New York, Inc. |
|
300135044 |
|
12/30/2003 |
|
300135044 |
|
6/2/2004 |
|
|
|
No |
Country: |
|
Indonesia |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
ID |
|
Mark |
|
Classes |
|
Reg. Owner |
|
App. # |
|
App. Dt |
|
Reg. # |
|
Reg. Dt |
|
Allow. Dt |
|
ITU |
12878 |
|
CITY CREPE |
|
25 |
|
Lerner New York, Inc. |
|
D00-2005-04523-04561 |
|
2/17/2005 |
|
|
|
|
|
|
|
No |
12877 |
|
CITY SPA |
|
25 |
|
Lerner New York, Inc. |
|
D00-2005-04522-04560 |
|
2/17/2005 |
|
|
|
|
|
|
|
No |
12031 |
|
CITY STRETCH |
|
25 |
|
Lerner New York, Inc. |
|
D00-2004-00270-00271 |
|
1/7/2007 |
|
|
|
|
|
|
|
|
Country: |
|
Italy |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
ID |
|
Mark |
|
Classes |
|
Reg. Owner |
|
App. # |
|
App. Dt |
|
Reg. # |
|
Reg. Dt |
|
Allow. Dt |
|
ITU |
12667 |
|
CITY CREPE |
|
25 |
|
Lerner New York, Inc. |
|
844,333 |
|
1/21/2005 |
|
844,333 |
|
4/7/2005 |
|
|
|
No |
12676 |
|
CITY SPA |
|
25 |
|
Lerner New York, Inc. |
|
844,334 |
|
1/21/2005 |
|
844,334 |
|
4/7/2005 |
|
|
|
No |
12658 |
|
CITY STRETCH |
|
25 |
|
Lerner New York, Inc. |
|
844,335 |
|
1/21/2005 |
|
844,335 |
|
4/7/2005 |
|
|
|
No |
Country: |
|
Japan |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
ID |
|
Mark |
|
Classes |
|
Reg. Owner |
|
App. # |
|
App. Dt |
|
Reg. # |
|
Reg. Dt |
|
Allow. Dt |
|
ITU |
12668 |
|
CITY CREPE |
|
25 |
|
Lerner New York, Inc. |
|
844,333 |
|
1/21/2005 |
|
844,333 |
|
4/7/2005 |
|
|
|
No |
12677 |
|
CITY SPA |
|
25 |
|
Lerner New York, Inc. |
|
844,334 |
|
1/21/2005 |
|
844,334 |
|
4/7/2005 |
|
|
|
No |
12659 |
|
CITY STRETCH |
|
25 |
|
Lerner New York, Inc. |
|
844,335 |
|
1/21/2005 |
|
844,335 |
|
4/7/2005 |
|
|
|
No |
Country: |
|
Macao |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
ID |
|
Mark |
|
Classes |
|
Reg. Owner |
|
App. # |
|
App. Dt |
|
Reg. # |
|
Reg. Dt |
|
Allow. Dt |
|
ITU |
12825 |
|
CITY CREPE |
|
25 |
|
Lerner New York, Inc. |
|
N/16028 |
|
2/7/2005 |
|
N/16028 |
|
6/8/2005 |
|
|
|
No |
12826 |
|
CITY SPA |
|
25 |
|
Lerner New York, Inc. |
|
N/16029 |
|
2/7/2005 |
|
N/16029 |
|
6/8/2005 |
|
|
|
No |
12046 |
|
CITY STRETCH |
|
25 |
|
Lerner New York, Inc. |
|
N/012906 |
|
1/12/2004 |
|
N/012906 |
|
5/11/2004 |
|
|
|
No |
Country: |
|
Mexico |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
ID |
|
Mark |
|
Classes |
|
Reg. Owner |
|
App. # |
|
App. Dt |
|
Reg. # |
|
Reg. Dt |
|
Allow. Dt |
|
ITU |
13251 |
|
CITY CREPE |
|
25 |
|
Lerner New York, Inc. |
|
699,019 |
|
1/27/2005 |
|
|
|
|
|
|
|
No |
13252 |
|
CITY SPA |
|
25 |
|
Lerner New York, Inc. |
|
699,020 |
|
1/27/2005 |
|
875,034 |
|
3/31/2005 |
|
|
|
No |
14907 |
|
CITY STRETCH |
|
25 |
|
Lerner New York, Inc. |
|
851,073 |
|
4/26/2007 |
|
|
|
|
|
|
|
No |
Country: |
|
Nicaragua |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
ID |
|
Mark |
|
Classes |
|
Reg. Owner |
|
App. # |
|
App. Dt |
|
Reg. # |
|
Reg. Dt |
|
Allow. Dt |
|
ITU |
12972 |
|
CITY CREPE |
|
25 |
|
Lerner New York, Inc. |
|
2005/00625 |
|
2/28/2005 |
|
83,715 |
|
10/18/2005 |
|
|
|
No |
12977 |
|
CITY SPA |
|
25 |
|
Lerner New York, Inc. |
|
2005/00627 |
|
2/28/2005 |
|
83,655 |
|
10/18/2005 |
|
|
|
No |
12973 |
|
CITY STRETCH |
|
25 |
|
Lerner New York, Inc. |
|
2005/00626 |
|
2/28/2005 |
|
83,716 |
|
10/18/2005 |
|
|
|
No |
Country: |
|
Panama |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
ID |
|
Mark |
|
Classes |
|
Reg. Owner |
|
App. # |
|
App. Dt |
|
Reg. # |
|
Reg. Dt |
|
Allow. Dt |
|
ITU |
1341 |
|
DAVID BENJAMIN |
|
25 |
|
Lerner Stores, Inc. |
|
|
|
3/13/1987 |
|
43,716 |
|
4/8/1988 |
|
|
|
No |
1340 |
|
DAVID BENJAMIN |
|
18 |
|
Lerner Stores, Inc. |
|
|
|
3/12/1987 |
|
43,704 |
|
4/8/1988 |
|
|
|
No |
1339 |
|
DAVID BENJAMIN |
|
14 |
|
Lerner Stores, Inc. |
|
|
|
3/12/1987 |
|
43,703 |
|
4/8/1988 |
|
|
|
No |
Country: |
|
Philippines |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
ID |
|
Mark |
|
Classes |
|
Reg. Owner |
|
App. # |
|
App. Dt |
|
Reg. # |
|
Reg. Dt |
|
Allow. Dt |
|
ITU |
14182 |
|
CITY CREPE |
|
|
|
Lerner New York, Inc. |
|
4-2005-0000999 |
|
2/2/2005 |
|
|
|
|
|
|
|
No |
14920 |
|
CITY SPA |
|
25 |
|
Lerner New York, Inc. |
|
4-2005-000998 |
|
2/2/2005 |
|
4-2005-000998 |
|
4/28/2006 |
|
|
|
No |
12073 |
|
CITY STRETCH |
|
25 |
|
Lerner New York, Inc. |
|
4-2004-000206 |
|
1/9/2004 |
|
4-2004-000206 |
|
3/10/2006 |
|
|
|
No |
Country: |
|
Puerto Rico |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
ID |
|
Mark |
|
Classes |
|
Reg. Owner |
|
App. # |
|
App. Dt |
|
Reg. # |
|
Reg. Dt |
|
Allow. Dt |
|
ITU |
12981 |
|
CITY CREPE |
|
25 |
|
Lerner New York, Inc. |
|
64,560 |
|
3/8/2005 |
|
64,560 |
|
2/21/2006 |
|
|
|
No |
12982 |
|
CITY SPA |
|
25 |
|
Lerner New York, Inc. |
|
64,561 |
|
3/8/2005 |
|
64,561 |
|
2/21/2006 |
|
|
|
No |
12052 |
|
CITY STRETCH |
|
25 |
|
Lerner New York, Inc. |
|
60,138 |
|
2/2/2004 |
|
60,138 |
|
11/3/2005 |
|
|
|
No |
Country: |
|
South Korea |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
ID |
|
Mark |
|
Classes |
|
Reg. Owner |
|
App. # |
|
App. Dt |
|
Reg. # |
|
Reg. Dt |
|
Allow. Dt |
|
ITU |
12669 |
|
CITY CREPE |
|
25 |
|
Lerner New York, Inc. |
|
844,333 |
|
1/21/2005 |
|
844,333 |
|
4/7/2005 |
|
|
|
No |
12678 |
|
CITY SPA |
|
25 |
|
Lerner New York, Inc. |
|
844,334 |
|
1/21/2005 |
|
844,334 |
|
4/7/2005 |
|
|
|
No |
12660 |
|
CITY STRETCH |
|
25 |
|
Lerner New York, Inc. |
|
844,335 |
|
1/21/2005 |
|
844,335 |
|
4/7/2005 |
|
|
|
No |
Country: |
|
Spain |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
ID |
|
Mark |
|
Classes |
|
Reg. Owner |
|
App. # |
|
App. Dt |
|
Reg. # |
|
Reg. Dt |
|
Allow. Dt |
|
ITU |
12670 |
|
CITY CREPE |
|
25 |
|
Lerner New York, Inc. |
|
844,333 |
|
1/21/2005 |
|
844,333 |
|
4/7/2005 |
|
|
|
No |
12679 |
|
CITY SPA |
|
25 |
|
Lerner New York, Inc. |
|
844,334 |
|
1/21/2005 |
|
844,334 |
|
4/7/2005 |
|
|
|
No |
12661 |
|
CITY STRETCH |
|
25 |
|
Lerner New York, Inc. |
|
844,335 |
|
1/21/2005 |
|
844,335 |
|
4/7/2005 |
|
|
|
No |
Country: |
|
Sri Lanka |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
ID |
|
Mark |
|
Classes |
|
Reg. Owner |
|
App. # |
|
App. Dt |
|
Reg. # |
|
Reg. Dt |
|
Allow. Dt |
|
ITU |
12892 |
|
CITY CREPE |
|
25 |
|
Lerner New York, Inc. |
|
123,755 |
|
2/8/2005 |
|
|
|
|
|
|
|
No |
12893 |
|
CITY SPA |
|
25 |
|
Lerner New York, Inc. |
|
123,753 |
|
2/8/2005 |
|
|
|
|
|
|
|
No |
12891 |
|
CITY STRETCH |
|
25 |
|
Lerner New York, Inc. |
|
123,754 |
|
2/8/2005 |
|
|
|
|
|
|
|
No |
Country: |
|
Taiwan |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
ID |
|
Mark |
|
Classes |
|
Reg. Owner |
|
App. # |
|
App. Dt |
|
Reg. # |
|
Reg. Dt |
|
Allow. Dt |
|
ITU |
12730 |
|
CITY CREPE |
|
25 |
|
Lerner New York, Inc. |
|
94004484 |
|
1/28/2005 |
|
1,175,833 |
|
10/1/2005 |
|
|
|
No |
12729 |
|
CITY SPA |
|
25 |
|
Lerner New York, Inc. |
|
94004485 |
|
1/28/2005 |
|
1,175,834 |
|
10/1/2005 |
|
|
|
No |
12731 |
|
CITY STRETCH |
|
25 |
|
Lerner New York, Inc. |
|
94004482 |
|
1/28/2005 |
|
1,175,832 |
|
10/1/2005 |
|
|
|
No |
Country: |
|
United Kingdom |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
ID |
|
Mark |
|
Classes |
|
Reg. Owner |
|
App. # |
|
App. Dt |
|
Reg. # |
|
Reg. Dt |
|
Allow. Dt |
|
ITU |
12671 |
|
CITY CREPE |
|
25 |
|
Lerner New York, Inc. |
|
844,333 |
|
1/21/2005 |
|
844,333 |
|
4/7/2005 |
|
|
|
No |
12680 |
|
CITY SPA |
|
25 |
|
Lerner New York, Inc. |
|
844,334 |
|
1/21/2005 |
|
844,334 |
|
4/7/2005 |
|
|
|
No |
12662 |
|
CITY STRETCH |
|
25 |
|
Lerner New York, Inc. |
|
844,335 |
|
1/21/2005 |
|
844,335 |
|
4/7/2005 |
|
|
|
No |
Country: |
|
United States |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
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|
|
|
|
|
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|
|
|
|
|
|
|
|
|
ID |
|
Mark |
|
Classes |
|
Reg. Owner |
|
App. # |
|
App. Dt |
|
Reg. # |
|
Reg. Dt |
|
Allow. Dt |
|
ITU |
14894 |
|
CHELSEA CHIC |
|
3 |
|
Lerner New York, Inc. |
|
77/182,801 |
|
5/16/2007 |
|
|
|
|
|
|
|
Yes |
14941 |
|
CITY BEAUTY |
|
3 |
|
Lerner New York, Inc. |
|
77/245,507 |
|
8/2/2007 |
|
|
|
|
|
|
|
Yes |
11541 |
|
CITY CREPE |
|
25 |
|
Lerner New York, Inc. |
|
78/273,754 |
|
7/14/2003 |
|
2,862,833 |
|
7/13/2004 |
|
|
|
No |
14713 |
|
CITY MOODS |
|
3 |
|
Lerner New York, Inc. |
|
77/006,335 |
|
9/25/2006 |
|
|
|
|
|
|
|
Yes |
14898 |
|
CITY MOODS |
|
4 |
|
Lerner New York, Inc. |
|
77/179,195 |
|
5/11/2007 |
|
|
|
|
|
|
|
No |
11544 |
|
CITY SPA |
|
25 |
|
Lerner New York, Inc. |
|
78/273,779 |
|
7/14/2003 |
|
2,858,086 |
|
6/29/2004 |
|
|
|
No |
11365 |
|
CITY STRETCH |
|
25 |
|
Lerner New York, Inc. |
|
76/502,113 |
|
3/26/2003 |
|
2,912,135 |
|
12/21/2004 |
|
|
|
No |
14762 |
|
CITY STYLE |
|
14,25 |
|
Lerner New York, Inc. |
|
77/045,359 |
|
11/16/2006 |
|
|
|
|
|
|
|
No |
14905 |
|
DOWNTOWN DARLING |
|
3 |
|
Lerner New York, Inc. |
|
77/193,891 |
|
5/31/2007 |
|
|
|
|
|
|
|
Yes |
14903 |
|
EMPIRE DREAM |
|
3 |
|
Lerner New York, Inc. |
|
77/193,888 |
|
5/31/2007 |
|
|
|
|
|
|
|
Yes |
14897 |
|
FABULOUS ON FIFTH |
|
3 |
|
Lerner New York, Inc. |
|
77/183,988 |
|
5/17/2007 |
|
|
|
|
|
|
|
Yes |
14901 |
|
GOTHAM GODDESS |
|
3 |
|
Lerner New York, Inc. |
|
77/182,820 |
|
5/16/2007 |
|
|
|
|
|
|
|
Yes |
13442 |
|
GREAT STYLE. GREAT VALUE. ALWAYS SEXY. |
|
35 |
|
Lerner New York, Inc. |
|
78/672,385 |
|
7/18/2005 |
|
3,109,349 |
|
6/27/2006 |
|
|
|
No |
14387 |
|
LEFT POCKET STITCHING DESIGN |
|
25 |
|
Lerner New York, Inc. |
|
78/847,060 |
|
3/27/2006 |
|
3,263,673 |
|
7/10/2007 |
|
|
|
No |
14393 |
|
LEFT WAVE STITCHING DESIGN |
|
25 |
|
Lerner New York, Inc. |
|
78/849,251 |
|
3/29/2006 |
|
3,263,679 |
|
7/10/2007 |
|
|
|
No |
14904 |
|
MANHATTAN MOMENT |
|
3 |
|
Lerner New York, Inc. |
|
77/193,876 |
|
5/31/2007 |
|
|
|
|
|
|
|
Yes |
14902 |
|
MISS MANHATTAN |
|
3 |
|
Lerner New York, Inc. |
|
77/182,833 |
|
5/16/2007 |
|
|
|
|
|
|
|
Yes |
6203 |
|
NEW YORK & COMPANY |
|
35 |
|
Lerner New York, Inc. |
|
75/648,424 |
|
2/23/1999 |
|
2,507,567 |
|
11/13/2001 |
|
|
|
Yes |
4996 |
|
NEW YORK JEANS |
|
25 |
|
Lerner New York, Inc. |
|
74/641,983 |
|
3/3/1995 |
|
2,714,767 |
|
5/13/2003 |
|
|
|
Yes |
6978 |
|
NY JEANS NEW YORK & COMPANY |
|
25 |
|
Lerner New York, Inc. |
|
720,617 |
|
6/3/1999 |
|
2,387,472 |
|
9/19/2000 |
|
|
|
No |
9701 |
|
NY JEANS NEW YORK & COMPANY |
|
25 |
|
Lerner New York, Inc. |
|
78/034,551 |
|
11/9/2000 |
|
2,573,780 |
|
5/28/2002 |
|
|
|
Yes |
14947 |
|
REFRESH, INDULGE & PAMPER |
|
35 |
|
Lerner New York, Inc. |
|
77/255,645 |
|
8/15/2007 |
|
|
|
|
|
|
|
Yes |
14386 |
|
RIGHT POCKET STITCHING DESIGN |
|
25 |
|
Lerner New York, Inc. |
|
78/847,085 |
|
3/27/2006 |
|
3,263,674 |
|
7/10/2007 |
|
|
|
No |
14394 |
|
RIGHT WAVE STITCHING DESIGN |
|
25 |
|
Lerner New York, Inc. |
|
78/849,306 |
|
3/29/2006 |
|
3,263,680 |
|
7/10/2007 |
|
|
|
No |
14896 |
|
UPTOWN ANGEL |
|
3 |
|
Lerner New York, Inc. |
|
77/182,846 |
|
5/16/2007 |
|
|
|
|
|
|
|
Yes |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Country: |
|
Vietnam |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
ID |
|
Mark |
|
Classes |
|
Reg. Owner |
|
App. # |
|
App. Dt |
|
Reg. # |
|
Reg. Dt |
|
Allow. D t |
|
ITU |
12834 |
|
CITY CREPE |
|
25 |
|
Lerner New York, Inc. |
|
4-2005-01222 |
|
1/31/2005 |
|
75,950 |
|
10/10/2006 |
|
|
|
No |
12835 |
|
CITY SPA |
|
25 |
|
Lerner New York, Inc. |
|
4-2005-01223 |
|
1/31/2005 |
|
75,951 |
|
10/10/2006 |
|
|
|
No |
11976 |
|
CITY STRETCH |
|
25 |
|
Lerner New York, Inc. |
|
4-2004-00110 |
|
1/5/2004 |
|
62,940 |
|
5/23/2005 |
|
|
|
No |
Country: |
|
WIPO |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
ID |
|
Mark |
|
Classes |
|
Reg. Owner |
|
App. # |
|
App. Dt |
|
Reg. # |
|
Reg. Dt |
|
Allow. Dt |
|
ITU |
12663 |
|
CITY CREPE |
|
25 |
|
Lerner New York, Inc. |
|
844,333 |
|
1/21/2005 |
|
844,333 |
|
4/7/2005 |
|
|
|
No |
12672 |
|
CITY SPA |
|
25 |
|
Lerner New York, Inc. |
|
844,334 |
|
1/21/2005 |
|
844,334 |
|
4/7/2005 |
|
|
|
No |
12654 |
|
CITY STRETCH |
|
25 |
|
Lerner New York, Inc. |
|
844,335 |
|
1/21/2005 |
|
844,335 |
|
4/7/2005 |
|
|
|
No |
SPECIAL POWER OF ATTORNEY
STATE OF NEW YORK |
) |
|
) ss.: |
COUNTY OF NEW YORK |
) |
KNOW ALL MEN BY THESE PRESENTS, that LERNER NEW YORK, INC. (Debtor), having an office at 450 West 33 rd Street, New York, New York 10001 hereby appoints and constitutes, severally, WACHOVIA BANK, NATIONAL ASSOCIATION, as Agent (Secured Party), and each of its officers, its true and lawful attorney, with full power of substitution and with full power and authority to perform the following acts on behalf of Debtor:
1. Execution and delivery of any and all agreements, documents, instrument of assignment, or other papers which Secured Party, in its discretion, deems necessary or advisable for the purpose of assigning, selling, or otherwise disposing of all right, title, and interest of Debtor in and to any trademarks and all registrations, recordings, reissues, extensions, and renewals thereof, or for the purpose of recording, registering and filing of, or accomplishing any other formality with respect to the foregoing.
2. Execution and delivery of any and all documents, statements, certificates or other papers which Secured Party, in its discretion, deems necessary or advisable to further the purposes described in Subparagraph 1 hereof.
This Power of Attorney is made pursuant to the Amended and Restated Collateral Assignment of Trademarks, dated of even date herewith, between Debtor and Secured Party (the Security Agreement) and is subject to the terms and provisions thereof. This Power of Attorney, being coupled with an interest, is irrevocable until all Obligations, as such term is defined in the Security Agreement, are paid in full and the Security Agreement is terminated in writing by Secured Party.
Dated: August 22, 2007 |
|
|
|
|
|
|
LERNER NEW YORK, INC. |
|
|
|
|
|
By: |
/s/ Ronald W. Ristau |
|
Title: |
President, Chief Financial Officer and Secretary |
STATE OF NEW YORK |
) |
|
) ss.: |
COUNTY OF NASSAU |
) |
On this 22 nd day of August 2007, before me personally came Ronald W. Ristau, to me known, who being duly sworn, did depose and say, that he is the President & CFO of LERNER NEW YORK, INC., the corporation described in and which executed the foregoing instrument; and that he signed his name thereto by order of the Board of Directors of said corporation.
|
/s/ Eve R. Abarca |
|
Notary Public |
|
EVE R. ABARCA |
|
Notary Public, State of New York |
|
No. 41-4988110 |
|
Qualified in Nassau County |
|
Commission Expires November 4, 2009 |
Exhibit 10.32
[Execution]
AMENDMENT NO. 2
TO
SECOND AMENDED AND RESTATED LOAN AND SECURITY AGREEMENT
This AMENDMENT NO. 2 TO SECOND AMENDED AND RESTATED LOAN AND SECURITY AGREEMENT (this Amendment), dated as of October 19, 2010, is entered into by and among Lerner New York, Inc., a Delaware corporation (Lerner), Lernco, Inc., a Delaware corporation (Lernco), and Lerner New York Outlet, Inc., formerly known as Jasmine Company, Inc., a Massachusetts corporation (Lerner Outlet and together with Lerner and Lernco, collectively, Borrowers and individually each a Borrower), the Lenders (as defined in the Loan Agreement), and Wells Fargo Bank, National Association, a national banking association, successor by merger to Wachovia Bank, National Association, in its capacity as agent for the Lenders and the Bank Product Providers (in such capacity, Agent).
W I T N E S S E T H :
WHEREAS, Borrowers, New York & Company, Inc., a Delaware corporation, (NY&Co), Lerner New York Holding, Inc., a Delaware corporation (Parent), Nevada Receivable Factoring, Inc., a Nevada corporation (Nevada Factoring), Associated Lerner Shops of America, Inc., a New York corporation (Associated Lerner), and Lerner New York GC, LLC, an Ohio limited liability company (Lerner GC and together with NY&Co, Parent, Nevada Factoring and Associated Lerner, collectively, Guarantors and each a Guarantor), Lenders, Agent, Bank of America, N.A., as successor by merger to LaSalle Business Credit, LLC, as Agent for LaSalle Bank Midwest National Association, acting through its division, LaSalle Retail Finance, in its capacity as documentation agent for Lenders (in such capacity, Documentation Agent), have entered into financing arrangements pursuant to which Lenders (or Agent on behalf of Lenders) may make loans and advances and provide other financial accommodations to Borrowers as set forth in the Second Amended and Restated Loan and Security Agreement, dated as of August 22, 2007, among Borrowers, Guarantors, Lenders, Agent and Documentation Agent (as the same now exists and may hereafter be amended, modified, supplemented, extended, renewed, restated or replaced, the Loan Agreement) and the other agreements, documents and instruments referred to therein or any time executed and/or delivered in connection therewith or related thereto, including this Amendment (all of the foregoing, together with the Loan Agreement, as the same now exist or may hereafter be amended, modified, supplemented, extended, renewed, restated or replaced, being collectively referred to herein as the Financing Agreements);
WHEREAS, Borrowers and Guarantors have requested that Agent and Lenders make certain amendments to the Loan Agreement and the other Financing Agreements, and Agent and Lenders are willing to agree to such amendments, subject to the terms and conditions contained herein; and
WHEREAS, the parties hereto desire to enter into this Amendment to evidence and effectuate such amendments, subject to the terms and conditions and to the extent set forth herein;
NOW, THEREFORE, in consideration of the premises and covenants set forth herein and other good and valuable consideration, the receipt and sufficiency of which is hereby acknowledged, the parties hereto agree as follows:
Section 1. Definitions .
1.1 Additional Definition . Section 1 of the Loan Agreement is hereby amended by adding the following definition:
Lerner Outlet shall mean Lerner New York Outlet, Inc., a Massachusetts corporation, formerly known as Jasmine Company, Inc., and its successors and assigns.
1.2 Amendments to Definitions .
(a) All references to Jasmine in the Loan Agreement and the other Financing Agreements are hereby redesignated to be Lerner Outlet.
(b) All references to Wachovia Bank, National Association, as a Lender in the Loan Agreement and the other Financing Agreements are hereby redesignated to be Wells Fargo Bank, National Association, successor by merger to Wachovia Bank, National Association.
(c) All references to Wachovia Capital Markets, LLC in the Loan Agreement and the other Financing Agreements are hereby redesignated to be Wells Fargo Bank, National Association.
(d) The definition of Agent in Section 1.6 of the Loan Agreement is hereby replaced with the following:
Agent shall mean Wells Fargo Bank, National Association, a national banking association, successor by merger to Wachovia Bank, National Association, in its capacity as agent on behalf of Lenders pursuant to the terms hereof, and any replacement or successor agent hereunder.
(e) The definition of Borrowing Base in Section 1.20 of the Loan Agreement is hereby replaced with the following:
Borrowing Base shall mean, at any time, the amount equal to:
(a) the lesser of:
(i) the amount equal to:
(A) the lesser of (1) the sum of (x) ninety percent (90%) of the Net Amount of Eligible Sell-Off Vendors Receivables of Borrowers, plus (y) ninety percent (90%) of the Net Amount of Eligible Damaged Goods Vendors Receivables of Borrowers, and (2) $4,000,000, plus
(B) ninety percent (90%) of the Net Amount of the Eligible Credit Card Receivables of Borrowers, plus
(C) the lesser of:
(1) the Inventory Loan Limit or
(2) the lesser of:
(y) the sum of:
(i) ninety percent (90%) multiplied by the sum of (A) the Value of the Eligible Landed Inventory of Borrowers minus (B) the amount of shrinkage and/or material variances in Inventory counts with respect to Eligible Landed Inventory of Borrowers as determined by Agent, plus
(ii) the lesser of (aa) the sum of (I) ninety percent (90%) multiplied by the Landed Value of Eligible In-Transit Inventory of Borrowers, plus (II) ninety percent (90%) multiplied by the Landed Value of Eligible In-Transit LC Inventory of Borrowers, or (bb) $30,000,000, or
(z) ninety percent (90%) (or ninety two and one-half percent (92.5%) during the Seasonal Advance Period) of the Net Recovery Percentage applicable to such categories of Inventory of Borrowers multiplied by the Value of such Eligible Inventory of Borrowers as reflected on the most recent appraisal of the Inventory received and accepted by Agent prior to the date of calculation, plus
(D) one hundred percent (100%) of Eligible Cash Collateral; or
(ii) the Revolving Loan Limit, minus ,
(b) the Reserves and the Bank Product Reserves.
Notwithstanding the foregoing, (a) as to Lerner Outlet, in no event will the amount of Revolving Loans available exceed $7,000,000; provided, that, if Agent determines that upon receipt of an appraisal delivered in accordance with Section 7.3 of this Agreement which reflects that the Inventory of Lerner Outlet is of the same type and quality of the Inventory of Lerner and Lernco, such $7,000,000 sublimit shall no longer be effective, and (b) each of the percentages specified in clauses (a)(i)(A) through (C) of this definition shall be five percent (5%) less than the amounts set forth in such clauses until such time as the Existing Term Loan and all Obligations related thereto are indefeasibly paid and satisfied in full in immediately available funds.
For purposes of this definition, the advance rates set forth in subparagraph (a)(i)(C)(2) above will be subject to be decreased, upon Agent providing not less than ten (10) Business Days prior telephonic or electronic notice only to Borrowers, based on the results satisfactory to Agent of appraisals of the Inventory conducted in accordance with Section 7.3 hereof and to be conducted on a going out of business sale basis, net of liquidation expenses, at the expense of Borrowers, conducted by appraisers acceptable to Agent. For purposes only of applying the Inventory Loan Limit, Agent may treat the then undrawn amounts of outstanding Letter of Credit Accommodations for the purpose of purchasing Eligible Inventory as Revolving Loans to the extent Agent is in effect basing the issuance of the Letter of Credit Accommodations on the Value of the Eligible Inventory being purchased with such Letter of Credit Accommodations. In determining the actual amounts of such Letter of Credit Accommodations to be so treated for purposes of the sublimit, the outstanding Revolving Loans and Reserves shall be attributed first to any components of the lending formulas set forth above that are not subject to such sublimit, before being attributed to the components of the lending formulas subject to such sublimit. The amounts of Eligible Inventory shall be determined based on the lesser of the amount of Inventory set forth in the general ledgers of Borrowers or the perpetual inventory records maintained by Borrowers. Agent shall have the right to establish Reserves against or sublimits in the Borrowing Base in such amounts and with respect to such matters as Agent in its sole discretion shall deem necessary or appropriate, at all times and after Agent has completed its updated field audits, examinations and appraisals of the Collateral; provided, however, that, so long as an Availability Compliance Period does not exist, Agent shall only give to Borrowers ten (10) Business Days telephonic or electronic notice if (a) Agent establishes Reserves relating to new categories of Reserves, (b) Agent changes the methodology of calculating Reserves, or (c) Agent establishes sublimits in the Borrowing Base. The foregoing notwithstanding, in the event Agent is required to establish Reserves to preserve or protect or maximize the value of the Collateral, Agent shall only provide Borrowers with notice at the time such Reserve is established.
(f) The definition of New Term Agent in Section 1.138 of the Loan Agreement is hereby replaced with the following:
New Term Loan Agent shall mean Wells Fargo Bank, National Association, a national banking association, successor by merger to Wachovia Bank, National Association or such other financial institution reasonably acceptable to Agent, in its capacity as administrative agent acting for and on behalf of the New Term Loan Lenders pursuant to the New Term Loan Agreement and any replacement or successor agent thereunder.
(g) The definition of Prime Rate in Section 1.160 of the Loan Agreement is hereby replaced with the following:
Prime Rate shall mean the rate from time to time publicly announced by Wells Fargo Bank, National Association, or its successors, as its prime rate, whether or not such announced rate is the best rate available at such bank.
(h) The definition of Issuing Bank in Section 1.102 of the Loan Agreement is hereby replaced with the following:
Reference Bank shall mean Wells Fargo Bank, National Association, or such other bank as Agent may from time to time designate.
(i) The definition of Wachovia in Section 1.203 of the Loan Agreement is hereby replaced with the following:
Wells shall mean Wells Fargo Capital Finance, LLC, a national banking association, successor by merger to Wachovia Bank, National Association, in its individual capacity, and its successors and assigns.
(j) The definition of Wachovia in Section 1.203 of the Loan Agreement is hereby replaced with the following:
Wells Fargo shall mean Wells Fargo Bank, National Association, a national banking association, successor by merger to Wachovia Bank, National Association, in its individual capacity, and its successors and assigns.
1.3 Interpretation . All capitalized terms used herein and not defined herein shall have the meanings given to such terms in the Loan Agreement.
Section 2. Perfection of Security Interest . Section 5.2(b) of the Loan Agreement is hereby amended by deleting the reference to Wachovia Bank, National Association and replacing it with Wells Fargo Bank, National Association.
Section 3. Sale of Assets . Section 9.7(b)(x) of the Loan Agreement is hereby replaced with the following: [Intentionally Omitted].
Section 4. Notices . The notice information of Agent set forth in Section 14.3 of the Loan Agreement and in any of the other Financing Agreements is hereby with the following:
If to Agent: |
Wells Fargo Bank, National Association, as Agent |
|
One Boston Place, 19 th Floor |
|
Boston, Massachusetts 02108 |
|
Attention: Portfolio Manager- Lerner New York, Inc. |
|
Telephone No.: (617) 854-7238 |
|
Telecopy No.: (617) 523-4027 |
Section 5. Lerner Outlet . Borrowers have not been including any assets of Jasmine in the Borrowing Base and have not requested that Lenders make any Loans to Jasmine. Borrowers have informed Agent that Jasmine has changed its name to Lerner New York Outlet, Inc. and that Lerner Outlet will be including Eligible Accounts and Eligible Inventory in the Borrowing Base that are of the same type or category and quality as are presently included as Eligible Accounts or Eligible Inventory of Lerner and Lernco. Borrowers and Guarantors acknowledge that Agent may conduct a field exam or require an appraisal or an update to any existing appraisal with respect to the Eligible Accounts and Eligible Inventory of Lerner Outlet.
Section 6. Conditions Precedent . Concurrently with the execution and delivery hereof, and as a further condition to the effectiveness of this Amendment and the agreement of Agent to the modifications and amendments set forth in this Amendment, each of the following conditions precedent, in a manner satisfactory to Agent:
6.1 Agent shall have received, in form and substance satisfactory to Agent, an executed copy of an original or executed original counterparts of this Amendment by electronic mail or facsimile (with the originals to be delivered within five (5) Business Days after the date hereof), duly authorized, executed and delivered by each Borrower, Guarantor and Required Lenders; and
6.2 as of the date of this Amendment, no Default or Event of Default shall exist or shall have occurred and be continuing.
Section 7. Additional Representations, Warranties and Covenants . Each Borrower and Guarantor represents, warrants and covenants with, to and in favor of Agent as follows, which representations, warranties and covenants are continuing and shall survive the execution and delivery hereof, the truth and accuracy of, or compliance with each, together with the representations, warranties and covenants in the other Financing Agreements, being a condition of the effectiveness of this Amendment and a continuing condition of the making or providing of any Revolving Loans or Letters of Credit by Agent and Lenders to Borrowers:
7.1 This Amendment and each other agreement or instrument to be executed and delivered by Borrowers or Guarantors hereunder have been duly authorized, executed and delivered by all necessary action on the part of Borrowers and Guarantors which is a party hereto and thereto and, if necessary, their respective stockholders, and is in full force and effect as of the date hereof, as the case may be, and the agreements and obligations of Borrowers or Guarantors, as the case may be, contained herein and therein constitute legal, valid and binding obligations of Borrowers and Guarantors, as the case may be, enforceable against them in accordance with their terms.
7.2 All of the representations and warranties set forth in the Loan Agreement as amended hereby, and the other Financing Agreements, are true and correct in all material respects after giving effect to the provisions of this Amendment, except to the extent any such representation or warranty is made as of a specified date, in which case such representation or warranty shall have been true and correct as of such date.
7.3 Borrowers and Guarantors are not required to obtain any consents, waivers or approvals to the transactions contemplated by this Amendment from any other Person with respect to any agreement, mortgage, instrument with any other Person to which any Borrower or Guarantor is a party or may be bound.
7.4 Borrowers and Guarantors have delivered to Agent (a) a true and correct copy of the amendment to articles of incorporation of Lerner Outlet, as filed and recorded with the Secretary of State of the Commonwealth of Massachusetts reflecting the change of name of Jasmine Company, Inc. to Lerner New York Outlet, Inc. as certified by such Secretary of State, and (b) evidence, in form and substance satisfactory to Agent, that Lerner Outlet has filed an amendment
to each of its certificates of authority to business as a foreign corporation in all of the jurisdictions in which Lerner Outlet has qualified to do business as a foreign corporation.
7.5 As of the date hereof, Borrowers and Guarantors hereby represent and warrant that no liens, claims, mortgages, pledges, security interests, encumbrances or charges of any kind or nature have been incurred or exist on any of the assets and properties of Lerner Outlet, other than those permitted under the Loan Agreement.
7.6 Within thirty (30) days after the date hereof, Borrowers shall have delivered to Agent evidence, in form and substance satisfactory to Agent, that Borrowers have taken all steps necessary to preserve or protect the security interest or lien of Agent in any of the assets or property of Lerner Outlet, including, without limitation, (a) any filings with the United States Patent and Trademark Office to reflect the change of name of Jasmine Company, Inc. to Lerner New York Outlet, Inc. of any trademarks owned by Lerner Outlet, and (b) arranging for a Credit Card Acknowledgment to be delivered to Bank of America, N.A. with respect to the credit processing services provided in connection with Credit Card Receivables arising from payments by customers using MasterCard or VISA bank credit or debit cards. If requested by Agent, Borrower shall deliver to Agent promptly any changes to the stock certificates or stock powers previously delivered to Agent to reflect the change of name of Jasmine Company, Inc. to Lerner New York Outlet, Inc.
7.7 No Default or Event of Default exists or has occurred and is continuing as of the date of this Amendment.
Section 8. Acknowledgments by Guarantors . Each Guarantor hereby expressly and specifically ratifies, restates and confirms the terms and conditions of the Amended and Restated Guarantee, dated August 22, 2007, by Guarantors in favor of Agent and Lenders, as heretofore amended, modified, supplemented, extended, renewed, restated or replaced, the Guarantee), in favor of Agent and Lenders and its liability for all of the Guaranteed Obligations (as defined in the Guarantee), and all other obligations, liabilities, agreements and covenants thereunder. Each Guarantor hereby acknowledges, confirms and agrees that as of the date hereof and after giving effect to the terms of this Amendment, the Guarantee guaranteeing the payment and performance of all Obligations of Borrowers are in full force and effect.
Section 9. Effect of this Amendment . This Amendment constitutes the entire agreement of the parties with respect to the subject matter hereof, and supersedes all prior oral or written communications, memoranda, proposals, negotiations, discussions, term sheets and commitments with respect to the subject matter hereof. Except as expressly provided herein, no other changes or modifications to the Loan Agreement or any of the other Financing Agreements, or waivers of or consents under any provisions of any of the foregoing, are intended or implied by this Amendment, and in all other respects the Financing Agreements are hereby specifically ratified, restated and confirmed by all parties hereto as of the effective date of this Amendment. The applicable provisions of this Amendment and the Loan Agreement shall be read and interpreted as one agreement. To the extent that any provision of the Loan Agreement or any of the other Financing Agreements conflicts with any provision of this Amendment, the provision of this Amendment shall control.
Section 10. Further Assurances . Borrowers and Guarantors shall execute and deliver such additional documents and take such additional action as may be reasonably requested by Agent to effectuate the provisions and purposes of this Amendment.
Section 11. Governing Law . The validity, interpretation and enforcement of this Amendment in any dispute arising out of the relationship between the parties hereto, whether in contract, tort, equity or otherwise shall be governed by the internal laws of the State of New York, without regard to any principle of conflict of laws or other rule of law that would result in the application of the law of any jurisdiction other than the State of New York. Without in any way limiting the foregoing, the parties elect to be governed by New York law in accordance with, and relying on (at least in part), Sections 5-1401 and 5-1402 of the General Obligations Law of the State of New York.
Section 12. Binding Effect . This Amendment shall be binding upon and inure to the benefit of each of the parties hereto and their respective successors and assigns.
Section 13. Counterparts . This Amendment may be executed in one or more counterparts, each of which when so executed shall be deemed to be an original but all of which when taken together shall constitute one and the same instrument. In making proof of this Amendment, it shall not be necessary to produce or account for more than one counterpart hereof signed by each of the parties hereto. This Amendment may be executed and delivered by telecopier (or other electronic transmission of a manually executed counterpart) with the same force and effect as if it were a manually executed and delivered counterpart. Any party delivering an executed counterpart of this Amendment by telecopier (or other electronic transmission of a manually executed counterpart) shall also deliver an original executed counterpart of this Amendment, but the failure to deliver an original executed counterpart shall not affect the validity, enforceability, and binding effect of this Amendment as to such party or any other party.
[REMAINDER OF THIS PAGE INTENTIONALLY LEFT BLANK]
IN WITNESS WHEREOF, the parties hereto have caused this Amendment to be executed on the day and year first written.
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BORROWERS: |
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LERNER NEW YORK, INC. |
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By: |
/s/ Sheamus Toal |
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Title: |
EVP, Chief Financial Officer, Treasurer and Secretary |
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LERNCO, INC. |
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By: |
/s/ Sheamus Toal |
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Title: |
President |
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LERNER NEW YORK OUTLET, INC. |
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By: |
/s/ Sheamus Toal |
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Title: |
EVP, Chief Financial Officer and Treasurer |
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ACKNOWLEDGED AND AGREED TO: |
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GUARANTORS |
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NEW YORK & COMPANY, INC. |
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By: |
/s/ Sheamus Toal |
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Title: |
EVP, Chief Financial Officer |
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LERNER NEW YORK HOLDING, INC. |
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By: |
/s/ Sheamus Toal |
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Title: |
EVP, Chief Financial Officer |
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NEVADA RECEIVABLE FACTORING, INC. |
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By: |
/s/ Sheamus Toal |
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Title: |
President and Chief Financial Officer |
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[Signature Page to Amendment No. 2 to Second
Amended and Restated Loan and Security Agreement]
[SIGNATURES CONTINUED ON NEXT PAGE]
[SIGNATURES CONTINUED FROM PREVIOUS PAGE]
ASSOCIATED LERNER SHOPS OF AMERICA, INC. |
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By: |
/s/ Sheamus Toal |
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Title: |
Assistant Secretary |
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LERNER NEW YORK GC, LLC |
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By: |
/s/ Sheamus Toal |
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Title: |
Treasurer |
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AGENT and LENDERS
WELLS FARGO BANK, NATIONAL ASSOCIATION, successor by merger to Wachovia Bank, National Association, as Agent and a Lender |
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By: |
/s/ Danielle Baldinelli |
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Vice President |
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BANK OF AMERICA, N.A., as a Lender |
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By: |
/s/ Matt Potter |
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Vice President |
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[Signature Page to Amendment No. 2 to Second
Amended and Restated Loan and Security Agreement]
Consent of Independent Registered Public Accounting Firm
We consent to the incorporation by reference, in the Registration Statements (Form S-8 No. 333-119803 and Form S-8 No. 333-163266), pertaining to the New York & Company, Inc. and subsidiaries Amended and Restated 2002 Stock Option Plan and the Amended and Restated 2006 Long-Term Incentive Plan, respectively, of our reports dated April 11, 2011, with respect to the consolidated financial statements and schedule of New York & Company, Inc. and subsidiaries, and the effectiveness of internal control over financial reporting of New York & Company, Inc. and subsidiaries included in this Annual Report (Form 10-K) for the year ended January 29, 2011.
/s/ Ernst & Young LLP
New
York, New York
April 11, 2011
I, Gregory Scott, certify that:
1. I have reviewed this Annual Report on Form 10-K of New York & Company, Inc.;
2. Based on my knowledge, this report does not contain any untrue statement of a material fact or omit to state a material fact necessary to make the statements made, in light of the circumstances under which such statements were made, not misleading with respect to the period covered by this report;
3. Based on my knowledge, the financial statements, and other financial information included in this report, fairly present in all material respects the financial condition, results of operations and cash flows of the registrant as of, and for, the periods presented in this report;
4. The registrant's other certifying officer(s) and I are responsible for establishing and maintaining disclosure controls and procedures (as defined in Exchange Act Rules 13a-15(e) and 15d-15(e)) and internal control over financial reporting (as defined in Exchange Act Rules 13a-15(f) and 15d-15(f)) for the registrant and have:
(a) Designed such disclosure controls and procedures, or caused such disclosure controls and procedures to be designed under our supervision, to ensure that material information relating to the registrant, including its consolidated subsidiaries, is made known to us by others within those entities, particularly during the period in which this report is being prepared;
(b) Designed such internal control over financial reporting, or caused such internal control over financial reporting to be designed under our supervision, to provide reasonable assurance regarding the reliability of financial reporting and the preparation of financial statements for external purposes in accordance with generally accepted accounting principles;
(c) Evaluated the effectiveness of the registrant's disclosure controls and procedures and presented in this report our conclusions about the effectiveness of the disclosure controls and procedures, as of the end of the period covered by this report based on such evaluation; and
(d) Disclosed in this report any change in the registrant's internal control over financial reporting that occurred during the registrant's most recent fiscal quarter (the registrant's fourth fiscal quarter in the case of an annual report) that has materially affected, or is reasonably likely to materially affect, the registrant's internal control over financial reporting; and
5. The registrant's other certifying officers and I have disclosed, based on our most recent evaluation of internal control over financial reporting, to the registrant's auditors and the audit committee of the registrant's board of directors (or persons performing the equivalent functions):
(a) All significant deficiencies and material weaknesses in the design or operation of internal control over financial reporting which are reasonably likely to adversely affect the registrant's ability to record, process, summarize and report financial information; and
(b) Any fraud, whether or not material, that involves management or other employees who have a significant role in the registrant's internal control over financial reporting.
Date: April 11, 2011
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/s/ GREGORY SCOTT
Gregory Scott Chief Executive Officer |
I, Sheamus Toal, certify that:
1. I have reviewed this Annual Report on Form 10-K of New York & Company, Inc.;
2. Based on my knowledge, this report does not contain any untrue statement of a material fact or omit to state a material fact necessary to make the statements made, in light of the circumstances under which such statements were made, not misleading with respect to the period covered by this report;
3. Based on my knowledge, the financial statements, and other financial information included in this report, fairly present in all material respects the financial condition, results of operations and cash flows of the registrant as of, and for, the periods presented in this report;
4. The registrant's other certifying officer(s) and I are responsible for establishing and maintaining disclosure controls and procedures (as defined in Exchange Act Rules 13a-15(e) and 15d-15(e)) and internal control over financial reporting (as defined in Exchange Act Rules 13a-15(f) and 15d-15(f)) for the registrant and have:
(a) Designed such disclosure controls and procedures, or caused such disclosure controls and procedures to be designed under our supervision, to ensure that material information relating to the registrant, including its consolidated subsidiaries, is made known to us by others within those entities, particularly during the period in which this report is being prepared;
(b) Designed such internal control over financial reporting, or caused such internal control over financial reporting to be designed under our supervision, to provide reasonable assurance regarding the reliability of financial reporting and the preparation of financial statements for external purposes in accordance with generally accepted accounting principles;
(c) Evaluated the effectiveness of the registrant's disclosure controls and procedures and presented in this report our conclusions about the effectiveness of the disclosure controls and procedures, as of the end of the period covered by this report based on such evaluation; and
(d) Disclosed in this report any change in the registrant's internal control over financial reporting that occurred during the registrant's most recent fiscal quarter (the registrant's fourth fiscal quarter in the case of an annual report) that has materially affected, or is reasonably likely to materially affect, the registrant's internal control over financial reporting; and
5. The registrant's other certifying officers and I have disclosed, based on our most recent evaluation of internal control over financial reporting, to the registrant's auditors and the audit committee of the registrant's board of directors (or persons performing the equivalent functions):
(a) All significant deficiencies and material weaknesses in the design or operation of internal control over financial reporting which are reasonably likely to adversely affect the registrant's ability to record, process, summarize and report financial information; and
(b) Any fraud, whether or not material, that involves management or other employees who have a significant role in the registrant's internal control over financial reporting.
Date:
April 11, 2011
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/s/ SHEAMUS TOAL
Sheamus Toal Executive Vice President and Chief Financial Officer |
Certification Pursuant to 18 U.S.C. Section 1350
As adopted pursuant to Section 906 of the Sarbanes-Oxley Act of 2002
Solely for the purposes of complying with 18 U.S.C. Section 1350, as adopted pursuant to Section 906 of the Sarbanes-Oxley Act of 2002, we, the undersigned Chief Executive Officer and Executive Vice President and Chief Financial Officer of New York & Company, Inc. (the "Company"), hereby certify, based on our knowledge, that the Annual Report on Form 10-K of the Company for the year ended January 29, 2011 (the "Report") fully complies with the requirements of Section 13(a) or 15(d) of the Securities Exchange Act of 1934, as amended and that information contained in the Report fairly presents, in all material respects, the financial condition and results of operations of the Company.
Date:
April 11, 2011
/s/ GREGORY SCOTT
Gregory Scott Chief Executive Officer |
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/s/ SHEAMUS TOAL Sheamus Toal Executive Vice President and Chief Financial Officer |