Corporate & Securities Law

?From Time to Time?

By Ken Adams

In this November 2007 post, I suggested that the phrase at any time is always extraneous. Well, the same goes for from time to time.

Used With Language of Discretion

The phrase from time to time is used to mean, in essence, “on one or more occasions.” It?s only used with language of discretion, as it wouldn?t make sense to obligate someone to do something on one or more occasions.

The idea is that from time to time serves to make it clear, with respect to a given right, that a party isn?t limited to exercising that right just once.

But often, that?s not an issue.

First, and most obviously, repeated exercise of a right isn?t possible in the case of a right that by its nature can only be exercised once, as in Acme may terminate this agreement in the following circumstances.

Second, if a right allows a party to engage in an ongoing process, it would be odd to state that the party may exercise that right on one or more occasions. If a contracts says Acme may sell Widgets to any Person outside the Territory, you couldn?t reasonably claim that Acme had exhausted that right after having sold one lot of 1,000 widgets.

Third, use of the word any can make it clear, without recourse to from time to time, that a party may exercise a given right on more than one occasion. An example: The Agent may make any Advances to the Borrower on behalf of the Lenders that the Agent deems necessary or desirable to preserve or protect the Collateral.

What does that leave? Instances in which a party is granted a right to take a given action and there?s nothing in the language to preclude the other party from arguing that it?s a one-time-only right.

But in such contexts, I wouldn?t use from time to time. It means ?once in a while.? A party may in fact exercise its right episodically, but it may equally well exercise it, for example, twice in quick succession. Instead, I?d use on one or more occasions:

The Bank may from time to time on one or more occasions adjust the Advance Rate based on changes in its collection experience with respect to Accounts or other factors relating to the Accounts or other Collateral.

A Borrower’s Representative may from time to time on one or more occasions deliver to the Agent a Notice of Borrowing or a Notice of Continuation/Conversion.

The Issuer may without the consent of the Bondholders from time to time on one or more occasions create and issue further Bonds having identical terms and conditions as the Bonds already issued (except for the issue date and the first payment of interest on them).

The presumption should be that absent any language indicating otherwise, a right may be exercised multiple times. But it?s best to make it explicit, so as to avoid giving a desperate litigant even a weak argument to make.

But sometimes, given the context, it?s so clear that the right isn?t a one-time-only right that you don?t need to say so explicitly:

The Maker may on one or more occasions prepay all or any portion of the Principal or Interest of this Note to the Holder without premium or penalty.

Use in Restrictive Relative Clauses

From time to time also occurs in restrictive relative clauses modifying a noun phrase. (They?re a fruitful source of redundancy: see MSCD 3.58 and 3.114.)

Here are three examples:

Each party shall execute and deliver any instruments and take any actions that the other party from time to time reasonably requests to carry out the terms of this agreement.

Grantees under the Plan will be those directors, officers, and other employees of the Company that the Committee selects from time to time.

Subject to the Executive’s complying with such policies regarding expenses and expense reimbursement as the Company adopts from time to time, the Executive may incur reasonable expenses in performing his duties under this agreement.

In each case I?ve stricken from time to time. That?s because restrictive relative clauses are used to refer to an actual state of affairs, and anything beyond that is excess baggage that should either be dropped or addressed elsewhere.

Relation to “At Any Time”

By the way, note that drafters might use at any time in an attempt to convey the same meaning as from time to time. Click here to see reader Troy’s comment about that. But at any time is certainly no improvement on from time to time.

Full post as published by AdamsDrafting on January 08, 2008 (boomark / email).