Acquisition Task Checklist

MODEL STANDSTILL/TOLLING AGREEMENT

(Not Annotated)

Jonathan C. Lipson and Norman M. Powell*

Introduction

The agreement below is a form which parties in a contractual relationship may quickly and easily use as a basis to preserve their relationship while the economy restabilizes following the disruption caused by the COVID-19 crisis. It does not speak to all issues that contract parties might face, but is intended to be a starting point that parties can use efficiently, preferably in consultation with a lawyer.

The form of agreement below is intended to be used either in an electronic or paper format, as the parties prefer. We have indicated below places where the parties must or may tailor the agreement to their specific needs.

This version contains the language of the model agreement only, without annotation. We recommend that you read the annotated version of this model agreement, here, which provides guidance on how to complete this form.

This model agreement is provided as general information and should not be construed as legal advice on any specific matter or as creating an attorney-client relationship. Before relying on general legal information or deciding on legal action, consider retaining a qualified attorney to consider your specific legal needs.

* Jonathan C. Lipson is the Harold E. Kohn Professor of Law at, Temple University-Beasley School of Law, where he teaches Contracts, Bankruptcy, Corporations, Commercial Law, Lawyering for Entrepreneurship, International Business Transactions, and a variety of other business law courses. Professor Lipson is a member of the American Law Institute and a Fellow in the American College of Commercial Finance Lawyers, and is active with the Business Law Section of the American Bar Association where, from 2011 to 2017, he was Section Content Officer.

Norman M. Powell is a partner in the Delaware law firm of Young Conaway Stargatt & Taylor, LLP, where his practice includes formation of and service as Delaware counsel to corporations, limited liability companies, and statutory trusts, and the delivery of legal opinions relating to such entities, security interests, and other matters of Delaware law. Mr. Powell is a member of the American Law Institute, the immediate past-president of the America College of Commercial Finance Lawyers, a member of the Permanent Editorial Board on the Uniform Commercial Code, and is active with the Business Law Section of the American Bar Association, for which he currently serves as Section Content Officer.

The views expressed herein are those of the authors and are not necessarily those of any organization with which either of them is affiliated. © 2020 American Bar Association. May be reprinted with permission with attribution.

STANDSTILL AND TOLLING AGREEMENT

THIS AGREEMENT (the “Standstill Agreement”), made this day of , 2020, by and between (“Debtor”) and (“Creditor”).

WITNESSETH:

WHEREAS, Debtor and Creditor are parties to that certain , dated as of (collectively with the additional documents, if any, identified in and required or contemplated thereby, the “Underlying Agreement”); and

WHEREAS, Debtor and Creditor recognize that the COVID-19 pandemic has caused, or may cause, substantial disruptions in commercial relationships; and

WHEREAS, such disruptions may result in the breach of contracts between Debtor and Creditor which may, in turn, result in efforts to enforce rights or remedies under the Underlying Agreement, including legal actions such as self-help foreclosure, litigation, arbitration or other legal proceedings, whether by claim, counterclaim, demand, action or cause of action concerning the Underlying Agreement (collectively, “Legal Action”); and

WHEREAS, Debtor and Creditor wish to avoid Legal Action for a period of time during which their respective rights and duties under the Underlying Agreement will be frozen by and as set forth in this Standstill Agreement.

NOW, THEREFORE, in consideration of the mutual promises set forth herein, and other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the parties hereto, intending to be bound, agree as follows:

Scope: This Standstill Agreement covers the rights and obligations provided for in the Underlying Agreement and those reasonably anticipated to arise with respect to the Underlying Agreement during the Term (as defined below) of this Standstill Agreement. For later reference, such matters are defined as the “Standstill Issues.” This Standstill Agreement does not address other rights or obligations as between the parties.
Term and Termination: This Standstill Agreement shall take effect as of its date and shall continue for unless earlier terminated by mutual agreement of the parties (the “Standstill Period”).
Creditor’s Standstill and Tolling: During the Standstill Period, Creditor shall not take Legal Action against the Debtor. Any applicable statute of limitation, statute of repose, or other period of time relevant to either party’s exercise of rights or remedies under or in connection with the Underlying Agreement is tolled for the Standstill Period. The Creditor agrees that it will not transfer its rights under the Underlying Agreement or this Standstill Agreement during the Standstill Period.
Debtor’s Non-ordinary Course Acts or Omissions: Except for relief efforts described in Paragraph 5, during the Standstill Period, the Debtor shall not engage in any transactions not in the ordinary course of its business, and in particular shall not transfer property or grant consensual liens or security interests or similar encumbrances on its property, except in the ordinary course of its business. During the Standstill Period, the Debtor further agrees not to engage in any transaction that results in a change of control of the Debtor. Such transactions include, without limitation, a merger, sale of the equity interests in the Debtor (if it is an entity), or a sale of all or substantially all of the assets of the Debtor, in any one (1) transaction or series of related transactions. Debtor shall not take Legal Action against the Creditor during the Standstill Period.
Good Faith Negotiations and Collaboration. During the Standstill Period, the parties agree to engage in good faith negotiations to resolve the Standstill Issues and, if appropriate, to support one another’s efforts to obtain new financing or other relief that may facilitate performance under the Underlying Agreement.
Interim Consideration: During the Standstill Period, the Debtor agrees to provide to the Creditor During the Standstill Period, the Creditor agrees to provide to the Debtor .
Breach: Any violation of Paragraph 3 by the Creditor shall be a “Creditor Breach” of this Standstill Agreement. Any violation of Paragraph 4 by the Debtor shall be a “Debtor Breach” of this Standstill Agreement.
Remedies. In the event of a Debtor Breach, the Creditor may pursue any Legal Action under the Underlying Agreement the same as if the parties had not entered into this Standstill Agreement. In the event of a Creditor Breach, the Creditor forfeits rights (including the right to interest or penalties) and remedies that would have accrued during the Standstill Period but for this Standstill Agreement.
Representations and Warranties. Each party represents and warrants that it has the power and authority to enter into this Standstill Agreement and that, when executed and delivered, this Standstill Agreement shall be the legally binding obligation of such party, enforceable in accordance with its terms.
Electronic Forms and Signatures. This Standstill Agreement can be executed by manual signature or authenticated by any electronic signature or other method effective under the law controlling the Underlying Agreement.
Notices: During the Standstill Period, the Creditor shall provide any notice to the Debtor regarding this Standstill Agreement as follows . During the Standstill Period, the Debtor shall provide any notice to the Creditor regarding this Standstill Agreement as follows .

By: _____________