Under what conditions is a waiver deemed to have been made regarding the Del Taco Sublease?
Del_Taco Franchise · 2025 FDDAnswer from 2025 FDD Document
No waiver by a party of any covenant or condition or breach of any covenant or condition of this Agreement shall constitute a waiver of any subsequent breach or nonobservance on any other occasion of the same or any other covenant or condition of this Agreement.
Subsequent acceptance by Del Taco of payments due it shall constitute a waiver by Del Taco of any prior breach.
Whenever this Agreement requires Del Taco's prior approval or consent, the Developer shall make a timely written request to Del Taco for the approval or consent, which Del Taco shall grant, if at all, only in writing.
Del Taco makes no warranties or guarantees, and assumes no liability or obligation to the Franchisee, by providing any waiver, approval, consent or suggestion to the Developer in connection with this Agreement or by reason of any neglect, delay or denial of any request.
Source: Item 23 — RECEIPTS (FDD pages 59–325)
What This Means (2025 FDD)
According to the 2025 Del Taco Franchise Disclosure Document, a waiver regarding any covenant, condition, or breach of the Franchise Agreement is not automatic. Specifically, a waiver by Del Taco of any covenant or condition or breach of any covenant or condition of the agreement does not constitute a waiver of any subsequent breach or nonobservance on any other occasion of the same or any other covenant or condition of the agreement. This means that if Del Taco overlooks a violation once, it doesn't mean they waive their right to enforce that rule in the future.
Furthermore, the FDD states that subsequent acceptance by Del Taco of payments due to it constitutes a waiver by Del Taco of any prior breach. This implies that if a franchisee is in breach of contract but Del Taco continues to accept royalty or other payments, Del Taco waives its right to claim a breach for that specific instance.
For a Del Taco franchisee, this means that any request for approval or consent must be made in writing. Del Taco is not obligated to provide any waiver, approval, consent, or suggestion to the Developer and assumes no liability to the Franchisee by providing any waiver, approval, consent, or suggestion to the Developer in connection with this Agreement or by reason of any neglect, delay or denial of any request. It also means that even if Del Taco accepts payments from a franchisee who was previously in breach, Del Taco does not waive its rights regarding future breaches.