Where does the Potbelly Sandwich Works FDD define the term 'Survival Period'?
Potbelly_Sandwich_Works Franchise · 2025 FDDAnswer from 2025 FDD Document
Section 10.01 Survival. The representations, warranties, covenants and agreements made by the Parties in this Agreement shall survive the Closing to the extent provided for in this Section 10.01 (the applicable survival period, the "Survival Period").
(a) All of the representations and warranties of Seller contained in this Agreement shall survive the Closing for a period of eighteen (18) months following the Closing Date, except that the representation and warranties of Seller contained in Section 4.11 (Environmental Matters) shall survive the Closing until the expiration of the statute of limitations applicable to the matters covered thereby.
- (b) All of the representations and warranties of Purchaser and Guarantor contained in this Agreement shall survive until the expiration or termination of all Purchaser Franchise Agreements or, if earlier, until the latest date permitted by applicable Law.
- (c) All covenants and agreements contained in this Agreement that by their terms are to be performed at or after the Closing shall survive the Closing until fully discharged or, if earlier, the latest date permitted by applicable Law. All other covenants or agreements made by the Parties in this Agreement shall not survive the Closing and shall terminate and expire at the Closing.
- (d) Upon the expiration of the applicable Survival Period, the representations, warranties, covenants and agreements made by the Parties in this Agreement shall expire, and all claims for any breach of such representations, warranties, covenants or agreements shall be deemed waived unless a Claims Notice with respect to the breach shall have been given to the breaching Party in accordance with Section 10.05(a) or Section 10.05(b) prior to the expiration of such Survival Period, in which event such representations, warranties, covenants or agreements shall survive to the extent of the Claim referred to in such notice until such Claim has been resolved.
Source: Item 23 — RECEIPTS (FDD pages 79–355)
What This Means (2025 FDD)
According to Potbelly Sandwich Works's 2025 Franchise Disclosure Document, the 'Survival Period' is defined within Section 10.01, titled 'Survival'. This section clarifies that the representations, warranties, covenants, and agreements made by the parties involved in the Asset Purchase Agreement will remain in effect after the closing date, but only to the extent specified in Section 10.01. The 'Survival Period' is the applicable timeframe for these surviving obligations.
Specifically, the representations and warranties made by the seller (Potbelly Sandwich Works, LLC) are set to survive the closing for a period of eighteen months following the closing date. However, an exception exists for representations and warranties related to environmental matters, as outlined in Section 4.11. These particular representations and warranties will remain in effect until the statute of limitations applicable to those environmental issues expires.
Conversely, the representations and warranties made by the purchaser and guarantor will remain in effect until the expiration or termination of all Purchaser Franchise Agreements or, if earlier, until the latest date permitted by applicable law. All covenants and agreements within the agreement that are to be performed at or after the closing will survive the closing until they are fully discharged or until the latest date allowed by law, if earlier. Any other covenants or agreements not explicitly stated to survive will terminate at the time of closing.
It's important to note that upon the expiration of the applicable Survival Period, all representations, warranties, covenants, and agreements expire, and any claims for breach are waived unless a Claims Notice has been given to the breaching party before the Survival Period ends. If a Claims Notice is properly given, the relevant representations, warranties, covenants, or agreements will continue to survive, but only to the extent of the claim referred to in the notice, until the claim is resolved.