Clause primer
Survival clause
It states which representations, warranties, covenants and indemnities continue in force after closing, repayment or termination, and for how long.
Legal information, not legal advice. What a clause does depends on its exact words, the rest of the agreement and the governing law.
Also called: survival of representations and warranties, survival provision, continuing obligations clause. Where you find it: Credit agreements, note purchase agreements, receivables purchase agreements, M&A agreements, and most commercial contracts with indemnities or confidentiality obligations.
SAMPLE CLAUSE (INVENTED FOR THIS PRIMER)
All representations and warranties made in this Agreement shall survive the Closing Date and the making of each Purchase, and shall continue in effect so long as any Obligation remains outstanding. The indemnities in Section 9, the confidentiality obligations in Section 11 and the provisions of Sections 13.4 (Limited Recourse) and 13.5 (Non-Petition) shall survive the termination of this Agreement and the payment in full of all Obligations. Any claim for breach of a representation or warranty must be notified in writing before the expiry of its survival period.
How it works
Representations survive closing
Without this wording, there is a risk that representations are treated as merging into the closing and ending there. The sample extends them while obligations remain outstanding, which is common in finance documents.
Named surviving provisions
Indemnities, confidentiality and SPV protections are listed by section. Check that every provision meant to survive is named, including expense reimbursement, tax and governing law.
Termination and repayment
The survival runs past both termination and payment in full. These are separate events, and the clause should cover each.
Notice requirement
A claim must be notified before the survival period ends. Some agreements also require suit to be filed within the period, which is a stricter test.
Why it is there
Contracts often end before all their risks do. A survival clause keeps indemnities, confidentiality and protective provisions alive after the main obligations end, and it can also set a deadline for bringing claims. In M&A deals the survival period often works as a contractual limitations period; in finance documents it mainly keeps protections in force for as long as money is owed and for set periods after.
How it works with other clauses
- It works with the indemnity clause: an indemnity that does not survive may be lost when the agreement ends.
- A survival period that is shorter than the statutory limitations period may operate as a contractual limit on claims, subject to governing law.
- Fraud carve-outs often extend or remove the survival limit for fraudulent misrepresentation.
- Limited recourse and non-petition provisions in SPV documents must survive repayment to give the protection they are designed for.
Negotiating it
Who it protects: The party relying on representations or indemnities (usually lenders, purchasers and buyers)
If it protects you
- Make indemnities, tax provisions and confidentiality survive without time limit or for a long, defined period.
- Avoid a requirement to file suit within the survival period; a written notice should be enough.
- Exclude fraud from any survival cut-off.
If it runs against you
- Standard ask: a defined survival period for general representations, with longer periods only for fundamental and tax representations; fallback is a single fixed period for all representations.
- Ask that covenants survive only to the extent they are expressed to apply after termination.
- Require claims to be notified with reasonable detail before the period ends.
Escalate before accepting: Unlimited survival of all representations and covenants with no notice requirement, because the giving party then carries open-ended exposure.
What AI explanations get wrong
- Assuming representations survive without an express clause. Check governing law and the agreement for merger or survival language.
- Treating a survival period as the same as a limitations period. Check whether claims must be notified, or filed, within it.
- Missing provisions that should survive but are not listed. Check confidentiality, tax, expenses, limited recourse and governing law.
- Applying an M&A survival analysis to a finance document. Check the context; in finance documents survival is often tied to repayment.
Where the law varies
Whether parties can shorten or extend the statutory limitations period by a survival clause, and how courts read survival language that is silent on claim deadlines, differs by state, so check the governing law.
TOOLS
Need a primer like this for a clause in front of you? The Clause Primer Kit, included in All-access, produces one in this format inside the AI tool you already use, with checks built in. For reviewing whole agreements, see the Agent Kit 1: Contract Review and Negotiation.