to Contributor by Recipient in exchange for
Contributor's performance hereunder. Contributor has given Recipient material
concessions regarding this transaction in exchange for Recipient agreeing to the
provisions of this Section 5.2.2.
Each party has initialed this Section 5.2.2 to further indicate their awareness
and acceptance of each and every provision of this Section 5.2.2.
/s/ AH
/s/ LP
Contributor's Initials
Recipient's Initials
5.2.3.
Limitation of Damages; Waiver of Consequential Damages. TO THE MAXIMUM
EXTENT PERMITTED UNDER THE LAWS OF THE STATE OF CALIFORNIA, AND SUBJECT TO THE
PROVISIONS OF SECTION 7.1 BELOW, THE PARTIES AGREE TO LIMIT THE LIABILITY OF
EACH PARTY, WHETHER SINGULARLY, COLLECTIVELY OR IN ANY COMBINATION WHATSOEVER,
TO THE OTHER FOR ANY AND ALL DAMAGES, LOSSES, LIABILITIES, COSTS OR EXPENSES
WHATSOEVER, AND CLAIMS THEREFOR, WHETHER DIRECT OR INDIRECT, KNOWN OR UNKNOWN,
OR FORESEEN OR UNFORESEEN, INCLUDING, WITHOUT LIMITATION, ATTORNEYS' FEES AND
DISBURSEMENTS, AND EXPERT WITNESS FEES AND COSTS, SO THAT THE TOTAL AGGREGATE
LIABILITY OF EITHER PARTY TO THE OTHER UNDER THIS AGREEMENT AND THE TRANSACTION
CONTEMPLATED THEREUNDER SHALL NOT EXCEED THE CUMULATIVE SUM OF NINETY THOUSAND
DOLLARS AND NO CENTS ($90,000.00) (THE "CAP"). AGAIN TO THE MAXIMUM EXTENT
PERMITTED UNDER THE LAWS OF THE STATE OF CALIFORNIA AND SUBJECT TO THE CAP AND
THE PROVISIONS OF SECTION 7.1 BELOW, EACH PARTY ALSO AGREES TO WAIVE THE RIGHTS
TO SEEK AND TO BE ENTITLED TO RECOVER FROM THE OTHER GROUP CONSEQUENTIAL,
EXEMPLARY, INCIDENTAL, PUNITIVE AND/OR SPECIAL DAMAGES. THE LIMITATION OF
DAMAGES AND THE WAIVER
SAN JOAQUIN FARMS, LLC/GLADSTONE LAND LIMITED PARTNERSHIP
CONTRIBUTION AGREEMENT (C&B 090516)
PAGE 26 OF 58
OF CONSEQUENTIAL, EXEMPLARY, INCIDENTAL, PUNITIVE AND/OR SPECIAL DAMAGES
CONTAINED IN THIS SECTION 5.2.3 SHALL APPLY: (a) REGARDLESS OF THE CAUSE OF
ACTION OR LEGAL THEORY PLED OR ASSERTED EXCEPT FOR FRAUD; AND, (b) BOTH TO: (i)
EACH PARTY'S DUTIES, OBLIGATIONS OR RESPONSIBILITIES UNDER THIS AGREEMENT; AND,
(ii) TO ANY PROPERTY DOCUMENTS DELIVERED PURSUANT TO THIS AGREEMENT.
/s/ AH
/s/ LP
Contributor's Initials
Recipient's Initials
5.3
Effect of Contrary Actual Knowledge on Representations. Contributor shall
have no liability to Recipient by reason of any breached or inaccurate
representation or warranty made by either Contributor in this Agreement, in any
of the Property Documents, or in any other documents delivered in connection
with the applicable Closing if, prior to such Closing, Recipient has or comes to
have (from whatever source, including, due diligence investigations or
inspections, or the written disclosure by a Contributor or its agents or
employees) actual knowledge of such breach or inaccuracy, and Recipient
nevertheless consummates the subject Closing.
5.4.
Indemnification.
5.4.1.
By Contributor. Subject to Sections 5.4.3 and 5.4.4, Contributor shall
waive any claim against Recipient for, and shall indemnify, hold harmless and
defend Recipient against any claim, loss, damage or expense, including, without
limitation, any and all reasonable attorneys' fees and disbursements, asserted
against or suffered by Recipient resulting from the following: (i) any breach by
Contributor of this Agreement; (ii) any liability or obligation of Contributor
to a third party that Recipient is