address shall be effective until actual receipt of such
notice. Copies of notices are for informational purposes only, and a failure to
give or receive copies of any notice shall not be deemed a failure to give
notice.
9.6
TIME OF ESSENCE. TIME IS OF THE ESSENCE OF
THIS AGREEMENT.
9.7
COUNTERPARTS. THIS AGREEMENT MAY BE EXECUTED
IN TWO OR MORE COUNTERPARTS, EACH OF WHICH SHALL BE DEEMED AN ORIGINAL, BUT ALL
OF WHICH TOGETHER SHALL CONSTITUTE ONE AND THE SAME INSTRUMENT.
9.8
CAPTIONS. THE CAPTIONS IN THIS AGREEMENT ARE
INSERTED FOR CONVENIENCE OF REFERENCE AND IN NO WAY DEFINE, DESCRIBE OR LIMIT
THE SCOPE OR INTENT OF THIS AGREEMENT OR ANY OF THE PROVISIONS HEREOF.
9.9
BINDING EFFECT. THIS AGREEMENT SHALL BE
BINDING UPON AND INURE TO THE BENEFIT OF THE PARTIES HERETO AND THEIR RESPECTIVE
LEGAL REPRESENTATIVES, SUCCESSORS AND PERMITTED ASSIGNS.
9.10
ENTIRE AGREEMENT; MODIFICATIONS. THIS AGREEMENT
CONTAINS THE ENTIRE AGREEMENT BETWEEN THE PARTIES RELATING TO THE TRANSACTIONS
CONTEMPLATED HEREBY AND ALL PRIOR OR CONTEMPORANEOUS AGREEMENTS, UNDERSTANDINGS,
REPRESENTATIONS OR STATEMENTS, ORAL OR WRITTEN, ARE SUPERSEDED HEREBY. NO
WAIVER, MODIFICATION AMENDMENT, DISCHARGE OR CHANGE OF THIS AGREEMENT SHALL BE
VALID UNLESS THE SAME IS IN WRITING AND SIGNED BY THE PARTY AGAINST WHICH THE
ENFORCEMENT OF SUCH MODIFICATION, WAIVER, AMENDMENT DISCHARGE OR CHANGE IS
SOUGHT.
9.11
PARTIAL INVALIDITY. ANY PROVISION OF THIS
AGREEMENT WHICH IS UNENFORCEABLE OR INVALID OR THE INCLUSION OF WHICH WOULD
AFFECT THE VALIDITY, LEGALITY OR ENFORCEMENT OF THIS AGREEMENT SHALL BE OF NO
EFFECT, BUT ALL THE REMAINING PROVISIONS OF THIS AGREEMENT SHALL REMAIN IN FULL
FORCE AND EFFECT.
9.12
DISCHARGE OF OBLIGATIONS. EXCEPT AS OTHERWISE
EXPRESSLY PROVIDED HEREIN, THE ACCEPTANCE OF THE DEED BY PURCHASER AT CLOSING
SHALL BE DEEMED TO BE A FULL PERFORMANCE AND DISCHARGE OF EVERY REPRESENTATION,
WARRANTY AND COVENANT MADE BY SELLER HEREIN AND EVERY AGREEMENT AND OBLIGATION
ON THE PART OF SELLER TO BE PERFORMED PURSUANT TO THE PROVISIONS HEREOF, AND
SUCH REPRESENTATIONS, WARRANTIES AND COVENANTS SHALL BE DEEMED TO MERGE INTO THE
DOCUMENTS DELIVERED AT CLOSING.
9.13
NO RELATIONSHIP WITH KIMPTON. SELLER AND KIMPTON
HAVE ENTERED INTO A LICENSING AGREEMENT AND A HOTEL MANAGEMENT AGREEMENT THAT,
WHILE SUCH AGREEMENTS ARE IN EFFECT, RESPECTIVELY (I) PERMIT SELLER TO USE
CERTAIN TRADEMARKS, TRADE NAMES, SERVICE MARKS AND COPYRIGHTS ASSOCIATED WITH
THE NAME "HOTEL PALOMAR" (COLLECTIVELY, THE "KIMPTON INTELLECTUAL PROPERTY") IN
CONNECTION WITH THE INITIAL SALE AND MARKETING OF THE UNITS, AND (II) PROVIDE
FOR KIMPTON TO MANAGE THE HOTEL UNIT. PURCHASER ACKNOWLEDGES AND AGREES THAT THE
PROPERTY HAS BEEN MARKETED TO, AND IS BEING SOLD TO, PURCHASER SOLELY BY SELLER
AND NOT BY KIMPTON, AND THAT KIMPTON SHALL NOT HAVE ANY LIABILITY OR OBLIGATION
IN CONNECTION WITH THE MARKETING AND SALE OF THE PROPERTY TO PURCHASER.
PURCHASER RELEASES KIMPTON FROM ANY LIABILITY WITH RESPECT TO ANY
REPRESENTATIONS OR DEFECTS, AND WAIVES ANY CLAIM WHATSOEVER AGAINST KIMPTON IN
RELATION TO THE MARKETING, SALE OR CONSTRUCTION OF THE PROPERTY. PURCHASER
FURTHER ACKNOWLEDGES AND AGREES THAT (A) KIMPTON IS NOT PART OF OR