exv10w49



 




Exhibit
10.49



AGREEMENT

(Marketing and Sale of Condominium Units)




     THIS AGREEMENT (“Agreement”) is made as of the 21st day of December, 2006, by and
between Comstock Countryside, L.C., a Virginia limited liability company (“Countryside”), having
its offices at 11465 Sunset Hills Road, 5th Floor, Reston, Virginia 20190 and
Merion-Loudoun, LC, a Virginia limited liability company (“Owner”), having its offices at 928
Mackall Ave, McLean, Virginia 22101.



WITNESSETH:




     WHEREAS, Countryside is the Declarant of The Villas at Countryside Condominium (the
“Condominium”) in Sterling, Virginia and the owner of certain condominium units therein, as
identified on Schedule 1 attached hereto (the “Units”);



     WHEREAS, concurrently herewith, Countryside is selling the Units to Owner, and in connection
therewith, is transferring certain Special Declarant Rights to Owner;



     WHEREAS, the Owner desires to have Countryside continue to carry out the marketing and sales
activities for the Units;



     WHEREAS, Countryside desires to assume such responsibilities on and in accordance with the
terms and conditions of this Agreement.



     NOW, THEREFORE, for and in consideration of the premises and mutual covenants and agreement of
the parties contained herein, and of other good and valuable consideration, the receipt and
sufficiency of which is hereby acknowledged, the parties hereto, intending to be legally bound, do
hereby agree as follows:



ARTICLE I. MARKETING AND SALE




     1.1. Subject to the terms of this Agreement, the Owner grants to Countryside the authority to
take all actions, as Countryside deems necessary and appropriate, at Countryside’s sole cost and
expense, to actively and continuously market and sell the Units, and, to the extent that the
estimated Net Price (defined herein) for a given Unit exceeds its Base Price (defined herein), to
enter into contracts (the “Outsale Contracts”), as the exclusive agent for and on the
Owner’s behalf, for the sale of Units. Countryside will provide, under its supervision and
management, at Countryside’s sole cost and expense, either its own employees or employees of a
brokerage company (which may be affiliated or unaffiliated with the Company), to market and sell
the Units and to manage the continuing administrative obligations of the Owner as Co-Declarant in
connection with the sale of the Units to Owner. The form of the Outsale Contracts shall be the
form currently used by Countryside for the sale of units at the Condominium to retail purchasers,
with an Addendum in the form attached hereto as Exhibit A, and shall provide for a purchase
price and earnest money deposit in such amount as may be agreed to by the Owner and Countryside
from time to time. The Owner agrees to enter into any additional documents which may be necessary
to confirm or ratify the authority granted to Countryside pursuant to the provisions of this
Section.



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     1.2. All deeds for the conveyance of any Unit shall be in the name of the Owner as grantor.



     1.3 Countryside shall comply with the applicable governing laws and regulations in effect in
the jurisdiction in which the Units are located to perform its marketing and sales duties.



ARTICLE II. PAYMENTS TO COUNTRYSIDE




     2.1. Owner shall not be obligated to reimburse Countryside for any costs incurred by
Countryside in carrying out its obligations under this Agreement unless Owner shall have previously
agreed to do so in writing.



     2.2. Owner shall pay Countryside an amount equal to the difference between the Net Price for
each Unit settled, and the price for such Unit listed on Schedule 1 attached hereto (the
“Base Price”). For purposes hereof, the “Net Price” shall refer to the sales price for the Unit
less settlement expenses (such as real estate commissions, recording and closing costs, incentives
to buyers and the like) paid by Owner.



     2.3. So long as this Agreement shall remain in force, the foregoing amounts (the “Amounts
Payable”) shall be paid to Countryside upon the conveyance of each Unit regardless of whether
Countryside was the procuring cause of such sale. The Amounts Payable are not a commission, but an
allocation of profit which was negotiated in conjunction with the sale of the Units to Owner by
Countryside. The Amounts Payable shall be due and payable at the time of settlement on each Unit,
and shall be reflected as an amount due to Countryside on the settlement statement.



     2.4. If this Agreement has been terminated by Countryside as a result of a material breach by
Owner pursuant to Section 4.4 hereof, then the Amounts Payable shall remain due and payable to
Countryside pursuant to the terms of this Agreement despite the termination.



ARTICLE III. PAYMENTS TO OWNER




     3.1. During the term of this Agreement, Countryside shall pay Owner the sum of $1,500 per
month for each Unit which has not been conveyed to a retail purchaser (the “Monthly Payment”).
The foregoing monthly amount shall be prorated for any month in which a particular Unit was
conveyed. Owner hereby agrees to apply each Monthly Payment toward the interest carry on the first
mortgage encumbering the Units. Failure to do so shall constitute a material breach of this
Agreement. Each Monthly Payment shall be due and payable on the fifth (5th) day of each
calendar month.



     3.2. If Countryside shall fail to make a Monthly Payment on or before the due date, and such
failure shall continue for more than ten (10) business days after having received written notice
thereof from Owner, then Owner shall have the right to terminate this Agreement by delivering
written notice thereof to Countryside. In the event of such duly effected termination, Countryside
shall have no further right to any Amounts Payable on any Units which were not settled prior to the
termination.



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     3.3. Upon full execution of this Agreement, Countryside shall make an initial payment (the
“Initial Payment”) of the total amount of Monthly Payments due for the first three (3) months (the
“Initial Period”) of the Fixed Term. In the event any Units are settled prior to the expiration of
the Initial Period, then the portion of the Initial Payment ascribed to the post-settlement period
of the settled Units shall, at Countryside’s election, either be (a) paid as a reimbursement to
Countryside at settlement, or (b) applied as a credit against the Monthly Payment due during the
fourth (4th) month of the Fixed Term.



ARTICLE IV. TERM




     4.1. The fixed term of this Agreement (the “Fixed Term”) shall be 18 months, commencing
January 1, 2007 and expiring June 30, 2008.



     4.2. In the event Countryside has settled at least 20 Units during the Fixed Term (or can
demonstrate that it is likely to settle at least 20 Units within thirty days thereafter), then it
shall have the unilateral right to extend the term of this Agreement for an additional 6 months,
through December 31, 2008 (the “Extension Term”).



     4.3. Neither party shall have the unilateral right to terminate this Agreement without cause.



     4.4. In the event either party hereto commits a material breach of this Agreement, then the
other party shall have the right to terminate the same if the defaulting party fails to rectify the
breach within ten days after receiving written notice thereof from the other party. In the event
of a material breach by Countryside, Owner’s sole remedy shall be to terminate this Agreement
pursuant to Section 3.2 hereof. In the event of a material breach by Owner, Countryside shall have
all of its rights and remedies available at law to recover its actual damages for such breach, and
all of its rights and remedies at equity to enforce any equitable remedy. If Owner should
terminate this Agreement as a result of a material default by Countryside, as aforesaid, then Owner
shall have a temporary license to use the marketing materials being used by Countryside immediately
prior to the termination of this Agreement, but only to the extent Countryside has the legal right
to grant such license, and only until the earlier of (a) settlement on the final Unit, or (b) two
years from the date hereof.



ARTICLE V. USE OF MODEL UNITS; COUNTRYSIDE’S BOOKS AND RECORDS




     5.1 During the term of this Agreement, Countryside shall have a license to use the model
units for performing its responsibilities hereunder. During such time, Countryside shall pay for
all of the operating expenses associated with use of the model units, such as (without limitation)
the cost of utilities; however, Countryside shall not be responsible for paying costs associated
with ownership of the model units, such as (without limitation) real estate taxes and mortgage
interest.



     5.2. Countryside will keep accurate books of account for the work performed under this
Agreement, showing the costs incurred hereunder, which books of account and all supporting data
shall, during regular business hours and at reasonable times, be open to inspection and copying by
the Owner or its authorized representatives, and shall be retained and available for reference for
a period of at least one year after the work has been completed.



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ARTICLE VI. INDEMNIFICATION




     Owner hereby agrees to indemnify Countryside, its agents and employees, for any damages
incurred by Countryside, its agents or employees, in executing the responsibilities of Countryside
hereunder, arising from the gross negligence or willful misconduct of Owner, its agent or
employees. Countryside hereby agrees to indemnify Owner, its agents and employees, for any damages
incurred by Owner, its agents or employees, arising from the gross negligence or willful misconduct
of Countryside, its agent or employees, in executing the responsibilities of Countryside hereunder.



ARTICLE VII. MISCELLANEOUS




     7.1. The provisions of this Agreement shall be binding upon and inure to the benefit of the
parties hereto and their respective successors and assigns; provided, that neither party may assign
any of its rights or obligations hereunder without the prior written agreement of the non-assigning
party.



     7.2. All notices and other communications hereunder shall be in writing and shall be deemed
duly given if hand delivered, or mailed by certified mail, return receipt requested, postage
prepaid, to the addresses set forth in the preamble of this Agreement, or to such other address of
which one party hereto notifies the other.



     7.3. If any term, covenant, or condition of this Agreement or the application thereof to any
party shall be held invalid or unenforceable, the remaining terms, covenants, and conditions shall
not be affected thereby, and such remaining terms, covenants, and conditions shall be valid and
enforceable to the fullest extent permitted by law.



     7.4. The interpretation and enforcement of this Agreement shall be governed by the laws of
the Commonwealth of Virginia , without respect to its conflicts of laws principles.



     7.5. This Agreement may be amended, modified, or supplemented only by written agreement of
the parties. The waiver by any party hereto of a breach of any provision contained herein shall be
in writing, signed by the waiving party, and shall in no way be construed as a waiver of any prior
or succeeding breach of such provision or the waiver of the provision itself.



     7.6. Each party hereto shall do and perform, or cause to be done and performed, all such
further acts and things and shall execute and deliver all such other agreements, certificates,
instruments, and documents as any other party hereto or person otherwise subject hereto may
reasonably request in order to carry out the intent and accomplish the purposes of this Agreement
and the consummation of the transactions contemplated hereby.



[Signature Page to Follow]




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     IN WITNESS WHEREOF, this Agreement has been duly executed by each of the parties hereto on the
date opposite such party’s signature, and the provisions hereof shall be deemed effective as of the
date first above written.



OWNER:



Merion-Loudoun, LC




	 	 	 
	By:

	 	/s/ William P. Bensten
	 

	 	 
	 

	 	William P. Bensten
	 

	 	Managing Member






COUNTRYSIDE:

Comstock Countryside, L.C.




	 	 	 	 	 
	By:	 	Comstock Homebuilding Companies, Inc.
	 
	 	 	 	 
	 

	 	By:
	 	/s/ Christopher Clemente
	 

	 	 	 	 
	 

	 	 	 	Christopher Clemente
	 

	 	 	 	Chief Executive Officer







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