Green Brick Partners, Inc. 8-K


Exhibit 10.2


EXECUTION VERSION


 








FIRST
AMENDMENT dated as of August 31, 2016 (this “Agreement”) among GREEN BRICK PARTNERS, INC. (the “Borrower”),
FLAGSTAR BANK, FSB (the “Incremental Revolving Lender”), the LENDERS party hereto and CITIBANK, N.A., in its
capacity as Administrative Agent (the “Administrative Agent”) to the CREDIT Agreement
dated as of December 15, 2015, (as in effect prior to the effectiveness of this Agreement, the “Credit Agreement”),
among the Borrower, the Lenders from time to time party thereto and the Administrative Agent.


WHEREAS
the Lenders have agreed to extend credit to the Borrower under the Credit Agreement on the terms and subject to the conditions
set forth therein; capitalized terms used but not defined herein shall have the meanings assigned to such terms in the Credit
Agreement;


WHEREAS
the Borrower has requested that, pursuant to Section 2.21 of the Credit Agreement, the Incremental Revolving Lender provide additional
Revolving Credit Commitments on the Incremental Effective Date (as defined in Section 4 below), and the Incremental Revolving
Lender has agreed to provide additional Revolving Credit Commitments to the Borrower (such commitments, the “Incremental
Revolving Commitments”), subject to the terms and conditions set forth herein and in the Credit Agreement; and


WHEREAS
the Borrower and the Lenders party hereto (including the Incremental Revolving Lender) desire that certain provisions of the Credit
Agreement be amended as provided herein (as so amended, the “Amended Credit Agreement”).


NOW,
THEREFORE, in consideration of the mutual agreements herein contained and other good and valuable consideration, the sufficiency
and receipt of which are hereby acknowledged, the parties hereto hereby agree as follows:


SECTION
1. Incremental Revolving Commitments. (a) As of the Incremental Effective Date, the Incremental Revolving Lender shall
have Incremental Revolving Commitments in an aggregate principal amount of $20,000,000.


(b)
The Incremental Revolving Commitments and the Revolving Credit Advances made thereunder shall have the terms applicable to the
Revolving Credit Commitments in effect prior to the Incremental Effective Date and the Revolving Credit Advances and other extensions
of credit made thereunder. On the Incremental Effective Date, the Incremental Revolving Lender shall become a Lender under the
Credit Agreement having the Revolving Credit Commitments set forth opposite its name on Schedule I attached hereto and shall be
bound by the obligations in the Amended Credit Agreement as a Lender and entitled to the benefits of the Amended Credit Agreement,
effective as of the Incremental Effective Date.


(c)
On the Incremental Effective Date, the Incremental Revolving Lender shall fund its pro rata share (calculated after giving effect
to the Incremental Revolving Commitments)
of the Revolving Credit Advances that are outstanding immediately prior to the Incremental Effective Date.




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(d)
The Administrative Agent hereby consents to this Agreement and confirms that the Incremental Revolving Lender is acceptable to
it.


(e)
The Incremental Revolving Lender, by delivering its signature page to this Agreement, shall be deemed to have acknowledged receipt
of, and consented to and approved, each Loan Document and each other document required to be delivered to, or be approved by or
satisfactory to, the Administrative Agent or any Class of Lenders on or prior to the Incremental Effective Date (it being understood
and agreed that by delivering its signature page to this Agreement, the Incremental Revolving Lender need not execute a separate
New Lender Supplement).


SECTION
2. Amendment. Effective as of the Incremental Effective Date, the Credit Agreement is hereby amended as follows:


(a) The
first sentence of Section 2.21 up to, but excluding, the first “provided that” shall be restated as follows:


“The
Borrower may, at its option, at any time or from time to time prior to the Termination Date, increase the Revolving Credit Commitments
by up to $50,000,000 to an aggregate principal amount not to exceed $110,000,000 by requesting the existing Lenders or new lenders
to commit to any such increase;”


(b) Schedule
I to the Credit Agreement shall be replaced with Schedule I attached hereto, which reflects the Revolving Credit Commitments of
all Lenders after giving effect to the Incremental Revolving Commitments.


SECTION
3. Representations and Warranties. To induce the other parties hereto to enter into this Agreement, the Borrower hereby
represents and warrants to the Administrative Agent and the Lenders (including the Incremental Revolving Lender) that:


(a)
This Agreement has been duly executed and delivered by the Borrower and constitutes its legal, valid and binding obligation, enforceable
in accordance with its terms, subject to applicable bankruptcy, insolvency, reorganization, moratorium or other laws affecting
creditors’ rights generally and subject to general principles of equity, regardless of whether considered in a proceeding
in equity or at law.


(b)
On the Incremental Effective Date, and after giving effect to this Agreement, the representations and warranties of the Borrower
set forth in Section 3.01 of the Credit Agreement are true and correct in all material respects (other than any representation
or warranty qualified by materiality or Material Adverse Effect, which shall be true and correct in all respects), on and as of
as though made on and as of the Incremental Effective Date.




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(c)
On and as of the Incremental Effective Date, no event has occurred and is continuing that constitutes a Default or Event of Default.


(d)
After giving effect to the establishment on the Incremental Effective Date of the Incremental Revolving Commitments, (i) the Borrower
will be in compliance with the covenants set forth in Section 6.01(a), (b) and (c) of the Credit Agreement and (ii) the compliance
certificate dated as of August 12, 2016 previously delivered to the Administrative Agent by the Borrower remains true and accurate
on and as of the Incremental Effective Date.


SECTION
4. Conditions to Effectiveness. This Agreement and the Incremental Revolving Commitments shall become effective on the
date and at the time (the “Incremental Effective Date”) on which each of the following conditions is first
satisfied:


(a)
The Administrative Agent shall have executed this Agreement and shall have received from the Borrower, the Incremental Revolving
Lender and the Lenders under the Credit Agreement (i) a counterpart of this Agreement signed on behalf of such party or (ii) evidence
satisfactory to the Administrative Agent (which may include a facsimile transmission or other electronic transmission of a signed
counterpart of this Agreement) that such party has signed a counterpart of this Agreement.


(b)
The conditions set forth in Section 2.21 of the Credit Agreement shall be satisfied on and as of the Incremental Effective Date,
and the Administrative Agent shall have received a certificate, dated the Incremental Effective Date and signed by a Financial
Officer, confirming compliance with (i) such conditions and (ii) the representations and warranties contained in Section 3 above.


(c)
The Administrative Agent shall have received a favorable opinion (addressed to the Administrative Agent and the Lenders (including
the Incremental Revolving Lender)) and dated the Incremental Effective Date) of (i) Musgrove Law Firm, P.C., counsel for the Loan
Parties and (ii) Morris, Manning & Martin, LLP, Georgia local counsel for the Loan Parties, in form and substance reasonably
satisfactory to the Administrative Agent.


(d)
The Administrative Agent shall have received certified copies of resolutions of the Board of Directors (or its equivalent) of
each Loan Party approving this Agreement and the Incremental Revolving Commitments, articles of incorporation and by-laws (or
equivalent) of each Loan Party and certificates of incumbency and good standing (or such other documents and certificates as the
Administrative Agent or its counsel may reasonably request in lieu thereof), all in form and substance reasonably satisfactory
to the Administrative Agent.


(e)
The Administrative Agent shall have received from the Borrower, in accordance with the provisions of Section 2.21 of the Credit
Agreement, an activation notice in respect of the Incremental Revolving Commitments.




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(f)
The Lenders (including the Incremental Revolving Lender) shall have received, to the extent requested, all documentation and other
information required by regulatory authorities under applicable “know your customer” and anti-money laundering rules
and regulations, including the Patriot Act.


(g)
The Administrative Agent shall have received, in immediately available funds, reimbursement or payment of all out-of-pocket expenses
required to be reimbursed or paid by the Borrower under the Credit Agreement or under Section 5 hereof.


The Administrative
Agent shall notify the Borrower and the Lenders of the Incremental Effective Date, and such notice shall be conclusive and binding.
Notwithstanding the foregoing, the obligations of the Incremental Revolving Lender to provide Incremental Revolving Commitments
hereunder shall not become effective unless each of the foregoing conditions shall have been satisfied (or waived) at or prior
to 5:00 p.m., New York City time, on August 31, 2016 (and, in the event such conditions shall not have been so satisfied or waived,
the Incremental Revolving Commitments shall terminate at such time).


SECTION
5. Expenses. The Borrower agrees to reimburse the Administrative Agent for its reasonable out-of-pocket expenses in connection
with this Agreement and the transactions contemplated hereby, including the reasonable fees, charges and disbursements of Cravath,
Swaine & Moore LLP.


SECTION
6. Effect of this Agreement. (a) Except as expressly set forth herein, this Agreement shall not by implication or otherwise
limit, impair, constitute a waiver of or otherwise affect the rights and remedies of the Administrative Agent or the Lenders under
the Credit Agreement, the Amended Credit Agreement and the other Loan Documents, and shall not alter, modify, amend or in any
way affect any of the terms, conditions, obligations, covenants or agreements contained in the Credit Agreement, the Amended Credit
Agreement or any of the other Loan Documents, all of which are ratified and affirmed in all respects and shall continue in full
force and effect. Nothing herein shall be deemed to entitle the Borrower to a consent to, or a waiver, amendment, modification
or other change of, any of the terms, conditions, obligations, covenants or agreements contained in the Credit Agreement or the
Amended Credit Agreement in similar or different circumstances. This Agreement shall constitute a “Loan Document”
for all purposes of the Credit Agreement, the Amended Credit Agreement and the other Loan Documents.


SECTION
7. Applicable Law. THIS AGREEMENT SHALL BE GOVERNED BY, AND CONSTRUED AND INTERPRETED IN ACCORDANCE WITH, THE LAWS OF
THE STATE OF NEW YORK.


SECTION
8. Counterparts. This Agreement may be executed by one or more of the parties
hereto on any number of separate counterparts, and all of said counterparts taken together shall be deemed to constitute one and
the same instrument.




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Delivery of an executed
signature page hereof by facsimile or other electronic transmission shall be effective as delivery of a manually executed counterpart
hereof.


SECTION
9. Headings. The Section headings used herein are for convenience of reference only, are not part of this Agreement and
are not to affect the construction of, or to be taken into consideration in interpreting, this Agreement.


 


[Remainder
of page intentionally left blank]


 


 




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IN
WITNESS WHEREOF, the parties hereto have duly executed this Agreement as of the day and year first above written.


	 	green brick partners, inc.
	 	     By
	 	 	/s/ James R. Brickman
	 	 	Name: James R. Brickman
	 	 	Title:  Chief Executive Officer


 


 


[Signature
Page to First Amendment]


 




    	  



    	 



    

 


	 	CITIBANK, N.A., 

    as Administrative Agent and a Lender
	 	 

        By

	 	 	/s/ Michael Vondriska
	 	 	Name: Michael Vondriska
	 	 	Title:  Vice President


 


 


[Signature
Page to First Amendment]




    	  



    	 



    

 


	 	FLAGSTAR BANK, FSB, as the Incremental Revolving Lender
	 	 

        By

	 	 	/s/ Jerry C. Schillaci
	 	 	Name: Jerry C. Schillaci
	 	 	Title: Vice President


 


 


[Signature
Page to First Amendment]




    	  



    	 



    

 


	 	CREDIT SUISSE AG, CAYMAN ISLANDS BRANCH, as a Lender
	 	 

        By

	 	 	/s/ Vipul Dhadda
	 	 	Name: Vipul Dhadda
	 	 	Title: Authorized Signatory
	 	 

        By

	 	 	/s/ Max Wallins
	 	 	Name: Max Wallins
	 	 	Title: Authorized Signatory


 


 


[Signature
Page to First Amendment]




    	  



    	 



    

REAFFIRMATION


 


August 31, 2016


 


Each of the undersigned
Loan Parties (which, for the avoidance of doubt, collectively constitute the Loan Parties to the Credit Agreement as of the date
hereof) hereby consents to this Agreement and the transactions contemplated thereby. Each of the undersigned Loan Parties further
(a) affirms and confirms its respective guarantees, pledges, grants of security interests and other obligations under the Amended
Credit Agreement and each of the other Loan Documents to which it is a party, in respect of, and to secure, the Obligations and
(b) agrees that, notwithstanding the effectiveness of this Agreement and the transactions contemplated thereby, the Loan Documents
to which it is a party, and such guarantees, pledges, grants of security interests and other obligations thereunder, shall continue
to be in full force and effect in accordance with the terms thereof.


 


[Signature page
follows]




    	  



    	 



    

 


	 	green brick partners, inc.
	 	     By
	 	 	/s/ James R. Brickman
	 	 	Name: James R. Brickman
	 	 	Title:  Chief Executive Officer


 


 


	 	BIOFUEL
        ENERGY, LLC

        CB
        JENI BERKSHIRE PLACE LLC

        CB
        JENI HOMES DFW LLC

        JBGL
        ATLANTA DEVELOPMENT, LLC

        JBGL
        BUILDER FINANCE LLC

        JBGL
        CHATEAU, LLC

        JBGL
        EXCHANGE LLC

        JBGL
        HAWTHORNE, LLC

        JBGL
        KITTYHAWK, LLC

        JBGL
        MUSTANG LLC

        JBGL
        OWNERSHIP LLC

        JOHNS
        CREEK 206, LLC

        THE
        PROVIDENCE GROUP OF GEORGIA, L.L.C.

        THE
        PROVIDENCE GROUP OF GEORGIA CUSTOM HOMES, L.L.C.

        CB
        JENI – BRICK ROW TOWNHOMES, LLC

        CB
        JENI MUSTANG PARK LLC

        NORMANDY
        HOMES LAKESIDE, LLC

        NORMANDY
        HOMES CYPRESS MEADOWS, LLC

        TPG
        Homes, l.l.c.

         

	 	     By
	 	 	/s/ James R. Brickman
	 	 	Name: James R. Brickman
	 	 	Title:  Manager



 


[Signature Page
to Reaffirmation  Agreement]


 






    	  



    	 



    

Revolving
Credit

Commitments


	Lenders	Revolving
    Credit Commitments
	Citibank,
    N.A.	$25,000,000
	Flagstar
    Bank, FSB	$20,000,000
	Credit
    Suisse AG, Cayman Islands Branch	$15,000,000
	 

        Total
	 

        $60,000,000