Green Brick Partners, Inc. 8-K



Exhibit
10.2


EXECUTION VERSION


 


GUARANTEE AGREEMENT


dated as of


December 15, 2015


among


GREEN BRICK PARTNERS, INC.


 


Certain Subsidiaries of GREEN BRICK PARTNERS,
INC.,


from time to time party hereto


 


and


CITIBANK, N.A.,


as Agent


 


 


 




    	 



    	 



    

 


TABLE
OF CONTENTS


Page


ARTICLE I



Definitions


	SECTION 1.01.  Credit Agreement	1
	SECTION 1.02.  Other Defined Terms	1


ARTICLE II



Guarantee


	SECTION 2.01.  Guarantee	2
	SECTION 2.02.  Guarantee of Payment	2
	SECTION 2.03.  No Limitations, Etc	3
	SECTION 2.04.  Reinstatement	3
	SECTION 2.05.  Agreement To Pay; Subrogation	4
	SECTION 2.06.  Information	4


ARTICLE III



Indemnity, Subrogation and Subordination


	SECTION 3.01.  Indemnity and Subrogation	4
	SECTION 3.02.  Contribution and Subrogation	4
	SECTION 3.03.  Subordination	4


ARTICLE IV



Miscellaneous


	SECTION 4.01.  Notices	5
	SECTION 4.02.  Survival of Agreement	5
	SECTION 4.03.  Binding Effect; Several Agreement	5
	SECTION 4.04.  Successors and Assigns	6
	SECTION 4.05.  Fees and Expenses; Indemnification	6
	SECTION 4.06.  Applicable Law	7
	SECTION 4.07.  Waivers; Amendment	7
	SECTION 4.08.  WAIVER OF JURY TRIAL	7
	SECTION 4.09.  Severability	7
	SECTION 4.10.  Counterparts	8
	SECTION 4.11.  Headings	8
	SECTION 4.12.  Jurisdiction; Consent to Service of Process	8
	SECTION 4.13.  Termination or Release	9
	SECTION 4.14.  Additional Subsidiaries	9


 




    	 



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	Schedules	 
	Schedule I	Guarantors
	 	 
	Exhibits	 
	Exhibit A	Form of Supplement


 


 




    	 



    	 



    

 


GUARANTEE AGREEMENT dated as
of 15, 2015 (this “Agreement”), among GREEN BRICK PARTNERS, INC., a Delaware corporation (the “Borrower”),
certain Subsidiaries of the Borrower from time to time party hereto and CITIBANK, N.A., as agent (in such capacity, the “Agent”)
for the benefit of the Guaranteed Parties (as defined herein).


PRELIMINARY STATEMENT


 


Reference is made
to the Credit Agreement dated as of December 15, 2015 (as amended, amended and restated, supplemented or otherwise modified from
time to time, the “Credit Agreement”), among the Borrower, the banks, financial institutions and other
institutional lenders from time to time party thereto (the “Lenders”) and the Agent.


The Lenders have agreed
to extend credit to the Borrower pursuant to, and upon the terms and conditions specified in, the Credit Agreement. The obligations
of the Lenders to extend credit to the Borrower are conditioned upon, among other things, the execution and delivery of this Agreement
by the Borrower and each Guarantor (such term having the meaning given to it in Article I). Each Guarantor is an affiliate of the
Borrower, will derive substantial benefits from the extension of credit to the Borrower pursuant to the Credit Agreement and is
willing to execute and deliver this Agreement in order to induce the Lenders to extend such credit, and in consideration of credit
previously extended thereunder.


Accordingly, the parties
hereto agree as follows:


ARTICLE
I



Definitions


SECTION
1.01. Credit Agreement. (a) Capitalized terms used in this Agreement and not otherwise defined herein have the meanings
set forth in the Credit Agreement.


(a) The rules of construction
specified in Section 1.2 of the Credit Agreement also apply to this Agreement.


SECTION
1.02. Other Defined Terms. As used in this Agreement, the following terms have the meanings specified below:


“Agent”
shall have the meaning assigned to such term in the preamble.


“Borrower”
shall have the meaning assigned to such term in the preamble.


“Guaranteed
Parties” shall mean (a) the Lenders, (b) the Agent, (c) the beneficiaries of each indemnification obligation undertaken
by any Loan Party under any Loan Document and (d) the successors and assigns of each of the foregoing.


 




    	 



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“Guarantor”
shall mean (a) the Subsidiaries identified on Schedule I hereto as Guarantors and (b) each other Subsidiary that becomes a party
to this Agreement as a Guarantor after the Closing Date.


“Obligations”
shall mean (a) the due and punctual payment of (i) the principal of and interest (including interest accruing during the pendency
of any bankruptcy, insolvency, receivership or other similar proceeding, regardless of whether allowed or allowable in such proceeding)
on the Loans, when and as due, whether at maturity, by acceleration, upon one or more dates set for prepayment or otherwise and
(ii) all other monetary obligations of the Borrower to any of the Guaranteed Parties under the Credit Agreement and each of the
other Loan Documents, including fees, costs, expenses and indemnities, whether primary, secondary, direct, contingent, fixed or
otherwise (including monetary obligations incurred during the pendency of any bankruptcy, insolvency, receivership or other similar
proceeding, regardless of whether allowed or allowable in such proceeding), (b) the due and punctual performance of all other obligations
of the Borrower under or pursuant to the Credit Agreement and each of the other Loan Documents and (c) the due and punctual payment
and performance of all the obligations of each other Loan Party under or pursuant to this Agreement and each of the other Loan
Documents.


ARTICLE
II



Guarantee


SECTION
2.01. Guarantee. Each Guarantor unconditionally guarantees, jointly with the other Guarantors and severally, as a
primary obligor and not merely as a surety, the due and punctual payment and performance of the Obligations. Each Guarantor further
agrees that the Obligations may be extended or renewed, in whole or in part, without notice to or further assent from it, and that
it will remain bound upon its guarantee notwithstanding any extension or renewal of any Obligation. Each Guarantor waives presentment
to, demand of payment from and protest to the Borrower or any other Loan Party of any Obligation, and also waives notice of acceptance
of its guarantee and notice of protest for nonpayment.


SECTION
2.02. Guarantee of Payment. Each Guarantor further agrees that its guarantee hereunder constitutes a guarantee of
payment when due and not of collection, and waives any right to require that any resort be had by the Agent or any other Guaranteed
Party to any security held for the payment of the Obligations or to any balance of any deposit account or credit on the books of
the Agent or any other Guaranteed Party in favor of the Borrower or any other Person.


 




    	 



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SECTION 2.03. No
Limitations, Etc. (a) Except for termination of a Guarantor’s obligations hereunder as expressly provided in Section 4.13,
the obligations of each Guarantor hereunder shall not be subject to any reduction, limitation, impairment or termination for any
reason, including any claim of waiver, release, surrender, alteration or compromise, and shall not be subject to any defense or
setoff, counterclaim, recoupment or termination whatsoever by reason of the invalidity, illegality or unenforceability of the Obligations
or otherwise. Without limiting the generality of the foregoing, the obligations of each Guarantor hereunder shall not be discharged
or impaired or otherwise affected by (i) the failure of the Agent or any other Guaranteed Party to assert any claim or demand
or to enforce any right or remedy under the provisions of any Loan Document or otherwise, (ii) any rescission, waiver, amendment
or modification of, or any release from any of the terms or provisions of, any Loan Document or any other agreement, including
with respect to any other Guarantor under this Agreement, (iii) the release of, or any impairment of or failure to perfect
any Lien on or security interest in, any security held by the Agent or any other Guaranteed Party for the Obligations or any of
them, (iv) any default, failure or delay, wilful or otherwise, in the performance of the Obligations, (v) any law, regulation,
decree or order of any jurisdiction or any other event, to the extent such Guarantor can lawfully waive application thereof, or
(vi) any other act or omission that may or might in any manner or to any extent vary the risk of any Guarantor or otherwise
operate as a discharge of any Guarantor as a matter of law or equity (other than the indefeasible payment in full in cash of all
the Obligations).


(a) To the fullest
extent permitted by applicable law, each Guarantor waives any defense based on or arising out of any defense of the Borrower or
any other Loan Party or the unenforceability of the Obligations or any part thereof from any cause, or the cessation from any cause
of the liability of the Borrower or any other Loan Party, other than the indefeasible payment in full in cash of all the Obligations.
The Agent and the other Guaranteed Parties may, at their election, compromise or adjust any part of the Obligations, make any other
accommodation with the Borrower or any other Loan Party or exercise any other right or remedy available to them against the Borrower
or any other Loan Party, without affecting or impairing in any way the liability of any Guarantor hereunder except to the extent
the Obligations have been fully and indefeasibly paid in full in cash. To the fullest extent permitted by applicable law, each
Guarantor hereby waives any defense arising out of any such election, even though such election operates, pursuant to applicable
law, to impair or to extinguish any right of reimbursement or subrogation or other right or remedy of such Guarantor against the
Borrower or any other Loan Party, as the case may be, or any security.


SECTION
2.04. Reinstatement. Each Guarantor agrees that its guarantee hereunder shall continue to be effective or be reinstated,
as the case may be, if at any time payment, or any part thereof, of any Obligation is rescinded or must otherwise be restored by
the Agent or any other Guaranteed Party upon the bankruptcy or reorganization of the Borrower, any other Loan Party or otherwise.


SECTION
2.05. Agreement To Pay; Subrogation. In furtherance of the foregoing and not in limitation of any other right that
the Agent or any other Guaranteed Party has at law or in equity against any Guarantor by virtue hereof, upon the failure of the
Borrower or any other Loan Party to pay any Obligation when and as the same shall become due, whether at maturity, by acceleration,
after notice of prepayment or otherwise, each Guarantor hereby promises to and will forthwith pay, or cause to be paid, to the
Agent for distribution to the applicable Guaranteed Parties in cash the amount of such unpaid Obligation. Upon payment by any Guarantor
of any sums to the Agent as provided above, all rights of such Guarantor against the Borrower or any other Guarantor arising as
a result thereof by way of right of subrogation, contribution, reimbursement, indemnity or otherwise shall in all respects be subject
to Article III.


 




    	 



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SECTION 2.06. Information.
Each Guarantor assumes all responsibility for being and keeping itself informed of the Borrower’s and each other Loan Party’s
financial condition and assets and of all other circumstances bearing upon the risk of nonpayment of the Obligations and the nature,
scope and extent of the risks that such Guarantor assumes and incurs hereunder, and agrees that neither the Agent nor any other
Guaranteed Party will have any duty to advise such Guarantor of information known to it or any of them regarding such circumstances
or risks.


ARTICLE
III



Indemnity, Subrogation and Subordination


SECTION
3.01. Indemnity and Subrogation. In addition to all such rights of indemnity and subrogation as the Guarantors may
have under applicable law (but subject to Section 3.03), the Borrower agrees that in the event a payment shall be made by
any Guarantor under this Agreement, the Borrower shall indemnify such Guarantor for the full amount of such payment and such Guarantor
shall be subrogated to the rights of the Person to whom such payment shall have been made to the extent of such payment.


SECTION
3.02. Contribution and Subrogation. Each Guarantor (a “Contributing Guarantor”) agrees
(subject to Section 3.03) that, in the event a payment shall be made by any other Guarantor hereunder in respect of any Obligation,
and such other Guarantor (the “Claiming Guarantor”) shall not have been fully indemnified by the Borrower
as provided in Section 3.01, the Contributing Guarantor shall indemnify the Claiming Guarantor in an amount equal to the amount
of such payment multiplied by a fraction of which the numerator shall be the net worth of the Contributing Guarantor on the date
hereof and the denominator shall be the aggregate net worth of all the Guarantors on the date hereof (or, in the case of any Guarantor
becoming a party hereto pursuant to Section 4.14, the date of the supplement hereto executed and delivered by such Guarantor).
Any Contributing Guarantor making any payment to a Claiming Guarantor pursuant to this Section 3.02 shall be subrogated to
the rights of such Claiming Guarantor under Section 3.01 to the extent of such payment.


SECTION
3.03. Subordination. (a) Notwithstanding any provision of this Agreement to the contrary, all rights of the Guarantors
under Sections 3.01 and 3.02 and all other rights of indemnity, contribution or subrogation under applicable law or otherwise
shall be fully subordinated to the indefeasible payment in full in cash of the Obligations. No failure on the part of the Borrower
or any Guarantor to make the payments required by Sections 3.01 and 3.02 (or any other payments required under applicable
law or otherwise) shall in any respect limit the obligations and liabilities of any Guarantor with respect to its obligations hereunder,
and each Guarantor shall remain liable for the full amount of its obligations hereunder.


(b) The Borrower and
each Guarantor hereby agree that all Indebtedness and other monetary obligations owed by it to, or to it by, the Borrower or any
Subsidiary shall be fully subordinated to the indefeasible payment in full in cash of the Obligations; provided that unless
an Event of Default shall have occurred and be continuing and the Agent shall have given the Borrower notice directing the Borrower
and the Guarantors to discontinue such payments, the Borrower and the Guarantors may repay and incur such Indebtedness and other
monetary obligations pursuant to the terms thereof and to the extent permitted under the Credit Agreement.


 




    	 



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ARTICLE
IV



Miscellaneous


SECTION
4.01. Notices. All communications and notices hereunder shall (except as otherwise expressly permitted herein) be
in writing and given as provided in Section 9.02 of the Credit Agreement. All communications and notices hereunder to any
Subsidiary Guarantor shall be given to it in care of the Borrower as provided in Section 9.02 of the Credit Agreement.


SECTION
4.02. Survival of Agreement. All covenants, agreements, representations and warranties made by the Loan Parties in
the Loan Documents and in the certificates or other instruments prepared or delivered in connection with or pursuant to this Agreement
or any other Loan Document shall be considered to have been relied upon by the Lenders and shall survive the execution and delivery
of the Loan Documents and the making of any Loans, regardless of any investigation made by any Lender or on its behalf and notwithstanding
that the Agent or any Lender may have had notice or knowledge of any Default or incorrect representation or warranty at the time
any credit is extended under the Credit Agreement, and shall continue in full force and effect as long as the principal of or any
accrued interest on any Loan or any fee or any other amount payable under any Loan Document is outstanding and unpaid.


SECTION
4.03. Binding Effect; Several Agreement. This Agreement shall become effective as to any Loan Party when a counterpart
hereof executed on behalf of such Loan Party shall have been delivered to the Agent and a counterpart hereof shall have been executed
on behalf of the Agent, and thereafter shall be binding upon such Loan Party and the Agent and their respective permitted successors
and assigns, and shall inure to the benefit of such Loan Party, the Agent and the other Guaranteed Parties and their respective
permitted successors and assigns, except that no Loan Party shall have the right to assign or transfer its rights or obligations
hereunder or any interest herein (and any such assignment or transfer by any Loan Party shall be void) except as expressly contemplated
or permitted by this Agreement or the Credit Agreement. This Agreement shall be construed as a separate agreement with respect
to each Loan Party and may be amended, modified, supplemented, waived or released with respect to any Loan Party without the approval
of any other Loan Party and without affecting the obligations of any other Loan Party hereunder.


SECTION
4.04. Successors and Assigns. Whenever in this Agreement any of the parties hereto is referred to, such reference
shall be deemed to include the permitted successors and assigns of such party; and all covenants, promises and agreements by or
on behalf of any Guarantor or the Agent that are contained in this Agreement shall bind and inure to the benefit of their respective
successors and assigns.


SECTION
4.05. Fees and Expenses; Indemnification. (a)  The parties hereto agree that the Agent and the Arranger shall
be entitled to reimbursement of its expenses incurred hereunder as provided in Section 9.04 of the Credit Agreement.


 




    	 



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(b) Without limitation
of its indemnification obligations under the other Loan Documents, each Guarantor jointly and severally agrees to indemnify the
Agent, the Arranger and the other Indemnitees against, and hold each Indemnitee harmless from, any and all losses, claims, damages,
liabilities, and related reasonable and documented out of pocket expenses, including the reasonable and documented fees, charges
and disbursements of any counsel for any Indemnitee, incurred by or asserted against any Indemnitee arising out of, in any way
connected with, or as a result of, the execution, delivery or performance of this Agreement or any agreement or instrument contemplated
hereby or any claim, litigation, investigation or proceeding relating to any of the foregoing, regardless of whether any Indemnitee
is a party thereto or whether initiated by a third party or by a Loan Party or any Affiliate thereof; provided, however,
that (i) such indemnity shall not, as to any Indemnitee, be available to the extent that such losses, claims, damages, liabilities
or related expenses are determined by a court of competent jurisdiction by final and nonappealable judgment to have resulted from
the gross negligence, bad faith or wilful misconduct of such Indemnitee and (ii) absent an actual or perceived conflict of
interest, the Guarantors shall not be required to pay for more than one counsel (and appropriate local and special counsel)) under
this clause (b) for all Indemnitees and (iii) if an actual or perceived conflict of interest shall exist, the Guarantors shall
not be required to pay for more than one counsel (and appropriate local and special counsel)) under this clause (b) for all similarly
situated Indemnitees. To the extent permitted by applicable law, no Guarantor shall assert, and each Guarantor hereby waives any
claim against any Indemnitee, on any theory of liability, for special, indirect, consequential or punitive damages (as opposed
to direct or actual damages) arising out of, in connection with, or as a result of, this Agreement or any agreement or instrument
contemplated hereby, the transactions contemplated hereby, any Loan or the use of proceeds thereof.


(c) Any such amounts
payable as provided hereunder shall be additional Obligations guaranteed hereby. The provisions of this Section 4.05 shall remain
operative and in full force and effect regardless of the termination of this Agreement or any other Loan Document, the consummation
of the transactions contemplated hereby, the repayment of any of the Obligations, the invalidity or unenforceability of any term
or provision of this Agreement or any other Loan Document, or any investigation made by or on behalf of the Agent or any other
Guaranteed Party. All amounts due under this Section 4.05 shall be payable on written demand therefor and shall bear interest,
on and from the date of demand, at the rate specified in Section 2.07(a)(i) of the Credit Agreement.


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


 




    	 



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SECTION 4.07. Waivers;
Amendment. (a)  No failure or delay by the Agent or any Lender in exercising any right or power hereunder or under
any other Loan Document shall operate as a waiver hereof or thereof, nor shall any single or partial exercise of any such right
or power, or any abandonment or discontinuance of steps to enforce such a right or power, preclude any other or further exercise
thereof or the exercise of any other right or power. The rights and remedies of the Agent and the Lenders hereunder and under the
other Loan Documents are cumulative and are not exclusive of any rights or remedies that they would otherwise have. No waiver of
any provision of any Loan Document or consent to any departure by any Loan Party therefrom shall in any event be effective unless
the same shall be permitted by paragraph (b) of this Section 4.07, and then such waiver or consent shall be effective only
in the specific instance and for the purpose for which given. Without limiting the generality of the foregoing, the making of a
Loan shall not be construed as a waiver of any Default or Event of Default, regardless of whether the Agent or any Lender may have
had notice or knowledge of such Default or Event of Default at the time. No notice or demand on any Loan Party in any case shall
entitle any Loan Party to any other or further notice or demand in similar or other circumstances.


(b) Neither this Agreement
nor any provision hereof may be waived, amended or modified except pursuant to an agreement or agreements in writing entered into
by the Agent and the Loan Party or Loan Parties with respect to which such waiver, amendment or modification is to apply, subject
to any consent required in accordance with Section 9.01 of the Credit Agreement.


SECTION
4.08. WAIVER OF JURY TRIAL. EACH PARTY HERETO HEREBY WAIVES, TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, ANY
RIGHT IT MAY HAVE TO A TRIAL BY JURY IN RESPECT OF ANY LITIGATION DIRECTLY OR INDIRECTLY ARISING OUT OF, UNDER OR IN CONNECTION
WITH THIS AGREEMENT OR ANY OF THE OTHER LOAN DOCUMENTS. EACH PARTY HERETO (A) CERTIFIES THAT NO REPRESENTATIVE, AGENT OR ATTORNEY
OF ANY OTHER PARTY HAS REPRESENTED, EXPRESSLY OR OTHERWISE, THAT SUCH OTHER PARTY WOULD NOT, IN THE EVENT OF LITIGATION, SEEK TO
ENFORCE THE FOREGOING WAIVER AND (B) ACKNOWLEDGES THAT IT AND THE OTHER PARTIES HERETO HAVE BEEN INDUCED TO ENTER INTO THIS
AGREEMENT AND THE OTHER LOAN DOCUMENTS, AS APPLICABLE, BY, AMONG OTHER THINGS, THE MUTUAL WAIVERS AND CERTIFICATIONS IN THIS SECTION
4.08.


SECTION
4.09. Severability. In the event any one or more of the provisions contained in this Agreement or in any other Loan
Document should be held invalid, illegal or unenforceable in any respect, the validity, legality and enforceability of the remaining
provisions contained herein and therein shall not in any way be affected or impaired thereby (it being understood that the invalidity
of a particular provision in a particular jurisdiction shall not in and of itself affect the validity of such provision in any
other jurisdiction). The parties shall endeavor in good-faith negotiations to replace the invalid, illegal or unenforceable provisions
with valid provisions the economic effect of which comes as close as possible to that of the invalid, illegal or unenforceable
provisions.


SECTION
4.10. Counterparts. This Agreement may be executed in counterparts (and by different parties hereto on different
counterparts), each of which shall constitute an original but all of which when taken together shall constitute a single contract,
and shall become effective as provided in Section 4.03. Delivery of an executed signature page to this Agreement by facsimile transmission
shall be as effective as delivery of a manually signed counterpart of this Agreement.


 




    	 



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SECTION 4.11. Headings.
Article and Section headings and the Table of Contents 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.


SECTION
4.12. Jurisdiction; Consent to Service of Process. (a) Each of the Guarantors hereby irrevocably and unconditionally
submits, for itself and its property, to the exclusive jurisdiction of any New York State court or Federal court of the United
States of America, sitting in New York City, and any appellate court from any thereof, in any action or proceeding arising out
of or relating to this Agreement or any other Loan Document, or for recognition or enforcement of any judgment, and each of the
Loan Parties hereby irrevocably and unconditionally agrees that all claims in respect of any such action or proceeding may be heard
and determined in such New York State or, to the extent permitted by law, in such Federal court. Each of the Loan Parties
agrees that a final judgment in any such action or proceeding shall be conclusive and may be enforced in other jurisdictions by
suit on the judgment or in any other manner provided by law. Nothing in this Agreement or any other Loan Document shall affect
any right that the Agent or any Lender may otherwise have to bring any action or proceeding relating to this Agreement or any other
Loan Document against any Guarantor or its properties in the courts of any jurisdiction.


(b) Each of the Loan
Parties hereby irrevocably and unconditionally waives, to the fullest extent it may legally and effectively do so, any objection
which it may now or hereafter have to the laying of venue of any suit, action or proceeding arising out of or relating to this
Agreement or any other Loan Document in any New York state or federal court referred to in paragraph (a) of this Section 4.12.
Each of the Loan Parties hereby irrevocably waives, to the fullest extent permitted by law, the defense of an inconvenient forum
to the maintenance of such action or proceeding in any such court.


(c) Each of the Loan
Parties hereby irrevocably consents to service of process in the manner provided for notices in Section 4.01. Nothing in this Agreement
or any other Loan Document will affect the right of any party hereto to serve process in any other manner permitted by law.


SECTION
4.13. Termination or Release. (a) This Agreement and the guarantees provided hereby shall terminate when all the
Obligations (other than contingent obligations for indemnification and expense reimbursement) have been paid in full in cash and
the Lenders have no further commitment to lend under the Credit Agreement.


(b) A Guarantor shall
automatically be released from its obligations hereunder upon (i) the consummation of any transaction permitted by the Credit Agreement
as a result of which such Guarantor ceases to be a Subsidiary or (ii) an event that results in such Guarantor, for legitimate business
reasons, ceasing to have an obligation under Section 5.07(b) of the Credit Agreement to be a Guarantor.


(c) In connection
with any termination or release pursuant to paragraph (a) or (b) above, the Agent shall promptly execute and deliver to any
Guarantor, at such Guarantor’s expense, all documents that such Guarantor shall reasonably request to evidence such termination
or release. Any execution and delivery of documents pursuant to this Section 4.13 shall be without recourse to or representation
or warranty by the Agent or any Guaranteed Party. Without limiting the provisions of Section 4.05, the Borrower shall reimburse
the Agent upon demand for all reasonable and documented costs and out-of-pocket expenses, including the reasonable and documented
fees, charges and expenses of counsel, incurred by it in connection with any action contemplated by this Section 4.13.


 




    	 



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SECTION 4.14. Additional
Subsidiaries. Any Subsidiary that is required to become a party hereto pursuant to Section 5.07 of the Credit Agreement
shall enter into this Agreement as a Guarantor upon becoming such a Subsidiary. Upon execution and delivery by the Agent and such
Subsidiary of a Supplemental Guarantee in the form of Exhibit A hereto, such Subsidiary shall become a Guarantor hereunder
with the same force and effect as if originally named as a Guarantor herein. The execution and delivery of any such instrument
shall not require the consent of any other Loan Party hereunder. The rights and obligations of each Loan Party hereunder shall
remain in full force and effect notwithstanding the addition of any new Loan Party as a party to this Agreement.


 


[Remainder of this
page intentionally left blank]


 




    	 



    	 



    

 


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
	 	 



 


	each of the subsidiaries listed

on Schedule i hereto,
	By
	 	/s/ James R. Brickman
	 	Name:  James R. Brickman
	 	Title:    Manager



 


 




    	[Signature page to Guarantee Agreement with Green Brick Partners, Inc.]




    	 



    

 


 


 


	CITIBANK, N.A., as Agent,
	By
	 	/s/ Michael Vondriska
	 	Name:  Michael Vondriska
	 	Title:    Vice President



 


 


 


 


 




    	[Signature page to Guarantee Agreement with Green Brick Partners, Inc.]




    	 



    

Schedule I to the


Guarantee Agreement


 


GUARANTORS


 


1.    BioFuel Energy, LLC


2.    CB JENI Homes DFW LLC


3.    JBGL Atlanta Development,
LLC


4.    JBGL Builder Finance LLC


5.    JBGL Chateau, LLC


6.    JBGL Exchange LLC


7.    JBGL Hawthorne, LLC


8.    JBGL Jamestown, LLC


9.    JBGL Kittyhawk, LLC


10.  JBGL Mustang LLC


11.  Johns Creek 206, LLC


12.  The Providence Group of
Georgia, L.L.C.


13.  TPG Homes at Jamestown,
L.L.C.


14.  TPG Homes at Three Bridges,
L.L.C.


15.  The Providence Group of
Georgia Custom Homes, L.L.C.


16.  CB Jeni Berkshire Place
LLC


17.  JBGL Ownership LLC


 


 


 




    	 



    	 



    

Exhibit A to the

Guarantee Agreement


SUPPLEMENTAL GUARANTEE NO. [●]
(this “Supplement”) dated as of [●] to the Guarantee Agreement dated as of December 15, 2015 (as
amended, amended and restated, supplemented and otherwise modified to date, the “Guarantee Agreement”),
among GREEN BRICK PARTNERS, INC., a Delaware corporation (the “Borrower”), each Subsidiary of the Borrower
from time to time party thereto (each such Subsidiary individually a “Guarantor” and collectively, the
“Guarantors”) and CITIBANK N.A., as agent (in such capacity, the “Agent”) for
the Guaranteed Parties (as defined therein).


A.   Reference is made
to the Credit Agreement dated as of December 15, 2015 (as amended, amended and restated, supplemented or otherwise modified from
time to time, the “Credit Agreement”), among the Borrower, the banks, financial institutions and other
institutional lenders from time to time party thereto (the “Lenders”) and Citibank N.A., as agent for
the Lenders (in such capacity, the “Agent”).


B.   Capitalized terms
used herein and not otherwise defined herein shall have the meanings assigned to such terms in the Credit Agreement or the Guarantee
Agreement referred to therein, as applicable.


C.   The Guarantors
have entered into the Guarantee Agreement in order to induce the Lenders to make Loans. Section 4.14 of the Guarantee Agreement
provides that additional Subsidiaries of the Borrower may become Guarantors under the Guarantee Agreement by execution and delivery
of an instrument in the form of this Supplement. The undersigned Subsidiary (the “New Subsidiary”) is
executing this Supplement in accordance with the requirements of the Credit Agreement to become a Guarantor under the Guarantee
Agreement in order to induce the Lenders to make additional Loans and as consideration for Loans previously made.


Accordingly, the Agent
and the New Subsidiary agree as follows:


SECTION 1. In accordance
with Section 4.14 of the Guarantee Agreement, the New Subsidiary by its signature below becomes a Guarantor under the Guarantee
Agreement with the same force and effect as if originally named therein as a Guarantor and the New Subsidiary hereby (a) agrees
to all the terms and provisions of the Guarantee Agreement applicable to it as a Guarantor thereunder and (b) represents and
warrants that the representations and warranties made by it as a Guarantor thereunder are true and correct in all material respects
on and as of the date hereof. Each reference to a “Guarantor” in the Guarantee Agreement shall be deemed to include
the New Subsidiary. The Guarantee Agreement is hereby incorporated herein by reference.


SECTION 2. The New
Subsidiary represents and warrants to the Agent and the other Guaranteed Parties that this Supplement has been duly authorized,
executed and delivered by it and constitutes its legal, valid and binding obligation, enforceable against it in accordance with
its terms.


 




    	 



    	 



    

A-2


 


SECTION 3. This Supplement
may be executed in counterparts (and by different parties hereto on different counterparts), each of which shall constitute an
original, but all of which when taken together shall constitute a single contract. This Supplement shall become effective when
the Agent shall have received counterparts of this Supplement that, when taken together, bear the signatures of the New Subsidiary
and the Agent. Delivery of an executed signature page to this Supplement by facsimile transmission shall be as effective as delivery
of a manually signed counterpart of this Supplement.


SECTION 4. The
New Subsidiary hereby represents and warrants that (a) set forth on Schedule I attached hereto is a true and correct schedule of
any and all Capital Stock now owned by the New Subsidiary and (b) set forth under its signature hereto, is the true and correct
legal name of the New Subsidiary and its jurisdiction of organization.


SECTION 5. Except
as expressly supplemented hereby, the Guarantee Agreement shall remain in full force and effect.


SECTION 6. THIS
SUPPLEMENT SHALL BE GOVERNED BY, AND CONSTRUED IN ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW YORK.


SECTION 7. In case
any one or more of the provisions contained in this Supplement should be held invalid, illegal or unenforceable in any respect,
the validity, legality and enforceability of the remaining provisions contained herein and in the Guarantee Agreement shall not
in any way be affected or impaired thereby (it being understood that the invalidity of a particular provision in a particular jurisdiction
shall not in and of itself affect the validity of such provision in any other jurisdiction). The parties hereto shall endeavor
in good-faith negotiations to replace the invalid, illegal or unenforceable provisions with valid provisions the economic effect
of which comes as close as possible to that of the invalid, illegal or unenforceable provisions.


SECTION 8. All communications
and notices hereunder shall (except as otherwise expressly permitted by the Guarantee Agreement) be in writing and given as provided
in Section 9.02 of the Credit Agreement. All communications and notices hereunder to the New Subsidiary shall be given to
it in care of the Borrower as provided in Section 9.02 of the Credit Agreement.


SECTION 9. The New
Subsidiary agrees to reimburse the Agent for its reasonable and documented out-of-pocket expenses in connection with this Supplement,
including the reasonable and documented fees, other charges and disbursements of counsel for the Agent.


 


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IN WITNESS WHEREOF,
the New Subsidiary and the Agent have duly executed this Supplement to the Guarantee Agreement as of the day and year first above
written.


	[NAME OF NEW SUBSIDIARY],
	by
	 	 
	 	Name:  [●]
	 	Title:    [●]
	 	Address:  [●]
	 	Legal Name:  [●]
	 	Jurisdiction of Formation:  [●]



 


 


	CITIBANK, N.A., as Agent,
	by
	 	 
	 	Name:  [●]
	 	Title:    [●]



 


 






    
	[Signature page to Supplemental Guarantee with Green Brick Partners, Inc.]