EX-10.2






Exhibit 10.2




OWNERS CONSTRUCTION ESCROW TRUST AND DISBURSING AGREEMENT

(No Title Insurance)




Escrow Trust No.:       



Chicago Title and Trust Company, Escrow Trustee



ARTICLE 1: General Information



	 	 	 	 	 
	A.
	 	Owner:

	 	Attorney for Owner:
	 	 	GLL US Office, L.P.

c/o CB Richard Ellis, Inc.

6250 North River Road

Rosemont, IL 60018

Attn: Kevin Halm

Phone: 847-318-0550

e-mail: kevin.halm@cbre.com

	 	Freeborn & Peters LLP

311 S. Wacker Drive, Suite 3000

Chicago, IL 60606

Attn: Dov Pinchot

Phone: (312) 360-6579

e-mail: dpinchot@freebornpeters.com










	B.	 	Tenant:





	 	 	 
	Name: Deerfield Capital Corp.

Address: 6250 N. River Rd.

Rosemont, IL 60018

	 	

Contact Person: Luke Knecht

Telephone No.: 773-380-1600







	C.	 	Escrow Trustee:






Name: Chicago Title and Trust Company, a corporation of Illinois (hereinafter known as
“CT&T”)



	 	 	 
	Address:
	 	Contact Person:

	 	 	Telephone No.:








	D.	 	Tenant’s Inspector/Architect:





	 	 	 	 	 
	Name:

Address:
	 	Gensler Architecture

11 E. Madison, Suite 300

Chicago, IL 60602

	 	Contact Person: Steven Meier

Telephone No.: 312-577-6589










	E.	 	General Contractor:





	 	 	 	 	 
	Name:

Address:
	 	Krahl Construction

322 S. Green St., 3rd Floor

Chicago, IL 60607

	 	Contact Person: John Bak

Telephone No.: 312-648-9800









F. Owner’s Inspector/Architect:



Name: Fitzgerald Earles Architects, Inc. Contact Person: Dan Earles


Address: 1820 West Hubbard, Suite 320 Telephone No.: 312-768-4211



Chicago, IL 60622



G. Project Name: Deerfield Capital — Tenant Buildout



Project Location: 12th Floor, One O’Hare Center, 6250 North River Road, Rosemont, IL




	F.	 	Cash Deposits:





	 	 	 	 	 
	Amount of Deposits to be made by Tenant:
	 	$	1,000,000	 
	Amount of Deposits, if any, to be made by Owner:
	 	$	548,962	 







	G.	 	Billing Instructions:






Title and Construction Escrow charges are to be billed:



One half (1/2) to Owner and one half (1/2) to Tenant



Article 2: Recitals




	A.	 	Tenant is about to commence or has commenced construction of improvements (the “Project”) on
the 12th floor (the “Premises”) of the Building commonly known as One O’Hare
Centre, 6250 North River Road, Rosemont, IL (the “Building”); and






Owner and Tenant have requested CT&T to act as Escrow Trustee and to provide a disbursing
service for the payment of Project construction costs, and other related costs.




	B.	 	Owner, Tenant and CT&T agree as follows:






	 	(1)	 	Tenant has deposited $1,000,000 (“Tenant’s Funds”) in the form of certified or
cashier’s check or wire transfer with CT&T.






	 	(2)	 	Provided Tenant has deposited the Tenant’s Funds with CT&T, Owner will deposit
$548,962 (“Owner’s Funds”) in the form of a certified or cashier’s check or wire
transfer with CT&T within 5 business days after the date Tenant deposits all of the
Tenant’s Funds. “Escrowed Funds” shall mean the total of the Owner’s Funds and the
Tenant’s Funds.






	 	(3)	 	CT&T will disburse the funds to pay for Project construction costs and related
development cost pursuant to the provisions of this Agreement as hereinafter set forth.






	 	(4)	 	The Owner’s Funds and Tenant’s Funds shall be paid out of the Construction Escrow
on a proportionate, pari passu basis, based upon the value of the work for which payment
is requested to be applied to the cost of the applicable improvements, and each Tenant
Draw Package delivered to CT&T shall reflect the applicable retainage required between
the parties or pursuant to the General Contractor’s contract.






	 	(5)	 	CT&T will disburse the funds for construction payment to the parties shown on
each then-current Tenant Requisition. In the event that the General Contractor and any
subcontractor jointly authorize CT&T to pay any funds due one to the other, CT&T may
comply with such authorization. However, it is the intent of the parties named herein
and signatory hereto that no person not a party signatory to this escrow shall have the
right to look to CT&T for any disbursement hereunder under a third party beneficiary
theory or otherwise, and that CT&T owes no duty to any such third party to make any
disbursement.






	 	(6)	 	At least fifty percent (50%) of the Escrowed Funds must be applied by Tenant
toward the costs for all improvements other than those costs listed on Exhibit A
attached hereto (“Required Improvements”). Owner’s architect shall verify in writing
when and if the 50% threshold described above is met. If less than 50% of the
Construction Escrow funds are applied toward Required Improvements by January 1, 2011,
or if any Event of Default under the lease between the parties, as amended (the
“Lease”), occurs (beyond all applicable notice and cure periods) prior to such date,
then the balance of the Construction Escrow funds shall be immediately disbursed to and
belong to Owner upon Owner delivering to CT&T an affidavit that affirms the facts set
forth immediately above (without the need for any further inquiry by CT&T). Owner
agrees that any amounts of such disbursement that are received by Owner in excess of
$548,962 shall be applied by Owner toward compensation for Owner’s damages sustained as
a result of Tenant’s breach of the Lease or to pay Tenant’s outstanding obligations
under the Lease, including without limitation, Tenant’s obligation to complete the
Required Improvements. If 50% or more of the Escrowed Funds has been applied toward
Required Improvements by the earlier of (i) January 1, 2011 or (ii) the date that Tenant
actually commenced business operations in the Project’s space, then Owner shall promptly
thereafter deliver written direction for CT&T to disburse such balance within three (3)
business days to Tenant and the balance of the Escrowed Funds shall be immediately
disbursed to and belong to Tenant.






	 	(7)	 	If Tenant is in default hereunder or under the Lease (as amended) at any time
that a payment is scheduled to be disbursed from the Construction Escrow, and Owner
delivers a written affidavit to CT&T affirming that fact, then no payment shall be made
from the Construction Escrow unless and until the default is cured to Owner’s reasonable
satisfaction.





Article 3: Requirements



Prior to each disbursement of funds by CT&T hereunder, it is a requirement of this Agreement that
the following conditions shall be satisfied:




	A.	 	Tenant shall have submitted to CT&T on or before the fifth (5th) day of any
calendar month where Tenant is requesting a disbursement of the Escrowed Funds, an original
Tenant Requisition in the form attached hereto as Schedule 1, together with originals of all
exhibits, attachments and enclosures therein described (the “Tenant Draw Package”). Tenant
shall deliver a copy of the entire Tenant Draw Package to Owner concurrently with the delivery
of same to CT&T.






Note: CT&T will use the same care and diligence in the collection and examination of sworn
statements, waivers, affidavits, supporting waivers and releases of liens, for the above
purpose, as it would use were CT&T required by this Agreement to furnish mechanics’ lien
title insurance coverage to a- construction lender, and no greater.




Note: If the funds are to be disbursed to the General Contractor rather than subcontractors,
the collection and examination of the required statements, waivers, — etc., by CT&T shall
not be construed by the owner as an assurance by CT&T that the subcontractors have, in fact,
been paid by the General Contractor.



	 	 	 
	B.
	 	Owner shall have submitted to CT&T Owner’s written approval of the monthly Tenant Draw Package and the requested disbursement.

Owner shall use good faith efforts to promptly respond to the Tenant Draw Package and shall not unreasonably withhold its

approval of same.

	C.
	 	The Escrowed Funds shall be sufficient to cover the current disbursement request.







Article 4: General Conditions




	A.	 	Owner and Tenant each understands and agrees that CT&T’s duties are to disburse deposits
pursuant to the provisions of this Agreement and CT&T’s liability arising from the performance
of those duties regarding the release of mechanics’ lien rights, shall extend only to those
persons to whom CT&T is making payments, and only for those amounts being paid. CT&T had no
liability for any lien rights associated with work previously completed, or completed by
persons not receiving direct payments from CT&T.






	B.	 	Owner and Tenant each understands that CT&T makes no representation that a title insurance
policy insuring over mechanics’ lien claims will necessary issue without additional title
insurance underwriting requirements being met.






	C.	 	CT&T assumes no responsibility concerning the sufficiency of funds deposited herein to
complete the contemplated construction satisfactorily.






	D.	 	If CT&T discovers a misstatement in an affidavit furnished by the General Contractor, it may
stop disbursements until the misstatement has been corrected. CT&T may, at its option, verify
information submitted by the General Contractor or may require the Tenant to furnish
verification by subcontractors or material suppliers.






	E.	 	The functions and duties assumed by CT&T includes only those described in this Agreement and
CT&T is not obligated to act except in accordance with the terms and conditions of this
Agreement. CT&T does not insure that the construction or improvements will be completed, nor
does it insure that the construction or improvements, when completed, will be in accordance
with plans and specifications, nor that sufficient funds will be available for completion, nor
does it make the certifications of the Inspector/Architect its own, nor does it assume any
liability for same other than procurement as one of the conditions precedent to each
disbursement.






	F.	 	CT&T has no liability for loss caused by an error in the certification furnished it hereunder
as to work in place.






	G.	 	CT&T shall not be responsible for any loss of documents which such documents are not in its
custody. Documents deposited in the United States Mail shall not be construed as being in
custody of CT&T.






	H.	 	Deposits made pursuant to these instructions shall be invested until needed for disbursement
in short term instruments as directed by Tenant through any documentation required by CT&T.
The taxpayer’s identification number under which any interest earned will be reported shall be
the party to whom excess funds (if any) are disbursed. The parties shall split the cost of
any fee payable to invest the Escrowed Funds, and any interest earned thereon will be split
equally between the parties.






	I.	 	Except as to deposits of funds for which CT&T has received express written direction
concerning investment or other handling, the parties hereto agree that CT&T shall be under no
duty to invest or reinvest any deposits at any time held by it hereunder; and, further, that
CT&T may commingle such deposits with other deposits or with its own funds in the manner
provided for the administration of funds under Section 2-8 of the Illinois Corporate Fiduciary
Act, 111. Rev. Stat. 1989, ch. 17, par. 1552-8, and may use any part or all such funds for
its own benefit without obligation to any party for interest or earnings derived thereby, if
any. Provided, however, nothing herein shall diminish CT&T’s obligation to apply the full
amount of the deposits in accordance with the terms of this Agreement.






	J.	 	In the event CT&T is requested to invest deposits hereunder, CT&T is not to be held
responsible for any loss of principal or interest which may be incurred as a result of making
the investments or redeeming said investment for the purposes of this escrow trust.






	K.	 	N.B.: Escrow Charges are payable thirty (30) days after billing. In the event escrow charges
are not paid as agreed, CT&T may terminate this Agreement upon thirty (30) day written notice
to Owner, Tenant and Contractor.






	L.	 	This Agreement shall not inure to the benefit of any parties other than the parties hereto,
under a third party beneficiary theory or otherwise; and any liability to such parties is
expressly disclaimed.





[signatures on following page]





1






IN WITNESS WHEREOF, the undersigned have executed this Agreement this— day of October, 2009.



Owner: GLL US OFFICE, L.P.



By: GLL US OFFICE CORP., its General Partner

By: /s/ Edward N. Rime

Its: Vice President




Tenant: DEERFIELD CAPITAL CORP.



By: /s/ Francis P. Straub III


Its: CFO



General Contractor: KRAHL CONSTRUCTION



By: /s/ John P. Paderta

Its: President




Escrow Trustee: Chicago Title and Trust Company



By: /s/ Laura Regalado


(Authorized Signatory)



#387470



Exhibit A




LIST OF EXCLUDED SOFT COSTS





	 	1.	 	All telephone, fiber optic, data service or other telecom wiring and any related
racking.






	 	2.	 	Fixtures (if removable with holes as only damage), furniture, art work, plants and
equipment (including computers and A/V systems).






	 	3.	 	Architectural, engineering and other professional design-related costs and fees.






	 	4.	 	Moving expenses.






	 	5.	 	Construction clean up costs.






	 	6.	 	Fees and permit costs.






	 	7.	 	Plan preparation, construction drawing preparation, printing, travel and bonding
costs.





Schedule 1

TENANT REQUISITION




	 	 	 	 	 
	TO: Chicago Title and Trust Company (“Escrowee Trustee”)

	FROM:Deerfield Capital Corp. (“Tenant”)

	DATE:       , 200_
REQUISITION NO.:
	 	 	—	 






In accordance with Article 3(a) of the Owner’s Construction Trust and Disbursement
Agreement dated as of       , 200       (the “Construction Escrow Agreement”), Tenant
hereby requests that $      (“Requested Amount”) of the Escrowed Funds be
disbursed [to Tenant for payment to the parties identified in the Sworn Tenant Statement
dated     , 200       attached hereto as Exhibit A] and/or [to Tenant’s architect,
project manager, general contractor, or other parties with whom Tenant has a direct
contract in the amounts and to the parties identified in the Sworn Tenant Statement dated
     , 200       attached hereto as Exhibit A].



Also attached hereto are:



1. Copies of invoices or payment applications to be paid or reimbursed as set forth on
the attached Sworn Tenant Statement.



2. For each contractor with whom Tenant has a direct contract (including architects,
engineers and designers), and each first tier subcontractor of such contractor (the “First
Tier Subcontractors”) that supplied labor or material to the property, and to whom a
payment is to be made pursuant to the attached Sworn Tenant Statement, copies of each such
party’s final or partial waivers of lien, as applicable (except to the extent that any such
party has elected to submit such waivers on a 30 day delay basis, hereafter referred to as
“Delay Waivers”; which Delay Waivers shall, in any event, be submitted before the last day
of the next succeeding calendar month).



3. A sworn statement from the General Contractor and a certificate for payment
executed by the Tenant’s Architect, Gensler Architecture Design and Planning P.C. on
American Institute of Architects G-703.



4. In lieu of the waivers described in Section 2 above, copies of Delay Waivers for
work performed or materials supplied pursuant to prior Tenant Requisitions; provided, if
Delay Waivers are utilized, General Contractor shall be required to provide current audited
financials and sign a personal undertaking to Escrowee Trustee.



The amount of the Escrowed Funds (including all recalculations and adjustments as of
the date hereof) is $     . Of this amount $      has previously been
paid. After payment of the Requested Amount, the balance of the Escrowed Funds remaining
to be paid will be $     .



Please address any questions, comments or concerns regarding this Tenant Requisition
in writing to Tenant’s representative,        , at
     .



Deerfield Capital Corp.



By:

Name:

Title:




2



EXHIBIT A



SWORN TENANT STATEMENT



State of Illinois



County of Cook } ss
Escrow No.   



The affiant
             being first
duly sworn, on oath deposes and says that he/she is an authorized representative of
Deerfield Capital Corp. tenant in the Lease with GLL US Office, LP which is the Landlord
and Owner of the following described premises in Cook County, Illinois to wit the entire
twelfth (12th) floor of the building commonly known as One O’Hare Center,
Rosemont, Illinois (the “Premises”).


That, acting solely in his/her capacity as an authorized representative of Deerfield
Capital Corp., affiant states that:




	1.	 	He/She is familiar with the facts and circumstances concerning Tenant’s design and
construction activities with respect to the Premises;	 






	2.	 	The only work done or materials furnished in connection with the Premises by or at
the direction of Tenant, are listed on Exhibit A-1 attached hereto;	 






	3.	 	The only contracts entered into by Tenant for the furnishing of future work or
materials relative to the contemplated tenant improvements are as listed on Exhibit
A-1 attached hereto;	 






	4.	 	This statement is a true and complete statement of all such contracts, previous
payments, and balances due, if any, as of the Effective Date set forth below.	 





Effective Date:       , 200      



Deerfield Capital Corp.



By:      


Authorized Representative



Signed and subscribed to before me this        day of       , 200      .



     


Notary Public



	 	 	 	 	 	 	 	 	 	 	 
	 	 	E

	 	XHIBIT A-1
	 	

	 	

	 	

	Name and Address
	 	Kind of work

	 	ADJUSTED TOTAL

CONTRACT INCL.

EXTRAS & CREDITS
	 	Previously

Paid



	 	AMOUNT OF

THIS PAYMENT



	 	BALANCE TO

BECOME DUE



	 
	 	 

	 	 
	 	 
	 	 
	 	 
	 	 	      ARCHITECT

	 	

	 	

	 	

	 	

	 	 	 

	 	

	 	

	 	

	 	

	      
	 	CONSULTANT

	 	

	 	

	 	

	 	

	 	 	 

	 	

	 	

	 	

	 	

	      
	 	      

	 	

	 	

	 	

	 	

	 	 	 

	 	

	 	

	 	

	 	

	      
	 	      

	 	

	 	

	 	

	 	

	 	 	 

	 	

	 	

	 	

	 	

	      
	 	      ENGINEER            

	 	

	 	

	 	

	 	

	 	 	 

	 	

	 	

	 	

	 	

	      
	 	      

	 	

	 	

	 	

	 	

	 	 	 

	 	

	 	

	 	

	 	

	      
	 	      

	 	

	 	

	 	

	 	

	 	 	 

	 	

	 	

	 	

	 	

	      
	 	           

	 	

	 	

	 	

	 	

	 	 	 

	 	

	 	

	 	

	 	

	      
	 	      

	 	

	 	

	 	

	 	

	 	 	 

	 	

	 	

	 	

	 	

	      
	 	      

	 	

	 	

	 	

	 	

	 	 	 

	 	

	 	

	 	

	 	

	      
	 	            GENERAL—

	 	

	 	

	 	

	 	

	 	 	_

CONTRACTOR

	 	



	 	



	 	



	 	



	 	 	 

	 	

	 	

	 	

	 	

	      
	 	      

	 	

	 	

	 	

	 	

	 	 	 

	 	

	 	

	 	

	 	

	      
	 	      

	 	

	 	

	 	

	 	

	 	 	 

	 	

	 	

	 	

	 	

	      
	 	      OFF-SITE—

	 	 	 	

	 	

	 	

	 	 	PERSONAL PROPERTY

	 	

	 	

	 	

	 	

	 	 	 

	 	 
	 	

	 	

	 	

	      
	 	      

	 	

	 	

	 	

	 	

	 	 	 

	 	

	 	

	 	

	 	

	      
	 	      

	 	

	 	

	 	

	 	

	 	 	 

	 	

	 	

	 	

	 	

	      
	 	            OTHERS      

	 	

	 	

	 	

	 	

	 	 	 

	 	

	 	

	 	

	 	

	      
	 	      

	 	

	 	

	 	

	 	

	 	 	 

	 	

	 	

	 	

	 	







Exhibit 2

Deerfield Capital Corp.’s Disbursement Certification





	 	 	To: Chicago Title and Trust Company	 





	 	 	 
	 	 	Attn:

	 	 	 

	Re:
	 	Commitment No.:

	 	 	 

	 	 	Project Name: One O’Hare Center, Rosemont, Illinois







The amount of $      was disbursed on       , 200        by the undersigned.
The disbursements made are as listed on the Sworn Tenant Statement dated
     , 200       .



Deerfield Capital Corp.



	 	 	 
	By: __________________________________

	cc:

	 	Owner







3