bmnm8k05272008ex10-2.htm


    Exhibit
10.2

    


    Execution
Version

    




    EIGHTH
AMENDED AND RESTATED LIMITED LIABILITY COMPANY AGREEMENT OF ORCHID ISLAND TRS,
LLC

     

    This
EIGHTH AMENDED AND RESTATED LIMITED LIABILITY COMPANY AGREEMENT (the “Agreement”) of Orchid
Island TRS, LLC (f/k/a Opteum Financial Services, LLC) (the “Company”), dated as
of May 27, 2008 (this “Agreement”), is made
and entered into by BIMINI CAPITAL MANAGEMENT, INC., a Maryland corporation (the
“Member”).

     

    RECITALS

     

    WHEREAS,
the Company was formed on February 26, 1999 as a limited liability company
pursuant to the Delaware Limited Liability Company Act, 6 Del. C. § 18-101,
et seq., as amended
from time to time (the “Act”), by filing a
Certificate of Formation of the Company with the office of the Secretary of
State of the State of Delaware; and

     

    WHEREAS,
on May 27, 2008, the Member purchased all outstanding non-voting Class B
Membership Interests of the Company pursuant to and in accordance with the terms
of the certain Membership Interest Purchase Agreement, dated as of May 27, 2008
(the “Purchase
Agreement”), by and among the Company, the Member and Citigroup Global
Markets Realty Corp. which resulted in the Member becoming the sole member of
the Company; and

     

    WHEREAS,
prior to the purchase contemplated by the Purchase Agreement the Member held
interests in the Company designated as Class A Membership Interests;
and

     

    WHEREAS,
following the completion of the acquisition of the Class B Member Interests
pursuant to the Purchase Agreement  the Member, as the sole member of
the Company, desires to convert and reclassify all Class A Membership Interests
and Class B Membership Interests into one series of membership interests with
voting rights; and

     

    WHEREAS,
the Member now desires to amend and restate the Company’s Seventh Amended and
Restated Limited Liability Company Agreement, dated as of July 20, 2007 to give
effect to the foregoing.

     

    NOW,
THEREFORE, the Member hereby declares as follows:

     

    Section
1. Name.  The
name of the Company is “Orchid Island TRS, LLC.”  The Board of
Managers is authorized to change the name of the Company and may otherwise
conduct the business and affairs of the Company under any other name, if it
deems it necessary or advisable to do so, provided that it complies
with all applicable laws in doing so and so long as such name includes the words
“Limited Liability Company” or the abbreviation “LLC”.  The Company
shall notify the Member in writing of any such change or use of other
name.  In the event that the name of the Company is changed pursuant
to this Section, references herein to the name of the Company shall be deemed to
have been amended to the name as so changed.

     

    Section
2. Purpose.  The
Company may engage in any lawful business, purpose or activity permitted under
the Act and approved by the Board of Managers, and exercise all the powers and
privileges granted by the Act or by any other law or this Agreement, together
with any powers incidental thereto, including such powers and privileges as are
necessary or convenient to the conduct, promotion or attainment of the business
purposes or activities of the Company; provided, however, that the Company
shall not directly or indirectly operate or manage a “lodging facility” or a
“health care facility” or directly or indirectly provide to any other person
(under a franchise, license, or otherwise) any rights to any brand name under
which any lodging facility or health care facility is operated, in each case, as
set forth in Section 856(l)(3) and (4) of the Internal Revenue Code of
1986, as amended (the “Code”).

     

    Section
3. Term; Continued
Existence.  The Company shall continue in perpetuity unless
sooner dissolved in accordance with Section 15.  The Member shall
take all actions necessary to ensure the Company’s existence as a limited
liability company in good standing under the laws of the State of Delaware and
under the laws of any other state in which the Company conducts the business and
activities authorized in this Agreement.

     

    Section
4. Principal Office; Books and
Records.  The principal office of the Company shall be located
at 3305 Flamingo Drive, Vero Beach, Florida  32963 or such other place
or places as the Board of Managers may determine.  The Board of
Managers shall be responsible for maintaining at the Company’s principal office
those books and records required by the Act to be so maintained.

     

    Section
5. Registered Office and
Agent.  The address of the registered office of the Company in
the State of Delaware is c/o Corporation Service Company, 2711 Centerville Road,
Suite 400, Wilmington, Delaware  19808.  The name of
the registered agent of the Company is Corporation Service
Company.  The address of the registered agent in the State of Delaware
is 2711 Centerville Road, Suite 400, Wilmington,
Delaware  19808.  The registered agent and the registered
office of the Company may be changed from time to time by the Board of
Managers.

     

    Section
6. Membership Interests;
Members.

     

    (a) Upon the
effectiveness of this Agreement all membership interests formerly representing
Class A Membership Interests and Class B Membership Interests are hereby
converted, without any further action on the part of the Member being necessary,
into a single class of membership interests in the Company designated
“Membership Interests.”  As of the effective date of this Agreement,
certificates formerly representing Class A Membership Interests and Class B
Membership Interests shall automatically represent the like number, amount and
percentage of Membership Interests in the Company, with voting rights and being
entitled to all of the rights and privileges of a member pursuant to this
Agreement and the Act.

     

    (b) The name,
mailing address and Membership Interest in the Company of the sole Member are
set forth on Exhibit A
hereto.  No other person or entity shall be admitted as a member of
the Company, and no additional Membership Interests in the Company shall be
issued, without the approval of the Member and appropriate amendments to this
Agreement, including Exhibit A.

     

    Section
7. Liability of the
Member.  Except as otherwise expressly provided in the Act, the
debts, obligations and liabilities of the Company, whether arising in contract,
tort or otherwise, shall be solely the debts, obligations and liabilities of the
Company, and the Member shall not be obligated personally for any such debt,
obligation or liability of the Company solely by reason of being a
member.

     

    Section
8. Management of the
Company.

     

    (a) The
Company shall have a Board of Managers (the “Board of Managers”),
which shall be the “manager” of the Company (within the meaning of the Act) and
the size and composition of which shall be as set forth in this
Section 8.

     

    (b) Subject
to the delegation of powers provided for herein and the limitations set forth
herein, the right and power to manage and control the business and affairs of
the Company shall be vested exclusively in the Board of Managers, and the Board
of Managers shall have the exclusive right and power, in the name of and on
behalf of the Company, to perform all acts and do all things which, in its sole
discretion, it deems necessary or desirable to conduct the business of the
Company.  Except as otherwise required by law, the Member shall not
have any right or power, by reason of the Member’s status as such, to act for or
bind the Company, but shall have only the right to vote on, approve or take the
actions herein specified to be voted on, approved or taken by it.

     

    (c) The Board
of Managers shall consist of one or more individuals (each, a “Manager”), with the
exact number of Managers to be determined from time to time by the Member in its
sole discretion.  Initially, the Board of Managers shall consist of
one Manager who shall be G. Hunter Haas, IV .  Each Manager shall be
appointed by the Member in its sole discretion and may be removed by the Member
at any time in its sole discretion.  Each Manager shall hold office
until such Manager’s death or resignation or removal by the
Member.  Any Manager may resign at any time by giving written notice
to the Member.  Such resignation shall take effect at the time
specified therein or, if the time be not specified, upon receipt thereof; and
unless otherwise specified therein, the acceptance of such resignation shall not
be necessary to make it effective.  Vacancies on the Board of Managers
resulting from death, resignation, removal or otherwise and newly created
managerships resulting from any increase in the number of Managers shall be
filled solely by action taken by the Member.

     

    (d) A
majority of the total number of Managers then in office, whether present in
person or represented by proxy, shall constitute a quorum for the transaction of
business at a meeting of the Board of Managers, and the affirmative vote of a
majority in voting power of the Managers present at any such meeting, whether
present in person or represented by proxy, at which a quorum is present shall be
necessary for the passage of any resolution or act of the Board of
Managers.  At each meeting of the Board of Managers at which a quorum
is present, each other Manager present at such meeting, whether present in
person or represented by proxy, shall be entitled to one vote on each matter to
be voted on at such meeting.  Any action required or permitted to be
taken at any meeting of the Board of Managers may be taken by the unanimous
written consent of the Managers then in office.

     

    Section
9. Committees of the Board of
Managers.  The Board of Managers may designate, by resolution,
one or more committees.  Any such committee, to the extent provided in
the resolution of the Board of Managers, shall have and may exercise all the
powers and authority of the Board of Managers in the management of the business
and affairs of the Company, and may authorize the seal of the Company to be
affixed to all papers which may require it.  Each committee shall
consist of one or more of the Managers.  Each member of a committee
shall be appointed by the Board of Managers in its sole discretion (but subject
to the foregoing sentence) and may be removed by the Board of Managers at any
time in their sole discretion.  Each member of a committee shall hold
office until the member’s death or resignation or removal by the Board of
Managers.  Any member of a committee may resign at any time from such
committee by giving written notice to the Board of Managers.  Such
resignation shall take effect at the time specified therein or, if the time be
not specified, upon receipt thereof; and unless otherwise specified therein, the
acceptance of such resignation shall not be necessary to make it
effective.  Vacancies on a committee resulting from death,
resignation, removal or otherwise and newly created positions on a committee
resulting from any increase in the number of members of a committee shall be
filled solely by the Board of Managers.  The Board of Managers may
designate one or more Managers as alternate members of any committee, who may
replace any absent member at any meeting of the committee.  All of the
members of a committee then in office (or, in the absence of the member, the
alternate member who has replaced the member), whether present in person or
represented by proxy, shall constitute a quorum for the transaction of business
at a meeting of such committee, and the affirmative vote of the member (or the
alternate members who have replaced them) shall be necessary for the passage of
any resolution or act of such committee.  Any action required or
permitted to be taken at any meeting of a committee may be taken by the written
consent of all of the members of such committee then in office.  Each
committee shall report its actions to the Board of Managers when so required by
the Board of Managers.

     

    Section
10. Officers.  The
Board of Managers or the officer to which it delegates such responsibility may,
from time to time, designate or appoint one or more officers of the Company,
including, without limitation, president, one or more vice presidents, a
secretary, an assistant secretary and/or a treasurer.  Such officers
must be employees of the Company or an affiliate of the Company.  Each
appointed officer shall hold office until:  (i) his/her successor
is appointed by the Board of Managers or its applicable delegate; (ii) such
officer submits his/her resignation; or (iii) such officer is removed, with
or without cause, by the Board of Managers or its delegate.  All
officers shall have such authority and perform such duties as the Board of
Managers or its delegates may determine, subject to the terms and provisions of
this Agreement.

     

    Section
11. Duties and Liabilities of
the Member and Officers.

     

    (a) None of
the Member, any Manager or any officer shall be liable to the Company for any
loss or damages resulting from errors in judgment or for any acts or omissions
that do not constitute willful misconduct or gross negligence on the part of the
Member, Manager or officer.  In all transactions for or with the
Company, the Member, the Managers and the officers shall act in good faith and
in the best interest of the Company.

     

    (b) The
Company, its receiver or its trustee (but not the Member personally, if the
Member shall act as the receiver or trustee) shall indemnify and defend the
Member, the Managers and the officers against, and hold them harmless from, any
and all losses, judgments, costs, damages, liabilities, fines, claims and
expenses (including, but not limited to, reasonable attorney’s fees and court
costs, which shall be paid by the Company as incurred) that may be made or
imposed upon such persons and any amounts paid in settlement of any claims
sustained by the Company by reason of any act or inaction which is determined to
have been taken in good faith in the best interests of the Company and so long
as such conduct shall not constitute willful misconduct or gross
negligence.

     

    (c) In the
event of settlement of any action, suit or proceeding brought or threatened,
such indemnification shall apply to all matters covered by the settlement except
for matters as to which it is determined that the person seeking indemnification
did not act in good faith in the best interests of the Company or such matter
resulted from willful misconduct or gross negligence.  The foregoing
right of indemnification shall be in addition to any rights to which the Member,
the Managers and officers may otherwise be entitled and shall inure to the
benefit of the executors, administrators, personal representatives, successors
or assigns of each such person.

     

    (d) The
Company shall pay the expenses incurred by the Member, the Managers or any
officer in defending a civil or criminal action, suit or proceeding, upon
receipt of an undertaking by such person to repay such payment if such person
shall be determined not to be entitled to indemnification therefor as provided
herein.  Any right of indemnity granted under this Section 11 may
be satisfied only out of the assets of the Company and none of the Member, any
Manager or any officer shall be personally liable with respect to any such claim
for indemnification.

     

    (e) The
Company shall have the power to purchase and maintain insurance in reasonable
amounts on behalf of the Company and the Member, Managers, officers, employees
and agents of the Company against any liability incurred by them in their
capacities as such.

     

    (f) The
provisions of this Section 11 shall not be construed to limit the power of
the Company to indemnify its Member, Managers, officers, employees or agents to
the fullest extent permitted by law or to purchase insurance or enter into
specific agreements, commitments or arrangements for
indemnification.  The absence of any express provision for
indemnification in this Agreement shall not limit any right of indemnification
existing independently of this Section 11.

     

    Section
12. Capital
Contributions.  The Member shall have no obligation to
contribute any capital, or to make any loans, to the Company.  With
the prior approval of the Board of Managers, the Member may, however, from time
to time make voluntary capital contributions to the Company.

     

    Section
13. Distributions; Allocation of
Profits and Losses.  Distributions shall be made by the Company
to the Member at the times and in the amounts as may from time to time be
determined by the Board of Managers.

     

    Section
14. Tax
Matters.  At all times, the Company shall be treated as a
corporation for U.S. federal income tax purposes and shall take all necessary
and appropriate actions to confirm and ensure such treatment including, but not
limited to, filing all required U.S. federal income tax returns and elections
necessary or appropriate to secure and preserve such treatment.  In
addition, at all times, the Company shall be treated as a “taxable REIT
subsidiary” (within the meaning of Section 856(l) of the Code) and shall
take all necessary and appropriate actions to confirm and ensure such treatment
including, but not limited to, filing all required U.S. federal income tax
returns and elections necessary or appropriate to secure and preserve such
treatment.  The Company shall not take any action, directly or
indirectly, that would adversely affect the Company’s ability to qualify as a
taxable REIT subsidiary.

     

    Section
15. Dissolution.  Subject
to the terms of this Agreement, the Company shall be dissolved, and shall
terminate and wind up its affairs upon the first to occur of (i) the
written consent of the Member or (ii) the entry of a decree of judicial
dissolution under Section 18-802 of the Act.

     

    Section
16. Liquidation.  Upon
dissolution, the Company’s business shall be liquidated in an orderly
manner.  The Member shall act as the liquidator (unless it elects to
appoint a liquidator) to wind up the affairs of the Company pursuant to this
Agreement.  If there shall be no members, the successor-in-interest to
the Member may serve as such liquidator or may approve one or more liquidators
to act as the liquidator in carrying out such liquidation.  In
performing its duties, the liquidator is authorized to sell, distribute,
exchange or otherwise dispose of the assets of the Company in accordance with
the Act and in any reasonable manner that the liquidator shall determine to be
in the best interest of the Member or its successors-in-interest.  The
proceeds of any liquidation shall be applied and distributed in the following
order of priority:

     

    (a) for the
payment of the debts and liabilities of the Company (including any debts and
liabilities owed to the Member to the extent permitted under the Act (and the
expenses of liquidation));

     

    (b) to the
setting up of any reserves that the Member reasonably may deem necessary for any
contingent or unforeseen liabilities or obligations of the Company arising in
connection with the business of the Company.  These reserves may be
paid over by the Member to any attorney-at-law, as escrowee, to be held by such
attorney for the purpose of disbursing such reserves in payment of any of the
aforementioned contingencies and, at the expiration of such period as the Member
shall deem advisable, to distribute the balance of such reserves to the Member;
and

     

    (c) thereafter,
to the Member.

     

    Section
17. Right to
Partition.  To the extent permitted by law, and except as
otherwise expressly provided in this Agreement, the Member, on behalf of itself
and its successors and assigns hereby specifically renounces, waives and
forfeits all rights, whether arising under contract or statute or by operation
of law, to seek, bring or maintain any action in any court of law or equity for
partition of the Company or any asset of the Company, or any interest which is
considered to be Company property, regardless of the manner in which title to
any such property may be held.

     

    Section
18. Severability.  It
is the desire and intent of the Member that the provisions of this Agreement be
enforced to the fullest extent permissible under the laws and public policies
applied in each jurisdiction in which enforcement is
sought.  Accordingly, if any particular provision of this Agreement
shall be adjudicated by a court of competent jurisdiction to be invalid,
prohibited or unenforceable for any reason, such provision, as to such
jurisdiction, shall be ineffective, without invalidating the remaining
provisions of this Agreement or affecting the validity or enforceability of such
provision in any other jurisdiction.  Notwithstanding the foregoing,
if such provision could be more narrowly drawn so as not to be invalid,
prohibited or unenforceable in such jurisdiction, it shall, as to such
jurisdiction, be so narrowly drawn, without invalidating the remaining
provisions of this Agreement or affecting the validity or enforceability of such
provision in any other jurisdiction.

     

    Section
19. Modification, Waiver or
Termination.  No modification, waiver or termination of this
Agreement, or any part of this Agreement, shall be effective unless made in
writing.

     

    Section
20. Benefits of
Agreement.  No person or entity other than the Member and the
Company is, nor is it intended that any such other person or entity be treated
as, a direct, indirect, intended or incidental third-party beneficiary of this
Agreement for any purpose whatsoever, nor shall any such other person or entity
have any legal or equitable right, remedy or claim under or in respect of this
Agreement.  Without limiting the generality of the foregoing, nothing
in this Agreement, expressed or implied, is intended or shall be construed to
give to any creditor of the Company or to any creditor of any Member or any
other person or entity whatsoever, other than the Member and the Company, any
legal or equitable right, remedy or claim under or in respect of this Agreement
or any covenant, condition or provisions contained in this Agreement, and such
provisions are and shall be held to be for the sole and exclusive benefit of the
Member and the Company.

     

    Section
21. Interpretation.  As
used in this Agreement, the masculine, feminine or neuter gender, and the
singular or plural number, shall be deemed to be or include the other genders or
number, as the case may be, whenever the context so indicates or
requires.  Sections and other titles contained in this Agreement are
for convenience of reference only and shall not define or limit any of the
provisions of this Agreement.

     

    Section
22. Binding
Effect.  This Agreement shall be binding upon and inure to the
benefit of the Member and its successors and permitted assigns.

     

    Section
23. Governing
Law.  THIS
AGREEMENT SHALL BE GOVERNED BY, AND CONSTRUED IN ACCORDANCE WITH, THE LAWS OF
THE STATE OF DELAWARE, WITHOUT GIVING EFFECT TO CONFLICTS OF LAW PRINCIPLES OF
SUCH STATE.

     

    Section
24. Application of the
Act.  Any matter not specifically covered by a provision of
this Agreement shall be governed by the applicable provisions of the
Act.

     

    Section
25. Effective Date. This
Agreement shall become effective immediately following the completion of the
acquisition of the Class B Membership Interests by the Member pursuant to the
terms of the Purchase Agreement.

     

    [Signature appears on the following
page.]

     


    
      
        
          


           

        

         


      

      
         


        
          

        

      

      
         


      

    


    IN
WITNESS WHEREOF, the undersigned has duly executed this Agreement as of the day
first above written.

     

    BIMINI
CAPITAL MANAGEMENT, INC.

     

    
      	
               

            	 	 


    

    
      	
            	
              By:

            


    

    
      	
               
      

            	
              Name:  Robert
      E. Cauley

            


    

     

    
      	
               
      

            	
              Title:  President
      and Chief Executive Officer

            


    

     

    



    
      
        
          


           

        

         


      

      
         


        
          

        

      

      
         


      

    


    EXHIBIT
A

     

    
      	
              
                Member

              

            	
              
                Mailing
      Address

              

            	
              
                Membership
      Interest

              

            
	
              Bimini
      Capital Management, Inc.

            	
              3305
      Flamingo Drive, Vero Beach,

              Florida  32963

            	
              100%