EX-10.2






Exhibit 10.2




EXECUTION COPY




SIXTH AMENDED AND RESTATED LIMITED LIABILITY COMPANY AGREEMENT OF OPTEUM FINANCIAL SERVICES, LLC




This SIXTH AMENDED AND RESTATED LIMITED LIABILITY COMPANY AGREEMENT (the “Agreement”)
of Opteum Financial Services, LLC (the “Company”), dated as of December 21, 2006 (this
“Agreement”), is made and entered into by OPTEUM INC., a Maryland corporation (the
“Opteum”), and CITIGROUP GLOBAL MARKETS REALTY CORP., a New York corporation
(“Citigroup” and, together with Opteum, the “Members”).



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 December 21, 2006, immediately following Opteum’s conversion and reclassification
of a number of limited liability company interests in the Company from Class A Membership Interests
to Class B Membership Interests, Citigroup acquired the percentage and class of limited liability
company interests in the Company (the “Membership Interests”) set forth opposite
Citigroup’s name on Exhibit A hereto from Opteum pursuant to and in accordance with the
terms of that certain Membership Interest Purchase, Option and Investor Rights Agreement, dated as
of December 21, 2006 (the “Purchase Agreement”), by and among the Company, Opteum and
Citigroup; and



WHEREAS, the Members desire to amend and restate the Company’s Fifth Amended and Restated
Limited Liability Company Agreement, dated as of November 3, 2005.



NOW, THEREFORE, the Members hereby declare as follows:



Section 1. Name. The name of the Company is “Opteum Financial Services, 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 Members 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 19. The Members 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 115 West Century Road, Paramus, New Jersey 07652 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. Members. The names, mailing addresses, class of Membership Interest and
percentage interests (the “Percentage Interest”) of the Members are set forth on
Exhibit A hereto. No other person or entity shall be admitted as a member of the Company,
and no additional interests in the Company shall be issued, without the approval of Opteum and
appropriate amendments to this Agreement, including Exhibit A.



Section 7. Classes of Membership Interests; Reclassification Upon Purchase.



(a) The Membership Interests shall be issued in two classes: the “Class A Membership
Interests” and the “Class B Membership Interests”. The Class A Membership Interests
and the Class B Membership Interests shall be identical in all respects, except that the Class A
Membership Interests shall have voting rights and the Class B Membership Interests shall not have
voting rights. All or any portion of the Class A Membership Interests may be converted and
reclassified by the holder thereof, at any time, into an equal number of Class B Membership
Interests.



(b) Pursuant to the terms of the Purchase Agreement, Citigroup acquired Class B Membership
Interests from Opteum, such Class B Membership Interests having been reclassified as Class B
Membership Interests from Class A Membership Interests by Opteum immediately prior to their
acquisition by Citigroup. At the Option Closing (as defined in the Purchase Agreement) and
pursuant to the terms of the Purchase Agreement, Citigroup may acquire from Opteum additional
Membership Interests constituting an additional 7.49% of the Membership Interests then outstanding
and such Membership Interests shall, immediately prior to such sale by Opteum, be reclassified from
Class A Membership Interests to Class B Membership Interests. Following such acquisition, if any,
or any other change in ownership or class or any increase or decrease in ownership percentage,
Exhibit A hereto shall be amended to reflect the new ownership, percentage and class of
outstanding Membership Interests held by the Members as of such date.



Section 8. 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 no Member
shall be obligated personally for any such debt, obligation or liability of the Company solely by
reason of being a member.



Section 9. 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 9.



(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, no Member shall 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 Opteum
in its sole discretion. Initially, the Board of Managers shall consist of the following three
Managers: Jeff Zimmer, Robert Cauley and Peter Norden. Each Manager shall be appointed by Opteum
in its sole discretion and may be removed by Opteum at any time in its sole discretion. Each
Manager shall hold office until such Manager’s death or resignation or removal by Opteum. Any
Manager may resign at any time by giving written notice to the Members. 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 Opteum.



(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 10. 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 11. 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 12. Duties and Liabilities of the Members and Officers.



(a) Neither any Member nor any Manager or 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 Members, 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 any Member personally, if any Member
shall act as the receiver or trustee) shall indemnify and defend the Members, 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 Members, 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 Members, 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 12
may be satisfied only out of the assets of the Company and no Member nor any Manager or 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 Members, 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 12 shall not be construed to limit the power of the Company
to indemnify its Members, 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 12.



Section 13. Capital Contributions. The Members 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 Members may, however, from time to time make voluntary capital contributions to the
Company.



Section 14. Distributions; Allocation of Profits and Losses. Distributions shall be
made by the Company to the Members at the times and in the amounts as may from time to time be
determined by the Board of Managers. Distributions shall be made to each Member based on the
Percentage Interest held by such Member on the date of such distribution.



Section 15. 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 16. Transfers. Except as specifically provided in the Purchase Agreement,
Citigroup shall not, directly or indirectly, whether voluntarily, involuntarily, by operation of
law or otherwise, transfer, dispose of, sell, lend, pledge, hypothecate, encumber, assign,
exchange, participate, subparticipate, or otherwise transfer in any manner (each, a
“Transfer”) all or any portion of its Membership Interests, or any rights arising under,
out of or in respect of this Agreement, including, without limitation, any right to damages for
breach of this Agreement unless prior to such Transfer the transferee and such Transfer is approved
by the Board of Managers, which approval may be withheld in its sole and absolute discretion.



Section 17. 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 election
of Opteum or (ii) the entry of a decree of judicial dissolution under Section 18-802 of the Act.



Section 18. Liquidation. Upon dissolution, the Company’s business shall be liquidated
in an orderly manner. Opteum 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 Opteum 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 Members or their 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 Members to the extent permitted under the Act (and the expenses of
liquidation));



(b) to the setting up of any reserves that Opteum 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 Opteum 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 Opteum shall deem
advisable, to distribute the balance of such reserves to the Members based on their Percentage
Interests; and



(c) thereafter, to the Members based on their Percentage Interests.



Section 19. Right to Partition. To the extent permitted by law, and except as
otherwise expressly provided in this Agreement, each 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 20. Severability. It is the desire and intent of the Members 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 21. Integration. Except as expressly provided herein, this Agreement and the
Purchase Agreement constitutes the entire agreement among the parties pertaining to the subject
matter of this Agreement and supersedes all prior and contemporaneous agreements and understandings
of the parties in connection with this Agreement. Except as expressly provided herein, no prior,
contemporaneous, or future covenant, representation, or condition not expressed in this Agreement
or in an amendment to this Agreement in accordance with Section 22 shall affect or be effective to
interpret, change or restrict the express provisions of this Agreement.



Section 22. 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 23. Benefits of Agreement. No person or entity other than the Members 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 Members 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 Members and
the Company.



Section 24. 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 25. Binding Effect. This Agreement shall be binding upon and inure to the
benefit of the Members and their respective successors and permitted assigns.



Section 26. Actions by Opteum. Any action required or permitted to be taken under
this Agreement by Opteum shall require written evidence of such action executed by at least two
duly appointed and authorized officers of Opteum.



Section 27. 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 28. 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 29. Effective Date. This Agreement shall be effective immediately following
Citigroup’s acquisition of Membership Interests pursuant to the Purchase Agreement.



[Signature appears on the following page.]




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




OPTEUM INC.




	 	 	 	By:
/s/ Jeffrey J. Zimmer






	 	 	Name: Jeffrey J. Zimmer

Title: Chairman, President and Chief

Executive Officer






CITIGROUP GLOBAL MARKETS REALTY CORP.




	 	 	 	By:
/s/ Joel Katz






	 	 	Name: Joel Katz

Title: Authorized Agent




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EXHIBIT A




	 	 	 	 	 	 	 	 	 	 	 	 	 
	 	 	 	 	 	 	Class of Membership	 	 
	Member	 	Mailing Address	 	Interest	 	Percentage Interest
	Opteum Inc.
	 	3305 Flamingo Drive,	 	Class A
	 	 	92.5	%
	 
	 	Vero Beach, Florida
	 	 	 	 	 	 	 	 
	 
	 	 	32963	 	 	 	 	 	 	 	 	 
	Citigroup Global
Markets Realty
	 	390 Greenwich Street	 	 	 	 	 	 	 	 
	Corp.
	 	New York, New York 10013
	 	Class B
	 	 	7.5	%







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