exv10w1






Exhibit 10.1




 




MANAGEMENT AGREEMENT



by and between



Orchid Island Capital, Inc.



and



Bimini Advisors, Inc.



Dated as of [     ], 2011



 





 









 







MANAGEMENT AGREEMENT, dated as of [     ], 2011, by and between Orchid Island Capital, Inc.,
a Maryland corporation (the “Company”) and Bimini Advisors, Inc., a Maryland corporation (the
“Manager”).




W I T N E S S E T H:



WHEREAS, the Company is a recently-formed corporation which invests in residential mortgage-backed
securities (“RMBS”) the principal and interest payments of which are guaranteed by the Federal
National Mortgage Association, the Federal Home Loan Mortgage Corporation or the Government
National Mortgage Association, and are backed by primarily single-family residential mortgage loans
(collectively, “Agency RMBS”). The Company’s investment strategy focuses on two categories of
Agency RMBS: (i) traditional pass-through Agency RMBS and (ii) structured Agency RMBS, such as
collateralized mortgage obligations, interest only securities, inverse interest only securities and
principal only securities, among other types of structured Agency RMBS. The Company intends to
qualify as a real estate investment trust for federal income tax purposes and will elect to receive
the tax benefits accorded by Sections 856 through 860 of the Internal Revenue Code of 1986, as
amended (the “Code”);



WHEREAS, the Manager is a wholly-owned subsidiary of Bimini Capital Management, Inc. (“Bimini”);
and



WHEREAS, the Company desires to retain the Manager to administer the business activities and
day-to-day operations of the Company and to perform services for the Company in the manner and on
the terms set forth herein and the Manager wishes to be retained to provide such services.



NOW THEREFORE, in consideration of the premises and agreements hereinafter set forth, the parties
hereto hereby agree as follows:




Section 1. Definitions.



(a) The following terms shall have the meanings set forth in this Section 1(a):



“Affiliate” means (i) any Person directly or indirectly controlling, controlled by, or under common
control with such other Person, (ii) any executive officer, general partner or employee of such
other Person, (iii) any member of the board of directors or board of managers (or bodies performing
similar functions) of such Person, and (iv) any legal entity for which such Person acts as an
executive officer or general partner.



“Agency RMBS” has the meaning set forth in the Recitals.



“Agreement” means this Management Agreement, as amended, supplemented or otherwise modified from
time to time.



“Automatic Renewal Term” has the meaning set forth in Section 10(b) hereof.



“Bimini” has the meaning set forth in the Recitals.



“Board of Directors” means the board of directors of the Company.



“Business Day” means any day except a Saturday, a Sunday or a day on which banking institutions in
New York, New York are not required to be open.



“Change of Control” means the occurrence of any of the following:



     (i) the sale, lease or transfer, in one or a series of related transactions, of all or
substantially all of the assets (x) of the Manager to any Person other than any Affiliate of the
Manager or (y) of Bimini to any Person other than any affiliate of Bimini; or



     (ii) the acquisition by any Person or group (within the meaning of Section 13(d)(3) or Section
14(d)(2) of the Exchange Act, or any successor provision), including any group acting for the
purpose of acquiring, holding or





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disposing of securities (within the meaning of Rule 13d-5(b)(1)
under the Exchange Act), other than any Affiliate of
the Manager (in the case of Manager Voting Power, as defined below) or Bimini (in the case of
Bimini Voting Power, as defined below), in a single transaction or in a related series of
transactions, by way of merger, consolidation or other business combination or purchase of
beneficial ownership (within the meaning of Rule 13d-3 under the Exchange Act, or any successor
provision) of 50% or more of the total voting power of the voting capital interests of the Manager
(“Manager Voting Power”) or of Bimini (“Bimini Voting Power”).



“Claim” has the meaning set forth in Section 8(c) hereof.



“Closing Date” means the date of closing of the Initial Offering.



“Code” has the meaning set forth in the Recitals.



“Common Stock” means the common stock, par value $0.01 per share, of the Company.



“Company” has the meaning set forth in the Recitals.



“Company Indemnified Party” has the meaning set forth in Section 8(b) hereof.



“Conduct Policies” has the meaning set forth in Section 2(k) hereof.



“Confidential Information” has the meaning set forth in Section 5 hereof.



“Effective Termination Date” has the meaning set forth in Section 10(c) hereof.



“Equity” means the Company’s month-end stockholders’ equity, adjusted to exclude the effect of any
unrealized gains or losses included in either retained earnings or other comprehensive income
(loss), each computed in accordance with GAAP.



“Exchange Act” means the Securities Exchange Act of 1934, as amended.



“GAAP” means generally accepted accounting principles in effect in the United States on the date
such principles are applied.



“Governing Instruments” means, with regard to any entity, the articles of incorporation or
certificate of incorporation and bylaws in the case of a corporation, the partnership agreement in
the case of a general or limited partnership or the certificate of formation and operating
agreement in the case of a limited liability company, the trust instrument in the case of a trust,
or similar governing documents in each case as amended.



“Indemnified Party” has the meaning set forth in Section 8(b) hereof.



“Independent Director” means a member of the Board of Directors who is “independent” in accordance
with the Company’s Governing Instruments and the rules of the NYSE or such other securities
exchange on which the shares of Common Stock are listed.



“Initial Offering” means the Company’s sale of Common Stock to investors in an underwritten initial
public offering pursuant to an effective registration statement of the Company filed with the SEC.



“Investment Allocation Agreement” means an agreement among the Company, the Manager and Bimini
describing, among other things, the policies to be followed by the Manager and Bimini in allocating
investments among the parties thereto and any other entities that may be managed by the Manager.



“Investment Committee” means the investment committee formed by the Manager, the members of which
shall consist of officers of the Manager and/or other Affiliates of the Manager, including but not
limited to Bimini.




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“Initial Term” has the meaning set forth in Section 10(a) hereof.



“Investment Company Act” means the Investment Company Act of 1940, as amended.



“Investment Guidelines” means the investment guidelines proposed by the Investment Committee and
approved by the Board of Directors, a copy of which is attached hereto as Exhibit A, as the
same may be amended, restated, modified, supplemented or waived by the Investment Committee,
subject to the consent of a majority of the entire Board of Directors (which must include a
majority of the then incumbent Independent Directors).



“Losses” has the meaning set forth in Section 8(a) hereof.







“Management Fee” means the management fee, calculated and payable monthly in arrears, in an amount
equal to (i) one-twelfth (1/12) multiplied by (ii)(a) 1.50% of the first $250,000,000 of Equity, (b) 1.25% of
Equity that is greater than $250,000,000 and less than or equal to $500,000,000, and (c) 1.00% of Equity that is
greater than $500,000,000.







“Manager” has the meaning set forth in the Recitals.



“Manager Indemnified Party” has the meaning set forth in Section 8(a) hereof.



“Manager Permitted Disclosure Parties” has the meaning set forth in Section 5 hereof.



“NYSE” means The New York Stock Exchange.



“Notice of Proposal to Negotiate” has the meaning set forth in Section 10(d) hereof.



“Overhead Sharing Agreement” means an agreement between the Manager and Bimini whereby Bimini
agrees to provide the Manager with the personnel, services and resources necessary for the Manager
to perform its obligations and responsibilities under this Agreement.



“Person” means any natural person, corporation, partnership, association, limited liability
company, estate, trust, joint venture, any federal, state, county or municipal government or any
bureau, department or agency thereof or any other legal entity and any fiduciary acting in such
capacity on behalf of the foregoing.



“REIT” means a “real estate investment trust” as defined under the Code.



“RMBS” has the same meaning set forth in the Recitals.



“SEC” means the United States Securities and Exchange Commission.



“Securities Act” means the Securities Act of 1933, as amended.



“Subsidiary” means any subsidiary of the Company and any partnership, the general partner of which
is the Company or any subsidiary of the Company, and any limited liability company, the managing
member of which is the Company or any subsidiary of the Company.



“Termination Fee” means a termination fee equal to three (3) times the average annual Management
Fee earned by the Manager during the shorter of (i) the 24-month period immediately preceding the
most recently completed calendar quarter prior to the Effective Termination Date, or (ii) the
period beginning on the date of this Agreement and ending on the most recently completed calendar
quarter prior to the Effective Termination Date.



“Termination Notice” has the meaning set forth in Section 10(c) hereof.



“Termination Without Cause” has the meaning set forth in Section 10(c) hereof.




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(b) As used herein, accounting terms relating to the Company and its Subsidiaries, if any, not
defined in Section 1(a) and accounting terms partly defined in Section 1(a), to the
extent not defined, shall have the respective
meanings given to them under GAAP. As used herein, “calendar quarters” shall mean the period from
January 1 to March 31, April 1 to June 30, July 1 to September 30 and October 1 to December 31 of
the applicable year.



(c) The words “hereof,” “herein” and “hereunder” and words of similar import when used in this
Agreement shall refer to this Agreement as a whole and not to any particular provision of this
Agreement, and Section references are to this Agreement unless otherwise specified.



(d) The meanings given to terms defined herein shall be equally applicable to both the singular and
plural forms of such terms. The words include, includes and including shall be deemed to be
followed by the phrase “without limitation.”




Section 2. Appointment and Duties of the Manager.



(a) The Company hereby appoints the Manager to manage the investments and day-to-day operations of
the Company and its Subsidiaries, subject at all times to the further terms and conditions set
forth in this Agreement and to the supervision of, and such further limitations or parameters as
may be imposed from time to time by, the Board of Directors. The Manager hereby agrees to use its
commercially reasonable efforts to perform each of the duties set forth herein, provided that funds
are made available by the Company for such purposes as set forth in Section 7 hereof. The
appointment of the Manager shall be exclusive to the Manager, except to the extent that the Manager
elects, in its sole and absolute discretion, in accordance with the terms of this Agreement, to
cause the duties of the Manager as set forth herein to be provided by third parties.



(b) The Manager, in its capacity as manager of the investments and the operations of the Company,
at all times will be subject to the supervision and direction of the Board of Directors and will
have only such functions and authority as the Board of Directors may delegate to it, including,
without limitation, the functions and authority identified herein and delegated to the Manager
hereby. The Manager will be responsible for the day-to-day operations of the Company and will
perform (or cause to be performed) such services and activities relating to the investments and
operations of the Company as may be appropriate, which may include, without limitation:





	 	(i)	 	forming and maintaining the Investment Committee, which will have the
following responsibilities: (A) proposing the Investment Guidelines to the Board of
Directors, (B) reviewing the Company’s investment portfolio for compliance with the
Investment Guidelines on a monthly basis, (C) reviewing the Investment Guidelines adopted
by the Board of Directors on a periodic basis, (D) reviewing the diversification of the
Company’s investment portfolio and the Company’s hedging and financing strategies on a
monthly basis, and (E) generally be responsible for conducting or overseeing the
provision of the services set forth in this Section 2.
	 
	 	(ii)	 	serving as the Company’s consultant with respect to the periodic review of the
investments, borrowings and operations of the Company and other policies and
recommendations with respect thereto, including, without limitation, the Investment
Guidelines, in each case subject to the approval of the Board of Directors;
	 
	 	(iii)	 	serving as the Company’s consultant with respect to the selection, purchase,
monitoring and disposition of the Company’s investments;




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	 	(iv)	 	serving as the Company’s consultant with respect to decisions regarding any
financings, hedging activities or borrowings undertaken by the Company or its
Subsidiaries, including (1) assisting the
Company in developing criteria for debt and equity financing that is specifically
tailored to the Company’s investment objectives, and (2) advising the Company with
respect to obtaining appropriate financing for its investments;
	 
	 	(v)	 	purchasing and financing investments on behalf of the Company;
	 
	 	(vi)	 	providing the Company with portfolio management;
	 
	 	(vii)	 	engaging and supervising, on behalf of the Company and at the Company’s expense,
independent contractors that provide real estate, investment banking, securities
brokerage, insurance, legal, accounting, transfer agent, registrar and such other
services as may be required relating to the Company’s operations or investments (or
potential investments);
	 
	 	(viii)	 	providing executive and administrative personnel, office space and office services
required in rendering services to the Company;
	 
	 	(ix)	 	performing and supervising the performance of administrative functions necessary in
the management of the Company as may be agreed upon by the Manager and the Board of
Directors, including, without limitation, the collection of revenues and the payment of
the Company’s debts and obligations and maintenance of appropriate information technology
services to perform such administrative functions;
	 
	 	(x)	 	communicating on behalf of the Company with the holders of any equity or debt
securities of the Company as required to satisfy the reporting and other requirements of
any governmental bodies or agencies or trading exchanges or markets and to maintain
effective relations with such holders, including website maintenance, logo design,
analyst presentations, investor conferences and annual meeting arrangements;
	 
	 	(xi)	 	counseling the Company in connection with policy decisions to be made by the Board
of Directors;
	 
	 	(xii)	 	evaluating and recommending to the Company hedging strategies and engaging in
hedging activities on behalf of the Company, consistent with the Company’s qualification
and maintenance of the Company’s qualification as a REIT and with the Investment
Guidelines;
	 
	 	(xiii)	 	counseling the Company regarding its qualification and the maintenance of its
qualification as a REIT and monitoring compliance with the various REIT qualification
tests and other rules set out in the Code and U.S. Treasury regulations promulgated
thereunder;
	 
	 	(xiv)	 	counseling the Company regarding the maintenance of its exemption from status as
an investment company under the Investment Company Act and monitoring compliance with the
requirements for maintaining such exemption;
	 
	 	(xv)	 	furnishing reports and statistical and economic research to the Company regarding
the activities and services performed for the Company or its Subsidiaries, if any, by the
Manager;
	 
	 	(xvi)	 	monitoring the operating performance of the Company’s investments and providing
periodic reports with respect thereto to the Board of Directors, including comparative
information with respect to such operating performance and budgeted or projected
operating results;




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	 	(xvii)	 	investing and re-investing any monies and securities of the Company (including in
short-term investments, payment of fees, costs and expenses, or payments of dividends or
distributions to
stockholders of the Company) and advising the Company as to its capital structure and
capital-raising activities;
	 
	 	(xviii)	 	causing the Company to retain qualified accountants and legal counsel, as applicable,
to (i) assist in developing appropriate accounting procedures, internal controls,
compliance procedures and testing systems with respect to financial reporting obligations
and compliance with the provisions of the Code applicable to REITs and, if applicable,
taxable REIT subsidiaries and (ii) conduct quarterly compliance reviews with respect
thereto;
	 
	 	(xix)	 	causing the Company to qualify to do business in all jurisdictions in which such
qualification is required and to obtain and maintain all appropriate licenses;
	 
	 	(xx)	 	assisting the Company in complying with all regulatory requirements applicable to
the Company in respect of its business activities, including preparing or causing to be
prepared all financial statements required under applicable regulations and contractual
undertakings and all reports and documents, if any, required under the Exchange Act or
the Securities Act or by the NYSE or other stock exchange requirements as applicable;
	 
	 	(xxi)	 	taking all necessary actions to enable the Company and any Subsidiaries to make
required tax filings and reports, including soliciting stockholders for required
information to the extent necessary under the Code and U.S. Treasury regulations
applicable to REITs;
	 
	 	(xxii)	 	handling and resolving all claims, disputes or controversies (including all litigation,
arbitration, settlement or other proceedings or negotiations) in which the Company may be
involved or to which the Company may be subject arising out of the Company’s day-to-day
operations;
	 
	 	(xxiii)	 	arranging marketing materials, advertising, industry group activities (such as
conference participations and industry organization memberships) and other promotional
efforts designed to promote the business of the Company;
	 
	 	(xxiv)	 	using commercially reasonable efforts to cause expenses incurred by or on behalf of the
Company to be commercially reasonable or commercially customary and within any budgeted
parameters or expense guidelines set by the Board of Directors from time to time;
	 
	 	(xxv)	 	performing such other services as may be required from time to time for the
management and other activities relating to the assets, business and operations of the
Company as the Board of Directors shall reasonably request or the Manager shall deem
appropriate under the particular circumstances; and
	 
	 	(xxvi)	 	using commercially reasonable efforts to cause the Company to comply with all
applicable laws.




(c) The Manager may retain, for and on behalf, and at the sole cost and expense, of the Company,
such services of the persons and firms referred to in Section 7(b) hereof as the Manager
deems necessary or advisable in connection with the management and operations of the Company. In
performing its duties under this Section 2, the Manager shall be entitled to rely
reasonably on qualified experts and professionals (including, without limitation, accountants,
legal counsel and other professional service providers) hired by the Manager at the Company’s sole
cost and expense.




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(d) The Manager shall refrain from any action that, in its sole judgment made in good faith, (i) is
not in compliance with the Investment Guidelines, (ii) would adversely affect the qualification of
the Company as a REIT
under the Code or the Company’s or any Subsidiary’s status as an entity excluded from investment
company status under the Investment Company Act, or (iii) would violate any law, rule or regulation
of any governmental body or agency having jurisdiction over the Company or of any exchange on which
the securities of the Company may be listed or that would otherwise not be permitted by the
Company’s Governing Instruments, the Conduct Policies or other Company compliance or governance
policies or procedures. If the Manager is ordered to take any action by the Board of Directors, the
Manager shall promptly notify the Board of Directors if it is the Manager’s judgment that such
action would adversely affect the qualification of the Company as a REIT or the Company’s or any
Subsidiary’s status as an entity excluded from investment company status under the Investment
Company Act or violate any such law, rule or regulation or the Company’s Governing Instruments.
Notwithstanding the foregoing, neither the Manager nor any of its Affiliates shall be liable to the
Company, the Board of Directors or the Company’s stockholders for any act or omission by the
Manager or any of its Affiliates, except as provided in Section 8 of this Agreement.



(e) The Company (including the Board of Directors) agrees to take all actions reasonably required
to permit and enable the Manager to carry out its duties and obligations under this Agreement,
including, without limitation, all steps reasonably necessary to allow the Manager to file any
registration statement or other filing required to be made under the Securities Act, Exchange Act,
the NYSE, the Code or other applicable law, rule or regulation on behalf of the Company in a timely
manner. The Company further agrees to use commercially reasonable efforts to make available to the
Manager all resources, information and materials reasonably requested by the Manager to enable the
Manager to satisfy its obligations hereunder, including its obligations to deliver financial
statements and any other information or reports with respect to the Company. If the Manager is not
able to provide a service, or in the reasonable judgment of the Manager it is not prudent to
provide a service, without the approval of the Board of Directors, as applicable, then the Manager
shall be excused from providing such service (and shall not be in breach of this Agreement) until
the applicable approval has been obtained.



(f) Reporting Requirements. (i) As frequently as the Manager may deem reasonably necessary or
advisable, or at the direction of the Board of Directors, the Manager shall prepare, or, at the
sole cost and expense of the Company, cause to be prepared, with respect to any investment, reports
and other information with respect to such investment as may be reasonably requested by the
Company.





	 	(i)	 	The Manager shall prepare, or, at the sole cost and expense of the Company, cause
to be prepared, all reports, financial or otherwise, with respect to the Company
reasonably required by the Board of Directors in order for the Company to comply with its
Governing Instruments, or any other materials required to be filed with any governmental
body or agency, and shall prepare, or, at the sole cost and expense of the Company, cause
to be prepared, all materials and data necessary to complete such reports and other
materials including, without limitation, an annual audit of the Company’s books of
account by a nationally recognized independent accounting firm.
	 
	 	(ii)	 	The Manager shall prepare, or, at the sole cost and expense to the Company, cause
to be prepared, regular reports for the Board of Directors to enable the Board of
Directors to review the Company’s acquisitions, portfolio composition and
characteristics, credit quality, performance and compliance with the Investment
Guidelines and policies approved by the Board of Directors.




(g) Directors, officers, employees and agents of the Manager, Bimini or their respective Affiliates
may serve as directors, officers, agents, nominees or signatories for the Company or any of its
Subsidiaries, to the extent permitted by their Governing Instruments and pursuant to the Overhead
Sharing Agreement. When executing





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documents or otherwise acting in such capacities for the Company
or any of its Subsidiaries, such Persons shall indicate in what capacity they are executing on
behalf of the Company or any of its Subsidiaries. Without limiting
the foregoing, but subject to Section 12 below, the Manager will provide the Company with a
management team, including a Chief Executive Officer, Chief Financial Officer and Chief Investment
Officer or similar positions, along with appropriate support personnel to provide the management
services to be provided by the Manager to the Company hereunder, who shall devote such of their
time to the management of the Company as necessary and appropriate, commensurate with the level of
activity of the Company from time to time.



(h) The Manager shall provide personnel for service on the Investment Committee.



(i) The Manager shall maintain reasonable and customary “errors and omissions” insurance coverage
and other customary insurance coverage.



(j) The Manager shall provide such internal audit, compliance and control services as may be
required for the Company to comply with applicable law (including the Securities Act and Exchange
Act), regulation (including SEC regulations) and the rules and requirements of the NYSE or such
other securities exchange on which the Common Stock may be listed and as otherwise reasonably
requested by the Company or its Board of Directors from time to time.



(k) The Manager acknowledges receipt of the Company’s Code of Business Conduct and Ethics, Code of
Ethics for Senior Financial Officers, Insider Trading Policy and Regulation FD Policy
(collectively, the “Conduct Policies”) and agrees to require the persons who provide services to
the Company to comply with such Conduct Policies in the performance of such services hereunder or
such comparable policies as shall in substance hold such persons to at least the standards of
conduct set forth in the Conduct Policies.




Section 3. Additional Activities of the Manager; Non-Solicitation; Restrictions.



(a) Except as provided in the Conduct Policies, the last sentence of this Section 3(a), the
Investment Guidelines and/or the Investment Allocation Agreement, nothing in this Agreement shall
(i) prevent the Manager or any of its Affiliates, officers, directors or employees, from engaging
in other businesses or from rendering services of any kind to any other Person or entity, whether
or not the investment objectives or policies of any such other Person or entity are similar to
those of the Company or (ii) in any way bind or restrict the Manager or any of its Affiliates,
officers, directors or employees from buying, selling or trading any securities or commodities for
their own accounts or for the account of others for whom the Manager or any of its Affiliates,
officers, directors or employees may be acting. While information and recommendations supplied to
the Company shall, in the Manager’s reasonable and good faith judgment, be appropriate under the
circumstances and in light of the investment objectives and policies of the Company, they may be
different from the information and recommendations supplied by the Manager or any Affiliate of the
Manager to others. The Company shall be entitled to equitable treatment under the circumstances in
receiving information, recommendations and any other services, but the Company recognizes that it
is not entitled to receive preferential treatment as compared with the treatment given by the
Manager or any Affiliate of the Manager to others. The Company shall have the benefit of the
Manager’s best judgment and effort in rendering services hereunder and, in furtherance of the
foregoing, the Manager shall not undertake activities that, in its good faith judgment, will
adversely affect the performance of its obligations under this Agreement.



(b) In the event of a Termination Without Cause of this Agreement by the Company pursuant to
Section 10(c) hereof, for two (2) years after such termination of this Agreement, the Company
shall not, without the consent of the Manager, employ or otherwise retain any employee of the
Manager or any of its Affiliates or any person who has been in the employ of the Manager or any of
its Affiliates at any time within the two (2) year period immediately




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preceding the date on which
such person commences employment with or is otherwise retained by the Company.
The Company acknowledges and agrees that, in addition to any damages, the Manager shall be entitled
to equitable relief for any violation of this agreement by the Company, including, without
limitation, injunctive relief.




Section 4. Bank Accounts.



At the direction of the Board of Directors, the Manager may establish and maintain one or more bank
accounts in the name of the Company or any Subsidiary, and may collect and deposit into any such
account or accounts, and disburse funds from any such account or accounts, under such terms and
conditions as the Board of Directors may approve; and the Manager shall from time to time render
appropriate accountings of such collections and payments to the Board of Directors and, upon
request, to the auditors of the Company or any Subsidiary.




Section 5. Records; Confidentiality.



The Manager shall maintain appropriate books of accounts and records relating to services performed
hereunder, and such books of account and records shall be accessible for inspection by
representatives of the Company or any Subsidiary at any time during normal business hours. The
Manager shall keep confidential any and all non-public information, written or oral, about or
concerning the Company, obtained by it in connection with the services rendered hereunder
(“Confidential Information”) and shall not use Confidential Information except in furtherance of
its duties under this Agreement or disclose Confidential Information, in whole or in part, to any
Person other than (i) to its Affiliates, officers, directors, employees, agents, representatives or
advisors who need to know such Confidential Information for the purpose of rendering services
hereunder, (ii) to appraisers, financing sources and others in the ordinary course of the Company’s
business ((i) and (ii) collectively, “Manager Permitted Disclosure Parties”), (iii) in connection
with any governmental or regulatory filings of the Company or disclosure or presentations to the
Company’s stockholders or to potential investors in the Company’s securities, (iv) to governmental
officials having jurisdiction over the Company, (v) as required by law or legal process to which
the Manager or any Person to whom disclosure is permitted hereunder is a party, or (vi) with the
consent of the Company. The Manager agrees to inform each of its Manager Permitted Disclosure
Parties of the non-public nature of the Confidential Information and to direct such Persons to
treat such Confidential Information in accordance with the terms hereof. Nothing herein shall
prevent the Manager from disclosing Confidential Information (i) upon the order of any court or
administrative agency, (ii) upon the request or demand of, or pursuant to any law or regulation,
any regulatory agency or authority, (iii) to the extent reasonably required in connection with the
exercise of any remedy hereunder, or (iv) to its legal counsel or independent auditors; provided,
however that with respect to clauses (i) and (ii), it is agreed that, so long as not legally
prohibited, the Manager will provide the Company with prompt written notice of such order, request
or demand so that the Company may seek, at its sole expense, an appropriate protective order and/or
waive the Manager’s compliance with the provisions of this Agreement. If, failing the entry of a
protective order or the receipt of a waiver hereunder, the Manager is required to disclose
Confidential Information, the Manager may disclose only that portion of such information that is
legally required without liability hereunder; provided, that the Manager agrees to exercise its
reasonable best efforts to obtain reliable assurance that confidential treatment will be accorded
such information. Notwithstanding anything herein to the contrary, each of the following shall be
deemed to be excluded from provisions hereof: any Confidential Information that (A) is available to
the public from a source other than the Manager (not resulting from the Manager’s violation of this
Section 5), (B) is released in writing by the Company to the public or to persons who are not under
similar obligation of confidentiality to the Company, or (C) is obtained by the Manager from a
third-party which, to the best of the Manager’s knowledge, does not constitute a breach by such
third-party of an obligation of confidence with respect to the Confidential Information disclosed.
The provisions of this Agreement shall survive the expiration or earlier termination of this
Agreement for a period of one year. For the avoidance of doubt, information about the Company’s
policies, procedures and investment portfolio (other than investments in which the Company and





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Manager have co-invested) shall be deemed to be included within the meaning of “Confidential
Information” for purposes of the Manager’s obligations pursuant to this Section 5.




Section 6. Compensation.



(a) For the services rendered under this Agreement, the Company shall pay the Management Fee to the
Manager. The Manager will not receive any compensation for the period prior to the Closing Date
other than expenses incurred and reimbursed pursuant to Section 7 hereof.



(b) The parties acknowledge that the Management Fee is intended to compensate the Manager for the
costs and expenses it will incur pursuant to the Overhead Sharing Agreement, as well as certain
expenses not otherwise reimbursable under Section 7 hereto, in order for the Manager to
provide the Company the investment advisory services and certain general management services
rendered under this Agreement. The fee paid by the Manager under the Overhead Sharing Agreement
shall not constitute an expense reimbursable by the Company under this Agreement or otherwise,
except those specified in Section 7(b)(xx) hereof.



(c) The Management Fee shall be payable in arrears in cash, in monthly installments commencing with
the month in which this Agreement is executed. If applicable, the initial and final installments of
the Management Fee shall be pro-rated based on the number of days during the initial and final
month, respectively, that this Agreement is in effect. The Manager shall calculate each monthly
installment of the Management Fee, and deliver such calculation to the Company, within fifteen (15)
days following the last day of each calendar month. The Company shall pay the Manager each
installment of the Management Fee within five (5) Business Days after the date of delivery to the
Company of such computations.




Section 7. Expenses of the Company.







(a) Except
as provided in Section 7(b)(xx), the Manager shall be
responsible for (i) the
expenses related to any and all personnel of the Manager and its Affiliates who provide services to
the Company pursuant to this Agreement or to the Manager pursuant to the Overhead Sharing Agreement
(including each of the officers of the Company and any directors of the Company who are also
directors, officers, employees or agents of the Manager, Bimini or any of their Affiliates),
including, without limitation, salaries, bonus and other wages, payroll taxes and the cost of
employee benefit plans of such personnel, and costs of insurance with
respect to such personnel
and (ii) all costs and expenses incurred by the Company in connection
with the Initial Offering greater than an amount equal to 1.0% of the total
gross proceeds of the Initial Offering.







(b) The Company shall pay all of its costs and expenses and shall reimburse the Manager or its
Affiliates for expenses of the Manager and its Affiliates incurred on behalf of the Company,
excepting only those expenses that are specifically the responsibility of the Manager pursuant to
Section 7(a) of this Agreement or of Bimini pursuant to the Overhead Sharing Agreement.
Without limiting the generality of the foregoing, it is specifically agreed that the following
costs and expenses of the Company or any Subsidiary shall be paid by the Company and shall not be
paid by the Manager or Affiliates of the Manager:





	


	 	(i)	 	all costs and expenses associated with the formation and capital raising activities
of the Company and its Subsidiaries, if any, including, without limitation, the costs and
expenses of (A) the preparation of the Company’s private placement memoranda and
registration statements, (B) all private and public offerings of the Company, (C) the
original incorporation and initial organization of the Company, and (D) any filing fees
and costs of being a public company, including, without limitation, filings with the SEC,
the Financial Industry Regulatory Authority, Inc. and the NYSE (and any other exchange or
over-the-counter market), among other such entities;
provided, however, that, for all costs and expenses paid by the
Manager in connection with the Initial Offering, the Company is only obligated to
reimburse the Manager up to an amount equal to 1.0% of the gross
proceeds of the Initial Offering;
	






11









 






	 	(ii)	 	all costs and expenses in connection with the acquisition, disposition, financing,
hedging and ownership of the Company’s or any Subsidiary’s investments, including,
without limitation, costs and expenses incurred in contracting with third parties to
provide such services, such as legal fees,
accounting fees, consulting fees, trustee fees, appraisal fees, insurance premiums,
commitment fees, brokerage fees and guaranty fees;
	 
	 	(iii)	 	all legal, audit, accounting, consulting, brokerage, listing, filing, custodian,
transfer agent, rating agency, registration and other fees and charges, printing,
engraving and other expenses and taxes incurred in connection with the issuance,
distribution, transfer, registration and stock exchange listing of the Company’s or any
Subsidiary’s equity securities or debt securities;
	 
	 	(iv)	 	all expenses relating to communications to holders of equity securities or debt
securities issued by the Company or any Subsidiary and other third party services
utilized in maintaining relations with holders of such securities and in complying with
the continuous reporting and other requirements of governmental bodies or agencies
(including, without limitation, the SEC), including any costs of computer services in
connection with this function, the cost of printing and mailing certificates for such
securities and proxy solicitation materials and reports to holders of the Company’s or
any Subsidiary’s securities and the cost of any reports to third parties required under
any indenture to which the Company or any Subsidiary is a party;
	 
	 	(v)	 	all costs and expenses of money borrowed by the Company or its Subsidiaries, if
any, including, without limitation, principal, interest and the costs associated with the
establishment and maintenance of any credit facilities, warehouse loans, repurchase
facilities and other indebtedness of the Company and its Subsidiaries, if any (including
commitment fees, legal fees, closing and other costs);
	 
	 	(vi)	 	all taxes and license fees applicable to the Company or any Subsidiary, including
interest and penalties thereon;
	 
	 	(vii)	 	all fees paid to and expenses of third-party advisors and independent contractors,
consultants, managers and other agents engaged by the Company or any Subsidiary or by the
Manager for the account of the Company or any Subsidiary;
	 
	 	(viii)	 	all insurance costs incurred by the Company or any Subsidiary, including, without
limitation, the cost of obtaining and maintaining (A) liability or other insurance to
indemnify (1) the Manager, (2) the directors and officers of the Company, and (3)
underwriters of any securities of the Company, (B) “errors and omissions” insurance
coverage, and (C) any other insurance deemed necessary or advisable by the Board of
Directors for the benefit of the Company and its directors and officers;
	 
	 	(ix)	 	all compensation and fees paid to directors of the Company or any Subsidiary
(excluding those directors who are also directors, officers, employees or agents of the
Manager or any of its Affiliates), and, subject to clause (xiii) below, all expenses of
all directors of the Company or any Subsidiary incurred in their capacity as such;
	 
	 	(x)	 	all third-party legal, accounting and auditing fees and expenses and other similar
services relating to the Company’s or any Subsidiary’s operations (including, without
limitation, all quarterly and annual audit or tax fees and expenses);
	 
	 	(xi)	 	all third-party legal, expert and other fees and expenses relating to any actions,
proceedings, lawsuits, demands, causes of action and claims, whether actual or
threatened, made by or against the Company, 




12









 






	 	 	 	or which the Company is authorized or
obligated to pay under applicable law or its Governing Instruments or by the Board of
Directors;
	 
	 	(xii)	 	subject to Section 8 below, any judgment or settlement of pending or
threatened proceedings (whether civil, criminal or otherwise) against the Company or any
Subsidiary, or against any trustee, director or officer of the Company or any Subsidiary
in his capacity as such for which the Company or any Subsidiary is required to indemnify
such trustee, director or officer by any court or governmental agency, or settlement of
pending or threatened proceedings;
	 
	 	(xiii)	 	all travel and related expenses of directors, officers and employees of the Company and
the Manager, incurred in connection with attending meetings of the Board of Directors or
holders of securities of the Company or any Subsidiary or performing other business
activities that relate to the Company or any Subsidiary, including, without limitation,
travel and related expenses incurred in connection with the purchase, consideration for
purchase, financing, refinancing, sale or other disposition of any investment or
potential investment of the Company; provided, however, that the Company shall only be
responsible for its pro rata share of such expenses, based on the Company’s percentage of
the aggregate amount of the Manager’s assets under management and Bimini’s assets
(measured as of the first day of each month), where such expenses were not incurred
solely for the benefit of the Company;
	 
	 	(xiv)	 	all expenses of organizing, modifying or dissolving the Company or any Subsidiary
and costs preparatory to entering into a business or activity, or of winding up or
disposing of a business activity of the Company or its Subsidiaries, if any;
	 
	 	(xv)	 	all expenses relating to payments of dividends or interest or distributions in cash
or any other form made or caused to be made by the Board of Directors to or on account of
holders of the securities of the Company or any Subsidiary, including, without
limitation, in connection with any dividend reinvestment plan;
	 
	 	(xvi)	 	all costs and expenses related to (A) the design and maintenance of the Company’s
web site or sites and (B) the Company’s pro rata share, based on the Company’s percentage
of the aggregate amount of the Manager’s assets under management and Bimini’s assets
(measured as of the first day of each month), of any computer software, hardware or
information technology services that is used by the Company;
	 
	 	(xvii)	 	all costs and expenses incurred with respect to market information systems and
publications, research publications and materials, and settlement, clearing and custodial
fees and expenses; provided, however, that the Company shall only be responsible for its
pro rata share of such expenses, based on the Company’s percentage of the aggregate
amount of the Manager’s assets under management and Bimini’s assets (measured as of the
first day of each month), where such expenses were not incurred solely for the benefit of
the Company;
	 
	 	(xviii)	 	all costs and expenses incurred with respect to administering the Company’s incentive
and benefit plans;
	 
	 	(xix)	 	rent (including disaster recovery facilities costs and expenses), telephone,
utilities, office furniture, equipment, machinery and other office, internal and overhead
expenses of the Manager and its Affiliates required for the Company’s operations;
provided, however, that the Company shall only be responsible for its pro rata share of
such expenses, based on the Company’s percentage of the aggregate amount of the Manager’s
assets under management and Bimini’s assets (measured as of the 




13









 






	 	 	 	first day of each month),
where such expenses were not incurred solely for the benefit of the Company; and
	 
	 	(xx)	 	the Company’s allocable share of the compensation of its Chief Financial Officer,
including, without limitation, annual base salary, bonus, any related withholding taxes
and employee benefits, based on the percentage of time spent on the Company’s affairs.
	 
	 	(xxi)	 	all other expenses (other than those described in Section 7(a) above)
actually incurred by the Manager or its Affiliates or their respective officers,
employees, representatives or agents, or any Affiliates thereof, which are reasonably
necessary for the performance by the Manager of its duties and functions under this
Agreement (including, without limitation, any fees or expenses relating to the Company’s
compliance with all governmental and regulatory matters).




For the avoidance of doubt, payment for all services provided to the Company by AVM, L.P.
(including repurchase agreement trading, clearing and administrative services) shall be made by the
Company directly to AVM, L.P.



(c) Costs and expenses incurred by the Manager on behalf of the Company shall be reimbursed monthly
to the Manager. The Manager shall prepare a written statement in reasonable detail documenting the
costs and expenses of the Company and those incurred by the Manager on behalf of the Company during
each month, and shall deliver such written statement to the Company within thirty (30) days after
the end of each month. The Company shall pay all amounts payable to the Manager pursuant to this
Section 7(c) within five (5) Business Days after the receipt of the written statement
without demand, deduction, offset or delay. Cost and expense reimbursement to the Manager shall be
subject to adjustment at the end of each calendar year in connection with the annual audit of the
Company. The provisions of this Section 7 shall survive the expiration or earlier
termination of this Agreement to the extent such expenses have previously been incurred or are
incurred in connection with such expiration or termination.




Section 8. Limits of the Manager’s Responsibility.



(a) The Manager assumes no responsibility under this Agreement other than to render the services
called for hereunder in good faith and shall not be responsible for any action of the Board of
Directors in following or declining to follow any advice or recommendations of the Manager. The
Manager and its Affiliates, and the directors, officers, employees and stockholders of the Manager
and its Affiliates, will not be liable to the Company, any Subsidiary of the Company, the Board of
Directors, or the Company’s stockholders for any acts or omissions by the Manager, its officers,
employees or its Affiliates, performed in accordance with and pursuant to this Agreement, except by
reason of acts constituting bad faith, willful misconduct, gross negligence or reckless disregard
of their respective duties under this Agreement. The Company shall, to the full extent lawful,
reimburse, indemnify and hold harmless the Manager, its Affiliates, and the directors, officers,
employees and stockholders of the Manager and its Affiliates (each, a “Manager Indemnified Party”)
of and from any and all expenses, losses, damages, liabilities, demands, charges and claims of any
nature whatsoever (including reasonable attorneys’ fees) (collectively “Losses”) in respect of or
arising from any acts or omissions of such Manager Indemnified Party performed in good faith under
this Agreement and, in respect of any such Manager Indemnified Party, not constituting bad faith,
willful misconduct, gross negligence or reckless disregard of duties of such Manager Indemnified
Party under this Agreement.



(b) The Manager shall, to the full extent lawful, reimburse, indemnify and hold harmless the
Company, and the directors, officers and stockholders of the Company and each Person, if any,
controlling the Company (each, a “Company Indemnified Party”; a Manager Indemnified Party and a
Company Indemnified Party are each sometimes





14









 







hereinafter referred to as an “Indemnified Party”) of
and from any and all Losses in respect of or arising from (i) any acts or omissions of the Manager
constituting bad faith, willful misconduct, gross negligence or reckless disregard
of duties of the Manager under this Agreement or (ii) any claims by the Manager’s or any of its
Affiliates’ employees relating to the terms and conditions of their employment by the Manager or
its Affiliates.



(c) In case any such claim, suit, action or proceeding (a “Claim”) is brought against any
Indemnified Party in respect of which indemnification may be sought by such Indemnified Party
pursuant hereto, the Indemnified Party shall give prompt written notice thereof to the indemnifying
party, which notice shall include all documents and information in the possession of or under the
control of such Indemnified Party reasonably necessary for the evaluation and/or defense of such
Claim and shall specifically state that indemnification for such Claim is being sought under this
Section 8; provided, however, that the failure of the Indemnified Party to so notify the
indemnifying party shall not limit or affect such Indemnified Party’s rights to be indemnified
pursuant to this Section 8. Upon receipt of such notice of Claim (together with such documents and
information from such Indemnified Party), the indemnifying party shall, at its sole cost and
expense, in good faith defend any such Claim with counsel reasonably satisfactory to such
Indemnified Party, which counsel may, without limiting the rights of such Indemnified Party
pursuant to the next succeeding sentence of this Section 8, also represent the indemnifying party
in such investigation, action or proceeding. In the alternative, such Indemnified Party may elect
to conduct the defense of the Claim, if (i) such Indemnified Party reasonably determines that the
conduct of its defense by the indemnifying party could be materially prejudicial to its interests,
(ii) the indemnifying party refuses to defend (or fails to give written notice to the Indemnified
Party within ten (10) days of receipt of a notice of Claim that the indemnifying party assumes such
defense), or (iii) the indemnifying party shall have failed, in such Indemnified Party’s reasonable
judgment, to defend the Claim in good faith. If the Indemnified Party elects to conduct the defense
of the Claim due to the reasons set forth in the preceding sentence, the fees and expenses of
counsel to the Indemnified Party shall be borne by the indemnifying party. The indemnifying party
may settle any Claim against such Indemnified Party without such Indemnified Party’s consent,
provided (i) such settlement is without any Losses whatsoever to such Indemnified Party, (ii) the
settlement does not include or require any admission of liability or culpability by such
Indemnified Party and (iii) the indemnifying party obtains an effective written release of
liability for such Indemnified Party from the party to the Claim with whom such settlement is being
made, which release must be reasonably acceptable to such Indemnified Party, and a dismissal with
prejudice with respect to all claims made by the party against such Indemnified Party in connection
with such Claim. The applicable Indemnified Party shall reasonably cooperate with the indemnifying
party, at the indemnifying party’s sole cost and expense, in connection with the defense or
settlement of any Claim in accordance with the terms hereof. If such Indemnified Party is entitled
pursuant to this Section to elect to defend such Claim by counsel of its own choosing and so
elects, then the indemnifying party shall be responsible for any good faith settlement of such
Claim entered into by such Indemnified Party. Except as provided in the immediately preceding
sentence, no Indemnified Party may pay or settle any Claim and seek reimbursement therefor under
this Section.



(d) The provisions of this Section 8 shall survive the expiration or earlier termination of
this Agreement.




Section 9. No Joint Venture.



The Company and the Manager are not partners or joint venturers with each other and nothing herein
shall be construed to make them such partners or joint venturers or impose any liability as such on
either of them.




Section 10. Term; Renewal.



(a) Initial Term. This Agreement shall become effective on the Closing Date and shall continue in
operation, unless terminated in accordance with the terms hereof, until [ ], 2014 (the “Initial
Term”).




15









 







(b) Automatic Renewal Terms. After the Initial Term, this Agreement shall be deemed renewed
automatically each year for an additional one-year period (an “Automatic Renewal Term”) unless the
Company or the Manager elects not to renew this Agreement in accordance with Section 10(c)
of this Agreement.



(c) Nonrenewal of this Agreement Without Cause. Notwithstanding any other provision of this
Agreement to the contrary, upon the expiration of the Initial Term and upon 180 days’ prior written
notice to the Manager or the Company (the “Termination Notice”), either the Company (but only with
the approval of a majority of the Independent Directors) or the Manager may, without cause, in
connection with the expiration of the Initial Term or any Automatic Renewal Term, decline to renew
this Agreement (any such nonrenewal, a “Termination Without Cause”). If the Company issues the
Termination Notice, the Company shall be obligated to (i) specify the reason for nonrenewal in the
Termination Notice and (ii) pay the Manager the Termination Fee before or on the last day of the
Initial Term or Automatic Renewal Term (the “Effective Termination Date”). In the event of a
Termination Without Cause, nonrenewal of this Agreement shall be without any further liability or
obligation of either party to the other, except as provided in this Section 10(c),
Section 3(b), Section 8 and Section 14 of this Agreement. The Manager shall
cooperate with the Company in executing an orderly transition of the management of the Company’s
assets to a new manager. The Company may terminate this Agreement for cause pursuant to Section
12 hereof even after a Termination Without Cause and, in such case, no Termination Fee shall be
payable.



(d) Unfair Manager Compensation. Notwithstanding the provisions of Section 10(c) above, if
the reason for nonrenewal specified in the Company’s Termination Notice is that a majority of the
Independent Directors have determined that the Management Fee payable to the Manager is unfair, the
Company shall not have the foregoing nonrenewal right in the event the Manager agrees that it will
continue to perform its duties hereunder during the Automatic Renewal Term that would commence upon
the expiration of the Initial Term or then current Automatic Renewal Term at a fee that the
majority of the Independent Directors determine to be fair; provided, however, the Manager shall
have the right to renegotiate the Management Fee by delivering to the Company, not less than 120
days prior to the pending Effective Termination Date, written notice (a “Notice of Proposal to
Negotiate”) of its intention to renegotiate the Management Fee. Thereupon, the Company and the
Manager shall endeavor to negotiate the Management Fee in good faith. Provided that the Company and
the Manager agree to a revised Management Fee or other compensation structure within sixty (60)
days following the Company’s receipt of the Notice of Proposal to Negotiate, the Termination Notice
from the Company shall be deemed of no force and effect, and this Agreement shall continue in full
force and effect on the terms stated herein, except that the Management Fee or other compensation
structure shall be the revised Management Fee or other compensation structure then agreed upon by
the Company and the Manager. The Company and the Manager agree to execute and deliver an amendment
to this Agreement setting forth such revised Management Fee or other compensation structure
promptly upon reaching an agreement regarding same. In the event that the Company and the Manager
are unable to agree to a revised Management Fee or other compensation structure during such sixty
(60) day period, this Agreement shall terminate on the Effective Termination Date and the Company
shall be obligated to pay the Manager the Termination Fee upon the Effective Termination Date.




Section 11. Assignments.



(a) Assignments by the Manager. This Agreement shall terminate automatically without payment of the
Termination Fee in the event of its assignment, in whole or in part, by the Manager, unless such
assignment is consented to in writing by the Company with the consent of a majority of the
Independent Directors. Any such permitted assignment shall bind the assignee under this Agreement
in the same manner as the Manager is bound, and the Manager shall be liable to the Company for all
errors or omissions of the assignee under any such assignment. In addition, the assignee shall
execute and deliver to the Company a counterpart of this Agreement naming such assignee as the
Manager. Notwithstanding the foregoing, the Manager may (i) assign this Agreement to an Affiliate





16









 







of the Manager that is a successor to the Manager by reason of a restructuring or other internal
reorganization among the Manager and any one or more of its Affiliates without the consent of the
majority of the Independent Directors if such approval is not required under the Investment
Advisors Act of 1940, as amended, and (ii) delegate to one or more of its Affiliates the
performance of any of its responsibilities hereunder so long as it remains liable for any such
Affiliate’s performance. Nothing contained in this Agreement shall preclude any pledge,
hypothecation or other transfer of any amounts payable to the Manager under this Agreement.



(b) Assignments by the Company. This Agreement shall terminate automatically in the event of its
assignment, in whole or in part, by the Company, unless such assignment is consented to in writing
by the Manager. Any such permitted assignment shall bind the assignee under this Agreement in the
same manner as the Company is bound. In addition, the assignee shall execute and deliver to the
Manager a counterpart of this Agreement. If the assignment is not consented to by the Manager, the
Company shall be obligated to pay the Manager the Termination Fee within 60 days of such
assignment.




Section 12. Termination of the Manager for Cause.



At the option of the Company and at any time during the term of this Agreement, this Agreement
shall be and become terminated upon 30 days’ written notice of termination from the Board of
Directors to the Manager, without payment of the Termination Fee, if any of the following events
shall occur, which shall be determined by a majority of the Independent Directors:



(a) the Manager shall commit any act of fraud, misappropriation of funds, or embezzlement against
the Company or shall be grossly negligent in the performance of its duties under this Agreement
(including such action or inaction by the Manager which materially impairs the Company’s ability to
conduct its business)



(b) the Manager shall fail to provide adequate or appropriate personnel necessary for the Manager
to originate investment opportunities for the Company and to manage and develop the Company’s
portfolio; provided, that such default has continued uncured for a period of sixty (60) days after
written notice thereof, which notice shall contain a request that the same be remedied;



(c) the Manager shall commit a material breach of any provision of this Agreement (including the
failure of the Manager to use reasonable efforts to comply with the Investment Guidelines);
provided, that such default has continued uncured for a period of thirty (30) days after written
notice thereof, which notice shall contain a request that the same be remedied;



(d) (A) the Manager or Bimini shall commence any case, proceeding or other action (1) under any
existing or future law of any jurisdiction, domestic or foreign, relating to bankruptcy,
insolvency, reorganization or relief of debtors, seeking to have an order for relief entered with
respect to it, or seeking to adjudicate it a bankrupt or insolvent, or seeking reorganization,
arrangement, adjustment, winding-up, liquidation, dissolution, composition or other relief with
respect to it or its debts, or (2) seeking appointment of a receiver, trustee, custodian,
conservator or other similar official for it or for all or any substantial part of its assets, or
the Manager or Bimini shall make a general assignment for the benefit of its creditors; or (B)
there shall be commenced against the Manager or Bimini any case, proceeding or other action of a
nature referred to in clause (A) above;



(e) the Manager is convicted (including a plea of nolo contendre) of a felony;



(f) a Change of Control;






17









 







(g) the departure of both Robert Cauley and Hunter Haas from the senior management of the Manager
during the Initial Term; or



(h) upon the dissolution of the Manager.



If any of the events specified above shall occur, the Manager shall give prompt written notice
thereof to the Board of Directors.




Section 13. Action Upon Termination.



From and after the effective date of termination of this Agreement pursuant to Sections 10,
11 or 12 of this Agreement, the Manager shall not be entitled to compensation for
further services hereunder, but shall be paid all compensation accruing, and reimbursable expenses
incurred prior, to the date of termination and, if terminated or not renewed pursuant to
Section 10 or assigned by the Company without the Manager’s consent pursuant to Section
11, the Termination Fee. Upon any such termination, the Manager shall forthwith:



(a) after deducting any accrued compensation and reimbursement for its expenses to which it is then
entitled, pay over to the Company or a Subsidiary all money collected and held for the account of
the Company or a Subsidiary pursuant to this Agreement;



(b) deliver to the Board of Directors a full accounting, including a statement showing all payments
collected by it and a statement of all money held by it, covering the period following the date of
the last accounting furnished to the Board of Directors with respect to the Company and any
Subsidiaries; and



(c) deliver to the Board of Directors all property and documents of the Company and any
Subsidiaries then in the custody of the Manager.




Section 14. Release of Money or Other Property Upon Written Request.



The Manager agrees that any money or other property of the Company (which such term, for the
purposes of this Section, shall be deemed to include any and all of its Subsidiaries, if any) held
by the Manager shall be held by the Manager as custodian for the Company, and the Manager’s records
shall be appropriately and clearly marked to reflect the ownership of such money or other property
by the Company. Upon the receipt by the Manager of a written request signed by a duly authorized
officer of the Company requesting the Manager to release to the Company any money or other property
then held by the Manager for the account of the Company under this Agreement, the Manager shall
release such money or other property to the Company within a reasonable period of time, but in no
event later than 60 days following such request. Upon delivery of such money or other property to
the Company, the Manager shall not be liable to the Company, the Board of Directors or the
Company’s stockholders or partners for any acts or omissions by the Company in connection with the
money or other property released to the Company in accordance with this Section. The Company shall
indemnify the Manager and its Affiliates’ directors, officers, stockholders, employees and agents
against any and all expenses, losses, damages, liabilities, demands, charges and claims of any
nature whatsoever, which arise in connection with the Manager’s release of such money or other
property to the Company in accordance with the terms of this Section 14. Indemnification
pursuant to this provision shall be in addition to any right of the Manager to indemnification
under Section 8 of this Agreement.




Section 15. Representations and Warranties.



(a) The Company hereby represents and warrants to the Manager as follows:




18









 









	 	(i)	 	The Company is duly organized, validly existing and in good standing
under the laws of the State of Maryland, has the corporate power and authority and the
legal right to own and operate its assets, to lease any property it may operate as lessee
and to conduct the business in which it is now engaged and is duly qualified as a foreign
corporation and in good standing under the laws of each jurisdiction where its ownership
or lease of property or the conduct of its business requires such qualification, except
for failures to be so qualified, authorized or licensed that could not in the aggregate
have a material adverse effect on the business operations, assets or financial condition
of the Company.
	 
	 	(ii)	 	The Company has the corporate power and authority and the legal right to make,
deliver and perform this Agreement and all obligations required hereunder and has taken
all necessary corporate action to authorize this Agreement on the terms and conditions
hereof and the execution, delivery and performance of this Agreement and all obligations
required hereunder. No consent of any other Person, including stockholders and creditors
of the Company, and no license, permit, approval or authorization of, exemption by,
notice or report to, or registration, filing or declaration with, any governmental
authority is required by the Company in connection with this Agreement or the execution,
delivery, performance, validity or enforceability of this Agreement and all obligations
required hereunder. This Agreement has been, and each instrument or document required
hereunder will be, executed and delivered by a duly authorized officer of the Company,
and this Agreement constitutes, and each instrument or document required hereunder when
executed and delivered hereunder will constitute, the legally valid and binding
obligation of the Company enforceable against the Company in accordance with its terms.
	 
	 	(iii)	 	The execution, delivery and performance of this Agreement and the documents or
instruments required hereunder will not violate any provision of any existing law or
regulation binding on the Company, or any order, judgment, award or decree of any court,
arbitrator or governmental authority binding on the Company, or the Governing Instruments
of, or any securities issued by, the Company or of any mortgage, indenture, lease,
contract or other agreement, instrument or undertaking to which the Company is a party or
by which the Company or any of its assets may be bound, the violation of which would have
a material adverse effect on the business operations, assets or financial condition of
the Company and its Subsidiaries, if any, taken as a whole, and will not result in, or
require, the creation or imposition of any lien on any of its property, assets or
revenues pursuant to the provisions of any such mortgage, indenture, lease, contract or
other agreement, instrument or undertaking.




(b) The Manager hereby represents and warrants to the Company as follows:





	 	(i)	 	The Manager is duly organized, validly existing and in good standing
under the laws of the State of Maryland, has the corporate power and authority and the
legal right to own and operate its assets, to lease any property it operates as lessee
and to conduct the business in which it is now engaged and is duly qualified as a foreign
corporation and in good standing under the laws of each jurisdiction where its ownership
or lease of property or the conduct of its business requires such qualification, except
for failures to be so qualified, authorized or licensed that could not in the aggregate
have a material adverse effect on the business operations, assets or financial condition
of the Manager.
	 
	 	(ii)	 	The Manager has the corporate power and authority and the legal right to make,
deliver and perform this Agreement and all obligations required hereunder and has taken
all necessary corporate action to authorize this Agreement on the terms and conditions
hereof and the execution, delivery and performance of this Agreement and all obligations
required hereunder. No consent of any other Person, including members and creditors of
the Manager, and no license, permit, approval or authorization of,




19









 






	 	 	 	exemption by, notice or report to, or registration, filing or declaration with, any
governmental authority is required by the Manager in connection with this Agreement or
the execution, delivery, performance, validity or enforceability of this Agreement and
all obligations required hereunder. This Agreement has been, and each instrument or
document required hereunder will be, executed and delivered by a duly authorized officer
of the Manager, and this Agreement constitutes, and each instrument or document required
hereunder when executed and delivered hereunder will constitute, the legally valid and
binding obligation of the Manager enforceable against the Manager in accordance with its
terms.
	 
	 	(iii)	 	The execution, delivery and performance of this Agreement and the documents or
instruments required hereunder will not violate any provision of any existing law or
regulation binding on the Manager, or any order, judgment, award or decree of any court,
arbitrator or governmental authority binding on the Manager, or the Governing Instruments
of, or any securities issued by, the Manager or of any mortgage, indenture, lease,
contract or other agreement, instrument or undertaking to which the Manager is a party or
by which the Manager or any of its assets may be bound, the violation of which would have
a material adverse effect on the business operations, assets or financial condition of
the Manager, and will not result in, or require, the creation or imposition of any lien
on any of its property, assets or revenues pursuant to the provisions of any such
mortgage, indenture, lease, contract or other agreement, instrument or undertaking.





Section 16. Miscellaneous.



(a) Notices. All notices, requests and demands to or upon the respective parties hereto to be
effective shall be in writing (including by telecopy), and, unless otherwise expressly provided
herein, shall be deemed to have been duly given or made when delivered against receipt or upon
actual receipt of (i) personal delivery, (ii) delivery by reputable overnight courier, (iii)
delivery by facsimile transmission with telephonic confirmation or (iv) delivery by registered or
certified mail, postage prepaid, return receipt requested, addressed as set forth below (or to such
other address as may be hereafter notified by the respective parties hereto in accordance with this
Section 16):




	 	 	 

	The Company:

	 	Orchid Island Capital, Inc.
	 

	 	3305 Flamingo Drive
	 

	 	Vero Beach, FL 32963
	 

	 	Attention: Chief Executive Officer
	 

	 	Fax: 772-231-2896
	 
	 	 
	with a copy to:

	 	Hunton & Williams LLP
	 

	 	Riverfront Plaza, East Tower
	 

	 	951 East Byrd Street
	 

	 	Richmond, Virginia 23219
	 

	 	Attention: S. Gregory Cope, Esq.
	 

	 	Fax: 804-343-4833
	 
	 	 
	The Manager:

	 	Bimini Advisors, Inc.
	 

	 	3305 Flamingo Drive
	 

	 	Vero Beach, FL 32963
	 

	 	Attention: Chief Executive Officer
	 

	 	Fax: 772-231-2896
	 
	 	 
	with a copy to:

	 	Moye White LLP
	 

	 	16 Market Square 6th Floor
	 

	 	1400 16th Street






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	 	Denver, CO 80202-1486
	 

	 	Attention: David C. Roos, Esq
	 

	 	Fax: 303 292 4510





(b) Binding Nature of Agreement; Successors and Assigns. This Agreement shall be binding upon and
inure to the benefit of the parties hereto and their respective heirs, personal representatives,
successors and assigns as provided herein.



(c) Integration. This Agreement contains the entire agreement and understanding among the parties
hereto with respect to the subject matter hereof, and supersedes all prior and contemporaneous
agreements, understandings, inducements and conditions, express or implied, oral or written, of any
nature whatsoever with respect to the subject matter hereof. The express terms hereof control and
supersede any course of performance and/or usage of the trade inconsistent with any of the terms
hereof.



(d) Amendments. This Agreement, nor any terms hereof, may not be amended, supplemented or modified
except in an instrument in writing executed by the parties hereto.



(e) GOVERNING LAW. THIS AGREEMENT AND THE RIGHTS AND OBLIGATIONS OF THE PARTIES UNDER THIS
AGREEMENT SHALL BE GOVERNED BY, AND CONSTRUED AND INTERPRETED IN ACCORDANCE WITH, THE LAW OF THE
STATE OF MARYLAND, WITHOUT REGARD TO PRINCIPLES OF CONFLICTS OF LAW. EACH OF THE PARTIES HERETO
IRREVOCABLY SUBMITS TO THE EXCLUSIVE JURISDICTION OF THE COURTS OF THE STATE OF MARYLAND AND THE
UNITED STATES DISTRICT COURT FOR ANY DISTRICT WITHIN SUCH STATE FOR THE PURPOSE OF ANY ACTION OR
JUDGMENT RELATING TO OR ARISING OUT OF THIS AGREEMENT OR ANY OF THE TRANSACTIONS CONTEMPLATED
HEREBY AND TO THE LAYING OF VENUE IN SUCH COURT.



(f) WAIVER OF JURY TRIAL. EACH PARTY HERETO ACKNOWLEDGES AND AGREES THAT ANY CONTROVERSY WHICH MAY
ARISE UNDER THIS AGREEMENT IS LIKELY TO INVOLVE COMPLICATED AND DIFFICULT ISSUES, AND, THEREFORE,
EACH SUCH PARTY HEREBY IRREVOCABLY AND UNCONDITIONALLY WAIVES TO THE FULLEST EXTENT PERMITTED BY
APPLICABLE LAW, ANY RIGHT SUCH PARTY MAY HAVE TO A TRIAL BY JURY IN RESPECT TO ANY ACTION DIRECTLY
OR INDIRECTLY ARISING OUT OF, UNDER OR IN CONNECTION WITH OR RELATING TO THIS AGREEMENT OR THE
TRANSACTIONS CONTEMPLATED BY THIS AGREEMENT.



(g) Survival of Representations and Warranties. All representations and warranties made hereunder,
and in any document, certificate or statement delivered pursuant hereto or in connection herewith
shall survive the execution and delivery of this Agreement.



(h) No Waiver; Cumulative Remedies. No failure to exercise and no delay in exercising, on the part
of a party hereto, any right, remedy, power or privilege hereunder shall operate as a waiver
thereof; nor shall any single or partial exercise of any right, remedy, power or privilege
hereunder preclude any other or further exercise thereof or the exercise of any other right,
remedy, power or privilege. The rights, remedies, powers and privileges herein provided are
cumulative and not exclusive of any rights, remedies, powers and privileges provided by law.



(i) Costs and Expenses. Each party hereto shall bear its own costs and expenses (including the fees
and disbursements of counsel and accountants) incurred in connection with the negotiations and
preparation of and the closing under this Agreement, and all matters incident thereto.






21









 







(j) Section Headings. The section and subsection headings in this Agreement are for convenience in
reference only and shall not be deemed to alter or affect the interpretation of any provisions
hereof.



(k) Counterparts. This Agreement may be executed by the parties to this Agreement on any number of
separate counterparts (including by telecopy), and all of said counterparts taken together shall be
deemed to constitute one and the same instrument.



(l) Severability. Any provision of this Agreement which is prohibited or unenforceable in any
jurisdiction shall, as to such jurisdiction, be ineffective to the extent of such prohibition or
unenforceability without invalidating the remaining provisions hereof, and any such prohibition or
unenforceability in any jurisdiction shall not invalidate or render unenforceable such provision in
any other jurisdiction.




(signatures on following page)





22









 








IN WITNESS WHEREOF, each of the parties hereto have executed this Management Agreement as of the date first written above.




	 	 	 	 	 	 	 

	 	 	Orchid Island Capital, Inc.	 	 
	 
	 	 	 	 	 	 
	 

	 	By:	 	 	 	 
	 

	 	 	 	 

	 	 
	 

	 	Name:
	 	Robert E. Cauley	 	 
	 

	 	Title:
	 	Chief Executive Officer	 	 
	 
	 	 	 	 	 	 
	 	 	Bimini Advisors, Inc.	 	 
	 
	 	 	 	 	 	 
	 

	 	By:	 	 	 	 
	 

	 	 	 	 

	 	 
	 

	 	Name:
	 	G. Hunter Haas, IV	 	 
	 

	 	Title:
	 	Chief Financial Officer,	 	 
	 

	 	 	 	Chief Investment Officer and Secretary	 	 








23









 








Exhibit A




Investment Guidelines



Capitalized terms used but not defined herein shall have the meanings ascribed thereto in that
certain Management Agreement, dated as of [ ], 2011, as may be amended from time to time (the
“Management Agreement”), by and between Orchid Island Capital, Inc. (the “Company”) and Bimini
Advisors, Inc. (the “Manager”).



1. The Company shall not make any investments other than investments in Agency RMBS.



2. The Company’s leverage may not exceed 12 times its stockholders’ equity (as computed in
accordance with GAAP) (the “Leverage Threshold”). In the event that the Company’s leverage
inadvertently exceeds the Leverage Threshold, the Company may not utilize additional leverage
without prior approval from the Board of Directors until the Company is once again in compliance
with the Leverage Threshold.



3. No investment shall be made that would cause the Company to fail to qualify as a REIT under the
Code.



4. No investment shall be made that would cause the Company to be regulated as an investment
company under the Investment Company Act.




These Investment Guidelines may be amended, restated, modified, supplemented or waived by the
Board of Directors (which must include a majority of the Independent Directors) without the
approval of the Company’s stockholders.





A-1