Exhibit 10.6


 


AGENCY
AGREEMENT


 


THIS AGENCY AGREEMENT (the “Agreement”) is
made and entered into as of this 20th day of November 2003 by and between AVM,
L.P., an Illinois limited partnership (“AVM”), and Bimini Mortgage Management,
Inc., a Maryland corporation (“BIMINI”).


 


WHEREAS, BIMINI has entered into a Clearing
Agreement (the “Clearing Agreement”) with JPMorgan Chase Bank (the “Clearing
Bank”) and intends to enter into certain securities trades and other financial
transactions [including, but not limited to, the Financing Transactions, as
defined in the letter agreement (the “Letter Agreement”) between AVM and BIMINI
dated as of October 31, 2003 regarding AVM’s consulting and IB services]
that will be cleared pursuant to the Clearing Agreement (collectively, the
“Transactions”); and


 


WHEREAS, BIMINI wishes to engage AVM as its
non-discretionary agent under the Clearing Agreement with respect to the
Transactions;


 


NOW, THEREFORE, for and in consideration of
the premises and mutual agreements set forth herein, the parties agree as
follows:


 


1.             Services
Provided by AVM with Respect to the Transactions.  AVM, acting as BIMINI’s non-discretionary
agent, shall perform the following services:


 


(a)           AVM
shall give instructions to the Clearing Bank on behalf of BIMINI with
respect to the Transactions, in accordance with instructions from BIMINI, in
order to settle the Transactions.


 


(b)           AVM
shall instruct the Clearing Agent to send margin payments to BIMINI’s
counterparties in Financing Transactions, where appropriate.


 


(c)           AVM
shall act on BIMINI’s behalf to monitor the performance by the Clearing Bank of
its duties under the Clearing Agreement.


 


2.             Services
Not Provided by AVM with Respect to the Transactions.


 


(a)           AVM
shall not accept or hold in its name any money, securities, or property of
BIMINI (or extend credit in lieu thereof) in respect of any Transactions.


 


(b)           AVM
does not guarantee BIMINI against loss or a margin call in respect of any
Transaction.


 


(c)           AVM
is not providing investment advice to BIMINI in respect of any Transaction,
except any advice that is incidental to AVM’s IB services provided under the
Letter Agreement.


 


(d)                                 AVM
is not acting as a discretionary agent.


 


3.             Compensation.  During the term of this
Agreement, BIMINI shall pay AVM fees at such rates as set forth in Exhibit A
hereto and as may from time to time be mutually agreed upon in writing.


 

















 


4.             Confidentiality.  In connection with the
services to be provided by AVM hereunder or under the Letter Agreement, BIMINI
may receive information that describes, explains or otherwise relates to
certain AVM trade ideas and other confidential and proprietary information (the
“AVM Information”). AVM Information includes, but is not limited to,
information contained in AVM research reports and other written materials.
BIMINI hereby acknowledges that AVM Information is being provided on a strictly
confidential basis. In consideration for AVM Information, BIMINI agrees that
AVM Information will be kept confidential by BIMINI and will not be disclosed
to or discussed with any third parties, except as allowed by the terms of the
succeeding paragraph. Further, BIMINI agrees not to allow third parties to
review, photocopy or otherwise duplicate any documents provided by AVM.
Additionally, BIMINI agrees that it will not use AVM Information to design,
recommend or execute trades for itself, its clients or others without the
consent of AVM. Similarly, AVM acknowledges that information concerning BIMINI,
its trading activities, financial status and results, etc. (the “BIMINI
Information”) may be confidential, and AVM will likewise keep BIMINI
Information confidential on the same basis.


 


The obligations of BIMINI and AVM to maintain
confidentiality extend to all of the AVM Information and BIMINI Information
(collectively, the “Information”) received except for information (1) that is
already in the public domain; (2) that subsequently becomes available to third
parties via publication or otherwise through no breach of the terms of this
Agreement or the Letter Agreement; (3) that was already in their possession
prior to its disclosure by the other party; (4) the disclosure of which is
required by law or by a competent regulatory authority or is necessitated by a
legal proceeding or audit requirement; or (5) that is disclosed only to legal
or other professional advisors who have previously entered into a comparable
confidentiality agreement with the other party, and only where such advisors
are advising upon matters related to this Agreement, the Letter Agreement and/or
the Information.


 


The parties further agree to take all reasonable
precautions to prevent the theft or unauthorized use of any of these materials,
to notify the other party of any unauthorized use or disclosure of Information
of which a party becomes aware and to make all reasonable efforts to prevent
and stop such unauthorized use. The parties further acknowledge that any
unauthorized use or disclosure of Information will cause irreparable damage to
the other party and that, consequently, the parties shall have the right to
injunctive or other equitable relief to prevent or stop such use or disclosure
and to other legal and equitable relief for the damages occasioned thereby.


 


The provisions of this Section 3 shall survive the
termination of this Agreement.


 


5.             Indemnification.  BIMINI shall fully
indemnify, protect and hold harmless AVM, its partners, officers, shareholders,
employees, agents, and affiliates from and against all manner of claim,
demands, proceedings, suits, or actions (whether in law or in equity) and
liabilities, losses, expenses, and costs (including attorneys’ fees) relating
to AVM’s services hereunder, in connection with the Letter Agreement, and for
any breach of the Clearing Agreement by the Clearing Bank or failure by the
Clearing Bank to fulfill its duties under the Clearing Agreement, unless and
solely to the extent AVM is found to have engaged in gross negligence or
willful misconduct in the performance of its services hereunder or under the
Letter Agreement.  AVM may, in its sole
discretion, elect to assume the sole defense, including the settlement or
compromise, of any such claim, demand, proceeding, suit, or action instituted
against AVM.


 


6.             Termination.  This Agreement shall be
effective as of the date on which BIMINI closes on its first private placement
of Class A Common Stock (the “Effective Date”). This agreement is terminable at
will by either party upon 120 days’ written notice to the other party.  In the event that BIMINI terminates the
agreement, AVM will not be required to refund or return any portion of the fees



 


2

















 


previously paid. In
addition, unless extended by agreement of the parties, this Agreement will
expire by its terms on October 1, 2006.


 


7.             Notices.  Except as otherwise provided in this
Agreement, all notices required to be given under this Agreement shall be in
writing, and shall be effective upon receipt as provided herein.  Any such written notice shall be deemed
received upon the earlier of:  (a) actual
receipt by the other party; or (b) the close of business on:  (i) the date of transmission (if receipt is
confirmed by the receiver or the courier), if sent by facsimile or same-day
courier, (ii) on the business day after the date of transmission, if sent by
overnight mail; or (iii) the third business day after transmission, if sent by
registered or certified mail, postage prepaid, and return receipt
requested.  For the purposes of delivery
of any notice hereunder, the address and facsimile number of AVM and BIMINI,
respectively, shall be as set forth on the signature page hereof.  Either party may change its address or
facsimile number for notices by giving written notice of the new address or
number to the other party.


 


8.             Miscellaneous.


 


(a)           The
Agreement, and all matters pertaining to its validity, construction,
enforcement, interpretation or effect, shall be governed by and construed in
accordance with the laws of the State of Florida, without regard to choice of
law principles.


 


(b)           No
action, regardless of form, arising out of transactions under this Agreement
may be commenced against AVM, its partners, officers, employees,
representatives, agents, successors, or assigns in any forum by the
undersigned, its successors, or assigns more than one year after the claim
giving rise to such action has arisen.


 


(c)           This
Agreement shall be binding upon and inure to the benefit of the parties hereto
and their respective successors and permitted assigns.  No assignment shall be valid unless the
other party consents to such assignment in writing.


 


(d)           The
Agreement contains the entire agreement between the parties relating to the
subject matter hereof and supersedes all prior understandings, representations
or negotiations, written or oral, express or implied.  The Agreement shall not be modified, amended, supplemented,
altered or varied, and no provision hereof may be waived, except by a written
instrument signed by all of the parties after the date hereof.


 


(e)           Neither
this Agreement nor the performance of services by AVM hereunder shall be
construed to create a joint venture or partnership between AVM and BIMINI.


 


(f)            Whenever
possible, each provision of this Agreement shall be interpreted in such a
manner as to be valid and effective under applicable law.  In the event that any one or more of the
provisions of the Agreement shall be held invalid, illegal, or unenforceable in
any respect, such provisions shall be severed from this Agreement, and the
validity, legally, and enforcement of the remaining provisions contained herein
shall not be affected or impaired thereby.


 


(g)           The
section headings in this Agreement are inserted for convenience of reference
only and are not intended to limit the applicability or affect the meaning of
any of its provisions.


 


3

















 


IN WITNESS WHEREOF, the parties hereto have
each caused this Agreement to be executed by their duly authorized
representative as of the day and year first set forth above.


 


	
  AVM, L.P.

  	
   

  	
  BIMINI MORTGAGE MANAGEMENT, INC.

  
	
   

  	
   

  	
   

  	
   

  
	
  By:

  	
  AVM Associates LLC,

  	
   

  	
   

  
	
   

  	
  its general partner

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
  By:

  	
  /s/ Bill McCauley

  	
   

  	
  By:

  	
  /s/ Jeffrey J. Zimmer

  	
   

  
	
  Name:

  	
  Bill McCauley

  	
   

  	
  Name:

  	
  Jeffrey J. Zimmer

  
	
  Title:

  	
  C E O

  	
   

  	
  Title:

  	
  C E O

  
	
   

  	
   

  	
   

  	
   

  
	
  Address For Notices:

  	
   

  	
  Address For Notices:

  
	
  AVM, L.P.

  	
   

  	
  Bimini Mortgage
  Management, Inc.

  
	
  250 South Australian
  Avenue, Suite 600

  	
   

  	
  3305 Flamingo Drive,
  Suite 100

  
	
  West Palm Beach FL
  33401

  	
   

  	
  Vero Beach FL 32963

  
	
  Facsimile:

  	
  561-655-5496

  	
   

  	
  Facsimile:

  	
  772-231-1477

  
	
  Attention:

  	
  Scott Wyler

  	
   

  	
  Attention:

  	
  Jeffrey J. Zimmer

  
									



 


4

















 


Exhibit A


 


Fee Structure


 


Bimini will pay the greater of 20bps on Book Value or $250,000 annually
on the first $200mm in Book Value, calculated and paid quarterly in arrears,
other than the first payment, described below. 
Above $200mm, the annual fee decreases per the sliding scale shown
below. “Book Value” means Shareholder’s Equity divided by Class A shares
Outstanding.


 


The fee will cover all transactions up to the first 750 tickets per
calendar quarter (3,000 tickets per year) once Bimini has reached $150MM in
Book Value. There will be no transaction limit until $150MM in Book Value has
been reached.  Fee will be paid
quarterly based on a snapshot of current Book Value at each quarterly Billing
Date (defined below).  The first
installment will be due 5 days after Bimini’s private offering closes.  The first installment will be $62,500 (based
on the $250,000 annual minimum). 
Subsequent quarterly fees will be based on the table below and billed on
the 15th of February, May, August and November (the “Billing Dates”).  Excess Transaction Fees of $80 per ticket
will be incurred when the number of transactions exceeds 750 per calendar
quarter.  Above $150MM of Book Value,
the 750 quarterly transaction limit increases per the sliding scale shown
below.


 


 


Fee Calculation


SCALE 


 




	
  Book Value

  in MMs

  	
   

  	
  Annual Fee
  in

  bps

  	
   

  	
  Cumulative

  Annual Fee

  	
   

  	
  Annual

  Transaction

  Limit

  	
   

  
	
  $

  	
  100

  	
   

  	
  20

  	
   

  	
  $

  	
  250,000

  	
   

  	
  N/A

  	
   

  
	
  150

  	
   

  	
  20

  	
   

  	
  300,000

  	
   

  	
  3,000

  	
   

  
	
  200

  	
   

  	
  20

  	
   

  	
  400,000

  	
   

  	
  4,000

  	
   

  
	
  250

  	
   

  	
  19

  	
   

  	
  495,000

  	
   

  	
  5,000

  	
   

  
	
  300

  	
   

  	
  18

  	
   

  	
  585,000

  	
   

  	
  6,000

  	
   

  
	
  350

  	
   

  	
  17

  	
   

  	
  670,000

  	
   

  	
  7,000

  	
   

  
	
  400

  	
   

  	
  16

  	
   

  	
  750,000

  	
   

  	
  8,000

  	
   

  
	
  450

  	
   

  	
  15

  	
   

  	
  825,000

  	
   

  	
  9,000

  	
   

  
	
  500

  	
   

  	
  14

  	
   

  	
  895,000

  	
   

  	
  10,000

  	
   

  
	
  550

  	
   

  	
  13

  	
   

  	
  960,000

  	
   

  	
  11,000

  	
   

  
	
  600

  	
   

  	
  12

  	
   

  	
  1,020,000

  	
   

  	
  12,000

  	
   

  
	
  650

  	
   

  	
  11

  	
   

  	
  1,075,000

  	
   

  	
  13,000

  	
   

  
	
  700

  	
   

  	
  10

  	
   

  	
  1,125,000

  	
   

  	
  14,000

  	
   

  
	
  750

  	
   

  	
  9

  	
   

  	
  1,170,000

  	
   

  	
  15,000

  	
   

  
	
  800

  	
   

  	
  8

  	
   

  	
  1,210,000

  	
   

  	
  16,000

  	
   

  
	
  1,600

  	
   

  	
  7

  	
   

  	
  1,770,000

  	
   

  	
  28,000

  	
   

  
	
  3,200

  	
   

  	
  4

  	
   

  	
  2,410,000

  	
   

  	
  53,000

  	
   

  
										






 


	
  AGREED:

  	
   

  
	
   

  	
   

  	
   

  
	
  AVM, L.P.

  	
  BIMINI MORTGAGE MANAGEMENT INC.

  
	
   

  	
   

  	
   

  	
   

  
	
  By:

  	
  AVM Associates LLC,

  	
   

  	
   

  
	
   

  	
  Its general partner

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
  By:

  	
  /s/ Bill McCauley

  	
   

  	
  By:

  	
  /s/ Jeffrey J. Zimmer

  	
   

  
	
  Name:

  	
  Bill McCauley

  	
  Name:

  	
  Jeffrey J. Zimmer 

  
	
  Title:

  	
  C E O

  	
  Title:

  	
  C E O