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Exhibit
10.4
LICENSE
AGREEMENT
This TRADEMARK LICENSE
AGREEMENT (“ Agreement ”) is effective as of the
10th day of February, 2006 (“Effective Date”) by and
between The Cypress Group L.L.C., on the one hand, (the “
Licensor ”) and Cypress Sharpridge Investments, Inc.,
a corporation organized under the laws of the State of Maryland, on
the other (the “ Licensee ”).
WHEREAS, Licensee is a
newly-organized real estate investment trust (the “
Licensee Business ”);
WHEREAS, Licensor owns the
trademarks “Cypress” and “The Cypress
Group” for use in connection with financial
services;
WHEREAS, pursuant to a
Limited Liability Company Agreement dated as of February 2,
2006, Cypress CSI Advisors LLC (“ Cypress CSI Advisors
”), an affiliate of Licensor, is a member of Cypress
Sharpridge Advisors LLC, a newly-created limited liability company
organized under the laws of the State of Delaware (the “
Manager ”);
WHEREAS, pursuant to a
management agreement dated as of February 10, 2006 between
Licensee and the Manager (the “ Management Agreement
”), Licensee has engaged the Manager to perform investment
advisory services; and
WHEREAS, as contemplated by
the Management Agreement, Cypress CSI Advisors has entered into a
Sub-Advisory Agreement with Manager dated as of February 10,
2006 (the “ Sub-Advisory Agreement ”), pursuant
to which Cypress CSI Advisors will provide certain services to the
Manager in order to enable the Manager to perform its obligations
to Licensee under the Management Agreement;
WHEREAS, Licensee wishes to
obtain the right to use the names and trademarks
“Cypress” and “The Cypress Group” (the
“ Cypress Brand ”) and the corporate logo design
attached as Schedule A (a tree drawn over a circle and within a
diamond) (the “ Cypress Logo ” and, together
with the Cypress Brand, the “ Name ”) as part of
the trademarks, service marks, trade names, corporate names and
domain names incorporating “CYPRESS SHARPRIDGE
INVESTMENTS” (the “ Composite Name ”),
under which it will conduct the Licensee Business (as defined
above);
NOW, THEREFORE, in
consideration of the premises and the mutual promises and covenants
contained herein and for other good and valuable consideration, the
receipt and sufficiency of which is hereby acknowledged, the
parties hereto agree as follows:
ARTICLE I.
Grant of
Rights
Section 1.1. During the Term as set forth in
Article 4, and subject to the terms and conditions herein, Licensor
hereby grants to Licensee a royalty free, fully paid-up,
non-exclusive license to use each of the Cypress Brand and Cypress
Logo solely (i) in the United
States, (ii) as part of the
trademark, service mark, trade name, corporate name or domain name
“CYPRESS SHARPRIDGE INVESTMENTS”, (iii) in
connection with the Licensee Business, and (iv) as part of
materials used to communicate corporate identity, including forms
for incorporation or qualifying for or registering to do business,
SEC filings, press releases, business cards, letterhead,
stationery, signage, telephone listings, bank accounts and website
content (“ Corporate Identity Materials ”) and
marketing materials related thereto. Licensee expressly
acknowledges that it has no right to use the Name standing alone.
Licensee also agrees that it shall not (y) use any variation,
derivative or stylization of the Composite Name or any word or mark
confusingly similar thereto or (z) use the Name in connection
or combination with any other name, trademark, service mark, term
or logo (either of its own or a third party) other than the
Composite Name, in each case without Licensor’s prior written
approval. Licensor acknowledges that Licensee may make investments
or have shareholders outside the United States, and any implied
“use” of the Composite Name due to this fact shall not
violate this Agreement, but is subject to Article 7. All rights not
expressly granted to Licensee in this Article 1 are reserved to
Licensor.
ARTICLE II.
Ownership
Section 2.1. Licensee agrees that, as
between the parties, Licensor is the sole owner of the Name and all
rights related thereto. Licensee agrees not to directly or
indirectly challenge or contest the validity of the Name or
Licensor’s rights therein, including without limitation,
arising out of or relating to any third-party claim, allegation,
action, demand, proceeding or suit (“ Action ”)
regarding enforcement of this Agreement or involving any third
party. The parties intend that any and all goodwill in the Name
arising from Licensee’s use of the Composite Name shall inure
solely to the benefit of Licensor. Notwithstanding the foregoing,
in the event that Licensee is deemed to own any rights in the Name
(or the Name portion of the Composite Name), Licensee hereby
assigns such rights to Licensor.
ARTICLE III.
Use of the
Mark
Section 3.1. Licensee agrees to
maintain and preserve the quality of the Name, and to use the
Composite Name in good faith and in a dignified manner, in a manner
consistent with Licensor’s high standards of and reputation
for quality, and in accordance with good trademark practice
wherever the Composite Name is used. Licensee shall not take any
action that could be detrimental to the Name, the Composite Name or
their associated goodwill. Licensee agrees to include on all
displays of the Name and the Composite Name to third parties
appropriate notices and legends as may be requested by the Licensor
or required under applicable laws in order to preserve and protect
the validity of, and all of Licensor’s right, title and
interest in, the Name.
Section 3.2. Upon request by Licensor,
Licensee shall furnish to Licensor representative samples and
documentation of all advertising, marketing and promotional
materials and other items that are used in connection with the
Composite Name. Licensee shall be required to make any changes to
such materials that Licensor requests in order to comply with
Section 3.1, or to preserve the validity of, or
Licensor’s rights in, the Name.
2
Section 3.3. Licensee shall, at its
sole expense, comply at all times with all applicable laws,
regulations, exchange and other rules and reputable industry
practice pertaining to the Licensee Business and the use of the
Composite Name.
ARTICLE IV.
Term and
Termination
Section 4.1. The term of this
Agreement (“ Term ”) commences on the Effective
Date and shall continue for twenty (20) years, automatically
renewable without any prior notice to, or action by, either party
or their successors or assignees for additional periods of twenty
(20) years each, unless termination occurs earlier pursuant to
the other provisions of this Article 4.
Section 4.2. If a party materially
breaches one or more of its obligations hereunder, the other party
may terminate this Agreement, effective upon written notice, if
such party does not cure such breach within 30 days of written
notice thereof (or any mutually-agreed extension). Licensor may
terminate this Agreement immediately, effective upon written
notice, if Licensee violates Article 7.
Section 4.3. This Agreement shall
terminate immediately if (i) the Cypress Sub-Advisory
Agreement is terminated or expires pursuant to its terms or
(ii) an affiliate of Licensor is no longer acting as Manager
to Licensee under the Management Agreement or a similar
agreement.
Section 4.4. Licensor has the right to
terminate this Agreement immediately upon written notice to
Licensee if (i) Licensee makes an assignment for the benefit
of creditors; (ii) Licensee admits in writing its inability to
pay debts as they mature; (iii) a trustee o
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