[FORM OF INVESTOR SUPPORT SERVICES AGREEMENT]
TORREY INTERNATIONAL STRATEGY PARTNERS, LLC
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As of October 27, 2003
Torrey Associates, LLC
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Re: Appointment as Investor Support Services Agent ("Agent")
Ladies and Gentlemen:
Torrey International Strategy Partners, LLC, a limited liability company
organized under the laws of the State of Delaware (the "Fund") hereby agrees
with Torrey Associates, LLC, a limited liability company organized under the
laws of the State of Delaware (the "Agent") as follows:
1. Fund Offering.
The Fund proposes to issue and to sell its limited liability company
interests ("Interests") in accordance with a Private Placement Memorandum
issued by the Fund, substantially in the form attached hereto as Exhibit A,
as may be amended or supplemented from time to time (the "Memorandum").
2. Definitions.
All capitalized terms used in this Agreement which are not separately
defined herein shall have the respective meaning set forth in the
Memorandum.
3. Investor Support.
(a) Subject to the terms and conditions set forth herein, the Fund hereby
appoints the Agent as the Fund's non-exclusive investor support
services agent in connection with the sale and repurchase of interests
in the Fund. Subject to the performance in all material respects by
the Fund of its obligations hereunder, and to the completeness and
accuracy in all material respects of all of the representations and
warranties of the Fund contained herein, the Agent hereby accepts such
agency and agrees on the terms and conditions herein set forth to use
the Agent's best efforts to: (a) be responsible for coordinating
communications with Members (which may be through financial advisors
used by such Members); (b) be responsible for responding to inquiries
from Members regarding their accounts; (c) be responsible for
coordinating the provision of investment account reports to Members
(which may be through financial advisors used by such Members); and
(d) act as primary agent to handle inquiries regarding tender offers
and purchases made by the Funds. The Agent shall not have any
liability to the Fund in the event that any investor fails to
consummate the purchase of Interests for any reason other than the
Agent's willful misconduct or gross negligence or violation of
applicable law.
(b) From time to time, Wachovia Securities, LLC and Wachovia Securities
Financial Networks, LLC (together, the "Placement Agent") may provide
investor support services in conjunction with those provided by the
Agent pursuant to this Agreement. Such investor support services
provided by the Placement Agent are provided pursuant to a separate
placement agency agreement between the Fund and the Placement Agent.
4. Subscription and Repurchase Procedures.
(a) All subscriptions for Interests and payments by investors of
subscription amounts for Interests and all repurchases of Interests
and payments by the Fund for the repurchase of Interests shall be made
pursuant to the terms and conditions set forth in the Memorandum and
the subscription documentation. Tenders of Interests (in the event of
a tender offer by the Fund to repurchase Interests) from investors
shall be subject to processing by the Agent and the Fund, as described
in Section 5 below.
(b) Any payments received by the Agent hereunder for subscriptions in the
name and on behalf of the Fund shall be handled by the Agent in
accordance with the terms of the subscription documentation.
5. Processing of Subscriptions, Repurchase Requests and Operational
Procedures.
(a) In the event of a tender offer by the Fund to repurchase interests
from Members, the Agent shall review all letters of transmittal
tendering Interests from each Member for completeness and shall
promptly forward completed letters of transmittal to the Fund's
administrator, ▇▇▇▇▇ & ▇▇▇▇▇▇▇▇ Fund Services, LLC, which shall
promptly communicate to the Fund the receipt of the letter of
transmittal. At the expiration of the tender offer, the Fund will
communicate its decision to accept or reject the tender of Interests
to the Agent which shall then communicate such decision to the Members
tendering interests. The Agent has no authority to accept repurchase
requests for Interests in the Fund.
(b) The Agent and the Fund shall follow the operational procedures for the
submission of subscriptions for Interests, payment therefor, the
submission of repurchase requests and the payment of repurchase
proceeds that are set forth in the Memorandum and the subscription
documentation. The Fund also shall appoint an administrator that will
advise and assist the Agent in, among other things, primary record
keeping, capital accounting, tax reporting, tax withholding and
monthly reconciliation of accounts and net asset values. The Fund also
will be responsible for, among other things, all reporting to
regulators and to Members, which shall include, among other things, a
monthly calculation of net asset value, quarterly unaudited reports to
Members and audited annual reports to Members. The monthly calculation
of net asset value shall be calculated as set forth in the Memorandum,
based upon United States generally accepted accounting principles, as
set forth in the Fund's Pricing Procedures adopted by the Managers,
and shall be transmitted to the Agent for purposes of allowing the
Agent to confirm to Members the offering price or repurchase price, as
the case may be, for Interests as soon as practicable after: (i) the
initial closing date, (ii) each calendar month end or (iii) the
repurchase date, as applicable. The Fund also shall retain an escrow
agent as necessary.
6. Representations and Warranties of the Fund.
The Fund represents and warrants to the Agent that:
(a) The Fund has been duly formed and is validly existing as a limited
liability company in good standing under the laws of the State of
Delaware with all requisite power and authority, all necessary
authorizations, approvals, orders, licenses, certificates and permits
of and from all governmental regulatory officials and bodies, and all
necessary rights, licenses and permits from other parties, to conduct
its business as described in the Memorandum.
(b) The Interests have been duly authorized for issuance and sale and,
when issued and delivered by the Fund, will be validly issued by the
Fund, fully paid and nonassessable.
(c) The Interests conform to the description thereof in the Memorandum.
(d) The issuance and sale of Interests and the execution, delivery and
performance of the Fund's obligations under this Agreement will not
result in the violation of any material statute, law, rule or
regulation applicable to the Fund.
(e) This Agreement has been duly authorized, executed and delivered by the
Fund and, assuming the Agent's execution hereof, will constitute a
valid and binding agreement of the Fund.
7. Covenants of the Fund.
The Fund covenants and agrees with the Agent as follows:
(a) The Fund will apply the proceeds from the sale of Interests for the
purposes set forth in the Memorandum.
(b) If, at any time after the commencement of an offering of Interests and
prior to its termination, an event occurs which in the opinion of
counsel to the Fund materially affects the Fund and which should be
set forth in an amendment or supplement to the Memorandum in order to
make the statements therein not misleading in light of the
circumstances under which they are made, the Fund will (i) notify the
Agent as promptly as practical of the occurrence of such event, (ii)
promptly prepare, subject to the prior approval of the Agent (which
approval shall not be unreasonably withheld), and file with the
Securities and Exchange Commission an amendment or supplement to the
Memorandum, and (iii) furnish to the Agent copies of such amendment or
supplement, in such reasonable quantities as the Agent may request in
order that the Memorandum will not contain any untrue statement of any
material fact or omit to state a material fact which in the opinion of
such counsel is necessary to make the statements therein not
misleading in light of the circumstances under which they are made.
(c) The Fund will perfect all state law exemptions for private placements
by making the appropriate filings in the relevant states.
8. Representations and Warranties of the Agent.
The Agent represents and warrants that:
(a) The Agent has been duly formed and is validly existing as a limited
liability company in good standing under the laws of the State of
Delaware with all requisite power and authority, all necessary
authorizations, approvals, orders, licenses, certificates and permits
of and from all governmental regulating officials and bodies, and all
necessary rights, licenses and permits from other parties, to conduct
its business.
(b) This Agreement has been duly authorized, executed and delivered by the
Agent and, assuming the Fund's execution hereof, will constitute a
valid and binding agreement of the Agent.
(c) The Agent will (1) maintain all records required by law to be kept by
it relating to transactions in Interests of the Fund by or on behalf
of investors and compensation received by the Agent in respect
thereto, and (2) upon request by the Fund in connection with a
governmental, court or administrative proceeding, investigation or
request, promptly make such records available to such requesting
party.
9. Covenants of the Agent.
The Agent covenants and agrees as follows:
(a) The Agent will cooperate with the Fund as reasonably necessary for the
Fund to effectuate any state blue sky filings.
(b) The Agent will be responsible for issues relating directly or
indirectly to the licensing of its representatives and agents in all
relevant jurisdictions.
10. Compensation of Agent.
Other than as set forth below, the Agent will receive no fee, payment or
other remuneration from the Fund for its services under this Agreement.
Compensation to the Agent under this Agreement is related only to the
services provided by the Agent under this Agreement and does not under any
circumstance constitute compensation for services provided by Torrey
Associates, LLC under any other agreement with the Fund.
(a) Investor Servicing Fee - The Fund shall pay the Agent a quarterly
investor servicing fee (the "Investor Servicing Fee") on the last
business day of the relevant quarter based on an annual rate of 0.05%
of the Fund's net asset value attributable to investments in the Fund
made during that quarter. The services to be provided by the Agent
include providing reports and other information to investors, and
services related to the maintenance of investor accounts. The Investor
Servicing Fee shall be paid by the Fund to the Agent by wire transfer
in immediately available federal funds to an account designated by the
Agent, within twenty (20) days after the conclusion of each calendar
quarter, beginning with the quarter ending subsequent to the initial
closing date.
(b) Costs - The Fund will reimburse the Agent for all of its reasonable
out-of-pocket expenses incurred in connection with servicing investor
accounts and processing subscription for and repurchase of Interests.
The Fund shall make such reimbursements within thirty (30) days after
receiving an itemized report of such expenses from the Agent.
11. Limitation of Liability and Indemnification.
(a) The Fund will indemnify the Agent and its affiliates, and each of
their members, directors, officers and employees and any of their
affiliated persons, executors, heirs, assigns, successors or other
legal representatives (each an "Indemnified Person") against any and
all costs, losses, claims, damages or liabilities, joint or several,
including, without limitation, reasonable attorneys' fees and
disbursements, resulting in any way from the performance or
non-performance of any Indemnified Person's duties in respect of the
Fund, except those resulting from the willful malfeasance, bad faith
or gross negligence of an Indemnified Person or the Indemnified
Person's reckless disregard of such duties and, in the case of
criminal proceedings, unless such Indemnified Person had reasonable
cause to believe its actions unlawful (collectively, "disabling
conduct"). Indemnification shall be made following: (i) a final
decision on the merits by a court or other body before whom the
proceeding was brought that the Indemnified Person was not liable by
reason of disabling conduct or (ii) a reasonable determination, based
upon a review of the facts and reached by (A) the vote of a majority
of the Board members who are not parties to the proceeding or (B)
legal counsel selected by a vote of a majority of the Board in a
written advice, that the Indemnified Person is entitled to
indemnification hereunder. The Fund shall advance to an Indemnified
Person reasonable attorneys' fees and other costs and expenses
incurred in connection with defense of any action or proceeding
arising out of such performance or non-performance. The Agent agrees,
and each other Indemnified Person will be required to agree as a
condition to any such advance, that if one of the foregoing parties
receives any such advance, the party will reimburse the Fund for such
fees, costs and expenses to the extent that it shall be determined
that the party was not entitled to indemnification under this
Paragraph 11. The rights of indemnification provided hereunder shall
not be exclusive of or affect any other rights to which any person may
be entitled by contract or otherwise under law.
(b) Notwithstanding any of the foregoing, the provisions of this Paragraph
11 shall not be construed so as to relieve the Indemnified Person of,
or provide indemnification with respect to, any liability (including
liability under Federal securities laws, which, under certain
circumstances, impose liability even on persons who act in good faith)
to the extent (but only to the extent) that such liability may not be
waived, limited or modified under applicable law or that such
indemnification would be in violation of applicable law, but shall be
construed so as to effectuate the provisions of this Paragraph 11 to
the fullest extent permitted by law. The provisions of this Paragraph
11 shall survive the termination or cancellation of this Agreement.
(c) The Agent shall not be liable for any error of judgment or mistake of
law or for any loss suffered by the Fund or any Members in connection
with the matters to which this Agreement relates, except to the extent
that such a loss results from willful misfeasance, bad faith or gross
negligence on its part in the performance of its duties or from
reckless disregard by it of its obligations and duties under this
Agreement. Any person, even though also an officer, director,
employee, or agent of the Agent or its affiliates, who may be or
become an officer, Manager, employee or agent of the Fund, shall be
deemed, when rendering services to the Fund or acting with respect to
any business of the Fund, to be rendering such service to or acting
solely for the Fund and not as an officer, director, employee, or
agent or one under the control or direction of the Agent even though
compensated by it.
12. Effective Date and Term of Agreement.
This Agreement shall become effective for all purposes as of the date
hereof and shall remain in effect for an initial term of one year from such
date. Thereafter, this Agreement shall continue in effect from year to
year, provided that each such continuance is approved by the Managers of
the Fund, including the vote of a majority of the Managers who are not
"interested persons," as defined by the Investment Company Act of 1940, as
amended (the "1940 Act"). The Fund shall notify promptly the Agent if the
continuance of this Agreement has not been so approved by the Managers.
13. Termination.
This Agreement may be terminated as follows:
(a) Any party may terminate this Agreement without cause by written notice
to the other parties on not less than sixty (60) days' notice, or, if
there has been a material breach of any condition, warranty,
representation or other term of this Agreement by the another party,
by written notice to such party at any time.
(b) By written notice to the Fund, the Agent may terminate this Agreement
at any time if (i) there has been, since the respective dates as of
which information is given in the Memorandum, any material adverse
change in the condition, financial or otherwise, of the Fund, which,
in the Agent's opinion, will make it inadvisable to proceed with the
delivery of Interests; (ii) there has occurred any outbreak of
hostilities, domestic or international terrorism or other domestic or
international calamity or crisis the effect of which on the financial
markets is so substantial and adverse as to make it, in the Agent's
judgment, impracticable to market Interests or enforce contracts for
the sale of Interests; and (iii) any order suspending the sale of
Interests shall have been issued by any jurisdiction in which a sale
or sales of Interests shall have been made, or proceedings for that
purpose shall have been initiated or, to the Agent's best knowledge
and belief, shall be contemplated.
(c) This Agreement shall terminate automatically in the event of its
"assignment" as such term is defined by the 1940 Act and the rules
thereunder.
14. Confidentiality.
Each party shall keep confidential any non-public information in respect of
the Members and any confidential and/or proprietary information relating to
the business of each other party. Without limiting the foregoing, the Fund,
and its respective employees, agents, officers and directors (collectively,
the "Recipients") shall keep and retain in the strictest confidence, and
not use for the benefit of itself, themselves or others, information
pertaining to the identity of, and other non-public personal information
with respect to, investors (including Transferred Accounts) that initially
become aware of the Fund or the Recipients or initially become known to the
Recipients as a result of an employee of the Agent or an affiliate (each, a
"Confidential Person"). Each of the Fund, on the one hand, and Agent, on
the other hand, agrees that confidential and/or proprietary information of
the other party may be disclosed to representatives of the other party
hereto who need to know such information in connection with the offer and
sale of Interests (it being understood that such representatives of a party
shall be informed by such party of the confidential nature of such
information and shall agree to be bound by the terms of this Agreement);
and provided further, that any disclosure of such information may be made
if required by law or requested by a regulatory authority, or if such other
party consents thereto. Notwithstanding the foregoing, nothing in this
Agreement will prevent the Fund from accepting investments from investors
through other placement agents that the Fund does not independently know is
a Confidential Person.
15. Services Not Exclusive.
The services to be rendered by the Agent hereunder shall be provided on a
non-exclusive basis. The Agent shall be free throughout the term of this
Agreement and after the termination thereof to provide the same or
different services to other funds on the same or on different terms and
conditions. Nothing herein shall restrict the Agent or its affiliates from
creating or marketing any other product or investment vehicle.
16. Notices.
All communications under this Agreement shall be given in writing, sent by
(i) telecopier, (ii) telex confirmed by answerback, or (iii) registered
mail to the address set forth below or to such other address as such party
shall have specified in writing to the other party hereto, and shall be
deemed to have been delivered effective at the earlier of its receipt or
within two (2) days after dispatch.
If to the Agent:
Torrey Associates LLC
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If to the Fund:
Torrey International Strategy Partners, LLC
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Attention: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇, CEO
17. Miscellaneous.
(a) This Agreement may be executed in counterparts, each of which when so
executed and delivered shall constitute one and the same instrument.
This Agreement shall inure to the benefit of and be binding upon the
parties hereto and their respective successors and assigns and no
other person shall have any right or obligation hereunder.
(b) This Agreement supersedes all prior agreements and understandings
relating to the subject matter hereof, and neither this Agreement nor
any term hereof may be changed, waived, discharged or terminated
except by an instrument in writing signed by the party against whom
enforcement of the change, waiver, discharge or termination is sought.
The headings in this Agreement are for purposes of reference only and
shall not limit or otherwise affect the meaning hereof.
(c) The Fund hereby acknowledges that the Torrey Associates, LLC also
serves as the investment adviser to the Fund pursuant to a separate
investment advisory agreement (the "Advisory Agreement") and that the
services provided by Torrey Associates, LLC acting in its capacity as
investor support services agent under this Agreement are separate and
distinct from the services provided by Torrey Associates, LLC acting
in its capacity as investment advisor under the Advisory Agreement.
18. Assignment.
This Agreement (including the indemnification provisions herein) may not be
assigned by either party.
19. Validity.
Any provision or portion of a provision of this Agreement deemed to be in
violation of any law or regulation in a particular jurisdiction shall be
void and of no effect, and shall not affect the continued validity of any
other provision or portion of a provision of this Agreement, which shall
remain in full force and effect in such jurisdiction; provided further that
any deemed invalidity of a provision or portion of a provision of this
Agreement in a particular jurisdiction shall not affect the validity of
such provision or portion of a provision of this Agreement (or the
continued validity of any other provision or portion of a provision of this
Agreement) in any other jurisdiction.
20. Governing Law.
This Agreement shall be governed by and construed and enforced in
accordance with the laws of the State of New York without regard to the
conflicts of laws provisions thereof; provided, however, that in the event
of any conflict between the provisions of the laws of New York and those of
the 1940 Act, the 1940 Act provisions shall control. Any action relating to
this Agreement may be brought in the state or federal courts situated in
the Borough of Manhattan in the City of New York, and each party hereby
consents to the non-exclusive jurisdiction of such courts.
If the foregoing correctly sets forth our understanding with the Agent,
please indicate the Agent's acceptance in the space provided below.
Very truly yours,
TORREY INTERNATIONAL STRATEGY
PARTNERS, LLC
By:
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Name:
Title:
Agreed to and accepted:
TORREY ASSOCIATES, LLC
By:
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Name:
Title:
80350.0024 #440085
