[FORM OF AMENDED AND RESTATED PLACEMENT AGENCY AGREEMENT]
TORREY U.S. STRATEGY PARTNERS, LLC
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TORREY ASSOCIATES, LLC
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As of ___________, 2003
Wachovia Securities, LLC and Wachovia Securities Financial Networks, LLC
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Attention: ▇▇▇▇ ▇▇▇▇▇▇▇▇
Re: Appointment as Placement Agent
Ladies and Gentlemen:
Torrey U.S. Strategy Partners, LLC, a limited liability company organized
under the laws of the State of Delaware (the "Fund"), and Torrey Associates,
LLC, a limited liability company organized under the laws of the State of
Delaware (the "Advisor"), hereby agree with Wachovia Securities, LLC and
Wachovia Securities Financial Network, LLC, limited liability companies
organized under the laws of the State of Delaware (the "Placement Agent") as
follows:
1. Fund Offering.
The Fund proposes to issue and to sell its limited liability company
interests ("Interests") in accordance with a Confidential 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"), which will
be included in the Fund's Registration Statement on Form N-2.
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. Placement of Interests.
(a) Subject to the terms and conditions set forth herein, the Fund hereby
appoints the Placement Agent as the Fund's non-exclusive placement
agent in connection with the placement of Interests. The Placement
Agent agrees and understands that the Fund may utilize other placement
agents in connection with the sale of interests in the Fund. Subject
to the performance in all material respects by each of the Fund and
the Advisor of its obligations hereunder, and to the completeness and
accuracy in all material respects of all of the representations and
warranties of each of the Fund and the Advisor contained herein, the
Placement Agent hereby accepts such agency and agrees on the terms and
conditions herein set forth to use the Placement Agent's best efforts
to find qualified subscribers for Interests from among its clients
(which includes any individual or entity (i) that has a brokerage
account with the Placement Agent or an affiliate thereof or (ii) with
whom a Placement Agent Financial Advisor has a substantial
relationship) AND is introduced to the Fund by the Placement Agent or
one of its employees ("Placement Agent Customers"). For purposes of
this Agreement, the current subscribers of Interests in the Fund (as
identified in Schedule II to this Agreement) shall be treated as
Placement Agent Customers (and these interest holders will be referred
to as "Transferred Accounts"). The Placement Agent shall not have any
liability to the Fund or the Advisor in the event that any Placement
Agent Customer fails to consummate the purchase of Interests for any
reason other than the Placement Agent's willful misconduct or gross
negligence or violation of applicable law.
(b) The offers and sales of Interests are to be effected pursuant to the
exemption from the registration requirements of the Securities Act of
1933, as amended (the "Securities Act"), afforded by Section 4(2)
thereof and Regulation D under the Securities Act. The Placement
Agent, the Fund and the Advisor have established the following
procedures in connection with the offer and sale of Interests and
agree that no party hereto will make offers or sales of any Interests
except in compliance with such procedures:
(i) Offers and sales of Interests will be made only in compliance
with Regulation D under the Securities Act and only to investors
that the Placement Agent reasonably believes qualify as
"accredited investors," as defined in Rule 501(a) under the
Securities Act.
(ii) No sale of Interests to any one investor will be for less than
the minimum denominations as may be specified in the Memorandum,
unless such requirement is waived by the Advisor in its sole
discretion.
(iii) No offer or sale of any Interest shall be made in any state or
jurisdiction, or to any prospective investor located in any state
or jurisdiction, where such Interests have not been registered or
qualified for offer and sale under applicable securities laws of
such jurisdiction unless such Interests are exempt from the
registration or qualification requirements of such laws.
(iv) Sales of Interests will be made only to investors that the
Placement Agent reasonably believes are "qualified clients" as
defined in Rule 205-3 under the Investment Advisers Act of 1940,
as amended (the "Advisers Act").
(v) Sales of Interests will be made in compliance with the USA
PATRIOT Act of 2001 (the "Patriot Act") and the rules and
regulations promulgated thereunder.
(c) For purposes of the offering of Interests, the Fund will furnish to
the Placement Agent copies of the Memorandum and subscription
documentation which shall be furnished to prospective investors.
Additional copies will be furnished in such numbers as the Placement
Agent may reasonably request for purposes of the offering. The
Placement Agent is authorized to furnish to prospective investors only
such information concerning the Fund and the offering as may be
contained in the Memorandum or any written supplements thereto, or any
materials authorized by the Fund and the Advisor (such authorization
to be in writing if the materials were prepared by the Placement
Agent) for use in connection with the offering or sale of Interests to
Placement Agent Customers (all such materials, together with the
Memorandum, being referred to herein as the "Offering Material"), and
such other materials as the Placement Agent has prepared with the
prior written approval of the Fund and the Advisor.
4. Subscription Procedures.
(a) All subscriptions for Interests and payments by Placement Agent
Customers of subscription amounts for Interests shall be made pursuant
to the terms and conditions set forth in the Memorandum and the
subscription documentation. Subscriptions for Interests from Placement
Agent Customers shall be subject to processing by the Placement Agent
and the Fund, as described in Section 5 below.
(b) All payments received by the Placement Agent hereunder for
subscriptions in the name and on behalf of the Fund shall be handled
by the Placement Agent in accordance with the terms of the
subscription documentation.
5. Processing of Subscriptions and Operational Procedures.
(a) The Placement Agent shall review all subscription documents from each
Placement Agent Customer for completeness and shall promptly forward
completed subscription documents to the Fund's administrator, ▇▇▇▇▇ &
▇▇▇▇▇▇▇▇ Fund Services, LLC, which shall promptly communicate its
recommendation to the Fund as to whether the Fund should accept or
reject such documents. The Fund will promptly communicate its decision
to accept or reject a subscription to the Placement Agent which shall
then communicate such decision to the Placement Agent Customer. The
Officers and/or the Managers of the Fund (respectively, the "Officers"
and the "Managers") reserve the right to reject any subscription for
Interests in the Fund for any reason. The Placement Agent has no
authority to accept subscriptions for Interests in the Fund.
(b) The Placement 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 who will be responsible for, among other things,
accurate: primary record keeping, capital accounting, tax reporting,
tax withholding and monthly reconciliation of accounts and net asset
values with the Placement Agent. 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 Placement Agent for purposes of allowing the Placement Agent to
confirm to Members that are Placement Agent Customers 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. Any and all
reports and written communications to Members shall be reviewed by the
Placement Agent, as practicable, prior to their distribution to
Members by the Fund or the Advisor. The Fund also shall retain an
escrow agent as necessary.
6. Representations and Warranties of the Fund.
The Fund represents and warrants to the Placement 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) The Memorandum will not contain an untrue statement of any material
fact or omit to state any material fact necessary in order to make
statements therein in the light of the circumstances under which they
were made, not misleading.
(f) This Agreement has been duly authorized, executed and delivered by the
Fund and, assuming the Advisor's and the Placement Agent's execution
hereof, will constitute a valid and binding agreement of the Fund.
(g) All Offering Material authorized by the Fund and the Advisor in
accordance with Section 3(c) hereof to be given to any potential
investor in connection with the offering or sale of Interests will be,
as of the date of each sale of Interests in respect of which it is
used, true, complete and correct in all material respects and, when
read together with the Memorandum, will not contain any untrue
statement of a material fact or omit to state a material fact required
to be stated therein or necessary in order to make the statements
contained therein not misleading. The Fund agrees to advise the
Placement Agent immediately of the occurrence of any event or other
change which results in the Offering Material containing an untrue
statement of a material fact or omitting to state a material fact
required to be stated therein or necessary to make the statements
contained therein not misleading. The Fund recognizes and confirms
that the Placement Agent (i) will be using and relying primarily on
the information in the Offering Material in performing the services
contemplated hereunder without having independently verified the same,
(ii) does not assume responsibility for the accuracy or completeness
of the Offering Material and (iii) will not make any appraisal of any
assets of the Fund. The Fund agrees not to distribute to any potential
investor that is a Placement Agent Customer any Offering Material that
has not been provided to the Placement Agent sufficiently in advance
of such distribution to permit the Placement Agent a reasonable period
of time to comment thereon.
(h) The offering of Interests is in accordance with state law exemptions
for private placements and, assuming the Fund's compliance with
Section 7(d) hereof, offers and sales of Interests may be made in the
relevant states of the United States of America, Puerto Rico and, upon
notice from the Fund, any other territory or any trust of the United
States of America.
7. Covenants of the Fund.
The Fund covenants and agrees with the Placement Agent as follows:
(a) The Placement Agent and the Placement Agent's counsel shall be
furnished with such documents and opinions as the Placement Agent and
they may require, from time to time, for the purpose of enabling the
Placement Agent or them to pass upon the issuance and sale of
Interests as herein contemplated and related proceedings, or in order
to evidence the accuracy of any of the representations and warranties,
or the fulfillment of any of the conditions herein contained; and all
proceedings taken by the Fund and in connection with the issuance and
sale of Interests as herein contemplated shall be reasonably
satisfactory in form and substance to the Placement Agent and the
Placement Agent's counsel. The Fund shall provide the Placement Agent
as soon as practicable after the date hereof but in any case before
the Fund's initial closing date with a copy of the tax opinion issued
by the Fund's counsel relating to the Fund's classification as a
partnership for Federal income tax purposes (which is included in the
latest version of the Fund's Offering Memorandum). The opinions to be
furnished by the Fund shall be in form and substance satisfactory to
the Placement Agent and its counsel.
(b) The Fund will apply the proceeds from the sale of Interests for the
purposes set forth in the Memorandum.
(c) 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
Placement Agent as promptly as practical of the occurrence of such
event, (ii) promptly prepare, subject to the prior approval of the
Placement 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 Placement Agent
copies of such amendment or supplement, in such reasonable quantities
as the Placement 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.
(d) 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 Advisor.
The Advisor represents and warrants to the Placement Agent that:
(a) The Advisor 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
Advisor and, assuming the Fund's and the Placement Agent's execution
hereof, will constitute a valid and binding agreement of the Advisor.
9. Representations and Warranties of the Placement Agent.
The Placement Agent represents and warrants that:
(a) The Placement Agent has been duly formed and is validly existing as
limited liability companies 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
Placement Agent and, assuming the Fund's and the Advisor's execution
hereof, will constitute a valid and binding agreement of the Placement
Agent.
(c) The Placement Agent is registered as a broker-dealer under Section
15(b) of the Securities Exchange Act of 1934, as amended (the
"Exchange Act"), and has and will maintain all licenses and
registrations necessary under applicable federal and state law and
regulations (including the rules of the NASD) to provide the services
required to be provided by the Placement Agent hereunder.
(d) The Placement Agent has not and will not solicit any offer to buy or
offer to sell Interests in any manner which would be inconsistent with
Regulation D under the Securities Act and any other applicable laws
and regulations or by any form of general solicitation or advertising,
including, but not limited to, any advertisement, article, notice or
other communication published in any newspaper, magazine or similar
medium or broadcast over television or radio or conduct any seminar or
meeting whose attendees have been invited by any general solicitation
or advertising.
(e) The Placement Agent will furnish each subscriber of Interests that is
a Placement Agent Customer a copy of the Memorandum and the
subscription documentation prior to such person's admission as a
Member of the Fund.
(f) The Placement Agent will not externally publish or furnish any
offering literature or marketing materials which contain any reference
to the Fund or the Advisor, other than the Offering Material, without
the prior written approval of the Advisor. No employee of the
Placement Agent or other person acting on behalf of the Placement
Agent is authorized to make any representation (oral or otherwise)
concerning the Fund, the Advisor or the Interests except those
contained in the Memorandum and the other Offering Material.
(g) The Placement Agent will limit solicitations of Placement Agent
Customers to those whom the Placement Agent reasonably believes are
"accredited investors" and "qualified clients" as such terms are
defined under the Securities Act and the Advisers Act, respectively.
(h) The Placement 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 Placement Agent Customers and compensation received by
the Placement Agent in respect thereto, and (2) upon request by the
Fund or the Advisor in connection with a governmental, court or
administrative proceeding, investigation or request, promptly make
such records available to such requesting party.
(i) The Placement Agent has adopted procedures to comply with the
requirements of the Patriot Act and the rules and regulations
promulgated thereunder.
10. Covenants of the Placement Agent.
The Placement Agent covenants and agrees as follows:
(a) The Placement Agent will cooperate with the Fund as reasonably
necessary for the Fund to effectuate any state blue sky filings.
(b) The Placement Agent will be responsible for issues relating directly
or indirectly to the licensing of its representatives and agents in
all relevant jurisdictions.
(c) The Placement Agent will adopt such additional procedures as may be
required to comply with any additional rules or regulations that may
be promulgated under the Patriot Act.
11. Compensation of Placement Agent.
Other than as set forth below, the Placement Agent will receive no fee,
payment or other remuneration from the Fund or the Advisor for its services
under this Agreement.
(a) Initial Sales Charge - As compensation for its services in selling
Interests, the Placement Agent shall be entitled to retain an initial
sales charge from Placement Agent Customers that purchase an Interest
in the Fund as set forth in Schedule 1 hereto, or such lesser amount
or percentage as the Placement Agent shall determine in its sole
discretion.
(b) Investor Servicing Fee - The Fund shall pay the Placement Agent a
quarterly investor servicing fee (the "Investor Servicing Fee") at the
annual rate of 0.10% of the Fund's net asset value attributable to
investments in the Fund made by Placement Agent Customers on the last
business day of the relevant quarter. The services to be provided by
the Placement Agent include personal services related to Placement
Agent Customers which invest in the Fund, such as answering inquiries
regarding the Fund, providing reports and other information, and
services related to the maintenance of investor accounts. The Investor
Servicing Fee shall be paid by the Fund to the Placement Agent by wire
transfer in immediately available federal funds to an account
designated by the Placement Agent, within twenty (20) days after the
conclusion of each calendar quarter, beginning with the quarter ending
subsequent to the initial closing date.
(c) Advisor Payment - The Advisor shall pay the Placement Agent from its
own resources an annual amount (the "Advisor Payment"), payable
quarterly in arrears, equal to, on an annualized basis, 1% of the
Fund's net asset value attributable to investments in the Fund made by
Placement Agent Customers (taking into account the Fund's classes and
series) on the last business day of the relevant quarter, determined
in accordance with the valuation procedures used to calculate the
Management Fee payable to the Advisor.
The Advisor Payment shall be paid by the Advisor to the Placement
Agent by wire transfer in immediately available federal funds to an
account designated by the Placement Agent, within twenty (20) days
after the conclusion of each calendar quarter, beginning with the
quarter ending subsequent to the initial closing date. The obligations
of the Advisor to pay the Advisor Payment to the Placement Agent shall
survive the termination of this Agreement for as long as (1) one or
more Shareholders are Placement Agent Customers and (2) the Placement
Agent is not in material breach of any of its representations or
warranties contained herein.
(d) Costs - The Fund will reimburse the Placement Agent for all of its
reasonable out-of-pocket expenses incurred in connection with the
offering of Interests to Placement Agent Customers, including, but not
limited to, counsel fees and expenses, disbursements and expenses
incurred in connection with the Placement Agent's due diligence of the
Fund and the Advisor, any expenses, if applicable, associated with the
organization of the Fund, and the Placement Agent's preparation to
offer the Interests (including, but not limited to, road shows, other
presentation events, and travel and ancillary entertainment). The Fund
shall make such reimbursements within thirty (30) days after receiving
an itemized report of such expenses from the Placement Agent.
(e) Miscellaneous - The Fund and the Advisor acknowledge that the
Placement Agent intends to compensate its Financial Advisors for their
ongoing servicing of Placement Agent Customers with whom they have
placed Interests in the Fund. This compensation will be based upon a
formula that takes into account the amount of Placement Agent
Customers' assets being serviced.
12. Indemnification and Contribution.
The parties agree to indemnify each other as follows:
(a) Each of the Fund and the Advisor agrees to indemnify and hold harmless
the Placement Agent and its affiliates, their respective controlling
persons (within the meaning of Section 15 of the Securities Act or
Section 20(a) of the Exchange Act ("Controlling Persons")), if any,
(collectively, "Placement Agent Indemnified Persons" and individually,
an "Placement Agent Indemnified Person"), from and against any and all
actions, claims, suits, proceedings, liabilities, losses, damages and
expenses incurred (collectively, "Claims"), joint or several, by any
Placement Agent Indemnified Person (including fees and disbursements
of the Placement Agent and counsel to a Placement Agent Indemnified
Person) which are related to or arise from (i) any act or omission of
the Fund or the Advisor, (ii) any breach by the Fund and/or the
Advisor of any obligation, representation, warranty or covenant under
this Agreement, or (iii) any untrue or alleged untrue statement of a
material fact contained in the Memorandum or the subscription
documentation or any amendment or supplement thereto, or arise out of
or are based upon the omission or alleged omission to state therein a
material fact required to be stated therein or necessary to make the
statements therein not misleading; provided however, that each of the
Fund and the Advisor will not be liable in any such case to the
extent, but only to the extent, that any such Claim arises out of or
is based upon any untrue statement or omission or alleged untrue
statement or omission made therein in reliance upon and in conformity
with written information furnished to the Fund or the Advisor by the
Placement Agent or through the Placement Agent expressly for use
therein by the Fund or Advisor, and will reimburse the Placement Agent
and any other Placement Agent Indemnified Person for all costs and
expenses (including fees and disbursements of the Placement Agent or
counsel to a Placement Agent Indemnified Person), as they are
incurred, in connection with investigating, preparing for, providing
depositions for, testifying in or defending any such action or claim,
formal or informal, investigation, inquiry or other proceeding,
whether or not in connection with pending or threatened litigation,
whether or not the Placement Agent or any Placement Agent Indemnified
Person is named as a party thereto and whether or not any liability
results therefrom related to or arising from the foregoing
(collectively, "Costs"). The Fund and/or the Advisor will not,
however, be responsible for any Claims which are found in a final
judgment (not subject to further appeal) to have resulted directly and
primarily from a Placement Agent Indemnified Person's gross negligence
or willful misconduct.
(b) The Placement Agent agrees to indemnify and hold harmless each of the
Fund and the Advisor, and their affiliates, their respective
Controlling Persons, if any (collectively, "Issuer Indemnified
Persons" and individually, an "Issuer Indemnified Person"), from and
against any and all Claims by any Issuer Indemnified Person (including
fees and disbursements of the Issuer and counsel to an Issuer
Indemnified Person) which are related to or arise from (i) any breach
by it of any obligation, representation, warranty or covenant under
this Agreement; or (ii) any untrue or alleged untrue statement of a
material fact contained in the Memorandum or the subscription
documentation or any amendment or supplement thereto, or arise out of
or are based upon the omission or alleged omission to state therein a
material fact required to be stated therein or necessary to make the
statements therein not misleading, in each case to the extent, but
only to the extent, that any such Claim arises out of or is based upon
any such untrue statement or alleged untrue statement or omission or
alleged omission made therein in reliance upon and in conformity with
written information furnished to the Fund or the Advisor by the
Placement Agent or on the Placement Agent's behalf through the
Placement Agent expressly for use therein; provided, however, that the
Placement Agent will not be liable in any such case to the extent, but
only to the extent, that any such Claim arises out of or is based upon
any such untrue statement or alleged untrue statement or omission or
alleged omission made therein in reliance upon and in conformity with
written information furnished by the Fund or the Advisor or any other
person who may otherwise be entitled to indemnity hereunder from or
against any liability to which the Fund or the Advisor would otherwise
be subject) by the Fund or the Advisor or which relate to or arise
from securities laws or any other law or legal theory, and will
reimburse Placement Agent and any other Indemnified Person (including
fees and disbursements of Placement Agent or counsel to an Indemnified
Person) for all Costs, as they are incurred, in connection with
investigating, preparing for, providing depositions for, testifying in
or defending any such action or claim, formal or informal,
investigation, inquiry or other proceeding, whether or not in
connection with pending or threatened litigation, whether or not the
Placement Agent or any Indemnified Person is named as a party thereto
and whether or not any liability results therefrom related to or
arising from the foregoing. The Placement Agent will not, however, be
responsible for any Claims which are found in a final judgment (not
subject to further appeal) to have resulted directly and primarily
from the gross negligence or willful misconduct of the Fund, the
Advisor, or any Issuer Indemnified Person.
(c) Each of the Fund and the Advisor agrees that neither Placement Agent
nor any other Placement Agent Indemnified Person shall have any
liability to the Fund or Advisor for or in connection with such
engagement except liability for Claims which are found in a final
judgment (not subject to further appeal) to have resulted directly and
primarily from a Placement Agent Indemnified Person's gross negligence
or willful misconduct. Each of the Fund and the Advisor, on the one
hand, and Placement Agent, on the other hand, also agrees that it will
not, without the prior written consent of the other party hereto,
settle or compromise or consent to the entry of any judgment in any
pending or threatened Claim in respect of which indemnification may be
sought hereunder (whether or not Placement Agent or a Placement Agent
Indemnified Person is an actual or potential party to such Claim).
Such prior written consent of Placement Agent shall be required only
with respect to Placement Agent determining that such settlement,
compromise or consent complies with the terms of the following
sentence and does not impose any material obligation on Placement
Agent or any other Placement Agent Indemnified Person or contain any
admission of culpability on the part of Placement Agent or any
Placement Agent Indemnified Person. Such settlement, compromise or
consent shall include an unconditional release of Placement Agent and
such other Placement Agent Indemnified Person from all liability
arising out of such Claim, and the Fund and/or the Advisor shall
furnish Placement Agent with a copy of such settlement reasonably in
advance of entering into such settlement.
(d) If any Claim is brought against the Fund, the Advisor, the Placement
Agent or another person entitled to indemnification hereunder
("Indemnitee"), the person(s) with an obligation to provide
indemnification ("Indemnitor") shall be promptly notified of such in
writing. The failure to give such notice shall not relieve the
Indemnitor of any liability hereunder, except to the extent that the
Indemnitor can demonstrate that it has been materially prejudiced
thereby. If the Indemnitor and one or more Indemnitees are subject to
such Claim, upon notice by the Indemnitor to such Indemnitees, the
Indemnitor may elect to assume such defense. Upon such election, the
Indemnitor shall not be liable hereunder for fees and disbursements of
counsel to any such Indemnitee subsequently incurred, other than
reasonable costs of investigation and other than as provided herein,
and such election shall be deemed an acknowledgment by the Indemnitor
that it is liable for indemnification and contribution for any such
Claims and Costs, subject to the terms of this Agreement. Any
Indemnitee may participate in the defense of such Claim with its own
counsel at its own expense. Notwithstanding the assumption of such
defense by the Indemnitor, each Indemnitee shall have the right to
employ separate counsel and to participate in such defense, and the
Indemnitor shall bear the reasonable fees and disbursements of such
counsel (which shall be promptly paid as incurred) if: (i) the
Indemnitor has agreed to the retention of such counsel; (ii) the
defendants in, or targets of, any such Claim include more than one
Indemnitee or the Indemnitor and an Indemnitee, and such Indemnitee
shall have reasonably concluded, based upon advice of such
lndemnitee's counsel, that representation of such Indemnitee by the
same counsel (A) would present such counsel with a conflict of
interest, or (B) would be inappropriate due to actual or potential
differing interests between them in the conduct of the defense of the
Claim, or (C) would be inappropriate because there may be legal
defenses available to such Indemnitee that are different from, or in
addition to, those available to any other Indemnitee or the
Indemnitor; or (iii) the Indemnitor fails to employ counsel reasonably
satisfactory to such Indemnitee(s), as the case may be, within a
reasonable period of time after receipt by the Indemnitor of the
notice of the institution of such Claim, as provided above. In no
event shall the Indemnitor be liable under this paragraph for more
than two counsel, in addition to local counsel, if appropriate.
(e) Regardless of whether the Indemnitor elects to assume the defense of a
Claim against an Indemnitee pursuant to, and in accordance with, the
preceding paragraph, such Indemnitee may not, without the prior
written consent of the Indemnitor, which consent shall not be
unreasonably withheld or delayed, settle or compromise or consent to
the entry of any judgment with respect to such Claim; provided, that
if the Indemnitor withholds such consent, it shall provide a bond from
a financially responsible institution regularly engaged in the
business of issuing performance bonds securing its obligation to
provide indemnification hereunder to such Indemnitee in the amount of
such proposed settlement.
(f) In order to provide for just and equitable contribution, if a demand
for indemnification or reimbursement for Claims or Costs is made
pursuant to these provisions but is not available for any reason, then
the Fund and the Advisor, on the one hand, and Placement Agent, on the
other hand, shall contribute to such Claims or Costs for which such
indemnification or reimbursement is held unavailable in such
proportion as is appropriate to reflect the relative benefits to the
Fund and/or the Advisor, on the one hand, and Placement Agent on the
other hand, in connection with the transaction or transactions from
which the Claims or Costs in question arose. The relative benefits
received by the Fund and/or the Advisor, on the one hand, and by
Placement Agent, on the other hand, shall be deemed to be in the same
proportion as the value (before deducting expenses) of the
consideration paid by or received by the Fund and/or the Advisor or
its stockholders or comparable equity owners, as the case may be, in
connection with the transaction or transactions from which the Claims
or Costs in question arose bears to the total fees actually received
by Placement Agent in connection therewith. If the allocation provided
by the foregoing sentence is not permitted by applicable law, then
such allocation shall be based not only on such relative benefits
determined as aforesaid but also on the relative fault of the Fund
and/or the Advisor, on the one hand, and Placement Agent, on the
other, as well as any other relevant equitable considerations. The
relative fault of the parties shall be determined by reference to,
among other things, the parties' relative intents, knowledge, access
to information and, if applicable, whether any untrue or alleged
untrue statement of a material fact or the omission or alleged
omission to state a material fact relates to information supplied by
the Fund and/or the Advisor or by Placement Agent, and any other
equitable considerations appropriate in the circumstances. Any such
contribution shall be subject to the limitation that in any event
Placement Agent' aggregate contribution to all Claims or Costs for
which contribution is available hereunder shall not exceed the amount
of fees actually received by Placement Agent pursuant to the
particular engagement relating to the transaction or transactions from
which the Claims or Costs in question arose.
(g) The foregoing rights to indemnity, reimbursement and contribution
shall be in addition to any rights that any Indemnitee may have at
common law or otherwise. The Indemnitor hereby consents to personal
jurisdiction, service of process and venue in any court in which any
Claim which is subject to this Agreement is brought against any
Indemnitee.
(h) Any controversy or claim arising out of or relating to this Agreement,
or the breach of same shall be settled through consultation and
negotiation in good faith and a spirit of mutual cooperation. However,
if those attempts fail, any unresolved controversy or dispute solely
between or among the parties hereto arising under this Agreement shall
be submitted to and settled by arbitration in accordance with the
then-prevailing rules and procedures of either the American
Arbitration Association, the New York Stock Exchange, Inc. or the
National Association of Securities Dealers, it being expressly
understood and agreed that the particular forum for any such
arbitration must be agreed to by the parties hereto, and it being
further understood and agreed that any controversy or dispute among
the parties hereto and a third party shall be resolved in the forum
that is ultimately determined by the relevant authority to be the
appropriate forum to resolve such controversy or dispute (which forum
may or may not involve arbitration). An arbitration pursuant to this
Section 12(h) will be conclusive and binding on the parties hereto.
Judgment based upon the decision of the arbitrators may be entered in
any court having competent jurisdiction thereof.
(i) The benefits of the indemnification provisions of this Agreement shall
inure to the respective successors and permitted assigns of the
parties hereto and of the Indemnitees hereunder and their successors,
permitted assigns and representatives, and the indemnification
obligations and liabilities assumed in this Agreement by the parties
hereto shall be binding upon their respective successors and permitted
assigns.
13. Representations and Indemnities to Survive Delivery.
The agreements, representations, warranties, indemnities, fees and other
statements of the parties and their officers set forth in or made pursuant
to this Agreement will remain in full force and effect, regardless of (i)
any termination of this Agreement, (ii) any investigation made by or on
behalf of the Placement Agent, the Fund, the Advisor, the Managers,
directors, partners or officers of any of the foregoing or any person
controlling any of the foregoing, and (iii) acceptance of any payment for
Interests hereunder. The provisions of this Section 13 shall survive the
termination or cancellation of this Agreement.
14. 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 two years from
such date. Thereafter, this Agreement shall continue in effect from year to
year, provided that each such continuance is approved by the Managers,
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"), of the Fund. The Fund shall notify promptly the Placement
Agent if the continuance of this Agreement has not been so approved by the
Managers.
15. 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 or the Advisor, the Placement 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 or the Advisor, which, in the Placement 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 Placement 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 Placement 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.
16. 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,
the Advisor, and their 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, Placement Agent Customers (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 Placement Agent or an affiliate (each, a "Confidential
Person"). Without limiting the generality of the preceding undertaking, a
Recipient shall not directly solicit any Confidential Person with respect
to either (i) the purchase of an interest in Torrey U.S. Strategy Partners,
LLC, Torrey Multi-Strategy Partners, LLC, Torrey International Strategy
Partners, LLC, Torrey U.S. Strategy Partners (Offshore), Ltd., Torrey
Multi-Strategy Partners (Offshore), Ltd., Torrey International Strategy
Partners (Offshore), Ltd., Torrey U.S. Partners, L.P., Torrey U.S. Partners
(Offshore), Ltd. or any other investment vehicle or entity sponsored or
offered by a Recipient for which the Placement Agent acts as such vehicle's
or entity's placement agent or (ii) the participation in any financial
transaction. Participation by a Recipient in a meeting with a Confidential
Person at the request of an employee of the Placement Agent or an affiliate
shall not be deemed a violation of the foregoing undertaking. Each of the
Fund and Advisor, on the one hand, and Placement 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 or the Advisor do not independently know is
a Confidential Person.
17. Services Not Exclusive.
The services to be rendered by the Placement Agent hereunder shall be
provided on a non-exclusive basis. The Placement 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 Placement
Agent or its affiliates from creating or marketing any other product or
investment vehicle.
18. 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 Placement Agent:
Wachovia Securities, LLC and Wachovia Securities
Financial Networks, LLC
▇▇▇ ▇. ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇ ▇▇▇▇▇▇▇▇
If to the Fund:
Torrey U.S. Strategy Partners, LLC
▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇, CEO
If to the Advisor:
Torrey Associates, LLC
▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇, CEO
19. 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.
20. Assignment.
This Agreement (including the indemnification provisions herein) may not be
assigned without the prior written consent of the non-assigning party (or
parties), which consent shall not be unreasonably withheld or delayed.
Notwithstanding the foregoing, Placement Agent may assign this Agreement,
or any rights or obligations hereunder, to an affiliate, subsidiary, or any
entity owned or controlled by Placement Agent or its Controlling Persons,
or pursuant to merger, consolidation, change of control, or corporate
reorganization upon notice to the Fund and Advisor.
21. 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.
22. 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.
23. Limitation of Liability.
The parties to this Agreement agree that the obligations of the Fund under
this Agreement shall not be binding upon any Manager, Member of the Fund or
any officers, employees or agents of the Fund, whether past, present or
future, individually, but are binding only upon the assets and property of
the Fund.
If the foregoing correctly sets forth our understanding with the Placement
Agent, please indicate the Placement Agent's acceptance in the space provided
below.
Very truly yours,
TORREY U.S. STRATEGY PARTNERS, LLC
By:
--------------------------------
Name:
Title:
TORREY ASSOCIATES, LLC
By:
--------------------------------
Name:
Title:
Agreed to and accepted:
WACHOVIA SECURITIES, LLC AND WACHOVIA
SECURITIES FINANCIAL NETWORKS, LLC
By:
-------------------------------
Name: ▇▇▇▇ ▇▇▇▇▇▇▇▇
Title: Managing Director/Alternative Investments
SCHEDULE 1
INITIAL SALES CHARGE SCHEDULE
-----------------------------
Sales Charge
Amount Invested (as a percentage of
in the Fund the amount invested)
----------------- ---------------------
up to $499,999 3.0%
$500,000 - $999,999 2.5%
$1,000,000 - $1,999,999 2.0%
$2,000,000 - $4,999,999 1.0%
$5,000,000 and over 0.0%
80350-0024#440083