Advisory Agreement, made as of April 17, 2014, by and among OASIS Centurion LLC, R. J. OBrien Fund Management LLC and Centurion Investment Management, LLC

(a) The Trading Advisor agrees with respect to the continuing offering of interests (“Units”) in the Fund: (i) to make all disclosures regarding itself, its principals and affiliates, its trading performance, its trading systems, methods and strategies (subject to the need, in the reasonable discretion of the Trading Advisor, to preserve the secrecy of Proprietary Information (as defined in Section 1(c) hereof) concerning such systems, methods and strategies), and otherwise, as the Fund and/or the Trading Company may reasonably require (x) in connection with the Fund’s private placement memorandum (the “PPM”) as required by  any applicable regulations under the Commodity Exchange Act (the “CEA”), and/or the rules and regulations of the Securities and Exchange Commission (the “SEC”), including in connection with any amendments or supplements thereto, or (y) to comply with any other applicable law or rule or regulation, including those of the CFTC, the National Futures Association (the “NFA”), the SEC, or any other regulatory or self-regulatory body, exchange, or board with jurisdiction over its members (or to comply with the reasonable request of the aforementioned organizations); and (ii) to otherwise cooperate with the Fund and/or the Trading Company and the Managing Member by providing information regarding the Trading Advisor in connection with the preparation of the PPM, including any amendments and/or supplements thereto, as the Fund and/or the Trading Company may deem appropriate; provided that all such disclosures are subject to the need, in the reasonable discretion of the Trading Advisor, to preserve the secrecy of Proprietary Information concerning its clients, systems methods and strategies. As used herein, unless otherwise provided, the term “principal” shall have the meaning as defined in Rule 4.10(e) of the CFTC’s regulations and the term “affiliate” shall mean an individual or entity that directly or indirectly controls, is controlled by, or is under common control with, such party. Managing Member shall only disclose information about Trading Advisor in a form consented to by the Trading Advisor, whose consent shall not be unreasonably withheld.

 

(b) If the Trading Advisor becomes aware of any materially untrue or misleading statement or omission regarding itself or any of its principals or affiliates in the PPM, or of the occurrence of any event or change in circumstances which would result in there being any materially untrue or misleading statement or omission in the PPM regarding itself or any of its principals or affiliates, the Trading Advisor shall promptly notify the Managing Member and shall cooperate with the Managing Member in the preparation of any necessary amendments or supplements to the Fund’s PPM. Neither the Trading Advisor nor any of its principals, or affiliates, or any stockholders, officers, directors, or employees shall distribute the Fund’s PPM or selling literature or shall engage in any selling activities whatsoever in connection with the continuing offering of Units except as may be specifically approved by the Managing Member and agreed to by the Trading Advisor.

 

(c) For purposes of this Agreement, and notwithstanding any of the provisions hereof, all non-public information relating to the Trading Advisor including, but not limited to, records, whether original, duplicated, computerized, handwritten, or in any other form, and information contained therein, business and/or marketing and/or sales plans and proposals, names of past and current clients, names of past, current and prospective contacts, trading methodologies, systems, strategies and programs, trading advice, trading instructions, results of proprietary accounts, training materials, research data bases, portfolios, and computer software, and all written and oral information, furnished by the Trading Advisor to the Trading Company and the Managing Member and/or their officers, directors, employees, agents (including, but not limited to, attorneys, accountants, consultants, and financial advisors) or controlling persons (each a “Recipient”), regardless of the manner in which it is furnished, together with any analysis, compilations, studies or other documents or records which are prepared by a Recipient of such information and which contain or are generated from such information, regardless of whether explicitly identified as confidential, with the exception of information which (i) is or becomes generally available to the public other than as a result of acts by the Recipient in violation of this Agreement, (ii) is in the possession of the Recipient prior to its disclosure pursuant to the terms hereof, (iii) is or becomes available to the Recipient from a source that is not bound by a confidentiality agreement with regard to such information or by any other legal obligation of confidentiality prohibiting such disclosure, or (iv) that is independently developed by the Recipient without use of the confidential information described in this Section 1(c), are and shall be confidential information and/or trade secrets and the exclusive property of the Trading Advisor (“Confidential Information” and/or “Proprietary Information”).

(d) The Trading Company and the Managing Member each warrants and agrees that they and their respective officers, directors, members, equity holders, employees and agents (including for purposes of this Agreement, but not limited to, attorneys, accountants, consultants, and financial advisors) will protect and preserve the Confidential Information and will disclose Confidential Information or otherwise make Confidential Information available only to the Trading Company’s or the Managing Member’s officers, directors, members, equity holders, employees and agents (including for purposes of this Agreement, but not limited to, attorneys, accountants, consultants, and financial advisors), who need to know the Confidential Information (or any part of it) for the purpose of satisfying their fiduciary, legal, reporting, filing or other obligations hereunder or to monitor performance in the account during the term of this Agreement or thereafter, or to the Trading Company, Managing Member or a Recipient, as the case may be, is required to disclose such Confidential Information due to a fiduciary obligation or legal or regulatory request. Additionally, the Trading Company and the Managing Member each warrants and agrees that it and any Recipient will use the Confidential Information solely for the purpose of satisfying the Trading Company’s or the Managing Member’s obligations under this Agreement and not in a manner which violates the terms of this Agreement.

(a) Upon the commencement of trading operations by the Trading Advisor with respect to all or a portion of the assets of the Trading Company, the Trading Advisor hereby agrees to act as a Trading Advisor for the Trading Company and, as such, shall have authority and responsibility for directing the investment and reinvestment of that portion of the Trading Company’s assets allocated to the Trading Advisor, which shall consist of the Allocated Net Assets (as defined in Section 5(c) hereof) plus “notional” funds, if any, allocated to the Trading Advisor, as specified in writing by the Managing Member and consented to by the Trading Advisor (the “Assets”), on the terms and conditions and in accordance with the prohibitions and the trading policies set forth in Exhibit A to this Agreement as amended from time to time and provided in writing to the Trading Advisor by the Managing Member (the “Trading Policies”); provided, however, that the Managing Member may override the instructions of the Trading Advisor without notice to the Trading Advisor to the extent necessary (i) to comply with the Trading Policies and with applicable speculative position limits, (ii) to fund any distributions or redemptions, (iii) to pay the Trading Company’s expenses, (iv) to the extent the Managing Member believes doing so is necessary for the protection of the Trading Company, (v) to terminate the futures interest trading of the Account (as defined in Section 4) with the Trading Advisor, or (vi) to comply with any applicable law or regulation. The Managing Member agrees not to override any such instructions for the reasons specified in clauses (ii) or (iii) of the preceding sentence unless the Trading Advisor fails to comply with a request of the Managing Member to make the necessary amount of funds available to the Trading Company within two trading days of such request.  The Trading Advisor shall not be liable for the consequences of any decision by the Managing Member to override instructions of the Trading Advisor, except to the extent that such consequences result from a material breach of this Agreement by the Trading Advisor or the Trading Advisor fails to comply with the Managing Member’s decision to override an instruction.  Notwithstanding anything to the contrary contained in this Agreement, the Trading Company shall have the right to instruct the Trading Advisor to liquidate any or all positions at any time. Trading Advisor should have the right to terminate the Agreement if Managing Member steps in.  Also, Trading Advisor should not be responsible to the results of any trades which arise from the Managing Member stepping in, and any resulting losses should not be reflected in the calculation of the fees owed to the Trading Advisor.

(b) The Trading Advisor shall:

 

(i) Exercise good faith and due care in trading futures interests for the account of the Trading Company in accordance with the prohibitions and Trading Policies, and the trading systems, methods, and strategies of the Trading Advisor described in the PPM, with such changes and additions to such trading systems, methods or strategies as the Trading Advisor, from time to time, incorporates into its trading approach for accounts the size of the Trading Company.

 

(ii) Provide the Managing Member, within 10 business days of the end of a calendar quarter, and within 20 business days of a separate request which the Managing Member may reasonably make from time to time with information comparing the performance of the Trading Company’s account and the performance of all other client accounts (“Other Accounts”) directed by the Trading Advisor using the trading systems used by the Trading Advisor on behalf of the Trading Company over a specified period of time for the purpose of confirming that the Trading Company has been treated equitably compared to such Other Accounts.  In providing such information, the Trading Advisor may take such steps as are necessary to assure the confidentiality of the Trading Advisor’s clients’ identities. The Trading Advisor shall, upon the Managing Member’s request, consult with the Managing Member concerning any material discrepancies between the performance of such Other Accounts and the Trading Company’s account. Upon request by the Managing Member, the Trading Advisor shall promptly inform the Managing Member in writing of any material discrepancies of which the Trading Advisor is aware. The Managing Member acknowledges that the following differences in accounts may cause divergent trading results:  different trading strategies, methods or degrees of leverage, different trading policies, accounts experiencing differing inflows or outflows of equity, different risk profiles, accounts which commence trading at different times and accounts which have different portfolios or different fiscal years.

(iii) Inform the Managing Member when the Trading Advisor’s open positions maintained by the Trading Advisor exceed the Trading Advisor’s applicable speculative position limits

 

(iv) Upon request of the Managing Member, promptly provide the Managing Member with all information concerning the Trading Advisor and its activities reasonably requested by the Managing Member (including, without limitation, information relating to changes in control, key personnel, trading approach, or financial condition).  Additionally, the Trading Advisor agrees to furnish R.J. O’Brien & Associates, LLC (“RJOB”) in an electronic format as agreed by Trading Advisor and RJOB  (i) a final report of all trades at the end of each business day and (ii) a report of any trade made involving a position with a required initial margin equal to 10% or more of the Assets within 30 minutes after the Trading Advisor learns that the required initial margin will exceed such level.   The Trading Advisor further acknowledges and agrees that the timely provision of all such information is of the essence in order to enable the Trading Company, its designated entities, and RJOB to monitor and comply with mandatory risk control algorithms imposed upon the operation of the Trading Company.

 

(c) All purchases and sales of futures interests pursuant to this Agreement shall be for the account, and at the risk, of the Trading Company and not for the account, or at the risk of the Trading Advisor or any of its affiliates or each of their principals, stockholders, directors, officers, or employees, or any other person, if any, who controls the Trading Advisor. All brokerage commissions and related transaction fees arising from such trading by the Trading Advisor shall be for the account of the Trading Company.

 

(d) Subject to 7(a) hereof, the Trading Advisor shall assume financial responsibility for any errors committed  by it in transmitting orders for the purchase or sale of futures interests for the Trading Company’s account including payment to the Commodity Brokers (as described in Section 4 hereof) of the floor brokerage commissions, exchange, NFA fees, and other transaction charges and give-up charges incurred by the Commodity Broker on such trades but only for the amount of the Commodity Brokers’ out-of-pocket costs in respect thereof. The Trading Advisor’s errors shall include, but not be limited to, inputting improper trading signals or communicating incorrect orders to the Commodity Brokers. The Trading Advisor shall have an affirmative obligation to promptly notify the Managing Member upon discovery of its own errors with respect to the account, and the Trading Advisor shall use its best efforts to identify and promptly notify the Managing Member of any order or trade which the Trading Advisor reasonably believes was not executed in accordance with its instructions to any Commodity Broker or such other commodity broker utilized to execute orders for the Trading Company.

(e) Prior to the commencement of trading by the Trading Company, the Managing Member, on behalf of the Fund, shall deliver to the Trading Advisor a trading authorization appointing the Trading Advisor the Trading Company’s attorney-in-fact for such purpose (a form of which is attached hereto as Exhibit B).

 

(f) In performing services to the Trading Company, the Trading Advisor shall utilize its Centurion Short-Term Trading Program (the “Trading Program”), as to be described in the PPM, and as modified from time to time. The Trading Advisor shall give the Managing Member prior written notice of any change in the Trading Program that the Trading Advisor considers to be material (and shall not effect such change on behalf of the Trading Company without the Managing Member’s consent), including any additional futures interests to be traded by the Trading Advisor not already listed on Exhibit C.  Changes in the futures interests traded, provided that such futures interests are listed on Exhibit C, shall not be deemed a modification of the Trading Program.

For all purposes of this Agreement, the Trading Advisor shall be deemed to be an independent contractor and shall, unless otherwise expressly provided herein or authorized, have no authority to act for or represent the Trading Company in any way or otherwise be deemed an agent of the Trading Company and/or the Fund.  Nothing contained herein shall be deemed to require the Trading Company to take any action contrary to its governing documents as from time to time in effect, or any applicable law or rule or regulation of any regulatory or self-regulatory body, exchange, or board. Nothing herein contained shall constitute the Trading Advisor or the Managing Member as members of any partnership, joint venture, association, syndicate or other entity, or be deemed to confer on any of them any express, implied, or apparent authority to incur any obligation or liability on behalf of any other. It is expressly agreed that the Trading Advisor is neither a promoter, sponsor, nor issuer with respect to the Trading Company or the Fund, nor does the Trading Advisor have any authority or responsibility with respect to the offer, sale or issuance of Units of the Fund.

The Trading Advisor shall effect all transactions in futures interests for the Trading Company through the Trading Company’s separate account of the Trading Company to be traded exclusively by the Trading Advisor (the “Account”) maintained with RJOB or such commodity broker or brokers as the Managing Member shall direct and appoint from time to time (the “Futures Brokers”).

 

Notwithstanding the foregoing, the Trading Advisor may execute trades through brokers other than those employed by RJOB and its affiliates so long as arrangements (including executed give-up agreements) are made for such floor brokers to “give-up” or transfer the positions to RJOB in conformity with the Trading Policies set forth in Exhibit A attached hereto.

(a) For the services to be rendered to the Trading Company by the Trading Advisor under this Agreement:

 

(i) The Trading Company shall pay the Trading Advisor a monthly management fee equal to 1/12 of *% (a *% annual rate) of the Assets allocated to it (as defined in Section 2(a) hereof) as of the last day of each month (the “Management Fee”).  The Management Fee is payable in arrears within 20 Business Days of the end of the month for which it was calculated.  For purposes of this Agreement, “Business Day” shall mean any day which the securities markets are open in the United States.

 

(ii) The Trading Company shall pay the Trading Advisor a quarterly incentive fee equal to *% of the New Trading Profit (as defined in Section 5(d) hereof) (the “Incentive Fee”).  The initial incentive period will commence on the date the Trading Advisor commences trading the Account and shall end on the last day of the calendar quarter after such date.  The Incentive Fee is payable within 20 Business Days of the end of the calendar quarter for which it was calculated.

 

(b) If this Agreement is terminated on a date other than the last day of a calendar quarter, the Incentive Fee shall be determined as if such date were the end of a calendar quarter. If this Agreement is terminated on a date other than the end of a month, the Management Fee described above shall be determined as if such date were the end of a month, but such fee shall be prorated based on the ratio of the number of trading days in the month through the date of termination to the total number of trading days in the month. If, during any month after the Trading Advisor commences trading operations on behalf of the Account (including the month in which the Trading Advisor commences such operations), the Trading Company does not conduct business operations, or suspends trading for the Account, or, as a result of an act or material failure to act by the Trading Advisor, is otherwise unable to utilize the trading advice of the Trading Advisor on any of the trading days of that month for any reason, the Management Fee shall be prorated based on the ratio of the number of trading days in the month which the Account engaged in trading operations or utilizes the trading advice of the Trading Advisor to the total number of trading days in the month. The Management Fee payable to the Trading Advisor for the month in which the Trading Company begins to receive trading advice from the Trading Advisor pursuant to this Agreement shall be prorated based on the ratio of the number of trading days in the month from the day the Trading Company begins to receive such trading advice to the total number of trading days in the month. In the event that there is an increase or decrease in the Assets as of any day other than the first day of a month, the Trading Advisor shall be paid a pro rata Management Fee on such increase or decrease in the Assets for such month.

 

(c) The term “Allocated Net Assets” shall mean the total assets of the Trading Company allocated to the Account (including, but not limited to, all cash and cash equivalents, accrued interest and amortization of original issue discount, and the market value (marked-to-market) of all open futures interest positions and other assets of the Account) less all liabilities of the Trading Company determined in accordance with generally accepted accounting principles consistently applied under the accrual basis of accounting. Unless generally accepted accounting principles require otherwise, the market value of a futures or option contract traded on a United States exchange shall mean the settlement price on the exchange on which the particular futures or option contract shall be traded by the Trading Advisor on behalf of the Account with respect to which the Net Assets are being determined; provided, however, that if a contract could not be liquidated on such day due to the operation of daily limits or other rules of the exchange on which that contract shall be traded or otherwise, the settlement price on the first subsequent day on which the contract could be  liquidated shall be the market value of such contract for such day, or if a contract could not be liquidated on such day due to the exchange being closed for an exchange holiday, the settlement price on the most recent preceding day on which the contract could have been liquidated shall be the market value of such contract for such day.  The market value of a forward contract or a futures or option contract traded on a foreign exchange or market shall mean its market value as determined by the Managing Member on a basis consistently applied for each different variety of contract.

(d) The term “New Trading Profit” shall mean net futures interest trading profits (realized and unrealized) on the Assets, decreased proportionally by the Trading Advisor’s monthly Management Fees and brokerage commissions and NFA fees applicable to the Account.  Interest income is not included in New Trading Profit. Extraordinary expenses do not reduce New Trading Profit.  Such trading profits and items of decrease shall be determined from the end of the last calendar quarter in respect of which an Incentive Fee was earned by the Trading Advisor or, if no Incentive Fee has been earned previously by the Trading Advisor, from the date that the Trading Advisor commenced managing the Assets, to the end of the calendar quarter as of which such Incentive Fee calculation is being made. New Trading Profit shall be calculated before reduction for Incentive Fees paid or accrued so that the Trading Advisor does not have to earn back Incentive Fees.

 

(e) If any payment of Incentive Fees is made to the Trading Advisor on account of New Trading Profit earned by the Trading Advisor and the Trading Advisor thereafter fails to earn New Trading Profit or experiences losses for any subsequent incentive period, the Trading Advisor shall be entitled to retain such amounts of Incentive Fees previously paid to the Trading Advisor in respect of such New Trading Profit. No Incentive Fees shall be payable to the Trading Advisor until the Trading Advisor has earned New Trading Profit; provided, however, that if the Assets are reduced because of redemptions that occur at the end of, and/or subsequent to, a calendar quarter in which the Trading Advisor experiences a futures interest trading loss for the Trading Company, the trading loss that must be recovered before the Trading Advisor will be deemed to experience New Trading Profit in a subsequent calendar quarter will be equal to the amount determined by (x) dividing the Assets after such decrease by the Assets in immediately before such decrease and (y) multiplying that fraction by the amount of the unrecovered futures interest trading loss prior to such decrease. In the event that the Trading Advisor experiences a trading loss in more than one calendar quarter without the Trading Company paying an intervening Incentive Fee and Assets are reduced in more than one such calendar quarter because of redemptions, then the trading loss for each such calendar quarter shall be adjusted in accordance with the formula described above and such reduced amount of futures interest trading loss shall be carried forward and used to offset subsequent futures interest trading profits. No Incentive Fees shall be payable to the Trading Advisor until the Trading Advisor has earned New Trading Profit.

(a) This Agreement shall continue in effect for a period of one year from the date the Agreement was entered into unless otherwise terminated as set forth in this Section 6. The Trading Advisor may terminate this Agreement at the end of such one-year period by providing prior written notice of termination to the Trading Company at least sixty days prior to the expiration of such one-year period. If the Agreement is not terminated upon the expiration of such one-year period, this Agreement shall automatically renew for an additional one-year period and shall continue to renew for additional one-year periods until this Agreement is otherwise terminated, as provided for herein.  This Agreement shall automatically terminate if the Trading Company is dissolved

 

(b) The Trading Company and Managing Member each shall have the right to terminate this Agreement in its discretion (i) at any month end upon five days’ prior written notice to the Trading Advisor, or (ii) at any time upon prior written notice to the Trading Advisor upon the occurrence of any of the following events: (A) if any person described as a “principal” of the Trading Advisor in the PPM ceases for any reason to be an active “principal” of the Trading Advisor; (B) if the Trading Advisor becomes bankrupt or insolvent; (C) if the Trading Advisor is unable to use its trading systems or methods as in effect on the date hereof and as modified in the future for the benefit of the Trading Company; (D) if the registration, as a commodity trading advisor, of the Trading Advisor with the CFTC or its membership in the NFA is revoked, suspended, terminated, or not renewed, or limited or qualified in any respect; (E) except as provided in Section 12 hereof, if the Trading Advisor merges or consolidates with, or sells or otherwise transfers its advisory business, or all or a substantial portion of its assets, any portion of its futures interest trading systems or methods, or its goodwill to, any individual or entity; (F) if, at any time, the Trading Advisor materially violates any Trading Policy or administrative policy, except with the prior express written consent of the Managing Member; or (G) if the Trading Advisor fails in a material manner to perform any of its obligations under this Agreement and does not cure such failure within 30 days after receipt of written notice thereof.

 

(c) The Trading Advisor may terminate this Agreement at any time, upon  written notice to the Trading Company and Managing Member, in the event: (A) that the Managing Member imposes additional trading limitation(s) in the form of one or more Trading Policies or administrative policies that the Trading Advisor does not consent to, such consent not to be unreasonably withheld; (B) the Managing Member objects to the Trading Advisor implementing a proposed material change to the Trading Program and the Trading Advisor certifies to the Managing Member in writing that it believes such change is in the best interests of the Trading Company; (C) the Managing Member or the Trading Company materially breaches this Agreement and does not correct the breach within ten days of receipt of a written notice of such breach from the Trading Advisor;; (D) the Trading Company becomes bankrupt or insolvent, or (F) the registration of the Managing Member with the CFTC as a commodity pool operator or its membership in the NFA is revoked, suspended, terminated or not renewed, or limited or qualified in any respect.  If the Managing Member or Trading Company merges, consolidates or sells a substantial portion of its assets pursuant to Section 11 of this Agreement, the Trading Advisor may terminate this Agreement upon prior written notice to the Managing Member and Trading Company.

(d) Except as otherwise provided in this Agreement, any termination of this Agreement in accordance with this Section 6 shall be without penalty or liability to any party, on account of such termination.

 

(e) The indemnities set forth in Section 7 hereof shall survive any termination of this Agreement.

(a) Limitation of Trading Advisor Liability. In respect of the Trading Advisor’s role in the futures interests trading of the Trading Company, the Trading Advisor shall not be liable to the Trading Company or the Managing Member or their partners, directors, officers, principals, managers, members, shareholders, employees, controlling persons or successors and assigns except that the Trading Advisor shall be liable for acts or omissions that constitute a breach of this Agreement or a representation, warranty or covenant made by it herein, or for an acts or omissions that result from the intentional acts, willful misconduct or gross negligence of the Trading Advisor.

 

(b) Trading Advisor Indemnity in Respect of Management Activities. The Trading Advisor shall indemnify, defend and hold harmless the Trading Company and the Managing Member, and their respective directors and officers, from and against any and all losses, claims, damages, liabilities (joint and several), costs, and expenses (including any reasonable investigatory, legal, accounting and other expenses incurred in connection with, and any amounts paid in, any litigation or other proceeding or any settlement; provided that, solely in the case of a settlement, the Trading Advisor shall have approved such settlement) incurred by them in connection with this Agreement to extent any such losses, claims, damages, liabilities, costs and expenses arise from the Trading Advisor’s intentional acts, gross negligence or willful misconduct.

 

(c) Trading Company Indemnity in Respect of Management Activities.  The Trading Company shall indemnify, defend and hold harmless the Trading Advisor and its directors and officers, from and against any and all losses, claims, damages, liabilities (joint and several), costs and expenses (including any reasonable investigatory, legal, accounting and other expenses incurred in connection with, and any amounts paid in, any litigation or other proceeding or any settlement; provided that, solely in the case of a settlement, the Trading Company shall have approved such settlement) incurred by them in connection with this Agreement except to the extent any such losses, claims, damages, liabilities, costs and expenses arise from the Trading Advisor’s intentional acts, gross negligence or willful misconduct.

(d) Trading Advisor Indemnity in Respect of Sale of the Fund’s Units. The Trading Advisor shall indemnify, defend and hold harmless the Trading Company, the Fund, the Managing Member, and their respective directors and, officers, from and against any and all losses, claims, damages, liabilities, costs, and expenses, (joint and several), to which any indemnified person may become subject (including any reasonable investigatory, legal, accounting and other expenses incurred in connection with, and any amounts paid in, any litigation or other proceeding or any settlement; provided that, solely in the case of a settlement, the Trading Advisor shall have approved such settlement, and in connection with any administrative proceedings), in respect of the offer or sale of Units, insofar as such losses, claims, damages, liabilities, costs, or expenses (or action in respect thereof) arise out of, or are based upon : any misstatement of material fact or failure to state a material fact necessary to make the statements made not misleading relating or with respect to the Trading Advisor, or any of its principals, or their operations, trading systems, methods or performance, which was made in the Fund’s PPM or any amendment or supplement thereto or any other sales literature and approved by the Trading Advisor for inclusion therein.

 

(e) Trading Company Indemnity in Respect of Sale of Units. Trading Company shall indemnify, defend and hold harmless the Trading Advisor and its directors and officers from and against any loss claim, damage, liability, cost, and expense, joint and several, to which any indemnified person may become subject (including any reasonable investigatory, legal, accounting and other expenses incurred in connection with, and any amounts paid in, any litigation or other proceeding or any settlement; provided that, solely in the case of a settlement, the Trading Company and the Fund shall have approved such settlement, and in connection with any administrative proceedings), in respect of the offer or sale of the Fund’s Units, unless such loss, claim, damage, liability, cost, or expense (or action in respect thereof) arises out of, or is based upon (i) a breach by the Trading Advisor of any applicable laws or regulations or any representation, warranty or agreement in this Agreement; or (ii) any materially untrue statement of material fact or failure to state a material fact necessary to make the statement made not misleading relating or with respect to the Trading Advisor, or any of its principals or their operations, trading systems, methods or performance that was made in the Fund’s PPM or in any other sales literature approved by the Trading Advisor for inclusion therein.

 

(f) Subject to Section 7(a) hereof, the foregoing agreements of indemnity shall be in addition to, and shall in no respect limit or restrict, any other remedies which may be available to an indemnified person.

 

(g) Promptly after receipt by an indemnified person of notice of the commencement of any action, claim, or proceeding to which any of the indemnities may apply, the indemnified person will notify the indemnifying party in writing of the commencement thereof if a claim in respect thereof is to be made against the indemnifying party hereunder; but the omission so to notify the indemnifying party will not relieve the indemnifying party from any liability that the indemnifying party may have to the indemnified person hereunder, except where such omission has materially prejudiced the indemnifying party. In case any action, claim, or proceeding is brought against an indemnified person and the indemnified person notifies the indemnifying party of the commencement thereof as provided above, the indemnifying party will be entitled to participate therein and, to the extent that the indemnifying party desires, to assume the defense thereof with counsel selected by the indemnifying party and not unreasonably disapproved by the indemnified person. After notice from the indemnifying party to the indemnified person of the indemnifying party’s election so to assume the defense thereof as provided above, the indemnifying party will not be liable to the indemnified person under the indemnity provisions hereof for any legal and other expenses subsequently incurred by the indemnified person in connection with the defense thereof, other than reasonable costs of investigation.

Notwithstanding the preceding paragraph, if in any action, claim, or proceeding as to which indemnification is or may be available hereunder, an indemnified person reasonably determines that its interests are or may be adverse, in whole or in part, to the indemnifying party’s interests or that there may be legal defenses available to the indemnified person that are different from, in addition to, or inconsistent with the defenses available to the indemnifying party, the indemnified person may retain its own counsel in connection with such action, claim, or proceeding and will be indemnified (provided the indemnified person is so entitled) by the indemnifying party for any legal and other expenses reasonably incurred in connection with investigating or defending such action, claim, or proceeding.

 

In no event will the indemnifying party be liable for the fees and expenses of more than one counsel for all indemnified persons in connection with any one action; claim, or proceeding or in connection with separate but similar or related actions, claims, or proceedings in the same jurisdiction arising out of the same general allegations. The indemnifying party will not be liable for any settlement of any action, claim, or proceeding effected without the indemnifying party’s express written consent, but if any action, claim, or proceeding, is settled with the indemnifying party’s express written consent, the indemnifying party will indemnify, defend, and hold harmless an indemnified person as provided in this Section 7.

(a) The Trading Advisor is engaged in the business of advising clients as to the purchase and sale of futures interests. During the term of this Agreement, the Trading Advisor, its principals and affiliates, will be advising other clients (including affiliates and the stockholders, officers, directors, and employees of the Trading Advisor and its affiliates and their families) and trading for their own accounts. The Trading Advisor will use reasonable efforts to implement a fair and consistent allocation policy that seeks to ensure that all clients are treated equitably and positions allocated as nearly as possible in proportion to the assets available for trading of the accounts managed or controlled by the Trading Advisor.  Upon written request, the Managing Member may request a copy of the Trading Advisor’s procedures regarding the equitable treatment of trades across accounts.  Such procedures shall be provided to the Managing Member within 30 days of such request by the Managing Member.  Except as otherwise set forth herein, the Trading Advisor and its principals and affiliates agree to treat the Trading Company in a fiduciary capacity to the extent recognized by applicable law, but subject to that standard.  Under no circumstances shall the Trading Advisor by any act or omission knowingly or intentionally favor any account advised or managed by the Trading Advisor over the account of the Trading Company in any way or manner. Nothing contained in this Section 8(a) shall preclude the Trading Advisor from charging different management and/or incentive fees to its clients. Subject to the Trading Advisor’s obligations under applicable law, the Trading Advisor or any of its principals or affiliates shall be free to advise and manage accounts for other clients and shall be free to trade on the basis of the same trading systems, methods, or strategies employed by the Trading Advisor for the account of the Trading Company, or trading systems, methods, or strategies that are entirely independent of, or materially different from, those employed for the account of the Trading Company, and shall be free to compete for the same futures interests as the Trading Company or to take positions opposite to the Trading Company, where such actions do not knowingly or intentionally prefer any of such accounts over the account of the Trading Company on an overall basis.

(b) The Trading Advisor shall not be restricted as to the number or nature of its clients, except that: (i) so long as the Trading Advisor acts as a trading advisor for the Trading Company, neither the Trading Advisor nor any of its principals or affiliates shall knowingly hold any position or control any other account that would cause the Trading Company, the Trading Advisor, or the principals or affiliates of the Trading Advisor to be in violation of the CEA or any regulations promulgated thereunder, any other applicable law, or any applicable rule or regulation of the CFTC or any other regulatory or self regulatory body, exchange, or board; and (ii) neither the Trading Advisor nor any of its principals or affiliates shall render futures interests trading advice to any other individual or entity or otherwise engage in activity that shall knowingly cause positions in futures interests to be attributed to the Trading Advisor under the rules or regulations of the CFTC or any other regulatory or self regulatory body, exchange, or board so as to require the significant modification of positions taken or intended for the account of the Fund; provided that the Trading Advisor may modify its trading systems, methods or strategies to accommodate the trading of additional funds or accounts.  If applicable speculative position limits are exceeded by the Trading Advisor in the opinion of (i) independent counsel (who shall be other than counsel to the Trading Company), (ii) the CFTC, or (iii) any other regulatory or self regulatory body, exchange, or board, the Trading Advisor and its principals and affiliates shall promptly liquidate positions in all of their accounts, including the Trading Company’s account, as to which positions are attributed to the Trading Advisor as nearly as possible in proportion to the accounts′ respective amounts available for trading (taking into account different degrees of leverage and “notional” equity) to the extent necessary to comply with the applicable position limits.

(a) Representations and Warranties of the Trading Advisor. The Trading Advisor represents and warrants to and agrees with the Managing Member and the Trading Company as follows:

 

(i) It will exercise good faith and due care in implementing the Trading Program on behalf of the Trading Company or any other trading programs agreed to by the Managing Member and the Trading Advisor.

(ii) The Trading Advisor shall follow and comply with, at all times, the Trading Policies.

 

(iii) The Trading Advisor is duly organized, validly existing and in good standing under the laws of the state of its organization and is qualified to do business as a foreign corporation or and is in good standing in each other jurisdiction in which the nature or conduct of its business requires such qualification and the failure to so qualify would materially adversely affect the Trading Advisor’s ability to perform its duties under this Agreement. The Trading Advisor has full power and authority to perform its obligations under this Agreement. The only principals of the Trading Advisor are those set forth in the PPM (the “Trading Advisor Principals”).

 

(iv) This Agreement has been duly and validly authorized, executed and delivered on behalf of the Trading Advisor and is a valid and binding agreement of the Trading Advisor enforceable in accordance with its terms.

 

(v) Each of the Trading Advisor and the Trading Advisor Principals has all federal, state and foreign governmental, regulatory and exchange licenses and approvals and has effected all filings and registrations with federal, state and foreign governmental and regulatory agencies required to conduct its business and required to perform its or his obligations under this Agreement. The Trading Advisor is registered as a commodity trading advisor under the CEA and is a member of the NFA in such capacity.

 

(vi) The execution and delivery of this Agreement, the incurrence of the obligations set forth herein, the consummation of the transactions contemplated herein and the payment of the fees hereunder will not violate, or constitute a breach of, or default under, the certificate of incorporation or bylaws (or any other organizational documents) of the Trading Advisor or any agreement or instrument by which it is bound or of any order, rule, law or regulation binding on it of any court or any governmental body or administrative agency or panel or self-regulatory organization having jurisdiction over it.

 

(vii) Except as set forth in the PPM  there have not been and there is not pending, or to the best of the Trading Advisor’s knowledge, threatened, any action, suit or proceeding before or by any court or other governmental body to which the Trading Advisor or any Trading Advisor Principal is or was a party, or to which any of the assets of the Trading Advisor is or was subject and which resulted in or might reasonably be expected to result in any material adverse change in the condition, financial or otherwise, business or prospects of the Trading Advisor.  None of the Trading Advisor or any Trading Advisor Principal has received any notice of an investigation by the NFA, CFTC or other administrative agency or self-regulatory body (whether United States or foreign) regarding noncompliance by the Trading Advisor or any of the Trading Advisor Principals with the CEA or any other applicable law.

 

(viii) Neither the Trading Advisor nor any Trading Advisor Principal has received, or is entitled to receive, directly or indirectly, any commission, finder’s fee, similar fee, or rebate from any person in connection with the organization or operation of the Trading Company and the Fund.

(ix) Neither the Trading Advisor nor any Trading Advisor Principal will use or distribute the Fund’s PPM or any selling literature or engage in any selling activities whatsoever in connection with the offering of the Units.

 

(xvi) The foregoing representations and warranties shall be continuing during the term of this Agreement and if at any time any event shall occur which could make any of the foregoing representations or warranties inaccurate, the Trading Advisor shall promptly notify the Managing Member and the Trading Company of the nature of such event.

(b) Covenants of the Trading Advisor.  The Trading Advisor covenants and agrees that:

 

(i) The Trading Advisor shall maintain all registrations and memberships necessary for the Trading Advisor to continue to act as described herein and to at all times comply in all respects with all applicable laws, rules, and regulations, to the extent that the failure to so comply would have a materially adverse effect on the Trading Advisor’s ability to act as described herein.

 

(ii) The Trading Advisor shall inform the Managing Member promptly after the Trading Advisor or any Trading Advisor Principal receives notice that it is the subject of any investigation, claim or proceeding of any regulatory authority having jurisdiction over such person or becomes a named party to any litigation materially affecting (or which may, with the passage of time, materially affect) the business of the Trading Advisor. The Trading Advisor shall also inform the Managing Member promptly if the Trading Advisor or any of its officers becomes aware of any breach of this Agreement by the Trading Advisor.

 

(iii) The Trading Advisor agrees to cooperate by providing information regarding itself and its performance which is reasonably required in connection with the preparation of any amendments or supplements to the PPM (subject to the limitation set forth in Section 1 hereof).

(a) The Trading Company and the Managing Member represent and warrant to the Trading Advisor, as follows:

 

(i) The Trading Company is a Delaware limited liability company formed pursuant to its organizational documents and Delaware law and is validly existing and in good standing under the laws of the State of Delaware with full power and authority to engage in the trading of futures interests and to engage in its other contemplated activities as described in the PPM; the Trading Company is qualified to do business in each jurisdiction in which the nature or conduct of its business requires such qualification and where failure to be so qualified could materially adversely affect the Trading Company’s ability to perform its obligations hereunder.

(ii) The Managing Member is duly organized and validly existing and in good standing as a limited liability company under the laws of the State of Delaware and is qualified to do business and is in good standing as a foreign corporation in each jurisdiction in which the nature or conduct of its business requires such qualification and where the failure to be so qualified could materially adversely affect the Managing Member’s ability to perform its obligations hereunder.

 

(iii) The Trading Company and the Managing Member have full power and authority under applicable law to conduct their business and to perform their respective obligations under this Agreement and as described in the PPM.

 

(iv) This Agreement has been duly and validly authorized, executed and delivered by the Managing Member on behalf of the Trading Company and constitutes a valid, binding and enforceable agreement of the Trading Company and the Managing Member in accordance with its terms.

 

(v) The execution and delivery of this Agreement, the incurrence of the obligations set forth herein and the consummation of the transactions contemplated herein and in the PPM will not violate, or constitute a breach of, or default under, the Managing Member’s organizational documents, or the Trading Company’s organizational documents, or any material agreement or instrument by which either the Managing Member or the Trading Company, as the case may be, is bound or any material order, rule, law or regulation applicable to the Managing Member or the Trading Company of any court or any governmental body or administrative agency or panel or self-regulatory organization having jurisdiction over the Managing Member or the Trading Company.

 

(vi) There have not been in the five years preceding the date of this Agreement and there is not pending or, to the Managing Member’s knowledge, threatened, any action, suit or proceeding at law or in equity before or by any court or by any federal, state, municipal or other governmental body or any administrative, self-regulatory or commodity exchange organization to which the Managing Member or the Trading Company is or was a party, or to which any of the assets of the Managing Member or the Trading Company is or was subject; and neither the Managing Member nor any of the principals of the Managing Member (“Managing Member Principals”) has received any notice of an investigation by the NFA, CFTC or any other administrative or self-regulatory organization regarding non-compliance by the Managing Member or the Managing Member Principals or the Trading Company with the CEA, the Securities Act of 1933, as amended, or any applicable laws.

 

(vii) The Managing Member and the Managing Member Principals have all federal, state and foreign governmental, regulatory and exchange approvals and licenses, and have effected all filings and registrations with federal, state and foreign governmental agencies required to conduct their business or required to perform their obligations under this Agreement and will maintain all such required approvals, licenses, filings and registrations for the term of this Agreement.

(viii) The Trading Company is and shall remain in material compliance in all respects with all laws, rules, regulations and orders of any government, governmental agency or self-regulatory organization applicable to its business as described in this Agreement.

 

(ix) The foregoing representations and warranties shall be continuing during the term of this Agreement and if at any time any event shall occur which could make any of the foregoing representations or warranties inaccurate, the Managing Member shall promptly notify the Trading Advisor of the nature of such event.

 

(x) The Trading Company and the Fund are Qualified Eligible Persons as set forth in CFTC Rule 4.7. The Trading Company acknowledges and understands that, based upon this representation, the Trading Advisor has claimed an exemption from certain CFTC regulations governing the activities of commodity trading advisors.

 

(xi) Neither the Trading Company nor the Fund is are (i) an “employee benefit plan” within the meaning of Section 3(3) of the Employee Retirement Income Security Act of 1974, as amended (“ERISA”) which is subject to ERISA, (ii) a “plan” as defined in Section 4975 of the Internal Revenue Code of 1986, as amended (the “Code”), (iii) an entity the assets of which are deemed to be the assets of such an employee benefit plan or plan as a result of the operation of ERISA and the regulations issued thereunder, or (iv) an entity the assets of which are subject to laws that operate in a manner similar to Section 404 or 406 of ERISA or Section 4975 of the Code.

 

(xii) the Fund’s PPM and any materials prepared or distributed by the Managing Member with respect to the Trading Company or the Fund do not contain any misstatements of material fact and do not omit to state any information necessary to make any statement made therein not misleading.

 

(b) Covenants of the Managing Member. The Managing Member covenants and agrees that:

 

(i) `The Managing Member shall maintain all registrations and memberships necessary for the Managing Member to continue to act as described herein and to all times comply in all respects with all applicable laws, rules, and regulations, to the extent that the failure to so comply would have a materially adverse effect on the Managing Member’s ability to act as described herein.

 

(ii) The Managing Member shall inform the Trading Advisor immediately as soon as the Managing Member or any of their principals becomes the subject of any lawsuit, investigation, claim, or proceeding of any regulatory authority having jurisdiction over such person or becomes a named party to any litigation materially affecting the business of the Managing Member or the Trading Company. The Managing Member shall also inform the Trading Advisor immediately if the Managing Member or the Trading Company or any of their officers become aware of any material breach of this Agreement by the Managing Member or the Trading Company.

The Managing Member, Trading Company or the Trading Advisor may merge or consolidate with, or sell or otherwise transfer its business, or all or a substantial portion of its assets, to any entity upon written notice to the other parties.

 

 

Subject to Section 11, hereof, this Agreement may not be assigned, transferred by operation of law, change in control or otherwise, by any party hereto without the express prior written consent of the other parties hereto.

 

This Agreement may not be amended except by the written consent of the parties hereto.  No waiver of any provision of this Agreement shall be implied from any course of dealings between the parties, from any failure by any party to assert its rights hereunder or any occasion or series of occasions.

 

 

The invalidity or unenforceability of any provision of this Agreement or any covenant herein contained shall not affect the validity or enforceability of any other provision or covenant hereof or herein contained and any such invalid provision or covenant shall be deemed to be severable.

 

 

 

17. Track Record.  The track record and other performance information of the Trading Company and/or the Fund shall be the property of the Managing Member and not the Trading Advisor.

 

Upon termination of this Agreement, the Trading Company, at its expense, as promptly as practicable:  (i) shall take all necessary action to cause the PPM of the Fund and organizational documents of the Fund to be amended in order to eliminate any reference to "Centurion Investment Management, LLC” (except to the extent required by law, regulation or rule); and (ii) shall cease to use in any other manner, including, but not limited to, use in any sales literature or promotional material, the name “Centurion Investment Management LLC" or any name, mark or logo type derived from it or similar to it (except to the extent required by law, regulation or rule).

 

All notices required to be delivered under this Agreement shall be in writing and shall be effective when delivered personally on the day delivered, by facsimile on receipt confirmation, by email followed by delivery of an original, or when given by registered or certified mail, postage prepaid, return receipt requested, on the second business day following the day on which it is so mailed, addressed as follows (or to such other address as the party entitled to notice shall hereafter designate in accordance with the terms hereof):

All representations, warranties and covenants contained in this Agreement shall be continuing during the term of this Agreement and the provisions of this Agreement shall survive the termination of this Agreement with respect to any matter arising while this Agreement was in effect.  Each party hereby agrees that as of the date of this Agreement it is, and during its term shall be, in compliance with its representations, warranties and covenants herein contained.  In addition, if at any time any event occurs which would make any of such representations, warranties or covenants not true, the affected party will promptly notify the other parties of such fact.

This Agreement is not intended and shall not convey any rights to a party to this Agreement.

This Agreement and any amendment hereto shall be governed by, and construed in accordance with, the laws of the State of Illinois, United States of America (excluding the law thereof which requires the application of, or reference to, the law of any other jurisdiction).  Each party hereto expressly and irrevocably agrees (a) that it waives any objection, and specifically consents, to venue in the United States federal or state courts located in the City of Chicago, State of Illinois, United States of America, so that any action at law or in equity may be brought and maintained in any such court, and (b) that service of process in any such action may be effected against such party by certified or registered mail or in any other manner permitted by applicable United States Federal Rules of Civil Procedure or rules of the Courts of the State of Illinois.  In addition each party hereto expressly and irrevocably waives, in respect of any action brought in any United States federal or state court located in the City of Chicago, State of Illinois or any resulting judgment, any objection, and hereby specifically consents, to the jurisdiction of any such court and agrees not to seek to change the situs of such action or to assert that any other court in any other jurisdiction is a more suitable forum for the hearing and adjudication of any claim or dispute raised in such action.

Headings to sections herein are for the convenience of the parties only and are not intended to be part of or to affect the meaning or interpretation of this Agreement.

 

This Agreement may be executed in counterparts, each of which shall be deemed an original but all of which together shall constitute one and the same instrument.

The waiver by any party of a breach of any provision of this Agreement shall not operate or be construed as a waiver of any subsequent breach or of a breach by any other party.  The failure of a party to insist upon strict adherence to any provision of the Agreement shall not constitute a waiver or thereafter deprive such party of the right to insist upon strict adherence.