MEKETA INFRASTRUCTURE FUND
Investment Management Agreement
AGREEMENT made this 7th day of November, 2023, by and between MEKETA INFRASTRUCTURE FUND, a Delaware statutory trust (the “Fund”), and MEKETA CAPITAL, LLC, a Delaware limited liability company (the “Adviser”).
WITNESSETH:
WHEREAS, the Fund and the Adviser wish to enter into an agreement setting forth the terms upon which the Adviser (or certain other parties acting pursuant to delegation from the Adviser) will perform certain services for the Fund;
NOW, THEREFORE, in consideration of the premises and covenants hereinafter contained, the parties agree as follows:
1. (a) The Fund hereby employs the Adviser to (i) furnish the Fund with Portfolio Management Services (as defined in Section 2 hereof), subject to the authority of the Adviser to delegate certain of its responsibilities hereunder to other parties as provided in Section 1(b) hereof, and (ii) furnish such other services necessary to sponsor and manage the Fund that are not specifically delegated to other service providers of the Fund, including overseeing the work that is delegated to other service providers of the Fund. The Adviser hereby accepts such employment and agrees, at its own expense, to furnish such services (either directly or pursuant to delegation to other parties as and to the extent permitted by Section 1(b) hereof) and to assume the obligations herein set forth, for the compensation herein provided. The Adviser shall, unless otherwise expressly provided or authorized, have no authority to act for or represent the Fund in any way or otherwise be deemed an agent of the Fund.
(b) The Adviser may delegate any or all of its responsibilities hereunder with respect to the provision of Portfolio Management Services (and assumption of related expenses) to one or more other parties (each such party, a “Sub-Adviser”), pursuant in each case to a written agreement with such Sub-Adviser that meets the requirements of Section 15 of the Investment Company Act of 1940, as amended (the “1940 Act”), and the rules thereunder applicable to contracts for service as investment adviser of a registered investment company (including without limitation the requirements for approval by the trustees and the shareholders of the Fund), subject, however, to such exemptions and no action relief as may be granted by the Securities and Exchange Commission. Any Sub-Adviser may (but need not) be affiliated with the Adviser.
(c) In the event that the Adviser delegates to one or more Sub-Advisers all or part of its responsibilities hereunder with respect to the provision of Portfolio Management Services, the Adviser hereby agrees to furnish to the Fund the following services (“Oversight Services”):
(i) supervise and oversee of each Sub-Adviser’s provision of Portfolio Management Services with respect to the Fund;
(ii) perform periodic detailed analysis and reviews of the performance by each Sub-Adviser of its obligations to the Fund, including without limitation analysis and review of the Portfolio Management Services provided by each Sub-Adviser, analysis and review of portfolio and other compliance matters and review of each Sub-Adviser’s investment performance in respect of the Fund;
(iii) prepare and present periodic reports to the Board of Trustees of the Fund regarding the investment performance of each Sub-Adviser and other information regarding each Sub-Adviser, at such times and in such forms as the Board of Trustees of the Fund may reasonably request;
(iv) review and consider any changes in the personnel of each Sub-Adviser responsible for performing the Sub-Adviser’s obligations and make appropriate reports to the Board of Trustees of the Fund;
(v) review and consider any changes in the ownership or senior management of each Sub-Adviser and make appropriate reports to the Board of Trustees of the Fund;
(vi) perform periodic in-person or telephonic diligence meetings, including with respect to compliance matters, with representatives of each Sub-Adviser;
(vii) assist the Board of Trustees of the Fund and management of the Fund in developing and reviewing information with respect to the initial approval of each agreement with a Sub-Adviser (a “Subadvisory Agreement”) and annual consideration of each Subadvisory Agreement thereafter;
(viii) prepare recommendations with respect to the continued retention of any Sub-Adviser or the replacement of any Sub-Adviser, including at the request of the Board of Trustees of the Fund;
(ix) identify potential successors to or replacements of any Sub-Adviser or potential additional Sub-Advisers, perform appropriate due diligence, and develop and present to the Board of Trustees of the Fund a recommendation as to any such successor, replacement, or additional Sub-Advisers, including at the request of the Board of Trustees of the Fund;
(x) designate and compensate from its own resources such personnel as the Adviser may consider necessary or appropriate to the performance of its services; and
(xi) perform such other review and reporting functions as the Board of Trustees of the Fund shall reasonably request consistent with this Agreement and applicable law.
2. As used in this Agreement, “Portfolio Management Services” means management of the investment and reinvestment of the assets belonging to the Fund, consisting specifically of the following:
(a) obtaining and evaluating such economic, statistical and financial data and information and undertaking such additional investment research as shall be necessary or advisable for the management of the investment and reinvestment of the assets belonging to the Fund in accordance with the Fund’s investment objectives and policies;
(b) taking such steps as are necessary to implement the investment policies of the Fund by purchasing and selling of securities and other assets consistent with the Fund’s investment objectives and policies, including the placing of orders for such purchase and sale; and
(c) regularly reporting to the Board of Trustees of the Fund with respect to the implementation of the investment policies of the Fund.
3. The Fund will bear (and nothing in this Agreement shall require the Adviser to bear, or to reimburse the Fund for): (a) all of the legal and other out-of-pocket expenses incurred in connection with the organization of the Fund and the offering of its shares; (b) ordinary administrative and operating expenses, including the Management Fee and all expenses associated with the pricing of Fund assets; (c) risk management expenses; (d) ordinary and recurring investment expenses, including all fees and expenses directly related to portfolio transactions and positions for the Fund’s account (including brokerage, clearing, and settlement costs), custodial costs, and interest charges; (e) professional fees (including, without limitation, expenses of consultants, experts, and specialists); (f) fees and expenses in connection with repurchase offers and any repurchases or redemptions of Fund shares of beneficial interest; (g) office space, office supplies, facilities and equipment for the Fund; (h) executive and other personnel for managing the affairs of the Fund, other than for the Adviser’s provision of (1) Portfolio Management Services and (2) Oversight Services (if the Adviser shall have delegated to one or more Sub-Advisers any or all of its responsibilities hereunder with respect to the provision of Portfolio Management Services); (i) any of the costs of printing and mailing the items referred to in Sub-Section (v) of this Section 3; (j) any of the costs of preparing, printing and distributing sales literature; (k) compensation of trustees of the Fund who are not directors, officers or employees of the Adviser or of any affiliated person (other than a registered investment company) of the Adviser; (l) registration, filing and other fees in connection with requirements of regulatory authorities; (m) the charges and expenses of any entity appointed by the Fund for custodial, paying agent, shareholder servicing and plan agent services; (n) charges and expenses of independent accountants retained by the Fund; (o) charges and expenses of any transfer agents and registrars appointed by the Fund; (p) brokers’ commissions and issue and transfer taxes chargeable to the Fund in connection with securities transactions to which the Fund is a party; (q) taxes and fees payable by the Fund to federal, state or other governmental agencies; (r) any cost of certificates representing shares of the Fund; (s) legal fees and expenses in connection with the affairs of the Fund, including registering and qualifying its shares with federal and state regulatory authorities; (t) expenses of meetings of shareholders and trustees of the Fund; (u) interest, including interest on borrowings by the Fund; (v) the costs of services, including services of counsel, required in connection with the preparation of the Fund’s
registration statements and prospectuses, including amendments and revisions thereto, annual, semiannual and other periodic reports of the Fund, and notices and proxy solicitation material furnished to shareholders of the Fund or regulatory authorities; (w) the Fund’s expenses of bookkeeping, accounting, auditing and financial reporting, including related clerical expenses; (x) all filing costs, fees, and any other expenses which are directly related to the investment of the Fund’s assets; and (y) any extraordinary expenses, including any litigation expenses.
4. All activities undertaken by the Adviser pursuant to this Agreement shall at all times be subject to the supervision and control of the Board of Trustees of the Fund, any duly constituted committee thereof or any officer of the Fund acting pursuant to like authority.
5. The services to be provided by the Adviser hereunder are not to be deemed exclusive and the Adviser shall be free to render similar services to others, so long as its services hereunder are not impaired thereby.
6. As full compensation for all services rendered, facilities furnished and expenses borne by the Adviser hereunder, the Fund shall pay the Adviser compensation at the annual rate of 1.50% of the average daily net assets of the Fund (or such lesser amount as the Adviser may from time to time agree to receive). Such compensation shall be payable monthly in arrears or at such other intervals, not less frequently than quarterly, as the Board of Trustees of the Fund may from time to time determine and specify in writing to the Adviser.
7. In connection with the management of the investment and reinvestment of the assets of the Fund, the Adviser is authorized to place orders either directly with the issuer or with brokers or dealers selected by the Adviser. In the selection of such brokers or dealers and the placing of such orders, the Adviser will use its best efforts to obtain for the Fund the most favorable price and execution available, except to the extent it may be permitted to pay higher brokerage commissions for brokerage and research services as described below. In using its best efforts to obtain for the Fund the most favorable price and execution available, the Adviser, bearing in mind the Fund’s best interests at all times, will consider all factors it deems relevant, including by way of illustration, price, the size of the transaction, the nature of the market for the security, the amount of the commission, the timing of the transaction taking into account market prices and trends, the reputation, experience and financial stability of the broker or dealer involved and the quality of service rendered by the broker or dealer in other transactions. The Adviser will not be deemed to have acted unlawfully or to have breached any duty created by this Agreement or otherwise solely by reason of its having caused the Fund to pay a broker or dealer that provides brokerage and research services to the Adviser an amount of commission for effecting a portfolio investment transaction in excess of the amount of commission another broker or dealer would have charged for effecting that transaction, if the Adviser determines in good faith that such amount of commission was reasonable in relation to the value of the brokerage and research services provided by such broker or dealer, viewed in terms of either that particular transaction or the Adviser’s overall responsibilities with respect to the Fund and/or to other clients of the Adviser as to which the Adviser exercises investment discretion. In no instance, however, will the Fund’s securities be purchased from or sold to the Adviser, or any “affiliated person” thereof, except to the extent permitted by the Securities and Exchange Commission or by applicable law. To the extent consistent with applicable law, purchase or sell
orders for the Fund may be aggregated with contemporaneous purchase or sell orders of other clients of the Adviser.
8. The Fund constitutes and appoints the Adviser as the Fund’s true and lawful representative and attorney-in-fact, with full power of delegation, in the Fund’s name, place and stead, to make, execute, sign, acknowledge and deliver all subscription and other agreements, contracts and undertakings on behalf of the Fund as the Adviser may deem necessary or advisable for implementing the investment program of the Fund by purchasing, selling and redeeming its assets and placing orders for such purchases and sales. Any delegation of duties pursuant to this paragraph shall comply with all applicable provisions of Section 15 of the 1940 Act and the rules thereunder, except to the extent otherwise permitted by any exemptive order of the Securities and Exchange Commission, or similar relief, and requirements under Commodity Futures Trading Commission (“CFTC”) rules and guidance.
9. The Fund may delegate to the Adviser, and the Adviser may delegate to the Sub-Adviser, subject to revocation at the discretion of the Board of Trustees of the Fund, the responsibility for voting proxies relating to the Fund’s portfolio securities pursuant to written proxy voting policies and procedures established by the Adviser.
10. It is understood that any of the shareholders, trustees, officers, employees and agents of the Fund may be a shareholder, director, officer, employee or agent of, or be otherwise interested in, the Adviser, any affiliated person of the Adviser, any organization in which the Adviser may have an interest or any organization which may have an interest in the Adviser; that the Adviser, any such affiliated person or any such organization may have an interest in the Fund; and that the existence of any such dual interest shall not affect the validity hereof or of any transactions hereunder except as otherwise provided in the Agreement and Declaration of Trust of the Fund, the limited liability company agreement of the Adviser or specific provisions of applicable law.
11. The Fund acknowledges that, as between the Fund and the Adviser, the Adviser owns and controls the name “Meketa.” The Adviser consents to the use by the Fund of the name “Meketa Infrastructure Fund” or any other name embodying the word “Meketa,” in such forms as the Adviser shall in writing approve, but only on condition and so long as (i) this Agreement shall remain in full force and (ii) the Fund shall fully perform, fulfill and comply with all provisions of this Agreement expressed herein to be performed, fulfilled or complied with by it. No such name shall be used by the Fund at any time or in any place or for any purposes or under any conditions except as in this section provided. The foregoing authorization by the Adviser to the Fund to use said word as part of a business or name is not exclusive of the right of the Adviser itself to use, or to authorize others to use, the same; the Fund acknowledges and agrees that as between the Adviser and the Fund, the Adviser has the exclusive right so to use, or authorize others to use, said word, and the Fund agrees to take such action as may reasonably be requested by the Adviser to give full effect to the provisions of this section (including, without limitation, consenting to such use of said word). Without limiting the generality of the foregoing, the Fund agrees that, upon any termination of this Agreement by either party or upon the violation of any of its provisions by the Fund, the Fund will, at the request of the Adviser made at any time after the Adviser has knowledge of such termination or violation, use its best efforts to change the name of the Fund so as to eliminate all reference, if any, to the word “Meketa” and
will not thereafter transact any business in a name containing the word “Meketa” in any form or combination whatsoever, or (except as may otherwise be required by law) designate itself as the same entity as or successor to any entity of such name, or otherwise use the word “Meketa” or any other reference to the Adviser. Such covenants on the part of the Fund shall be binding upon it, its trustees, officers, shareholders, creditors and all other persons claiming under or through it.
12. This Agreement shall become effective as of the date of its execution, and
(a) unless otherwise terminated, this Agreement shall continue in effect for two years from the date of execution, and from year to year thereafter so long as such continuance is specifically approved at least annually (i) by the Board of Trustees of the Fund or by vote of a majority of the outstanding voting securities of the Fund, and (ii) by vote of a majority of the trustees of the Fund who are not interested persons of the Fund or the Adviser;
(b) this Agreement may at any time be terminated on sixty days’ written notice to the Adviser either by vote of the Board of Trustees of the Fund or by vote of a majority of the outstanding voting securities of the Fund;
(c) this Agreement shall automatically terminate in the event of its assignment;
(d) this Agreement may be terminated by the Adviser on ninety days’ written notice to the Fund; and
(e) if the Adviser requires the Fund to change its name so as to eliminate all references to the word “Meketa,” this Agreement shall automatically terminate at the time of such change unless the continuance of this Agreement after such change shall have been specifically approved by vote of a majority of the outstanding voting securities of the Fund and by vote of a majority of the trustees of the Fund who are not interested persons of the Fund or the Adviser, cast in person at a meeting called for the purpose of voting on such approval.
Termination of this Agreement pursuant to this Section 12 shall be without the payment of any penalty.
13. This Agreement shall not be amended, nor shall any provision of this Agreement be considered modified or waived, unless evidenced by a writing signed by the parties hereto, and in compliance with applicable provisions of the 1940 Act, subject, however, to such exemptions or no-action positions as may be granted by the Securities and Exchange Commission or its staff under the 1940 Act.
14. For the purpose of this Agreement, the terms “vote of a majority of the outstanding voting securities,” “interested person,” “affiliated person” and “assignment” shall have their respective meanings defined in the 1940 Act and the rules thereunder, subject, however, to such exemptions or no-action positions as may be granted by the Securities and Exchange Commission or its staff under the 1940 Act.
15. (a) In the absence of willful misfeasance, bad faith or gross negligence on the part of the Adviser, or reckless disregard of its obligations and duties hereunder, the Adviser shall not be subject to any liability to the Fund or to any shareholder of the Fund or to any other person, firm or organization, for any act or omission in the course of, or connected with, rendering services hereunder. The Fund shall, to the fullest extent permitted by law, indemnify and save harmless the Adviser, its affiliates and any of their respective partners, members, directors, officers, employees and shareholders (the “Indemnitees”) from and against any and all claims, liabilities, damages, losses, costs and expenses, that are incurred by any Indemnitee and that arise out of or in connection with the performance or non-performance of or by the Indemnitee of any of the Adviser’s responsibilities hereunder, provided that an Indemnitee shall be entitled to indemnification hereunder only if the Indemnitee acted in good faith and in a manner the Indemnitee reasonably believed to be in or not opposed to the best interests of the Fund; provided, however, that no Indemnitee shall be indemnified against any liability to the Fund or its shareholders by reason of willful misfeasance, bad faith, gross negligence or reckless disregard of the Indemnitee’s duties under this Agreement (“disabling conduct”). An Indemnitee is entitled to indemnification hereunder only upon (i) a final decision on the merits by a court or other body before whom the proceeding was brought that the Indemnitee was not liable by reason of disabling conduct or, (ii) in the absence of such a decision, a reasonable determination, based upon a review of readily available facts (as opposed to a full trial-type inquiry), that the Indemnitee was not liable by reason of disabling conduct by either (A) the vote of a majority of a quorum of the Trustees who are neither “interested persons” of the Fund nor parties to the proceeding or (B) legal counsel selected by a vote of a majority of the Board of Trustees of the Fund, further provided that such counsel’s determination be written and provided to the Board of Trustees of the Fund.
(b) Expenses, including reasonable counsel fees incurred by the Indemnitee (but excluding amounts paid in satisfaction of judgments, in compromise or as fines or penalties), shall be paid from time to time by the Fund in advance of the final disposition of a proceeding upon receipt by the Fund of an undertaking by or on behalf of the Indemnitee to repay amounts so paid to the Fund if it is ultimately determined that indemnification of such expenses is not authorized under this Agreement.
16. Except as otherwise provided herein, all communications hereunder shall be in writing and shall be delivered by mail, hand delivery or courier, or sent by facsimile or electronically to the requisite party, at its address as specified by such party.
17. Nothing in this Agreement, express or implied, is intended to or shall confer upon any person not a party hereto any right, benefit or remedy of any nature whatsoever under or by reason of this Agreement.
18. This Agreement shall be governed by and construed in accordance with the substantive laws of the State of Delaware which are applicable to contracts made and entirely to be performed therein, without regard to the place of performance hereunder.
19. This Agreement is executed on behalf of the Fund by an officer, and the obligations created hereby are not binding on any of the shareholders, Trustees, employees, or agents,
whether past, present, or future, of the Fund individually, but bind only the assets and property of the Fund.
20. This Agreement may be executed in multiple counterparts, all of which counterparts together shall constitute one agreement.
IN WITNESS WHEREOF, the parties hereto have executed this Agreement on the day and year first above written.
MEKETA INFRASTRUCTURE FUND
By: /s/ Michael Bell
Name: Michael Bell
Title: President
MEKETA CAPITAL, LLC
By: Meketa Investment Group, Inc., as sole member
By: /s/ Stephen P. McCourt
Name: Stephen P. McCourt
Title: Co-Chief Executive Officer
REPORT OF INDEPENDENT REGISTERED PUBLIC ACCOUNTING FIRM
To the Shareholders and Board of Trustees of Meketa Infrastructure Fund
In planning and performing our audit of the financial statements of Meketa Infrastructure Fund (the “Fund”) as of and for the period January 29, 2024 (commencement of operations) through March 31, 2024, in accordance with the standards of the Public Company Accounting Oversight Board (United States) (PCAOB), we considered the Fund’s internal control over financial reporting, including controls over safeguarding securities, as a basis for designing our auditing procedures for the purpose of expressing our opinion on the financial statements and to comply with the requirements of Form N-CEN, but not for the purpose of expressing an opinion on the effectiveness of the Fund’s internal control over financial reporting. Accordingly, we express no such opinion.
The management of the Fund is responsible for establishing and maintaining effective internal control over financial reporting. In fulfilling this responsibility, estimates and judgments by management are required to assess the expected benefits and related costs of controls. A fund’s internal control over financial reporting is a process designed to provide reasonable assurance regarding the reliability of financial reporting and the preparation of financial statements for external purposes in accordance with generally accepted accounting principles (GAAP). A fund’s internal control over financial reporting includes those policies and procedures that (1) pertain to the maintenance of records that, in reasonable detail, accurately and fairly reflect the transactions and dispositions of the assets of the fund; (2) provide reasonable assurance that transactions are recorded as necessary to permit preparation of financial statements in accordance with GAAP, and that receipts and expenditures of the fund are being made only in accordance with authorizations of management and trustees of the fund; and (3) provide reasonable assurance regarding prevention or timely detection of unauthorized acquisition, use or disposition of a fund’s assets that could have a material effect on the financial statements.
Because of its inherent limitations, internal control over financial reporting may not prevent or detect misstatements. Also, projections of any evaluation of effectiveness to future periods are subject to the risk that controls may become inadequate because of changes in conditions, or that the degree of compliance with the policies or procedures may deteriorate.
A deficiency in internal control over financial reporting exists when the design or operation of a control does not allow management or employees, in the normal course of performing their assigned functions, to prevent or detect misstatements on a timely basis. A material weakness is a deficiency, or combination of deficiencies, in internal control over financial reporting, such that there is a reasonable possibility that a material misstatement of the Fund’s annual or interim financial statements will not be prevented or detected on a timely basis.
Our consideration of the Fund’s internal control over financial reporting was for the limited purpose described in the first paragraph and would not necessarily disclose all deficiencies in internal control that might be material weaknesses under standards established by the PCAOB. However, we noted no deficiencies in the Fund’s internal control over financial reporting and its operation, including controls over safeguarding securities, that we consider to be a material weakness as defined above as of March 31, 2024.
This report is intended solely for the information and use of management and the Board of Trustees of the Fund and the Securities and Exchange Commission and is not intended to be and should not be used by anyone other than these specified parties.
/s/ Cohen & Company, LTD.
COHEN & COMPANY, LTD.
Chicago, Illinois May 24, 2024
MEKETA INFRASTRUCTURE FUND
SUB-ADVISORY AGREEMENT
This Sub-Advisory Agreement (this “Agreement”) is entered into as of November 7, 2023, by and between Meketa Capital, LLC, a Delaware limited liability company (the “Adviser”), and Meketa Investment Group, Inc., a Massachusetts corporation (the “Sub-Adviser”).
WHEREAS, the Adviser has entered into an Investment Management Agreement dated November 7, 2023, (the “Investment Management Agreement”) with Meketa Infrastructure Fund, a Delaware statutory trust (the “Fund”), pursuant to which the Adviser provides portfolio management and administrative services to the Fund;
WHEREAS, the Investment Management Agreement provides that the Adviser may delegate any or all of its portfolio management responsibilities under the Investment Management Agreement to one or more sub-advisers; and
WHEREAS, the Adviser desires to retain the Sub-Adviser to render portfolio management services in the manner and on the terms set forth in this Agreement.
NOW, THEREFORE, in consideration of the mutual covenants and agreements set forth in this Agreement, the Adviser and the Sub-Adviser agree as follows:
1. Sub-Advisory Services.
(a) The Sub-Adviser shall, subject to the supervision of the Adviser and in cooperation with any administrator appointed by the Adviser or the Fund (the “Administrator”), manage the investment and reinvestment of the assets of the Fund. The Sub-Adviser shall manage the Fund in conformity with (1) the investment objective, policies and restrictions of the Fund set forth in the Fund’s prospectus and statement of additional information, (2) any changes in, or any additional, policies or guidelines established by the Adviser or by the Fund’s trustees that have been furnished in writing to the Sub-Adviser and (3) the provisions of the Internal Revenue Code, as amended (the “Code”), applicable to “regulated investment companies” (as defined in Section 851 of the Code), all as from time to time in effect (collectively, the “Policies”), and with all applicable provisions of law, including without limitation all applicable provisions of the Investment Company Act of 1940, as amended (the “1940 Act”), and the rules and regulations thereunder. Subject to the foregoing, the Sub-Adviser is authorized, in its discretion and without prior consultation with the Adviser, to buy, sell, lend and otherwise trade in any stocks, bonds and other securities and investment instruments on behalf of the Fund, without regard to the length of time the securities have been held and the resulting rate of portfolio turnover or any tax considerations; and the majority or the whole of the Fund may be invested in such proportions of stocks, bonds, other securities or investment instruments, or cash, as the Sub-Adviser shall determine. Notwithstanding the foregoing provisions of this Section 1.a, however, the Sub-Adviser shall, upon written instructions from the Adviser, effect such portfolio transactions for the Fund as the Adviser shall determine are necessary in order for the Fund to comply with the Policies.
(b) The Sub-Adviser shall furnish the Adviser and the Administrator monthly, quarterly and annual reports concerning portfolio transactions and performance of the Fund in such form as may be mutually agreed upon, and agrees to review the Fund and discuss the management of the Fund with representatives or agents of the Adviser, the Administrator or the Fund at their reasonable request. The Sub-Adviser shall permit all books and records with respect to the Fund to be inspected and audited by the Adviser and the Administrator at all reasonable times during normal business hours, upon reasonable notice. The Sub-Adviser shall also provide the Adviser, the Administrator or the Fund with such other information and reports as may reasonably be requested by the Adviser, the Administrator or the Fund from time to time, including without limitation all material as reasonably may be requested by the trustees of the Fund pursuant to Section 15(c) of the 1940 Act.
(c) The Sub-Adviser shall provide to the Adviser a copy of the Sub-Adviser’s Form ADV as filed with the Securities and Exchange Commission and as amended from time to time and a list of the persons whom the Sub-Adviser wishes to have authorized to give written and/or oral instructions to custodians of assets of the Fund.
(d) The Sub-Adviser shall maintain and be bound by a Code of Ethics satisfying the requirements of Rule 17j-1 under the 1940 Act and that has been approved by the Fund, and shall provide to the Fund a current copy of such Code of Ethics, as amended from time to time.
(e) The Sub-Adviser shall have no responsibility for filing claims on behalf of the Fund with respect to any class action, bankruptcy proceeding or any other action or proceeding in which the Fund may be entitled to participate as a result of its security holdings. The Sub-Adviser’s responsibility with respect to such matters shall be, at the expense of the Adviser, limited to cooperating with the Adviser and the Fund in making such filings and to using commercially reasonable efforts in sharing applicable information regarding such matters with the Adviser and the Fund.
2. Obligations of the Adviser.
(a) The Adviser shall provide (or cause the Fund’s custodian to provide) timely information to the Sub-Adviser regarding such matters as the composition of assets in the Fund, cash requirements and cash available for investment in the Fund, and all other information as may be reasonably necessary for the Sub-Adviser to perform its responsibilities hereunder.
(b) The Adviser has furnished the Sub-Adviser a copy of the prospectus and statement of additional information of the Fund and agrees during the continuance of this Agreement to furnish the Sub-Adviser copies of any revisions or supplements thereto at, or, if practicable, before the time the revisions or supplements become effective. The Adviser agrees to furnish the Sub-Adviser with copies of any financial statements or reports made available by the Fund to its shareholders, and any further materials or information which the Sub-Adviser may reasonably request to enable it to perform its functions under this Agreement.
3. Custodian. The Adviser shall provide the Sub-Adviser with a copy of the Fund’s agreement with the custodian designated to hold the assets of the Fund (the “Custodian”) and any modifications thereto (the “Custody Agreement”), copies of such modifications to be provided to
the Sub-Adviser a reasonable time in advance of the effectiveness of such modifications. The assets of the Fund shall be maintained in the custody of the Custodian identified in, and in accordance with the terms and conditions of, the Custody Agreement (or any sub-custodian properly appointed as provided in the Custody Agreement). The Sub-Adviser shall have no liability for the acts or omissions of the Custodian, unless such act or omission is required by and taken in reliance upon instructions given to the Custodian by a representative of the Sub-Adviser properly authorized to give such instructions under the Custody Agreement.
4. Expenses. The Fund will bear (and nothing in this Agreement shall require the Sub-Adviser to bear, or to reimburse the Fund for): (a) all of the legal and other out-of-pocket expenses incurred in connection with the organization of the Fund and the offering of its shares; (b) ordinary administrative and operating expenses, including the Management Fee and all expenses associated with the pricing of Fund assets; (c) risk management expenses; (d) ordinary and recurring investment expenses, including all fees and expenses directly related to portfolio transactions and positions for the Fund’s account (including brokerage, clearing, and settlement costs), custodial costs, and interest charges; (e) professional fees (including, without limitation, expenses of consultants, experts, and specialists); (f) fees and expenses in connection with repurchase offers and any repurchases or redemptions of Fund shares of beneficial interest; (g) office space, office supplies, facilities and equipment for the Fund; (h) executive and other personnel for managing the affairs of the Fund, other than for the Sub-Adviser’s provision of services under this Agreement; (i) any of the costs of printing and mailing the items referred to in Sub-Section (v) of this Section 4; (j) any of the costs of preparing, printing and distributing sales literature; (k) compensation of trustees of the Fund who are not directors, officers or employees of the Adviser or of any affiliated person (other than a registered investment company) of the Adviser; (l) registration, filing and other fees in connection with requirements of regulatory authorities; (m) the charges and expenses of any entity appointed by the Fund for custodial, paying agent, shareholder servicing and plan agent services; (n) charges and expenses of independent accountants retained by the Fund; (o) charges and expenses of any transfer agents and registrars appointed by the Fund; (p) brokers’ commissions and issue and transfer taxes chargeable to the Fund in connection with securities transactions to which the Fund is a party; (q) taxes and fees payable by the Fund to federal, state or other governmental agencies; (r) any cost of certificates representing shares of the Fund; (s) legal fees and expenses in connection with the affairs of the Fund, including registering and qualifying its shares with federal and state regulatory authorities; (t) expenses of meetings of shareholders and trustees of the Fund; (u) interest, including interest on borrowings by the Fund; (v) the costs of services, including services of counsel, required in connection with the preparation of the Fund’s registration statements and prospectuses, including amendments and revisions thereto, annual, semiannual and other periodic reports of the Fund, and notices and proxy solicitation material furnished to shareholders of the Fund or regulatory authorities; (w) the Fund’s expenses of bookkeeping, accounting, auditing and financial reporting, including related clerical expenses; (x) all filing costs, fees, and any other expenses which are directly related to the investment of the Fund’s assets; and (y) any extraordinary expenses, including any litigation expenses.
5. Purchase and Sale of Assets. Absent instructions from the Adviser to the contrary, the Sub-Adviser is authorized to place orders either directly with the issuer or with brokers or dealers selected by the Sub-Adviser. In the selection of such brokers or dealers and the placing of such orders, the Sub-Adviser will use its best efforts to obtain for the Fund the most favorable price
and execution available, except to the extent it may be permitted to pay higher brokerage commissions for brokerage and research services as described below. In using its best efforts to obtain for the Fund the most favorable price and execution available, the Sub-Adviser, bearing in mind the Fund’s best interests at all times, will consider all factors it deems relevant, including by way of illustration, price, the size of the transaction, the nature of the market for the security, the amount of the commission, the timing of the transaction taking into account market prices and trends, the reputation, experience and financial stability of the broker or dealer involved and the quality of service rendered by the broker or dealer in other transactions. The Sub-Adviser will not be deemed to have acted unlawfully or to have breached any duty created by this Agreement or otherwise solely by reason of its having caused the Fund to pay a broker or dealer that provides brokerage and research services to the Sub-Adviser an amount of commission for effecting a portfolio investment transaction in excess of the amount of commission another broker or dealer would have charged for effecting that transaction, if the Sub-Adviser determines in good faith that such amount of commission was reasonable in relation to the value of the brokerage and research services provided by such broker or dealer, viewed in terms of either that particular transaction or the Sub-Adviser’s overall responsibilities with respect to the Fund and/or to other clients of the Sub-Adviser as to which the Sub-Adviser exercises investment discretion. In no instance, however, will the Fund’s securities be purchased from or sold to the Sub-Adviser, or any “affiliated person” thereof, except to the extent permitted by the Securities and Exchange Commission or by applicable law. To the extent consistent with applicable law, purchase or sell orders for the Fund may be aggregated with contemporaneous purchase or sell orders of other clients of the Sub-Adviser.
6. Proxy Voting. The Adviser may delegate to the Sub-Adviser, subject to revocation at the discretion of the Board of Trustees of the Fund, the responsibility for voting proxies relating to the Fund’s portfolio securities pursuant to written proxy voting policies and procedures established by the Sub-Adviser.
7. Compensation of the Sub-Adviser. As full compensation for all services rendered, facilities furnished and expenses borne by the Sub-Adviser hereunder, the Adviser shall pay the Sub-Adviser compensation at the rate set forth on Schedule A attached hereto. Such compensation shall be payable monthly in arrears or at such other intervals, not less frequently than quarterly, as the Adviser is paid by the Fund pursuant to the Investment Management Agreement. The Adviser may from time to time waive or agree to defer the compensation it is entitled to receive from the Fund; however, any such waiver or deferral will have no effect on the Adviser’s obligation to pay the Sub-Adviser the compensation provided for herein.
8. Non-Exclusivity. The Adviser and the Fund agree that the services of the Sub-Adviser are not to be deemed exclusive and that the Sub-Adviser and its affiliates are free to act as investment manager and provide other services to various investment companies and other managed accounts, except as the Sub-Adviser and the Adviser may otherwise agree from time to time in writing before or after the date hereof, and provided however, that the Sub-Adviser may not consult with any other sub-adviser of the Fund concerning transactions in securities or other assets for any investment portfolio of the Fund, except that such consultations are permitted between the current and successor sub-advisers of a portfolio in order to effect an orderly transition of sub-advisory duties so long as such consultations are not concerning transactions prohibited by Section 17(a) of the 1940 Act. This Agreement shall not in any way limit or restrict
the Sub-Adviser or any of its directors, officers, employees or agents from buying, selling or trading any securities or other investment instruments for its or their own account or for the account of others for whom it or they may be acting, provided that such activities do not adversely affect or otherwise impair the performance by the Sub-Adviser of its duties and obligations under this Agreement. The Adviser and the Fund recognize and agree that the Sub-Adviser may provide advice to or take action with respect to other clients, which advice or action, including the timing and nature of such action, may differ from or be identical to advice given or action taken with respect to the Fund. The Sub-Adviser shall for all purposes hereof be deemed to be an independent contractor and shall, unless otherwise provided or authorized, have no authority to act for or represent the Fund in any way or otherwise be deemed an agent of the Fund.
9. Liability.
(a) In the absence of willful misfeasance, bad faith or gross negligence on the part of the Sub-Adviser, or reckless disregard of its obligations and duties hereunder, the Sub-Adviser shall not be subject to any liability to the Fund, the Adviser or to any shareholder of the Fund or to any other person, firm or organization, for any act or omission in the course of, or connected with, rendering services hereunder. The Adviser shall, to the fullest extent permitted by law, indemnify and save harmless the Sub-Adviser, its affiliates and any of their respective partners, members, directors, officers, employees and shareholders (the “Indemnitees”) from and against any and all claims, liabilities, damages, losses, costs and expenses, that are incurred by any Indemnitee and that arise out of or in connection with the performance or non-performance of or by the Indemnitee of any of the Sub-Adviser’s responsibilities hereunder, provided that an Indemnitee shall be entitled to indemnification hereunder only if the Indemnitee acted in good faith and in a manner the Indemnitee reasonably believed to be in or not opposed to the best interests of the Fund; provided, however, that no Indemnitee shall be indemnified against any liability to the Fund or its shareholders by reason of willful misfeasance, bad faith, gross negligence or reckless disregard of the Indemnitee’s duties under this Agreement (“disabling conduct”). An Indemnitee is entitled to indemnification hereunder unless a final decision on the merits by a court or other body before whom the proceeding was brought that the Indemnitee was liable by reason of disabling conduct.
(b) Expenses, including reasonable counsel fees incurred by the Indemnitee (but excluding amounts paid in satisfaction of judgments, in compromise or as fines or penalties), shall be paid from time to time by the Adviser in advance of the final disposition of a proceeding upon receipt by the Fund of an undertaking by or on behalf of the Indemnitee to repay amounts so paid to the Adviser if it is ultimately determined that indemnification of such expenses is not authorized under this Agreement.
10. Effective Date and Termination. This Agreement shall become effective as of the date of its execution, and
(a) unless otherwise terminated, this Agreement shall continue in effect for two years from the date of execution, and from year to year thereafter so long as such continuance is specifically approved at least annually (i) by the Board of Trustees of the Fund or by vote of a
majority of the outstanding voting securities of the Fund, and (ii) by vote of a majority of the trustees of the Fund who are not interested persons of the Fund, the Adviser or the Sub-Adviser;
(b) this Agreement may at any time be terminated on sixty days’ written notice to the Sub-Adviser by the Adviser, by vote of the Board of Trustees of the Fund or by vote of a majority of the outstanding voting securities of the Fund;
(c) this Agreement may be terminated by the Sub-Adviser at any time, on sixty days’ written notice to both the Adviser and the Fund, provided that the Adviser consents in writing to such termination;
(d) this Agreement may be terminated by the Sub-Adviser on sixty days’ written notice to both the Adviser and the Fund, at any time after the first anniversary of the Effective Date of this Agreement; and
(e) this Agreement shall automatically terminate in the event of its assignment.
Termination of this Agreement pursuant to this Section 10 shall be without the payment of any penalty.
11. No Third Party Beneficiaries. The Fund is a third party beneficiary to this Agreement. Aside from the Fund, nothing in this Agreement, express or implied, is intended to or shall confer upon any person not a party hereto (including, but not limited to, shareholders of the Fund) any right, benefit or remedy of any nature whatsoever under or by reason of this Agreement.
12. Amendment. This Agreement shall not be amended, nor shall any provision of this Agreement be considered modified or waived, unless evidenced by a writing signed by the parties hereto, and in compliance with applicable provisions of the 1940 Act, subject, however, to such exemptions or no-action positions as may be granted by the Securities and Exchange Commission or its staff under the 1940 Act.
13. Certain Definitions. For the purpose of this Agreement, the terms “vote of a majority of the outstanding voting securities,” “interested person,” “affiliated person” and “assignment” shall have their respective meanings defined in the 1940 Act and the rules thereunder, subject, however, to such exemptions or no-action provisions as may be granted by the Securities and Exchange Commission or its staff under the 1940 Act.
14. General.
(a) If any term or provision of this Agreement or the application thereof to any person or circumstances is held to be invalid or unenforceable to any extent, the remainder of this Agreement or the application of such provision to other persons or circumstances shall not be affected thereby and shall be enforced to the fullest extent permitted by law.
(b) Except as otherwise provided herein, all communications hereunder shall be in writing and shall be delivered by mail, hand delivery or courier, or sent by facsimile or electronically to the requisite party, at its address as specified by such party.
(c) This Agreement shall be governed by and construed in accordance with the substantive laws of the State of Delaware which are applicable to contracts made and entirely to be performed therein, without regard to the place of performance hereunder.
(d) This Agreement is executed on behalf of the Fund by an officer, and the obligations created hereby are not binding on any of the shareholders, trustees, employees, or agents, whether past, present, or future, of the Fund individually, but bind only the assets and property of the Fund.
(e) This Agreement may be executed in multiple counterparts all of which counterparts together shall constitute one agreement.
[Remainder of page intentionally left blank]
MEKETA CAPITAL, LLC
By: Meketa Investment Group, Inc., as sole member
By:_/s/Stephen P. McCourt_______________
Name: Stephen P. McCourt
Title: Co-Chief Executive Officer
MEKETA INVESTMENT GROUP, INC.
By:__/s/Stephen P. McCourt
Name: Stephen P. McCourt
Title: Co-Chief Executive Officer
Party hereto only as to Section 8 and as to
the penultimate sentence of Section 1.a:
MEKETA INFRASTRUCTURE FUND
By:_/s/Michael A. Bell
Name: Michael A. Bell
Title: President
Schedule A
Compensation of the Sub-Adviser
Adviser shall pay Sub-Adviser the following sub-advisory fee as follows:
0.40% of the average daily net assets of the Fund.
For purposes of calculating the Fee, the Fund’s average daily net assets shall be determined in accordance with the Fund’s governing documents as of last business day of each calendar month. The sub-advisory fee is due and payable monthly within thirty (30) days of the invoice receipt date. Invoices will be submitted to the Adviser on a monthly basis in arrears.