DEPOSITARY AGREEMENT

Transcription

1 DEPOSITARY AGREEMENT between Heeneman & Partners fondsmanagement B.V. (as the "AIFM") and and Stichting Supermarktfonds.nl as legal owner of the assets of the AIF (as the Title Holder ) on the one part and CACEIS BANK LUXEMBOURG AMSTERDAM BRANCH (as the "Depositary") on the other part RE Supermarktfonds.nl (as the "AIF") dated [Date] INVESTOR SERVICES Depositary Agreement Supermarktfonds.nl September 2016 Page 1

2 This Agreement is (i) dated as of the date mentioned on its cover page, (ii) effective as of the Effective Date and (iii) made: between HEENEMAN & PARTNERS FONDSMANAGEMENT B.V. a private company (Dutch besloten vennootschap), whose registered office is located at Buitenveldertselaan 106, 1081 AB Amsterdam, the Netherlands and which is registered with the Chamber of Commerce under number (the "AIFM") acting in its name, but on behalf of Supermarktfonds.nl, a mutual fund as mentioned in article 1:1 of the Dutch Act on Financial Supervision (the "AIF"); whereas any reference in this Agreement to the "AIF" is to be understood, where the context so allows, as being also a reference to the AIFM acting on its own account; and STICHTING SUPERMARKTFONDS.NL, a foundation incorporated under Dutch law and with registered office at Strawinskylaan 411, 1077 XX Amsterdam, the Netherlands, registered with the Chamber of Commerce under number , acting as legal owner of the assets of the AIF, hereafter referred to as the Title Holder ); on the one part; and CACEIS BANK LUXEMBOURG AMSTERDAM BRANCH (hereafter referred to as the Depositary ), with registered office at Gustav Mahlerlaan 310-B, 1082 ME Amsterdam, registered with the Chamber of Commerce under number incorporated as the branch in the Netherlands of CACEIS Bank Luxembourg S.A. CACEIS Bank Luxembourg S.A. is a société anonyme and qualifying as a credit institution under the laws of the Grand Duchy of Luxembourg, whose registered office is located at 5, Allée Scheffer, L-2520 Luxembourg and who is registered with the RCS under number B ); on the other part; All together are herein collectively referred to as the Parties and individually as a Party. whereas: (A) (B) (C) The AIF has been set up as a investment institution pursuant to article 1:1 of the AIFM Act and is managed by the AIFM (an alternative investment fund manager in the meaning of the AIFM Directive), all as more fully described in its Constitutive Documents and Offering Documents existing as of the date mentioned on the cover page of this Agreement; The AIF must accordingly appoint a depositary pursuant to Article 4:62n of the AIFM Act and the AIFM Rules, and the AIF has selected the Depositary to act as depositary for the AIF and the Depositary is ready and willing to act in such capacities subject to and in accordance with this Agreement; The core investment policy of the AIF is investing in direct real estate as set forth in its Constitutive Documents and as defined below in the definition table and in Schedule V. Investments, shall unless the AIFM indicates CACEIS otherwise, not concern Depositary Agreement Supermarktfonds.nl September 2016 Page 2

3 investments in assets that must be held in custody. The legal ownership of the assets is kept by the Title Holder. The Title Holder and the AIFM acting jointly represent the AIF. Accounts, if any, will be opened in the name of the Title Holder re the AIF. The AIFM performs the investment policy of the AIF and may initiate transactions for the AIF for the benefit of the investors in the Fund; (D) (E) Although it is acknowledged by the Parties that this Agreement mainly purports to fulfil the legal requirements referred to under (B), the Parties also acknowledge that this Agreement purports to govern certain aspects of their relationship which fall outside of these legal requirements; It is more specifically acknowledged by the Parties that this Agreement purports to set out in writing the terms and conditions relating to the services which the Depositary may provide from time to time to the AIFM pursuant to this Agreement and which may come in addition to those required by or rendered in the context of the AIFM Rules; Now the Parties hereby agree as follows: Definitions I. DEFINITIONS & INTERPRETATION In this Agreement, each of the terms listed below in bold characters on the left will have the meaning mentioned opposite to them on the right: Account AFM Any of the accounts, Cash Account, Third Party Cash Account, Custodiable Assets Account, and/or Other Assets Account, as defined below, duly opened and maintained from time to time by the Title Holder in relation to the Assets of the AIF. The Dutch supervisory authority for behaviour of financial market parties, called Stichting Autoriteit Financiële Markten. Agreement AIF AIF Documents AIFM AIFM Act AIFM Directive This agreement (including any schedule or appendix thereto as well as any outstanding Operational Memorandum) as it may be amended or supplemented from time to time via side letters or other written instruments executed by the Parties. Has the meaning given to it in the recitals of this Agreement. This term is defined in Article 22.2 of this Agreement. Has the meaning given to it in the recitals of this Agreement The Dutch Act on Financial Supervision relating to alternative investment fund managers, as amended from time to time Directive 2011/61/EU of the European Parliament and of the Council of 8 June 2011 on Alternative Investment Fund Managers. Any reference in this Agreement to an article of the AIFM Directive must also be understood as a reference to the Depositary Agreement Supermarktfonds.nl September 2016 Page 3

4 corresponding article of the AIFM Act. AIFM Guidelines Any binding guidelines or other delegated acts and regulations issued from time to time by the EU relevant authorities pursuant to the AIFM Directive and/or the AIFM Regulation. AIFM Regulation Commission Delegated Regulation (EU) No 231/2013 of 19 December 2012 supplementing Directive 2011/61/EU of the European Parliament and of the Council with regard to exemptions, general operating conditions, depositaries, leverage, transparency and supervision. AIFM Rules The corpus of rules formed by the AIFM Directive, the AIFM Regulation and the AIFM Guidelines, as well as by any national laws and regulations (such as the AIFM Act) which are (i) taken in relation to (or transposing either of) the foregoing and (ii) which are applicable to this Agreement. AML Act Asset Authorised Person Business Day Cash Cash Account The Dutch act on the prevention of money laundering and financing of terrorism (Wet ter voorkoming van witwassen en financieren van terrorisme). As the context requires, all or any part of any financial and non-financial instrument, cash, claim or any other assets or property from time to time acquired or contemplated to be acquired by the Title Holder re the AIF This term is defined in Article 32.1 of this Agreement. Any day which is a full Depositary business day in the Netherlands. Any cash belonging to the Title Holder re the AIF which is booked on a cash account opened in due compliance with Article 21.7 of the AIFM Directive. Any Account that may be opened in the name of the Title Holder re the AIF to the credit of which will be registered Cash, whether denominated in Euro or in any other currency as agreed between the Parties. Compulsory Rules Constitutive Documents Prescriptive rules of law from which the Parties may not be relieved via common agreement, whether or not these rules result from the AIFM Rules and irrespective of their national or EU origin and nature. The constitutional documents of the AIF, as amended from time to time. Depositary Agreement Supermarktfonds.nl September 2016 Page 4

5 Correspondent(s) CSSF Custodiable Assets Account Custodiable Asset Any entity (including but not limited to the Depositary's subsidiaries and affiliates) to which the Depositary has delegated all or part of its safekeeping duties in relation to Custodiable Assets (in due compliance with Article of the AIFM Directive) or in relation to Cash, it being understood that such delegates form an integral part of the Depositary s custody network. An exhaustive list of Correspondents per geographical regions is enclosed in Schedule V to this Agreement Commission de Surveillance du Secteur Financier, the Luxembourg financial supervisory authority. Any of the accounts duly that may be opened and maintained from time to time in the name of the Title Holder re the AIFF (or as the case may be in the name of the AIFM acting on behalf of the AIF) with the Depositary and which is intended to record, Custodiable Assets. A Financial Instrument to be held in custody in the meaning of Article 21.8.(a) of the AIFM Directive, Recital (100) and Article 88 of the AIFM Regulation which belongs to the Title Holder re the AIF (or as the case may be and if applicable to the AIFM acting on behalf of the AIF) or is held by a Custodiable Asset SPV, if applicable (or as the case may be and if applicable by the AIFM acting on behalf a Custodiable Asset SPV). Data Data Processing Any data, information, text, drawings, records, documents and other materials which are embodied in any medium (including any electronic, optical, magnetic or tangible media). The Data include all Data held in the possession or under the control of the Depositary from time to time and containing information relating to the affairs of the AIF and its Unitholders which has been (a) provided to the Depositary by or on behalf of the AIF or (b) obtained or generated by the Depositary in the context of this Agreement. This term is defined in Article 51.1 of this Agreement. Data Protection Laws This term is defined in Article 51.1 of this Agreement. Data Subject Depositary Director This term is defined in Article 51.7 of this Agreement. CACEIS Bank Luxembourg Amsterdam Branch. Any of the members of the governing body of the AIFM. Depositary Agreement Supermarktfonds.nl September 2016 Page 5

6 Directive 2006/73/EC DNB Dutch Supervisory Authorities Effective Date Contractually Agreed Assets The Directive 2006/73/EC dated 10 th August 2006 implementing directive 2004/39/EC as regards organisational requirements and operating conditions for investment firms and defined terms for the purpose of such directive. De Nederlandsche Bank Stichting Autoriteit Financiële Markten for supervision on behaviour of market parties and De Nederlandsche Bank for capital requirements As per the date of approval of the prospectus by the AFM This term is defined in Article 6.1 of this Agreement. Financial Instrument Financial instruments held in custody within the meaning of Article 21.8.(a) of the AIFM Directive and Article 88 of the AIFM Regulation. Force Majeure Event This term is defined in Article 36.2 of this Agreement. Good Industry Practice Intellectual Property Right Issuer The level of skill, care and diligence that would reasonably be expected from an Dutch reputed and experienced depositary performing the same or substantially similar duties and obligations as those to be performed by the Depositary pursuant to this Agreement in the EU to a customer substantially similar to the AIFM and in accordance with the duty of care rules as applicable to the Depositary or the AIFM from time to time under this Agreement. Any right in inventions, patents, trademarks and service marks, rights in designs and processes, rights in trade names and business names, copyrights (including for the avoidance of doubt, rights in computer software and rights in any reporting, analysis or other consultancy deliverables produced by the Depositary), and database rights (whether or not any of these is registered and including applications for registration) and all rights or forms of protection of a similar nature or having equivalent or similar effect to any of these which may subsist anywhere in the world. This term is defined in Article 29 of this Agreement. Depositary Agreement Supermarktfonds.nl September 2016 Page 6

7 Joint Parties Loss of Custodiable Assets MiFID Directive Non-Contractually Agreed Assets Notice Offering Document Collectively the AIF [the Management Company], the AIFM, the Depositary and the Title Holder, each a Joint Party. This term is defined in Article 37.1 of this Agreement. Directive 2004/39/EC of the European Parliament and of the Council of 21 April 2004 on Markets in Financial Instruments. This term is defined in Article 6.1 of this Agreement. This term is defined in Schedule III to this Agreement. The offering document of the AIF as amended from time to time. Operational Memorandum Any handbook or other written document setting out technical and operating rules, roles, procedures, flows of information and reporting, as well as a series of practical terms and means whereby or pursuant to which the Parties may fulfil certain of their respective obligations and duties pursuant to this Agreement. Other Assets Account Any account that may be opened and maintained from time to time by the Depositary for the purpose of recording positions in Other Assets of the AIF and in order to fulfil certain of its safekeeping duties in relation to Other Assets. Other Asset An asset in the meaning of Article 21.8.(b) of the AIFM Directive and Recital (103) and Article 88.2 of the AIFM Regulation other than a Custodiable Asset which is owned by the Title Holder re the AIF. Proper Instruction Real Estate Objects Record Keeping Services This term is defined in Article 32.1 of this Agreement The direct real estate comprising of the number shopping centres and supermarkets as described in Schedule V of this Agreement Means the record keeping services to be provided by the Depository in relation to Other Assets in accordance with Article 10.1 of this Agreement. Depositary Agreement Supermarktfonds.nl September 2016 Page 7

8 Taxes Third Party This term is defined in Article 30 of this Agreement. Any entity referred to in points (a), (b) and (c) of Article 18(1) a), b) and c) of Directive 2006/73/EC, or another entity of the same nature, provided that such entity is subject to effective prudential regulation and supervision which have the same effect as Union law and are effectively enforced and in accordance with the principles set out in Article 16 of Directive 2006/73/EC, to which the Depositary has delegated all or part of its safekeeping duties in relation to Custodiable Assets in due compliance with Article of the AIFM Directive or in relation to Cash and which does not qualify as a Correspondent pursuant to this Agreement. For the avoidance of doubt Third Party includes a Prime Broker, an EU credit institution and/or a non-eu Depositary which are not subsidiaries or affiliates of the Depositary and do not form an integral part of the Depositary s network. Third Cash Counterparty Any entity referred to in points (a), (b) and (c) of Article 18(1) a), b) and c) of Directive 2006/73/EC, or another entity of the same nature, provided that such entity is subject to effective prudential regulation and supervision which have the same effect as Union law and are effectively enforced and in accordance with the principles set out in Article 16 of Directive 2006/73/EC whit which the AIF or the AIFM on its behalf may maintain Cash accounts, and which does not qualify as Correspondent or Third Party. Unitholders Units The holder(s) of Units. The units or interests representing capital issued by the AIF in any form whatsoever. I INTERPRETATION 1.1 In this Agreement, unless the context otherwise requires, (a) references to any provisions of legislation, delegated legislation, regulations or rules shall be construed as references to such provisions as replaced, re-enacted, extended or amended from Depositary Agreement Supermarktfonds.nl September 2016 Page 8

9 time to time (whether before or after the date hereof), and (b) references to any provision of an EU Directive shall be construed as a reference to the applicable provision of the relevant national law transposing such provision. 1.2 The headings in this Agreement are included for convenience only and shall not affect the interpretation of this Agreement. 1.3 Subject to the Compulsory Rules, the duties, obligations and liabilities of the Depositary are limited to what is expressly stated in this Agreement and any amendment thereto must be subject to an express and written agreement between the Parties. 1.4 The Parties agree that reference in this Agreement to the AIF is to be understood as being also a reference (i) to the AIFM in each case where the relevant provision of the Agreement corresponds to a provision of the AIFM Rules making an obligation to the AIFM (as the case may be in addition to that made to the AIF), and/or (ii) in any other case where the context allows, and/or (iii) to the AIFM acting on behalf of the AIF in each case where the relevant provision of the Agreement corresponds to a provision of the AIFM Rules making a reference to the AIFM acting on behalf of the AIF. The Parties agree that notwithstanding the foregoing clarification the duties and obligations of the AIF respectively the AIFM limited to the requirements set forth under Compulsory Rules and in no case the AIF or the AIFM s liability shall be understood as a joint liability. 1.5 Notwithstanding anything to the contrary in this Agreement, the Parties agree that none of the limitations of liability or responsibility which the Parties may agree vis-à-vis each other pursuant to this Agreement or otherwise may be construed as a limitation of the obligations imposed by Compulsory Rules. In the event of a conflict between the provisions of this Agreement including it s annexes and the Compulsory Rules, the Compulsory Rules will prevail. II. APPOINTMENT ACCOUNT OPENING ASSISTANCE AND INFORMATION 2. Appointment 2.1 The AIFM hereby appoints the Depositary, on the terms and conditions, subject to the provisions and within the strict limits, of this Agreement and the Compulsory Rules, (i) as depositary pursuant to Article 4:62n AIFM Act for each AIF managed by the AIFM and the AIFM Rules and (ii) as provider for other services; and the Depositary hereby confirms its acceptance of such an appointment commencing on the Effective Date and the related responsibilities strictly within the limits defined hereafter. The legal ownership of the assets is held by the Title Holder. 2.2 The Depositary will perform its duties and obligations pursuant to this Agreement in accordance with Good Industry Practice. Such Good Industry Practice expected from the Depositary will in particular but not exclusively be applied with regard to safekeeping duties as described under chapter III of this Agreement in view of ensuring a high standard of investor protection and the Depositary acting independently and solely in the interest of the Unitholders of the AIF. The Depositary shall at all times comply with (i) this Agreement (including the Operational Memorandum and any agreement or appendix attached thereto), (ii) any and all AIFM Rules, (iii) the Compulsory Rules, (iv) the Offering Document, (v) the Depositary Agreement Supermarktfonds.nl September 2016 Page 9

10 Constitutive Documents and, where applicable, (vi) any Proper Instruction in line with Article 21 (10) AIFM Directive. 2.3 The Parties, in their respective roles, shall act honestly, fairly, professionally, independently and in the interest of the AIF and the Unitholders of the AIF. 2.4 In order to comply with the requirement of Article 83.1.(c) of the AIFM Regulation, the Parties hereby already state that the Depositary s liability (as strictly resulting from the Compulsory Rules and the AIFMD Rules) shall not be affected by any delegation of the Depositary s custody functions unless the Depositary has discharged itself of its liability in accordance with Article or of the AIFM Directive. Depositary Agreement Supermarktfonds.nl September 2016 Page 10

11 3. Opening of Custodiable Assets Accounts, Other Assets Accounts and Cash Accounts 3.1 The AIFM hereby authorises the Depositary to open, maintain and keep in its books in the name of the Title Holder re the AIF, one or more Custodiable Assets Account(s) in which the AIF's relevant Custodiable Assets may be registered as being in custody, if and when appropriate, in the manner and under the terms specified in this Agreement. 3.2 The AIFM, hereby further authorises the Depositary to open, maintain and keep from time to time one or more Other Assets Account(s) for the purpose of recording Other Assets of the AIF in its books and records and in order to fulfil certain of its safekeeping duties in relation to Other Assets. 3.3 The AIFM hereby further authorises the Depositary to open, maintain and keep from time to time one or more Cash Account(s),in the manner and under the terms specified in this Agreement. 3.4 Any Custodiable Assets Account, Other Assets Account and Cash Accounts referred to in Articles 3.1, 3.2 and 3.3 respectively may be stated in as many sub-accounts as it may prove useful or necessary to open from time to time. and some of which may notably be opened in relation to a given Sub-Fund or a class of Units issued by the AIF. Any reference in this Agreement to the word Custodiable Account, Other Assets Account or "Cash Account" respectively may or even must, as the case may be, be interpreted, as far as this is needed or where the context so requires, as a reference to one, several or all of these sub-accounts. 3.5 As the case may be and in relation to opening of any Custodiable Assets Account, Other Assets Account or Cash Account, the Title Holder hereby agree to duly fill in, complete and execute any account opening form as such form shall be established and communicated by the Depositary to the Title Holder from to time to time. 4. AIFM s full assistance, cooperation and information duty 4.1 The AIFM hereby commits to provide, upon the Effective Date and on an on-going basis, whenever appropriate, on its own initiative and on a best endeavour basis any information and pro(active) participation that the Depository may reasonably require to ensure that it will be able to fulfil its duties under this Agreement and in particular the Record Keeping Duties and its obligations pursuant to Article 21(9) of the AIFMD. 4.2 Under circumstances where the relevant information shall be communicated to the Depositary by an agent or delegatee duly appointed by the AIFM, the latter will use its best endeavours to ensure that such agent or delegatee provides the information without undue delay to the Depositary. 4.3 More detailed information regarding this full assistance and information duty requested from the AIFM is contained/described in Schedule I Any failure of the AIFM to ensure the cooperation, involvement and providing exact, up-to-date, complete and exhaustive information in compliance with the provisions of this Article and Schedule I thereto entitles the Depositary to enforce the escalation procedures as described in Article 25 of this Agreement. Depositary Agreement Supermarktfonds.nl September 2016 Page 11

12 5. Classification of assets III. SAFEKEEPING A. INTRODUCTION 5.1 In accordance with AIFM Rules, the scope of application and content of certain Depositary duties and related liabilities as set forth in this agreement will differ from Custodiable Assets to Other Assets. 6. Geographical regions of investment and categories/types of Assets 6.1 The Parties acknowledge that, in order to allow the Depositary to assess and monitor its (custody) risks and to comply with the provisions of Article 83.1 (b) of the AIFM Regulation, this Agreement shall provide sufficient detail on the geographical regions and categories/types of Assets in which the AIFM may invest. For this purpose and in compliance with the AIF Documents, the Parties have agreed on the lists of geographical regions and types of Assets in which the AIF is exhaustively authorised to invest and which are fully described in Schedule V to this Agreement. An Asset which, in the context of a specific list, is authorized pursuant to this list and which the AIF is not prevented to invest in pursuant to any of the AIF Documents shall be referred to as an Contractually Agreed Asset whereas any other assets will be referred to as a Non-Contractually Agreed Asset. 6.2 The AIFM may from time to time propose to the Depositary the addition or removal of a geographical region and/or category/type of Asset to or from any of the outstanding lists referred to in Article 6.1 above by sending a written request to that effect to the Depositary in compliance with the provisions of Schedule III to this Agreement, which notice will contain at least the information listed in Schedule V to this Agreement. The Depositary has reasonable discretion to refuse any such proposed amendment or to approve it subject to certain reasonable conditions. 6.3 The Depositary may, on the basis of any material change on the custody risks associated with investments on a specific geographical region and/or category/type of Assets, which would be identified by the Depositary in accordance with the AIFM Rules, request the AIFM to replace or remove at any time such geographical region and/or category/type of Asset to or from any of the outstanding lists referred to in Article 6.1. In that event, the Depositary must notify beforehand the AIFM of any such material change in due compliance with the provisions of Schedule III to this Agreement to enable each Party to ensure the proper performance its obligations and to ensure that the Depositary and the AIFM take together the necessary related measures, particularly regarding transactions in process. B. SAFEKEEPING OF CUSTODIABLE ASSETS 7. General safekeeping duties in relation to Custodiable Assets 7.1 The Depositary may receive from time to time in its custody Custodiable Assets from the AIF. No Asset shall be deemed or claimed by the AIF to be in the custody of the Depositary unless such Asset qualifies as a Contractually Agreed Asset. 7.2 For each Custodiable Asset under custody, the Depositary undertakes to: Depositary Agreement Supermarktfonds.nl September 2016 Page 12

13 a) Arrange for the proper registration of the Custodiable Assets under custody in segregated Custodiable Assets Accounts opened in the name of the Title Holder re the AIF, so that they can be clearly identified as belonging to the AIF in accordance with Compulsory Rules at all times; b) Maintain records and segregated Custodiable Assets Accounts in a way that ensures their accuracy and in particular record the correspondence with the Custodiable Assets held for the AIF by the Title Holder; c) Arrange for the Custodiable Accounts and records at the Depositary to be reconciled on a regular basis with the accounts and records of any Correspondent or any Third Party to whom custody functions are delegated in accordance with the provisions of section B Delegation of safe-keeping below ; d) Exercise all due skill, care in relation to the Custodiable Assets to ensure a high standard of protection of the AIF and its Unitholders; e) Ensure that all relevant custody risks through the custody chain are assessed and monitored and the AIF is informed of any material risk identified; f) Ensure that adequate organisational arrangements are introduced to minimise the risk of Loss or diminution of Custodiable Assets, or of rights in connection with those Custodiable Assets as a result of fraud, poor administration, inadequate registering or negligence; g) Ensure that the AIF s Title Holder s ownership right or the ownership right of the AIFM acting on behalf of the AIF over the asset is verified. 7.3 The Depositary undertakes to arrange for the segregation of AIF Custodiable Assets held in the Custodiable Assets Accounts of those assets held in custody for the Depositary s other clients and for the Depositary s own accounts in such a way that they can at any time be clearly identified as belonging to the Title Holder re the AIF. 7.4 The AIF undertakes that any Custodiable Asset deposited on an Custodiable Account shall be genuine, in good physical condition, shall not be the subject of any challenge, forfeiture nor be held in escrow, all the coupons not yet accrued shall be attached and all the documents necessary for its registration shall also be deposited. 7.5 The Depositary s safe-keeping duties referred in Articles 7.2 and 7.3 above apply on a look-through basis to underlying assets held by Custodiable Asset SPV if applicable. This look-trough provisions shall not apply to funds of funds structures or master-feeder structures provided that they have a depositary which keeps in custody the assets of these funds. Depositary Agreement Supermarktfonds.nl September 2016 Page 13

14 7.6 The Depository shall not re-use any Custodiable Assets that have been entrusted to it for its safekeeping without the express prior consent to the re-use. 8. General Principles B. SAFEKEEPING OF OTHER ASSETS 8.1 The Depositary shall verify the AIF s ownership over such Other Assets and maintain a record of those Other Assets, as such services are more fully described in Articles 9 and 10 of this Agreement. 8.2 For the avoidance of doubt, the Depositary shall have no obligation to hold Other Assets in custody within the meaning of Article 21(8) of the AIFM Regulation or to return Other Assets of an identical type or corresponding amount to the Title Holder re the AIF. 8.3 The Depositary s safe-keeping duties as referred to in Article 90(1) and 90(4) of the AIFM Regulation and the provisions of Articles 9, 10 and 11 of this Agreement shall apply on a look-through basis to underlying assets held by financial and, as the case may be, or legal structures established by the AIF or by the AIFM acting on behalf of the AIF for the purposes of investing in the underlying assets and which are controlled directly or indirectly by the AIFM acting on behalf of the AIF. This look-trough provisions shall not apply to funds of funds structures or master-feeder structures where the underlying funds have a depositary which provides ownership verification and Record Keeping Services for this fund s assets. 9. Verification of the ownership of Other Assets 9.2 The Depositary will, in accordance with Good Industry Practice, verify the ownership of the Title Holder re the AIF of Other Assets based on information or documents provided to it by the AIF (or any third party designated by the AIF for this purpose) and in particular on any document testifying the legal ownership, in terms and conditions mentioned in Schedule I to this Agreement. Without the provision of such information and documents the Depository shall not be in the position to perform its duties in relation to this article. 9.3 The AIFM acknowledges that such verification may involve the challenge by the Depository, in accordance with Good Industry Practice, of the validity, accuracy and/or completeness of the information and/or documents provided to it in connection with the verification of the Title Holder s ownership rights over the Other Assets. 9.3 Without prejudice to what is set forth in this Agreement, the Depositary reserves itself the right to revert to external evidence, as written in Article 21.8 (b) (ii) AIFM Directive, should it consider that, based on the information received from the AIFM and within the limits of Good Industry Practice, it does not possess sufficient and reliable information to be satisfied of the Title Holder re the AIF s ownership right over the Assets. Where the Depository wishes to revert to external evidence in accordance with the previous sentence, the Depository will inform the AIFM. It is contemplated by the Parties that in some circumstances this may involve reverting to third parties at the expense of the AIF. 10. Record Keeping Services for Other Assets 10.1 With the limits prescribed by Article 21.8.(b) of the AIFM Directive and Article 90 of the AIFM Regulation, the Depositary shall maintain a register of Other Assets for Depositary Agreement Supermarktfonds.nl September 2016 Page 14

15 which it is satisfied that the Title Holder re the AIF holds the ownership or over which the Title Holder re the AIF may exercise rights (the Record Keeping Services ), it being understood that such records do not evidence that Other Assets are deposited in custody with the Depositary Without prejudice to the Depositary s duties pursuant to Article 11 of this Agreement, the Record Keeping Services of the Depositary will be performed exclusively on the basis of information provided to the Depositary by the AIFM and as the case may be processed pursuant to Instructions from the AIFM and/or from any third-party designated by the AIFM to provide such information in a timely manner to the Depositary Pursuant to the Record Keeping Services, the Depositary will register in its records, in the name of the Title Holder re the AIF, the characteristics of Other Assets and where applicable their notional amounts. The Depositary shall also register all relevant changes occurred upon transactions initiated by the AIFM in such Other Assets in accordance with the terms and conditions as defined in the Operational Memorandum The Depositary shall be able to provide the AIFM at request with a comprehensive and up-to-date inventory of the AIF s Other Assets, including their notional amounts, and at least with the frequency as laid down in the Operational Memorandum 10.5 The AIFM shall implement procedures to perform consistency checks between the Other Assets laid down in the AIFMs records and the Other Assets for which the Depositary is satisfied, in accordance with the foregoing provisions, that the Title Holder re the AIF holds the ownership, as laid down in the register of the Depositary 10.6 Under no circumstances will the Depositary be held liable or responsible for errors or omissions in the Depositary s register of Other Assets due to false or wrong information provided by the AIFM, or as the case may be external parties; however the Depositary shall reconcile its statements concerning Other Assets with the information provided to it by the AIFM or as the case may be external parties whereby the Depositary will take appropriate steps in case of discovery of discrepancies or errors during this reconciliation. 11. Depositary s due diligence in relation to Other Assets 11.1 The AIFM hereby undertakes to provide to the Depositary, upon commencement, for the purpose of the initial risk inventarisation and ownership verification of the Other Assets in accordance with Article 9, and for the creation of the Depositary s register of Other Assets in accordance with Article 10, and on an ongoing basis, with relevant information, documents and proceduresso as to verify that such Other Assets acquired by the Title Holder re the AIF are properly registered in the name of the Title Holder re the AIF and that registered Other Assets cannot be assigned, transferred, exchanged or delivered without the Depositary having been informed of such transactions. Such AIFM s information, documents and procedures shall further ensure that the Depositary has access without undue delay to documentary evidence of each transaction and position in relation to such Other Assets. Furthermore, such AIFM s procedures and documents shall ensure that the Depositary is provided without undue delay with certificates or other documentary evidence every time Other Assets are sold or acquired. The frequency of review and deliverance of the AIFM procedures shall be described in the Operational Memorandum. Depositary Agreement Supermarktfonds.nl September 2016 Page 15

16 11.2 In accordance with the provisions of Article 20(ii) of this Agreement and as further described in the Operational Memorandum and as required under the oversight duties applicable to the Depositary as set forth in the AIFM Rules, the Depositary will perform a reconciliation and verification of processes and the procedures which are under the responsibility of the AIFM and, as applicable, the Depositary, to ensure that it is able to perform its obligations in relation to Other Assets as set forth under the AIFM Rules and will set up and implement escalation procedures, as further described in Article 22 of this Agreement, where any anomaly would be detected. 12. General requirements IV. CASH MONITORING 12.1 The Depositary shall properly monitor all the AIF s cash flows, and shall in particular ensure that all payments made by or on behalf of investors upon the subscription of Units of the AIF have been received. The Depositary shall further ensure that all Cash of the AIF has been booked in the books of Third Cash Counterparties, which are respectively opened in the name of the Title Holder re the AIF The Depositary s cash monitoring duties referred in Article 12 of this Agreement and article 86 of the AIFM Regulation do not apply on a look-trough basis to Cash held, as the case maybe, by legal structures controlled directly or indirectly by the AIF. The Depositary may not delegate any of the cash monitoring duties referred in Article 12 of this Agreement. 13. AIFM s duties in relation to cash monitoring 13.1 Where a cash account is opened and maintained within the books of a Third Party Cash Counterparty in accordance with the provisions of Article 12.1 above and the AIFM Regulation, the AIFM hereby undertakes that the Depositary shall be provided, upon commencement of its duties and on an on-going basis, with all relevant information the Depositary needs to comply with its obligations in terms of cash monitoring as these are set forth in the AIFM Rules In order to allow the Depositary to have access to all information regarding the AIF s cash accounts opened with Third Cash Counterparties and have a clear overview of all the AIF s Cash flows (resulting from subscriptions, redemptions, corporate actions and/or transactions), the AIFM is required, in accordance with the provisions of Article 13.1 of this Agreement, to ensure that the Depositary: (a) is informed, upon its appointment, of all existing Third Cash Counterparty and accounts opened with them in the name of the Title Holder re the AIF; (b) is informed at the opening of any new Cash account with a Third Cash Counterparty by the Title Holder re the AIF ; (c) is provided with all information related to Cash held with Third Cash Counterparties, including but not limited to the account opening contract and balances and cash movements of every Third Cash Counterparty account; (d) is provided with information about payments made by or on behalf of investors upon the subscription of Units of the AIF at the close of each business day when Depositary Agreement Supermarktfonds.nl September 2016 Page 16

17 the Title Holder re the AIF or a party acting on behalf of it, such as a transfer agent receives such payments or an order from the investor; (e) is provided with all other relevant information it needs to make sure that the payments are then booked in the Third Party Accounts where AIF s Cash is maintained. The AIFM shall ensure that al instructions and information related to Third Cash Counterparty accounts are sent to the Depositary, so that the Depositary is able to perform it s own reconciliation procedure. 14. DEPOSITARY S MONITORING OF THE AIF S CASH FLOWS The Depositary shall ensure effective and proper monitoring of the AIF s cash flows, as specified in detail in the Operational Memorandum and in particular it shall at least: (a) ensure that all Cash of the AIF is booked in Accounts opened with a Third Cash Counterparty in the relevant markets where cash accounts are required for the purposes of the AIF s operations; (b) implement effective and proper procedures to reconcile all cash flow movements and perform such reconciliations on a daily basis or, in case of infrequent cash movements, when such cash flow movements occur. For this purpose the Depositary may rely on material tasks executed by a Third Party with respect to cash flow monitoring or may use information received with respect to cash flow reconciliations performed by a third party, provided that the Depositary has performed an adequate due diligence on the reconciliation processes performed by the Third Party; (c) taking the principle of proportionality into account the Depositary will, at commencement of its duties and during the review of procedures write in the Operational Memorandum in detail what is agreed as a significant cash flow; (d) review periodically the adequacy of those procedures including through a full review of the reconciliation process at least once a year and ensuring that all Accounts opened by the Title Holder re the AIF are included in the reconciliation process; (e) monitor on an on-going basis the outcomes of the reconciliations and actions taken as a result of any discrepancies identified by the reconciliation procedures and notify the AIFM if an irregularity has not been rectified without undue delay and also the competent authorities if the situation cannot be clarified and, as the case may be, or corrected. V. DELEGATION A. GENERAL DELEGATION PRINCIPLES 15. General delegation principles and conditions 15.1 Subject to Compulsory Rules and to the specific regime applicable in case of delegation of safekeeping duties referred to in Section B below, the AIFM agrees that the Depositary may delegate or outsource the performance of any of its duties, tasks, Depositary Agreement Supermarktfonds.nl September 2016 Page 17

18 obligations or functions under this Agreement to any one or more of its affiliates or to any third-party service provider provided that: (i) the relevant authorities approve such sub-contract/delegation where necessary; (ii) (iii) (iv) as the case may be, relevant disclosure is inserted in the Offering Documentation,which the AIFM hereby agrees to amend accordingly; the Depository shall remain responsible and liable for the delegated duty, task, obligation and/or function as if it had been performed by the Depository itself; when delegation concerns a third party service provider, the Depository shall provide to the AIFM for that purpose and at least on an annual basis thereafter, information on the appointed service provider, including information on criteria to select the latter and on-going monitoring 16 General regime and principles B. DELEGATION OF SAFE-KEEPING DUTIES 16.1 Without prejudice to the generality of Section A above, the Parties acknowledge that and in accordance with the AIFM Rules and in particular with the provisions of Article of the AIFM Directive, the Depositary is allowed to delegate the task of carrying out the safekeeping duties in relation to Other Assets, to the extent that the following conditions, are fulfilled: (a) (b) (c) (d) The tasks are not delegated with the intention of avoiding the requirements of AIFM Directive; The delegation of the safekeeping duties is subject to an objective reason such as without being restrictive the regulatory obligation to entrust the safekeeping duties to a local entity; The Depositary shall exercise all due skill, care and diligence in the selection and the appointment of the delegatee to whom it intends to delegate parts of its duties and, in particular, shall assess whether the Correspondent or Third Party has the structures in place and expertise adequate and proportionate to the nature and complexity of the relevant assets of the AIF. In order to fulfil such obligation the Depositary shall implement and apply appropriately documented due diligence in accordance with the provisions of Article 98 of the AIFM Regulation; The Depositary shall ensure that the relevant Correspondent or ThirdParty shall meet at all the times the conditions set forth in Article ( d) of the AIFM Directive and in particular that the Correspondent or Third Party: a. has the structures and the expertise that are adequate and proportionate to the nature and complexity of the relevant Assets; b. for Custodiable Assets, is subject to effective prudential regulation, including capital requirements, and supervision in its jurisdiction and is subject to an external periodic audit to ensure that the Financial Instruments are in its possession; Depositary Agreement Supermarktfonds.nl September 2016 Page 18

19 c. segregates the assets of the Depositary s clients from its own assets and from the assets of the Depositary in such a way that they can at any time be clearly identified as belonging to the relevant client or the Depositary, in due compliance with the AIFM Rules (more specifically Article 21.8 and 10 of the AIFM Directive) and the provisions of Article 18.2 of this Agreement. d. does not make use of the assets without the prior consent of Title Holder re the AIF, the AIFM and prior notification to the Depositary; e. complies with the general obligations and prohibitions as set forth in Article 21.8 and 10 of the AIFM Directive The Depositary shall ensure that a Correspondent or Third Party referred to in Article 16.1 above may in turn outsource their functions or services to a sub-delegate only where the following conditions are complied with: (a) (b) (c) the Correspondent or Third Party has received the Depositary's express prior written consent approving such delegation; the Correspondent or Third Party shall ensure that the sub-delegate offers at least the same level of competence and guarantee of services as the Correspondent or Third Party and in particular complies with conditions contained in Article of the AIFM Directive; the Correspondent or Third Party, in accordance with the requirements of the AIFM Rules, will monitor the sub-delegate to ensure that foregoing conditions and criteria for delegation (in particular the requirements of Article 98.4 and 99.3 of the AIFM Regulation) as well as obligations relating to safekeeping normally incumbent on the Depositary as described in the Agreement apply mutatis mutandis to the sub-delegate; and ensure that the Custodiable Assets are protected from any insolvency of such sub-delegate. For the avoidance of doubt, any sub-delegation by a Correspondent or Third Party as referred to in Article of the AIFM Directive shall not affect the responsibility or the liability of the Depositary In accordance with Article last paragraph of the AIFM Directive combined with its corresponding recital (41), delegation of the custody of assets by the Depositary to a central securities depositary should not be considered to be a delegation of custody functions for the purpose of Article of the AIFM Directive; the Depositary shall not be subject to the limitations and requirements referred to in Articles 16.1 and 16.2 above in such a case In the context of the Depositary dealing in registered securities and registering the registered securities in the Issuer s relevant register in a capacity as agent, the agent in charge of holding the relevant register is not a third-party to whom the custody of Custodiable Assets in accordance with point (a) of paragraph 8 has been delegated in the meaning of Article of the AIFM Directive. Such registrar or transfer agent, appointed to hold the register of the financial instruments issued by an Issuer does not hold in custody the financial instruments so recorded in the relevant register and hence direct registration of a party in such a register shall not qualify as an entrustment of custody of Custodiable Assets by this party with this agent The list of the Correspondents, and Third Parties, with which AIFM on behalf of the AIF has contracted and to which the Depositary is allowed to delegate its safekeeping Depositary Agreement Supermarktfonds.nl September 2016 Page 19

20 duties, at the Effective Date is enclosed to this Agreement as Schedule V. Any amendment to Schedule V will be notified to the Depositary, the Title Holder and the AIFM. Upon request, information on the criteria used to select the third party and the monitoring process shall be described to the AIF and the AIFM If one or more Third Party (ies) is required to be removed from Schedule V at the request of either Party, or the Depositary or the AIFM foresees the removal, the Depositary and the AIFM shall co-operate to ensure an orderly handover of any duties or functions carried out by such Third Party to the Depositary or such other Correspondent or Third Party as the Depositary may specify. Specific commitments in relation to the delegation of safe-keeping duties in relation to Custodiable Assets 17. Due diligence (a) 17.1 In order to fulfil its obligations as set forth in Article 16.1 of this Agreement and the AIFM Rules, the Depositary shall, in compliance with Article 98 of the AIFM Regulation: implement and apply an appropriate documented due diligence procedure for the selection and on-going monitoring of Correspondents or Third to ensure that any such Correspondent or Third Party continues to comply with the appointment criteria and with the Depositary s standards, such procedure to be reviewed at least once a year; (b) (c) (d) provide to the AIFM or AIF, on request, a copy of such procedure; Assess the regulatory and legal framework, including country risk, custody risk and the enforceability of the Correspondent s or Third Party s contracts. That assessment shall in particular enable the Depositary to determine the potential implication of an insolvency of the Correspondent or Third Party for the assets and rights of the AIF. If the Depositary becomes aware that the segregation of assets is not sufficient to ensure protection from insolvency because of the law of the country where the Correspondent or Third Party is located, it shall immediately inform the AIFM; ensure that any Correspondent or Third Party: (i) (ii) (iii) (iv) (v) has procedures and internal controls in place which are adequate to ensure that the Custodiable Assets of the AIF are subject to a high standard of care and protection; has the financial strength and reputation consistent with the tasks delegated. That assessment shall be based on information provided by the potential Correspondent or Third Party as well as other data and information, where available; has the operational and technological capabilities to perform the delegated custody tasks to a satisfactory degree of protection and security; shall take any appropriate actions to prevent or mitigate the loss of any relevant Custodiable Assets, where actual or potential external risks have been identified; guarantees a level of quality of services which is at least that of those services provided by the Depositary itself and, in any case, to allow operations to proceed in the normal course; Depositary Agreement Supermarktfonds.nl September 2016 Page 20