Depositary Agreement. entered into between BNP Paribas Securities Services and Kempen Capital Management N.V

Transcription

1 Depositary Agreement entered into between BNP Paribas Securities Services and Kempen Capital Management N.V

2 CONTENTS 1. Definitions. Interpretation Definitions Interpretation Appointment of the Depositary Appointment Duty of care No investment advice, asset management or risk management services Delegation Interaction between Local Regulations and Funds Requirements Safekeeping of the Assets of the Fund Form and type of Assets to be agreed Assets that are held in custody by the Depositary Assets that are not held in custody by the Depositary Cash held with the Depositary Other Depositary duties Cash monitoring Other monitoring duties Information flows Custody of Financial Instruments Method of Custody Custody services Income Corporate Actions Physical delivery of Financial Instruments Excluded Financial Instruments Settlement of Transactions Authorised Instructions to settle Transactions Settlement of Transactions prior to Actual Settlement Non-DVP settlements Additional services Credit facilities Proxy service Fund dealing services Auto FX Service

3 8. Taxes Responsibility for Taxes Services in relation to Taxes Tax documentation management service Reporting Authorised Instructions And Other Communications Authorised Representatives How to give Authorised Instructions Acceptance of Authorised Instructions by the Depositary Refusal of Authorised Instructions by the Depositary Contact details Subcustodians And CSD Authority to engage Subcustodians and CSDs Custody risks and insolvency risk Method of custody when using Subcustodians and CSDs Security interest and set-off Security Interest Set-off Right of retention Relation to other rights of the Depositary Prohibition of re-use Tasks to be Performed from Various Locations Fund structures Legal entity Contractual Funds Escalation Procedures Rights of the Depositary Amendment Fund Documents Information and review of the performance of the Depositary Right to inquire Books and records Access to books and records Conflicts of interest Authority of the Depositary No duty to warn Liability and indemnity General

4 19.2 Liability for loss of Financial Instruments held in custody Discharge if the Fund is an AIF Brokers Prevention of Money Laundering and Terrorist Financing Fees and Expenses Term and Termination Term Right to terminate Termination Representations and Warranties Representations and warranties of the Depositary Representations and warranties of the Fund Manager Representations and warranties of the Fund Confidentiality Data protection Miscellaneous Assignment Entire Agreement and amendments Proof No waiver Severability Fax and Internet NeoLink Choice of Law and Forum SCHEDULE I - THE FUNDS SCHEDULE II - FAX & INTERNET DISCLAIMER SCHEDULE III - NEOLINK CONDITIONS SCHEDULE IV - FORM FOR NOTIFICATION OF FUND SCHEDULE V - POWER OF ATTORNEY

5 AGREEMENT FOR AIF AND UCITS DEPOSITARY SERVICES This agreement for the provision of depositary services is entered into on February 15 th, 2016 ( Effective Date ) between: 1 BNP PARIBAS SECURITIES SERVICES S.C.A., a company organised under French law, having its registered office at 3 Rue d'antin, 75002, Paris, France, acting through its Amsterdam branch which has its offices at Herengracht 595, 1017 CE Amsterdam, the Netherlands (the "Depositary"); 2 KEMPEN CAPITAL MANAGEMENT N.V., a company organised under Dutch law, having its registered office at Beethovenstraat 300, 1077 WX Amsterdam, the Netherlands, acting in its capacity as manager of the Funds (the "Fund Manager"); 3 Each of the Funds listed in Schedule 1. WHEREAS A B C D The Fund Manager is an AIFM and UCITS Manager within the meaning of the AIFMD or UCITS Directive who provides investment management services to AIFs and UCITS; The Fund Manager has asked the Depositary to act as depositary within the meaning of the AIFMD and UCITS Directive for the Funds; The Depositary is in the business of providing depositary and custody services and is willing to provide such services to the Fund Manager and each of the Funds; and The Fund Manager, each of the Funds, and the Depositary wish to set out the terms applying between them. AGREE AS FOLLOWS: 1. DEFINITIONS. INTERPRETATION 1.1 Definitions In this Agreement, the following capitalised terms and expressions have the meaning assigned to them below. "Account" "Actual Settlement" means a Cash Account or a Custody Account; (i) in the case of a Transaction concerning the sale of Financial Instruments, means the receipt by the counterparty of the Financial Instruments to be delivered by the Fund and the receipt by the Depositary of the funds to - 5-

6 be paid to the Fund by that counterparty; ((ii) in the case of a Transaction concerning the purchase of Financial Instruments, means the receipt by the counterparty of the funds to be paid by the Fund and the receipt by the Depositary of the Financial Instruments to be delivered by that counterparty to the Fund; and (iii) in the case of the payment of Income, means the receipt by the Depositary of the Income to be paid to the Fund by the Issuer; "Agreed Term" "Agreement" "AIF" "AIFM" "AIFMD" "AIFMD Regulation" has the meaning ascribed to it in Clause (b); means this depositary agreement as amended and restated from time to time; means an AIF within the meaning of the AIFMD; means an AIFM within the meaning of the AIFMD; means the EU Alternative Investment Fund Managers Directive (2011/61/EU); means the European Commission Delegated Regulation (EU) No 231/2013 supplementing the AIFMD; "AIFMD Requirements" has the meaning ascribed to it in Clause 2.1.3; "AFM" "Assets" "Authorised Instruction" "Authorised Representative" means Autoriteit Financiële Markten; means the Financial Instruments, Cash and Other Assets that can be held by the Fund under the terms of the Fund Documents; means a written communication received by the Depositary which the Depositary believes in good faith to have been given by an Authorised Representative or any electronic communication received by the Depositary that has been transmitted subject to proper test or security procedures (if any) in accordance with the terms and conditions specified in this Agreement or the Service Level Agreement; means any individual identified as such in the Service Level Agreement, as amended and/or supplemented from time to time in accordance with Clause , duly authorised pursuant to all necessary corporate or other action (which - 6-

7 shall be evidenced by appropriate documentation received by the Depositary) to act on behalf of the Fund Manager in connection with this Agreement; "Auto FX Services" "Business Day" "Cash" "Cash Account" Change Change Control Process "Clearance System" means, subject to the Fund prior request and in accordance with the terms of the Clause 7.4 the service as further described in the Auto FX part of the Service Level Agreement, whereby the Depositary may provide automated foreign exchange services in respect of amounts paid by and to the Fund pursuant to or otherwise in connection with the Agreement (including, without limitation, the payment of margins, premiums, dividends, clearing and market costs); means any day on which both the Depositary and, where relevant, any relevant settlement or payment system and/or any market where or through which the Depositary provides services are open for business; means all cash of the Fund in any currency whatsoever; means any cash deposit account in any currency whatsoever, opened in the name of the Fund whether with the Depositary or third party banks; means (i) a change in Local Regulations and that impacts upon the manner of performance by the Depositary of the services provided pursuant to the Agreement such that a change in the performance of the Service is required to ensure that the Depositary complies with the change in Local Regulations; (ii) a change in Local Regulations that impacts upon the requirements of the Fund or the Fund Manager and that requires a change in the services provided pursuant to the Agreement or a new service in order to comply with the change in Local Regulations; (iii) changes impacting upon the manner of performance by the Depositary of the services provided pursuant to this Agreement and includes mergers, liquidations, conversions, schemes of arrangement and changes in relation to the Fund's structure or Fund Documents; means the procedures for handling a Change as set out in the Service Level Agreement means any clearing agency, settlement system or central - 7-

8 securities depositary (including any entity that acts as a system for the central handling of Financial Instruments in the country where it is incorporated or organized or that acts as a transnational system for the central handling of Financial Instruments) used in connection with transactions in or relating to Financial Instruments, and any nominee of the foregoing; "Clause" means a clause in this Agreement; "Corporate Action" has the meaning ascribed to it in Clause 5.4.1; "CSD" "Custody Account" "Financial Instruments" "Financial Obligations" "FMSA" "Force Majeure" means any central securities depositary, any securities settlement system, any clearing house, any book-entry securities system or any similar depositary, system or facility including, without limitation Euroclear, Clearstream and the Depository Trust Company and which provides the services of operating a securities settlement system as well as at least either (i) the initial recording of securities in a book entry system through initial crediting or (ii) providing and maintaining a securities account at the top tier level as specified in Section A of the Annex to Regulation (EU) No 909/2014 of the European Parliament and of the Council; means a custody account opened by the Depositary in its books on which the Fund's Financial Instruments which can be held in custody are (to be) registered; has the meaning ascribed to it in the AIFMD and the UCITS Directive; means all the "financial obligations" of the Fund to the Depositary within the meaning of Directive 2002/47/EC of the European Parliament and of the Council of 6 June 2002 on financial collateral arrangements as implemented in Article L of the French Monetary and Financial Code as such obligations arise from the Depositary's custody, settlement and related services; means the Dutch Financial Markets Supervision Act (Wet op het financieel toezicht), as amended from time to time; means any circumstance beyond the reasonable control of the Depositary within the meaning of section 6:75 of the Dutch Civil Code; - 8-

9 "French Monetary and Financial Code" "Fund" "Fund Assets" "Fund Documents" means the Code Monétaire et Financier as amended from time to time; means each AIF and UCITS managed by the Fund Manager as listed in Schedule I; means the assets of each Fund; means either one or several of the following documents of the Fund: the prospectus (or other type of offering memorandum), the terms and conditions, articles of association, and/or partnership agreement, as amended from time to time; Funds Requirements means the AIFMD Requirements and the UCITS Requirements; "Group Company" "Holding" "Income" "Issuer" "Local Regulations" means any legal entity in which the Depositary directly or indirectly owns a majority of the voting rights and, provided that the Depositary in its turn directly or indirectly owns a majority of the voting rights in the Depositary, any legal entity in which the Depositary directly or indirectly owns a majority of the voting rights; means financial and, as the case may be, legal structures controlled directly or indirectly by the Fund or the Fund Manager, acting on behalf of the Fund, incorporated in the Netherlands or in any other jurisdiction for the ownership of the Fund's Assets; means all dividend, interest and other payments on the Financial Instruments to be made by an Issuer, whether in cash or in kind as (fractions of) Financial Instruments; means any institution which issues Financial Instruments; means any (whether Dutch, French or other): (i) (ii) laws or regulations issued by any competent supranational, national or local government or regulator; market regulations or other terms and conditions used by any market operator, central counterparty or member institution or otherwise applicable when entering into Transactions, provided not contrary to (i) above; - 9-

10 (iii) (iv) customary practices on markets or within systems, provided not contrary to (i) above; and judgments or orders issued by any competent court, arbitral tribunal or supranational, national or local government or regulator, that are applicable in any particular event. "Loss" "Other Assets" "Party" means all present or future losses and other damages and costs arising directly from any particular event, within the meaning of section 6:98 of the Dutch Civil Code; means assets of the Fund other than Financial Instruments and Cash that are not held or capable of being held in custody by the Depositary; means a party to this Agreement; "Personal Data" has the meaning ascribed to it in Clause 25.3; "Pledged Assets" has the meaning ascribed to it in Clause ; "Proxy Service" "Registered Fund Units" "Service Level Agreement" "Schedule" "Security Interest" "Subcustodian" "Taxes" has the meaning ascribed to it in Clause 7.2; means units, shares or other forms of interest in investment funds which are not held in custody by the Depositary, a Subcustodian or any other party, but which are recorded in the register of the Issuer or its agent; means the service level agreement, as amended, supplemented or replaced from time to time; means a schedule to this Agreement; means the security interest created under or pursuant to Clause ; means to the exclusion of a CSD any institution (including any Group Company) which the Depositary engages or wishes to engage in order to provide part or all of its custody service to the Fund under this Agreement; means all taxes, charges and similar costs owed by the Depositary and the Fund Manager (or the relevant Fund) with regard to the Fund Assets and Transactions, including any associated interests, fines and penalties; - 10-

11 "Title Holder" "Transaction" "UCITS" "UCITS Manager" "UCITS Directive" means the entity that holds legal title to all rights and obligations of a Fund being an investment fund (beleggingsfonds) as defined in article 1:1 of the FMSA); and means a transaction entered into by a Fund or by the Fund Manager or a third party on behalf of the Fund. means a UCITS as defined in the UCITS Directive; means a management company who is authorized to manage UCITS; means Directive 2009/65/EC of the European Parliament and of the Council, as amended from time to time; "UCITS Regulation" means the Commission delegated regulation of 17/12/2015 supplementing Directive 2009/65/EC of the European Parliament and of the Council with regards to depositaries as published in the official journal of the European union; "UCITS Requirements" has the meaning ascribed to it in Clause 2.1.4; 1.2 Interpretation This Agreement constitutes a single agreement per Fund as listed in Schedule I. This document therefore reflects a range of separate individual but identical agreements entered into in number equal to the number of Funds listed in Schedule I. It does not in any way create a single agreement between two or more Funds and accordingly there shall not be any joint liability (hoofdelijke aansprakelijkheid) of the Funds If the Fund is not a legal entity but a contractual arrangement, all rights and obligations hereunder shall be rights and obligations of the Title Holder acting in its capacity as title holder for the Fund, and all references to "the Fund" shall be construed and interpreted as being references to the Title Holder acting in its capacity as title holder for the Fund. If the Fund is not a legal entity, references to "the Fund" should at all times be attributed to the Title Holder. This includes (but is not limited) the Cash Account and Custody Account which will in such case be opened in the name of the Title Holder acting in its capacity as title holder for the Fund The Fund Manager shall represent the Fund with respect to all operational and other practical aspects and the Parties agree that all communications or actions referred to herein in respect of the Fund shall therefore be between the Depositary and the Fund Manager

12 1.2.4 This Agreement contains both services that the Depositary provides pursuant to the Funds Requirements and additional services. It is understood that the liability in respect of the services which are provided pursuant to the Funds Requirements shall at all times be as required by the Funds Requirements as set out in Clause and Clause and the Parties have no intention to contract differently. The services which are not covered by the Fund Requirements are subject to the liability regime as set out in Clause and subject to any disclaimers made throughout this Agreement The headings of the clauses of this Agreement are for convenience only and shall not affect the construction or interpretation thereof A person includes a natural person, incorporated or unincorporated body (whether or not having separate legal personality) Unless the context requires otherwise, words in singular shall include the plural and words in plural shall include the singular The Schedules are an integral part of this Agreement. In case of any inconsistency between the contents of a Schedule and the body of this Agreement, the contents of the body of this Agreement shall take preference. 2. APPOINTMENT OF THE DEPOSITARY 2.1 Appointment Subject to the terms of this Agreement, the Fund Manager hereby appoints the Depositary to act as depositary of each of the Funds listed in Schedule 1 as of the execution of this Agreement, provided that the notification form set out in Schedule IV with respect to the Fund has been duly executed by the Fund, the Title Holder and the Fund Manager (as applicable) and sent to the Depositary With respect to any AIF and/or UCITS, other than as set out in Schedule 1, managed by the Fund Manager for which the Fund Manager may, in the future, wish to engage the Depositary to act as such AIF's and/or UCITS depositary within the meaning of the AIFMD and UCITS Directive, and may wish to engage the Depositary to provide the custody services referred to in Clause of this Agreement, the Fund Manager and the Depositary will discuss the accession of such AIF and/or UCITS to this Agreement, which will accede to this Agreement by completing the notification form set out in Schedule IV With respect to AIFs, the Depositary shall act as depositary within the meaning of the AIFMD and shall at all times provide the services in accordance with (i) the AIFMD as implemented in the FMSA and Dutch decrees and lower rules and regulations based thereon, (ii) the AIFMD Regulation, (iii) guidance and recommendations within the meaning of article 16 of EU Regulation 1095/2010 and in accordance with the manner - 12-

13 as required by this article 16, and (iv) in respect of (i) (iii) any amendments or successor laws and regulations covering the subject matter of this Agreement (the "AIFMD Requirements") With respect to UCITS, the Depositary shall act as depositary within the meaning of the UCITS Directive and shall at all times provide the services in accordance with (i) the UCITS Directive as implemented in the FMSA and Dutch decrees and lower rules and regulations based thereon, (ii) the UCITS Regulation, (iii) guidance and recommendations within the meaning of article 16 of EU Regulation 1095/2010 and in accordance with the manner as required by this article 16, and (iv) in respect of (i) (iii) any amendments or successor laws and regulations covering the subject matter of this Agreement (the "UCITS Requirements") The Depositary assumes all liabilities and obligations arising for depositaries under the Funds Requirements and nothing in this Agreement is intended to diminish or otherwise take anything away from compliance with the Funds Requirements by the Depositary. Consequently, nothing in this Agreement should be interpreted as an intention of the Depositary to agree otherwise. The Funds Requirements shall at all times prevail over any matter in this Agreement which may be contradictory to the Funds Requirements (in whole or in part). The Depositary shall apply the contents of the ESMA Q&A on the application of the AIFMD and UCITS Directive (as amended from time to time) where relevant to the services unless its procedures and processes (in current or amended form) already achieve the same objectives. 2.2 Duty of care The Depositary shall act honestly, fairly, professionally and in the interest of the Fund and its investors on the understanding that the Depositary is not obliged to make use of non-public information known to it, including information which may affect prices. 2.3 No investment advice, asset management or risk management services The Depositary is under no duty and shall not: (a) (b) (c) Provide to the Fund Manager or the Fund any investment advice with regard to the Fund Assets; or On behalf of the Fund Manager or the Fund, manage the Fund Assets or perform any Transactions on a discretionary basis; On behalf of the Fund Manager or the Fund provide any risk management services within the meaning of the AIFMD and the UCITS Directive

14 2.4 Delegation The Depositary shall not delegate any of its duties under this Agreement, except that the Depositary may with the prior written approval of the Fund Manager delegate the safekeeping of Financial Instruments and the verification of ownership and the maintenance of records with respect to Other Assets and always subject to the Funds Requirements. 2.5 Interaction between Local Regulations and Funds Requirements Pursuant to Clause and 2.1.4, the Funds Requirements shall at all times prevail over any other term of this Agreement. This is also the case if Local Regulations apply to the provision of the services by the Depositary. The Depositary shall therefore always apply the Funds Requirements in case of any inconsistency between the Local Regulations and the Funds Requirements. 2.6 Holdings The services to be provided by the Depositary under this Agreement shall where applicable take into account any Holdings in the structure of the Fund and the Depositary shall provide its services and fulfil its obligations in respect or as a consequence thereof accordingly if and to the extent required under the Funds Requirements. 2.7 Changes All Changes shall be subject to the Change Control Procedures and any amendments to this Agreement (including the Schedules) must be made in accordance with Clause SAFEKEEPING OF THE ASSETS OF THE FUND 3.1 Form and type of Assets to be agreed The Depositary and the Fund Manager shall agree asset classes, asset types and further features of the investments contemplated by the Fund Manager in order for the Depositary and the Fund Manager to have a clear mutual understanding of the investment objectives and restrictions of the Fund and the expectations of the Parties hereunder. The relevant classes, types and further features shall be set out in the Service Level Agreement and the Depositary shall provide its services hereunder with respect thereto The Depositary may, but shall not be under any obligation, to provide services under this Agreement in respect of any Assets which are not set out in the Service Level Agreement, or to which it has not otherwise consented with such consent not to be unreasonably withheld by the Depositary The Depositary's safekeeping duties as referred to herein shall apply on a look-through basis to underlying assets held by a Holding, provided that such requirement shall not apply to fund of funds structures or master-feeder structures where the underlying - 14-

15 funds have a depositary (within the meaning of the AIFMD) which safe-keeps the assets of these funds. If (i) the Fund invests through such structure in a fund controlled directly or indirectly by the Fund or the Fund Manager, and (ii) such fund has no depositary (within the meaning of the AIFMD and UCITS Directive) that safe-keeps the assets of such underlying fund, the Fund Manager will have to seek the Depositary's prior approval. 3.2 Assets that are held in custody by the Depositary As the case may be, the Depositary will provide custody services in respect of Fund Assets which consist of Financial Instruments that can be held in a custody account or that can be physically delivered to the Depositary and which the depositary must hold on custody. Thereto the Depositary shall open: (a) (b) one or more Custody Accounts on which the Fund's Financial Instruments are to be registered; and one or more Cash Accounts on which the Fund's balances of cash held by the Depositary on behalf of the Fund with regard to Financial Instruments are to be registered The Fund Manager acknowledges that Custody Accounts will be opened in the Depositary's books and records in France. All services in respect of the Accounts will be provided by the Depositary out of France The Depositary shall ensure that the Financial Instruments which are recorded in the Custody Accounts shall be clearly segregated and identified as belonging to the Fund in accordance with the Funds Requirements In addition to the Accounts opened by the Depositary pursuant to Clause 3.2.1, additional Accounts may be opened at the Fund Manager's request. Any such additional Accounts are subject to this Agreement, and the Parties may agree specifics in relation to such additional Accounts Entries in the Accounts may be reversed by the Depositary if the deliveries and/or payments underlying the entries did not take place or were reversed, regardless of the reasons for same. Notwithstanding anything to the contrary in this Clause 3.2, entries in the accounts made in accordance with Clause 6.2 may be reversed if Actual Settlement has not occurred in accordance with the Service Level Agreement The Fund Manager acknowledges and represents that all Fund Assets which consist of Financial Instruments that can be held in a custody account shall be placed in custody with the Depositary and not with any other party without the prior and express consent of the Depositary. Without prejudice to the Depositary's duties and liabilities under the Funds Requirements, the Fund Manager shall indemnify the Depositary for all and any consequences and/or damages that the Depositary may suffer as a result of the Fund - 15-

16 Manager's breach of this Clause (including but not limited to losses, damages, liabilities or fines or other forms of sanctions imposed by regulators). 3.3 Assets that are not held in custody by the Depositary Introduction The Depositary shall provide record keeping services in respect of Other Assets which notably consist of, but are not limited to, private equity or real estate investments. The Depositary shall not hold such Other Assets in a Custody Account and such Other Assets shall be held in the name of the Fund Ownership verification and recordkeeping duties With respect to Other Assets the Depositary shall: (a) (b) (c) verify ownership by the Fund based on information or documents provided by the Fund Manager or external evidence in accordance with the procedures set forth in the Service Level Agreement; possess sufficient and reliable information to be satisfied of the right of ownership; maintain and keep up to date records of Other Assets and their notional amount for which it is satisfied that the Fund holds ownership of such assets. The Depositary shall ensure that the Fund Manager has and implements appropriate procedures to verify that the Other Assets acquired by the Fund are appropriately registered in the name of the Fund and to check the consistency between the positions in the Fund Manager's records and the Other Assets for which the Depositary is satisfied that the Fund holds the ownership. The Fund Manager shall ensure that Authorised Instructions and relevant information related to the Other Assets are sent to the Depositary, so that the Depositary is able to perform its own verification or reconciliation procedure. For the avoidance of doubt, the Depositary will not perform any type of asset servicing in respect of Other Assets and notably, dividend, interests and redemption proceeds collection, corporate event notification and management and assets valuation Information to the Depositary with respect to Other Assets The Fund Manager shall provide the Depositary with, or shall ensure that the Depositary has timely access to, upon commencement of its duties and on an ongoing basis, all relevant information and documentation listed in the Service Level Agreement and with any further information that the Depositary may reasonably require within the performance of its services with respect to Other Assets, including information and documents from third parties. The communication processes in respect of such information are as set out in the Service Level Agreement

17 3.3.4 Transitional period The Fund Manager and the Depositary shall agree a transitional period in which the Depositary shall verify ownership of Other Assets held by the Fund prior to this Agreement becoming effective. For that purpose, the Fund Manager shall provide the Depositary with an audit report or similar type report which evidences the ownership of the Other Assets or such other documents as the Depositary may reasonably require. Any defects detected in respect of ownership shall be discussed with the Fund Manager in order to find a solution to remedy such defects (if possible). The Depositary shall not be responsible for the registration of any such Assets as Fund Assets until such defect has been remedied and the Fund Manager shall indemnify the Depositary for any damages the Depositary may incur as a consequence of any defects during the transitional period. 3.4 Cash held with the Depositary The Fund Manager may request the Depositary to hold the Cash (in whole or in part) of the Fund with the Depositary in one or more Cash Accounts opened in the books of the Depositary. The Cash Accounts opened in the name of the Fund shall constitute components of one single current account encompassing all sub-accounts opened in the name of the Fund, operating, in accordance with customary market practice, by reciprocal delivery and taking full effect as a current account, thereby transforming all transactions incorporated therein into simple debit and credit items generating one single balance due on closure. Accordingly, all transactions recorded on these various sub-accounts shall in fact form part of one and the same single current account which may be set-off against each other at any time to form a single balance, due and payable on termination of the Agreement, irrespective of the currency(ies) in which they are denominated. However, this arrangement shall not apply to debts which are, by exception or by nature, secured by specific forms of security or lien and which shall be entered in special accounts In relation to the Fund, the Depositary reserves the right, at any time and on simple notice, to transfer debit balances (in principal and interest) to Cash Accounts with a credit balance, or vice versa. If any Cash Accounts are held in foreign currencies, such currencies shall be converted on the basis of the inter-bank rate offered on the exchange market on the date of transfer. The inter-bank offered rate shall be the rate applied between banks, at the same time on such market, for transactions of a similar nature and amount. This rate of exchange shall be used by the Fund Manager and the Depositary for the sole purpose of accounts closing and shall not constitute an undertaking on the part of the Depositary to execute forex transactions at such rate Any unauthorised debit position on a Cash Account shall be exceptional and shall not under any circumstances be deemed to imply an agreement for credit in favour of the Fund. Agreements of credit, of whatever kind, may only arise by express agreement or with the specific prior consent of the Depositary

18 3.4.4 The Fund Manager acknowledges that Cash Accounts will be opened in the Depositary's books and records in France. All services in respect of the Cash Accounts will be provided by the Depositary out of France. 4. OTHER DEPOSITARY DUTIES 4.1 Cash monitoring General requirements The Depositary shall in general ensure that the Fund's cash flows are properly monitored, and shall in particular ensure that all payments made by or on behalf of investors upon subscription of units or shares of the Fund have been received and that all Cash of the Fund has been booked in a Cash Account. The Fund Manager shall not be able to instruct the Depositary to open Cash Accounts in other names. The Fund Manager shall not instruct or permit that Cash can be held in any account other than a Cash Account Cash Accounts with third party banks The Fund Manager shall provide the Depositary with all information as the Depositary may request in respect of Cash Accounts opened with third party banks in order to enable the Depositary to provide its services hereunder. In order to have access to all information regarding the Cash and in order to have a clear overview of all cash flows, the Fund Manager shall ensure that the Depositary shall at least: (a) (b) (c) be informed, upon its appointment, of all existing Cash Accounts opened in the name of the Fund (which includes for the purposes hereof any Holding or other entity or person used by the Fund); be informed at the opening of any new or additional Cash Accounts with third party banks in the name of the Fund (which includes for the purposes hereof any Holding or other entity or person used by the Fund); be provided in a timely manner with all information the Depositary requires in order to provide its services hereunder as set out in further detail in the Service Level Agreement Specific cash flow monitoring services The Depositary shall ensure effective and proper monitoring of the Fund's cash flows and in particular shall at least: (a) (b) ensure that all Cash is booked in Cash Accounts opened with entities eligible for holding Cash under the Funds Requirements. To that end, the Fund Manager shall ensure that the Depositary receives the - 18-

19 information it needs at the close of the Business Day when subscription orders have been received; (c) (d) (e) (f) (g) 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 movement, when such cash flow movements occur; implement appropriate procedures to identify at the close of business on each Business Day significant cash flows and in particular those which could be inconsistent with the Fund's operations; 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 Cash Accounts are included in the reconciliation process; 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 Fund Manager 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; check the consistency of its own records or cash positions with those of the Fund Manager. The Fund Manager shall ensure that all Authorised Instructions and information related to Cash Accounts opened with a third party bank are sent to the Depositary, so that the Depositary is able to perform its own reconciliation procedure. 4.2 Other monitoring duties The Depositary shall furthermore ensure that: (a) (b) (c) (d) the sale, issue, re-purchase, redemption and cancellation of units or shares of the Fund are carried out in accordance with Dutch law and the Fund Documents; the value of the units or shares of the Fund is calculated in accordance with Dutch law and the Fund Documents and the procedures that the Funds Requirements prescribe in respect of valuation; it carry out all Authorised Instructions of the Fund Manager, unless if in the Depositary reasonable opinion such Authorised Instruction conflict with Dutch law or the Fund Documents; in transactions involving the Fund Assets any consideration is remitted to the Fund within the usual time limits; - 19-

20 (e) the Fund's income is applied in accordance with Dutch law and Fund Documents In performing the tasks referred to above, the Depositary shall perform ex-post controls and verifications of processes and procedures that are under the responsibility of the Fund Manager or an appointed third party (including inter alia an administrator, registrar or transfer agent), the details of which are described in the Service Level Agreement The Fund Manager shall provide the Depositary, upon commencement of its duties and on an on-going basis, with all relevant information it needs in order to comply with its obligations pursuant to the Funds Requirements, including information to be provided by the Depositary to third parties The procedures that the Depositary will maintain in respect of the above vary per asset type and are set out in the Service Level Agreement. The Depositary will comply and the Fund Manager shall provide the Depositary upon request with all the necessary information in order to enable the Depositary to comply with the requirements set out in the Funds Requirements. 4.3 Information flows The provision of information from the Depositary to the Fund Manager and from the Fund Manager to the Depositary shall be agreed in the Service Level Agreement. The Depositary shall at all times in respect of its duties have the ability to enquire into the conduct of the Fund Manager and the Fund, as the case may be, and to assess the quality of information transmitted including by way of having access to the books and records of the Fund and the Fund Manager, as the case may be, or by way of on-site visits The Fund Manager and the Depositary shall agree upon procedures in the Service Level Agreement to be complied with in relation to all necessary information that needs to be exchanged between the Fund Manager, the Fund, third parties and the Depositary related to the performance of the Depositary's oversight and control function. The Fund Manager shall cause any relevant third parties to comply with any such procedures The Fund Manager and the Depositary shall agree upon procedures in the Service Level Agreement to be complied with ensuring that the Depositary, in respect of its duties, has the ability to enquire into the conduct of the Fund Manager and to assess the quality of information transmitted including by way of having access to the books of the Fund and, as the case may be, the Fund Manager, or by way of on-site visits The Fund Manager agrees that any information required to be provided and obtained in respect of Holdings shall be subject to the information provision arrangements set out in this Clause 4 and the Fund Manager represents that it shall at all times have the - 20-

21 necessary authority in respect of such Holdings to comply or procure compliance therewith. 5. CUSTODY OF FINANCIAL INSTRUMENTS 5.1 Method of Custody The Depositary shall hold the Financial Instruments on a fungible basis and shall have no obligation to hold them on an individualised basis, unless agreed otherwise. The Fund shall therefore not be entitled to any specific Financial Instruments, but to Financial Instruments similar in number and kind to the Financial Instruments Notwithstanding Clause 5.1.1, the Depositary shall keep separate in its books the Financial Instruments held for the Fund from the other Financial Instruments it holds for its own account and risk and for the account and risk of other clients Financial Instruments in the form of physical bearer securities will be hold by the Depositary on an individualised basis Subject to Article 7.3, registered Financial Instruments are registered either in the name of the Depositary, a Subcustodian or a CSD. The choices of in whose name registered Financial Instruments are registered may be based on: (a) the Local Regulations applicable to such Financial Instruments; (b) the Fund Manager s preference; and (c) the decision of the Depositary or that of any Subcustodian and/or CSD through which the Financial Instruments are held in custody The Fund, the Fund Manager and the Depositary will enter into additional arrangements in case the Fund or the Fund Manager wishes to register certain Financial Instruments directly in the name of the Fund. Such arrangements entail that the Fund will grant a power of attorney to the Depositary to allow the Depositary to represent the Fund towards the relevant Issuer. 5.2 Custody services The Depositary shall provide custody services pursuant hereto in accordance with Local Regulations and the Funds Requirements Subject to any Authorised Instructions to the contrary, the Depositary shall, without receiving any Authorised Instruction to that effect: (a) collect any Income; (b) sell any Income received in the form of fractions of Financial Instruments; - 21-

22 5.3 Income (c) exercise any subscription rights under the Financial Instruments; (d) notify the Fund Manager of any Corporate Actions known to the Depositary concerning the Financial Instruments; (e) present to Issuers any Financial Instruments to be repurchased or redeemed by them; (f) sign in the Fund s name any documents necessary to assert any rights under the Financial Documents; and (g) to the extent required by Local Regulations, disclose to Issuers any information concerning the Fund, the Financial Instruments or the Accounts The Depositary shall determine the Fund s rights to any Income exclusively on the basis of information provided by the Issuers, Subcustodians and/or CSDs; In case of payment of Income, the Depositary may in its discretion, prior to Actual Settlement, make funds available to the Fund equal to the Income to be received by the Fund, in which case such funds are regarded as credit granted by the Depositary to the Fund until the time of Actual Settlement. 5.4 Corporate Actions The Depositary shall: (a) use all reasonable endeavours and may employ recognised data vendors to obtain details of any corporate actions relating to Financial Instruments and which are publicly announced or otherwise in the public domain (including without limitation notices of calls and maturities of securities and expirations of rights in connection with the Financial Instruments), and promptly inform the Fund on a timely basis in respect of any rights issues, subscription options, conversion options, redemptions, elections, calls and similar rights, opportunities and advantages and any distributions or payments of income and any other event identified as a corporate action in the Service Level Agreement (each a "Corporate Action") communicated to the Depositary which may be derived from the Fund's Financial Instruments. (b) subject to applicable tax deductions, collect dividends, interest and other cash payments, rights and similar distributions made or issued with respect to the Financial Instruments; (c) promptly after receipt thereof, forward to the Fund those communications relating to any Securities which call for voting or the exercise of rights or other specific - 22-

23 action (including materials relating to legal proceedings intended to be transmitted to holders of such Financial Instruments); (d) present for payment maturing Financial Instruments and those called for redemption; (e) execute in the name of the Fund such ownership and other certificates as may be required to obtain payment or exercise any rights in respect of any Financial Instruments provided that the Fund has delivered to the Depositary all necessary documents requested by the Depositary; (f) accept and open all mail directed to the Fund care of the Depositary; (g) when required to do so by Local Regulations or judicial order or the relevant Issuer's statutes disclose the Fund's and the Fund's investors names, addresses (in which case the Fund shall provide such details to the Depositary) and Financial Instruments positions to the Issuers and other persons; and (h) dispose of fractional interests received by the Depositary as a result of dividends by selling any fractional interest received in accordance with local law and practice and credit the proceeds of such sale to the Cash Account held with the Depositary Where Financial Instruments in registered form are registered in the Fund s name in accordance with market practice in the relevant Local Jurisdiction or by agreement between the Fund and the Depositary, information with respect to Corporate Actions on such Financial Instruments and account statements will be sent directly to the Fund. The Fund hereby undertakes to forward to the Depositary promptly any information received by it relating to such Financial Instruments in order to enable the Depositary to perform its duties under this Agreement. The Fund will be solely responsible for the consequences of any failure on its part to forward any such information or of any delay on its part in forwarding any such information Actions undertaken in the absence of Authorised Instructions With respect to any Corporate Actions including any Corporate Actions not listed above, in the absence of Authorised Instruction from the Fund within any prescribed deadline (and after having followed the reminder procedures set out in the Service Level Agreement) the Depositary shall take such action as it considers appropriate in the circumstances or in accordance with the common practice in the relevant jurisdiction. In the absence of any negligence, wilful default or fraud on the part of the Depositary, the Depositary shall not be liable for any damages suffered by the Fund as a result of any such action Restricted Corporate Actions The Fund acknowledges that, according to the laws of the jurisdiction of its - 23-

24 incorporation or the law of the jurisdiction of residence of the Fund s and the laws applicable to an Issuer which are subject to a Corporate Action, the Fund may not be authorised to participate to certain Corporate Actions; Nevertheless shall the Fund submit an Authorised Instruction to the Depositary to participate to such Corporate Action, the Depositary will not assume any liability shall the Fund s request to participate to such Corporate Action be denied or rejected by the Issuer or its agent. 5.5 Physical delivery of Financial Instruments The Fund is entitled to the physical delivery of any Financial Instruments only to the extent that such physical delivery is: (a) considered practically feasible by the Depositary; and (b) allowed under Local Regulations. 5.6 Excluded Financial Instruments The Depositary is not required to hold in custody Financial Instruments which, in the opinion of the Depositary, are not capable of being held in custody (such as derivatives), cannot be held in custody by the Depositary because the Depositary does not have a Subcustodian in the relevant market or are not part of the pricing arrangement agreed with the Fund. Any trades in such Financial Instruments will therefore in principle not be settled by the Depositary (or any Clearance System or any other relevant market infrastructure function). In case such trades are settled nonetheless, the Depositary shall carry out its duties pursuant to this Agreement with respect to such Financial Instruments during the time that such Financial Instruments are standing to the credit of the Custody Account. The Depositary confirms that the Financial Instruments forming part of the Fund Assets on the date hereof are eligible for holding in custody by the Depositary (except where agreed differently with the Fund Manager in the Service Level Agreement). The Depositary and the Fund Manager shall discuss future assets for eligibility and the Depositary shall timely inform the Fund Manager in case changed practices do not allow certain assets or categories of assets for inclusion. 6. SETTLEMENT OF TRANSACTIONS 6.1 Authorised Instructions to settle Transactions The Depositary shall settle a Transaction only after it has received an Authorised Instruction to that end The Depositary may refuse to settle a Transaction if, on the grounds of Clause , the Depositary previously refused to carry out the Authorised Instruction to that effect. 6.2 Settlement of Transactions prior to Actual Settlement When settling a Transaction concerning the sale of Financial Instruments, the Depositary may, - 24-