2 Depending on the investment services to be provided, other conditions may apply in addition to the Investment Service Provision, or the Client may be required to also sign other agreements or declarations. The General Banking Conditions also apply to Kempen s investment services, to the extent that the Investment Service Provision do not depart from these. Article 1 Definitions, references and headings 1.1 The following definitions apply for the Kempen & Co N.V. : a. Agreement: the agreement with the Client, of which the m an integral part; b. Assets: the asset elements administered in the Securities Account, increased Financial Instruments added at any time and decreased with Financial Instruments withdrawn at any time, including the cash balance; c. Available Funds: the total balance of the Securities Account, plus any credit limit for the Securities Account, as the result of either a securities credit or another credit facility, less the required cover for margin obligations and the reserves on the Securities Account considered necessary by Kempen (e.g. for current orders in Financial Instruments); d. Clearing house: the institution that provides transaction clearing of Financial Instruments for the (Stock) Exchange; e. Client: one or more natural or legal person(s) that has/have entered into an agreement with Kempen; f. Conditions: these Kempen & Co N.V. ; g. Custodian: This definition has expired and therefore deleted; h. (Stock) Exchange: every regulated market or trading platform on which trading is possible via Kempen; i. Execution-Only: a form of investment service within the meaning of the definition of provision of an investment service in Article 1:1, paragraphs a or b of the WFT. This means the receipt and referral of orders concerning Financial Instruments by Kempen, or their execution at the Client s risk and expense. More in particular, with this service, Kempen does not provide any advice within the meaning of the definition of provision of an investment service in Article 1:1, paragraph d of the WFT and Kempen does not assess whether the execution of an order is suitable for the Client and/or consistent with its portfolio; j. Financial Instruments: Financial Instruments within the meaning of Article 1:1 of the WFT; k. Kempen: Kempen & Co N.V., with its registered office at Beethovenstraat 300, 1077 WZ Amsterdam. Kempen is a credit institution registered in the register of De Nederlandsche Bank N.V., as referred to in Article 1:107 WFT; l. Nominee: Kempen & Co N.V., with its registered office at Beethovenstraat 300, 1077 WZ Amsterdam; m. Regulation: the complex of Articles of Association, Regulations and other provisions (including the contract specifications for the relevant Financial Instrument) of (Stock) Exchanges and/or clearing houses, as they read at any time during the term of the relationship between the Client and Kempen, whether or not after amendment; n. Securities Account: the account held in the Client s name within the Kempen administration, in which (i) the Client s Financial Instruments are administered and (ii) the financial balance from which Kempen can debit amounts owed by the Client and to which it can credit amounts due to the Client; and (iii) Kempen & Co March 2015
3 only limited payments are permissible, through transfers to the fixed contra account in the Client s name at another bank, unless otherwise agreed; o. Website: the Kempen Website at www.kempen.nl; p. WFT: the Financial Supervision Act (Wet op het financieel toezicht); q. Working day(s): each day of the week in which Kempen is open to the public. 1.2 References to Articles are references to Articles of the Conditions, unless stated otherwise. 1.3 Headings above the Articles serve only for the purpose of legibility and have no effect on the meaning of the Conditions. 1.4 In the Conditions, the singular form also refers to the plural and the masculine to the feminine form, and vice versa. Article 2. Applicability; commencement of service provision; acceptance 2.1 In addition to the General Banking Conditions and conditions for specific products and services that the Client uses, these Conditions apply to the relationship between Kempen and the Client. 2.2 Every reference in the General Banking Conditions to the Bank should be read as a reference to Kempen. 2.3 The Client may make use of Kempen s services after a Securities Account has been opened and the Client has been identified and accepted by Kempen in compliance with the statutory requirements. 2.4 Kempen may impose rules concerning identification, acceptance and/or the scale, nature and scope of the service concerning certain categories of natural and legal persons. Kempen has the right to reject a prospective Client without stating its reasons or to terminate the services in accordance with Article 28 Article 3. Risks of investment and information received 3.1 In Appendix 1 Important features and risks of investment the features and specific risks of the different types of Financial Instruments are explained in more detail. The Appendix does not aim to describe all features and risks. 3.2 The value of an investment in Financial Instruments may be lost, partially or in full. The Client must ensure that it is continually in a position to bear such losses. 3.3 If the Client makes use of borrowed funds for investment, the Client explicitly declares that it is aware that it runs the risk of losing its investment and retaining a debt. Kempen & Co March 2015
4 3.4 By entering into the agreement, the Client declares that: It has received sufficient information to form an opinion on the content and scale of the services provided by Kempen under the agreement; In its opinion, it has received sufficient information from Kempen on the risks and consequences associated with Kempen s service provision and with investment in Financial Instruments in particular; It is fully aware of these risks and consequences and accepts these risks and consequences. 3.5 Kempen performs all actions in relation to the service at the Client s risk and expense. Article 4. Execution-Only service provision 4.1 If Kempen provides Execution-Only investment services for the Client, Kempen obtains information on the Client s knowledge and experience relating to this service or the relevant Financial Instruments or any other financial product, to enable Kempen to assess whether this service or product is appropriate for the Client (the suitability test). If, in Kempen s view, the Execution-Only service is not suitable for the Client, it will warn the Client. If the Client provides no information, or insufficient information on its knowledge and experience, Kempen will warn the Client that it is consequently unable to assess whether the service is suitable for the Client. 4.2 The Client guarantees that all the oral and written information provided to Kempen is complete and accurate. 4.3 The provisions of Article 4.1 do not apply to the services relating to: a) Shares that are admitted for trading on a regulated market, or a system comparable to a regulated market, from a state that is not a member of the European Union; b) Instruments that are normally traded in the money market; c) Tradeable bonds or other debt instruments, to the extent that this does not concern convertible bonds or convertible debt instruments; d) Participation rights in collective investment schemes, or; e) Financial Instruments designated by General Administrative Order, if Kempen states prior to provision of the service that it has not assessed the suitability of the service or the financial product for the Client. 4.4 The suitability test of Article 4.1. applies only to the extent that Kempen provides Execution-Only services to non-professional investors, not, therefore, for professional investors and eligible counterparties. 4.5 Kempen s Execution-Only services, is limited to order execution, settlement, administration and custody. Kempen will assess orders issued by the Client to conduct transactions in Financial Instruments only in terms of the statutory balance and coverage requirements. Kempen & Co March 2015
5 Article 5. Custody of Financial Instruments 5.1 The provisions of the Book-Entry Securities Transactions Act (book-entry transactions) and of Article 5.2 apply to the custody of Financial Instruments forming part of a collective deposit, within the meaning of that Act, held by Kempen. 5.2 The custody of all other Financial Instruments takes place by Kempen, to the extent that they qualify for this pursuant to the applicable Custody of Financial Instruments applying to the custody of these Financial Instruments and have been accepted into custody by Kempen. Article 6. Charges 6.1 Kempen charges the Client custody fees, commission and (transaction) costs for the investment services that it provides and, where applicable, charges fees for other services and other costs or charges in accordance with the agreements with the Client and the rates applying at Kempen at any time. These rates are available for inspection at Kempen s office(s). 6.2 Kempen may also charge the Client the costs it owes third parties for the services it has provided. 6.3 Kempen reserves the right to alter the rates, costs and charges referred to in Article 6.1 at any time if, in its opinion, circumstances give reason for this. The alteration takes effect immediately unless Kempen sets a different commencement date. The alteration cannot take effect retroactively. On alteration of the rates, the Client has the right, to terminate its securities relationship with Kempen with immediate effect, in writing, in observance of the provisions of Article 28. 6.4 If the Client invests in investment funds through the Execution-Only services, Kempen may decide to refund the payments received from the relevant investment fund providers related to the investment by the Client in these investment funds. 6.5 Kempen may decide to refund payments as referred to in Article 6.4 to the Client through a discount on the rates, costs and fees referred to in Article 6.1. Received payments shall be refunded each calendar quarter in arrears, less any percentage applied at any time by Kempen for compensation of the related direct and indirect costs. Article 7. Orders and other instructions; power of disposal 7.1 The Client may issue orders for transactions in Financial Instruments by telephone only, and other instructions to Kempen in writing only (e.g. not by fax, text message or e-mail). If the order or instruction does not comply with the aforementioned form requirements, Kempen has the right, but is not required to execute that order or those instructions. If Kempen opts to execute an order placed in writing, Kempen may verify the order with the Client by telephone prior to execution. Kempen is not liable for any resulting damages if this working method leads to any delays or non-execution. Kempen & Co March 2015
6 7.2 Kempen has the right to limit the scope of the Client s power of disposal in relation to the Securities Account if this is necessary for the performance of the service. 7.3 Kempen shall in any event have the right not to follow instructions that, in Kempen s view, lead or could lead to the execution of an order in contravention of the Regulations and/or to negative Available Funds. Kempen determines the Available Funds for each Securities Account. The Client is aware that the Securities Account may not show negative Available Funds at any time and agrees that Kempen shall take measures in relation to the service to prevent or correct negative Available Funds. Article 8. Execution of orders; order execution policy 8.1 In observance of the order execution policy drawn up by Kempen, and to the extent that these Conditions do not provide otherwise, the Client s rights on the basis of the transaction and positions in Financial Instruments are related to and are partly determined by the Regulations. To the extent that the Regulations contain a third-party clause in favour of the Client, the Client accepts this through acceptance of the Conditions. Kempen provides a description of the order execution policy on its Website. The Client declares that it will take cognizance of this as soon as it requires information on this. This does not alter the fact that Kempen will provide information to individual Clients if they specifically request this. 8.2 Kempen has various execution possibilities (directly or through the use of brokers) for orders in different Financial Instruments. For the execution of orders, Kempen is authorised only to use the (Stock) Exchanges included in the order execution policy. Kempen may charge a Client costs for the use of brokers, in accordance with Article 6. 8.3 If Kempen has decided that it will no longer act as a service provider in relation to certain (categories of) Financial Instruments on certain (Stock) Exchanges, it is not possible to transfer such Financial Instruments to a Securities Account. 8.4 Orders relating to (Stock) Exchanges outside the Netherlands that are open partly during hours when Kempen is closed shall be exclusively executed during the hours and days on which Kempen is open. 8.5 Orders to execute transactions in Financial Instruments shall be executed in observance of a reasonable term, in accordance with the Client s instructions and, to the extent that these Conditions or other conditions and agreements between the parties do not provide otherwise, in compliance with the current Regulations for the relevant (Stock) Exchange and/or other markets. 8.6 Orders must be clear and must clearly state all details that Kempen regards as relevant. If an order for a transaction in Financial Instruments has, in Kempen s reasonable opinion, been issued without sufficient specification, Kempen has the right to suspend execution of the order until the Client provides it with clarification or additional specifications. Kempen is not liable for any resulting damages if this working method leads to delays or non-execution. Kempen & Co March 2015
7 8.7 Unless otherwise agreed, orders are valid for the same trading day. Clients may revoke orders already issued if the revocation reaches Kempen in time to reasonably cancel the order. The same applies for changes in an order already issued. 8.8 Crediting or debiting Financial Instruments held by Kempen in the Securities Account shall take place with simultaneous crediting or debiting of the amount to be received or owed from the Client s Securities Account pursuant to the broker s note. In the event that this is not possible, a reference is made to Article 9. 8.9 Kempen shall open a Securities Account in the Client s name. Kempen administers this Securities Account in its books in the Client s name, at the Client s risk and expense. 8.10 The Client grants Kempen irrevocable power of attorney to debit from its Securities Account all that the Client owes or shall owe Kempen at any time and to credit the Securities Account with all amounts due to the Client. Debiting shall take place partly on the grounds of its transactions and positions in Financial Instruments or other related actions and also for all that the Client owes or shall owe pursuant to these Conditions or other conditions, agreements and requirements applying between the parties. 8.11 The Client is required to ensure that the balance of the Securities Account is always sufficient to settle all amounts with Kempen that the Client shall owe on the basis of (conditional) transactions in Financial Instruments and other related actions. Balance includes the available credit if this is permitted by Kempen in the conditions and agreements applying between the parties. Kempen is authorised to block the balance of the Client s Securities Account for take-up obligations agreed by the Client, conditional or otherwise. Article 9. Deferred settlement 9.1 If a transaction in Financial Instruments cannot take place in accordance with the delivery versus payment principle, the Client runs the risk that it will settle or deliver its part of the transaction but that the other party fails to comply with its obligations. The Client bears the risk of this in full. Article 10 Nominee services 10.1 Clients that would like to acquire participations in an investment scheme could either obtain participations rights directly in the investment scheme or indirectly through a Nominee. In the latter case, the Nominee shall gain the legal ownership of the participations in the respective investment scheme, while the Client s rights will be administrated on the Securities Account. All registrations of clients that have opted for this method will be grouped into a registration on behalf of these clients in the participation register of the respective investment scheme in the name of the Nominee. 10.2 The Client hereby declares that it consents to the acquisition of a claim right against the Nominee instead of the relevant investment scheme, as a result of the Nominee system. Kempen & Co March 2015
8 10.3 As an independent intermediary, the Nominee supervises registrations in the register of participants. The Nominee provides for correct registration of the Client s rights in the individual Securities Accounts. 10.4 On acquisition of the participation rights, the Client has the right to opt for registered recording of its participation rights in the register of participants, as well as the right to opt for conversion of the Nominee system to a direct registration in the register of participants at a later date. In the latter, the Client may be charged additional costs. Article 11. Cancellation of orders in Financial Instruments 11.1 If Financial Instruments change (e.g. through a split-up, reduction in the nominal value, commencement of trading ex-drawing possibility or ex-dividend), any current orders concerning such Financial Instruments may be cancelled, depending on the Regulations or practices applying on the (Stock) Exchange where the Financial Instruments are traded. The Client is also aware that certain circumstances can arise (including certain events regarding the issuing institution for certain Financial Instruments that will probably have a material impact on the price of the relevant Financial Instruments), as a result of which current orders in these Financial Instruments may be cancelled by the (Stock) Exchange on which they are executed. 11.2 After the close of trading on the day prior to that on which the Financial Instruments become ex-dividend, Kempen will cancel all market and limit orders entered in Kempen s order system before the close of trading. In the event of cancellation, Kempen is not required to execute such orders with an adjusted limit unless the Client issues a new order to Kempen to that effect. Article 12. Delivery and annulment of Financial Instruments 12.1 To the extent that delivery of Financial Instruments is not excluded, Kempen is required to meet a Client s request for delivery only within a term set by Kempen, if such is reasonably possible. 12.2 Kempen has the right to debit from the Securities Account any Financial Instruments that, in its view, are not suitable for open custody and for which physical delivery is not possible. Article 13. Administration, statements, reports 13.1 Kempen shall administer the Client s Securities Account, its positions in Financial Instruments, the transactions and entries made for the Client s account and where applicable, the Client s orders and instructions. This administration shall comply with the statutory requirements. 13.2 Kempen shall send the Client a (written) statement of the transactions in Financial Instruments and other related actions. At the Client s (written) request, the statement can be sent to the Client electronically. If the statement is sent to the Client electronically, the Client can request a copy of the statement from Kempen during the statutory safekeeping term. Kempen & Co March 2015
9 13.3 Kempen shall provide the Client with a (written) statement of the value and composition of the funds and the Financial Instruments in the Securities Account at least once a year, also showing the dividends and interests received for the Financial Instruments. Article 14. Protest and claims 14.1 The Client is required to check all confirmations, statements and other messages or notices that Kempen sends it immediately on receipt. The Client must also check whether orders issued by or on behalf of the Client, or for its account, have been executed fully and correctly and do not give rise to any objections. 14.2 On detecting inaccuracies or incompleteness in the execution of a transaction, the Client is required to notify Kempen of this at the earliest opportunity. 14.3 If the Client has not contested the confirmations, statements or other messages sent to it by Kempen, or has not notified Kempen of its objections to a transaction within a reasonable term after these statements can reasonably have been deemed to have reached the Client, the Client is deemed to have approved the content of the relevant statement and to have no objections to the relevant transaction. Except in exceptional circumstances, the said term is in any event deemed to have expired thirteen months after the statements can reasonably be deemed to have been received by the Client. 14.4 Kempen is required to correct errors and omissions that it has made, without prejudice to the Client s obligation to cooperate in reasonable measures proposed by Kempen to limit damages. 14.5 Kempen has an internal complaint handling procedure in place. If the Client is of the opinion that Kempen has not responded adequately to a protest or complaint and the Client maintains its complaint, the Client must provide for adequate action in compliance with the provisions of Article 32. Article 15. Default by the Client 15.1 If the Client does not comply promptly with one or more of its obligations to Kempen, Kempen has the right to refuse to execute orders and/or to terminate the relationship with the Client immediately. 15.2 In a case such as referred to in Article 15.1, Kempen has the right to close and/or sell off the Client s positions in Financial Instruments immediately, at the Client s risk and expense and without further notice of default, and to exercise other securities, options and futures contracts, to conduct the related buy and sell transactions and in general, to take all actions that facilitates the protection of Kempen s interests. Any proceeds of these measures accrue to Kempen and serve to reduce Kempen s receivables from the Client. Kempen is not liable for any damages arising from the aforementioned measures. Kempen & Co March 2015
10 Article 16. Kempen s responsibility and liability 16.1 Kempen performs all actions relating to the Financial Instruments at the Client s risk and expense, including if Kempen enters into agreements in its own name in that regard. 16.2 If the Client uses information provided by Kempen (reports, opinions and/or research, all in the broadest sense), it does so entirely at its own risk and expense. 16.3 Kempen is not liable for damages as a result of: A diminution or increase in the value of Financial Instruments; Losses and/or lost profits incurred by the Client, or Any other event whatsoever. Kempen is liable only if and to the extent that it is established in court that these damages are the direct result of wilful misconduct (opzet) or an attributable failure to perform (toerekenbare tekort koming) on Kempen s part in the execution of the agreement with the Client. 16.4 Kempen is authorised to use third-party services, including but not confined to services relating to the execution of orders, to place Financial Instruments in the custody of third parties and to acquire rights relating to Financial Instruments through the intermediary of third parties. 16.5 Kempen is not liable for the shortcomings of third parties if reasonable evidence can be provided that the selection of that third party was made with due care. Kempen is not liable for the shortcomings of a (Stock) Exchange, clearance systems, national or international custody institutions. If Kempen is not liable for third party shortcomings, Kempen will assist the Client, if it has suffered damages, in its efforts to recover such damages. 16.6 The Client indemnifies Kempen against third-party claims relating to services provided by Kempen for the Client. 16.7 Kempen is in no case liable for damages suffered by the Client as a result of measures that Kempen is entitled or required to take on the basis of any mandatory order, the instructions of a supervisory authority or the requirements of any (Stock) Exchange, or that it feels constrained to take in connection with exceptional circumstances. 16.8 Kempen, to the extent that this is not already provided for in law, is not liable for damages arising from: International conflicts; Violent or armed actions; Measures by domestic, foreign or international government agencies; Boycott actions; Labour unrest at third parties or among its own personnel; Malfunctions in power supplies, communication connections or equipment or software of Kempen or of third parties. If any of these circumstances arise, Kempen shall take measures, that can reasonably be required, to limit adverse consequences for the Client. Kempen & Co March 2015
11 16.9 Kempen is in no case liable for indirect damages such as lost of profits or consequential losses. Article 17. Limitation of damages by the Client 17.1 The Client is required to take damage limitation measures as soon as possible after the commencement of the incident causing damages. This means that the Client must do everything, that can reasonably be expected from the Client, to limit any damages to a minimum. This obligation applies likewise, in full, if the Client makes use of the opportunities to submit a complaint to Kempen. Measures to limit damages may include the sale of (part of) the Financial Instruments or buy-back of Financial Instruments already sold. Article 18. Conflicts of interest 18.1 In view of the nature of Kempen s business, conflicts of interest may arise between the Client and Kempen in the execution of Kempen s activities. In order to avoid such conflicts of interest as much as possible and in order to control actual or potential issues, Kempen has drawn up a policy to secure independent action by the business unit that provides an investment service. On the basis of that policy, undisclosed pricesensitive information that may be known within Kempen will not be used in the provision of an investment service for the Client. A summary of this policy is posted on the Website. Article 19. Representation authorisation 19.1 Notices from or to the Client or an authorised representative or contact official of the Client are unconditionally deemed to be notices from or to the Client. If the Client is a legal person, Kempen has the right at all times, without being obliged to do so, to treat notices or orders from directors affiliated to the Client as having been issued by the Client. The same applies for notices or orders from persons within the Client s organisation regarding whom one or more directors, authorised representatives or contact officials have given Kempen to understand that they are authorised to represent the Client. 19.2 Until the Client notifies Kempen in writing that a person as referred to in Article 19.1 can no longer be regarded as a director, authorised representative or contact official and that change can reasonably have been processed in Kempen s administration, the provisions of Article 19.1 remain in effect with regard to that person. Article 20. Foreign tax legislation 20.1 The Client is required to comply promptly with all Kempen s (administrative) Regulations and procedures (where applicable) if the Client invests in Financial Instruments of which the returns are subject to foreign tax legislation. The Client shall provide Kempen with all information that Kempen requires to provide such a service. Kempen & Co March 2015
12 20.2 If the Client invests in Financial Instruments of which the revenues are subject to withholding tax in the United States of America (hereinafter referred to as US securities ), the provisions of Article 20.1 apply if: The Client invests in US securities; Furthermore, the Client is not a natural person, and If the Client wishes to claim a reduction in the withholding tax referred to in Article 20.2 pursuant to any tax treaty with the United States of America, the Client is in any event required to issue a W-8BEN-E form (a declaration by the Client that it is entitled to the application of the tax treaty between the country where the Client is domiciled for tax purposes and the United States of America) to Kempen at their earliest request. If the Client fails to meet this obligation, or fails to do so on time, Kempen has the right, in connection with its obligations concerning withholding tax, to assign the Client to the category of persons of which the revenues from US securities are subject to the highest withholding rate. 20.3 If the Client invests in US securities and can also be qualified as a US Person, the Client is required to issue Kempen with the following, within 14 days of a request to that effect from Kempen: A W-9 form, completed in full with a valid signature or, on replacement thereof, a document of equivalent purport; and Written consent for Kempen to provide the competent (tax) authority in the United States of America and/or a party liable to deduct withholding tax on US securities acting for Kempen and/with the aforementioned W-9 form or the replacement document. 20.4 If the Client fails to comply with the abovementioned obligation, or fails to do so on time, Kempen has the right, in connection with its withholding tax obligations, to dispose of the US securities in the Client s Securities Account on behalf of and at the risk and expense of the Client, regardless of the gross proceeds of the sale to be realised in that case and the tax to be deducted from these. Article 21. No waiver of rights 21.1 If Kempen at any time permits the Client to exceed or infringe a credit limit, advance payment standard, position limit, margin obligation or any other provision of these Conditions or of any other agreement or conditions applying between the parties, this does not grant the Client any right to continue that excess or infringement. Kempen reserves the right at all times to require the Client to comply with the provisions of said agreement or conditions without delay, without being required to exercise that right. Article 22. Privacy provisions 22.1 Kempen may save personal data and other information concerning the Client acquired in relation to the (application for) provision of investment services in a personal register. Kempen will observe the provisions of Dutch privacy law with regard to that register. 22.2 The Client accepts that in certain circumstances, Kempen is required to disclose information concerning the Client s identity and address, the number of Financial Instruments currently or previously held by the Client, Kempen & Co March 2015
13 its transactions in Financial Instruments and the administration of the Securities Account, including but not confined to: (i) If required to do so by an applicable law, statutory provision or other order, or ordered to do so by a court or similar order enforceable in the relevant jurisdiction; (ii) If required to do so by any professional organisation or self-regulating organisation (of a government or other nature) or by a court order or similar order enforceable in the relevant jurisdiction; (iii) If required to do so by any department or service of the Dutch government or by any other government department or service in the relevant jurisdiction; (iv) If necessary or desirable for (arranging to) execute orders and instructions from the Client, or for the Client s account. 22.3 In the provision of information to third parties as referred to in paragraph 22.2, Kempen may be required to protect confidentiality in relation to the Client. In that event, Kempen is never required to inform the Client of the provision of information to third parties. 22.4 Kempen is authorised to record telephone calls between Kempen and the Client or prospective Clients on audio carriers for verification or recording of orders, transactions, (pre-contractual) agreements or informative announcements, as well as when, at Kempen s discretion or that of the police, the judiciary, supervisory authorities and/or the tax authority, this is necessary or desirable in order to control or detect fraudulent or other criminal conduct, including when this is not required by or pursuant to Dutch law. Kempen is not required to save and/or archive such audio recordings or to make these available to the Client in any form whatsoever. Kempen has the right to use such recordings as evidence. Kempen will erase audio recordings after a passage of time. 22.5 Kempen is authorised to use personal data concerning the Client for marketing and commercial purposes for Kempen itself and to make these details available to other parts of the corporate group to which Kempen belongs. The Client is deemed to hereby grant explicit consent to Kempen for this. 22.6 The Client has the right to request Kempen in writing to provide a statement of the personal register concerning the Client, for payment of costs, which request Kempen will meet within a reasonable term, except in the case of exceptions by or pursuant to Dutch law. If the Client shows that the personal data are factually incorrect, the Client has the right to request a correction in writing. Except in the case referred to above, the Client has no right to require Kempen to delete existing registration of personal data. 22.7 If Kempen makes use of the SWIFT network in the execution of payment orders on behalf of the Client, information as shown in the payment order may be sent to other countries. In such cases, this information may be accessible to foreign supervisory agencies and local authorities for the supervision performed there. Article 23. Certificate concerning rights of inheritance and succession 23.1 If the Client passes away, Kempen may require the party wishing to dispose of the funds held in the Securities Account in the name of the deceased Client to present a certificate concerning rights of inheritance and succession. Kempen & Co March 2015
14 Article 24. Securities Account in the name of more than one Client 24.1 If the Client consists of more than one natural or legal persons, Kempen has the right to rely at all times on the information provided by one of those natural or legal persons in relation to the information provided by the Client in the context of the agreement unless Kempen agrees otherwise in writing. 24.2 The information recorded by Kempen concerning the assessment of knowledge and experience applies for all natural or legal persons and all are deemed to have consented to this. 24.3 The Clients are jointly and individually liable to Kempen and Kempen has the right to call each Client to account for all obligations in relation to the Securities Account. All (legal) actions performed by each of the Clients in relation to the Securities Account are binding on the other Clients. 24.4 If Kempen relieves one or more of the Clients from the joint and individual liability or enters into an arrangement with one or more of them, for final settlement or otherwise, this takes place solely and only subject to the condition that the other Client(s) remain(s) jointly and individually liable for the whole. The other Clients may not deduct the share of the Client(s) relieved of joint and individual liability from its/their joint and individual liability. 24.5 The Clients will jointly hold a single right of claim against Kempen, to which each of the Clients is entitled as a creditor for the full amount, so that payment by Kempen to one of the Clients also relieves Kempen of its obligation to the other Client(s) in that regard. 24.6 If one of the Clients approves bank documents concerning the account(s) and/or the Securities Account, such approval also serves as approval by the other Client(s). 24.7 The Clients are each individually entitled to each other and to Kempen to issue instructions and to perform acts of disposal regarding the Securities Account. To the extent necessary, the Clients hereby grant each other irrevocable power of attorney to perform the actions referred to in this Article. 24.8 The Clients are only jointly entitled in respect of each other and of Kempen to grant power of attorney to third parties in relation to the accounts and/or the Securities Account, to withdraw powers of attorney already granted, to transfer or pledge the balance of the account and/or the funds in the securities deposit, to change the name of the account(s) or to cancel the Securities Account. The granting or withdrawal of powers of attorney as referred to here takes effect in relation to Kempen only after Kempen has been notified of this in writing by the jointly authorised Clients. 24.9 In the event of the decease of one or more Clients, the other Client(s) is/are required, following notification thereof, to inform Kempen immediately and Kempen will block the Securities Account, unless, in the reasonable opinion of Kempen, this is not desirable or necessary to protect the interests of Kempen or the other Client(s) and/or the heirs or successors. The other Client(s) wishing to continue the Securities Account will be authorised to do so following compliance with further conditions to be imposed by Kempen. Following settlement of the estate, the Securities Account can be continued by the other Client(s) in the name of that Kempen & Co March 2015
15 Client or those Clients. If the heir or heirs and the other Client(s) wish to jointly continue the Securities Account and a new Client or Clients become(s) entitled in relation to the Securities Account, the new Client(s) must comply with further conditions to be imposed by Kempen prior to the continuation of the Securities Account under the new name(s), including the identification of the new account-holder(s) and the acceptance of the applicable agreements and conditions by the new account-holder(s). If the Client(s) are not designated as the heir(s), the Securities Account must be closed. 24.10 Without prejudice to the provisions of Article 24.7, Kempen has the right at all times to require the cooperation of all the entitled parties for all or certain actions concerning the Securities Account and/or the Financial Instruments held by Kempen for the Client(s). 24.11 Without prejudice to the provisions of Article 25 of its General Banking Conditions, Kempen is always authorised to settle a receivable from one of the Clients separately with a balance in favour of the Clients in the Securities Account and to settle a receivable of Kempen pursuant to the Securities Account with amounts owed by Kempen to one of the individual Clients. 24.12 If Kempen waives any right in respect of one or more of the Clients, this will not relieve the other Client(s) of their obligations in respect of Kempen unless Kempen explicitly gives notice that this is the case. 24.13 All correspondence and documents concerning the Securities Account(s) and/or the securities deposit shall be sent to an address notified jointly by the Clients in writing. Article 25. Pledging and usufruct 25.1 As additional security for payment of what the Client owes to Kempen at the present or at any time, or will owe for provided investment services by Kempen or any grounds whatsoever, the Client pledges the following to Kempen: a. All its current and future Financial Instruments in the collective deposits, within the meaning of the Book-Entry Securities Transactions Act, managed by Kempen, and all current and future receivables on the grounds of or relating to those Financial Instruments; b. The Financial Instruments entrusted and to be entrusted in the future to the custody of Kempen, to the extent that these are held by Kempen for the Client or are individualised, and the current and future rights to deliver Financial Instruments arising from the custody by Kempen, in the Client s name, of the Financial Instruments that are not or will not be individualised by Kempen for the Client; c. All claims that the Client can uphold against Kempen, now or at any time, on the grounds of the funds in the Securities Account or present or entered in any other way in favour of the Client. 25.2 The rights of pledge include a right of pledge to all amounts to be received in relation to the pledged Financial Instruments. 25.3 The pledges referred to in Article 25.1 will arise on each occasion solely through the addition of the new Financial Instruments, rights and claims to the Securities Account(s) held for the Client, which in addition, Kempen & Co March 2015
16 where necessary, will also apply as notification of Kempen. Kempen accepts this pledge in advance where necessary and accepts its notification. 25.4 Without prejudice to the foregoing, the Client is required, at Kempen s earliest request, to do everything and to provide cooperation in order to establish the rights of pledge referred to in this Article (to the extent that this pledge has not already been realised on the basis of the agreement) and to that end, grants Kempen irrevocable power of attorney, by contracting the agreement, to take all actions necessary or desirable with a view to establishing the right(s) of pledge referred to in this Article, notifying Kempen or third parties of that pledge and claiming the delivery of the Financial Instruments. 25.5 If the Client wishes to dispose of (part of) the Financial Instruments, Kempen is required to release (that part of) the pledged instruments, provided that the remainder after the release provides sufficient cover for Kempen s current or future receivables from the Client. Kempen shall not sell off the pledged Financial Instruments unless it has a due receivable from the Client and the Client is in default on compliance with this. Kempen shall not sell off more pledged Financial Instruments than is necessary to settle the Client s debt. After Kempen has made use of its authority to sell off Financial Instruments, it shall notify the Client of this in writing at the earliest opportunity. 25.6 Without Kempen s prior consent, the Client is not permitted to pledge Financial Instruments to third parties or to grant rights of usufruct to such Financial Instruments to third parties. 25.7 Financial Instruments that the Client deposits with Kempen only for the collection of interest, repayments and dividends, the acquisition of new coupon or dividend sheets, performing conversion actions or attending meetings, are not subjected to the rights of pledge referred to in this article. Article 26. Repledging This article has expired and is therefore deleted. Article 27. Limitation/alteration of service provision 27.1 Kempen is authorised to discontinue the activities concerning the trading of Financial Instruments on a (Stock) exchange after notifying the Client in advance. Kempen may also decide at any time to discontinue provision of a service. In such cases, Kempen shall always take reasonable account of the Client s interests. 27.2 Kempen is authorised to discontinue the custody of Financial Instruments that cannot be entrusted to the custody of a national or international custody institution or of units that are smaller than the minimum marketable amount, after notifying the Client of this in advance. 27.3 In the cases referred to in the preceding paragraphs, the Client shall issue an order to transfer the relevant Financial Instruments to another bank or investment institution, or to sell the relevant Financial Instruments Kempen & Co March 2015
17 at the Client s risk and expense, depending on the options that Kempen presents to the Client, within a reasonable term set by Kempen for that purpose. 27.4 If the Client does not issue an order in time, Kempen is authorised to sell the relevant Financial Instruments on behalf of and at the risk and expense of the Client on a date to be determined by Kempen, regardless of the sale proceeds then to be realised. 27.5 Kempen has the right to remove from the Securities Account Financial Instruments that, in its reasonable opinion, in view of the position of the issuing institution of those Financial Instruments, do not qualify (any longer) for custody. Article 28. Duration and termination 28.1 The relationship between the Client and Kempen on the basis of the agreement is contracted indefinitely. 28.2 Both the Client and Kempen have the right to cancel the agreement in writing with immediate effect. 28.3 The closure of the Securities Account by the Client shall serve as cancellation of the agreement. 28.4 Unless Kempen and the Client have agreed otherwise in writing, Kempen will settle orders that are not yet settled on the termination date of the agreement in accordance with the agreement as much as possible and during such settlement, each of the parties shall remain bound by the agreement and also by all other agreements, including pledges, to the extent that they relate to the Client s Financial Instruments. 28.5 The Client remains liable to Kempen in full for all costs that are due but have not been paid. 28.6 The Client hereby grants Kempen consent, to settle any remaining positive or negative cash balances in the Securities Account with the Client on termination of the agreement. 28.7 Kempen is entitled to close a Securities Account in which over a period longer than one year no credits are held, after Kempen has informed the Client accordingly in writing and the Client has not objected within a period of three months against the closure. Article 29. Guarantee scheme 29.1 Pursuant to the Decree on Special Prudential Measures, Investor Compensation and Deposit Guarantee under the Financial Supervision Act, the credit balance of Financial Instruments in the Securities Account is subject to the investor compensation system. The cash balance in the Securities Account is subject to the deposit guarantee system. Provided that the relevant requirements are met, the deposit guarantee system and the investor compensation system provides for a payment per person per bank if a bank can no longer meet its obligations. Kempen & Co March 2015
18 Article 30. Transfer of contracts 30.1 Kempen has the right to transfer the legal relationship(s) between Kempen and the Client and the associated secondary rights to a third party. The Client grants consent to Kempen for this in advance. The Client has the right at all times to cancel the agreement with immediate effect, in observance of the provisions of Article 28. Article 31. Choice of language 31.1 All communications from Kempen to the Client in relation to the investment service and all records of contracts and conditions shall be made in Dutch, unless the parties agree in writing that this shall take place in English. The Client hereby confirms that its knowledge of the Dutch language is sufficient to understand what it has agreed to with Kempen and will agree in the future through the applicable conditions and agreements, and that it bears and accepts every risk arising from any inadequate knowledge of Dutch. 31.2 If the parties explicitly agree the use of English, the Dutch language continues to prevail in the event of any differences of interpretation or other conflicts. Article 32. Applicable law, complaints, disputes and jurisdiction 32.1 The relationship between Kempen and the Client is governed by Dutch law. 32.2 If the Client is not satisfied with the services of Kempen, the Client should immediately submit a complaint to Kempen in writing. Kempen will process and administer the complaint promptly, in compliance with the internal complaints procedure. Kempen shall notify the Client of the text of said procedure at the Client s earliest request. 32.3 If no agreement has been reached on a solution/termination of the complaint on completion of this procedure, this results in a dispute. In that case, the Client is authorised to file the dispute with the competent court in Amsterdam or with the Financial Services Complaints Institute (KiFiD), www.kifid.nl. 32.4 Kempen is authorised to file disputes with the Client concerning investment services with the competent court in Amsterdam or relevant (foreign) court. Article 33. Precedence, changes and additions 33.1 If and to the extent that the provisions of these Conditions differ from the General Banking Conditions, the provisions of these Conditions apply. If other, more specific conditions are also in effect between the parties, these specific conditions take precedence over these Conditions and the General Banking Conditions. Any agreements with individual parties take precedence over all the aforementioned conditions. Kempen & Co March 2015
19 33.2 Kempen has the right to alter these Conditions and all other conditions at any time, where alteration also implies additions. The changes and additions are binding on the Client from the 30th day after Kempen has announced these changes on its Website or by other means. 33.3 If the Client does not accept the upcoming notified change(s) it must inform Kempen of this in writing within three weeks of the announcement referred to in Article 33.2. On receipt of such notice, Kempen shall discontinue the service immediately, in observance of the provisions of Article 28 of these Conditions. 33.4 Other amendments of, and departures from these Conditions are valid only to the extent that they are recorded in writing and accepted in writing by both parties. Kempen & Co March 2015