COLL 8.4 Investment and borrowing powers

1. (1)

   Subject to (1A), this section applies to an ICVC which is a qualified investor scheme and an authorised fund manager and a depositary of a qualified investor scheme.12

2. (1A)

   Other than COLL 8.4.2R, COLL 8.4.4CG, COLL 8.4.7R, COLL 8.4.8R and COLL 8.4.9AG this section does not apply where the qualified investor scheme in question is a regulated money market fund.12

1. (1)

   7Where this section refers to a second scheme, and the second scheme is a feeder scheme, which (in respect of investment in units in collective investment schemes) is dedicated to units in a single collective investment scheme, the reference in this section to the second scheme must be read as if it were a reference to any scheme into which the feeder scheme's master scheme invests.

2. (2)

   7Where this section refers to a second scheme, and the second scheme is a master scheme to which (in respect of investment in units in collective investment schemes) the relevant qualified investor scheme is dedicated, the reference in this section to the second scheme must be read as if it were a reference to any scheme into which that master scheme invests.

An authorised fund manager must take reasonable steps to ensure that the scheme property of a qualified investor scheme provides a spread of risk, taking into account the investment objectives and policy of the scheme as stated in the most recently published prospectus, and in particular, any investment objective as regards return to the unitholders (whether through capital appreciation or income or both).

1. (1)

   The scheme property of a qualified investor scheme may, subject to the rules in this chapter, comprise any assets or investments to which it is dedicated.

2. (2)

   The instrument constituting the fund10 and the prospectus may further restrict:

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   1. (a)

      the kinds of assets in which the scheme property may be invested;

   2. (b)

      the types of transactions permitted and any relevant limits; and

   3. (c)

      the borrowing powers of the scheme.

The scheme property of a qualified investor scheme must, except where otherwise provided by the rules in this chapter, consist only of one or more of the following to which it is dedicated:

1. (1)

   any specified investment:

   1. (a)

      within articles 74 to 86 of the Regulated Activities Order; and

   2. (b)

      within article 89 (Rights to or interests in investments) of the Regulated Activities Order where the right or interest relates to a specified investment within (a);

2. (1A)

   14(to the extent not within (1)(a)) an interest in a loan, provided that the loan was not originated to:

   1. (a)

      a natural person;

   2. (b)

      the authorised fund manager of the qualified investor scheme;

   3. (c)

      the depositary of the qualified investor scheme;

   4. (d)

      an affiliated company of the person in (b) or (c); or

   5. (e)

      a person who intends to use, or uses, the credit for the purpose of investing in a derivative, cryptoasset derivative, an unregulated transferable cryptoasset, precious metals or a commodity contract within (4);

3. (2)

   an interest in an immovable3 under COLL 8.4.11 R (Investment in property);

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4. (3)

   precious metals; or

5. (4)

   a commodity contract traded on an RIE or a recognised overseas investment exchange.

14[Note: Full-scope UK AIFMs are subject to specific requirements relating to conflicts of interest (see articles 30 to 36 in the AIFMD level 2 regulation and SYSC 10.1.23R to SYSC 10.1.26R (Additional requirements for an AIFM)).]

14[Note: In relation to (1A), a borrower who receives money by way of deposit from a person who is not a bank may (if the borrower is acting by way of business) be carrying on the regulated activity of accepting deposits, but an exclusion in the Regulated Activities Order may be available. See also article 2 of the Business Order.]

1. (1)

   714Subject to (2) and (3) (where applicable), a qualified investor scheme may invest in units in a scheme (a ‘second scheme’) only if the second scheme is:7

   1. (a)

      a regulated collective investment scheme; or7

   2. (b)

      a scheme not within (a) where the authorised fund manager has taken reasonable care to determine that:7

      1. (i)

         it is the subject of an independent annual audit conducted in accordance with international standards on auditing;7

      2. (ii)

         the calculation of the net asset value of each of the second schemes and the maintenance of their accounting records is segregated from the investment management function;7

      3. (iii)

         it (and any master scheme to whose units it is dedicated) 14is prohibited from investing in units of the qualified investor scheme14 or, if there is no such prohibition, the qualified investor scheme'sauthorised fund manager is satisfied, on reasonable grounds and after making all reasonable enquiries, that no such investment will be made by either the second scheme or any fund in which the second scheme invests14; and7

      4. (iv)

         it operates in accordance with the principle of risk spreading as described in COLL 8.4.2 R.7

2. (2)

   7A qualified investor scheme must not invest more than 20% in value of the scheme property in units in second schemes which are unregulated schemes, 14qualified investor schemes or long-term asset funds14 unless the authorised fund manager has carried out appropriate due diligence on each of the second schemes and has taken reasonable care to determine that, after making all reasonable enquiries and on reasonable grounds, the second scheme complies with relevant legal and regulatory requirements.

3. (3)

   7The authorised fund manager of a qualified investor scheme with more than 20% in value of the scheme property invested in one or more second schemes which are unregulated schemes, 14qualified investor schemes or long-term asset funds14 must carry out appropriate due diligence on those schemes on an ongoing basis.

Where the second scheme in COLL 8.4.5 R is an umbrella, the provisions apply to each sub-fund as if it were a separate scheme.

1. (1)

   An authorised fund manager must take reasonable care to determine the following when entering into any transaction in derivatives or any commodity contract which may result in any asset becoming part of the scheme property:

   1. (a)

      if it is an asset in which the scheme property could be invested, that the transaction:

      1. (i)

         can be readily closed out; or

      2. (ii)

         would at the expected time of delivery relate to an asset which could be included in the scheme property under the rules in this chapter; or

   2. (b)

      in any other case that the transaction can be readily closed out.

2. (2)

   An authorised fund manager may acquire an asset within (1) if its determination has proved incorrect and if it determines that acquisition is in the interests of the unitholders, provided it has the consent of the depositary.

3. (3)

   Any asset within (1) acquired in accordance with (2) may form part of the scheme property despite any other rule in this chapter until the position can be rectified.

1. (1)

   A transaction in derivatives or a forward transaction may be entered into only if the maximum exposure, in terms of the principal or notional principal created by the transaction to which the scheme is or may be committed by another person, is covered globally under (2).

2. (2)

   Exposure is globally covered if adequate cover from within the scheme property is available to meet the scheme's total exposure taking into account any reasonably foreseeable market movement.

3. (3)

   The total exposure relating to derivatives held in a qualified investor scheme may not exceed the net value of the scheme property.

4. (4)

   No element of cover may be used more than once.

A transaction in an OTC derivative must be capable of valuation which it will only be if the authorised fund manager having taken reasonable care determines that, throughout the life of the derivative (if the transaction is entered into), it will be able to value the investment concerned with reasonable accuracy:

1. (1)

   on the basis of the pricing model; or

2. (2)

   on some other reliable basis reflecting an up-to-date market value;

which has been agreed between the authorised fund manager and the depositary.

1. (1)

   An authorised fund manager must, as frequently as necessary to ensure compliance with COLL 8.4.7 R (2) and COLL 8.4.7 R (4), re-calculate the amount of cover required in respect of derivatives and forwards positions in existence under this chapter.

2. (2)

   Derivatives and forwards positions may be retained in the scheme property only so long as they remain covered globally under COLL 8.4.7 R.

3. (3)

   An authorised fund manager must use a risk management process enabling it to monitor and measure as frequently as appropriate the risk of a scheme'sderivatives positions and their contribution to the overall risk profile of the scheme.

1. (1)

   The ICVC, or the depositary at the request of the ICVC, or the depositary of an AUT or ACS9 at the request of the authorised fund manager,9 may enter into a repo contract or a 2stock lending arrangement within section 263B of the Taxation of Chargeable Gains Act 1992 (without extension by section 263C).

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2. (2)

   The depositary must ensure that the value of any collateral, for the stock lending arrangement is at all times at least equal to the value of the securities transferred by the depositary.

3. (3)

   In the case of the expiry of validity of any collateral, the duty in (2) is satisfied if the depositary or the authorised fund manager, as appropriate, takes reasonable care to determine that sufficient collateral will be transferred by close of business on the day of expiry.

1. (1)

   The ICVC or depositary of an AUT or ACS9 (on the instructions of the authorised fund manager)9 may borrow money for the use of the authorised fund on terms that the borrowing is to be repayable out of the scheme property.

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2. (2)

   The authorised fund manager must ensure that the authorised fund's borrowing does not, on any day, exceed 100 % of the net value of the scheme property and must take reasonable care to ensure that arrangements are in place that will enable borrowings to be closed out to ensure such compliance.

3. (3)

   In this rule "borrowing" also includes any arrangement (including a combination of derivatives) designed to achieve a temporary injection of money into the scheme property in the expectation that the sum will be repaid.

4. (4)

   Where the limit in (2) is breached, the authorised fund manager must take action in accordance with the principles set out in COLL 8.5.3 R (3) to COLL 8.5.3 R (5) (Duties of the authorised fund manager: investment and borrowing powers) to deal with that breach.

1. (1)

   Any investment in land or a building held within the scheme property of a qualified investor scheme must be in an immovable within (2).

2. (2)

   For an immovable :

   1. (a)

      it must be situated in a country or territory identified in the prospectus;

   2. (b)

      the authorised fund manager must have taken reasonable care to determine that the title to the interest in the immovable is a good marketable title; and

   3. (c)

      the authorised fund manager of an AUT or ACS9 or the ICVC must have received a report from the appropriate valuer that:

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      1. (i)

         contains a valuation of the interest in the immovable (with and without any relevant existing mortgage); and

      2. (ii)

         states that in the appropriate valuer's opinion the interest in the immovable would if acquired by the scheme, be capable of being disposed of reasonably expeditiously at that valuation;

   4. (d)

      unless (c) is satisfied, the authorised fund manager of an AUT or ACS9 or the ICVC must have received a report from an appropriate valuer valuing the interest in the immovable and stating that:

      9
      1. (i)

         the immovable is adjacent to or in the vicinity of another immovable included in the scheme property; and

      2. (ii)

         in the opinion of the appropriate valuer, the total value of the interests in both immovables would at least equal the sum of the price payable for the interest in the immovable and the existing value of the interest in the other immovable; and

   5. (e)

      it must not be bought:

      1. (i)

         if it becomes apparent to the authorised fund manager that the report in either (c) or (d) could no longer reasonably be relied upon; or

      2. (ii)

         at a price more than 105% of the valuation relevant to the interest for that immovable in the report in either (c) or (d).

3. (3)

   Any contents of any building may be regarded as part of the relevant immovable.

4. (4)

   An appropriate valuer must be a person who:

   1. (a)

      has knowledge of and experience in the valuation of immovables of the relevant kind in the relevant area;

   2. (b)

      is qualified to be a standing independent valuer of an authorised fund or is considered by the scheme'sstanding independent valuer to hold an equivalent qualification;

   3. (c)

      is independent of the ICVC, the depositary and each of the directors of the ICVC or of the authorised fund manager9 and depositary9 of the AUT or ACS9; and

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   4. (d)

      has not engaged himself or any of his associates in relation to the finding of the immovable for the scheme or the finding of the scheme for the immovable.

1. (1)

   4An overseas5 immovable may be held by a scheme through an intermediate holding vehicle whose purpose is to enable the holding of immovables by the scheme or a series of such intermediate holding vehicles, provided that the interests of unitholders are adequately protected. Any investment in an intermediate holding vehicle for the purpose of holding an overseas5 immovable shall be treated for the purposes of this section as if it were a direct investment in that5 immovable.

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2. (2)

   4An intermediate holding vehicle must be wholly owned by the scheme or another intermediate holding vehicle or series of intermediate holding vehicles wholly owned by the scheme, unless and to the extent that local legislation or regulation relating to the intermediate holding vehicle holding the immovable requires a proportion of local ownership.

The following limits apply in respect of immovables held as part of the scheme property:

1. (1)

   the amount secured by mortgages over any immovable must not exceed 100% of the latest valuation by an appropriate valuer under COLL 8.4.11 R (2)(c) or COLL 8.4.11 R (2)(d) or COLL 8.4.13 R, as appropriate;

2. (2)

   no option may be granted to a person to buy or obtain an interest in any immovable comprised in the scheme property if this might unduly prejudice the ability to provide redemption; and

3. (3)

   the total of all premiums paid for options to purchase immovables must not exceed 10% of the scheme value in any 12 month period, calculated at the date of the granting of the option.

1. (1)

   In relation to the appointment of a valuer the authorised fund manager must:

   1. (a)

      at the outset appoint the standing independent valuer with the approval of the depositary and likewise upon any vacancy; and

   2. (b)

      ensure that any immovables in the scheme property are valued by an appropriate valuer (standing independent valuer) appointed by the authorised fund manager.

2. (2)

   The following apply in relation to the functions of the standing independent valuer:

   1. (a)

      the authorised fund manager must ensure that the standing independent valuer appointed under (1), procures the valuation of all the immovables held within the scheme property, on the basis of a full valuation with physical inspection (including, where the immovable is or includes a building, internal inspection) at least once a year;

   2. (b)

      for the purposes of (a), any inspection in relation to adjacent properties of a similar nature and value may be limited to that of only one such representative property;

   3. (c)

      the authorised fund manager must ensure that the standing independent valuer values the immovables, on the basis of a review of the last full valuation, at least once a month;

   4. (d)

      if either the authorised fund manager or the depositary becomes aware of any matter which appears likely to:

      1. (i)

         affect the outcome of a valuation of an immovable; or

      2. (ii)

         cause the valuer to decide to value under (a), instead of under (c),

      it must immediately inform the standing independent valuer of that matter;

   5. (e)

      the authorised fund manager must use its best endeavours to ensure that any other affected person reports to the standing independent valuer immediately upon that person becoming aware of any matter within (d); and

   6. (f)

      any valuation by the standing independent valuer must be undertaken in accordance with UKVPS 3 and 2.3 of UKVPGA 2 of the RICS Valuation – Global Standards 2017 UK national supplement 2018 (the RICS Red Book)13 or, 11in the case of overseas immovables, on an appropriate basis11 but 11subject to any provisions of the instrument constituting the fund.10

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3. (3)

   In relation to immovables:

   1. (a)

      any valuation under this rule has effect, until the next valuation under this rule, for the purposes of the value of immovables; and

   2. (b)

      an agreement to transfer an immovable or an interest in an immovable is to be disregarded for the purpose of the valuation of the scheme property unless it reasonably appears to the authorised fund manager to be legally enforceable.