Qualified investor schemes

Part

COLL New Collective Investment Schemes

Chapter

Qualified investor schemes

Printed on: 14/10/2024

Rulebook at: 01/01/2006

COLL 8

Qualified investor schemes

COLL 8.1

Introduction

01/12/2004

COLL 8.1.1

(1) This chapter applies to:

(a) an authorised fund manager of an AUT or an ICVC;

(b) any other director of an ICVC;

(d) an ICVC,

which is a qualified investor scheme.

(2) Where this chapter refers to rules in any other chapter of this sourcebook, those rules and any relevant guidance should be applied as if they referred to qualified investor schemes.

01/04/2004

Purpose

COLL 8.1.2

(1) This chapter assists in achieving the regulatory objective of protecting consumers by providing an appropriate degree of protection in respect of authorised funds that are only intended for investors that are, in general, prepared to accept a higher degree of risk in their investments or have a higher degree of experience and expertise than investors in retail schemes.

(2) This section ceases to apply where a qualified investor scheme has converted to be authorised as a UCITS scheme or a non-UCITS retail scheme.

01/04/2004

Qualified investor schemes: eligible investors

COLL 8.1.3

(1) The authorised fund manager of a qualified investor scheme must take reasonable care to ensure that ownership of units in that scheme is only recorded in the register for the categories of person to whom it can be promoted under COB 3 Annex 5 (Permitted promotion of unregulated collective investment schemes and qualified investor schemes).

(2) The authorised fund manager will be regarded as complying with (1) to the extent that it can show that it was reasonable for it to rely on relevant information provided by another person.

01/04/2004

Qualified investor schemes - explanation

COLL 8.1.4

(1) Qualified investor schemes are authorised funds which may only be sold or marketed to sophisticated investors. Therefore, the authorised fund manager must take reasonable care to ensure that subscription in relation to the units of this type of scheme should only be in relation to the client types set out in COB 3 Annex 5 . COB 3.11.6 R (Promotion of qualified investor schemes) also restricts promotion of qualified investor schemes to the categories of person set out in COB 3 Annex 5.

(2) Accordingly, qualified investor schemes have a more relaxed set of rules governing their operation and in particular their investment powers than for retail schemes. A qualified investor scheme is essentially a mixed asset type of scheme where different types of permitted asset may be included as part of the scheme property, depending on the investment objectives and policy of that scheme and within any restrictions in the rules.

01/04/2004

Application and notification procedures

COLL 8.1.5

Details of the application procedures in respect of qualified investor schemes are contained in COLL 2.1 (Authorised fund applications). COLLG provides details on how notifications may be made to the FSA .

01/04/2004

COLL 8.2

Constitution

01/12/2004

Application

COLL 8.2.1

This section applies to an authorised fund manager in respect of a qualified investor scheme.

01/04/2004

Classes of unit

COLL 8.2.2

A qualified investor scheme may issue such classes of unit as are set out in the instrument constituting the scheme, provided the rights of any class are not unfairly prejudicial as against the interests of the unitholders of any other class of units in that scheme.

01/04/2004

Names of schemes, sub-funds, and classes of units

COLL 8.2.3

The authorised fund manager must ensure that the name of the scheme, a sub-fund or a class of unit is not undesirable or misleading.

01/04/2004

Undesirable and misleading names

COLL 8.2.4

COLL 6.9.6 G (Undesirable or misleading names) contains guidance as to names which may be undesirable or misleading.

01/04/2004

Instrument constituting the scheme

COLL 8.2.5

The statements and provisions required by COLL 8.2.6 R must be included in the instrument constituting the scheme of a qualified investor scheme.

01/04/2004

Table: contents of the instrument constituting the scheme

COLL 8.2.6

This table belongs to COLL 8.2.5 R

Description of the authorised fund

Information detailing:

(1)

the name of the authorised fund;

(2)

that the authorised fund is a qualified investor scheme; and

(3)

in the case of an ICVC, whether the head office of the company is situated in England and Wales or Wales or Scotland or Northern Ireland.

Constitution

The following statements:

(1)

the scheme property of the scheme is entrusted to a depositary for safekeeping (subject to any exception permitted by the rules);

(2)

if relevant, the duration of the scheme is limited and, if so, for how long;

(3)

charges and expenses of the scheme may be taken out of scheme property;

(4)

for an ICVC:

(a)

what the maximum and minimum sizes of the scheme's capital are; and

(b)

the unitholders are not liable for the debts of the company; and

(5)

for an AUT:

(a)

the trust deed:

(i)

is made under and governed by the law of England and Wales, or the law of Scotland or the law of Northern Ireland;

(ii)

is binding on each unitholder as if he had been a party to it and that he is bound by its provisions; and

(iii)

authorises and requires the trustee and the manager to do the things required or permitted of them by its terms;

(b)

subject to the provisions of the trust deed and all the rules made under section 247 of the Act (Trust scheme rules):

(i)

the scheme (other than sums held to the credit of the distribution account) is held by the trustee on trust for the unitholders according to the number of units held by each unitholder or, where relevant, according to the number of individual shares in the scheme property represented by the units held by each unitholder; and

(ii)

the sums standing to the credit of any distribution account are held by the trustee on trust to distribute or apply in accordance with COLL 8.5.15 R (Income);

(c)

a unitholder is not liable to make any further payment after he has paid the price of his units and that no further liability can be imposed on him in respect of the units he holds; and

(d)

payments to the trustee by way of remuneration are authorised to be paid (in whole or in part) out of the scheme property.

Investment objectives

A statement of the object of the scheme, in particular the types of investments and assets in which it and each sub-fund (where applicable) may invest and that the object of the scheme is to invest in property of that kind with the aim of spreading investment risk.

Units in the scheme

A statement of:

(1)

the classes of units which the scheme may issue, indicating, for a scheme which is an umbrella, which class or classes may be issued in respect of each sub-fund; and

(2)

the rights attaching to units of each class (including any provisions for the expression in two denominations of such rights).

Limitation on issue of and redemption of units

Details as to:

(1)

the provisions relating to any restrictions on the right to redeem units in any class; and

(2)

the circumstances in which the issue of the units of any particular class may be limited.

Income and distribution

Details of the person responsible for the calculation, transfer, allocation and distribution of income for any class of unit in issue during the accounting period.

Base currency

A statement of the base currency of the scheme.

Meetings

Details of the procedures for the convening of meetings and the procedures relating to resolutions, voting and the voting rights for unitholders.

Powers and duties of the authorised fund manager and depositary

Where relevant, details of any function to be undertaken by the authorised fund manager and depositary which the rules in COLL require to be stated in the instrument constituting the scheme.

Termination and suspension

Details of:

(1)

the grounds under which the authorised fund manager may initiate a suspension of the scheme and any associated procedures; and

(2)

the methodology for determining the rights of unitholders to participate in the scheme property on winding up.

Other relevant matters

Details of those matters which enable the scheme, authorised fund manager or depositary to obtain any privilege or power conferred by the rules in COLL which is not otherwise provided for in the instrument constituting the scheme.

01/04/2004

Limited issue

COLL 8.2.7

Units whose issue may be limited can only be issued if permitted by the instrument constituting the scheme, under the conditions set out in the prospectus and provided that this will not materially prejudice any existing unitholders in the scheme.

01/04/2004

COLL 8.3

Investor relations

01/12/2004

Application

COLL 8.3.1

This section applies to an ICVC which is a qualified investor scheme and the authorised fund manager of a qualified investor scheme.

01/04/2004

Drawing up and availability of prospectus

COLL 8.3.2

(1) An authorised fund manager must ensure that a prospectus of a qualified investor scheme is drawn up which contains the information, specified in COLL 8.3.4 R (Table: contents of qualified investor scheme prospectus), and the authorised fund manager must:

(a) revise the prospectus immediately upon the occurrence of any materially significant change in the information required to be stated within it;

(b) include the date of any revision in a prominent manner in the revised prospectus, and

(2) The prospectus must not contain any provision which is unfairly prejudicial to the interests of unitholders generally or to the unitholders of any class of units.

(3) An ICVC or the manager of an AUT must offer a copy of the scheme's most recent prospectus free of charge to any person eligible to invest in a qualified investor scheme prior to the purchase of any units.

01/04/2004

False or misleading prospectus

COLL 8.3.3

The authorised fund manager must ensure that the prospectus does not contain any untrue or misleading statement or omit any matter required by the rules in this sourcebook to be included in it.

01/04/2004

Table: contents of qualified investor scheme prospectus

COLL 8.3.4

This table belongs to COLL 8.3.2 R.

Document status

A statement that this document is the prospectus of the authorised fund valid as at a particular date which shall be the date of the document.

Description of the authorised fund

Information detailing:

(1)

the name of the authorised fund;

(2)

that the authorised fund is either an ICVC or an AUT;

(3)

that the scheme is a qualified investor scheme;

(4)

where relevant, that the unitholders in an ICVC are not liable for the debts of the authorised fund;

(5)

where relevant, the address of the ICVC's head office and the address in the United Kingdom for service on the ICVC of documents required or authorised to be served on it;

(6)

the effective date of the authorisation order made by the FSA and, if the duration of the authorised fund is not unlimited, when it will or may terminate;

(7)

the base currency for the authorised fund;

(8)

where relevant, the maximum and minimum sizes of the ICVC's capital; and

(9)

the circumstances in which the authorised fund may be wound up under the rules in COLL and a summary of the procedure for, and the rights of unitholders under, such a winding up.

Investment objectives and policy

(1)

Sufficient information to enable a unitholder to ascertain:

(a)

the investment objectives of the authorised fund;

(b)

the authorised fund's investment policy for achieving those investment objectives, including:

(i)

the general nature of the portfolio and any intended specialisation;

(ii)

the policy for the spreading of risk in the scheme property; and

(iii)

the policy in relation to the exercise of borrowing powers;

(c)

a description of any restrictions in the assets in which investment may be made; and

(d)

the extent (if any) to which that investment policy does not envisage remaining fully invested at all times.

(2)

For investment in immovables :

(a)

the countries or territories of immovables in which the authorised fund may invest;

(b)

the policy of the authorised fund manager in relation to insurance of immovables forming part of the scheme property; and

(c)

the policy of the authorised fund manager in relation to the granting of options over immovables in the scheme property and the purchase of options on immovables.

(3)

If intended, whether the scheme property may consist of units in collective investment schemes ("second schemes") which are managed by or operated by the authorised fund manager or by one of its associates and a statement as:

(a)

to the basis of the maximum amount of the charges in respect of transactions in a second scheme; and

(b)

the extent to which any such charges will be reimbursed to the scheme.

(4)

If intended, whether the scheme may enter into stock lending transactions and, if so, what procedures will operate and what collateral will be required.

Distributions and accounting dates

Relevant details of accounting and distribution dates and a description of the procedures:

(1)

for determining and applying income (including how any distributable income is paid); and

(2)

relating to unclaimed distributions.

The characteristics of units in the authorised fund

Information as to:

(1)

the names of the classes of units in issue or available for issue and the rights attached to them in so far as they vary from the rights attached to other classes;

(2)

how unitholders may exercise their voting rights and what these are; and

(3)

the circumstances where a mandatory redemption, cancellation or conversion of units from one class to another may be required.

The authorised fund manager

The following particulars of the authorised fund manager:

(1)

its name and the nature of its corporate form;

(2)

the country or territory of its incorporation;

(3)

the date of its incorporation and if the duration of its corporate status is limited, when that status will or may cease;

(4)

if it is a subsidiary, the name of its ultimate holding company and the country or territory in which that holding company is incorporated;

(5)

the address of its registered office, its head office, and, if different, the address of its principal place of business in the United Kingdom;

(6)

the amount of its issued share capital and how much of it is paid up;

(7)

for an ICVC, a summary of the material provisions of the contract between the ICVC and the authorised fund manager which may be relevant to unitholders including provisions (if any) relating to termination, compensation on termination and indemnity; and

(8)

for an AUT, the names of the directors of the manager.

Directors of an ICVC, other than the ACD

Other than for the ACD:

(1)

the names and positions in the ICVC of the directors; and

(2)

the manner, amount and calculation of the remuneration of the directors.

The depositary

The following particulars of the depositary:

(1)

its name and the nature of its corporate form;

(2)

the country or territory of its incorporation;

(3)

the address of its registered office and the address of its head office if that is different from the address of its registered office; and

(4)

if neither its registered office nor its head office is in the United Kingdom, the address of its principal place of business in the United Kingdom.

The investment adviser

If an investment adviser is retained in connection with the business of the authorised fund, its name and whether or not it is authorised by the FSA.

The auditor

The name of the auditor of the authorised fund.

The register of unitholders

Details of the address in the United Kingdom where the register of unitholders is kept and can be inspected by unitholders.

Payments out of the scheme property

The payments that may be made out of the scheme property to any person whether by way of remuneration for services, or reimbursement of expense and for each category of remuneration or expense, the following should be specified:

(1)

the current rates or amounts of such remuneration;

(2)

how the remuneration will be calculated and accrue and when it will be paid;

(3)

if notice has been given to unitholders of the authorised fund manager's intention to:

(a)

introduce a new category of remuneration for its services; or

(b)

increase the basis of any current charge; or

(c)

change the basis of the treatment of a payment from the capital property set out in COLL 8.5.13 R (2) (Payments);

particulars of that introduction or increase and when it will take place;

(4)

the types of any other charges and expenses that may be taken out of the scheme property; and

(5)

if, in accordance with COLL 8.5.13 R (2), all or part of the remuneration or expense are to be treated as a capital charge:

(a)

that fact; and

(b)

the basis of the charge which may be so treated.

Dealing

Details of:

(1)

the dealing days and times in the dealing day on which the authorised fund manager will receive requests for the sale and redemption of units;

(2)

the procedures for effecting:

(a)

the issue and cancellation of units;

(b)

the sale and redemption of units; and

(c)

the settlement of transactions;

(3)

the steps required to be taken by a unitholder in redeeming units before he can receive the proceeds including any relevant notice periods and the circumstances and periods where a deferral of payment as provided in COLL 8.5.11 R (3) (Sale and redemption) may be applied;

(4)

the circumstances in which the redemption of units may be suspended;

(5)

the days and times in the day on which recalculation of the price will commence;

(6)

details of the minimum number or value of each type of unit in the authorised fund which:

(a)

any one person may hold; and

(b)

may be the subject of any one transaction of sale or redemption;

(7)

the circumstances in which the authorised fund manager may arrange for, and the procedure for, a redemption of units in specie;

(8)

the circumstances in which the further issue of units in any particular class may be limited and the procedures relating to this

(9)

the circumstances in which direct issue or cancellation of units by the ICVC or the trustee (as appropriate) may occur and the relevant procedures for such issues and cancellations

Valuation of scheme property

Details as to:

(1)

how frequently and at what times of the day the scheme property will be regularly valued to determine the price at which units in the scheme may be purchased from or redeemed by the authorised fund manager and a description of any circumstance where the scheme property may be specially valued;

(2)

in relation to each purpose for which the scheme property must be valued, the basis on which it will be valued; and

(3)

how the price of units of each class will be determined, including whether a forward or historic price basis is to be applied.

Sale and redemption charges

If the authorised fund manager makes any charges on sale or redemption of units, details of the charging structure and how notice will be provided to unitholders of any increase.

General information

Details as to:

(1)

when annual and half- yearly reports will be published; and

(2)

the address at which copies of the instrument constituting the scheme, any amending instrument and the most recent annual reports may be inspected and from which copies may be obtained.

Information on the umbrella

In the case of a scheme which is an umbrella, the following information:

(1)

that a unitholder may exchange units in one sub-fund for units in another sub-fund and that such an exchange is treated as a redemption and sale;

(2)

what charges may be made on exchanging units in one sub-fund for units in other sub-funds;

(3)

the policy for allocating between sub-funds any assets of, or costs, charges and expenses payable out of, the scheme property which are not attributable to any particular sub-fund;

(4)

in respect of each sub-fund, the currency in which the scheme property allocated to it will be valued and the price of units calculated and payments made, if this currency is not the base currency of the umbrella; and

(5)

for an ICVC, that the sub-funds are not "ring fenced" and in the event of an umbrella being unable to meet liabilities attributable to any particular sub-fund out of the assets attributable to that sub-fund, the remaining liabilities may have to be met out of the assets attributable to other sub-funds.

Application of the prospectus contents to an umbrella

For a scheme which is an umbrella, information required must be stated:

(1)

in relation to each sub-fund where the information for any sub-fund differs from that for any other; and

(2)

for the umbrella as a whole, but only where the information is relevant to the umbrella as a whole.

Additional information

Any other material information which is within the knowledge of the directors of an ICVC or the manager of an AUT, or which the directors or manager would have obtained by the making of reasonable enquiries which investors and their professional advisers would reasonably require, and reasonably expect to find in the prospectus, for the purpose of making an informed judgement about the merits of investing in the authorised fund and the extent and characteristics of the risks accepted by so participating.

01/04/2004

Report and accounts

COLL 8.3.5

(1) The authorised fund manager must prepare a report in respect of each annual accounting period and half-yearly accounting period.

(2) The first annual accounting period must begin:

(a) on the first day of any period of initial offer; or

(b) in any other case, on the date of the relevant authorisation order.

(3) The authorised fund manager must within a reasonable time after the end of each relevant accounting period, publish the annual report and half-yearly report and provide a copy free of charge on request to any unitholder.

(4) The authorised fund manager must comply with the requirements of the IMA SORP.

(5) The authorised fund manager must provide free of charge on the request of a purchaser of units a copy of the latest annual or half-yearly report before the conclusion of that sale.

(6) The authorised fund manager must provide a copy of each annual and half-yearly report to the FSA .

01/04/2004

Alterations to the scheme and notices to unitholders

COLL 8.3.6

(1) Any proposed change which would be reasonably considered to be a fundamental change to the scheme requires the prior sanction of an ordinary resolution of the unitholders.

(2) Any proposed change to the scheme which is not within (1) but which would be reasonably considered to be significant, requires the giving of reasonable notice to unitholders to become effective.

(3) Alterations affecting only a particular sub-fund or class of units may be approved in accordance with (1) or (2) for the particular sub-fund or class of units, with the consent of, or, as the case may be, notice to, the relevant unitholders.

(4) This rule and COLL 8.3.8 R (Meetings) will apply (unless the context requires otherwise) to alterations concerning unitholders of a particular sub-fund or class of units rather than the scheme or sub-fund as a whole.

01/04/2004

Alterations to the scheme and notices to unitholders: guidance

COLL 8.3.7

Although account should be taken of the guidance on fundamental changes (COLL 4.3.5 G (Guidance on fundamental changes)) and significant changes (COLL 4.3.7 G (Guidance on significant changes)) the impact of any change to the scheme should be assessed individually based on the nature of the scheme and its investor profile.

01/04/2004

Meetings

COLL 8.3.8

(1) Details of the procedures for the convening and conducting of meetings and resolutions must be set out in the instrument constituting the scheme and be reasonable and fair as between all relevant parties.

(2) The authorised fund manager must record and keep minutes for six years of all proceedings to which COLL 8.3.6 R (Alterations to the scheme and notices to unitholders) and this rule are relevant.

(3) The provisions in COLL 4.4.12 R (Notices to unitholders), COLL 4.4.13 R (Other notices) and COLL 4.4.14 G (References to writing and electronic documents) apply in relation to qualified investor schemes.

01/04/2004

COLL 8.4

Investment and borrowing powers

01/12/2004

Application

COLL 8.4.1

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.

01/04/2004

Spread of risk

COLL 8.4.2

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).

01/04/2004

Investment powers: general

COLL 8.4.3

(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) The instrument constituting the scheme and the prospectus may further restrict:

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

(b) the types of transactions permitted and any relevant limits; and

01/04/2004

Qualified investor schemes: general

COLL 8.4.4

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) any specified investment:

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

(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) an interest in an approved immovable under COLL 8.4.11 R (Investment in property), provided the country or territory in which the land or building is situated is identified in the prospectus;

(3) precious metals; or

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

01/04/2004

Investment in collective investment schemes

COLL 8.4.5

A qualified investor scheme may invest in units in a scheme (a second scheme) only if the second scheme is:

(1) a regulated collective investment scheme; or

(2) a scheme not within (1) where the authorised fund manager has taken reasonable care to determine that:

(a) it is the subject of an independent annual audit conducted in accordance with international accounting standards;

(b) it has its value verified by a person independent from its operator in relation to each day on which dealing in that scheme's units may take place;

(d) it is prohibited from having more than 15% of its value in units of schemes; and

(e) it operates in accordance with the principle of risk spreading.

01/04/2004

Delivery of property under a transaction in derivatives or a commodities contract

COLL 8.4.6

(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:

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

(i) can be readily closed out; or

(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

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

(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) 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.

01/04/2004

Cover for transactions in derivatives and forward transactions

COLL 8.4.7

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

(4) No element of cover may be used more than once.

01/04/2004

Continuing nature of limits and requirements

COLL 8.4.8

(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) 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) 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's derivatives positions and their contribution to the overall risk profile of the scheme.

01/04/2004

Permitted stock lending

COLL 8.4.9

(1) The ICVC, or the depositary at the request of the ICVC, or the trustee at the request of the manager, may enter into a stock lending arrangement within section 263B of the Taxation of Chargeable Gains Act 1992 (without extension by section 263C).

(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) 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.

01/04/2004

General power to borrow

COLL 8.4.10

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

(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) 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) 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.

01/04/2004

Investment in property

COLL 8.4.11

(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) For an immovable :

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

(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

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

(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;

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

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

(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

(e) it must not be bought:

(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

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

(4) An appropriate valuer must be a person who:

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

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

(c) is independent of the ICVC, the depositary and each of the directors of the ICVC or of the manager and trustee of the AUT; and

(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.

01/04/2004

Investment limits for immovables

COLL 8.4.12

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

(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) 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) 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.

01/04/2004

Standing independent valuer and valuation

COLL 8.4.13

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

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

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

(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;

(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;

(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;

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

(i) affect the outcome of a valuation of an immovable; or

(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;

(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

(f) any valuation by the standing independent valuer must be on the basis of an 'Open Market value' as defined in the Royal Institute of Chartered Surveyors' Appraisal and Valuation Standards (Fifth Edition) ("Red Book")but is subject to any provisions of the instrument constituting the scheme.

(3) In relation to immovables:

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

(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.

01/04/2004

COLL 8.5

Powers and responsibilities

01/12/2004

Application

COLL 8.5.1

This section applies to an ICVC which is a qualified investor scheme and the authorised fund manager any other directors of an ICVC and the depositary of a qualified investor scheme.

01/04/2004

Functions of the authorised fund manager

COLL 8.5.2

(1) The authorised fund manager must manage the scheme in accordance with:

(a) the instrument constituting the scheme;
(b) the rules in this sourcebook;
(c) the most recently published prospectus; and
(d) for an ICVC, the OEIC Regulations.

(2) The authorised fund manager must carry out such functions as are necessary to ensure compliance with the rules in this sourcebook that impose obligations on the authorised fund manager or ICVC, as appropriate.
(3) The authorised fund manager must:

(a) make decisions as to the constituents of the scheme property in accordance with the investment objectives and policy of the scheme;
(b) instruct the depositary how rights attaching to the ownership of scheme property are to be exercised;
(c) take action immediately to rectify any breach of the pricing methodology set out in the prospectus, which must (unless the authorised fund manager determines on reasonable grounds that the breach is of minimal significance) extend to payment of money:

(i) by the authorised fund manager to unitholders and former unitholders;
(ii) by the ACD to the ICVC;
(iii) by the ICVC to the ACD;
(iv) by the manager to the trustee; or
(v) by the trustee (for the account of the AUT) to the manager;

(d) ensure where relevant that the ICVC complies with the relevant obligations imposed by, and when appropriate, exercises the relevant powers provided under, the OEIC Regulations;
(e) maintain such records as are necessary to enable the authorised fund manager or the ICVC, as appropriate, to comply with and demonstrate compliance with the rules in this sourcebook and also in the case of an ICVC, the OEIC Regulations; and
(f) maintain for a period of six years a daily record of the units held, acquired or disposed of by the authorised fund manager including the classes of such units, and of the balance of any acquisitions and disposals.

01/04/2004

Duties of the authorised fund manager: investment and borrowing powers

COLL 8.5.3

(1) An authorised fund manager may give instructions to deal in the scheme property.

(2) An authorised fund manager must avoid the scheme property being used or invested contrary to any provision in COLL 8.4 (Investment and borrowing powers).

(3) An authorised fund manager must immediately on becoming aware of any breach of COLL 8.4 take action, at its own expense, to rectify that breach.

(4) An authorised fund manager must take the action in (3) immediately, except in circumstances where doing so would not be in the best interests of unitholders, in which case the action must be taken as soon as such circumstances cease to apply.

(5) An authorised fund manager must not postpone taking action in accordance with (3) unless the depositary has given its consent.

01/04/2004

Duties of the depositary

COLL 8.5.4

(1) The depositary is responsible for the safekeeping of all the scheme property.

(2) The depositary must:

(a) take all steps to ensure that transactions properly entered into for the account of the scheme are completed;

(b) take all steps to ensure that instructions properly given by the authorised fund manager in respect of the exercise of rights related to scheme property are carried out;

(c) ensure that any scheme property in registered form is as soon as reasonably practicable registered in its name or that of its nominee or delegate, as appropriate;

(d) take into its custody or control all documents of title of the scheme property other than in respect of derivatives or forward transactions;

(e) ensure that any resulting benefit of a derivatives or forward transaction is received by itself in respect of the scheme;

(f) hold and deal with any income received in respect of the scheme property in accordance with COLL 8.5.15 R (Income);

(g) take reasonable care to ensure that the scheme is managed by the authorised fund manager in accordance with:

(i) COLL 8.4 (Investment and borrowing powers);

(ii) COLL 8.5.9 R (Valuation, pricing and dealing); and

(iii) COLL 8.5.15 R (Income);

(h) keep records so as to comply with the rules in this sourcebook and so as to demonstrate such compliance; and

(i) be responsible for any other duties as set out in the instrument constituting the scheme.

(3) If a relevant ICVC ceases to have any directors, the depositary may act in accordance with COLL 6.5.6 R(ICVC without a director).

01/04/2004

Delegation

COLL 8.5.5

(1) The authorised fund manager (or in addition any other director in the case of an ICVC) may delegate any function to any person.

(2) The depositary has the power to delegate any function to anyone, including in the case of an ICVC a director, to assist the depositary to perform its functions, save that it must not retain the services of the authorised fund manager or, in the case of an ICVC, any other director to perform any part of its functions of safe custody of the scheme property.

(3) Subject to any provisions of the OEIC Regulations, the delegator in (1) and (2) will not be responsible under the rules in COLL for any act or omission of the delegate provided that the delegator can show:

(a) that it was reasonable for the delegator to obtain assistance to perform the function in question;

(b) that the delegate was and remained competent to provide that assistance; and

01/04/2004

Delegation and responsibility for regulatory obligations

COLL 8.5.6

SYSC 3.2 contains guidance relating to delegation including external delegation, and SYSC 3.2.4 G (1) states that a firm cannot contract out of its regulatory obligations.

01/04/2004

Conflicts of interest

COLL 8.5.7

(1) The authorised fund manager and the depositary must ensure that any transaction in respect of the scheme property undertaken with an affected person is on terms at least as favourable to the scheme as any comparable arrangement on normal commercial terms negotiated at arm's length with an independent third party.

(2) Paragraph (1) is subject to any provision in the instrument constituting the scheme and the prospectus imposing a prohibition in relation to any type of transaction.

01/04/2004

The register of unitholders: AUTs

COLL 8.5.8

(1) The manager or the trustee (in accordance with their responsibilities as set out in the instrument constituting the scheme ) must maintain a register of unitholders as a document in accordance with this rule.

(2) The register must contain:

(a) the name and address of each unitholder (for joint unitholders no more than four need to be registered);

(b) the number of units (including fractions of a unit) of each class held by each unitholder; and

(3) The manager or the trustee (as appropriate) must take all reasonable steps and exercise all due diligence to ensure the register is kept complete and up to date.

(4) Where relevant, the manager must immediately notify the trustee of any information he receives which may affect the accuracy of any entry in the register.

01/04/2004

Valuation, pricing and dealing

COLL 8.5.9

(1) The value of the scheme property is the net value of the scheme property after deducting any outstanding borrowings (including any capital outstanding on a mortgage of an immovable).

(2) Any part of the scheme property which is not an investment (save an immovable) must be valued at fair value.

(3) For the purposes of (2), any charges that were paid, or would be payable, on acquiring or disposing of the asset must be excluded from the value of that asset.

(4) The value of the scheme property of an authorised fund must, save as otherwise provided in this section, be determined in accordance with the provisions of the instrument constituting the scheme and the prospectus, as appropriate.

(5) The scheme must have a valuation point on each dealing day.

(6) The authorised fund manager must prepare a valuation in accordance with (4) for each relevant type of unit at each relevant valuation point.

(7) The price of a unit must be calculated on the basis of the valuation in (6) in a manner that is fair and reasonable as between unitholders.

(8) Immediately after completing a valuation under (6), the authorised fund manager must notify the depositary of:

(a) the price in the relevant currency of each type of unit as determined for the relevant valuation point; and

(b) the basis of any adjustment applied in relation to that valuation point.

(9) The authorised fund manager must publish in an appropriate manner the priceof any type of unit based on the notification to the depositary in (8)(a).

(10) The authorised fund manager must also provide on request to any unitholder at any time an estimated price for any type of unit in the scheme.

(11) The period of any initial offer and how it should end must be set out in the prospectus and must not be of unreasonable length.

01/04/2004

Issues and cancellations of units

COLL 8.5.10

(1) The authorised fund manager must:

(a) ensure that at each valuation point there are at least as many units in issue of any class as there are units registered to unitholders of that class; and

(b) not do, or omit anything that would, or might confer on itself a benefit or advantage at the expense of a unitholder or potential unitholder.

(2) For the purposes of (1) the authorised fund manager may take into account sales and redemptions after the valuation point, provided it has systems and controls to ensure compliance with (1).

(3) The authorised fund manager must arrange for the issue and cancellation of units and pay money or assets to or from the depositary for the account of the scheme as required by the prospectus.

(4) The authorised fund manager must keep a record of issues and cancellations made under this rule.

(5) The authorised fund manager may arrange for the ICVC, or instruct the trustee to issue or cancel units where the authorised fund manager would otherwise be obliged to sell or redeem the units in the manner set out in the prospectus.

(6) Where the authorised fund manager has not complied with (1), it must correct the error as soon as possible and must reimburse the scheme any costs it may have incurred in correcting the position, subject to any reasonable minimum level for such reimbursement as set out in the prospectus.

01/04/2004

Sale and redemption

COLL 8.5.11

(1) The authorised fund manager must, at all times during the dealing day, be willing to effect the sale of units to any eligible investor (within any conditions in the instrument constituting the scheme and the prospectus which must be fair and reasonable as between all unitholders and potential unitholders) for whom the authorised fund manager does not have reasonable grounds to refuse such sale.

(2) The authorised fund manager must, at all times during the dealing day, effect a redemption on the request of any eligible unitholder (within any conditions in the instrument constituting the scheme and the prospectus) of units owned by that unitholder, unless the authorised fund manager has reasonable grounds to refuse such redemption.

(3) On agreeing to a redemption of units within (2), the authorised fund manager must pay the full proceeds of the redemption to the unitholder within any reasonable period specified in the instrument constituting the scheme or the prospectus, unless it has reasonable grounds for withholding payment.

(4) Payment of proceeds on redemption must be made by the authorised fund manager in any manner provided for in the prospectus which must be fair and reasonable as between redeeming unitholders and continuing unitholders.

01/04/2004

Limited redemption periods

COLL 8.5.12

The maximum period between dealing days for a qualified investor scheme will depend on the reasonable expectations of the target investor group and the particular investment objectives and policy of the scheme. For instance, for a scheme aiming to invest in large property developments, the expectation would be that it is reasonable to have a much longer period between dealing days for liquidity reasons than for a scheme investing predominantly in listed securities.

01/04/2004

Payments

COLL 8.5.13

(1) An ICVC must not incur any expense in respect of the use of any movable or immovable property unless the scheme is dedicated to such investment or such property is necessary for the direct pursuit of its business.

(2) Payments out of the scheme property may be made from capital property rather than from income, provided the basis for this is set out in the prospectus.

01/04/2004

Exemption from liability to account for profits

COLL 8.5.14

An affected person is not liable to account to another affected person or to the unitholders of the scheme for any profits or benefits it makes or receives that are made or derived from or in connection with:

(1) dealings in the units of a scheme; or

(2) any transaction in scheme property; or

(3) the supply of services to the scheme;

where disclosure of the non-accountability has been made in the prospectus of the scheme.

01/04/2004

Income

COLL 8.5.15

(1) A qualified investor scheme must have:

(a) an annual accounting period;

(b) a half-yearly accounting period; and

the details of which must be set out in the prospectus.

(2) A qualified investor scheme must have an annual income allocation date, which must be within four months of the accounting reference date.

(3) A qualified investor scheme may have an interim income allocation date and interim accounting periods and if it does, the interim income allocation date must be within a reasonable period of the end of the relevant interim accounting period as set out in the prospectus.

(4) A qualified investor scheme must have a distribution account where the income property is transferred at the end of the relevant accounting period.

(5) If income is allocated and distributed during an accounting period:

(a) with effect from the end of the relevant accounting period, the amount of income allocated to unit classes that accumulate income becomes part of the capital property and requires an adjustment to the proportion of the value of the scheme property to which they relate if other classes units are in issue during the period;

(b) the adjustment in (a) must ensure the price remains unchanged despite the transfer of income; and

(c) the amount of any interim distribution may not be more than the amount which, in the opinion of the authorised fund manager, would be available for allocation if the interim accounting period and all previous interim accounting periods in the same annual accounting period, taken together, were an annual accounting period.

01/04/2004

COLL 8.6

Termination, suspension, and schemes of arrangement

01/12/2004

Application

COLL 8.6.1

This section applies to:

(1) an authorised fund manager, the directors, and the depositary of a qualified investor scheme; and

(2) an ICVC which is a qualified investor scheme.

01/04/2004

Termination

COLL 8.6.2

For a qualified investor scheme the provisions in COLL 7.3 to COLL 7.5 will apply as appropriate as if COLL 7 applied to qualified investor schemes.

01/04/2004

Suspension

COLL 8.6.3

(1) The authorised fund manager may within any parameters which are fair and reasonable in respect of all the unitholders in the scheme and which are set out in the prospectus, suspend dealings in units of the scheme, a sub-fund or a class.

(2) Any suspension within (1) must only be where the authorised fund manager has determined on reasonable grounds that there is good and sufficient reason in the interests of unitholders or potential unitholders and the authorised fund manager must have regard to the interests of all the unitholders in the scheme in reaching such an opinion.

(3) At the commencement of suspension under (1), the authorised fund manager must immediately inform the FSA of the suspension and the reasons for it.

(4) The suspension of dealings in units must cease within 28 days of its commencement or, if earlier, as soon as (2) no longer applies.

(5) The authorised fund manager must inform the FSA immediately of the resumption of dealings.

01/04/2004

Suspension

COLL 8.6.4

Under section 257 of the Act (Directions) the FSA may at its option extend the suspension of dealings in units beyond 28 days of the commencement of suspension.

01/04/2004

Schemes of arrangement

COLL 8.6.5

In relation to an ICVC or an AUT which is a qualified investor scheme, the provisions in COLL 7.6 (Schemes of arrangement) will apply as appropriate to the authorised fund manager, any other directors of the ICVC and the depositary as if COLL 7.6 applied to a qualified investor scheme and did not exclude unitholders becoming unitholders in another qualified investor scheme.

01/04/2004