95Borrowing

#### 95 Borrowing (1) Except with the approval of APRA under subsection (2) or except as provided by subsection (3), the trustee of an approved deposit fund must not borrow money. (2) APRA may approve a borrowing by the trustee of an approved deposit fund if the trustee satisfies APRA that special circumstances exist that justify the borrowing. (3) Subsection (1) does not prohibit the trustee of an approved deposit fund from borrowing money if: (a) the purpose of the borrowing is to enable the trustee to cover settlement of a transaction for the acquisition of any of the following: (i) bonds, debentures, stock, bills of exchange or other securities; (ii) shares in a company; (iii) units in a unit trust; (iv) futures contracts; (v) forward contracts; (vi) interest rates swap contracts; (vii) currency swap contracts; (viii) forward exchange rate contracts; (ix) forward interest rate contracts; (x) a right or option in respect of such a security, share, unit, contract or policy; (xi) any similar financial instrument; (xii) foreign currency; and (b) both: (i) at the time the relevant investment decision was made, it was likely that the borrowing would not be needed; and (ii) the borrowing is not taken, under a determination made, by legislative instrument, by APRA, to be exempt from this paragraph; and (c) the period of the borrowing does not exceed 7 days; and (d) if the borrowing were to take place, the total amount borrowed by the trustee would not exceed 10% of the value of the assets of the fund. (5) Subsection (1) is a civil penalty provision as defined by section 193, and Part 21 therefore provides for civil and criminal consequences of contravening, or of being involved in a contravention of, that subsection.