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COLL 3.2 The instrument constituting the scheme

Application

COLL 3.2.1RRP

This section applies to:

  1. (1)

    an authorised fund manager of an AUT or ICVC;

  2. (2)

    any other director of an ICVC;

  3. (3)

    a depositary of an AUT or an ICVC; and

  4. (4)

    an ICVC,

except COLL 3.2.8 R(UCITS obligations), which applies only to an ICVC or to the manager of an AUT where the ICVC or AUT is a UCITS scheme.

Relationship between the instrument constituting the scheme and the rulesRelationship between the instrument constituting the fund and the rules

COLL 3.2.2RRP
  1. (1)

    The instrument constituting the scheme must not contain any provision that:

    1. (a)

      conflicts with any rule in this sourcebook;

    2. (b)

      prevents units in the scheme being marketed in the United Kingdom; or

    3. (c)

      is unfairly prejudicial to the interests of unitholders generally or to the unitholders of any class of units.

  2. (2)

    Any power conferred by the rules on the ICVC, the authorised fund manager, any other director of the ICVC, or the depositary, whether in a sole or joint capacity, is subject to any restriction in the instrument constituting the scheme.

The trust deed for AUTs

COLL 3.2.3RRP

An AUT must be constituted by a trust deed made between the manager and the trustee.

Matters which must be included in the instrument constituting the scheme

COLL 3.2.4RRP

The statements and provisions required by COLL 3.2.6 R (Table: contents of the instrument constituting the scheme) must be included in the instrument constituting the scheme, where appropriate.

The instrument constituting the scheme: OEIC Regulations and trust law requirements

COLL 3.2.5GRP
  1. (1)

    Several of the matters set out in COLL 3.2.6 R are required to be included in the instrument constituting the scheme under the OEIC Regulations or as a consequence of relevant trust law. In addition, further statements are required if the scheme or the authorised fund manager are to take advantage of the powers under the rules in this sourcebook.

  2. (2)

    Additional matters which are not contained in COLL 3.2.6 R may be required to be included in the instrument constituting the scheme in order to comply with the OEIC Regulations, (particularly Schedule 2 - Instrument of Incorporation) and for the purposes of making the scheme eligible under relevant tax, pensions, or charities legislation.

Table: contents of the instrument constituting the scheme

COLL 3.2.6RRP

This table belongs to COLL 3.2.4 R (Matters which must be included in the instrument constituting the scheme)

Name of scheme

1

A statement of:

(1)

the name of the authorised fund; and

(2)

whether the authorised fund is a UCITS scheme or a non-UCITS retail scheme.

Investment powers in eligible markets

2

A statement that, subject to any restriction in the rules in this sourcebook or the instrument constituting the scheme, the scheme has the power to invest in any eligible securities market or deal on any eligible derivatives market to the extent that power to do so is conferred by COLL 5 (Investment and borrowing powers).

Unitholder's liability to pay

3

A provision that 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 which he holds.

Base currency

4

A statement of the base currency of the scheme.

Valuation and pricing

5

A statement setting out the basis for the valuation and pricing of the scheme.

Duration of the scheme

6

If the scheme is to be wound up after a particular period expires, a statement to that effect.

Object of the scheme

7

A statement:

(1)

as to 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

(2)

that the object of the scheme is to invest in property of that kind with the aim of spreading investment risk and giving unitholders the benefits of the results of the management of that property.

27A

Where the authorised fund is a qualifying money market fund, a statement to that effect and a statement that the authorised fund's investment objectives and policies will meet the conditions specified in the definition of qualifying money market fund.

5Property Authorised Investment Funds

57B

For a property authorised investment fund, a statement that:

(1)

it is a property authorised investment fund;

(2)

no body corporate may seek to obtain or intentionally maintain a holding of more than 10% of the net asset value of the fund; and

(3)

in the event that the authorised fund manager reasonably considers that a body corporate holds more than 10% of the net asset value of the fund, the authorised fund manager is entitled to delay any redemption or cancellation of units in accordance with 18 if the authorised fund manager reasonably considers such action to be:

(a) necessary in order to enable an orderly reduction of the holding to below 10%; and

(b) in the interests of the unitholders as a whole.

Government and public securities: investment in one issuer

8

Where relevant, for a UCITS scheme, a statement in accordance with COLL 5.2.12 R (Spread: government and public securities) as to the individual states or bodies in which over 35% of the value of the scheme may be invested in government and public securities.

Classes of unit

9

A statement:

(1)

specifying the classes of unit that may be issued, and for a scheme which is an umbrella, the classes that may be issued in respect of each sub-fund; and

(2)

if the rights of any class of unit differ, a statement describing those differences in relation to the differing classes.

Authorised fund manager's charges and expenses

10

A statement setting out the basis on which the authorised fund manager may make a charge and recover expenses out of the scheme property.

Issue or cancellation directly through the ICVC or trustee

11

Where relevant, a statement authorising the issue or cancellation of units to take place through the ICVC or trustee directly.

In specie issue and cancellation

12

Where relevant, a statement authorising payment for the issue or cancellation of units to be made by the transfer of assets other than cash.

Restrictions on sale and redemption

13

Where relevant, the restrictions which will apply in relation to the sale and redemption of units under COLL 6.2.16 R (Sale and redemption).

Voting at meetings

14

The manner in which votes may be given at a meeting of unitholders under COLL 4.4.8 R (Voting rights).

Certificates

15

A statement:

(1)

authorising the issue of bearer certificates if any, and how such holders are to identify themselves; and

(2)

authorising the person responsible for the register to charge for issuing any document recording, or for amending, an entry on the register, other than on the issue or sale of units.

Income

16

A statement setting out the basis for the distribution or re-investment of income.

Income equalisation

17

Where relevant, a provision for income equalisation.

Redemption or cancellation of units on breach of law or rules

18

A statement that where any holding of units by a unitholder is (or is reasonably considered by the authorised fund manager to be) an infringement of any law, governmental regulation or rule, those units must be redeemed or cancelled.

ICVCs: larger and smaller denomination shares

19

A statement of the proportion of a larger denomination share represented by a smaller denomination share for any relevant unit class.

ICVCs: resolution to remove a director

20

A statement that the ICVC may (without prejudice to the requirements of regulation 21 of the OEIC Regulations (The Authority's approval for certain changes in respect of a company), by a resolution passed by a simple majority of the votes validly cast for and against the resolution at a general meeting of unitholders, remove a director before his period of office expires, despite anything else in the ICVC's instrument of incorporation or in any agreement between the ICVC and that director.

ICVCs: unit transfers

21

A statement that the person designated for the purposes of paragraph 4 of Schedule 4 to the OEIC Regulations (Share transfers) or for an ICVC established in Northern Ireland, paragraph 3 of Schedule 4 to the Open-Ended Investment Companies Regulations (Northern Ireland) 2004 (SR 2004/335) is the person who, for the time being, is the ACD of the ICVC.1

ICVCs: Charges and expenses

22

A statement that charges or expenses of the ICVC may be taken out of the scheme property.

AUTs: governing law for a trust deed

23

A statement that the trust deed is made under and governed by the law of England and Wales, Wales or Scotland or Northern Ireland.

AUTs: trust deed to be binding and authoritative

24

A statement that the trust deed:

(1)

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

(2)

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

AUTs: declaration of trust

25

A declaration that, subject to the provisions of the trust deed and all rules made under section 247 of the Act (Trust scheme rules) and for the time being in force:

(1)

the scheme property (other than sums standing 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 undivided shares in the scheme property represented by the units held by each unitholder; and

(2)

the sums standing to the credit of the distribution account are held by the trustee on trust to distribute or apply them in accordance with COLL 6.8 (Income: accounting, allocation and distribution).

AUTs: trustee's remuneration

26

Where relevant, a statement authorising payments to the trustee by way of remuneration for its services to be paid (in whole or in part) out of the scheme property.

AUTs: responsibility for the register

27

A statement identifying the person responsible under the rules for the maintenance of the register.

3Investment in overseas4 property through an intermediate holding vehicle

328

3If investment in an overseas4 immovable is to be made through an intermediate holding vehicle or a series of intermediate holding vehicles, a statement that the purpose of that intermediate holding vehicle or series of intermediate holding vehicles will be to enable the holding of overseas4 immovables by the scheme.

Umbrella scheme with only one sub-fund

COLL 3.2.7R
  1. (1)

    If, after the first issue of a unit in a scheme which is an umbrella, for a period of 24 consecutive months, units of less than two sub-funds are in issue, the authorised fund manager or, for an ICVC, its other directors must take such action as is necessary to reflect the fact that the scheme is no longer an umbrella or cause units of more than one sub-fund to be in issue.

  2. (2)

    If (1) applies or is reasonably expected to become applicable by the authorised fund manager or, for an ICVC, its other directors, the authorised fund manager or, for an ICVC, its other directors, the authorised fund manager or its other directors must notify the unitholders and the FSA of any action to comply with (1).

  3. (3)

    Paragraph (1) does not apply if before the expiry of the 24 month period, winding up of the scheme has commenced.

UCITS obligations

COLL 3.2.8RRP

  1. (1)

    The instrument constituting a UCITS scheme may not be amended in such a way that it ceases to be a UCITS scheme.

  2. (2)

    If it is proposed to market units of a UCITS scheme in any EEA State other than the United Kingdom, the authorised fund manager of that scheme must notify the FSA of its proposal, specifying the EEA State concerned.

  3. (3)

    The ICVC or the manager must make the notification in (2) no later than the notification to the authorities in that EEA State of that proposal.