Exhibit 4.3

 

TRUST DEED

 

Index to Clauses

 

	
1.00
    	
Interpretation
    
	
2.00
    	
Covenant to repay and to pay interest
    
	
3.00
    	
Form of the Certificates
    
	
4.00
    	
Principal Amount of the Notes
    
	
5.00
    	
Negative Pledge
    
	
6.00
    	
Events of Default
    
	
7.00
    	
Guarantee
    
	
8.00
    	
Enforcement by the Trustee
    
	
9.00
    	
Application of Moneys
    
	
10.00
    	
Notice to Noteholders regarding application of   moneys
    
	
11.00
    	
Payment to Noteholders following an event of default
    
	
12.00
    	
Surrender, cancellation and re-issue of Notes
    
	
13.00
    	
Failure by Noteholder to make claim after date of   redemption
    
	
14.00
    	
Register of Notes
    
	
15.00
    	
Trustee’s Remuneration
    
	
16.00
    	
Covenants by the Company
    
	
17.00
    	
Trustee’s Powers
    
	
18.00
    	
Trustee’s Power to Delegate
    
	
19.00
    	
Appointment of Agents by Trustee
    
	
20.00
    	
Trustee not precluded from entering into contracts
    
	
21.00
    	
Trustee’s consents
    
	
22.00
    	
Modification of Trust Deed
    
	
23.00
    	
Waiver by Trustee
    
	
24.00
    	
Appointment of New Trustee
    
	
25.00
    	
Retirement by Trustee
    
	
26.00
    	
Company’s warranty and performance and Conditions   Precedent covenant
    
	
27.00
    	
Deemed inclusion of conditions
    
	
28.00
    	
Trustee may assume compliance by the Company
    
	
29.00
    	
Auditor’s Certificates
    
	
30.00
    	
Transfer of Notes
    
	
31.00
    	
Cancellation of Notes
    
	
32.00
    	
Assurances
    
	
33.00
    	
Power of Attorney
    
	
34.00
    	
Miscellaneous
    
	
35.00
    	
Notices
    
	
36.00
    	
Governing Law
    
	
37.00
    	
Submission to Jurisdiction
    
	
38.00
    	
Waiver of Objection
    
	
39.00
    	
Service of Process
    


 

Index to Schedules

 

	
First Schedule:
    	
Certificate and Terms and Conditions of the Notes
    
	
Second Schedule:
    	
Provisions for Meetings of Noteholders
    


 











 

T R I N I D A D

 

	
 
    	
This Deed was prepared by me,
    
	
 
    	
 
    
	
 
    	
/s/ Nicholas Sinanan
    
	
 
    	
 
    
	
 
    	
Attorney at Law
    
	
 
    	
Lex Caribbean,
    
	
 
    	
5/7, Sweet Briar Road,
    
	
 
    	
St. Clair,
    
	
 
    	
Port of Spain.
    


 

T H I S  D E E D is made this 23rd day of March in the Year of Our Lord Two Thousand and Seven Between FIRSTCARIBBEAN INTERNATIONAL BANKING & FINANCIAL CORPORATION LIMITED a company incorporated under the laws of the Republic of Trinidad and Tobago with its registered office at 12 Victoria Avenue in the City of Port of Spain, in the Island of Trinidad (hereinafter called “the Company”) of the One Part and POLANC TRUSTS LIMITED a company incorporated under of the laws of the Republic of Trinidad and Tobago with its registered office at 17-19 Pembroke Street in the City of Port of Spain, in the Island of Trinidad (hereinafter called “the Trustee”) of the Other Part.

 

WHEREAS

 

A.                                    By a Resolution of the Company passed on the 23rd day of February, 2007 the Company resolved to borrow with the approval of its Board of Directors in accordance with its Articles and by-laws a sum not exceeding Three Hundred Million Dollars ($300,000,000.00) by the issue and sale of Guaranteed Subordinated Term Notes and as at the date hereof the Company has duly limited the said sum to be borrowed to an amount of One Hundred and Ninety-Five Million Dollars ($195,000,000.00).

 











 

B.                                    It has been agreed and determined between the Company and the Trustee that the Notes shall be constituted and secured in the manner and upon the terms and conditions contained in this Trust Deed and subject to and with the benefit of the Conditions which shall be deemed to be part of this Trust Deed.

 

C.                                    The net proceeds from the issue of the Notes shall be used for general lending purposes and such use of proceeds is legitimate and in accordance with applicable law.

 

D.                                    The Trustee has agreed to act as trustee of this Trust Deed for the benefit of the Noteholders on and subject to the terms and conditions set out in this Trust Deed.

 

NOW THIS TRUST DEED WITNESSETH AND IT IS HEREBY AGREED AND DECLARED as follows:-

 

1.00                                                     INTERPRETATION

 

1.01                             In this Trust Deed:-

 

“AFFILIATES” means with respect to the Company, a subsidiary or holding company of the Company or any other subsidiary of that holding Company.

 

“ARRANGER” means FirstCaribbean International Banking & Financial Corporation Limited.

 

“ASSETS” has the meaning ascribed to it in Condition 3.03;

 

“AUDITORS” means the auditor or auditors for the time being of the Company.

 

“BUSINESS DAY” means a day on which commercial banks are open for business in Trinidad and Tobago.

 

“CERTIFICATES” means any certificate for the Notes in the form or substantially in the form set out in Part A of the First Schedule.

 

“CLOSING DATE” means the 23rd day of March, 2007.

 

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“CONDITIONS” means the Terms and Conditions endorsed on the Certificates in the form or substantially in the form set out in Part B of the First Schedule hereto, as the same may from time to time be modified in accordance with the provisions of this Trust Deed and any reference in this Trust Deed to a particular numbered Condition shall be construed accordingly.

 

“DIRECTORS” mean the directors for the time being of the Company.

 

“DOLLARS” and “$” mean the lawful currency from time to time of Trinidad and Tobago.

 

“DUE DATE” means the day on which the Notes or any of them are due for payment.

 

“EVENT OF DEFAULT” means any event of default referred to in clause 6 of this Trust Deed.

 

“EXTRAORDINARY RESOLUTION” means an Extraordinary Resolution of the Noteholders passed in accordance with the provisions of paragraph 20 of the Second Schedule.

 

“GUARANTEE” means the Guarantee to be issued by FirstCaribbean International Bank Limited on a subordinated basis in favour of the Trustee for securing the repayment of the principal and interest in respect of the Notes.

 

“INTEREST PAYMENT DATE” has the meaning ascribed to it in Condition 1.01.04.

 

“LIABILITIES” has the meaning ascribed to it in Condition 3.03;

 

“MONTH” means calendar month.

 

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“NOTES” means the registered Notes of the Company issued on the Closing Date in the aggregate value of not more than One Hundred and Ninety Five Million Dollars ($195,000,000.00) comprising Guaranteed Subordinated Term Notes 2007-2017 denominated in Dollars constituted by this Trust Deed or the nominal amount thereof for the time being outstanding or (as the context so require) a specific number thereof.

 

“NOTEHOLDER” means the registered holder(s) of any Notes.

 

“OUTSTANDING NOTES” means all the Notes other than:

 

(a)                                 those in respect of which the Due Date for repayment has occurred in accordance with the provisions of this Trust Deed and the repayment moneys whereof (including all interest (if any) accrued thereon to the Due Date of such repayment) have been duly paid to the relative Noteholders or have been duly paid to the Trustee or to the Paying Agent in the manner provided in the Paying Agency Agreement or these presents (and where appropriate notice to that effect has been given to the relative Noteholders in accordance with Condition 16.00) and remain available for payment against presentation of the relevant Notes;

 

(b)                                 those which have been purchased beneficially by or for the account of the Company and cancelled;

 

(c)                                  those which have become void under Condition 11.01;

 

Provided that for each of the following purposes, namely:-

 

(i)                                     the right to attend and vote at any meeting of the Noteholders or any of them;

 

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(ii)                                  the determination of the number of Outstanding Notes for the purposes of clause 8.00 hereof, Condition 10.00 and paragraphs 2, 5, 6, 7, 9 and 10 of the Second Schedule hereof;

 

(iii)                               any discretion, power or authority contained in these presents which the Trustee is required, expressly or impliedly, to exercise in or by reference to the interests of the Noteholders or any of them; and

 

(iv)                              the determination by the Trustee whether in its opinion any circumstances, matters or things are or would be materially prejudicial to the interests of the Noteholders or any of them;

 

those Notes if any, which are beneficially held by or for the account of the Company, but are not for the time being cancelled or required to be cancelled under Condition 7.05 shall (unless and until ceasing to be so held by or for the account of the Company) be deemed not to be Outstanding Notes.

 

“PAYING AGENCY AGREEMENT” means the Agreement of even date herewith appointing the Paying Agent for the Notes or any other agreement for the time being in force appointing the Paying Agent for the Notes, or concerning its duties, the terms of which have been previously approved in writing by the Trustee, together with any agreement for the time being in force amending or modifying with the prior written approval of the Trustee any of the aforesaid agreements in relation to the Notes.

 

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“PAYING AGENT” means FirstCaribbean International Banking & Financial Corporation Limited and such other or further paying agents as may from time to time be appointed by the Company with the prior approval of and upon terms previously approved by the Trustee in writing and notice of whose appointment is given to the relative Noteholders in accordance with Condition 9.02 within fourteen days thereafter but shall not include any person whose appointment as Paying Agent has been terminated in accordance with the provisions of the relative Paying Agency Agreement.

 

“PAYMENT, REDEMPTION AND REPAYMENT” shall where the context admits each include both the others and the words ‘pay’, ‘paid’, and ‘payable’, ‘redeem’, ‘redeemed’ and ‘redeemable’, ‘repay’, ‘repaid’ and ‘repayable’ shall be construed accordingly.

 

“REGISTER” means the register of the Notes and Noteholders to be maintained in accordance with the provisions of this Trust Deed.

 

“REGISTRAR” means FirstCaribbean International Banking & Financial Corporation Limited or such other institution as may from time to time be appointed by the Company with the Trustee’s prior written approval as Registrar and notice of whose appointment is given to the Noteholders by the Company.

 

“SECURITY DOCUMENTS” means the Trust Deed, the Paying Agency Agreement and the Guarantee.

 

“SENIOR CREDITORS” means creditors of the Company (i) who are depositors and/or other unsubordinated creditors of the Company or (ii) whose claims are, or are expressed to be, subordinated to the claims of depositors and other

 

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unsubordinated creditors of the Company (whether only in the event of a winding up of the Company or otherwise) but not further or otherwise or (iii) who are subordinated creditors of the Company (whether as aforesaid or otherwise) other than those whose claims are expressed to rank pari passu with or junior to the claims of the Noteholders and any claims ranking pari passu with such last-mentioned claims.

 

“SPECIAL EXTRAORDINARY RESOLUTION” means a resolution passed at a meeting of the Noteholders duly convened and held in accordance with the provisions contained in the Second Schedule by the majority consisting of not less than two-thirds of the votes cast thereon.

 

“SPECIFIED OFFICE” means in relation to any Paying Agent, either the office identified with its name at the end of the Conditions or in the relevant Paying Agency Agreement under which it is appointed as such or such other office as shall have been notified to the holders of the Notes in accordance with the Conditions.

 

“TAXES” means and includes any present or future taxes, levies, duties, imports, deductions, charges, fees or withholding of any nature (and ‘tax’ and ‘taxation’ shall be construed accordingly).

 

“TRUST CORPORATION” means a corporation entitled by rules made under the Trustee Ordinance (Chapter 8 No. 3) to carry out the functions of a custodian trustee.

 

“TRUST DEED” means this Trust Deed and the Schedules (as from time to time modified in accordance with the provisions of this Trust Deed) and shall include any deed supplemental to this Trust Deed.

 

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“TRUSTEE” means Polanc Trusts Limited or any other trustee or trustees for the time being of this Trust Deed and includes the successors and assigns of the Trustee whether immediate or derivative.

 

1.02                             Unless the context requires otherwise words or expressions in this Trust Deed shall bear the same meanings as in the Companies Act Chapter 81:01 of the laws of Trinidad and Tobago or any statutory modification or reenactment thereof.

 

1.03                             Words denoting the singular shall include the plural number and vice versa. Words denoting masculine feminine or neuter gender shall include both of the other genders. Words denoting natural persons shall include corporations and firms.

 

1.04                             The headings and sub-headings to clauses and Conditions are for convenience only and have no legal effect and references to Schedules, clauses, sub-clauses, Conditions, paragraphs and sub-paragraphs shall be references to the Schedules to this Trust Deed, to the clauses and sub-clauses of this Trust Deed, to the Conditions set out in Part C of the First Schedule and to the paragraphs and sub-paragraphs set out in the Second Schedule.

 

1.05                             References to statutes orders regulations or statutory instruments shall be construed as references to them as respectively replaced, amended, modified or re-enacted from time to time.

 

1.06                             References to costs, charges or expenses shall unless stated to the contrary include any value added tax or similar tax or duty charged or chargeable on them.

 

2.00                                                     COVENANT TO REPAY AND TO PAY INTEREST AND SUBORDINATION

 

2.01                             The Company hereby covenants with the Trustee to pay the principal sum of One Hundred and Ninety Five Million Dollars ($195,000,000.00) due on the Notes to the Noteholders and/or the Trustee as Trustee for the Noteholders together with

 

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interest thereon and all other sums from time to time due to the Trustee or the Noteholders under this Trust Deed in accordance with the provisions of this Trust Deed.

 

2.02                             As and when the Notes or any of them or any principal thereof become due to be repaid in accordance with the Conditions, the Company shall (subject to Clauses 2.06 to 2.10 inclusive hereof and Condition 3.02) pay to or to the order of the Trustee in Dollars in immediately available funds the principal amount of the Notes on the Due Date for repayment and shall (subject as aforesaid and to the other provisions of the Conditions) until such payment (as well after as before any judgment or other order of any competent court) unconditionally pay to or to the order of the Trustee as aforesaid, as and when the same becomes due in accordance with the Conditions, interest on the principal amount of the Notes at the rate per annum specified in Condition 6.03;

 

AND PROVIDED that:-

 

2.02.01                               in any case where the date for payment of interest in respect of the Notes or the date for payment of the principal or the date fixed for repayment of, any Notes shall be a non-Business Day, then payment of principal or interest shall be made on the preceding day which is a Business Day, with the same force and effect as if made on the date for payment or the date fixed for repayment, as the case may be, but interest shall only accrue for the period up to the date for payment or the date fixed for repayment of principal or interest;

 

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2.02.02                          every payment of principal or interest in respect of the Notes made to the Paying Agent in the manner provided in the Paying Agency Agreement or these presents shall be in satisfaction pro tanto of the covenant by the Company in this clause contained except to the extent that there is default in the subsequent payment thereof to the Noteholders, in accordance with the Condition;

 

2.02.03                          in the case of any payment of principal made to the Trustee or the Paying Agent after the Due Date, interest shall continue to accrue on the principal amount of the Notes due for repayment or in respect of which such payment is not made as aforesaid at the rate aforesaid up to and including the date (being not later than 14 days after the day on which the whole of such principal amount, together with an amount, equal to the interest which has accrued and is to accrue up to and including that date, has been received by the Trustee or the Paying Agent) which the Trustee determines to be the date on and after which payment is to be made to the Noteholders in respect thereof as stated in a notice given to the Noteholders in accordance with Condition 16.00 that the full amount in Dollars payable in respect of such Note is available for payment; and

 

2.02.04                          in any case where payment of the whole or any part of the principal  amount of any Note is improperly withheld or refused upon due presentation of the Certificate relating thereto (otherwise than in circumstances contemplated by 2.02.03 above) interest shall accrue on the principal amount of such Note payment of which has been so withheld or

 

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refused at the rate aforesaid from the date of such withholding or refusal up to and including the date (being not later than 14 days after the day on which the whole of such principal amount, together with an amount equal to the interest which has accrued and is to accrue up to and including that date, has been received by the Trustee or the Paying Agent) which the Trustee determines to be the date on and after which payment is to be made to the Noteholders in respect thereof as stated in a notice given to the Noteholders in accordance with Condition 16.00 that the full amount in Dollars payable in respect of such Note is available for payment.

 

2.03                             At any time after all the moneys hereby secured shall become due and payable or the Trustee shall have instituted proceedings against the Company in accordance with clause 8.00 the Trustee may:

 

2.03.01                          by notice in writing to the Company and the Paying Agent and the  Registrar require the Paying Agent pursuant to the Paying Agency Agreement:

 

(a)                                 to act thereafter as Paying Agent and Registrar of the Trustee in relation to payments to be made by or on behalf of the Trustee under the provisions of these presents on the terms provided in the Paying Agency Agreement mutatis mutandis (save that the Trustee’s liability under any of the provisions thereof for the indemnification of the Paying Agent shall be limited to the amounts for the time being held by the Trustee upon the trust of these presents and available for distribution to Noteholders) and thereafter to hold

 

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all such Notes and all sums, documents and records held by it in respect of the Notes on behalf of the Trustee; and/or

 

(b)                                 to deliver up all Notes and all sums, documents and records held by it in respect of such Notes to the Trustee or as the Trustee shall direct in such notice provided that such notice shall be deemed not to apply to any documents or records which the Paying Agent is obliged not to release by any law or regulation;

 

2.03.02                          by notice in writing to the Company require it to make all subsequent payments in respect of Notes to the order of the Trustee and not to the Paying Agent with effect from the issue of any such notice to the Company and until such notice is withdrawn sub-clause 2.02.02 hereof shall cease to have effect.

 

2.04                             Payment of the principal for the time being owing on the Notes or any part of the Notes, and interest may be made by cheque or wire transfer made payable to the Noteholders (or, in the case of joint holders, to all such Noteholders) or to such person or persons as the Noteholders or all the joint Noteholders may in writing direct, and sent to the Noteholder at his registered address or in the case of joint Noteholders the Noteholder who is first named on the Register at his registered address or to such address as the Noteholders or all the joint Noteholders may direct in writing. Every cheque may be sent through the post at the risk of the Noteholders or joint Noteholders.  Due payment of the cheque or instruction of the transfer of funds to the address provided by the Noteholder shall be a satisfaction of the principal or interest it represents.

 

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2.05                             All payments of principal by the Company in respect of the Notes will be made in Dollars without withholding of, or deduction for or on account of, any present or future taxes, duties, assessments or governmental charges of whatever nature, unless the Company is required by law to withhold or deduct amounts for, or on account of, any such taxes, duties, assessments or governmental charges whereupon the provisions of Condition 4.00 shall apply.

 

2.06                             The rights of the Noteholders are subordinated to the claims of Senior Creditors and, accordingly, all payments of principal, premium and interest in respect of the Notes are conditional upon the Company being solvent at the time of payment by the Company, and no principal, premium or interest in respect of the Notes which under any other Clause hereof would otherwise fall due for payment whilst the Company was insolvent or in insolvent winding up will fall so due and instead such principal, premium or interest will fall due for payment only if and when and to the extent that the Company could make such payment in whole or in part and still be solvent (whether or not it was in winding up) immediately thereafter. Interest will continue to accrue on any Notes payment of which is suspended under this Clause subject to and in accordance with the provisions of Clause 2.02 hereof and the Conditions.

 

2.07                             No payment of principal, premium or interest in respect of the Notes and no purchase of any Notes beneficially by or for the account of the Company or any of its Subsidiaries shall be made unless two Directors or (in the case of an optional repayment by the Company of all or some of the Notes or a purchase of any Notes as aforesaid or if the Directors have not reported as hereinafter mentioned) the Auditors or (if the Company is in winding up in Trinidad and Tobago) the liquidator of the

 

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Company shall have reported to the Trustee within 14 days before such payment or within six months before such purchase that in their or, as the case may require, its opinion the Company would be solvent both at the time of and immediately after such payment or purchase. Any such report shall, in the absence of proven error, be treated and accepted by the Company, the Trustee and the Noteholders as correct and sufficient evidence of such solvency.

 

2.08                             In the event of the winding up in Trinidad and Tobago of the Company no claim in respect of the Notes shall be provable or capable of being established against the Company in such winding up unless and until and except to the extent that the Company could make payment in respect of the Notes in whole or in part and still be solvent immediately thereafter.

 

2.09                             For the purposes of this Clause, the Company shall be solvent if both (i) it is able to pay its debts as they fall due and (ii) its Assets exceed its Liabilities other than its Liabilities to persons who are not Senior Creditors (except where the provisions of this Clause are being applied in connection with an optional repayment or purchase referred to in sub-clause 2.07 above, when the Liabilities of the Company to persons who are not Senior Creditors shall be included).

 

2.10                             The provisions of this Clause apply only to the payment of principal, premium and interest in respect of the Notes and nothing in this Clause shall affect or prejudice the payment of the costs, charges, expenses, liabilities or remuneration of the Trustee or the rights and remedies of the Trustee in respect thereof.

 

2.11                             Nothing contained in this Trust Deed shall in any way restrict the right of the Company to create, issue, incur, give or assume obligations or guarantees of

 

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obligations ranking in priority to or pari passu with or junior to the obligations of the Company in respect of the Notes and if in the opinion of the Trustee any modification to the provisions of this Clause to permit such ranking is necessary or expedient the Trustee is hereby authorised without any consent or sanction of the Noteholders to concur with the Company in executing a supplemental Trust Deed effecting such modification.

 

3.00                                                     FORM OF THE CERTIFICATES

 

3.01                             The Certificates shall be in the form or substantially in the form set out in Part A of the First Schedule or in such other form as the Trustee may approve and shall have endorsed on them Conditions in the form, or substantially in the form, set out in Part B of the First Schedule.

 

3.02                             Without unnecessary delay but in any event not more than fourteen days after the Closing Date the Company shall execute and have available for delivery to the Paying Agent for distribution to the initial purchasers of the Notes the Certificates in respect thereof.

 

3.03                             The Note Certificates are valid and obligatory only when they have been countersigned for the purpose of authentication and delivered by the Paying Agent.

 

3.04                             The Company shall comply with the terms and provisions of the Certificates issued in respect of the Notes and the Conditions. The Notes shall be held subject to and with the benefit of the Conditions, all of which shall be deemed to be incorporated in this Trust Deed and shall be binding on the Company, the Noteholders and all persons claiming through or under them. Every Noteholder shall be entitled to receive one Certificate for the Notes held by him, but joint Noteholders shall be

 

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entitled to one Certificate only for the Notes jointly held by them. Each Certificate shall be delivered to that one of the joint Noteholders whose name stands first in the Register in respect of the joint holding. Where a Noteholder has transferred or has redeemed a part only of his holding of Notes he shall be entitled to a Certificate for the balance of such holding, without charge.

 

4.00                                                     PRINCIPAL AMOUNT OF THE NOTES

 

4.01                             The principal amount of the Notes shall be limited to One Hundred and Ninety Five Million Dollars ($195,000,000.00).  The whole of the Notes shall constitute unsecured obligations of the Company and shall rank pari passu equally and rateably without discrimination or preference among themselves.

 

4.02                             The net proceeds of all Notes shall be received by the Company and shall be applied for the purposes set out in Recital C of this Trust Deed.

 

5.00                                                     NEGATIVE PLEDGE

 

5.01                             So long as any Notes remain outstanding, the Company shall not without the consent in writing of the Trustee:

 

5.01.01                          consent to the appointment of a trustee or receiver over its property or any part thereof;

 

5.01.02                          do or cause or permit to be done anything which may in any way materially depreciate, jeopardise or otherwise prejudice these presents.

 

6.00                                                     EVENTS OF DEFAULT

 

6.01                             The Notes shall become immediately due and payable together with accrued interest, if any of the following events occur and the Trustee is requested by a Special Extraordinary Resolution to take action in accordance with the provisions of clause 8.00 hereof.

 

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6.01.01                          If the Company fails to pay for a period of fourteen days or more after the Due Date any principal moneys or any interest on the Notes when and as it becomes payable under this Trust Deed.

 

6.01.02                          If a receiver is appointed or if a bona fide petition is presented or an order made or a resolution passed or analogous proceedings are taken for appointing an administrator or liquidator of or winding up of the Company or the Guarantor or if a notice is issued convening a meeting for the purpose of passing any such resolution or a resolution to purchase or redeem or reduce issued share capital of the Company or the Guarantor (save for the purpose of and followed within four months by an amalgamation or reconstruction not involving or arising out of insolvency on terms previously approved in writing by the Trustee).

 

7.00                                                     GUARANTEE

 

7.01                             The Company has procured the issue, by its parent, FirstCaribbean International Bank Limited, of the Guarantee by way of security for the repayment of the principal and interest in respect of the Notes.

 

7.02                             The security created by clause 7.01 shall:

 

7.02.01                          be a continuing security to the Trustee and the Noteholders  notwithstanding any settlement of account or other matter or thing whatsoever;

 

7.02.02                          be without prejudice and in addition to any other security for the payment of all money from time to time payable under this Trust Deed and the

 

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Conditions which the Trustee may hold now or hereafter on all or any part of the property, assets and undertaking of the Company;

 

7.02.03                          be in addition to any rights, powers and remedies at law or in equity or otherwise; not merge with or otherwise prejudice or affect any contractual or other right or remedy or any guarantee, lien, pledge, bill, note, mortgage or other security (whether created by the deposit of documents or otherwise) now or hereafter held by or available to the Trustee and shall not in any way be prejudiced or affected thereby or by the invalidity thereof or by the Trustee now or hereafter dealing with exchanging, releasing, varying or abstaining from perfecting or enforcing any of the same or any rights which it may now or hereafter have or giving time for payment or indulgence or compounding with any other person liable.

 

8.00                                                     ENFORCEMENT BY THE TRUSTEE

 

8.01                             At any time after the Notes shall have become immediately due and repayable, the Trustee shall, if so requested by Special Extraordinary Resolution (but, subject to the Trustee being indemnified to its satisfaction against all proceedings, claims and demands to which the Trustee may be liable and all costs, charges and expenses which may be incurred by the Trustee in connection therewith), and without notice (i) institute proceedings for the winding-up of the Company and/or the Guarantor if the default event occurs within the definition of Clause 6.01.01 and (ii) give notice to the Company that the Notes are immediately due and repayable at their principal amount together with accrued interest if the default event occurs within the definition of Clause 6.01.02; and save for the entitlement provided for in Clause 8.02 take no other action in respect of any such default.

 

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8.02                             The Trustee shall be entitled to prove in any winding-up of the Company in respect of principal and/or interest payable in relation to the Notes or other moneys payable under any provision of this Trust Deed.

 

8.03                             No Noteholder shall in any circumstances be entitled to any remedy (whether by way of action, petition or otherwise howsoever) for the recovery of any Note or any part thereof or any interest therein, unless the Trustee, having become bound to take proceedings in accordance with this Trust Deed, fails to do so within a reasonable time and such failure shall be continuing. In that case any Noteholder may, on giving the Trustee an indemnity satisfactory to the Trustee against all proceedings claims and demands to which it may be liable and all costs charges and expenses which may be incurred by it in connection therewith, in the name of the Trustee (but not otherwise) himself either take such proceedings against the Company or prove in the winding-up of the Company. The Trustee shall apply any moneys so received in the manner provided in this Trust Deed.

 

8.04                             Should the Trustee take action pursuant to Clause 8.01, proof therein that as regards any specified Note the Company has made default in paying any principal or interest due in respect of any such Note, shall (unless the contrary be proved) be sufficient evidence that the Company has made the like default as regards all other Notes in respect of which the relevant payment is then due.

 

8.05                             The Company hereby covenants with the Trustee on demand to pay all costs charges and expenses incurred by the Trustee or which it shall properly incur in or about the enforcement preservation or attempted preservation of this security on a full indemnity basis.

 

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8.06                             The Company hereby agrees to indemnify the Trustee against all losses, actions, claims, expenses, demands and liabilities whether in contract, tort or otherwise now or hereafter incurred by it or by any manager, agent, officer or employee for whose liability, act or omission it may be answerable for anything done or omitted in the exercise or purported exercise of the powers herein contained or occasioned by any breach by the Company of any of its covenants or other obligations to the Trustee. The Company shall so indemnify the Trustee on demand and shall pay interest on the sums demanded at the rate equivalent to the rate quoted on the most recent 90-day Trinidad and Tobago Dollar Treasury Bills issued by the Government of Trinidad and Tobago from three days after the date of demand.

 

8.07                             In case the Trustee shall have proceeded to enforce any right under this Trust Deed by the appointment of a receiver or otherwise, and such proceedings shall have been discontinued or abandoned for any reason, or shall have been determined adversely, then and in every such case, the Company, the Trustee and the Noteholders shall be restored to their former positions and rights hereunder, and all rights, remedies and powers of the Trustee shall continue as if no such proceedings had been taken.

 

8.08                             Subject as hereinafter provided, no remedy against the Company, other than the institution of proceedings for the winding up in Trinidad and Tobago of the Company, shall be available to the Trustee or the Noteholders whether for the recovery of amounts owing in respect of the Notes or under these presents or in respect of any breach by the Company of any of its obligations under these presents in respect of the Notes or under the Notes, Provided that the foregoing shall not restrict:

 

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(a)                                 proceedings by the Trustee for recovery of the Trustee’s remuneration and/or expenses;

 

(b)                                 proceedings by the Trustee for injunctions or specific performance in relation to any Obligations of the Company under these presents in respect of the Notes not involving the payment by it of money; or

 

(c)                                  the right of the Trustee or the Noteholders to prove (in the case of the Noteholders, in the circumstances and in the manner herein) in any winding up in Trinidad and Tobago of the Company commenced by any other person and such proof shall be deemed, for the purposes of these presents, not to be the exercise of a remedy or the enforcement of a right.

 

9.00                                                     APPLICATION OF MONEYS

 

9.01                             All amounts payable to and received by the Trustee in respect of the Notes by way of principal and/or interest or otherwise payable under any of the provisions of this Trust Deed will be received by it on trust for application:

 

9.01.01                          first, in payment or satisfaction of the costs, charges, expenses and  liabilities incurred and payments made by the Trustee (including any unpaid remuneration) in or about the execution of the trusts of this Trust Deed and all remuneration, as the case may be, payable to the Trustee;

 

9.01.02                          secondly, in payment pari passu and rateably of interest outstanding owing on or in respect of the Notes; and

 

9.01.03                          thirdly, as to the balance (if any) in or towards payment pari passu and rateably of principal outstanding and owing on or in respect of the Notes. Without prejudice to the provisions of this Clause 9.00 if the Trustee shall hold any moneys which represent principal, premium or interest in respect

 

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of the Notes which have become void under Condition 11.00 the Trustee shall (subject to payment or provision for the payment or satisfaction of the said costs, charges, expenses and liabilities and the remuneration or reimbursement as the case may be, of the Trustee) pay the same to the Company.

 

10.00                                              NOTICE TO NOTEHOLDERS REGARDING APPLICATION OF MONEYS

 

10.01                      The Trustee shall give not less than fourteen days’ notice to the Noteholders of the day and place fixed for any payment to them under clause 9.00. After the day so fixed, the Noteholders shall be entitled to interest on the balance only (if any) of the principal moneys owing on the Notes held by them, after deducting the amount payable on the day so fixed.

 

11.00                                              PAYMENT TO NOTEHOLDERS FOLLOWING AN EVENT OF DEFAULT

 

11.01                      Payment of the principal moneys or interest payable by the Trustee under clause 9.00 in respect of the Notes may be made to Noteholders in the manner provided by clause 2.02 for payment of principal and interest on the Notes. Any payment so made shall be a good discharge to the Trustee.

 

12.00                                              SURRENDER, CANCELLATION AND RE-ISSUE OF NOTES

 

12.01                      Payment under any of the relevant provisions of Clause 9.00 hereof and Condition 7.00 on account of the whole or any part of the principal moneys owing on the Notes will only be made if the Certificates for which such payment is to be made are surrendered to the Paying Agent by or through whom such payment is payable, who shall cause the Certificate to be cancelled and a new Certificate re-issued for the remaining principal amount due on the Note and in the case of payment in full, cause such Certificates to be cancelled in full. The Trustee may dispense with the

 

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production of a Certificate in any particular case, on such indemnity being given as it shall think sufficient.

 

13.00                                              FAILURE BY NOTEHOLDER TO MAKE CLAIM AFTER DATE OF REDEMPTION

 

13.01                      If a holder of any of the Notes which the Company is ready to repay or satisfy, fails to claim or accept the amount due to him within thirty days after the Due Date for redemption of the whole or part of the relevant Note, the Company may or (if so requested by the Trustee) shall deposit with a bank in the name of the Trustee an amount equal to the amount due to such Noteholder. On such deposit being made, the Notes which the Company is ready to repay or satisfy shall be deemed to have been repaid or satisfied in accordance with the provisions of this Trust Deed. After provision for repayment or satisfaction of the Notes is made by such deposit of the funds required for the purpose, the Trustee shall not be responsible for the safe custody of such moneys or for interest on them. The Trustee shall be entitled to deduct the expenses incurred by it in arranging such deposit.

 

14.00                                              REGISTER OF NOTES

 

14.01                      The Registrar shall at all times keep at its registered office (or at such other place as the Trustee may agree) a register showing the nominal amount of the Notes and the date of issue and of all subsequent transfers and changes of ownership thereof and the names and addresses of the Noteholders and the persons deriving title under them and of their repayment, purchase and cancellation and of all replacement Certificates issued in substitution for mutilated, defaced, lost, stolen or destroyed Certificates. Upon a request from any Noteholder and any person authorised by any such Noteholder, the Registrar may make available copies of or extracts from the Register

 

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only in relation to such Noteholders own current and past holdings. The Trustee and any person authorised by the Trustee may at all reasonable times during office hours, inspect the Register and take copies of or extracts from it. If the Trustee requires the convening of a meeting or the giving of any notice to the Noteholders, the Registrar shall promptly furnish the Trustee free of charge with such copies of or extracts from the Register as it shall require. The Register may be closed by the Company for such periods and at such times (not exceeding in the whole thirty Business Days in any one year) as it may think fit.

 

14.02                      The Register of Noteholders shall, in the absence of wilful default, bad faith or manifest error, at all times be conclusive evidence of the amount of the Notes held by each Noteholder.

 

15.00                                              TRUSTEE’S REMUNERATION

 

15.01                      Until the trusts hereunder are finally wound up, the Company shall pay to the Trustee as, and by way of remuneration or reimbursement, as the case may be, for its services as trustee of this Trust Deed a sum calculated at the rate of or limited to, as the case may be TT$50,000.00 per annum or such higher rate or limit as may from time to time be agreed between the Company and the Trustee, the said remuneration to be deemed to accrue from day to day or in the case of reimbursement on the presentation to the Paying Agent of the invoices to be reimbursed and to be payable by yearly payments on the 23rd day of March in each year, the first such payment of remuneration (calculated from and including the 23rd day of March, 2007) to be made on the 23rd day of March, 2007. Remuneration shall continue to be payable until the trusts of this Trust Deed shall be finally wound up.

 

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15.02                      If the Notes become immediately due and repayable, or the Trustee considers it expedient or necessary or if the Trustee is requested by the Company to undertake duties which the Trustee and the Company agree to be of an exceptional nature or otherwise outside the scope of the normal duties of the Trustee under this Trust Deed, the Company shall pay to the Trustee such additional remuneration as may be agreed between them.

 

15.03                      Remuneration under clauses 15.01 and 15.02 shall be exclusive of any value added tax (or analogous duty), which shall be added at the applicable rate and paid by the Company.

 

15.04                      The Company shall also pay or discharge all legal costs, stamp duties and disbursement costs incurred in the preparation of the Security Documents.

 

15.05                      All reasonable costs, charges, liabilities and expenses incurred and payments made by the Trustee in the lawful exercise of its powers under this Trust Deed and all remuneration payable to the Trustee shall be payable by the Company on demand. Payments actually made by the Trustee prior to the demand shall (if not paid within three days after demand and if the Trustee so requires) carry interest at the rate equivalent to the rate quoted on the most recent 90-day Trinidad and Tobago Dollar Treasury Bills issued by the Government of Trinidad and Tobago from three days after the date of demand. In all other cases, interest shall accrue at such rate from the date thirty days after the date of demand or (where the demand specifies that payment be made on an earlier date) from such earlier date.

 

15.06                      Upon the occurrence of an Event of Default, but only upon the occurrence of an Event of Default, the Trustee shall have a first lien with right of payment prior to

 

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payment on account of principal and interest on any Note for the foregoing fees, charges and expenses of the Trustee.

 

15.07                      The Company shall indemnify the Trustee in respect of all liabilities and expenses properly incurred by it or by any person appointed by it or to whom any power, trust, authority or discretion may be delegated by it in the execution or purported execution of the powers and trusts contained in this Trust Deed or of any powers, trusts, authorities or discretions vested in it by this Trust Deed, and against all actions, proceedings, costs, claims and demands in respect of any matter or thing done or omitted in anyway relating to this Trust Deed

 

16.00                                              COVENANTS BY THE COMPANY

 

16.01                      The Company hereby covenants with the Trustee that so long as there are any Outstanding Notes it shall:-

 

16.01.01                   give to the Trustee or any person appointed by the Trustee to whom the Company does not reasonably object such information and evidence as it or he shall reasonably require for the purpose of the discharge by the Trustee of the duties or discretions vested in it under these presents or by operation of law.

 

16.01.02                   at all times carry on and conduct its affairs in a proper and efficient manner.

 

16.01.03                   procure the Auditors to furnish the Trustee with such opinions, certificates or other information as the Trustee may from time to time require in connection with any matter arising under these presents.

 

16.01.04                   at all times keep proper books of accounts.

 

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16.01.05                   give notice in writing to the Trustee of the occurrence of any of the events referred to in clause 6.00 forthwith upon it becoming aware thereof without waiting for the Trustee to take any of the actions mentioned therein.

 

16.01.06                   oblige the Paying Agent to notify the Trustee forthwith in the event that it does not, on or before the Due Date for payment of the Notes or of any amount of the interest due thereon, receive unconditionally pursuant to the Paying Agency Agreement or these presents the full amount in Dollars of the moneys payable on such Due Date on all such Notes or for interest thereon, as the case may be.

 

16.01.07                   in the event of the unconditional payment to the Paying Agent of any sum due in respect of the Notes or any of them or any amount of the interest thereon being made after the Due Date for payment thereof, forthwith give notice to the relative Noteholders in accordance with Condition 16.00 that such payment has been made.

 

16.01.08                   comply with, observe and perform all its obligations under, and use all reasonable endeavours to procure the Paying Agent and the Registrar to comply with, observe and perform all their obligations under the Paying Agency Agreement, and not make any amendment or modification to any such agreement without the prior written approval of the Trustee.

 

16.01.09                   at all times maintain a Paying Agent or Paying Agents, in accordance with the applicable Conditions and at all times procure there to be a Registrar.

 

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16.01.10                   if giving notice of a pre-payment of Notes made pursuant to Condition 7.03 specify or procure to be specified separately in such notice the date and amount of such repayment.

 

16.01.11                   give not less than 60 days’ notice to the Noteholders in accordance with Condition 16.00 of the proposed resignation or removal of any Paying Agent or Registrar or the change of any Paying Agent’s or Registrar’s specified office and give notice to the Noteholders in accordance with Condition 16.00 of any appointment of any Paying Agent or Registrar within 14 days thereafter PROVIDED ALWAYS that in the case of the termination of the appointment of the Paying Agent or the Registrar no such termination shall take effect until a new Paying Agent or Registrar has been appointed on terms approved by the Trustee.

 

16.01.12                   send or procure to be sent to the Trustee not later than the date of publication four copies of all notices given to Noteholders in accordance with Condition 16.00.

 

16.01.13                   if it shall have given notice in accordance with the applicable Conditions of its intention to redeem the Notes or any of them duly proceed to redeem the Notes accordingly.

 

16.01.14                   at all times execute and do all such further documents, acts and things as may be necessary at any time or times in the reasonable opinion of the Trustee to give effect to the provisions of these presents.

 

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16.01.15                   furnish to the Trustee in such form and at such time as the Trustee may request accounts and/or statements relating to the affairs of the Company as deemed reasonable by the Company.

 

16.01.16                   furnish to the Trustee within ninety (90) days after the close of each  financial year of the Company, duly audited balance sheet and profit and loss account as at the end of the relevant financial year giving a true and fair view of the state of affairs of the Company as at the end of the financial year and complying with the requirements of the companies legislation for the time being in force that is applicable to the Company.

 

16.01.17                   undertake to remedy any defect in this Trust Deed and any of the Security Documents if such documents fail or cease in any respect to have full force and effect or to be continuing or are terminated or disputed or become in jeopardy, invalid or unenforceable or any material provision therein ceases to constitute the legal, valid and binding obligation of the Company;

 

16.01.18                   give notice in writing to the Trustee if any licence, authorization, consent or registration at any time necessary or desirable to enable the Company to comply with its obligations to the Trustee or to carry on its business in the normal course shall be revoked, withheld or materially modified or shall fail to be granted or perfected or shall cease to remain in full force and effect, and the Company undertakes to use its best efforts to regain any such licence, authorization, consent or registration.

 

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16.02                      So long as there are any Outstanding Notes the Company shall, in order to enable the Trustee to ascertain the principal amount of the Outstanding Notes for any of the purposes referred to in the proviso to the definition of “Outstanding Notes” contained in Clause 1.00 hereof, deliver to the Trustee forthwith upon being so requested in writing by the Trustee, a certificate in writing signed by the Chairman and Secretary on behalf of the Company setting out the total principal amount of the Notes which:

 

(i)                                     up to and including the date of such certificate have been purchased beneficially by or for the account of the Company and cancelled; and

 

(ii)                                  are at the date of the certificate, beneficially held by or for the account of the Company.

 

16.03                      So long as there are any Outstanding Notes the Company shall at all times maintain Registrars having their specified office in the City of Port of Spain.

 

17.00                                              TRUSTEE’S POWERS

 

17.01                      The Trustee shall have all the powers conferred on trustees by the Trustee Ordinance (Chapter 8 No. 3) and by way of supplement thereto it is expressly declared as follows:-

 

17.01.01                   the Trustee may in relation to this Trust Deed act on the opinion or advice of or information obtained from the Registrar or any lawyer, valuer, surveyor, banker, broker, auctioneer, accountant or other expert whether obtained by the Paying Agent, Company or by the Trustee or otherwise and shall not be responsible for any loss occasioned by so acting. Any such opinion, advice or information may be sent or obtained by letter, telemessage, telex, facsimile or cablegram or other means of recording in

 

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permanent form, visual messages (whether written or printed) and the Trustee shall not be liable for acting on any opinion, advice or information purporting to be conveyed by any such means even if it shall contain some error or shall not be authentic;

 

17.01.02                   the Trustee shall not be bound to take any steps to ascertain whether any event listed in clause 6.00 has happened and, until it shall have actual knowledge or shall have express notice to the contrary, the Trustee shall be entitled to assume that no such event has happened and that the Company is performing all the obligations on its part contained in these presents and under the Notes;

 

17.01.03                   save as otherwise expressly provided in this Trust Deed, the Trustee shall, as regards all trust, powers, authorities and discretions vested in it by this Trust Deed, have absolute discretion as to their exercise and, provided it shall not have acted fraudulently or negligently, it shall not be responsible for any loss, costs, damages or expenses that may result from the exercise or non-exercise thereof. In particular, it shall not be bound to act (whether at the request or direction of the Noteholders or otherwise) under any of the provisions of this Trust Deed unless the Trustee shall first be indemnified to its satisfaction against all proceedings, claims and demands to which the Trustee may so become liable and all costs, charges and expenses which may be so incurred by the Trustee;

 

17.01.04                   the Trustee shall not be responsible for having acted upon any resolution purporting to have been passed at any meeting of the Noteholders of

 

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which minutes have been made and signed, even though it may subsequently be found that there was some defect in the constitution of the meeting or the passing of the resolution or that, for any reason, the resolution was not valid or binding on the Noteholders;

 

17.01.05                   without prejudice to the right of indemnity by law given to trustees the Trustee and every attorney, manager, agent, delegate or other person appointed by it under this Trust Deed shall be indemnified by the Company against all liabilities and expenses properly incurred by it or him in the execution of the powers and trusts of this Trust Deed or of any powers, authorities or discretions vested in it or him pursuant to this Trust Deed. This indemnity shall extend to all actions, proceedings, costs, claims and demands in respect of any matter or thing done or omitted in relation to this Trust Deed. The Trustee may in priority to any payment to the Noteholders retain and pay out of any moneys in its hands on the trusts of this Trust Deed the amount of any such liabilities and expenses and also the remuneration of the Trustee as provided in this Trust Deed;

 

17.01.06                   the Trustee shall be at liberty to hold or to deposit these presents and any deeds or documents relating to these presents or to the Notes with any banker or banking company or company whose business includes undertaking the safe custody of deeds and documents or with any lawyer or firm of lawyers of good repute, and the Trustee shall not be responsible for any loss incurred in connection with any such holding or deposit and

 

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may pay all sums required to be paid on account or in respect of any such deposit;

 

17.01.07                   the Trustee may call for and shall be at liberty to accept a certificate signed by any director of the Company and the Company’s Secretary as sufficient evidence of any fact or matter relating to the Company on which the Trustee may require to be satisfied or to have information or to the effect that, in the opinion of the person so certifying, any particular dealing, transaction, step or thing relating as aforesaid is expedient. The Trustee shall not be bound to call for further evidence and shall not be responsible for any loss occasioned by acting on any such certificate;

 

17.01.08                   as between itself and the Noteholders, the Trustee shall have full power to determine all questions and doubts arising in relation to any of the provisions of this Trust Deed. Every such determination whether made upon a question actually raised or implied in the acts or proceedings of the Trustee made in good faith (whether or not the same shall relate in whole or in part to the acts or proceedings of the Trustee under this Trust Deed) shall be conclusive and binding on the Trustee and the Noteholders;

 

17.01.09                   the Trustee shall not be responsible for the receipt or application by the Company of the proceeds of the issue of any of the Notes or for the delivery of the Certificates to the persons entitled thereto;

 

17.01.10                   the Trustee shall not be liable to the Company or any Noteholder by reason of having accepted as valid or not having rejected any Certificate

 

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purporting to be such and subsequently found to be forged or not authentic;

 

17.01.11                   the Trustee shall not (unless ordered so to do by a court of competent jurisdiction) be required to disclose to any Noteholder any confidential financial or other information made available to the Trustee by the Company in connection with the trusts of these presents and no Noteholder shall be entitled to take any action to obtain from the Trustee any such information;

 

17.01.12                   whenever there shall be more than two trustees of these presents the majority of such trustees shall be competent to execute and exercise all the powers, trusts, authorities and discretions vested in the Trustee by these presents provided that a trust corporation shall be included in such majority;

 

17.01.13                   the Trustee shall be protected in acting upon any notice, request, consent, certificate, order, affidavit, letter, telegram or other paper or document believed to be genuine and correct and to have been signed or sent by the proper person or persons. Any action taken by the Trustee pursuant to this Trust Deed upon the request or authority or consent of any person who at the time of making such request or giving such authority or consent is a Noteholder shall be conclusive and binding upon all future Noteholders of the same Note and upon Notes issued in exchange therefor or in place thereof;

 

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17.01.14                   at any and all reasonable times the Trustee, and its duly authorized agents, attorneys, experts, engineers, accountants and representatives, shall have the right fully to inspect all books and records of the Company pertaining to the Notes, and to make such copies and memoranda from and with regard thereto as may be desired;

 

17.01.15                   no provision of this Trust Deed shall require the Trustee to expend or risk the Trustee’s own funds or otherwise incur any financial liability in the performance of any of the Trustee’s duties hereunder, or in the exercise of any of the Trustee’s rights or powers, if the Trustee shall have reasonable grounds for believing that repayment of such funds or adequate indemnity against such risk or liability is not reasonably assured to the Trustee.

 

17.02                      Nothing in this clause 17.01 shall exempt the Trustee from or indemnify it against any liability for breach of trust or any liability which by virtue of any rule of law would otherwise attach to it in respect of any gross negligence, default, breach of duty or breach of trust of which it may be guilty in relation to its duties under this Trust Deed.

 

18.00                                              TRUSTEE’S POWER TO DELEGATE

 

18.01                      Whenever it thinks fit, the Trustee upon giving seven days prior written notice to the Company may delegate by power of attorney or otherwise, to any person or persons or fluctuating body of persons (whether being a trustee of this Trust Deed or not) all or any of the trusts, powers and discretions vested in it by this Trust Deed. Delegation may be made on such terms and subject to such conditions including, (but not limited to), power to sub-delegate and subject to such regulations as the Trustee may think fit.

 

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19.00                                              APPOINTMENT OF AGENTS BY TRUSTEE

 

19.01                      In the conduct of the trust business, instead of acting personally, the Trustee may employ, and pay an agent to transact or concur in transacting any business and to do or concur in doing all acts required to be done by the Trustee, including the receipt and payment of money. Any trustee for the time being of this Trust Deed being a person engaged in any profession or business shall be entitled to all usual professional and other charges, in addition to disbursements for business transacted and acts done by him or his firm or employer in connection with the trusts of this Trust Deed in connection with matters arising in connection with this Trust Deed, including matters which might or should have been attended to in person by a trustee not being engaged in any profession or business. The Trustee shall not be responsible for any misconduct on the part of any such person appointed by it under this Trust Deed or be bound to supervise the proceedings or acts of any such person.

 

20.00                                              TRUSTEE NOT PRECLUDED FROM ENTERING INTO CONTRACTS

 

20.01                      The Trustee (or any director or officer of a corporation acting as trustee of this Trust Deed) shall not be precluded from:

 

20.01.01                   holding any office or employment with the Company or any subsidiary or any person associated with the Company or any subsidiary; or

 

20.01.02                   underwriting or guaranteeing the subscription of or subscribing for or otherwise acquiring, holding or dealing with substantially the whole or any part of the Notes either with or without commission or other remuneration; or

 

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20.01.03                   entering into any contract of insurance with the Company or any  subsidiary or any person so associated for a premium or other consideration; or

 

20.01.04                   otherwise at any time contracting or entering into any contract or any financial or other transaction with the Company or any subsidiary or any person so associated or being interested in any such contract or transaction; or

 

20.01.05                   accepting or holding the trusteeship of any other trust deed constituting or securing any securities issued by the Company or any subsidiary or any person so associated and they shall not be liable to account whether to the Company or any subsidiary or any person so associated or the Noteholders, for any profit made or customary share of brokerage or commission received by them as a result.

 

21.00                                              TRUSTEE’S CONSENTS

 

21.01                      Any consent granted by the Trustee pursuant to this Trust Deed may be granted on such terms and subject to such conditions (if any) as the Trustee may in its absolute discretion determine and may be given retrospectively and shall be given or refused as the case may be with reasonable promptness. Any breach of or failure to comply with any of such terms and conditions by the Company shall constitute a breach of this Trust Deed.

 

21.02                      All such consents shall be given by the Trustee in writing under the hand of a Manager or Assistant Manager of the Trustee.

 

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22.00                                              MODIFICATION OF TRUST DEED

 

22.01                      At any time and without the consent or sanction of the Noteholders, the Trustee may concur with the Company in making any modification to this Trust Deed which, (a) in the opinion of the Trustee, will not be materially prejudicial to the interests of the Noteholders; or (b) which is to correct a manifest error; in which case the Company shall promptly take all such reasonable steps as the Trustee may require to achieve such modification.

 

22.02                      Any modification to this Trust Deed pursuant to clause 22.01 or Condition 12.00 shall, unless the Trustee otherwise agrees, as soon as practicable thereafter be notified to the Noteholders in accordance with Condition 16.00 and shall be binding upon them.

 

23.00                                              WAIVER BY TRUSTEE

 

23.01                      The Trustee only as directed by a Special Extraordinary Resolution, and on such terms and subject to such conditions as to it shall seem fit:

 

23.01.01                   authorise or waive any proposed breach or any breach by the Company of any of the terms of this Trust Deed or the Conditions other than those which prescribe the amounts in which and the times at which payments are to be made by the Company thereunder without prejudice to the rights of the Trustee in respect of any subsequent breach of any such terms; and

 

23.01.02                   determine that any event which constitutes (or which, with the giving of notice and/or the lapse of time or any other matter would constitute) an event on the happening of which the Notes shall have or may become immediately due and repayable shall not be treated as such for the

 

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purposes of this Trust Deed, without prejudice to the rights of the Trustee in respect of any subsequent such event.

 

24.00                                              APPOINTMENT OF NEW TRUSTEE

 

24.01                      The statutory power to appoint new trustees of this Trust Deed shall be vested in the Company, but no trustee shall be appointed who shall not previously have been approved by an Extraordinary Resolution. A trust corporation may be appointed as sole trustee of this Trust Deed. If there shall be more than one trustee of this Trust Deed one trustee must be a trust corporation. Whenever there shall be more than two trustees of this Trust Deed a majority of such trustees (including in such majority a trust corporation) may exercise all the functions, powers and duties by this Trust Deed vested in the Trustee generally.

 

25.00                                              RETIREMENT BY TRUSTEE

 

25.01                      A trustee may retire at any time, on giving to the Company not less than three months’ written notice, without assigning any reason and without being responsible for any costs occasioned by such retirement. The Company undertakes to use its best endeavours, in the event of the only trustee of this Trust Deed, being a trust corporation, giving notice under this clause or otherwise being removed from office, to procure that a new trustee (being a trust corporation) of this Trust Deed be appointed in accordance with clause 24.00. The retirement or removal of any trustee shall not become effective until a successor trustee (being a trust corporation) is appointed in accordance with clause 24.00;

 

25.02                      Any corporation or association into which the Trustee may be converted or merged, or with which the Trustee may be consolidated, or to which the Trustee may sell or transfer the Trustee’s trust business and assets as a whole or substantially as a whole,

 

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or any corporation or association resulting from any such conversion, sale, merger, consolidation or transfer to which the Trustee is a party, shall be and become successor trustee hereunder and vested with all of the trusts, powers, discretions, immunities, privileges and other matters as was the Trustee’s predecessor, without the execution or filing of any instrument or any further act, deed or conveyance on the part of any of the parties hereto anything herein to the contrary notwithstanding.

 

25.03                      Every successor trustee appointed hereunder shall execute, acknowledge and deliver to the Trustee or the Trustee’s predecessor and also to the Company an instrument in writing accepting such appointment hereunder and thereupon such successor, without any further act, deed or conveyance, shall become fully vested with all the estates, properties, rights, powers, trusts, duties and obligations of the Trustee’s predecessor.

 

26.00                                              COMPANY’S WARRANTY AND PERFORMANCE COVENANT AND CONDITIONS PRECEDENT

 

26.01                      The Company hereby represents and warrants:

 

26.01.01                   that it has the necessary corporate power and authority to issue the Notes on the terms and conditions set out herein and to perform and observe the obligations hereunder.

 

26.01.02                   there is no law, decree or similar enactment binding on the Company and no provision in any corporate document, mortgage, indenture, trust, deed, contract or agreement binding on the Company or affecting the property thereof which would conflict with or prevent the Company from issuing the Notes hereunder on the terms and conditions set out herein, or which

 

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would prevent the Company from observing any of its obligations hereunder.

 

26.01.03                   there are no legal or other proceedings pending or threatened before any court, tribunal, commission or other regulatory authority and involving the Company.

 

26.01.04                   the Company is not in breach of any of the limits or restrictions or obligations imposed by any other agreement or instrument.

 

26.01.05                   there has been no material adverse change in the financial condition of the Company since 31st October, 2006.

 

26.01.06                   the Company is a company with limited liability duly incorporated and validly existing under the laws of Trinidad and Tobago with its own legal personality and with power to own its assets and carry on business as now conducted;

 

26.01.07                   the Company has taken all necessary action to authorise the issue of the Notes and the execution and delivery of this Trust Deed, and this Trust Deed constitutes the Company’s legal, valid and binding obligations enforceable against the Company in accordance with its terms, except as such enforcement may be limited by general equitable principles or by any relevant bankruptcy, insolvency, administration or similar laws affecting creditors’ rights generally;

 

26.01.08                   the entry into and performance by the Company of this Trust Deed does not and will not violate in any material respect any law or regulation of any governmental or official authority or body, or the constitutional

 

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documents of the Company, or any agreement, contract or other undertaking to which the Company is a party or which is binding on the Company;

 

26.01.09                   all consents, licences, approvals and authorisations on the part of the Company required in connection with the entry into, performance, validity and enforceability of this Trust Deed necessary for the Company’s business have been obtained and are in full force and effect to the extent that they are still relevant and required by applicable law;

 

26.01.10                   no action, suit, proceeding, litigation or dispute against the Company is currently taking place or pending or, to the Company’s knowledge, threatened nor is there subsisting any judgment or award given against the Company before any court, board of arbitration or other body;

 

26.01.11                   no Event of Default or potential Event of Default has occurred and is continuing or will result from the issuing of the Notes; and no other event has occurred and is continuing, which constitutes (or with the giving of notice, lapse of time, and/or other applicable condition, would constitute) a default under any document which is binding on the Company;

 

26.01.12                   the Company’s audited accounts and financial statements which have been prepared in accordance with International Financial Reporting Standards and International Accounting Standards and consistently applied, are true and accurate in every respect and represent a true and fair view of the consolidated financial position of the Company at the date of such accounts and financial statements and the results of its operations for the

 

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year ended on the date to which such accounts and financial statements were prepared and no significant liabilities (contingent or otherwise) exist which have not been fully disclosed or reserved against in such accounts and financial statements and that there has been no material adverse change in its financial condition from that set forth in such accounts and financial statements;

 

26.01.13                   the Company did not omit to supply to the Trustee or the Arranger, prior to the execution of this Trust Deed, any information which, if disclosed, might adversely affect in either the Trustee’s or the Arranger’s reasonable opinion the decision of a person considering whether to enter into this Trust Deed, and nothing has occurred since the date on which any such other material was supplied to the Trustee or the Arranger which renders the information contained or any such other material supplied untrue or misleading in any respect and which, if disclosed, might materially adversely affect the decision of a person considering whether to enter into this Trust Deed.

 

26.02                      The representations and warranties of the Company set out in clause 26.01 shall survive the execution of this Trust Deed.

 

26.03                      The Company hereby covenants with the Trustee that it will duly perform and observe the obligations imposed on it by this Trust Deed and the Conditions.

 

26.04                      The following Conditions Precedent must be satisfied prior to the disbursement of the principal amount of the Notes:

 

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26.04.01                   the successful preparation, negotiation and execution of all necessary legal documentation to the Arranger’s satisfaction;

 

26.04.02                   the absence, in the Arranger’s opinion, of any material adverse change in the financial, economic and political environment in Trinidad and Tobago.

 

27.00                                              DEEMED INCLUSION OF CONDITIONS

 

27.01                      The Conditions to be endorsed on the Certificates set out in the First Schedule and the provisions and descriptions in the Second Schedule shall have effect as if such Conditions descriptions and provisions were set out in full in this Trust Deed.

 

28.00                                              TRUSTEE MAY ASSUME COMPLIANCE BY THE COMPANY

 

28.01                      Except as expressly provided in this Trust Deed, the Trustee shall be and is authorised to assume without enquiry, in the absence of knowledge by, or an express notice to it, to the contrary, that the Company is duly performing and observing all the terms of this Trust Deed to be performed and observed by the Company.

 

28.02                      Notwithstanding knowledge by, or notice to the Trustee of any breach of any such term it shall not take any action or proceedings or enforce performance until in any such case the Trustee is required to do so by the Noteholders pursuant to clause 8.01 hereof and then only if the Trustee shall be indemnified to its satisfaction against all actions, proceedings and claims to which it may render itself liable and all costs, charges, damages and expenses which it may incur by so doing.

 

29.00                                              AUDITOR’S CERTIFICATES

 

29.01                      The Trustee may accept without further enquiry a certificate given by the Auditor under clause 16.01.03 that, at any particular time or throughout any specified period, all or any of the covenants or provisions of clause 5.00 have been duly complied with as conclusive evidence of such compliance.

 

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30.00                                              TRANSFER OF NOTES

 

30.01                      The Company will recognise the registered holder of any Note as the absolute owner and shall not be bound to take notice or see to the execution of any trust, whether express, implied or constructive to which any Note may be subject. The receipt of the Noteholders or in the case of joint Noteholders the receipt of any of them, for the interest from time to time accruing in respect of it or for any other moneys payable on the Note shall be a good discharge to the Company, notwithstanding any notice it may have, whether express or otherwise, of the right, title, interest or claim of any other person to or in such Note, interest or moneys. No notice of any trust, express, implied or constructive shall be entered on the Register in respect of any Note.

 

30.02                      Every Noteholder will be recognised by the Company as entitled to his Note free from any equity, set-off or counter-claim on the part of the Company against the original or any intermediate holder of the Note.

 

30.03                      The Notes may only be transferred in integral multiples of $10,000.00 nominal value as the case may be, by instrument in writing in the usual common form or such other form as the Trustee may approve.

 

30.04                      Prior to the transfer of any Notes the transferor shall receive the written consent of the Company to the proposed transfer to a third party.

 

30.05                      Every instrument of transfer must be signed by the transferor (or where the transferor is a corporation, given under its common seal) and the transferor shall be deemed to remain the owner of the Note to be transferred until the name of the transferee is entered in the Register in respect of that Note.

 

30.06                      Every instrument of transfer must be left for registration at the place where the Register shall for the time being be kept, accompanied by the written consent of the

 

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Company to the transfer, the Certificate for the Note to be transferred and such other evidence as the Registrar may reasonably require to prove the title of the transferor or his right to transfer the Note and, if the instrument is executed by some other person on his behalf, the authority of the person to do so.

 

30.07                      All instruments of transfer which shall be registered will be retained by the Registrar.

 

30.08                      Any person becoming entitled to Notes in consequence of bankruptcy of the holder of such Notes may, on producing such evidence that he sustains the character in respect of which he proposes to act under this clause or of his title as the Trustee shall think sufficient, be registered himself as the holder of such Notes, or subject to the preceding clauses as to the transfer may transfer such Notes. The Trustee may retain the interest payable upon any Note which any person under this paragraph is entitled to transfer until such person shall either be so registered or shall duly transfer the Note. In the meantime the Trustee shall deposit such interest with a commercial bank in the name of the Trustee but shall not be responsible for the safe custody of such monies or for interest thereon and the Trustee shall be entitled to deduct the expenses incurred by it in arranging such deposit.

 

31.00                                              CANCELLATION OF NOTES

 

31.01                      All Notes repaid by the Company and all Notes purchased beneficially by or for the account of the Company and all Notes surrendered for replacement or replaced by the Company in accordance with Condition 13 shall be cancelled forthwith by or on behalf of the Company and the Company shall procure that a certificate stating:

 

(a)                                 the amounts paid in respect of such Notes so repaid, purchased and so cancelled; and

 

(b)                                 the serial numbers of the Certificates relating to such Notes; and

 

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(c)                                  the serial numbers of the Certificates relating to the Notes so surrendered and replaced;

 

shall be given to the Trustee by the Company or the Paying Agent as soon as reasonably possible after the date of such repayment, replacement or purchase, (as the case may be) and in any event not more than fourteen days thereafter. Such certificate may be accepted by the Trustee as conclusive evidence of repayment or replacement or such purchase and cancellation pro tanto of the Notes.

 

32.00                                              FURTHER ASSURANCE

 

32.01                      The Company shall at any time if and when required by the Trustee execute such further instruments as are required from time to time to secure all moneys obligations and liabilities hereby covenanted to be paid or otherwise hereby secured or to facilitate the realisation of the Security Documents or the exercise of the powers conferred on the Trustee such further instruments to be prepared by or on behalf of the Trustee at the cost of the Company and such clauses for the benefit of the Trustee as the Trustee may reasonably require.

 

33.00                                              POWER OF ATTORNEY

 

33.01                      The Company by way of security hereby irrevocably appoints the Trustee and the persons deriving title under it severally to be its Attorney in its name and on its behalf and as its act and deed or otherwise to execute and complete any documents which the Trustee may require for perfecting its title to or for vesting any property in the Trustee or its nominees or in any purchaser and otherwise generally to sign seal deliver and otherwise perfect any such instrument referred to in clause 32.00 and all such deeds and documents and to do all such acts and things as may be required for the full exercise of the powers hereby conferred including any sale lease disposition

 

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realisation or getting in of any property or any part thereof in connection with any other exercise of any power hereunder and this appointment shall operate as a power of attorney made under the Conveyancing Act of Trinidad and Tobago to the extent permissible under Trinidad and Tobago law. The Company hereby covenants with the Trustee to ratify and confirm any deed document act and thing and all transactions which any such attorney may lawfully execute or do.

 

34.00                                              MISCELLANEOUS

 

34.01                      No failure or delay by the Trustee in exercising any right or remedy shall operate as a waiver thereof nor shall any single or any partial exercise or waiver of any right or remedy preclude its further exercise or the exercise of any other right or remedy.

 

34.02                      Each of the provisions of this Trust Deed is severable and distinct from the others and if at any time one or more of such provisions is or becomes invalid illegal or unenforceable the validity legality and enforceability of the remaining provisions hereof shall not in any way be affected or impaired thereby.

 

34.03                      This Trust Deed shall be enforceable notwithstanding any change in the constitution of the Trustee or its absorption in or amalgamation with or the acquisition of all or part of its undertaking by any other person.

 

34.04                      Any liability or power which may be exercised or any determination which may be made hereunder by the Trustee may be exercised or made in its absolute and unfettered discretion and it shall not be obliged to give reasons therefore.

 

34.05                      The Company hereby certifies that neither the execution of this Trust Deed nor the creation of the charge herein mentioned contravenes any of the provisions of the Articles of Incorporation and By-laws of the Company or any agreement binding on it.

 

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34.06                      This Trust Deed may be simultaneously executed in several counterparts, each of which shall be an original and all of such shall constitute but one and the same instrument.

 

34.07                      Any amendment of any provision of this Trust Deed shall be in writing and signed by the parties.

 

34.08                      This Trust Deed contains the entire agreement of the parties with respect to the subject matter hereof and supercedes all other prior agreements and undertakings, both written or oral, between the parties with respect to the subject matter hereof.

 

34.09                      Except as otherwise provided herein, this Trust Deed and all of the terms and provisions hereof shall be binding upon and inure to the benefit of the parties and their respective heirs, executors, administrators, successors, trustees and legal representatives.

 

34.10                      The Company confirms to the Trustee for the benefit of itself and the Arranger that neither the Trustee nor the Arranger have acted as fmancial adviser to the Company and that the Company should not and has not relied on the Arranger’s advice to enter into the transaction including the issue of the Notes. The Company hereby covenants to hold the Trustee and the Arranger blameless and without liability for any loss or expenses that may result at any time as a result of the issuance of the Notes.

 

34.11                      The Trustee and the Company hereby agree and confirm that the Arranger may act as paying agent, registrar or underwriter of the Notes and as registrar and paying agent of any securitised instruments derived from the Notes and the Company may not claim any conflict of interest arising from the Arranger action in any of the above mentioned capacities.

 

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35.00                                              NOTICES

 

35.01                      Except as otherwise provided for in this Trust Deed, all notices or other communications under or in respect of this Trust Deed to any party to this Trust Deed shall be in writing. A written notice shall include a notice by facsimile.

 

35.02                      All notices or other communications under or in respect of this Trust Deed shall be deemed to be duly given or made when delivered (in the case of personal delivery or letter) and when despatched (in the case of facsimile, save that in the case of any notice or communication sent by facsimile such notice or communication shall not be deemed to be given or made if the addressee has promptly notified the party dispatching such notice or communication that it has not received a legible copy of such notice or communication) to such party addressed to it at the address stated below (or at such other address as such party may specify for such purpose to the other by notice in writing):

 

	
35.02.01
    	
 
    	
in the case of the Company:
    	
 
    	
FirstCaribbean International
    
	
 
    	
 
    	
 
    	
 
    	
Banking & Financial Corporation
    
	
 
    	
 
    	
 
    	
 
    	
Limited
    
	
 
    	
 
    	
 
    	
 
    	
12 Victoria Avenue
    
	
 
    	
 
    	
 
    	
 
    	
Port of Spain
    
	
 
    	
 
    	
 
    	
 
    	
Attention: Mr. Lloyd Samaroo
    
	
 
    	
 
    	
 
    	
 
    	
Facsimile No.: 868-625-8535
    
	
 
    	
 
    	
 
    	
 
    	
 
    
	
35.02.02
    	
 
    	
in the case of the Trustee:
    	
 
    	
Polanc Trusts Limited
    
	
 
    	
 
    	
 
    	
 
    	
Pembroke Court
    
	
 
    	
 
    	
 
    	
 
    	
17-19 Pembroke Street
    
	
 
    	
 
    	
 
    	
 
    	
Port of Spain
    
	
 
    	
 
    	
 
    	
 
    	
Attention: Mr. Edward Collier
    
	
 
    	
 
    	
 
    	
 
    	
Facsimile No.: 868-624-5644
    


 

35.03                      A notice or other communication received on a non-Business Day or after 4.00 p.m. in the place of receipt shall be deemed to be served on the next following Business Day in such place.

 

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36.00                                              GOVERNING LAW

 

36.01                      The Trust Deed and the Notes are governed by and shall be construed in accordance with the laws of Trinidad and Tobago.

 

37.00                                              SUBMISSION TO JURISDICTION

 

37.01                      The courts of Trinidad and Tobago shall have non-exclusive jurisdiction in connection with any legal action, suit or proceeding arising out of or relating to this Trust Deed.

 

38.00                                              WAIVER OF OBJECTION

 

38.01                      The Company waives any objection on the ground of inconvenient forum to any proceedings which relate to this Trust Deed and the Notes being brought in the courts of Trinidad and Tobago.

 

39.00                                              SERVICE OF PROCESS

 

39.01                      The Company agrees that any process or other document connected with proceedings in the Trinidad and Tobago courts which relate to this Trust Deed and the Notes shall be treated for all purposes as having been duly served on the Company if it is delivered at its registered office for the time being.

 

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IN WITNESS WHEREOF the Seal of the Company was hereunto affixed the day and year first hereinabove written and the Common Seal of the Trustee was hereunto affixed the 23rd day of March, 2007.

 


	
The Common Seal   of
    	
)
    	
 
    	
 
    
	
FIRSTCARIBBEAN
    	
)
    	
 
    	
 
    
	
INTERNATIONAL   BANKING &
    	
)
    	
 
    	
 
    
	
FINANCIAL   CORPORATION
    	
)
    	
 
    	
 
    
	
LIMITED   was hereunto affixed by
    	
) /s/ Victor B. Mouttet
    	
 
    	
 
    
	
Victor B.   Mouttet        its Secretary
    	
) Secretary
    	
 
    	
 
    
	
in the presence   of Larry Nath
    	
) /s/ Larry Nath
    	
 
    	
 
    
	
one of the   Directors of the Company by
    	
) Director
    	
 
    	
 
    
	
order and authority   of the Board of
    	
)
    	
 
    	
 
    
	
Directors and in   conformity with its by
    	
)
    	
 
    	
 
    
	
laws and signed   by them in the
    	
)
    	
 
    	
 
    
	
presence of:
    	
)
    	
 
    	
 
    
	
 
    	
)
    	
 
    	
 
    
	
/s/ Sharaz   Ahamad
    	
)
    	
 
    	
 
    
	
12 Victoria Ave
    	
 
    	
 
    	
 
    
	
Port of Spain
    	
 
    	
 
    	
 
    
	
Banker
    	
 
    	
 
    	
 
    
	
And of me,
    	
 
    	
 
    
	
/s/ Nicholas Sinanan
    	
 
    	
 
    
	
Attorney at Law
    	
 
    	
 
    
	
 
    	
 
    	
 
    
	
The Common Seal   of POLANC
    	
)
    	
 
    	
 
    
	
TRUSTS   LIMITED was hereunto
    	
)
    	
 
    	
 
    
	
affixed by   Stephanie Sealy its Secretary
    	
) /s/ Stephanie Sealy
    	
 
    	
 
    
	
in the presence   of
    	
) Secretary
    	
 
    	
 
    
	
Courtenay   Braemar Williams
    	
) /s/ Courtenay Braemar Williams
    	
 
    	
 
    
	
one of the Directors   of the Company by
    	
)Director
    	
 
    	
 
    
	
order and   authority of the Board of
    	
)
    	
 
    	
 
    
	
Directors and in   conformity with its by
    	
)
    	
 
    	
 
    
	
Laws and signed   by them in the
    	
)
    	
 
    	
 
    
	
Presence of:
    	
)
    	
 
    	
 
    
	
 
    	
 
    	
 
    	
 
    
	
/s/ Zira Edwards
    	
 
    	
 
    	
 
    
	
17-19 Pembroke   Street
    	
 
    	
 
    	
 
    
	
Port-of-Spain
    	
 
    	
 
    	
 
    
	
Secretary
    	
 
    	
 
    	
 
    
	
And of me,
    	
 
    	
 
    
	
/s/ Nicholas Sinanan
    	
 
    	
 
    
	
Attorney at Law
    	
 
    	
 
    




 

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THE FIRST SCHEDULE PART A

 

FORM OF GUARANTEED SUBORDINATED TERM NOTES CERTIFICATE

 

Certificate No            

 

Nominal Amount of Notes $                    

 

FIRSTCARIBBEAN INTERNATIONAL BANKING & FINANCIAL
 CORPORATION LIMITED
  (A company incorporated under the laws of Trinidad and Tobago)

 

Guaranteed Subordinated Terms Notes 2007 — 2017
 (in denominations of $10,000.00 or multiples of $10,000.00)

 

THIS IS TO CERTIFY that                               is/are the registered holder(s) of the above mentioned Guaranteed Subordinated Term Notes in the principal amount of $                              which are constituted and secured by a Trust Deed dated the 23rd day of March, 2007 (the “Trust Deed”) and made between FirstCaribbean International Banking & Financial Corporation Limited (the “Company”) of the One Part and Polanc Trusts Limited of the Other Part as Trustee for the Noteholders. The Notes are issued with the benefit of and subject to the provisions contained in the Trust Deed and the Conditions endorsed hereon.

 

Principal and interest are payable on the Notes represented by this Certificate in accordance with the Conditions endorsed hereon.

 

IN WITNESS WHEREOF the Seal of the Company was affixed in accordance with a Resolution of the Company and in conformity with its Articles and by-laws and has been signed on behalf of the Company by the Director and the Secretary thereof.

 

DATED this                    day of                         2007

 

	
 
    	
 
    
	
 
    	
DIRECTOR
    
	
 
    	
 
    
	
 
    	
SECRETARY
    


 

Countersigned for the purpose of authentication only:

 

	
 
    	
 
    
	
as   Paying Agent
    	
 
    


 

	
Registered
    	
 
    	
 
    
	
 
    	
 
    	
 
    
	
Dated
    	
 
    	
 
    
				


 

NOTE:                               This Certificate must be surrendered before any transfer of the whole or any portion of the Note to which it relates can be registered or a new Certificate issued in exchange. No fraction of $10,000.00 of Notes can be transferred.

 

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THE FIRST SCHEDULE PART B
 TERMS AND CONDITIONS OF THE NOTES

 

(being part of the First Schedule above referred to)

 

A.                                    The Guaranteed Subordinated Term Notes 2007-2017 (the “Notes”) of FirstCaribbean International Banking & Financial Corporation Limited (the “Company”) are issued in one maturity 2017 and are in registered transferable form without interest coupons attached.

 

B.                                    The Notes are constituted by a Trust Deed (the “Trust Deed”) between the  Company and Polanc Trusts Limited (the “Trustee”) as trustee for the holders of the Notes (the “Noteholders”).

 

C.                                    FirstCaribbean International Banking & Financial Corporation Limited is the initial Paying Agent (the “Paying Agent”) and Registrar (the “Registrar”) for the Notes. Copies of the following documents are available for inspection at the office of operations for the time being of the Trustee (being at the date hereof 12 Victoria Avenue, Port of Spain, Trinidad) namely:-

 

(i)                           The Trust Deed;

 

(ii)                        The Paying Agency Agreement;

 

(iii)                     The Guarantee

 

D.                                    The statements set out in these Conditions include summaries of, and are subject to, the provisions of the Trust Deed. The Noteholders are entitled to the benefit of, and are deemed to have notice of all the provisions of the Trust Deed, the Paying Agency Agreement and the Notes, all of which are binding on them.

 

1.00                        DEFINITIONS

 

1.01                        In these Conditions expressions defined in the Trust Deed shall have the same meaning whenever they appear herein.

 

1.01.02                               “Business Day” means a day on which Commercial Banks are open for all banking business in Trinidad and Tobago.

 

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1.01.03                               “Event of Default” means any event of default referred to in clause 6.00 of the Trust Deed.

 

1.01.04                               “Interest Payment Date” in respect of the Notes means the 23rd day of September, 2007 and thereafter the 23rd of March and September in each and every year. If an Interest Payment Date falls on a day which is not a Business Day (as defined below) it shall be the preceding day which is a Business Day.

 

1.01.05                               “Interest Period” means in respect of the Notes the period from the Closing Date to the 23rd day of September, 2007 and thereafter from the 23rd day of September to the 23rd day of March and from the 23rd day of March to the 23rd day of September in each year inclusive of both the first and last dates representing 20 semi annual payments until the Notes are finally repaid.

 

2.00                        TITLE AND DENOMINATION

 

2.01                        Title to the Notes will pass upon registration of a proper instrument of transfer accompanied by the relative Certificate delivered to the Registrar. The Company, the Trustee, the Paying Agent and the Registrar may treat the registered Noteholder(s) of any Note as the absolute owner thereof (whether or not such Note shall be overdue and notwithstanding any notice of ownership or writing on the Certificate thereof or any notice of previous loss or theft or of trust or other interest therein) and the Register of Noteholders shall (in the absence of wilful default, bad faith and manifest error) at all times be conclusive evidence of the

 

55











 

amount of Notes held by each Noteholder for the purpose of making payment and for all other purposes.

 

2.02                        The Notes, which are serially numbered, are issued in the denominations of $10,000.00 or integral multiples thereof without interest coupons.

 

3.00                        STATUS AND SUBORDINATION

 

3.01                        The Notes constitute unsecured obligations of the Company ranking pari passu without any preference among themselves.

 

3.02                        The rights of the Noteholders are subordinated to the claims of Senior Creditors (as defined below) and, accordingly, payments of principal and interest in respect of the Notes are conditional upon the Company being solvent at the time of payment by the Company, and no principal or interest shall be payable in respect of the Notes except to the extent that the Company could make such payment and still be solvent immediately thereafter. For the purposes of this Condition 3.02 the Company shall be solvent if (i) it is able to pay its debts as they fall due and (ii) its Assets (as defined below) exceed its Liabilities (as defined below) (other than, except in the circumstances provided in the Trust Deed, its Liabilities to persons who are not Senior Creditors). The Trust Deed contains provisions requiring a report as to the solvency of the Company to be made by two Directors of the Company or, in certain circumstances as provided in the Trust Deed, the Auditors (as defined in the Trust Deed) or, if the Company is in winding up in Trinidad and Tobago, its liquidator prior to any payment of principal or interest and also prior to the purchase of any Notes beneficially by or for the account of the Company or any of its Subsidiaries. Any such report shall, in the absence of proven error, be

 

56











 

treated and accepted by the Company, the Trustee and the Noteholders as correct and sufficient evidence of such solvency.

 

3.03                        As used in this Condition 3:

 

“Senior Creditors” means creditors of the Company (i) who are depositors and/or other unsubordinated creditors of the Company or (ii) whose claims are, or are expressed to be, subordinated to the claims of depositors and other unsubordinated creditors of the Company (whether only in the event of a winding up of the Company or otherwise) but not further or otherwise or (iii) who are subordinated creditors of the Company (whether as aforesaid or otherwise) other than those whose claims are expressed to rank pari passu with or junior to the claims of the Noteholders and any claims ranking pari passu with such last-mentioned claims.

 

“Assets” means the total amount of the unconsolidated gross tangible assets of the Company, and “Liabilities” means the total amount of the unconsolidated gross liabilities of the Company, in each case as shown by the latest published audited balance sheet of the Company, but adjusted, if the aggregate amount included in such balance sheet in respect of the Company’s investment in all Subsidiaries and Associated Companies (as defined in the Trust Deed) of the Company exceeds the aggregate of the net tangible assets of such Subsidiaries and Associated Companies attributable to the Company (calculated on a consolidated basis where any of such Subsidiaries and Associated Companies itself has subsidiaries) as shown by their latest relevant audited balance sheets, by deducting therefrom an amount equal to such excess and also for contingencies and subsequent events in

 

57











 

such manner as the above-mentioned Directors, the Auditors or the liquidator (as the case may be) may determine.

 

N.B.                                                If the Company would not otherwise be solvent (having taken into account liabilities to both Senior Creditors and creditors other than Senior Creditors), the amount of principal and of sums which would otherwise be payable as interest in respect of the Notes will be available to meet the losses of the Company.

 

4.00                        CURRENCY INDEMNITY AND TAXES INDEMNIFICATION

 

4.01                        If under any applicable law or regulations or pursuant to a judgment or order made or registered against the Company or without limitation for any other reason any payment under or in connection with the Notes is made or forced to be satisfied in a currency other than Dollars then to the extent that the amount of such payment actually received by the Noteholders (“the payment currency”) when converted on or about the date of payment at the rate of exchange falls short of the amount payable under the Notes the Company as a separate and independent obligation shall pay as an additional payment such shortfall. For the purpose of this Clause “rate of exchange” means the rate at which Dollars may be lawfully purchased on or about the date of such payment with the payment currency and shall take into account any premium and other costs of exchange with respect to such transaction and the Company shall be liable for any premium and other cost of exchange including any taxes or duties incurred by reason of any such exchange.

 

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4.02                        All payments to be made by the Company shall be made free and clear of and without deduction for or on account of Taxes unless the Company is required to make such a payment subject to the deduction or withholding of Taxes, in which case the amount payable by the Company in respect of which such deduction or withholding is required to be made shall be increased to the extent necessary to ensure that, after the making of such deduction or withholding, the Paying Agent receives (free from any liability in respect of any such deduction or withholding) a net amount equal to the sum which it would have received had no such deduction or withholding been made or required to be made;

 

4.03                        If at any time the Company is required by law to make any deduction or withholding from any sum payable by it under this Note (or if subsequently there is any change in the rates at which or the manner in which such deductions or withholdings are calculated), it shall promptly notify the Trustee upon becoming aware of the same.

 

4.04                        If the Company is required to make any deduction or withholding from any payment hereunder, it shall pay the full amount required to be deducted or withheld to the relevant taxation or other authority within the time allowed for such payment under applicable law and shall deliver to the Trustee within 30 days after it has made such payment to the applicable authority an original official receipt issued by such authority and any other appropriate evidence of the payment to such authority of all amounts so required to be deducted or withheld;

 

4.05                        The Company shall indemnify and hold harmless the Trustee against, and reimburse it on demand, the amount of any Taxes so deducted withheld or

 

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accounted for and paid by the Company whether or not such Taxes were correctly or legally assessed or demanded.

 

5.00                        GUARANTEE AND SUBORDINATION

 

5.01                        The due payment of the principal and interest in respect of the Notes (and all moneys payable by the Company under the Trust Deed) have the benefit of the unconditional and irrevocable guarantee of FirstCaribbean International Bank Limited (“the Guarantor”).

 

5.02                        The rights of the Noteholders against the Guarantor under the terms of the Guarantee are unsecured and, in the event of the winding up of the Guarantor, the claims of the Noteholders pursuant thereto will be subordinated, in the manner provided in the Guarantee, to the claims of depositors and other creditors of the Guarantor.

 

6.00                        INTEREST

 

6.01                        Accrual of Interest

 

6.01.01                               The Notes will bear interest from and including the Closing Date. The interest accruing on the Notes from and including the Closing Interest in respect of each Note will accrue from day to day on the basis of an actual 365 day year and will cease to accrue from the Due Date for repayment thereof unless, upon due presentation of the relevant Certificate, payment of principal is improperly withheld or refused.

 

6.02                        Interest Payment Dates and Interest Periods

 

6.02.01                               Interest in respect of the Notes is payable on each Interest Payment Date in respect of each Interest Period.

 

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6.03 Rate of Interest

 

6.03.01                               The Rate of Interest in respect of the Fixed Rate Notes 2007-2017  is fixed for the first two years following the Closing Date at 7.90% per annum, then fixed for the next three years following at 8.15% per annum, then fixed for the remaining five years following at 8.75% per annum.

 

6.04                        Determination of Interest Amount

 

6.04.01                               The Paying Agent shall as soon as practicable prior to the commencement of the Interest Period but in any event not later than the fourth Business Day thereafter, determine the amount of interest payable in respect of the Notes (the “Interest Amount”) for such period. The Interest Amount shall be calculated by applying the Rate of Interest to the principal amount outstanding multiplying such sum by the actual number of days in the Interest Period concerned divided by 365 aggregating the figures so produced and rounding the resultant figure to the nearest cent (half a cent being rounded upwards).

 

6.05                        Notification of Rate of Interest and Interest Amount

 

6.05.01                               The Paying Agent shall cause notice of the Interest Amount payable for each Interest Period, together with the relative Interest Payment Date, to be given to the Company and the Trustee as soon as practicable after their determination but in no event later than the fourth Business Day thereafter.

 

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6.05.02                               The Interest Amount and Interest Payment Date so notified may subsequently be amended (or appropriate alternative arrangements made by way of adjustment) in the case of manifest error.

 

6.05.03                               The Paying Agent shall provide to all Noteholders upon request notification of the Interest Amount and of the Interest Payment Date in respect of each Interest Period once the same has been established but shall not be required to give notice thereof in manner provided in Condition 16.00.

 

6.05.04                               The Trustee shall, if the Paying Agent does not at any material time for any reason determine the Interest Amount in accordance with Condition 6.04.01 above, determine the Interest Amount in accordance with the said Conditions, and such determination shall be deemed to be a determination by the Paying Agent.

 

6.06                        Notification etc to be final.

 

6.06.01                               All notifications, opinions, determinations, certificates, calculations, quotations and decisions given, expressed, made or obtained for the purposes of this Condition 6.00, whether by the Paying Agent or the Trustee, shall (in the absence of wilful default, bad faith or manifest error) be binding on the Company, the Trustee the Paying Agent and all Noteholders and (in the absence aforesaid) no liability to the Noteholders shall attach to the Paying Agent or the Trustee in connection with the exercise or non-exercise by them of their powers, duties and discretions under this Condition 6.00.

 

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6.07                        Interest ceasing to accrue

 

6.07.01                               Interest on any Note becoming liable to redemption shall cease to accrue immediately after the Due Date for redemption of such Note except as provided in clauses 2.02.03 and 2.02.04 of the Trust Deed.

 

6.07.02                               Any interest in respect of the Notes not paid on an Interest Payment Date, together with any other interest in respect thereof not paid on any other Interest Payment Date, shall so long as the same remains unpaid, constitute “Arrears of Interest”.

 

6.07.03                               Arrears of Interest may at the option of the Company be paid in whole or (subject as provided in the Trust Deed) in part at any time upon the expiration of not less than seven (7) days’ notice to such effect given to the Trustee and to the Noteholders in accordance with Condition 16.00 below, but all Arrears of Interest in respect of all Notes for the time being outstanding (as defined in the Trust Deed) shall become due in full on the next Interest Payment Date or on the maturity of the Notes whichever is the earlier. The provisions of this Condition 6.07.03 is without prejudice to the right of the Trustee to enforce the provisions of the Trust Deed and the Security Documents in accordance with Clause 8 of the Trust Deed.

 

6.07.04                               If notice is given by the Company of its intention to pay the whole or any part of Arrears of Interest, the Company shall be obliged to do so upon the expiration of such notice. Where Arrears of Interest are paid in part, each part payment shall be in respect of the full amount of the

 

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Arrears of Interest accrued due to the Interest Payment Date or consecutive Interest Payment Date furthest from the date of payment. Arrears of Interest shall carry interest at the same rate during any period as the outstanding principal sum up to but not including the date on which the whole of such Arrears of Interest is paid in full.

 

7.00                        REPAYMENT PURCHASE AND CANCELLATION

 

7.01                        Unless previously redeemed pursuant to these conditions or purchased and cancelled, the Company will redeem the Notes by a single bullet payment of $195,000,000.00 or such other amount equal to the aggregate principal amount of the Notes on the last day of the last Interest Period.

 

7.02                        If the date hereby fixed for payment of any principal falls on a date which is not a Business Day it shall occur on the preceding day which is a Business Day.

 

7.03                        The Company shall be at liberty on the first Interest Payment Date following the fifth anniversary of the Closing Date to repay all or a portion of the principal amount then owing under the Notes, by giving 60 days prior notice in writing and paying a penalty of 0.5% of the principal amount being prepaid.

 

7.04                        The Company may at any time purchase beneficially or procure others to purchase beneficially for its account Notes by tender or by private treaty.

 

7.05                        All Notes which are redeemed or purchased by or on behalf of the Company will forthwith be cancelled and, accordingly, may not be re-issued or re-sold.

 

8.00                        METHOD OF PAYMENT

 

8.01                        Notice of the date fixed for repayment of the principal sum will be published not less than 30 days before such date in accordance with Condition 16.00.

 

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8.02                        Payment of the principal amounts in respect of the Notes will only be made against presentation and surrender of the Note Certificate at the Specified Office of the Paying Agent but the Trustee may dispense with the production of a Certificate in any particular case on such indemnity being given as it shall think fit.

 

8.03                        Cheques in respect of principal and interest payments will be mailed to Noteholders at the address appearing in the register of Noteholders, or the said sums may be transferred by wire to an account as advised by the Noteholder.

 

8.04                        All payments of principal and interest in respect of the Notes will be subject to any applicable fiscal and other laws.

 

8.05                        On payment under any of the provisions of clause 9.00 of the Trust Deed and Condition 7.00 hereof the Paying Agent shall cause the Certificate to be cancelled and a new Certificate re-issued for the remaining principal amount due on the Note if any and in the case of payment in full shall cause such Certificate to be cancelled in full.

 

9.00                        TERMINATION AND APPOINTMENT OF NEW PAYING AGENT(S)

 

9.01                        The Company may, with the prior approval of the Trustee and in accordance with the Paying Agency Agreement vary or terminate the appointment of the Paying Agent and/or appoint additional Paying Agent(s) and/or approve any change in the Specified Office of any Paying Agent, provided that so long as any of the Notes remain outstanding the Company will maintain a Paying Agent with a Specified Office in Trinidad and Tobago

 

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9.02                        In the event of any such variation, termination, appointment or change in Specified Office, notice thereof will be given by the Company to the Noteholders in accordance with Condition 16.00.

 

10.00                 DEFAULT

 

10.01                 The Notes shall become immediately due and payable together with accrued interest, if any Event of Default occurs and the Trustee is requested by a Special Extraordinary Resolution to demand repayment.

 

10.02                 At any time after the Notes shall have become immediately due and repayable, the Trustee shall, if so requested by Special Extraordinary Resolution (but, subject to the Trustee being indemnified to its satisfaction against all proceedings, claims and demands to which the Trustee may be liable and all costs, charges and expenses which may be incurred by the Trustee in connection therewith), and without notice take such proceedings against the Company as it may deem fit.

 

10.03                 No Noteholders shall in any circumstances be entitled to any remedy (whether by way of action, petition or otherwise howsoever) for the recovery of any Note or any part thereof or any interest thereon, unless the Trustee, having become bound to take proceedings in accordance with this Trust Deed, fails to do so within a reasonable time and such failure shall be continuing. In that case any Noteholder may, on giving the Trustee an indemnity satisfactory to the Trustee against all proceedings claims and demands to which it may be liable and all costs charges and expenses which may be incurred by it in connection therewith, in the name of the Trustee (but not otherwise) himself either take such proceedings against the

 

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Company or prove in the winding-up of the Company. The Trustee shall apply any moneys so received in the manner provided in the Trust Deed.

 

11.00                 PRESCRIPTION

 

11.01                 Each Note shall become void unless the Certificate in respect thereof is presented for payment within 12 years after the date on which such payment first becomes due.

 

12.00                 MODIFICATION OF TERMS AND CONDITIONS

 

12.01                 The Second Schedule of the Trust Deed contains provisions for convening meetings of the Noteholders to consider any matters affecting their interest, including the modification by Extraordinary Resolution of these Conditions or the provisions of the Trust Deed.

 

12.02                 The quorum at any meeting for passing an Extraordinary Resolution will be persons holding or representing not less than a clear majority in principal amount of the Outstanding Notes, or at any adjourned meeting two (2) persons being Noteholders present whether in person or proxy, whatever the principal amount of the Notes held or represented by them. Any resolution duly passed at any such meeting shall be binding on all the Noteholders, whether present or not.

 

12.03                 The quorum at any meeting or at any adjourned meeting for passing a Special Extraordinary Resolution will be persons holding or representing the entire principal amount of the Outstanding Notes, whether in person or proxy.

 

12.04                 The Trustee may agree, without the consent of the Noteholders, to any modification of, or to any waiver or authorisation of any breach or proposed breach of any provision of, the Trust Deed which, in the opinion of the Trustee, is

 

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not materially prejudicial to the interest of the Noteholders and which does not affect the obligation of the Company to make payments of interest and of principal in the amounts and at the times specified in the Trust Deed or in the Conditions or to any modification which is of a formal or technical nature or which is made to correct a manifest error.

 

12.05                 Any such modification, waiver or authorisation shall be binding on the Noteholders and, unless the Trustee agrees otherwise, any such modification shall be notified to the Noteholders as soon as practicable thereafter in accordance with Condition 16.00.

 

13.00.              REPLACEMENT OF NOTE CERTIFICATES

 

13.01                 If a Note Certificate is mutilated, defaced, destroyed, stolen or lost it may, and shall in the case of mutilation or defacement, upon the surrender of the mutilated or defaced Certificate, be replaced at the Specified Office of the Registrar on payment of such costs as may be incurred. in connection therewith and, in the case of destruction, theft or loss, on such terms as to evidence and indemnity as the Company may reasonably require.

 

14.00                 INDEMNIFICATION OF THE TRUSTEE

 

14.01                 The Trust Deed contains provisions for the indemnification of the Trustee and for its relief from responsibility. The Trustee is entitled to enter into business transactions with the Company, without accounting for any profit resulting therefrom or disclosing to the Noteholders any confidential information which is thereby obtained.

 

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15.00                 FURTHER ISSUES

 

15.01                 The Company is at liberty from time to time without the consent of the Noteholders to create and issue further bonds or notes upon such terms as to interest, conversion, repayment, security and otherwise as the Company may at the time of issue thereof determine.

 

16.00                 NOTICES

 

16.01                 All notices to the Noteholders will be valid if delivered by registered mail. Such notice shall be deemed to have been given on the date when delivered.

 

16.02                 Any notice to the Paying Agent and Registrar shall be addressed to:

 

PAYING AGENT AND REGISTRAR

 

FIRSTCARIBBEAN INTERNATIONAL BANKING &
 FINANCIAL CORPORATION LIMITED
  12 Victoria Avenue,
 Port of Spain

 

and/or such other or further Paying Agent(s) or Registrar(s) for the Notes as may from time to time be appointed by the Company with the approval of the Trustee and notice of whose appointment is given to the Noteholders within 14 days thereafter in accordance with Condition 16.00.

 

17.00.              GOVERNING LAW

 

17.01                 The Trust Deed and the Notes are governed by and shall be construed in accordance with the laws of the Republic of Trinidad and Tobago.

 

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THE SECOND SCHEDULE ABOVE REFERRED TO

 

Provisions for Meetings of Noteholders

 

1.                                      (i)                                     A Noteholder may by an instrument in writing in the English language (hereinafter called a “form of proxy”) signed by the Noteholder or, in the case of a corporation, executed under its common seal or signed on its behalf by an attorney or a duly authorised officer of the corporation, appoint any person (hereinafter called a “proxy”) his or its proxy to act on his or its behalf in connection with any meeting or proposed meeting of the Noteholders.

 

(ii)                                  Any Noteholder which is a corporation may by resolution of its directors or other governing body authorise any person to act as its representative (hereinafter called a “Representative”) in connection with any meeting or proposed meeting of the Noteholders.

 

(iii)                               Any proxy appointed pursuant to sub-paragraph (i) above or Representative appointed pursuant to sub-paragraph (ii) above shall so long as such appointment remains in force be deemed, for all purposes in connection with any meeting or proposed meeting of the Noteholders specified in such appointment, to be the holder of the Notes to which such appointment relates and the holder of the Notes shall be deemed for such purposes not to be the Noteholder.

 

2.                                      The Trustee or the Company at any time may, and the Trustee (subject to its being indemnified to its satisfaction against all costs and expenses thereby occasioned) upon a request in writing of Noteholders holding not less than one-tenth of the principal amount of the Outstanding Notes shall, convene a meeting of

 

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Noteholders. Whenever the Company is about to convene any such meeting it shall forthwith give notice in writing to the Trustee of the day, time and place thereof and of the nature of the business to be transacted thereat. Every meeting shall be held at such place as the Trustee may agree.

 

3.                                      At least twenty-one days’ notice (exclusive of the day on which the notice is given and the day on which the meeting is held) specifying the day, time and place of meeting shall be given to the Noteholders. A copy of the notice shall be given to the Trustee unless the meeting shall be convened by the Trustee and a copy shall be given to the Company unless the meeting shall be convened by the Company. Such notice shall specify the general nature of business to be transacted at the meeting thereby convened and shall be given in the manner provided in these presents but (except in the case of an Extraordinary Resolution or Special Extraordinary Resolution) it shall not be necessary to specify in such notice the form of any resolution to be proposed. Such notice shall also include a statement to the effect that the Noteholders may appoint proxies by executing and delivering a form of proxy to the Specified Office of the Registrar not later than 48 hours before the time fixed for the meeting or, in the case of corporations, may appoint representatives by resolution of their directors or governing body.

 

4.                                      A person nominated in writing by the Trustee shall be entitled to take the chair at every such meeting but if no such nomination is made or if at any meeting the person nominated shall not be present within fifteen minutes after the time appointed for the holding of such meeting the Noteholders present shall choose

 

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one of their number to be Chairman and failing such choice the Company may appoint a Chairman.

 

5.                                      At any such meeting two or more persons present holding Notes being proxies or representatives and holding or representing in the aggregate one-fiftieth of the principal amount of the Outstanding Notes shall (except for the purpose of passing an Extraordinary Resolution or Special Extraordinary Resolution) form a quorum for the transaction of business and no business (other than the choosing of a chairman) shall be transacted at any meeting unless the requisite quorum be present at the commencement of business. The quorum at any such meeting for the passing of any Extraordinary Resolution shall, (subject as provided below), be two or more persons present holding Notes or being proxies or representatives and holding or representing in the aggregate not less than a clear majority in principal amount of the Outstanding Notes for the time being, provided that for the following matters (each of which shall only be capable of being effected after having been approved by Extraordinary Resolution) namely:-

 

(i)                                     modification of the date fixed for repayment of the Notes;

 

(ii)                                  reduction or cancellation of any part of the amount of principal payable on the Notes;

 

(iii)                               modification of the dates of payment or the amounts payable in respect of interest or the method of determining the amounts payable in respect of interest on the Notes;

 

(iv)                              alteration of the majority required to pass an Extraordinary Resolution; and

 

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(v)                                 alteration of this proviso or the first proviso to paragraph 6 below, the quorum shall be two or more persons present holding Notes or being proxies or representatives and holding or representing in the aggregate not less than two-thirds of the principal amount of the Outstanding Notes. The quorum at any such meeting for the passing of any Special Extraordinary Resolution shall be two or more persons present holding Notes or being proxies or representatives and holding or representing in the aggregate one hundred per cent (100%) of the principal amount of the Outstanding Notes, provided also that alteration of the quorum for the passing of any Special Extraordinary Resolution as set out in this paragraph 5 and alteration of the second proviso related to the Special Extraordinary Resolution in paragraph 6 below shall only be capable of being effected after having been approved by Special Extraordinary Resolution.

 

6.                                      If within fifteen minutes from the time appointed for any meeting of Noteholders a quorum is not present, the meeting shall, if convened upon the request of Noteholders, be dissolved. In any other case it shall stand adjourned to such day, time and place, being not less than twenty-eight nor more than forty-two days thereafter, as may be appointed by the chairman and at such adjourned meeting two or more persons present holding Notes or being proxies or representatives (whatever the principal amount of the Notes held or represented by them) shall (subject as provided below) form a quorum and have power to pass any Extraordinary Resolution or other resolution and to decide upon all matters which, had there been a quorum, could properly have been dealt with at the meeting from

 

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which the adjournment took place. Provided that at any adjourned meeting the business of which includes any of the matters requiring approval by Extraordinary Resolution as specified in the proviso to paragraph 5 above, the quorum shall be two or more persons present holding Notes or being proxies or representatives and holding or representing in the aggregate not less than one-third of the principal amount of the Outstanding Notes. Provided also, that at any adjourned meeting the business of which includes any of the matters requiring approval by Special Extraordinary Resolution, the quorum shall be two or more persons present holding Notes or being proxies or representatives and holding or representing in the aggregate one hundred per cent (100%) of the principal amount of the Outstanding Notes.

 

7.                                      At least twenty-one days’ notice exclusive of the day on which the notice is given and the day on which the meeting is held of any adjourned meeting at which an Extraordinary Resolution or Special Extraordinary Resolution is to be submitted shall be given in manner provided by these presents and such notice shall (except in cases where the proviso to paragraph 6 above shall apply when it shall state the relevant quorum) state that two or more persons present holding Notes or being proxies or representatives at the adjourned meeting will form a quorum for all purposes.

 

8.                                      The chairman may with the consent of (and shall if directed by) any such meeting adjourn the same from time to time and from place to place but no business shall be transacted at any adjourned meeting except business which might lawfully have been transacted at the meeting from which the adjournment took place.

 

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Subject as provided in paragraph 7 above it shall not be necessary to give to the Noteholders notice of an adjourned meeting unless the meeting has been adjourned sine die.

 

9.                                      Every question submitted to a meeting of Noteholders shall be decided in the first instance by a show of hands and in the case of an equality of votes the chairman shall both on a show of hands and on a poll have a casting vote in addition to the vote or votes (if any) to which he may be entitled as the holder of a Note or as a proxy or as a representative.

 

10.                               At any meeting of Noteholders, unless (before or on the declaration of the result of the show of hands) a poll is demanded by the chairman or by one or more persons present holding Notes or being proxies or representatives and holding or representing not less than one-hundredth part of the principal amount of the Outstanding Notes, a declaration by the chairman that a resolution has been carried or carried by a particular majority or lost or not carried by any particular majority shall be conclusive evidence of such fact.

 

11.                               If at any such meeting a poll is so demanded, it shall be taken in such manner and either at once or after an adjournment as the chairman shall direct and the result of such poll shall be deemed to be the resolution of the meeting at which the poll was demanded. The demand for a poll shall not prevent the continuance of the meeting for the transaction of any business other than the question on which the poll has been demanded.

 

12.                               Any poll demanded at any such meeting on the election of a chairman or any question of adjournment shall be taken at the meeting without adjournment.

 

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13.                               (A)                               The Trustee and its legal advisers and any director or duly authorised representative of a corporation being a trustee of these presents and any Director and legal adviser of the Company and any other person authorised in that behalf by the Trustee or the Company may attend and speak at any such meeting. Without prejudice to paragraph (ii) of the proviso to the definition of “Outstanding Notes” in Clause 1.00 of the Trust Deed no person shall be entitled to attend (except as provided above) and vote at any meeting of the Noteholders or join with others in requesting the convening of such a meeting or to exercise the rights conferred on the Noteholders by Clause 8 of the Trust Deed or Condition 10.00 unless he is a proxy or a representative or is the holder of a Registered Note or Registered Notes. Nothing herein contained shall prevent any of the proxies named in any form or proxy or representative from being an officer or representative of or otherwise connected with the Company.

 

(B)                               Subject as provided in sub-paragraph (A) above at any such meeting (a) on a show of hands every person who is present in person and is a holder of Registered Notes or is a proxy or representative shall have one vote and (b) on a poll every such person shall have one vote in respect of each $10,000.00 principal amount of Notes in respect of which he is a proxy or representative or of which he is the holder. Without prejudice to the obligations of the proxies named in any form of proxy any person who is entitled to more than one vote need not use all his votes or cast all the

 

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votes to which he is entitled in the same way. In the case of joint holders of a Note the vote of the senior who tenders a vote shall be accepted to the exclusion of the votes of the other joint holders and for this purpose, seniority shall be determined by the order in which the names stand in the Register in respect of the joint holding.

 

(C)                               Fractions of votes will not be counted.

 

14.                               The proxies named in any form of proxy and representatives need not be holders of Notes.

 

15.                               Each form of proxy shall be deposited at such place as the Trustee shall approve not less than 48 hours before the time appointed for holding the meeting or adjourned meeting at which the proxies named propose to vote and in default the form of proxy shall not be treated as valid unless the chairman of the meeting decides otherwise before such meeting or adjourned meeting proceeds to business. A notarially certified copy of each such form of proxy and satisfactory proof as aforesaid if applicable shall be deposited with the Trustee (if so required by the Trustee) before the commencement of the meeting or adjourned meeting but the Trustee shall not thereby be obliged to investigate or be concerned with the validity of or the authority of the proxies named in any such form of proxy.

 

16.                               Any vote given in accordance with the terms of a form of proxy shall be valid notwithstanding the previous revocation or amendment of the form of proxy or of any of the Noteholders’ instructions pursuant to which it was executed provided that no intimation in writing of such revocation or amendment shall have been received by the Trustee at its Specified Office for the time being (or such other

 

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place as may have been approved by the Trustee for the purpose) 48 hours before the time appointed for holding the meeting or adjourned meeting at which the form of proxy is to be used.

 

17.                               The Noteholders shall in addition to all other powers have the following powers exercisable by Extraordinary Resolution only, namely:-

 

(A)                               Power to sanction any modification, variation, abrogation or compromise of, or any arrangement in respect of, the rights of the Noteholders against the Company whether such rights shall arise under these presents or otherwise.

 

(B)                               Power to assent to any modification of the provisions contained in these presents, or the Notes which shall be proposed by the Company or the Trustee.

 

(C)                               Power to approve any person proposed to be appointed as a new trustee and power to remove any trustee or trustees of these presents.

 

(D)                               Power to authorise and empower the Trustee to concur in and execute and do all such deeds, instruments, acts and things as may be necessary to carry out and give effect to any Extraordinary Resolution.

 

(E)                                Power to agree to the release or exoneration of any Trustee from any liability in respect of anything done or omitted to be done by such Trustee before the giving of such release or exoneration and for which such Trustee may have become responsible under these presents.

 

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(F)                                 Power to give any sanction, direction or request which under the provisions of these presents or the Notes is required to be given by Extraordinary Resolution.

 

(G)                               Power to appoint any person (whether Noteholders or not) as a committee or committees to represent the interests of the Noteholders and to confer upon such committee or committees any powers or discretions which the Noteholders could themselves exercise by Extraordinary Resolution.

 

(H)                              Power to sanction any scheme for the reconstruction of the Company or for the amalgamation of the Company with any other company.

 

Provided that the Noteholders shall in addition to all other powers have the following powers exercisable by Special Extraordinary Resolution only, namely:- in an Event of Default pursuant to Clause 6 of the Trust Deed (i) instituting proceedings for the winding-up of the Company and/or the Guarantor if the default event occurs within the definition of Clause 6.01.01 and (ii) giving notice to the Company that the Notes are immediately due and repayable at their principal amount together with accrued interest if the default event occurs within the definition of Clause 6.01.02; and save for the entitlement provided for in Clause 8.02 take no other action in respect of any such default and provided also that the provisions contained in Clauses 6.00, 7.00 and 9.00 of the Trust Deed and in this proviso shall not be capable of modification by Extraordinary Resolution or Special Extraordinary Resolution.

 

18.                               A vote given in accordance with an instrument of proxy shall be valid notwithstanding the previous revocation of the proxy or of the authority under

 

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which the proxy was executed, so long as no intimation in writing of such revocation shall have been received by the Company before the commencement of the meeting or adjourned meeting or the taking of the poll at which the proxy is used.

 

19.                               An Extraordinary Resolution or Special Extraordinary Resolution passed at a meeting of the Noteholders duly convened and held in accordance with these presents shall be binding upon all the Noteholders whether present or not at such meeting and each of the Noteholders shall be bound to give effect thereto accordingly. The passing of any such resolution shall be conclusive evidence that the circumstances justify the passing thereof, the intention being that it shall rest with the meeting to determine without appeal whether or not the circumstances justify the passing of such resolution.

 

20.                               The expression “Extraordinary Resolution” when used in these presents means a resolution passed at a meeting of the Noteholders duly convened and held in accordance with the provisions contained in this Schedule by the majority consisting of not less than three-quarters of the votes cast thereon.

 

21.                               The expression “Special Extraordinary Resolution” when used in these presents means a resolution passed at a meeting of the Noteholders duly convened and held in accordance with the provisions contained in this Schedule by the majority consisting of not less than two-thirds of the votes cast thereon.

 

22.                               Minutes of all resolutions and proceedings at every such meeting as aforesaid shall be made and duly entered in books to be from time to time provided for that purpose by the Company and any such minutes, if purporting to be signed by the

 

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chairman of the meeting at which such resolutions were passed or matters transacted or by the chairman of the next succeeding meeting of the Noteholders, shall be conclusive evidence of the matters therein contained and until the contrary is proved every such meeting in respect of the proceedings of which minutes have been made shall be deemed to have been duly convened and held and all resolutions passed or matters transacted thereat to have been duly passed and transacted.

 

23.                               A resolution in writing signed by or on behalf of all the Noteholders shall for all purposes of this Trust Deed be as valid and effective as an Extraordinary Resolution or Special Extraordinary Resolution passed at a meeting of the Noteholders duly convened and held. The resolution in writing may be contained in one document or in several documents in or substantially in like form each signed by or on behalf of one or more of the relevant Noteholders.

 

24.                               Subject to the provisions contained in this Schedule, the Trustee may without the consent of the Noteholders prescribe such further regulations regarding the holding of meetings of Noteholders and attendance and voting thereat as it may in its discretion determine.

 

25.                               If a resolution will affect some but not all of the Noteholders then in relation only to such resolution and any meeting convened or to be convened solely for the purpose of considering and if thought fit, passing such resolution, the holders of any Notes that will be unaffected by such resolution shall be deemed not to be Noteholders by virtue only of their holding such Notes and such Notes shall be deemed not to be Outstanding Notes for the purposes of the provisions contained

 

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in this Schedule. The question whether any Notes will or will not be affected by a particular resolution shall be decided by the Trustee whose decision shall in absence of fraud or bad faith, be final and conclusive.

 

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