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Caribbean Investment Fund Act


Published: 2004-03-23

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CARIBBEAN INVESTMIJNI' FUND 1

THE CARIBBEAN INVESTMENT FUND ACT

[ t j rd March, 2004.1

1. This Act may be cited as the Caribbean Investment Fund
Ad.

2. In this Act-

"the Fund means the Caribbean Investment Fund
established by the Fund Agreement;

"the Fund Agreement" means the Agreement establishing
the Caribbean Investment Fund as amended by the
Supplemental Agreement, the original of which is
deposited with the Secretary-General of the Caribbean
Community Secretariat and of which the text of the
original clauses is set out in Part I of the Schedule to
this Act;

"Minister" means the Minister responsible for investment;

"the Supplemental Agreement" means the Agreement
amending the Fund Agreement the original of which is
deposited with the Secretary-General of the Caribbean
Community Secreteriat and of which the text of the
clauses is set out in Part 11 of the Schedule to this Act.

3. Acceptance by the Government of the Fund Agreement is
hereby approved.

4. The provisions of clauses 4.2 and 12.2, of the Fund
Agreement shall have the force of law in Jamaica.

Aet
13 of 1998.

Short title.

Interpreta-
tion.

Schedule.

Approval of
Fund
Agreement.

-in pro-
visions of
Fund
Agreemenl
given force
of law in
Jamaica.

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2 CARIBBEAN INVESTMENT FUND

Power of
minis*^ to
make order.

Amendment
of Schedule
and matters
consequen-
tial thereon.

5. The Minister may, by order, make such provisions as he
may consider necessary or expedient for giving effect to any
provisions of the Fund Agreement.

6.-(1) Where any amendment to the Fund Agreement is
accepted by the Government, the Minister may, by order,
amend the Schedule by including therein the amendment so
accepted.

(2) Anv order made under this section mav contain such . ,
consequential, supplemental or ancillary provisions as appear
to the Minister to be necessary or expedient for the purpose of
giving due effect to the amendment kcepted as afoiesiid and,
without prejudice to the generality of the foregoing, may
contain provisions amending references in this Act to specific
provisions of the Fund Agreement.

(3) Every order made under this section shall be subject
to affirmative resolution.

(4) Where the Schedule is amended pursuant to this
section, any reference in this Act or any other instrument to the
Agreement shall unless the context otherwise requires be
construed as a reference to the Agreement as so amended.

SCHEDULE (Sections 2 and 6 )

PART I

Agreement behveen the ICWI Group and CARICOM Governments on
the Establishment ofthe Caribbean Investment Fund

This Agreement made between the Governments of the Member States
and Associate Members of the Caribbean Community (CARICOM) listed in
paragraph 1 of the Schedule to this Agreement which are signatories to this
Agreement (hereinafter referred to as "the Signatoty States") and ICWI
Group Limited of 2 St. Lucia Avenue, Kinston 5 in the parish of St. Andrew,
Jamaica (hereinafter called "ICWI") WITNESSETH as follows:-

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CARIBBEAN INVESTMENT FUND

1. OBJECTIVES:

1.1 To establish through a public company an investment hnd or
series of investment funds in United States Dollars to be known as the
Caribbean Investment Fund (hereinafter called "the Fund) the main
objects of which shall be the investment in private sector majority
owned and controlled companies and corporations located in the
Signatory States listed in the Schedule hereto preferably those which
are listed or which have committed to the list on a stock exchange in
any of the Signatdy States. Such investment shall include but not be
limited to investment by way of a new stock and share issues, joint
venture participation, project financing; and loan funding.

1.2 The main thrust of investment by the Fund shall be the
encouragement and promotion of projects involving new ventures,
business expansion and plant expansion (including divestment and
privatisation of public sector owned and/or controlled companies,
corporations and authorities) which are geared towards increasing
exports and/or fostering import substitution and/or increasing hard
currency earnings and/or increasing production of goods or services
which are projected to stimulate economic growth in the Signatory
States in which the investment and/or hnding is made.

2. ESTABLISHMENT AND MANAGEMENT OF THE FUND:

2.1 ICWI shall be responsible for the establishment of the Fund
which shall be capitalized at a minimum of Fifty Million United
States Dollars (US$50,000,000) in two tranches. The first tranche or a
minimum of US$25,000,000 shall be subscribed and paid up within
365 days of the entry into force of this Agreement. The second
tranche comprising the difference between the capital of the Fund and
the amount of the first tranche shall be subscribed and paid up within
two years of the latest date for subscription of the first tranche.

2.2 ICWI shall be responsible for promoting the Fund and for
procuring suitable managers of the Fund. The appointment of
members of the Board of the Fund shall be made in accordance with
the Charter and By-Laws of the Fund.

2.3 Unless the Signatory States otherwise determine, if the first
tranche is not fully subscribed and paid up within the period required
by Clause 2.1 hereof this Agreement will forthwith terminate.

2.4 In the event that the Signatory States determine that this
Agreement should be terminated as provided in Clause 2.3 hereof this
Agreement shall terminate without ICWI incurring any liability
whatsoever to the Signatory States.

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CARIBBEAN INVESTMENT FUND

2.5 In the event that the Signatory States determine that this
Agreement should not be terminated as provided in Clause 2.3 hereof
then such of the first tranche as has not been subscribed and paid up
shall form part of the second tranche to be subscribed and paid up
within the further period required by Clause 2.1 hereof.

2.6 If the second tranche (including such amount of the first
tranche pursuant to Clause 2.5 if applicable) is not fully subscribed
within the period required by Clause 2.1 hereof ICWI shall not incur
any liability whatsoever to the Signatory States and the provisions of
Clause 12 shall cease to apply, unless the Signatory States otherwise
determine.

3. SUBSCRIPTION OF CAPITAL TO THE FUND:

3.1 The investment in the Fund shall be in hard currency. For this
purpose it shall be denominated in US Dollars.

4. CONCESSIONS AND PRIVILEGES OF THE FUND:

4.1 ICWI and the Signatory States recognize that the grant of
certain concessions and privileges to the Fund for a certain period of
time will facilitate the establishment and operation of the Fund and
enhance its viability and that the grant of concessions and privileges is
subject to legislative and/or administrative authority as required in the
respective Signatory States.

4.2 In consideration of the Fund becoming duly established as
provided hercin and of the Fund pursuing the objectives of Clause 1.2
in the Signatory States each Signatory State hereby undertakes to
ensure that the following concessions and privileges are granted to
and may be enjoyed by the Fund in its territory:-

4.2.1 The Fund's operations may be established in any
Signatory State and the Signatory States will
promptly provide all consents and approvals
necessary for the establishment of the Fund's
operations in their respective temtories without any
restrictions;

4.2.2 The Fund shall be entitled to acquire, hold and
dispose of both real and personal property whether
by way of purchase, mortgage, charge, transfer, sale
or otherwise without any restriction;

4.2.3 The shares of the Fund shall be freely transferable
both within and outside of the Signatory States to
residents and non-residents thereof without any
restrictions;

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CARIBBEAN INVESTMENT FUND

4.2.4 The Signatory States will promptly provide all
consents and approvals necessary in order to permit
or provide that any restrictions (including without
limitation exchange control restrictions) contained
in any legislation or governmental or statutory order
from time to time in force in any of the Signatory
States shall not be applicable to:-

4.2.4.1 any investment or subscription in the
Fund whether made inside or outside and
whether made by residents or non-
residents of Signatory States;

4.2.4.2 gold and any currency held by the Fund
whether issued by the Signatory States or
not;

4.2.4.3 securities of any nature whatsoever in-
cluding but not limited to shares, stocks,
bonds, notes, debentures, debenture
stocks, mortgages, charges or liens on
realty, and personalty and units under a
unit trust scheme whether issued by the
Fund as part of its capitalization or issued
to the Fund as a result of any investment
by the Fund including investment in or
funding provided by the Fund in any
project in a Signatory State;

4.2.4.4 any real and personal property and ,dny
certificates of title in relation thereto
which form part of or affecting any
project in which the Fund has invested or
provided funding in a Signatory State;

4.2.4.5 the remittance by the Fund of any profits,
dividends, capital gains, interest and
other income and revenues of whatsoever
nature of and in the Fund and the
proceeds of any sales, transfer or other
disposition of any shares of the Fund and
of any securities issued by or to the Fund.

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CARIBBEAN INVESTMENT FUND

4.2.5 The Signatory States will promptly provide all
consents and approvals necessary in order to permit
or provide that no taxes. duties. levies or imposts
shall be payable on or levied in respect of any or all
of the following:-

Subscriptions to or investments in the
Fund and any securities issued by the
Fund:

Revenues: income, dividends, interest or
profits of whatsoever nature accruing to
the Fund from any project in which the
Fund has made on investment andlor
provided funding;

The proceeds of sale. transfer or other
disposition of any securities issued to the
Fund as a result of any investment in
andar funding to any project by the Fund
pursuant to the objectives for which the
Fund was established;

Any revenue, profits (including capital
profits), capital gains, and income
generated by the Fund;

Remittances of any interest, dividends,
distributions or other payments paid by
the Fund to any subscriber, investor or
shareholder in the Fund.

4.3 Unless otherwise agreed by the parties in writing, the
Signatory States and each of them shall not be obliged to extend any
or all of the concessions and privileges which they are obliged to
grant to the Fund beyond ten (10) years from the date of the
subscription of the second tranche under Clause 2.1 hereof.

4.4 At the expiration of 5 years from the date of the subscription of
the second tranche under Clause 2.1 hereof the parties shall either
directly or through the Advisory Board consult and discuss the
desirability of extending the concessions and privileges granted to and
enjoyed by the Fund and if considered desirable the concessions and
privileges granted to and enjoyed by the Fund shall be duly extended
for such period as the Signatory States consider appropriate.

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CARIBBEAN INVESTMENT FUND

5. LIMITATION ON INVESTMENT IN A PROJECT:

5.1 The Fund in consultation with the Fund's managers shall from
time to time set the investment policy of the Fund in projects and the
minimum and maximum investment by the Fund in any single project.

6. POLICY ON INVESTMENT IN SIGNATORY STATES:

6.1 The Fund in consultation with the Fund's managers shall set
the investment policy of the Fund in projects in Signatory States but
will nevertheless give due consideration to investing in every
participating Signatory State from time to time. It is acknowledged
that there is no obligation on the Fund andlor the Fund's managers to
invest in any particular Signatory State.

7. START UP DATE:

7.1 The proposed start up date of the Fund is 90 days after the
entry into force of this Agreement.

8. PROMOTION OF CAPITAL MARKETS:

8.1 The Fund and the Fund's managers will use their best
endeavours to ensure that generally investment by the Fund will be in
projects which will promote and enhance the capital markets in the
Signatory States.

9. INVESTMENTOFFUNDS:

9.1 Not less than 75 per cent of the funds from the first tranche
and not less than 75 per cent of the total funds from both tranches
shall, within two and three years, respectively, of the entry into force
of this Agreement, be invested in projects contemplated in Clause 1.

9.2 If the Fund fails to satisfy the requirements of Clause 9.1 the
provisions of Clause 12 shall cease to apply unless the Signatory
States otherwise determine.

10. BORROWING BY THE FUND:

10.1 Nothing contained in this Agreement shall restrict the Fund's
right to borrow money from time to time and use same or any part
thereof to invest projects contemplated by Clause 1.

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CARIBBEAN INVESTMENT FUND

1 1. ADVISORY BOARD:

1 1.1 There shall be an Advisory Board consisting of not more than
7 members to be appointed by the countries listed in Item 1 of the
Schedule which become parties to this Agreement. Subject to Clause
11.2, each participating country shall have the right to appoint one (1)
member to the Advisory Board.

1 1.2 For the purposes of Clause 1 1.1 such member countries of the
Organization of Eastern Caribbean States (OECS) and such Associate
Members which become parties to this Agreement shall have the right
collectively to appoint only one (1) member to the Advisory Board.

11.3 The function of the Advisory Board shall be to monitor the
performance of the Fund and to liaise between the Signatory States
and the Fund on matters relating to this Agreement and the
performance of the Fund.

11.4 The Fund will provide written quarterly reports to the
Advisory Board indicating the investments in andlor funding provided
to projects by the Fund and the investment of its funds in non-project
activities. The reports shall also include an outline of the status of
projects being investigated for investment and/or funding.

12. EXCLUSIVlTY OF FUND:

12.1 The Signatory States recognize that in order for the Fund to
be successful and meet its objectives the Fund needs exclusivity for
investment in the Signatory States for a period of not less than 5 years
and to this end undertake not to grant to any other Caricom Regional
Fund or institution, that is to say, a CARICOM Regional Fund or
institution established by an Agreement open for signature by all
CARICOM Member States, the concessions and privileges or any of
them granted to the Fund under Clause 4.

12.2 During the existence of the Fund the Signatory States
undertake not to grant to any other fund or institution which is
established to operate regionally in the Signatory States in com-
petition with the Fund any concession and privileges more favourable
than those granted to the Fund fiom time to time.

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CARIBBEAN INVESTMENT FUND

13. ENTRY INTO FORCE:

13.1 Subject to Clause 13.2 this Agreement shall enter into force
when it has been duly executed by ICWI and any number of the
Signatory States listed in the Schedule hereto which number must
include any three of the States of Barbados, Guyana, Jamaica and
Trinidad and Tobago.

13.2 If this Agreement is not execyted pursuant to Clause 13.1
within 60 days of the date that the CARICOM Secretary-General
declares it to be open for signature this Agreement shall not enter into
force unless ICWI and the prospective Signatory States determine
otherwise.

13.3 None of the parties hereto shall incur any liability to the other
until after the date that this Agreement shall enter into force.

14. ADDITIONAL PARTIES TO THE AGREEMENT:

14.1 The parties hereto a r m that it is their intention that upon the
incorporation of the Fund the rights and obligations to be carried out
and performed by the Fund and the Signatory States under this
Agreement shall be binding on each of the Fund and the Signatory
States. To this end the Parties hereto hereby acknowledge and agree
each with the other that on its incorporation the Fund will become a
party to this Agreement by depositing with the Secretary-General of
the Caribbean Community at the Caribbean Community Secretariat a
written notice duly executed by the Fund under its common seal
stating that it undertakes to be bound by the terms and conditions of
this Agreement as if it had been a signatory hereto at the time of
execution by the other parties. The deposit of the abovementioned
notice will create a valid and bindmg Agreement between the Fund
and the Signatory States, collectively and individually, as if the Fund
had been an origrnal party and signatory hereto.

14.2 The parties hereto acknowledge and recognize that non-
signatory Member States or Associate Members of CARICOM listed
in Item 1 of the Schedule hereto at the time this Agreement enters into
force and countries to which paragraph 2 of the Schedule to this
Agreement refers may wish to become parties to this Agreement
subsequent to the entry into force of this Agreement. The Parties
hereto hereby acknowledge and agree each with the other that any
Member State or Associate Member of CARICOM shall be entitled at
any time to sign the counterpart of the Agreement deposited with the
Secretary-General of the Caribbean Community at the Caribbean

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CARIBBEAN IWESI'MHVii FUND

Community Secretariat pursuant to Clause 17 below and the signing
thereof by the Government of such Member State or Associate
Member and each of them as if such Member State or Associate
Member had been an original party and signatory hereto.

15. RELEASE OF OBLIGATIONS:

15.1 After delivery of the written notice by the Fund under Clause
14.1 and after the date for subscription of the first and second tranche
referred to in Clause 2.1 ICWI shall be deemed to have performed all
of its obligations under h s Agreement and shall be released from this
Agreement.

16. AMENDMENTS:

16.1 This Agreement may be amended by consent of the parties
hereto.

16.2 No amendment to this Agreement shall be binding on the
parties unless it is in writing and duly executed by all the parties to the
Agreement. Any such document amending this Agreement shall be
deposited with the Secretary-General of the Caribbean Community at
the Caribbean Community Secretariat within 30 days of its execution.

17. DEPOSIT OF AGREEMENT:

17.1 This Agreement shall be deposited with the Secretary-
General of the Caribbean Community and the Secretary-General shall
furnish each party to this Agreement with a certified copy thereof.

18. JURISDICTION FOR REGISTRATION OF THE FUND:

18.1 The parties hereto agree that, at the discretion of ICWI and
the Fund, the Fund shall be registered in a jurisdiction highly
conducive to the enhancement of the attractiveness of the Fund in the
eyes of prospective investors.

19. ADMINISTRATIVE HEADQUARTERS OF THE FUND: i
19.1 The Administrative Headquarters of the Fund shall be in

Jamaica.

20. CHOICE OF LAW:

20.1 The parties hereto agree that prior to the written notice by the
Fund under Clause 14.1, h s Agreement shall be governed by the
laws of Jamaica.

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CARIBBEAN INVESTMEKi FUND

20.2 The parties hereto agree that upon delivery of the written
notice by the Fund under Clause 14.1, this Agreement shall be
governed by the laws of England.

2 1. ARBITRATION:

21.1 The parties hereto agree that:-

21.1.1 In the event of controversy, dispute or question
arising out of or in connection with or relation to
this Agreement of its interpretation, performance or
non-performance or any breach thereof, the matter
shall first be subjected to negotiation.

21.1.2 If the controversy, dispute or question is not
resolved by negotiation pursuant to Clause 21.1.1
hereof within 30 days. it shall be referred to
arbitration.

21.1.3 All controversy, dispute or questions arising in con-
nection with this Agreement save and except as
hereinafter provided shall be finally settled under
the Rules of Conciliation and Arbitration of the
International Chamber of Commerce by one
arbitrator appointed in accordance with the said
Rules.

21.1.4 If any event giving rise to any controversy, dispute
or question arises prior to ICWI being released
under Clause 15.1, then such controversy, dispute or
question shall be finally settled by arbitration before
a single arbitmtor under Ihe mles of arbitration in
accordance with the Arbitration Act of Jamaica as
amended from time to time.

SCHEDULE,

1. Antigua and Barbuda

The Bahamas

Barbados

Belize

Dominica

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CARIBHE4 N INVESTMENT FUND

Grenada

Guyana

Jamaica

Montsemt

St. KiItsNevis

St. Lucia

St. Vincent and the Grenadines

Trinidad and Tobago

The British Virgin Islands

The Turks and Caicos Islands

2. Any other country which becomes a Member State of the Caribbean
Community or an Associate Membcr of the Caribbean Commwity.

PART I1

Supplemental Agreement to the Agreenrent Esfahlishing the
Caribbean Inveslnrent Fund

This Agreement made Between the Governments of the Member States
and Associate Members of the Caribbean Community (CARICOM) which
are signatories to the Agreement Establishing the Caribbean Investment
Fund which entered into force on October 15, 1993 (hereinafter referred to
as the Signatory States) and ICWI Group Limited of 28-48 Barbados
Avenue. Kingston 5 in the Parish of St. Andrew. Jamaica (hereinafter
called ICWI) WITNESSETH AS FOLLOWS: That the Parties hereto have
agreed that the Agreement Establishing the Caribbean Investment Fund
which entered into force on October 15. 1993 (hereinafter referred to as the
Original Agreement) is hereby amended pursuant to Clause 16 of the
Original Agreement by this Agreement (hereinafter referred to as the
Supplemental Agreement) in the following material particulars:-

I . OBJECTIVES:

1.1 The objectives of the Caribbean Investment Fwd (hereinafter
called "the Fund) as described in the Original Agreement shall be
extended to permit investment by the Fund, of up to a maximum of

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CARIBBEAN INVESTMENT FUND

10% of the capital thereof in the countries listed in the Schedule to
this Supplemental Agreement, provided that the managers of the
Fund after due consideration, have reasonably concluded that the
investment opportunities in the Signatory States as contemplated by
the objectives of the Original Agreement will. from time to time. be
insufficient to provide a competitive return to investors in the Fund.

1.2 The Fund shall at all times give priority to investments of
equal opportunity to investment in the Signatory States under the
Original Agreement.

1.3 The objectives established in the Original Agreement shall
equally apply to investment by the Fund in the countries listed in the
Schedule to this Agreement.

ESTABLISHMENT OF THE FUND:

2.1 ICWI shall establish the Fund which shall be capitalised at a
minimum of Fifty Million United States Dollars (US$50~000,000)
within 365 days of this Supplemental Agreement entering into force.
Subscription shall be in two tranches; the first tranche or a minimum
of US$25,000,000 shall be subscribed and paid up within 180 days of
the entry into force of this Supplemental Agreement. The second
tranche comprising the difference between the capital of the Fund and
the amount of the first tranche shall be subscribed and paid up within
365 days of the entry into force of the Supplemental Agreement. In
the event that the Fund is not fully capitalised within 365 days of this
Supplemental Agreement entering into force the Original Agreement
and this Supplemental Agreement shall forthwith terminate unless the
Signatory States otherwise determine.

2.2 In the event that the Signatory States determine that the
Original Agreement and this Supplemental Agreement should be
terminated as provided in Clause 2.1 hereof the Original Agreement
and this Supplemental Agreement shall terminate without ICWI
incumng any liability whatsoever to the Signatory States.

CONCESSIONS AND PRIVILEGES OF THE FUND:

3.1 The period of ten (10) years referred to in Clause 4.3 of the
Origmal Agreement shall run from the date of the establishment of the
Fund as provided herein.

3.2 The period of five (5) years referred to in Clause 4.4 of the
Original Agreement shall run from the date of the establishment of the
Fund as provided herein.

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CARIBBEAN INVESXMENT FlJNL.1

4. INVESTMENT OF FUNDS:

4.1 Clausc 9.1 of thc Original Agrcemcnt shall bc amcnded to
providc that not lcss than 75% of thc minimum amount to bc invcstcd
in thc Signatory Statcs pursuant to this Supplcmental Agrcemcnt bc
invcstcd in projccts in thc Signatory Statcs contcmplatcd in Clausc I
of the Original Agrecrnent within tluee years from the cstablishrnent
of the Fund failing which the provisions of Clause 12
"EXCLUSIVITY OF FUND" of thc Original Agreemcnt shall ccasc
to apply unlcss Ihc Signatory Statcs othcnvisc dctcrminc.

5. ENTRY INTO FORCE:

5.1 This Supplcmcntal Agreemcnt shall cnter into forcc whcn it
has been duly cxccutcd by ICWl and the Signatory Statcs which haw
exccutcd thc Original Agrcemcnt.

5.2 If this Supplcmcntal Agrecrnent is not executed pursuant to
Clausc 5.1 hcrcof within 60 days of the date the CARICOM
Sccrctary-Gcncral dcclarcs it to be open for signature this
Supplcmcntal Agrcemcnt shall not cnter into force unlcss lCWl and
the Signatory Statcs dctenninc othcnvisc.

5.3 Nonc of the Parties to the Original Agreement shall incur any
liability to thc other if this Supplemental Agreement shall not cntcr
into force.

6. ADDITIONAL. PARTIES TO THIS SUPPLEMENTAL.
AGREEMENT:

6.1 Thc Partics hereto acknowlcdgc and recognisc that non-
Signatory Member States or Associate Members of CARICOM listed
in Item 1 of the Schedule of the Original Agreemcnt at the time this
Supplemental Agreement enters into force and countries to which
paragraph 2 of the Schedulc to the Original Agreement refers may
wish to become Parties to this Supplemental Agreement subsequent to
its entry into forcc. Thc Partics hcrcto hercby acknowledgc and agrce
with each other that any Member State or Associate Member of
CARICOM shall be entitled at any time to sign the counterpart of this
Supplemental Agreement deposited with the Secretary-General of the
Caribbean Community Secretariat pursuant to Clause 8.1 hereof and
the signing thereof by the Government of such Member State or
Associate Member and each of them as in such Member State or
Associate Member had been an ori@ party and signatory hereto.

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CARIBBFAN INVESTMENT FUND

1 7. RELEASE OF OBLIGATIONS:
7.1 After de l ive~ of the writtcn notice by the Fuud pursuant to

I Clause 14.1 of the Original Agreement and after the time provided for subscription to the Fund referred to in Clanse 2.1 hereof ICWI shall.
1 notwithstanding anytiung to the contrary coi~taincd in the Original
..~ ~ Agreement and this Supplemental Agreement, be deemed to have

performed all its obligations under the Original Agreement and this

i
Supplemental Agreement and shall be released therefrom.

8. DEPOSIT OF SUPPLEMENTAL AGREEMENT:

8.1 This Supplemental Agreement shall be deposited with the
Secretary-Generdl of the Caribbean Community and the Secretary-
General shall provide each party to this Supplemental Agreement with
a certified copy thereof.

Columbia

Costa Rica

Cuba

Dominican Republic

El Salvador

Guatamala

Haiti

Honduras

The United States of Mexico

Amba and thc Netherlands Antilles

\ Nicaragua
/ Panama

Venezuela

Bermuda

Cayman Islands

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