EX-10.13.3



 




Exhibit
10.13.3



EXECUTION COPY




 





INVESTMENT NUMBER 11740




AMENDMENT AGREEMENT NO.2 TO

LOAN AGREEMENT DATED APRIL 11, 2003




between




AGUAS DE PANAMA S.A.




and




INTERNATIONAL FINANCE CORPORATION




Dated as of October 28, 2003




 





 









 





AMENDMENT AGREEMENT NO. 2 TO

LOAN AGREEMENT DATED APRIL 11, 2003




     This AMENDMENT AGREEMENT No. 2 (this “Amendment”), dated as of October 28, 2003, is made
between AGUAS DE PANAMA S.A., a sociedad anonima organized and existing under the laws of the
Republic of Panama (the “Borrower”) and INTERNATIONAL FINANCE CORPORATION, an international
organization established by Articles of Agreement among its member countries including the Republic
of Panama (“IFC”).



     WHEREAS:



     (A) IFC and the Borrower entered into a Loan Agreement dated April 11, 2003, as amended by
Amendment and Waiver Agreement No. 1 to Loan Agreement Dated April 11, 2003 dated June 27, 2003
(the “Loan Agreement”) pursuant to which, IFC has agreed, inter alia, subject to the terms and
conditions set forth therein, to make a loan (the “Loan”) to the Borrower, consisting of, the “A
Loan” and the “B Loan,” in the amounts, for the purpose and on the terms and conditions set forth
therein;



     (B) IFC and the Borrower desire to amend the Loan Agreement as set forth herein;



     NOW, THEREFORE, the parties hereto agree as follows:



ARTICLE I




Definitions




     Section 1.01. For purposes of this Amendment, capitalized terms used, but not otherwise
defined, herein shall have the meanings assigned to them in the Loan Agreement, and the principles
of interpretation set forth in the Loan Agreement shall apply.



ARTICLE II




Amendment




     Section 2.01 Section 1.01 (General Definitions) of the Loan Agreement is hereby amended by
deleting subsection (iv) of the definition of “ASSA Subordination Agreement” and substituting the
following:




     “(iv) irrevocably assigns the rights it has pursuant to the performance or payment
bonds to take over the Concession Contract if



 









 




-2-





and when payments under any performance or payment bond are made by it, except with regards
to Insurance Bond No. 85B51817 issued in favor of IDAAN/Contraloria General de la Republica,
for which Insurance Bond IFC shall have forty-five (45) days, counted from the date on which
IDAAN notifies ASSA that it has exercised an administrative resolution of the Concession, to
notify ASSA of its decision to take over the corresponding Concession, otherwise ASSA shall
be entitled to exercise all of its rights pursuant to said Insurance Bond, and provided that
such forty-five (45) day notice period provided to IFC may be reduced if upon any renewal of
such Insurance Bond the Office of the Comptroller General of Panama requires the reduction
of the ninety (90) day period awarded to ASSA under said Insurance Bond to notify IDAAN of
its decision to take over the Concession, in which case IFC’s notice period shall be equal
to half of that awarded to ASSA under the renewed bond;”.



     Section 2.02. Section 3.06(a) and Section 3.06(b) (Repayment) of the Loan Agreement are hereby
amended by deleting said sections in their entirety and replacing them with the following:




     “Section 3.06. Repayment. (a) The Borrower shall repay the A Loan on the
following dates and in the following amounts:



	 	 	 	 	 
	Date Payment Due	 	Principal Amount Due
	 
	April 15, 2004
	 	$	250,000	 
	October 15, 2004
	 	$	250,000	 
	April 15, 2005
	 	$	290,000	 
	October 15, 2005
	 	$	290,000	 
	April 15, 2006
	 	$	290,000	 
	October 15, 2006
	 	$	290,000	 
	April 15, 2007
	 	$	290,000	 
	October 15, 2007
	 	$	290,000	 
	April 15, 2008
	 	$	324,000	 
	October 15, 2008
	 	$	324,000	 
	April 15, 2009
	 	$	389,000	 
	October 15, 2009
	 	$	389,000	 
	April 15, 2010
	 	$	389,000	 
	October 15, 2010
	 	$	389,000	 
	April 15, 2011
	 	$	389,000	 
	October 15, 2011
	 	$	389,000	 
	April 15, 2012
	 	$	389,000	 
	October 15, 2012
	 	$	389,000	 















 





-3-


     (b) The Borrower shall repay the B Loan on the following dates and in the
following amounts:



	 	 	 	 	 
	Date Payment Due	 	Principal Amount Due
	 
	April 15, 2004
	 	$	410,000	 
	October 15, 2004
	 	$	410,000	 
	April 15, 2005
	 	$	540,000	 
	October 15, 2005
	 	$	540,000	 
	April 15, 2006
	 	$	810,000	 
	October 15, 2006
	 	$	810,000	 
	April 15, 2007
	 	$	810,000	 
	October 15, 2007
	 	$	810,000	 
	April 15, 2008
	 	$	810,000	 
	October 15, 2008
	 	$	810,000	 
	April 15, 2009
	 	$	810,000	 
	October 15, 2009
	 	$	810,000	 
	April 15, 2010
	 	$	810,000	 
	October 15, 2010
	 	$	810,000	 






     Section 2.03. Section 4.01(d)(ii) and Section 4.01(d)(iii) (Representations and Warranties) of
the Loan Agreement are hereby amended by deleting said sections in their entirety and replacing
them with the following:




     “(ii) all Authorizations specified in Sections (1) and (2) of Annex A have been
obtained and are in full force and effect; and




     (iii) the Borrower has applied (or is making arrangements to apply) for all
Authorizations specified in Section (3) of Annex A, and has no reason to believe that it
will not obtain those Authorizations in a timely manner.”



     Section 2.04. Section 6.01(k) (Affirmative Covenants) of the Loan Agreement is hereby amended
by deleting said section in its entirety and replacing it with the following:




     “(k) maintain a Total Debt to Equity Ratio of: (i) not more than 1.8 on or before
December 31, 2003; (ii) not more than 1.5 on or before December 31, 2004; and (iii) not more
than 1.4 at any time after December 31, 2004; and maintain a Long-term Debt Service Coverage
of not less than 1.2 at all times;”.












 




-4-

ARTICLE III




Miscellaneous




     Section 3.01. The obligations of the Borrower shall not be deemed to have been novated by the
terms of this Amendment. Except as expressly provided herein, no other provision of the Loan
Agreement is amended or intended to be amended, and the Loan Agreement (as hereby amended) remains
in full force and effect in accordance with its terms. Nothing in this Amendment is or should be
construed as a waiver by IFC of any Event of Default, or a waiver or modification by IFC of any
other provision of the Loan Agreement, except for the amendments expressly set forth herein. It is
further agreed that any reference in the Transaction Documents to the Loan Agreement shall be
construed as a reference to the Loan Agreement together with this Amendment.



     Section 3.02. The Borrower hereby restates, as if set out in full herein, and confirms, as of
the date hereof, the representations and warranties made by it in Section 4.01 (Representations and
Warranties) of the Loan Agreement, as amended by this Amendment.



     Section 3.03. This Amendment shall be governed by and construed in accordance with the laws of
the State of New York, United States of America.



     Section 3.04. This Amendment may be executed in several counterparts, each of which is an
original, but all of which together constitute one and the same agreement.



     Section 3.05. The parties hereby authorize Morgan & Morgan to protocolize this Amendment into
a public deed and to register the same in the public registry of Panama.



[This space is left intentionally blank.]













 




-5-




     IN WITNESS WHEREOF, the parties have caused this Amendment to be signed in their respective
names as of the date first above written.



	 	 	 	 	 	 	 
	 	 	AGUAS DE PANAMA S.A.
	 
	 	 	 	 	 	 
	 

	 	By:

Name:
	 	/s/ Grahame Sweetsur
 

Grahame Sweetsur
	 	 
	 

	 	Title:
	 	Director	 	 
	 
	 	 	 	 	 	 
	 	 	INTERNATIONAL FINANCE CORPORATION
	 
	 	 	 	 	 	 
	 

	 	By:

Name:
	 	/s/ Usha Rao-Monari
 

Usha Rao-Monari
	 	 
	 

	 	Title:
	 	Manager	 	 





Biwater Plc consents and agrees to the foregoing Amendment Agreement No. 2 to Loan Agreement Dated
April 11, 2003 and confirms that on and after the date of this Amendment Agreement No. 2 to Loan
Agreement Dated April 11, 2003, all references to “the Loan Agreement” in any of the Transaction
Documents to which it is a party (including, without limitation, the Guarantee and Share Retention
Agreement dated as of April 11, 2003) shall be deemed to refer to the original Loan Agreement as
amended by Amendment and Waiver Agreement No. 1 to Loan Agreement Dated April 11, 2003 dated June
27, 2003 and as further amended by this Amendment Agreement No. 2 to Loan Agreement Dated April 11,
2003 dated as of October 28, 2003.




	 	 	 	 	 	 	 
	 	 	BIWATER PLC
	 
	 	 	 	 	 	 
	 

	 	By :

Name:
	 	/s/ David Lawrence Magor
 

David Lawrence Magor
	 	 
	 

	 	Title:
	 	Director	 	 















 




-6-

District of Columbia) ss:



I, Alexandra C. Aguiar, the undersigned Notary Public acknowledge that Usha Rao-Monari, to me known
and known by me to be Manager, Infrastructure Department of International Finance Corporation,
executed the foregoing document in the name and on behalf of International Finance Corporation and
acknowledged the signing thereof to be her voluntary act and deed.



Washington, D.C. this 28 day of October, 2003.




	 	 	 	 	 
	 

	 	/s/ Alexander C. Aguiar
 

Alexander C. Aguiar
	 	 
	 

	 	My commission expires July 31, 2007	 	 





I, Sarah Elizabeth Thomas, Notary Public, confirm this document has been signed by Grahame
Sweetsur, known to me and who is a director of Aguas de Panama S.A., and by David Lawrence Magor,
known to me and who is a director of Biwater Plc.




	 	 	 
	 

	 	Sarah Elizabeth Thomas
Notary
Public
Dorking Surrey, England
	/s/ Sara E. Thomas

	 	[SEAL]















 





APOSTILLE




(Hague Convention of 5 October 1961/Convention de La Haye du 5 octobre 1961)




UNITED KINGDOM OF GREAT BRITAIN AND NORTHERN IRELAND





	1.	 	Country: United Kingdom of Great Britain and Northern Ireland






Pays: Royaume-Uni de Grande-Bretagne et d’Irlande du Nord



This public document / Le present acte public



	 	 	 	 	 	 	 
	2.

	 	Has been signed by

a ete signe par
	 	S E Thomas
	 	 
	 
	 	 	 	 	 	 
	3.

	 	Acting in the capacity of
	 	Notary Public	 	 
	 

	 	agissant en qualite de	 	 	 	 
	 
	 	 	 	 	 	 
	4.

	 	Bears the seal/stamp of
	 	The Said Notary Public	 	 
	 

	 	est revetu du
sceau/timbre de	 	 	 	 
	 
	 	 	 	 	 	 
	 

	 	 	 	Certified/Atteste	 	 
	5.

	 	at Londonta Londres
	 	6. the/le 29 October 2003	 	 







	7.	 	by Her Majesty’s Principal Secretary of State for Foreign and Commonwealth Affairs /


par le Secretaire d’Etat Principal de Sa Majeste aux Affaires Etrangeres et du Commonwealth.





	 	 	 	 	 	 	 	 	 	 	 
	8.

	 	Number/sous No
	 	G278293
	 	 	 	 	 	 
	 
	 	 	 	 	 	 	 	 	 	 
	9.

	 	Stamp
	 	 	 	10. Signature:
	 	J. Ireland	 	 
	 

	 	timbre:
	 	 	 	 	 	/s/ J. Ireland	 	 






[SEAL]




For the
Secretary of State — Poure le Secretary d’Fdat

If this document is to be used in a country which a not party to the Hague Convention of 5 October

1961, it should be presented to the consular section of the mission representing that country




 









 





[SEAL]




APOSTILLE




(Convention de La Haye du 5 octobre 1961)





	1.	 	District of Columbia 

United States of America
	 
	2.	 	This public document has been signed by Alexandra Aguiar
	 
	3.	 	acting in the capacity of Notary Public in and for the District of Columbia
	 
	4.	 	bears the seal/stamp of Alexandra Aguiar, Notary Public, D.C.





CERTIFIED





	5.	 	at Washington, D.C.
	 
	6.	 	the 12th day of November 2003
	 
	7.	 	by Secretary of the District of Columbia
	 
	8.	 	No. 117478
	 
	9.	 	Seal/Stamp






[SEAL]


10. Signature



/s/
Sherryl H. Newman


SHERRYL H. NEWMAN