Guarantee provisions in the Agreement State-FMO of November 16, 1998
Article 7: Maintenance obligations in the event of depletion of General Risks Reserve (GRR) fund and inadequate cover for exceptional operating risks
7.1 To determine whether FMO has grounds for invoking the maintenance obligation (the ‘State’s Maintenance Obligation’) as referred to in Article 7.2.1, the losses incurred by FMO as referred to in Article 7.2.2, as shown by the annual accounts drawn up for the relevant year in accordance with generally accepted accounting principles and in conformity with Part 9 of Book 2 of the Netherlands Civil Code and duly adopted by the competent corporate body, shall first be charged to the GRR fund.
7.2.1 The State undertakes vis-à-vis FMO to defray losses on its operations pursuant to Article 3.1 and 3.2 of this Agreement, as determined in Article 7.2.2, to the extent that such risks have not been covered by specific value adjustments and/or compensation and/or insurance benefits received or yet to be received, provided that:
a) the amount of such losses exceeds the size of the GRR fund as at December 31 of the year in which these losses were incurred; and
b) the inadequacy of the cover for general value adjustments under the GRR fund is due to abnormal operating risks, such as unforeseen political difficulties in, or transfer problems with, particular countries or the collapse of the world economy or a regional economy.
7.2.2 The parties shall consult together to determine the magnitude of such losses. Should they fail to agree, FMO’s auditors and an auditor designated by the State shall make a reasonable and equitable calculation of the losses in accordance with generally accepted accounting principles.
7.3 If the circumstances arise as described in Article 7.2.1, under a) and b) and FMO requests the State to fulfill its obligations as referred to in Article 7.2, this shall give rise to a claim against the State, which shall be duly acknowledged by the State, on the first business day of the first financial year following the date of the request. Such request shall be in writing.
Article 8: Other financial security obligations
8.1 Without prejudice to the other provisions in this Agreement, the State shall prevent situations arising in which FMO is unable to meet the following (comprehensive enumerated) commitments on time: FMO’s commitments in respect of:
(i) loans raised in the capital market;
(ii) short-term funds raised on the money market with maturities of two years or less;
(iii) swap agreements involving the exchange of principal and payment of interest;
(iv) swap agreements not involving the exchange of principal but with interest payment;
(v) foreign exchange forward contracts and forward rate agreements (FRAs);
(vi) option and futures contracts;
(vii) combinations of the products referred to in (i) to (vi);
(viii) guarantees provided by FMO to third parties in respect of the financing of private companies in developing countries;
(ix) commitments relating to the maintenance of an adequate organization.
Notes to the guarantee provision
The GRR fund referred to in Article 7 of the Agreement State-FMO of November 16, 1998 consists of the share capital of €9,076k; share premium reserve of €29,272k and the contractual reserve. On December 31, 2020 the fund amounted to €2,219,500k (2019: €2,417,698k).