Guarantee commitment in favour of the guarantor
The Counter-Guarantee provides security (it is a guarantee commitment) in favour of the guarantor. The guarantor can be a bank or surety company. The Counter-Guarantee relieves the guarantor in large part of the risk that he is unable to successfully take recourse for compensation to the exporter. If the bond is called, the Federal Government will reimburse the guarantor for the guaranteed share of the bond amount paid out (maximum 80 %). The reimbursement is made on first demand and, above all, irrespective of the reason for calling. A reimbursement is made also in case of a fair calling.
The Federal Government has a recourse claim on the exporter in the amount paid out to the guarantor. This is payable six months after the guarantor is reimbursed at the latest. If by that time it has been confirmed that the exporter has a valid indemnification claim under the corresponding Contract Bond Guarantee because the contract bond was called, this will be set off against the claim to recourse. Although a bond issued on request of the exporter is called, there would be no liquidity drain at the exporter in that case.
Worth knowing: The Counter-guarantee complements a Contract Bond Guarantee and thus cannot be used independently.
Counter-Guarantee at a glance
- As applicant: German export firms
- As beneficiaries:
- German banks / surety companies
- branch offices of foreign banks / surety companies with a seat in Germany
- foreign banks / surety companies (under certain conditions)
The Counter-Guarantee protects the guarantor, although it is the exporter who has to apply for it.
A Counter-Guarantee can only be applied for if parallel a Contract Bond Guarantee for the transaction in question is granted by the Federal Republic. In principle, a Supplier Credit Guarantee is also required. This may, however, be dispensed with if the exporter is not exposed to any foreign payment risks because of the payment terms (e.g. confirmed letter of credit, progress payment). On a case-by-case basis, the Federal Government may grant a Counter-Guarantee in combination with a Contract Bond Guarantee also without cover of the other risks of an export transaction if such cover is not available or insurance is not acceptable or not wished by the exporter.
Whether a Counter-guarantee will be granted is conditional upon the exporter having the necessary technical and organisational resources to ensure the due performance of the export transaction. The exporter’s ability to ensure performance is assessed by means of a questionnaire to be completed by him.
The administration will be handled exclusively between the Federal Government and the guarantor from the moment a Counter-guarantee is granted until a reimbursement is made. For this purpose the guarantor has to sign a so-called “Ergänzungserklärung des Garantiestellers zur Avalgarantie” prior to the final commitment and also perform certain information duties in time.
- The Federal Government receives a share in the bond premium, which the exporter has to pay to the guarantor for issuing a contract bond, directly from the guarantor. For this purpose the guarantor will receive one invoice each for the first and the subsequent premium from the Federal Government; to begin with, an advance premium will be charged which will be finally settled at the end of each calendar year and the end of liability. The exporter does not have to pay a separate premium for a Counter-Guarantee.
- The usual premium has to be paid for the compulsory Contract Bond Guarantee and any Supplier Credit Guarantee which may be required.
Counter-Guarantee: Your advantages at a glance
Exporters can apply for a Counter-Guarantee quite easily in our customer portal myAGA.
The Counter-Guarantee is a supplementary form of cover and can only be applied for in combination with a Contract Bond Guarantee.
No additional premium
No extra premium is payable for a Counter-Guarantee. The risk-priced compensation due to the Federal Government for assuming the Counter-Guarantee is discharged by means of its share in the bond premium which the exporter has to pay to his guarantor in any case for issuing the contract bond.
How does a Counter-Guarantee work?
The core of the Counter-Guarantee is the undertaking by the Federal Government (itself equivalent to a guarantee) towards the guarantor to reimburse to him the amount paid out on a bond call within 10 bank days and on first written demand. The percentage reimbursed can be up to 80%. The undertaking to pay is agreed in a guarantee contract made between the Federal Government and the exporter. If the contract bond for the benefit of the foreign buyer is not issued directly by the exporter’s principal bank, which provides the financing, but by a different credit institution, it is not the direct bond that will be covered by the Counter-Guarantee but the corresponding back-to-back guarantee issued by the exporter’s principal bank. In both cases the undertaking applies – unlike the insured events in contract bond cover – for any and every reason for calling the bond, and therefore also to fair calling. After reimbursement has been made, the Federal Government has recourse on the exporter. The right of recourse is normally asserted only six months after reimbursement of the guarantor and only when no claim has been recognized in favour of the exporter as valid up to that date in respect of the corresponding Contract Bond Guarantee. If such a valid claim has been accepted, the claim for recourse will be set off against the amount due for indemnification.
Practical example of a Counter-Guarantee
What is guaranteed with a Counter-Guarantee?
A Counter-Guarantee provides security for the exporter in favour of the guarantor for the loss up to 80% of the bond sum paid out by the latter. Payment guarantees assumed by the guarantor in excess of the actual bond amount, such as interest, compensation for damages, legal or other costs are in principle not insurable. An exception here is a Counter-Guarantee given in respect of an advance payment bond. This also covers the interest normally included in the bond.
What conditions does the exporter have to fulfil in order to get a Counter-Guarantee?
As a rule, the granting of a Contract Bond Guarantee is a precondition for getting a Counter-Guarantee. A principal guarantee can be dispensed with if cover of the other risks involved is not possible, not reasonable or not wanted by the exporter. A Counter-Guarantee can also be granted for covered business which is already being transacted if a principal guarantee and a Contract Bond Guarantee have already been granted, if only a principal guarantee exists but the granting of a Contract Bond Guarantee is still possible because the contract bond has not yet been issued or the main transaction has not been covered and cannot be covered for lack of risks that are eligible for cover (e.g. payment under an irrevocable letter of credit) but the granting of a Contract Bond Guarantee is still possible because the underlying contract bond has not yet been issued. In addition, it is necessary for the exporter to prove that he has the organisational and technological resources to ensure due performance of the export transaction. The assessment of the exporter’s ability to ensure performance is done mainly by means of a questionnaire to be filled out by him. The maximum liability of the Federal Government in respect of all Counter-Guarantees assumed is EUR 80 million per exporter. Subject to certain conditions this limit on the maximum exposure may be exceeded in individual cases if that turns out to be necessary due to the special nature of the transaction.
What period is the Counter-Guarantee valid for?
The commitment undertaken by the Federal Government begins in respect of guarantees already issued immediately with the receipt of the letter of confirmation from the Federal Government. In respect of a guarantee which has not been issued the commitment undertaken by the Federal Government begins when the guarantee is actually issued. If, in praxis, the coming into effect of the guarantee is taken as basis, the commitment undertaken by the Federal Government also begins with the coming into effect of the guarantee and not with its issuance.
When will the Counter-Guarantee become effective?
A Counter-Guarantee given by the Federal Government takes effect upon receipt of the letter of confirmation from the Federal Government. The Counter-Guarantee would become ineffective only if the guarantor failed to pay the premium within the term of payment set by the Federal Government even after receiving a letter of reminder; in such a case it is up to the guarantor to maintain the effectiveness by making payment within the time limit.
Do you have any additional questions regarding the Counter-Guarantee?
Our experts will be pleased to answer any questions regarding a Counter-Guarantee. Please do not hesitate to contact them.