Newsletter-21

101 PUBLIC PRIVATE PARTNERSHIP (PPP) addition to the above, the legislator adopts a similar approach in en- ergy market. Both the Electricity Market Licensing Regulation 2 and Natural Gas Market Licensing Regulation 3 incorporate similar provi- sions that enable the lenders to appoint a suitable substitute investor upon occurrence of certain conditions under the legislation. Since the PPP Law is silent in terms of the nature of the FDA, the contractual provisions between the parties should be considered in order to determine the nature of the FDAs. The intention of the parties of the FDAs is keep the FDA as an independent and separate agreement apart from the project agreement. As such, the parties tend to achieve that the fate of the validity of the FDA is not dependent on the validity or termination of the project agreement. It should be noted that as of the date of this Newsletter, the independent nature of FDAs have not yet been tested before the courts of Turkey. The Provisions of FDAs FDAs, in Turkish healthcare projects, incorporate typical provi- sions of direct agreements used in other project finance deals. Among the customary provisions of agreements, such as definitions, interpre- tations of the agreement, severability, confidentiality, notices, govern- ing law , etc., certain provisions deserve mention are as follows in a nutshell: Consent for the Security As mentioned above, the project company grants certain securi- ties, which particularly include, among others, a mortgage over the usufruct right granted to the project company by the Administration, transfer of receivables by way of security, etc. , to the lenders of the project. As a matter of Turkish law, as long as the laws, or an agreement, or the nature of the business, do not prevent, then the transfer receiva- 2 Electricity Market Licensing Regulation published in the Official Gazette dated 2 November 2013 and numbered 28809. 3 Natural Gas Market Licensing Regulation published in the Official Gazette dated 7 September 2002 and numbered 24869.