First, sought by lenders to try to protect themselves from the loss of investment in the event of a borrower`s default (usually bankrupt), the intervention measures give the beneficiary the right to be “in the shoes” of the counterparty of the primary agreement and to conclude the project in its place. Since rights may be granted to a number of different beneficiaries for a given project, the guarantee agreement should specify which right of use of the recipient should prevail. With respect to P3 projects in the health sector, although there is no explicit reference to the implementation or nature of DFDs under the P3 Act, the P3 Act provides that the administration and lenders may agree to change the project company`s ownership structure under certain conditions when the project company is late. In this sense, Parliament allows the implementation of an agreement between the administration and lenders of the proposed P3 in the health field and opens the door for lenders to agree on rights of action. In addition, the legislature takes a similar approach to the energy market. Both the Electricity Marketing Authorization Regulation and the Natural Gas Marketing Authorization Regulation contain similar provisions allowing lenders to designate an appropriate alternative investor when certain conditions are imposed by legislation. Direct agreements are generally referred to as “tripartite agreements,” reflecting the fact that it is an agreement between three parties, i.e., while the primary agreement may already require the guarantor to maintain professional liability insurance, similar insurance companies are often included in the guarantee agreement. The amount of insurance that must be maintained must be clearly stated (including the basis on which it is held, . B, for example, on each or all rights basis), as well as the guarantor`s obligation to provide evidence to the beneficiary of the detained insurance.
The period during which the insurance must be taken out should also be agreed and, preferably, related to the liability period under the guarantee contract (for example. B, 6 years or 12 years after the practical closure of the project). Some beneficiaries may also benefit from the possibility of taking out this insurance and recovering costs from the guarantor party.