(2)For the purposes of subsection (1)(b)(vi), a body corporate shall be taken to be controlled by a debtor if the debtor is (whether alone or together with any one or more of the persons mentioned in subparagraphs (i) to (v) of subsection (1)(b), and whether directly or indirectly)— (a) interested in one-quarter or more of the equity share capital of the body, or (b) entitled to exercise or control the exercise of one-quarter or more of the voting powers at any general meeting of the body.
\n
(3)In subsection (2)— (a) “ equity share capital ” has the same meaning as it has in section 155 of the Companies Act 1963 , and (b) the reference to voting power exercised by a debtor includes voting power exercised by a nominee of the debtor or another body corporate which that debtor controls.
\n
(4)
\n
Section 54
\n
of the Companies Act 1990 applies for the purpose of determining, for the purposes of subsection (2), whether a person holds an interest in shares.
\n
Dealings by participating institutions with eligible bank assets.
\n
71.— (1) A participating institution shall, until it has been served with a completion notice or NAMA directs otherwise— (a) administer, service and deal with all of its eligible bank assets in the same manner as, and with the same level of professional skill, care and diligence as, a prudent lender acting reasonably would so administer, service and deal, and (b) so act in relation to those bank assets in good faith having regard to the purposes of this Act.
\n
(2)A participating institution shall not without the prior written approval of NAMA— (a) deal with any of its eligible bank assets otherwise than in the ordinary course of its business, (b) deal with any of its eligible bank assets in such a way as to prejudice or impair NAMA’s prospective interests or priorities in relation to such a bank asset, (c) compromise any claim or release, vary, relinquish or otherwise take or omit to take any action if its doing so could reduce, lessen or impair any security, right, obligation, ranking or priority held or enjoyed, directly or indirectly, in connection with such a bank asset, or (d) amend or vary any contract relating to such a bank asset unless contractually obliged to do so.
\n
(3)NAMA may issue guidelines or policy statements in relation to the kinds of transactions that it is likely to be prepared to approve under subsection (2).
\n
PART 5
\n
Valuation Methodology Interpretation (Part 5).
\n
72.— (1) In this Part “ property ” means property that is the subject of the security for a credit facility that is a bank asset.
\n
(2)In this Part: (a) a reference to the market value of property is a reference to the estimated amount that would be paid by a willing buyer to a willing seller in an arm’s-length transaction after proper marketing (where appropriate) where both parties act knowledgeably, prudently and without compulsion, (b) a reference to the market value of a bank asset is a reference to the estimated amount that would be paid by a willing buyer to a willing seller in an arm’s-length transaction after proper marketing (where appropriate) where both parties act knowledgeably, prudently and without compulsion, (c) a reference to the long-term economic value of property is a reference to the value, as determined by NAMA in accordance with this Part, that it can reasonably be expected to attain in a stable financial system when the crisis conditions prevailing at the passing of this Act are ameliorated and in which a future price or yield of the property is consistent with reasonable expectations having regard to the long-term historical average, and (d) a reference to the long-term economic value of a bank asset is a reference to the value, as determined by NAMA in accordance with this Part, that it can reasonably be expected to attain in a stable financial system when the crisis conditions prevailing at the passing of this Act are ameliorated.
\n
Determination of acquisition values — valuation dates, etc.
\n
73.— (1) NAMA may specify a date or event by reference to which the market value of a bank asset or type of bank asset or property or type of property is to be determined.
\n
(2)Under subsection (1) NAMA may specify different dates or events for any or any type of bank assets or property.
\n
(3)Under subsection (1) NAMA may specify a date before the coming into operation of this Act.
\n
(4)The specification of a date or event under subsection (1) has effect for the determination of a market value for any purpose under this Act (including for the purposes of
\n
Chapter 2
\n
of
\n
Part 7
\n
).
\n
Determination of acquisition values — guidelines, etc.
\n
74.— NAMA may, for the purpose of determination of values in accordance with this Part, adopt such guidelines or rules as it considers necessary for efficiency or consistency.
\n
Acquisition values.
\n
75.— (1) Subject to subsection (2) and any regulations made by the Minister under subsection (3), the acquisition value of a bank asset is its long-term economic value as determined by NAMA.
\n
(2)NAMA may, if it considers it appropriate after consultation with the Minister, and subject to any regulations made by the Minister under subsection (3), having regard to— (a) the purposes of this Act, (b) the expected date of acquisition of the bank asset concerned, (c) the type of bank asset, (d) the laws of the European Communities governing State aid, and (e) any other relevant matter affecting valuation, determine that the acquisition value of a bank asset shall be— (i) its market value, or (ii) a value (between its long-term economic value and its market value) that NAMA considers appropriate in the circumstances, having regard to the matters specified in paragraphs (a) to (e).
\n
(3)The Minister may make regulations for the purposes of the application of subsection (2). For that purpose the Minister shall have regard to the factors set out in paragraphs (a) and (c) to (e) of subsection (2).
\n
Determination of long-term economic values.
\n
76.— (1) NAMA shall determine the long-term economic value of a bank asset having regard to the following: (a) the market value of the property; (b) the market value of the bank asset; (c) the long-term economic value of the property; (d) the long-term economic value already determined by NAMA, in accordance with the valuation methodology, of any other similar property or bank asset; (e) any report prescribed under section 78 that is reasonably available to NAMA when it carries out the valuation of the particular property or bank asset, in accordance with— (i) any regulations made by the Minister under section 79 , and (ii) the laws of the European Communities governing State aid.
\n
(2)Notwithstanding any other provision of this Act or any regulations made under it— (a) the long-term economic value determined by NAMA for a parcel of land shall not exceed the market value of the parcel by more than such fraction as the Minister may determine by regulations for the purposes of this paragraph, (b) the total long-term economic value of all land held as security in an acquired portfolio shall not exceed the total market value of that land by such fraction as the Minister may determine by regulations for the purposes of this paragraph, (c) NAMA may determine that, with regard to any particular class of property, or in the particular circumstances applicable to a parcel of land, its long-term economic value shall not exceed its market value, and (d) the long-term economic value of a bank asset shall be calculated on the basis of net present value methodology.
\n
Market values.
\n
77.— (1) In determining the market value of property, NAMA may take into account— (a) any value that the participating institution concerned submits as being, in its opinion, the market value of the property, (b) any report prescribed under section 78 that is reasonably available to NAMA when it carries out the relevant valuation, and (c) the market value already determined by NAMA of another similar property.
\n
(2)In determining the market value of a bank asset NAMA may take into account— (a) any value that the participating institution concerned submits as being, in its opinion, the market value of the bank asset, (b) the market value already determined by NAMA of any other similar bank asset, (c) the creditworthiness of the debtor or obligor concerned, (d) the performance of that asset, and (e) the market value of property determined by NAMA under subsection (1).
\n
Regulations in relation to certain reports.
\n
78.— The Minister may make regulations prescribing reports or classes of reports (including reports prepared before the commencement of this Act) concerning factors or matters relevant to the valuation of property or of property of a particular type or in specific locations or with specific features or benefits, including— (a) zoning, (b) availability of utilities, (c) availability of similar property in similar locations, (d) historic value of property in particular locations, and (e) recent valuations of similar property in similar locations.
\n
Regulations in relation to determination of values.
\n
79.— (1) The Minister may make regulations relating to the determination by NAMA of the long-term economic value, or the market value, of a bank asset or a class of bank asset or a property or a class of property, including the matters that NAMA shall or may derive, use, apply or take into account for those purposes.
\n
(2)In making regulations for the purposes of subsection (1), the Minister shall have regard to the laws of the European Communities governing State aid and any relevant guidance issued by the Commission of the European Communities, and may have regard, and may include such provisions relating, to such of the following as he or she thinks appropriate: (a) with reference to the long-term economic value of property— (i) the extent to which the price or yield of such property has deviated from the long-term historical average, (ii) supply and demand projections by reference to the type of asset and its location, (iii) macroeconomic projections for growth in the gross domestic product and for inflation or deflation, (iv) demographic projections, (v) land and planning considerations (including national, regional or local authority development or spatial plans) that may exert an influence on the future value of the asset concerned, (vi) analyses presented by the Minister for the Environment, Heritage and Local Government on the extent to which existing land zoning and planning permissions granted and in force meet or exceed projected growth requirements, (vii) analyses presented by the Dublin Transportation Office or any national transport authority of existing and future transport planning and the associated supply and demand projections for land use, (viii) any analysis by the Minister for Communications, Energy and Natural Resources in relation to the potential rise in energy and other costs due to the long-term decline in non-renewable resources, (ix) the specification, for the purposes of the determination of the long-term economic value of particular parcels of land, of a fraction by which the long-term economic value determined by NAMA shall not exceed the market value of each such parcel, (x) the specification, for the purposes of the determination of the long-term economic value of all land held as security in acquired portfolios, of a fraction, by which the long-term economic value of that land shall not exceed its total market value; (b) with reference to the long-term economic value of bank assets— (i) the long-term economic value of property, (ii) the net present value of the anticipated income stream associated with bank assets of that kind, (iii) in the case of rental property, current and projected vacancy rates, (iv) loan margins, (v) an appropriate discount rate to reflect NAMA’s cost of funds plus a margin that represents an adequate remuneration to the State that takes account of the risk in relation to the bank assets acquired by NAMA,
\n
(vi) the mark-to-market value of any derivative contracts associated with bank assets of that kind, (vii) any ancillary security such as personal guarantees and corporate assets, and (viii) fees reflecting the costs of loan operation, maintenance and enforcement; (c) such other matters that he or she considers relevant to the long-term economic value or market value of property or bank assets including— (i) matters to be derived, used, applied, taken into account or not taken into account; (ii) the values to be attributed to any matters or the adjustments to be made in or by virtue of their application; (iii) the data, criteria, information, rules and methodology that may be used or applied in determining the value or application of any matters or in deriving any matters to be used or applied; (iv) the use of the net present value methodology in determining the value of any property or bank asset; (v) the appropriate discount rate to reflect NAMA’s cost of funds plus a margin that represents an adequate remuneration to the State that takes account of the risk in relation to the acquired bank assets to be applied in determining the net present value of a cash flow; (vi) the specification, for the purposes of attribution and application across all bank assets, or all bank assets of a particular class, of a standard discount rate, to be attributed to or applied in the calculation of each bank asset, or each bank asset of the particular class, as the case may be, acquired by NAMA, which in the opinion of the Minister is necessary or appropriate to provide for enforcement costs, due diligence costs and other relevant costs incurred or likely to be incurred by NAMA over its lifetime in the discharge of its functions; (vii) the extension of the maturity date of any bank asset for such period as NAMA considers appropriate after its actual maturity to allow a reasonable period for its management and enforcement; (viii) the types or classes of property in respect of which the market value shall be deemed to be the long-term economic value.
\n
(3)Every regulation made under subsection (1) shall be laid before each House of the Oireachtas as soon as may be after it is made and, if a resolution annulling the regulation is passed by either such House within the next 21 days on which that House has sat after the regulation is laid before it, the regulation shall be annulled accordingly, but without prejudice to the validity of anything previously done under the regulation.
\n
PART 6
\n
Acquisition of Bank Assets and Related Matters
\n
Chapter 1
\n
Acquisition of Bank Assets Applicant credit institutions and participating institutions to provide information about eligible bank assets.
\n
80.— (1) NAMA may direct an applicant credit institution or a participating institution to provide NAMA with information, in the form directed by NAMA, about each of its bank assets, and (in the case of an applicant credit institution) each bank asset of each of its subsidiaries, that may be an eligible bank asset. In the case of a participating institution, such a direction has effect as a direction to provide that information about the bank assets of the participating institution and each of its subsidiaries that is also a participating institution.
\n
(2)In particular, NAMA may require the provision of information about the debtors, associated debtors, guarantors and sureties concerned and the enforceability and marketability of the security associated with each such bank asset.
\n
(3)When an applicant credit institution or participating institution provides information about bank assets under subsection (1) or (2), it shall, if it is of the opinion that a bank asset is not an eligible bank asset, state that fact, that it objects to the acquisition of the bank asset, and the reason for the opinion. If an applicant credit institution or a participating institution wishes to object to the proposed acquisition of a bank asset, it shall do so in that way and the objection shall be dealt with in accordance with
\n
Chapter 1
\n
of
\n
Part 7
\n
.
\n
(4)In a direction under subsection (1), NAMA may require that the information concerned is to be provided in a particular specified manner or form, including by way of tranches described by reference to debtors, associated debtors, security or in any other way.
\n
(5)NAMA may direct an applicant credit institution or a participating institution that any information provided by the applicant credit institution, any of its subsidiaries or the participating institution under subsection (1) or (2) is to be certified as accurate and complete jointly by the chief executive officer and chief financial officer of the applicant credit institution or participating institution.
\n
(6)An applicant credit institution or participating institution shall, on request by NAMA, provide NAMA with a report or a certificate or both, in the form directed by NAMA, about— (a) any of its bank assets, or those of a subsidiary, that may be eligible bank assets, or (b) any information relevant to the determination of the terms of acquisition (including the acquisition value) of any such bank asset.
\n
(7)An applicant credit institution or a participating institution shall, in a report or certificate under subsection (5) or (6), disclose in utmost good faith all matters and circumstances in relation to each bank asset concerned that might materially affect, or might reasonably be expected to materially affect, NAMA’s decision to acquire the bank asset or the determination of its acquisition value.
\n
(8)Notwithstanding any legal or contractual restriction, NAMA and a NAMA group entity may disclose to each other any information, or any report, certificate or other document, that either one obtains in connection with the performance of any of its functions.
\n
Production of documentation, books and records for inspection.
\n
81.— (1) An applicant credit institution or a participating institution shall, if NAMA so requests, produce to NAMA for inspection the credit facility documentation, books and records kept in connection with any eligible bank asset. The applicant credit institution or participating institution shall give NAMA such facilities for inspecting and taking copies of the contents of any such documentation, book or record as NAMA requires.
\n
(2)NAMA may direct an applicant credit institution or a participating institution to procure that any of its subsidiaries— (a) produces to NAMA for inspection the credit facility documentation, books and records kept in connection with any eligible bank asset, and (b) gives NAMA such facilities for inspecting and taking copies of the contents of any such documentation, book or record as NAMA requires.
\n
(3)If an applicant credit institution, participating institution or subsidiary is required under subsection (1) or (2)— (a) to produce documentation or a book or record in connection with a bank asset to NAMA, or (b) to provide facilities to NAMA to inspect or take copies of the contents of any such documentation, book or record, and fails to do so, NAMA may apply to the Court, on notice to the credit institution or participating institution for an order directing the credit institution, participating institution or subsidiary to produce the documentation, book or record, or provide the facilities, as the case requires.
\n
(4)The Court may make an order pursuant to the application under subsection (3) if the Court is satisfied that the production of the documentation, book or record, or the provision of the facilities sought is reasonably necessary to enable NAMA to perform any of its functions under this Act. The Court may make any interlocutory order (including a mandatory order) that it considers necessary in the circumstances.
\n
(5)If the Court is satisfied that for reasons of commercial confidentiality a hearing under this section should be conducted otherwise than in public, the Court may so order.
\n
(6)Subject to the privilege against self-incrimination, a document, book or record produced by a person in answer to a request or order under this section is admissible in evidence.
\n
Provision of information and explanations, etc.
\n
82.— (1) An applicant credit institution or a participating institution shall provide any information and explanations requested by NAMA in relation to the matters referred to in sections 80 and 81 or any other matter relevant to the acquisition of a bank asset, and shall also secure that an officer or staff member of the applicant credit institution or participating institution shall provide an explanation of any such information, documentation, book or record, including an explanation of any apparent omission from the information, documentation, book or record.
\n
(2)NAMA may direct an applicant credit institution or participating institution to procure that any of its subsidiaries provides the information or explanations referred to in subsection (1) in relation to the bank assets of the subsidiary.
\n
(3)If an applicant credit institution or participating institution is required to secure that an officer or staff member of the applicant credit institution, subsidiary or participating institution provides an explanation or information under this section, and fails to do so, NAMA may apply to the Court, on notice to the applicant credit institution or participating institution, for an order directing the applicant credit institution, subsidiary or participating institution to secure the provision of the explanation or information.
\n
(4)The Court may make an order referred to in subsection (3) if the Court is satisfied that the provision of the explanation or information sought is reasonably necessary to enable NAMA to make a decision whether to acquire the bank asset concerned or determine its acquisition value. The Court may make any interlocutory order (including a mandatory order) that it considers necessary in the circumstances.
\n
(5)If the Court is satisfied that for reasons of commercial confidentiality a hearing under this section should be conducted otherwise than in public, the Court may so order.
\n
(6)Subject to the privilege against self-incrimination, information provided by a person in answer to a request or order under this section is admissible in evidence.
\n
Obligations to co-operate and act in good faith, etc.
\n
83.— (1) If a person who is a debtor, associated debtor, guarantor or surety of a credit facility has been notified that the credit facility is an eligible bank asset, the person shall co-operate and shall, in good faith, promptly furnish to the participating institution such information relating to the eligible bank asset concerned as the participating institution requests for the purposes of its compliance with a requirement or direction under section 80 , 81 or 82 .
\n
(2)If a person referred to in subsection (1) fails to comply with a requirement of that subsection, the participating institution concerned may apply to the Court, on notice to the person, for an order directing the person to comply with the requirement in any way specified in the order, and shall notify NAMA that it has done so.
\n
(3)The Court may make an order (including a mandatory order) under subsection (2) if the Court is satisfied that the compliance sought is reasonably necessary to enable the participating institution concerned to comply with the requirement or direction under section 80 , 81 or 82 . The Court may make any interlocutory order that it considers necessary in the circumstances.
\n
(4)If the Court is satisfied that for reasons of commercial confidentiality a hearing under this section should be conducted otherwise than in public, the Court may so order.
\n
(5)Subject to the privilege against self-incrimination, a document, book or record produced by a person in answer to a request or order under this section is admissible in evidence.
\n
(6)If a participating institution suffers loss as a result of a debtor, guarantor or surety failing to comply with an obligation under subsection (1), the debtor, guarantor or surety shall be liable in damages to the participating institution.
\n
Decision about acquisition of eligible bank assets.
\n
84.— (1) NAMA may acquire an eligible bank asset of a participating institution if NAMA considers it necessary or desirable to do so having regard to the purposes of this Act and in particular the resources available to the Minister. NAMA is not obliged to acquire any particular, or any, eligible bank asset of such an institution on any grounds.
\n
(2)For the avoidance of doubt, NAMA may acquire, from a participating institution, performing or non-performing eligible bank assets.
\n
(3)For the avoidance of doubt, NAMA may, subject to
\n
Chapter 1
\n
of
\n
Part 7
\n
, take steps to acquire an eligible bank asset even though the participating institution concerned has indicated in information provided to NAMA under section 80 that it does not consider the bank asset to be an eligible bank asset and that it objects to its acquisition.
\n
(4)Without prejudice to the generality of subsection (1), NAMA may, in deciding whether to acquire a particular eligible bank asset, take into account— (a) whether any security that is part of the bank asset is adequate, (b) whether any security that is part of the bank asset has been perfected, (c) the value of that security, (d) whether the relevant credit facility documentation is defective or incomplete, (e) whether the participating institution concerned or any other person has engaged in conduct concerning the bank asset that is or could be prejudicial to the position of NAMA, (f) whether the participating institution has complied with its contractual and legal obligations and its obligations under this Act in relation to the bank asset, or its eligible bank assets generally, (g) whether in NAMA’s opinion the participating institution has advanced a sufficient quantum of the credit facility concerned, (h) the quality of the title to any property held as security that is part of the bank asset, (i) any applicable legal, regulatory or planning requirement that has not been complied with in relation to development land held as security that is part of the bank asset, (j) any association with another bank asset of a participating institution, (k) the performance of the bank asset, (l) any matter disclosed in any due diligence carried out by the participating institution or NAMA, (m) the type of other eligible bank assets (whether of the participating institution or any other participating institution) that NAMA has acquired or proposes to acquire, and whether not acquiring the particular eligible bank asset concerned would contribute to the achievement of the purposes of this Act, and (n) any other matter that NAMA considers relevant.
\n
(5)Where NAMA determines that the long-term economic value of the property comprised in the security for a credit facility that is an eligible bank asset is less than the market value of the property, NAMA shall not acquire the bank asset.
\n
NAMA to identify eligible bank assets for acquisition.
\n
85.— (1) NAMA shall identify such of the eligible bank assets of a participating institution as NAMA proposes to acquire.
\n
(2)NAMA may, for the purposes of identifying eligible bank assets that it proposes to acquire, consult with the participating institution concerned, but is not obliged to do so. The participating institution shall co-operate expeditiously with NAMA in any such consultation.
\n
(3)If a participating institution has stated in information provided under section 80 that it does not consider a particular bank asset that NAMA proposes to acquire to be an eligible bank asset and that it objects to its acquisition, NAMA may— (a) agree not to acquire the bank asset, or (b) continue with the proposed acquisition and refer the matter to the expert reviewer.
\n
(4)If NAMA proposes to continue with a proposed acquisition in accordance with subsection (3) (b), NAMA shall notify the participating institution concerned of that fact as soon as may be.
\n
(5)NAMA shall inform the participating institution of its proposed timetable for the acquisition of the eligible bank assets identified for acquisition. The timetable may specify that identified bank assets will be acquired on different dates.
\n
NAMA may specify general terms and conditions of acquisition.
\n
86.— (1) NAMA may, from time to time, specify the terms and conditions that are to apply generally to the acquisition of eligible bank assets.
\n
(2)The terms and conditions specified under subsection (1) may include the following warranties: (a) a warranty (which may be subject to any legal reservation approved by NAMA in a particular case) that the security for the relevant bank asset is enforceable; (b) a warranty that any land that is the security for the bank asset has good and marketable title; (c) a warranty that the facts in the participating institution’s report in relation to the bank asset are complete and accurate; (d) a warranty that any certificate provided in relation to the bank asset is accurate and complete; (e) any other warranty customarily included in transactions for the purchase of bank assets.
\n
(3)In relation to any particular acquisition NAMA may amend or vary the terms and conditions specified under subsection (1) as it thinks fit, but if it does so, it shall set out the amendment or variation in the relevant acquisition schedule.
\n
NAMA to prepare acquisition schedule.
\n
87.— (1) When NAMA has identified an eligible bank asset of a participating institution that NAMA proposes to acquire, and has determined the acquisition value of that asset, NAMA shall serve on the institution a schedule (referred to in this Act as an “ acquisition schedule ”).
\n
(2)NAMA may nominate a NAMA group entity as the entity that is to acquire a bank asset identified for acquisition.
\n
(3)An acquisition schedule shall set out for each eligible bank asset to be acquired— (a) a statement of the eligible bank asset and the interest to be acquired, (b) a statement of any obligations or liabilities excluded from the acquisition, (c) the acquisition value, (d) details of how the acquisition value was calculated, (e) any obligations, additional to those imposed by this Act, to be imposed on the participating institution after the acquisition that are to take effect after the acquisition, (f) the date of acquisition, and (g) if the eligible bank asset is not to be acquired by NAMA itself, the NAMA group entity that will acquire it.
\n
(4)In addition to the matters required by subsection (3), NAMA may set out in an acquisition schedule any other matter (including any terms and conditions) that it considers necessary in the particular case.
\n
(5)For the avoidance of doubt, an acquisition schedule may specify any number of particular eligible bank assets.
\n
(6)For the avoidance of doubt, NAMA may serve more than one acquisition schedule on a participating institution.
\n
(7)The date of acquisition of a designated bank asset shall be at least 28 days after the relevant acquisition schedule is served on the participating institution concerned unless NAMA specifies a shorter period in the acquisition schedule.
\n
Errors or omissions in proposed acquisition schedules.
\n
88.— A participating institution may apply to NAMA in writing for the correction of an obvious error or omission in an acquisition schedule. An application under this section is not an objection for the purposes of section 80 and section 114 .
\n
Amendment of acquisition schedule.
\n
89.— (1) After service of an acquisition schedule on a participating institution, but before the earliest acquisition date specified in the acquisition schedule, NAMA may— (a) revoke the acquisition schedule, or (b) amend the acquisition schedule in relation to the bank asset in any way.
\n
(2)Without prejudice to the generality of subsection (1) (b), NAMA may amend an acquisition schedule in any of the following ways: (a) to omit or add a bank asset; (b) to alter the description of such an asset; (c) to alter the acquisition date of such an asset; (d) to alter the acquisition value of such an asset; (e) to alter any of the terms and conditions of the acquisition schedule; (f) to correct an obvious error or omission.
\n
(3)When NAMA has amended an acquisition schedule (in this subsection called the “ original acquisition schedule ”), NAMA shall serve an amended acquisition schedule on the participating institution. Where NAMA does so, the amended acquisition schedule has effect in place of the original acquisition schedule.
\n
(4)When NAMA has revoked an acquisition schedule, NAMA shall serve on the participating institution a notice of the revocation. The revoked acquisition schedule is of no effect from the date of that service.
\n
(5)References in this Act to an acquisition schedule include an acquisition schedule that has been amended in accordance with this section.
\n
Effect of service of acquisition schedule.
\n
90.— (1) Subject to subsection (7), the service of an acquisition schedule on a participating institution in accordance with section 87 or 89 operates by virtue of this Act to effect the acquisition of each bank asset specified in the acquisition schedule by NAMA or the specified NAMA group entity, on the date of acquisition specified in the acquisition schedule as the date of acquisition of the bank asset, notwithstanding that the consideration for the acquisition has not been paid.
\n
(2)The acquisition of a bank asset pursuant to subsection (1) is subject to the terms and conditions set out in the acquisition schedule and any general terms and conditions specified by NAMA under section 86
\n
(1)except to any extent that the acquisition schedule excludes or modifies such specified terms and conditions.
\n
(3)Unless otherwise provided in an acquisition schedule, where an eligible bank asset is acquired, every relevant contract is deemed to be assigned to NAMA or the specified NAMA group entity, as the case may be.
\n
(4)In subsection (3) “ relevant contract ” means a contract— (a) relating to the bank asset, (b) to which the participating institution is a party or in which it has an interest, and (c) the existence of which has been disclosed to NAMA in writing.
\n
(5)Unless otherwise provided in an acquisition schedule, where an eligible bank asset is acquired, NAMA or the specified NAMA group entity, as the case may be, becomes entitled to the benefit of— (a) any certificate of title, solicitor’s undertaking, warranty, valuation, report, certificate or document issued to the participating institution or upon which the participating institution is entitled to rely in connection with the asset, (b) an instruction, order, direction, bond, opinion, search, enquiry, declaration, consent, notice, power of attorney, authority or right given to, held by or issued for the benefit of, directly or indirectly, the participating institution in connection with the asset, and (c) any other benefit arising under or in connection with any insurance or assurance policy or payment direction relating to the asset.
\n
(6)Subject to section 91 , subsections (1), (3) and (5) have effect in relation to a bank asset notwithstanding— (a) any legal (including contractual) or equitable restrictions on the acquisition of the bank asset or any part of it, (b) any legal or equitable restriction, inability or incapacity relating to or affecting any matter referred to in the acquisition schedule (whether generally or in particular) or any requirement for a consent, notification, authorisation, licence or document to similar effect (by whatever name and however described), in each case, (c) any insignificant or immaterial error or any obvious error, or (d) any provision of any enactment to the contrary.
\n
(7)The service of an acquisition schedule on a participating institution in accordance with sections 87 and 89 does not have the effects mentioned in subsections (1), (3) and (5) in relation to a bank asset if— (a) notwithstanding that the participating institution stated in information provided under section 80 that it did not consider the bank asset to be an eligible bank asset, and that it objected to its aquisition NAMA decided under section 85
\n
(3)to take steps to acquire the bank asset, and (b) on the acquisition date— (i) the Minister has not confirmed the inclusion of the bank asset in the acquisition schedule in accordance with section 117 , or (ii) NAMA— (I) has amended the acquisition schedule to remove the bank asset from the acquisition schedule, or (II) has revoked the acquisition schedule in accordance with section 89 or 121 .
\n
Effect of service of acquisition schedule in relation to foreign bank assets.
\n
91.— (1) In this Part— “ foreign bank asset ” means a bank asset in which the transfer or assignment of any right, title or interest that NAMA proposes to acquire is governed in whole or in part by the law of a state (including the law of a territorial unit of a state) other than the State; “ foreign law ”, in relation to a foreign bank asset or a transaction in relation to a foreign bank asset means the law of a state other than the State.
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(2)In this section, where a bank asset is to be acquired by a NAMA group entity, a reference to NAMA in this section (but not in sections 92 and 93 as applied by subsection (10)) shall be construed as a reference to the NAMA group entity.
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(3)To the extent that a bank asset proposed to be acquired by NAMA is or includes a foreign bank asset— (a) if the law governing the transfer or assignment of the foreign bank asset permits the transfer or assignment of that asset, the participating institution shall if NAMA so directs do everything required by law to give effect to the acquisition, or (b) if the relevant foreign law does not permit the transfer or assignment of the foreign bank asset, the participating institution shall if NAMA so directs do all that the participating institution is permitted to do under that law to assign to NAMA the greatest interest possible in the foreign bank asset.
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(4)A participating institution, to the extent that a foreign bank asset is one to which subsection (3) (b) applies— (a) is subject to duties, obligations and liabilities as nearly as possible corresponding to those of a trustee in relation to that bank asset, and (b) shall hold the bank asset for the benefit and to the direction of NAMA, in each case subject to the nature of, and the terms and conditions of the acquisition of, the foreign bank asset.
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(5)Subsection (3) applies in so far as the service of an acquisition schedule would not, of itself, as a matter of foreign law, operate to give effect to the acquisition of a foreign bank asset or otherwise effect or achieve the result referred to in that subsection in relation to such a bank asset.
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(6)Without prejudice to subsection (4), a participating institution shall, immediately upon being so directed by NAMA to do so, execute and deliver to NAMA any contract, document, agreements, deed or other instrument that NAMA considers necessary or desirable to ensure that there is effected a binding acquisition by NAMA or the NAMA group entity concerned, under the applicable law, of the interest specified in the relevant acquisition schedule. NAMA may issue more than one direction under this subsection in connection with a foreign bank asset.
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(7)A trust, duty, obligation or liability created or constituted by this section shall not be taken to constitute a security.
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(8)A participating institution shall comply with any direction of NAMA in relation to any duty, obligation or liability under this section.
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(9)A participating institution shall obtain, make, maintain and comply with any authorisation, consent, approval, resolution, licence, exemption, filing, notarisation or registration that is necessary in the State and in any other place in connection with ensuring the legality and enforceability of any act, matter or thing referred to in this section.
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(10)Sections 92 and 93 apply with any necessary modifications in relation to a foreign bank asset.
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Payment for bank assets.
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92.— (1) As soon as may be after the service on a participating institution of an acquisition schedule (or after service of an amended acquisition schedule or a decision under section 117 or 121 to confirm or continue with an acquisition schedule, as the case may be), NAMA shall notify the Minister and the NTMA of the amount payable to the participating institution as the acquisition value of the bank assets to be acquired.
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(2)The Minister shall ensure that debt securities to an amount sufficient to allow the payment of the consideration payable under the acquisition schedule (other than any part of the consideration provided by an issue of subordinated debt securities under section 49 ) are issued.
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(3)On the date of acquisition of a bank asset, NAMA or the NAMA group entity that acquired the bank asset shall transfer or issue to the participating institution concerned debt securities, or debt securities and subordinated debt securities, equal to the acquisition value of the bank asset.
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(4)Subsections (1), (2) and (3) have effect in relation to a bank asset even if at the relevant time the total portfolio acquisition value is the subject of an objection.
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(5)Subject to subsection (6), in the case of the acquisition of a foreign bank asset (within the meaning given by section 91 ), on the date of acquisition, NAMA or the NAMA group entity concerned shall transfer or issue to the participating institution concerned debt securities, or debt securities and subordinated debt securities, equal in value to the acquisition value of the bank asset.
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(6)In the case of the acquisition of a foreign bank asset (within the meaning given by section 91 ), NAMA or the NAMA group entity concerned may withhold all or part of the acquisition value of a foreign bank asset until satisfied that the participating institution concerned has met its obligations under section 91 .
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Clawback of overpayments.
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93.— (1) If a participating institution receives from NAMA or a NAMA group entity an amount in exchange for acquired bank assets that is more than is due to the participating institution under this Act, or receives any other amount from NAMA or a NAMA group entity to which it is not entitled, the institution shall repay to NAMA— (a) in the case of overpayment of an amount due for the acquisition of bank assets, an amount equal to the overpayment and any accrued interest on it within the period that NAMA determines, or (b) in any other case, an amount equal to the overpayment and any accrued interest on it within the period that NAMA determines.
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(2)A certificate issued by NAMA under its seal as to the amount of an overpayment referred to in subsection (1) is admissible as evidence of the amount of that overpayment.
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Dealings with bank assets after service of acquisition schedule until date of acquisition.
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94.— After the service of an acquisition schedule on a participating institution, until the date of acquisition for each bank asset specified in the acquisition schedule, the participating institution— (a) shall continue to hold and manage each bank asset concerned in accordance with section 71 , (b) shall not make nor permit the making of any change to the bank asset concerned without NAMA’s written consent, and (c) shall notify NAMA in writing of any change in the bank asset concerned of which the participating institution is aware.
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Books, records and title documents of participating institutions.
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95.— (1) Where NAMA has acquired a bank asset, NAMA may direct the participating institution from which the bank asset was acquired— (a) to deliver to NAMA all its books and records in relation to the bank asset concerned and any documents of title that it holds for any property that is subject to a security that is part of the bank asset, and (b) to provide any information or explanation that NAMA requires in relation to those books, records and documents.
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(2)A participating institution shall comply with a direction under subsection (1).
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(3)Where NAMA directs a participating institution under subsection (1) to deliver to NAMA books, records or documents in relation to a bank asset, the participating institution shall also secure that any officer, employee or agent of the participating institution who is able to do so provides an explanation of any such book, record or document, including an explanation of any apparent omission from such a book, record or document.
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(4)If a participating institution is subject to a direction under subsection (1) and does not comply with the direction, NAMA may apply to the Court, on notice to the participating institution, for an order directing the institution to comply with the direction.
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(5)The Court may make an order (including a mandatory or interlocutory order) under subsection (4) if the Court is satisfied that the production of the book, record, document or explanation, the provision of the facilities sought is reasonably necessary to enable NAMA to perform any of its functions under this Act.
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(6)Where NAMA so directs, a participating institution shall retain custody, on behalf of NAMA, of any book, record, document or document of title referred to in this section subject to the giving of an accountable trust receipt or on other terms that NAMA directs.
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Notice to debtors, etc., of acquisition of bank assets.
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96.— (1) Within 60 days after the acquisition of a bank asset from a participating institution, the participating institution shall make reasonable efforts to notify each debtor, associated debtor, guarantor or surety in relation to the credit facility concerned of the acquisition of the bank asset by NAMA or the relevant NAMA group entity.
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(2)Where there has been failure or delay in notifying a person in accordance with subsection (1)— (a) neither NAMA nor the relevant NAMA group entity is liable for any such failure or delay, (b) the acquisition is valid notwithstanding any such failure or delay, and (c) no objection may be raised by any debtor, associated debtor, guarantor or surety to NAMA’s or the relevant NAMA group entity’s acquisition of the bank asset concerned based on any such failure or delay.
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NAMA to notify participating institutions of completion of acquisition process.
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97.— (1) When NAMA has served on a participating institution one or more acquisition schedules that specify all the bank assets that NAMA has acquired or at the time proposes to acquire from the participating institution, NAMA shall serve on the participating institution a notice in writing of that fact (in this Act referred to as a “ completion notice ”).
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(2)A completion notice shall specify— (a) all the bank assets (being bank assets that are eligible bank assets at the time of service of the completion notice) that NAMA has acquired or proposes to acquire from the participating institution concerned, (b) the acquisition value determined by NAMA for each such bank asset, and (c) the total value for those assets.
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(3)NAMA shall not serve any further acquisition schedules on a participating institution after service of a completion notice on the institution unless the Minister prescribes further classes of eligible bank assets.
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Dispute over acquisition value.
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98.— (1) If a participating institution wishes to dispute an acquisition value, it shall do so solely in accordance with this section and sections 121 and 122 .
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(2)A participating institution may apply to NAMA in writing for the correction of an obvious error in relation to the value of a bank asset in an acquisition schedule. An application under this subsection is not an objection or dispute for the purposes of sections 121 and 122 .
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Chapter 2
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Effects of Acquisition of Bank Assets NAMA to have rights of creditors after acquisition of bank assets.
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99.— (1) After NAMA or a NAMA group entity acquires a bank asset, and subject to section 101 and any exclusion of obligations and liabilities from the acquisition set out in the acquisition schedule— (a) NAMA and the NAMA group entity each have and may exercise all the rights and powers, and subject to this Act is bound by all of the obligations, of the participating institution from which the bank asset was acquired in relation to— (i) the bank asset, (ii) the debtor concerned and any guarantor, surety or other person concerned, (iii) any receiver, liquidator, or examiner concerned, and (iv) the Official Assignee in Bankruptcy, and (b) the participating institution ceases to have those rights and obligations except to any extent to which this Act provides otherwise.
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(2)The reference in subsection (1) to the rights, powers or obligations of a participating institution in relation to a bank asset is a reference to the rights, powers or obligations, as the case may be— (a) derived from the bank asset, and (b) arising under any law or in equity or by way of contract.
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(3)In particular, NAMA and the NAMA group entity may each— (a) take any action, including court action, that the participating institution could have taken to protect, perfect or enforce any security, right, interest, obligation or liability, (b) realise any security that the participating institution could have realised, (c) call up any guarantee that the participating institution could have called up, (d) participate to the same extent as the participating institution could have participated in any resolution, workout, restructuring, arrangement, reorganisation, scheme or insolvency proceeding in relation to the bank asset, and (e) exercise any powers conferred by any document that forms part of the bank asset of reviewing or amending any term or condition of any part of the bank asset.
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Exercise of certain rights of set-off.
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100.— (1) If a participating institution has a right to set off a claim owing by it to a debtor against a claim owing by the debtor to it in relation to a bank asset, and NAMA or a NAMA group entity acquires the bank asset, the right is taken to continue in existence as between the participating institution and the debtor as if the bank asset had not been acquired and— (a) the participating institution shall inform NAMA in writing of the existence of the right, (b) if NAMA so directs— (i) the claims shall be set off as if they were mutual claims when and to the extent that the right of set-off would have become exercisable or would have arisen if there had been no acquisition, and (ii) the claims shall be taken to have been discharged to the extent of that set-off, and (c) if the claims are so discharged, the participating institution shall, as soon as may be, pay an amount equal to the amount of the set-off to NAMA or the NAMA group entity concerned.
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(2)If a debtor exercises, or is taken to have exercised, a set-off of a claim made by a participating institution against an acquired bank asset, the participating institution shall, as soon as may be, pay an amount equal to the amount of the set-off to NAMA or to the NAMA group entity concerned.
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(3)In this section— (a) a reference to a right of set-off includes a right of combination of accounts and any similar right, and (b) a reference to a claim includes a direct or contingent obligation.
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(4)Upon and following the acquisition of a bank asset from a participating institution by NAMA or a NAMA group entity, for the purposes only of the set-off pursuant to subsection (1) the claims shall be taken to be mutual for the purposes of paragraph 17(1) of the First Schedule to the Bankruptcy Act 1988 .
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Enforcement of certain representations, etc.
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101.— (1) If in relation to a bank asset that NAMA or a NAMA group entity has acquired— (a) it is alleged that a representation was made to, a consent was given to, an undertaking was given to, or any other obligation was undertaken (by agreement or otherwise) in favour of, the debtor or another person by the participating institution from which the bank asset was acquired or by some person acting or claiming to act on its behalf, (b) no such representation, consent, undertaking or obligation was disclosed to NAMA in writing, before the service on the participating institution of the relevant acquisition schedule, (c) the records of the participating institution do not contain a note or memorandum in writing of the terms of any such representation, consent, undertaking or obligation or do not contain a record of any consideration paid in relation to any such representation, undertaking or obligation, and (d) the representation, consent, undertaking or obligation, if made, given or undertaken, would affect the creditor’s rights in relation to the bank asset, then that representation, consent, undertaking or obligation— (i) is not enforceable, and cannot be relied on, by the debtor or any other person against NAMA or the NAMA group entity, (ii) is enforceable, and can be relied on, by the debtor or any other person, if at all, only against a person other than NAMA or a NAMA group entity, and (iii) is not enforceable, and cannot be relied on, by NAMA or the NAMA group entity against the debtor.
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(2)A claim based on a representation, consent, undertaking or obligation referred to in subsection (1) gives rise only to a remedy in damages or other relief that does not in any way affect the bank asset, its acquisition, or the interest of NAMA or the NAMA group entity or (for the avoidance of doubt) any property the subject of any security that is part of such a bank asset.
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(3)The Court shall not make an order under section 182 in relation to a claim to enforce a representation, undertaking or obligation referred to in subsection (1).
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Acquisition of bank assets not to affect conditions, etc.
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102.— (1) Subject to the provisions of this Act, after a bank asset is acquired by NAMA or a NAMA group entity, the terms and conditions of the bank asset are unchanged.
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(2)Where the documentation for a credit facility forming part of a bank asset that has been acquired by NAMA or a NAMA group entity refers to a reference rate of interest that is set by the participating institution concerned but is no longer available, the documentation shall continue to be construed as though it referred to— (a) that participating institution’s reference rate for credit facilities of that type, or (b) at NAMA’s discretion, another reference rate specified by NAMA.
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(3)Where by reason of the acquisition by NAMA or a NAMA group entity of a bank asset, compliance with, or the operation of, a term or condition of the bank asset is no longer, in the opinion of NAMA, reasonably practicable, NAMA may, by notice in writing, change that term or condition. The new term or condition shall be as nearly as possible equivalent to the original term or condition.
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(4)For the avoidance of doubt, the acquisition by NAMA or a NAMA group entity of a bank asset under this Act does not affect any relief or remedy to which the participating institution would otherwise be entitled.
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Acquisition of bank assets not to give rise to cause of action, etc.
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103.— No cause of action lies or is maintainable against NAMA or any NAMA group entity by reason solely of the acquisition of a bank asset by NAMA or a NAMA group entity.
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NAMA to be notified of certain matters.
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104.— If within one year after NAMA or a NAMA group entity acquires a bank asset, the participating institution from which the bank asset was acquired is notified or becomes aware of any significant dealing, event or circumstance or significant proposed or potential dealing, event or circumstance in relation to the bank asset that would adversely affect the bank asset or the rights (including priority), obligations or liabilities of NAMA or the NAMA group entity in relation to it, the participating institution shall notify NAMA of the dealing, event or circumstance without delay.
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Acquisition of bank assets not to render NAMA liable for wrongs by participating institutions.
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105.— (1) Nothing in this Act renders NAMA or a NAMA group entity liable for any breach of contract, misrepresentation, breach of duty, breach of trust or other legal or equitable wrong committed by a participating institution.
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(2)No legal proceedings shall be brought against NAMA or a NAMA group entity in relation to any legal or equitable wrong referred to in subsection (1).
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(3)Nothing in this Act deprives any person of a remedy in damages against a participating institution in relation to a legal or equitable wrong referred to in subsection (1).
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Rights of others not affected by acquisition of bank assets, etc.
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106.— Nothing in this Act relieves NAMA or a NAMA group entity of any obligation, at law or in equity, except to any extent to which this Act specifically provides otherwise.
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NAMA not required to register certain instruments, etc.
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107.— (1) Where a bank asset has been acquired by NAMA or a NAMA group entity— (a) notwithstanding anything in any Act listed in subsection (2) or any other Act that provides for the registration of assets, security or details of them, NAMA or the NAMA group entity is not required to become registered as owner of any security that is part of the bank asset, (b) notwithstanding sections 62 and 64 of the Registration of Title Act 1964 , NAMA or the NAMA group entity has, in relation to any such charge, the powers of a mortgagee under a mortgage by deed, even though NAMA or the NAMA group entity is not registered as owner of any such charge, (c) NAMA or the NAMA group entity has the powers and rights conferred on the registered owner of a charge by the Registration of Title Act 1964 .
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(2)The Acts referred to subsection (1) (a) are the following: (a) the Bills of Sale (Ireland) Acts 1879 and 1883; (b) the Industrial and Commercial Property (Protection) Act 1927 ; (c) the Companies Act 1963 ; (d) the Registration of Deeds and Title Acts 1964 and 2006; (e) the Agricultural Credit Act 1978 ; (f) the Patents Act 1992 ; (g) the Trade Marks Act 1996 ; (h) the Taxes Consolidation Act 1997 .
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(3)For the purposes of an Act referred to in subsection (1) (a), an acquisition schedule has effect in relation to a bank asset as a deed registered on the date of acquisition of the bank asset concerned.
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(4)For the purposes of an Act referred to in subsection (1) (a), the registration in relation to an acquired bank asset of a participating institution has effect for all purposes as a registration of NAMA or the NAMA group entity concerned.
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(5)Nothing in this section prevents NAMA or a NAMA group entity from registering any interest capable of registration.
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(6)Nothing in this section has the effect of relieving NAMA or a NAMA group entity from any obligation under a relevant foreign law.
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(7)Sections 23 and 25 of the Registration of Title Act 1964 do not apply to NAMA or a NAMA group entity.
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(8)Where a NAMA group entity acquires a bank asset from NAMA or another NAMA group entity, the provisions of this section also apply to the first-mentioned NAMA group entity.
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NAMA, etc., may give certificates in relation to bank assets held.
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108.— (1) NAMA or a NAMA group entity may certify under its seal or common seal, as the case requires, that NAMA or the NAMA group entity holds a bank asset specified in the certificate.
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(2)A document purporting to be a certificate issued in accordance with subsection (1)— (a) shall be taken to be such a certificate, and to have been certified under the seal of NAMA or the NAMA group entity, as the case may be, unless the contrary is proved, and (b) is conclusive as to the matters set out in it.
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NAMA, etc., may give certain directions in relation to bank assets.
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109.— (1) This section applies, without prejudice to any other provision of this Act or any right arising at law, to a bank asset that NAMA or a NAMA group entity has acquired, the terms and conditions of which entitle the participating institution from which NAMA or the NAMA group entity acquired it to give directions to a third party that holds an interest in the bank asset on behalf of others.
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(2)In relation to a bank asset to which or in relation to which this section applies— (a) NAMA or a NAMA group entity may give directions to the third party concerned to realise any security, enforce any guarantee or surety or do any other act or thing in relation to the bank asset, or (b) if the third party is not incorporated in the State, but is a subsidiary of an entity that is incorporated in the State, NAMA or a NAMA group entity may direct the entity concerned to secure compliance by the subsidiary with a direction to do any of the things mentioned in paragraph (a).
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(3)Where a direction is given under subsection (2) (a), then the third party shall be under an equivalent obligation to comply with the direction as if the direction had been given by the participating institution from which the bank asset concerned was acquired.
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(4)Where a direction is given under subsection (2) (b), then the entity shall be under an obligation to secure the compliance of the subsidiary but only to the extent that the subsidiary would be bound to comply with a direction given under paragraph (a) of subsection (2) if the subsidiary were incorporated in the State.
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Effect of acquisition of bank assets on certain other rights.
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110.— (1) In this section “ relevant instrument ” means an agreement, licence, document, security, obligation or other instrument (other than the Credit Institutions (Financial Support) Scheme 2008 ( S.I. No. 411 of 2008 )) (or an instrument entered into under that Scheme) to which any of the following is a party or by which any of the following is bound or in which any of the following has an interest: (a) a participating institution; (b) a subsidiary of such an institution; (c) any body corporate in which a participating institution or any of its subsidiaries has any interest.
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(2)Any provision in a relevant instrument that would (apart from this subsection) cause any of the consequences specified in subsection (3) to follow by virtue of— (a) the enactment of this Act, (b) any entity becoming a participating institution, (c) the provision of any information to NAMA by an applicant credit institution or a participating institution pursuant to this Act, (d) the acquisition of a bank asset by NAMA or a NAMA group entity under this Act, (e) any disposition by NAMA or a NAMA group entity of any acquired bank asset, or (f) any other thing done or authorised to be done under, pursuant to or resulting from any provision of this Act, is of no effect, without the express consent of NAMA, except to any extent to which the Minister provides otherwise by order under section 111 .
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(3)The consequences referred to in subsection (2) are the following: (a) the creation of an obligation; (b) the suspension or extinction (however described, and whether in whole or in part) of a right or an obligation or the becoming subject to a right or an obligation; (c) the termination of the relevant instrument concerned or a right or obligation under it; (d) a right becoming exercisable to terminate or modify the relevant instrument or a right or obligation under it; (e) an amount becoming due and payable or capable of being declared due and payable; (f) any other change in the amount or timing of any payment falling to be made or due to be received by any person; (g) a right becoming exercisable to withhold, net or set off any payment; (h) the occurrence of an event giving rise to a default or breach of a right or obligation; (i) a right becoming exercisable not to advance any amount; (j) an obligation arising to provide or transfer a deposit or collateral; (k) a right of transfer or assignment of the asset that is stated to be exercisable only once or for a limited number of times; (l) a right to enforce a guarantee, indemnity or security interest (however described); (m) the triggering of any mandatory prepayment; (n) any obligation to return collateral or its equivalent; (o) the cancellation of any obligation to advance any amount or to provide credit or a contingent instrument; (p) legal proceedings becoming maintainable to enforce the relevant instrument, to any extent that such proceedings would not have been maintainable had the bank asset not been acquired or had any other thing done or matter arising by virtue of or in connection with this Act not been done or not arisen, as the case may be; (q) any other right or remedy (whether or not similar in kind to those referred to in paragraphs (a) to (o)) arising or becoming exercisable; (r) the termination or modification of an obligation to provide a service or product.
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(4)In making an order referred to in subsection (2), the Minister shall have regard to— (a) the consequences specified in subsection (3) so far as they are relevant, (b) the matters set out in subsection (2), and (c) the likely impact of the proposed order on any of the matters specified in section 2 , and on NAMA’s ability to perform its functions under this Act.
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Minister’s power to modify application of section 110 .
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111.— (1) In this section “ relevant instrument” has the same meaning as in section 110 .
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(2)If the Minister is satisfied that in the special circumstances of— (a) a particular case, or (b) a particular class of cases, the effect of section 110 would be unduly onerous or would cause undue unfairness or undue hardship, and that it is appropriate in all the circumstances to do so, he or she may by order provide that, notwithstanding anything in that section, a provision in a relevant instrument that provides for a consequence mentioned or referred to in that section has effect to the extent specified in the order.
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(3)An order under subsection (2)— (a) may make provision in relation to the effect of a provision— (i) in a particular relevant instrument, (ii) in relevant instruments of a particular class, (iii) on rights held under a relevant instrument by— (I) a particular person, or (II) a particular class of person, or (iv) on rights held under relevant instruments of a particular class by— (I) a particular person, or (II) a particular class of person, (b) in the case of an order that makes provision in relation to relevant instruments of a particular class, may specify the class by reference to any common characteristic of the instruments concerned, (c) in the case of an order that makes provision in relation to rights held by a particular class of persons, may specify the class by reference to any common characteristic of the persons concerned, and (d) may be expressed to have retrospective effect to a date falling after 30 July 2009.
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(4)If the Minister considers that an order under subsection (2) contains matter that is commercially sensitive, he or she may direct— (a) that the obligations in relation to the order under section 3(1) of the Statutory Instruments Act 1947 are to be taken to be satisfied by the printing, sending to the institutions mentioned in section 3(1)(a) of that Act, publication and sale of a version of the order from which the commercially sensitive matter is omitted, or (b) if the preparation of such a version would be impracticable, or would result in the version being seriously misleading, that the order is exempt from the operation of section 3(1) of that Act.
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(5)A version of an order prepared in accordance with a direction given by the Minister under subsection (4) (a) shall indicate that matter has been omitted from the version of the order and the general nature of that matter.
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(6)A direction given by the Minister under subsection (4) shall be published in Iris Oifigiúil as soon as practicable.
\n
(7)Evidence of a direction given by the Minister under subsection (4) may be given by the production of a copy of Iris Oifigiúil purporting to contain the direction.
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PART 7
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Review of Decisions Relating to Acquisition
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Chapter 1
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Expert Reviewer Appointment and functions of expert reviewer.
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112.— (1) The Minister may appoint as the expert reviewer for the purposes of this Chapter a suitably qualified person who, in the Minister’s opinion, has the experience necessary to perform the functions conferred on the expert reviewer under this Chapter.
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(2)The terms and conditions of the appointment of the expert reviewer (including remuneration and reimbursement for expenses incurred) shall be as the Minister determines at the time of appointment.
\n
(3)The functions of the expert reviewer are to review the objections referred to him or her under section 85
\n
(3)and to advise the Minister in accordance with section 116 .
\n
(4)Without prejudice to subsection (3), the expert reviewer may, if he or she thinks that it is appropriate to do so, conduct the review of all or some of the objections from a participating institution on the basis of a sample of the bank assets that were the subject of objections referred to him or her under section 85
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(3)and if he or she does so, the advice to the Minister under section 116 shall be based on that sample and shall be as valid, for all purposes of this Chapter, as if it had been based on a review of each bank asset that was the subject of an objection.
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Procedure of expert reviewer.
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113.— (1) The Minister may make regulations providing for the procedures of the expert reviewer.
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(2)Subject to any regulations made by the Minister under subsection (1), the expert reviewer shall determine, in his or her sole discretion, procedures for— (a) the form and type of submissions to be made to the expert reviewer, (b) the means by which confidential information will be protected from public disclosure, and (c) the performance of any of the expert reviewer’s functions.
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Objections to proposed acquisition of bank assets.
\n
114.— A participating institution may object to the proposed acquisition of a bank asset only as provided for in section 80 .
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Materials, etc., to be made available to expert reviewer.
\n
115.— (1) A participating institution shall provide to the expert reviewer and to NAMA, no later than 7 days after NAMA notifies the participating institution under section 85
\n
(4), all the material on which it bases its objection and any comments it may wish to make regarding the objection.
\n
(2)For the purposes of the expert reviewer’s review of NAMA’s decision to acquire a bank asset, NAMA shall make available to the expert reviewer and the participating institution concerned, no later than 7 days after NAMA refers the objection to the expert reviewer under section 85
\n
(3)(b), all the material that was before NAMA when it made its decision and any comments it may wish to make on the objection.
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(3)NAMA and the participating institution shall each be allowed an opportunity to respond to the other’s material and comments, and shall furnish any such responses to the expert reviewer and to the participating institution or NAMA, as the case may be, no later than 4 days after that material and those comments have been made available.
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(4)The expert reviewer may request NAMA or a participating institution to provide additional information in relation to a bank asset that NAMA proposes to acquire. NAMA or a participating institution shall comply with any such request without delay.
\n
Opinion of expert reviewer.
\n
116.— (1) In forming his or her opinion, the expert reviewer shall take into account the material, comments, responses and any additional information provided by the participating institution and NAMA under section 115 .
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(2)The expert reviewer shall advise the Minister, no later than 5 days after receiving the material, comments, responses and information under section 115 , whether he or she is of the opinion that the bank asset is or is not an eligible bank asset.
\n
(3)The Minister may, if he or she considers that to do so is warranted by exceptional circumstances, specify a longer period within which the expert reviewer is to provide advice under subsection (2).
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Confirmation by Minister of acquisition, etc.
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117.— (1) The Minister shall, in accordance with the advice of the expert reviewer under section 116 in relation to a bank asset, and no later than 5 days after receipt of that advice— (a) confirm that the bank asset may be acquired by NAMA, or (b) direct NAMA not to acquire the bank asset on the grounds that it is not an eligible bank asset.
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(2)The Minister shall send copies of his or her confirmation or direction under subsection (1) to NAMA and to the participating institution concerned.
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Costs.
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118.— (1) The costs of a review under this Chapter are payable as follows: (a) in a case where the Minister’s decision is one referred to in section 117
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(1)(a), the costs of both parties are payable by the participating institution; and (b) in any other case, neither of the parties pays costs and each of the parties bears its own costs.
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(2)If a participating institution withdraws an application for the review under this Chapter, it is liable for the costs incurred up to the time of the withdrawal unless NAMA agrees otherwise.
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(3)If NAMA and the participating institution concerned cannot reach agreement on costs, the costs of the review shall be determined by a Taxing Master of the Court. For that purpose, the Taxing Master has all the functions for the time being conferred on him or her under any enactment or in any rules of court (with any necessary modifications) in relation to the taxation of costs to be paid by one party to another in proceedings before the Court.
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(4)The Taxing Master may direct that the costs of all reviews under this Chapter in relation to a participating institution shall be dealt with together after the service on the participating institution of a completion notice.
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Chapter 2
\n
Review of Valuations Appointment of valuation panel.
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119.— (1) There shall be a valuation panel to adjudicate on disputes referred to it by NAMA under section 122
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(3).
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(2)The valuation panel shall consist of persons that the Minister appoints to be members of it. The Minister may determine how many members there shall be, but there shall not be more than 12 members.
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(3)The Minister shall appoint a person as a member of the valuation panel only if the Minister is of the opinion that the person has relevant expertise or specialist knowledge.
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(4)Without prejudice to the generality of subsection (3), a person has relevant expertise or specialist knowledge if he or she is qualified, or has experience at a senior level, in any one or more of the following: (a) finance and economics; (b) law; (c) accountancy and auditing; (d) public administration; (e) project finance; (f) construction and land development; (g) property management and sale; (h) valuation; (i) urban and land planning; (j) banking and investment; (k) insolvency and restructuring.
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(5)The terms and conditions of appointment (including remuneration and reimbursement of expenses incurred) of a member of the valuation panel shall be as the Minister determines.
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Procedure of valuation panel.
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120.— (1) The Minister may make regulations providing for the procedure of the valuation panel and any matters relating to the review to be carried out.
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(2)Subject to any regulations made by the Minister under subsection (1), the valuation panel shall determine, in its sole discretion, procedures for— (a) the form and type of submissions to be made to the valuation panel, (b) the means by which confidential information will be protected from public disclosure, and (c) the performance of any of the valuation panel’s functions.
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(3)Without prejudice to subsection (1), the valuation panel may, if it thinks that it is appropriate to do so, conduct a review of the valuation of an acquired portfolio on the basis of a sample of the bank assets in the acquired portfolio concerned and if it does so, the advice to the Minister under section 124 shall be based on that sample and shall be as valid, for all purposes of this Chapter, as if it had been determined in relation to all the assets in the acquired portfolio.
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Objection to value placed on bank assets acquired from participating institution.
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121.— (1) If, after the service on a participating institution of an acquisition schedule, a participating institution objects to the acquisition value specified in that schedule in relation to a bank asset, the participating institution shall serve on NAMA a notice in writing of its objection invoking the provisions of this Chapter within 14 days after the service on it of the acquisition schedule.
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(2)On receipt of a notice under subsection (1), NAMA may— (a) remove the bank asset concerned from the relevant acquisition schedule, (b) revoke the acquisition schedule, or (c) continue with the acquisition in accordance with the acquisition schedule.
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(3)NAMA shall notify the participating institution as soon as may be of its decision under subsection (2).
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(4)Where NAMA continues with an acquisition in accordance with the acquisition schedule concerned, the participating institution may dispute only the total portfolio acquisition value and may do so only as provided for and in accordance with section 122 , and is not otherwise entitled to dispute the valuation of any particular acquired bank asset.
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(5)A participating institution is not entitled to challenge any valuation of NAMA including a total portfolio acquisition value, other than in accordance with this Chapter.
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Dispute over total portfolio acquisition value.
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122.— (1) If, after service of a completion notice on a participating institution, the participating institution wishes to dispute the total portfolio acquisition value, it shall do so only if— (a) it is of the opinion that the aggregate market value of the acquired portfolio exceeds the total portfolio acquisition value, and (b) it has served a notice or notices under section 121 in relation to acquired bank assets comprising at least 12.5 per cent by value of the total portfolio acquisition value.
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(2)A participating institution that wishes to dispute the total portfolio acquisition value shall serve on NAMA a notice in writing, in the form (if any) that the Minister prescribes by regulation, no later than 14 days after the service of the relevant completion notice, specifying the reasons for its opinion.
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(3)If a participating institution serves notice under subsection (2), NAMA shall refer the dispute to the valuation panel for review.
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(4)The service of notice by a participating institution under subsection (2) does not affect the acquisition by NAMA of the bank assets concerned.
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Material, etc., to be made available to valuation panel.
\n
123.— (1) A participating institution that has served a notice under section 122
\n
(2)shall provide to the valuation panel and to NAMA, no later than 28 days after service of the relevant completion notice, all the material on which its dispute is based and any comments it wishes to make regarding the disputed total portfolio acquisition value.
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(2)For the purposes of the valuation panel’s review, NAMA shall make available to the valuation panel and the participating institution concerned, no later than 28 days after service on it of the relevant notice under section 122
\n
(2), the information on which NAMA based its determination of the market value of bank assets in the acquired portfolio concerned and any comments it wishes to make on the dispute.
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(3)NAMA and the participating institution shall each be allowed an opportunity to respond to the other’s material and comments, and shall furnish any such responses, no later than 7 days after that material and those comments have been made available, to the valuation panel and to the participating institution or NAMA, as the case may be.
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(4)The valuation panel may request NAMA or a participating institution to provide additional information in relation to the total portfolio acquisition value of the acquired portfolio concerned. NAMA or a participating institution shall comply with any such request without delay.
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(5)The valuation panel shall take into account the material, comments, responses and any relevant additional information provided by the participating institution and NAMA.
\n
Review by valuation panel.
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124.— (1) The function of the valuation panel is to review whether the aggregate market value of an acquired portfolio is correct. In carrying out that review, the test to be applied by the valuation panel is whether the participating institution concerned has established, as a matter of probability, and taking into account the degree of expertise and specialist knowledge possessed by NAMA, and taking the process as a whole, that the determination of the aggregate market value was vitiated by a serious and significant error or a series of such errors.
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(2)For the avoidance of doubt, for the purposes of a review under subsection (1), the market value of an acquired bank asset is its market value as at the date or event specified by NAMA under section 73 .
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(3)The valuation panel shall advise the Minister of its determination, including of the aggregate market value, and the reasons for it.
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(4)The panel shall give its advice to the Minister in relation to a dispute under section 122 no later than 90 days after receiving the material, comments, responses and any additional information under section 123 , or a longer period specified by the Minister by notice in writing, if he or she considers that to do so is warranted by exceptional circumstances.
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Minister’s determination.
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125.— (1) The Minister shall consider the advice of the valuation panel under section 124 in relation to the acquired portfolio concerned and shall, no later than 28 days after receipt of that advice— (a) confirm the aggregate market value of the acquired portfolio as advised by the valuation panel, or (b) if the valuation panel’s determination of the aggregate market value is greater than the total portfolio acquisition value and he or she considers that the advice of the valuation panel is wrong in a material respect, remit the matter to the valuation panel for reconsideration setting out his or her reasons for doing so.
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(2)Where the Minister remits the matter to the valuation panel under subsection (1) (b), subsections (4) and (5) of section 123 and section 124 apply to the reconsideration with any necessary modifications.
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(3)The Minister shall send copies of his or her determination under subsection (1) to NAMA and to the participating institution concerned.
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(4)Where the Minister confirms that the aggregate market value of the acquired portfolio is greater than the total portfolio acquisition value as determined by NAMA, the Minister shall direct NAMA to compensate the participating institution by, at NAMA’s option, doing either of the following (or both in any combination)— (a) returning to the participating institution bank assets equal in value to the difference between the total portfolio acquisition value determined by NAMA and the aggregate market value determined by the Minister, or (b) giving further consideration to the participating institution (in the form of cash, securities or Government-guaranteed securities or in any other form that NAMA considers appropriate) equal to the difference referred to in paragraph (a).
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(5)The amount of compensation payable to a participating institution under subsection (4) is to be no greater than the amount by which the total portfolio acquisition value determined by NAMA is less than the aggregate market value of the portfolio as confirmed by the Minister.
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(6)The value of a bank asset to be returned under subsection (4) (a) is its acquisition value.
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(7)The payment for, or transfer of, bank assets under subsections (4) to (6) is subject to the laws of the European Communities governing State aid.
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Withdrawal of dispute.
\n
126.— A participating institution may withdraw a notice served under section 122 at any time before the Minister sends a copy of his or her determination to it under section 125 in relation to the review of the total portfolio acquisition value of the acquired portfolio concerned.
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Costs of review of valuations.
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127.— (1) The costs of a review under this Chapter are payable by the participating institution concerned unless the Minister’s determination under section 125 entitles the participating institution to compensation under that section.
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(2)If a participating institution withdraws a notice under section 126 , it is liable for the costs incurred up to the time of the withdrawal unless NAMA agrees otherwise.
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(3)If NAMA and the participating institution concerned cannot reach agreement on costs, the costs of the review shall be determined by a Taxing Master of the Court. For that purpose, the Taxing Master has all the functions for the time being conferred on him or her under any enactment or in any rules of court (with any necessary modifications) in relation to the taxation of costs to be paid by one party to another in proceedings before the Court.
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PART 8
\n
Relationship between NAMA and Participating Institutions Definition (Part 8).
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128.— In this Part “ relevant service” includes management, administration, restructuring and enforcement services in relation to bank assets, including any activity specified as part of a direction by NAMA or an arrangement or agreement to which NAMA or a NAMA group entity is a party.
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Participating institutions to act in utmost good faith.
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129.— (1) A participating institution shall act in utmost good faith at all times in its dealings with the Minister, NAMA, NAMA group entities, their agents, the expert reviewer and the valuation panel pursuant to this Act.
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(2)A participating institution shall inform the Minister, NAMA and any NAMA group entity concerned of any fact or thing that may impede— (a) the achievement of the purposes of this Act, (b) the performance by the Minister of his or her functions, or NAMA of its functions, under this Act, or (c) the fulfilment by the participating institution of its obligations under this Act.
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(3)If a participating institution identifies such an impediment the participating institution shall take all reasonable steps to address the impediment in a manner that best furthers the achievement of the purposes of the Act.
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Breach of statutory requirements.
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130.— A participating institution that fails to comply with any obligation under this Act is liable to NAMA and any NAMA group entity concerned in damages in addition to any other consequence of the failure under this Act.
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Servicing of acquired bank assets by participating institutions.
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131.— (1) For the purposes of this section, in the event of a conflict between— (a) a direction by NAMA, and (b) a term of an arrangement or agreement to which NAMA or a NAMA group entity is a party in relation to the provision of a relevant service, then a direction by NAMA, a term of such an arrangement and a term of such an agreement shall have effect in that order of priority.
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(2)The participating institution from which NAMA or a NAMA group entity has acquired or intends to acquire a bank asset shall, until NAMA or the NAMA group entity directs otherwise, continue to perform relevant services in respect of the bank asset. NAMA or the NAMA group entity shall reimburse the participating institution in respect of the agreed cost of such service.
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(3)NAMA may direct a participating institution to perform a relevant service in connection with a bank asset that NAMA or a NAMA group entity has acquired or intends to acquire from that participating institution or any other participating institution. NAMA or the NAMA group entity shall reimburse the participating institution for the agreed cost of such service.
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(4)A direction under subsection (3)— (a) may require a participating institution to enter into an arrangement or agreement that includes an obligation to provide access for and permit the use by NAMA or a NAMA group entity of facilities, books, records and systems, and (b) may require a participating institution concerned to provide a relevant service for the benefit of a NAMA group entity.
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(5)NAMA may at any time amend, suspend or revoke a direction pursuant to this section.
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(6)A participating institution shall— (a) comply with a direction, and any amendment, suspension or revocation of a direction, pursuant to this section, and (b) ensure that any subsidiary to which such a direction extends also complies with it.
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(7)A participating institution shall ensure that it and each of its subsidiaries— (a) obtains and maintains in effect any authorisation, consent, approval, resolution, licence, exemption, filing, notarisation or registration required (in the State or in any other place) in connection with the provision of the services required by a direction pursuant to this section, and (b) complies with the terms and conditions of, and any requirement of or under any law in relation to, any such authorisation, consent, approval, resolution, licence, exemption, filing, notarisation or registration.
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(8)NAMA may give a debtor, associated debtor, guarantor or surety in relation to a bank asset in which NAMA or a NAMA group entity has acquired an interest, or any other person, notice of any direction given pursuant to this section. However, NAMA and the NAMA group entity are not liable to any debtor, associated debtor, guarantor or surety or any other person for failure to give such a notice.
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(9)Any receivable or other amount received or recovered by a participating institution pursuant to the performance by it of a relevant service shall be held by that participating institution on trust absolutely for and to the order of NAMA or a NAMA group entity, as the case may be, and any amount so held shall be accounted for to NAMA or the NAMA group entity as NAMA from time to time directs. A trust constituted by this subsection— (a) does not form part of the assets of the participating institution whether for the purposes of laws generally applicable to winding up, reorganisations, liquidations or otherwise, (b) is effective for all purposes, and (c) shall not be taken to constitute or create a security.
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Other servicing arrangements.
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132.— (1) Where in relation to an acquired bank asset NAMA or a NAMA group entity has arranged with a service provider other than the participating institution from which the bank asset was acquired for the provision of relevant services in respect of an acquired bank asset, then— (a) the terms of the bank asset shall be taken to require each debtor, associated debtor, guarantor or surety in respect of a bank asset to deal with the service provider concerned, (b) NAMA or the NAMA group entity may give such a debtor, associated debtor, guarantor or surety notice of any arrangement for the provision of a relevant service in respect of that bank asset, and (c) NAMA and the NAMA group entity concerned are not liable to any such debtor, associated debtor, guarantor or surety or any other person for failure to give such a notice.
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(2)Where NAMA or a NAMA group entity has arranged with a service provider for the provision of relevant services in respect of a bank asset that has been acquired or is to be acquired by NAMA or the NAMA group entity, the participating institution from which the bank asset is to be or was acquired shall do all such acts or things that NAMA or the NAMA group entity directs to facilitate the provision by the service provider of those relevant services.
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NAMA may give directions about certain bank assets not acquired.
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133.— (1) Where NAMA or a NAMA group entity has acquired a bank asset from a participating institution NAMA may, for the furtherance of the achievement of its purposes under this Act, direct the participating institution to deal in a specified way with any part of the bank asset not acquired, being a way in which the participating institution may lawfully deal, or has the authority to deal, with the bank asset or part.
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(2)A participating institution shall comply with a direction by NAMA under subsection (1).
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Additional payment on servicing of acquired bank assets.
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134.— (1) With the consent of the Minister, NAMA or a NAMA group entity may agree with a participating institution on an arrangement in relation to the servicing of acquired bank assets.
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(2)Without prejudice to the generality of subsection (1), an arrangement referred to in that subsection may provide for— (a) an adjustment to the total portfolio acquisition value, (b) performance fees, and the reimbursement of costs and expenses, on terms approved by the Minister, or (c) any combination of the things mentioned in paragraphs (a) and (b).
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Participating institutions to indemnify NAMA.
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135.— (1) If NAMA so directs, a participating institution shall indemnify NAMA or a NAMA group entity and each of their officers against any liability or loss (however arising, and regardless of any default on the part of NAMA or a NAMA group entity)— (a) arising from any error, omission or misstatement in any information, explanation, instrument, document, record, book or certificate provided to NAMA or the NAMA group entity by or on behalf of the participating institution, (b) in respect of any claim, award, payment or damages which NAMA or the NAMA group entity becomes liable to pay to any person by reason of the operation of the European Communities (Protection of Employees on Transfer of Undertakings) Regulations 2003 ( S.I. No. 131 of 2003 ) where the liability arises in connection with a cause of action accruing before the relevant acquisition date (or any proportion of the liability or loss is attributable to a period before the relevant acquisition date) including any claim made by or on behalf of such a person that relates to an act or omission of the participating institution in connection with that person’s employment before the acquisition date, and (c) in respect of any redundancy payment, or any other severance payment, paid by NAMA or the NAMA group entity, or that NAMA or the NAMA group entity is ordered to pay, to any person whose employment transfers to NAMA or the NAMA group entity by reason of the operation of those Regulations and whose employment is terminated by NAMA or the NAMA group entity by reason of redundancy.
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(2)Where the Court determines ownership of a bank asset in favour of a third party and as a result NAMA or a NAMA group entity is obliged to transfer the bank asset to the third party or pay damages in lieu, the participating institution shall indemnify NAMA or the NAMA group entity against that liability and all losses suffered by it.
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(3)The Court and any other court or tribunal in which legal proceedings are brought in respect of a matter referred to in subsection (1) shall not make NAMA or a NAMA group entity a party to the proceedings in any capacity where the liability is that of the participating institution.
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(4)If NAMA or a NAMA group entity so directs, and without prejudice to section 105 , a participating institution shall indemnify NAMA or the NAMA group entity and its officers against any liability or loss in respect of a legal or equitable wrong referred to in that section.
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Participating institutions to be agent of subsidiaries, etc.
\n
136.— (1) A participating institution is for all purposes of this Act the agent of each other legal entity in its group with full power to bind each other such entity.
\n
(2)The service of a notice on, or any communication with, a participating institution referred to in subsection (1) is for all purposes of this Act effective as service of the notice on, or communication with, any other entity in the participating institution’s group.
\n
(3)In this section “ group ”, in relation to a participating institution, means— (a) the participating institution, (b) any subsidiary of the participating institution, and (c) any entity of which the participating institution is a subsidiary.
\n
PART 9
\n
Powers of NAMA in Relation to Assets
\n
Chapter 1
\n
Definitions Definitions (Part 9).
\n
137.— In this Part— “ charged land ” means land that is subject to a charge that is part of an acquired bank asset; “ convey ” and “ conveyance ” have the same meanings respectively as in the Land and Conveyancing Law Reform Act 2009 , and “ con veyed ” shall be construed accordingly; “ vesting order ” means an order under section 153 .
\n
Chapter 2
\n
General Powers of NAMA in Relation to Assets Interpretation (Chapter 2).
\n
138.— For the purposes of this Chapter, a reference in this Chapter to NAMA shall be construed, in relation to a bank asset that has been acquired by a NAMA group entity, as a reference to either NAMA or the NAMA group entity unless the contrary intention appears.
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NAMA’s powers to dispose of bank assets.
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139.— NAMA may validly transfer, assign, convey, sell on or otherwise dispose of an acquired bank asset to any person notwithstanding— (a) any restrictions on such a disposal at law or in equity, (b) any contractual requirement, or any requirement under any enactment, for the consent of, for notice to, or for a document from, any person to such a disposal, or (c) any provision of any enactment that would otherwise prohibit or restrict such a disposal.
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Power to discharge prior charge.
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140.— Where an acquired bank asset is secured by a charge (including a charge that is a collateral security), but the charge is a second or subsequent charge, NAMA may redeem or discharge any one (or more) of the prior charges in accordance with its terms.
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Power of entry to protect value or condition of land or buildings.
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141.— (1) Where an acquired bank asset is secured by a charge over land (including a charge that is a collateral security), and any one or more of the following paragraphs applies: (a) the land or any building or structure on it has been abandoned; (b) the land is or has become overgrown; (c) the land or any building or structure on it is or has become infested with vermin; (d) any building or structure on the land has fallen, or there is a serious risk of the building or structure falling, into disrepair; (e) the land or any building or structure on it is at risk from trespassers or vandalism; then NAMA may apply to a judge of the District Court for the time being assigned to the District Court district in which any part of the land concerned is situated, on notice to the owner and any occupier of the land, for an order (in this section referred to as an “ entry and maintenance order ”) authorising it to enter (by force, if the order so provides) upon the land or any building or structure on it for any one or more of the following purposes: (i) to fence or otherwise secure the boundary of the land; (ii) to clear the land of overgrown vegetation; (iii) to clear or treat the land or any building or structure on it in a manner designed to remove vermin; (iv) to repair or make secure any building or structure on the land.
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(2)NAMA shall serve a copy of an application under subsection (1) on every person it knows to have an interest in the relevant land.
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(3)The District Court may make an order in accordance with an application under subsection (1) and if it does so shall specify the period, being not greater than 6 months beginning on the date of the order, for which the order shall have effect.
\n
(4)NAMA shall give each owner and, where the relevant land is occupied, each occupier of the relevant land at least 24 hours’ notice of its intention to enter on the land or any building or structure on it under the authority of an entry and maintenance order.
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(5)An entry and maintenance order does not authorise forcible entry on the land, building or structure concerned unless the order expressly so provides.
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(6)If NAMA enters on land or a building or structure under the authority of an entry and maintenance order, NAMA shall not be taken to be a mortgagee in possession of the land or any building or structure on it.
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(7)Any cost, expense or liability that NAMA incurs pursuant to this section— (a) is a debt due under the bank asset concerned, and (b) is recoverable from the debtor, associated debtor, guarantor or surety concerned, and the repayment of any such cost, expense or liability stands secured against the land.
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Certain instruments by NAMA to be taken to be deeds.
\n
142.— (1) In relation to any land in which NAMA has an interest, whether legal or beneficial, an instrument under seal of NAMA or the common seal of the NAMA group entity concerned that is expressed to convey that interest or any part of that interest in the land concerned to another person shall be taken for all purposes to be a deed of conveyance of the land executed under seal by the owner of the interest in the land concerned.
\n
(2)An instrument referred to in subsection (1) extinguishes the interest of any other chargee or mortgagee in the land concerned other than a charge that has priority to the interest of NAMA concerned and has not been redeemed or discharged under section 140 .
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(3)Where the interest of a chargee or mortgagee in land is extinguished by the operation of this section the interest attaches to the proceeds of the sale concerned.
\n
(4)Where the interests of more than one chargee or mortgagee are extinguished by the operation of this section the interests so extinguished attach to the proceeds of the sale concerned in the same order of priority as those interests had before the extinguishment.
\n
Overreaching for protection of purchasers.
\n
143.— (1) Subject to subsection (2), a conveyance by NAMA (including a conveyance by way of an instrument referred to in section 142 ) to a purchaser of a legal estate or legal interest in land overreaches any equitable interest in the land so that the equitable interest ceases to affect that estate or interest, whether or not the purchaser has notice of the equitable interest.
\n
(2)Subsection (1) does not apply to an equitable interest— (a) to which the conveyance is expressly made subject, (b) that arises by virtue of an equitable mortgage related to the land concerned, (c) that, before the conveyance, is registered against the land in the Registry of Deeds or the Land Registry, or (d) that— (i) in the case of an interest in registered land, is a burden of a kind referred to in section 72(1)(j) of the Registration of Title Act 1964 , or (ii) in the case of an interest in unregistered land, would take effect as such a burden if the land were registered land.
\n
(3)Where an equitable interest is overreached under this section it attaches to the proceeds arising from the conveyance, and effect shall be given to it accordingly.
\n
(4)NAMA shall discharge any obligations under subsection (3) as soon as is practicable.
\n
(5)For the avoidance of doubt, overreaching in accordance with subsections (1) and (2) has effect in relation to land that is or includes a person’s principal private residence.
\n
(6)In this section “ equitable mortgage ” means a mortgage created by— (a) the deposit of documents of title relating to the legal estate or legal interest in the land concerned, or (b) an undertaking by a solicitor to hold the documents of title relating to the legal estate or legal interest in the land concerned in trust for a credit institution and which undertaking, where applicable, has been registered as a charge under section 99 or 111 of the Companies Act 1963 .
\n
Effect of certain assurances of land.
\n
144.— An assurance of charged land or a right or interest in charged land before the acquisition by, or vesting in, NAMA of the relevant charge (whether or not the land was charged at the date of the assurance) shall be taken to have created, for the benefit of the charged land, any easement or profit à prendre over any land retained by the grantor of the assurance that it is reasonable to assume, in the circumstances of the case, was within the contemplation of the parties at the date of the assurance as being included in it, or would have been within that contemplation at that time if they had adverted to the matter.
\n
Certain receivers not obliged to sell property, etc.
\n
145.— (1) A receiver of the rents and profits of property appointed by NAMA pursuant to its powers as a chargee of the property is not obliged to sell the property at any particular time or at all, but is accountable for all profits and other monetary benefits arising directly from possession of the property.
\n
(2)A receiver appointed to the property of a company by NAMA in its capacity as a creditor of the company is not obliged to sell any property of the company at any particular time or at all, but is accountable for all profits and other monetary benefits arising directly from possession of the property of the company.
\n
Powers of NAMA to enforce securities, etc.
\n
146.— The enforcement of a security by NAMA is not subject to the restrictions in the Conveyancing Act 1881 or the Land and Conveyancing Law Reform Act 2009 .
\n
Chapter 3
\n
Statutory Receivers NAMA’s power to appoint statutory receivers.
\n
147.— (1) Where any of the following occurs under the terms of an acquired bank asset: (a) a power of sale becomes exercisable; (b) a power to appoint a receiver becomes exercisable; then NAMA may appoint any person, including an officer of NAMA, as a statutory receiver of the property the subject of the bank asset.
\n
(2)NAMA may remove a statutory receiver and may appoint a new statutory receiver in the place of a statutory receiver removed.
\n
(3)The appointment of a statutory receiver is not subject to the restrictions in the Conveyancing Act 1881 or the Land and Conveyancing Law Reform Act 2009 on the appointment of a receiver.
\n
(4)NAMA may fix the remuneration of a statutory receiver. A maximum rate imposed by law (including that specified in section 24(6) of the Conveyancing Act 1881 or prescribed by regulations under section 108(7) of the Land and Conveyancing Law Reform Act 2009 ) does not apply.
\n
(5)NAMA’s power to appoint a statutory receiver under this Chapter does not affect any powers to appoint a receiver pursuant to any contractual power in any bank asset acquired by NAMA.
\n
(6)The powers of NAMA under this section are exercisable by NAMA (and only by NAMA) in relation to a bank asset held by a NAMA group entity.
\n
Powers of statutory receivers.
\n
148.— (1) A statutory receiver has the powers, rights and obligations that a receiver has under the Companies Acts, and the powers, rights and obligations specified in Schedule 1 .
\n
(2)In Schedule 1 a reference to a secured asset is, in relation to a particular statutory receiver, a reference to land or property that is subject to a charge or other security that is included in the bank asset pursuant to which the statutory receiver was appointed.
\n
(3)Where a charge provides for a receiver appointed under it to have any power in addition to those referred to in subsection (1), a statutory receiver appointed in relation to the property subject to the charge also has that additional power. However, a statutory receiver exercising any such additional power is taken to do so by virtue of his or her appointment under this Chapter and is not bound by any restriction on its exercise specified in the charge.
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(4)A statutory receiver is not subject to the restrictions on the powers of a receiver in the Conveyancing Act 1881 or the Land and Conveyancing Law Reform Act 2009 .
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(5)The enforcement of a security by a statutory receiver is not subject to the restrictions in the Conveyancing Act 1881 or the Land and Conveyancing Law Reform Act 2009 .
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(6)Section 100(2) of the Land and Conveyancing Law Reform Act 2009 does not apply to the exercise of a power of sale by NAMA or a statutory receiver.
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(7)A statutory receiver, in selling property the subject of a charge in favour of NAMA, shall exercise all reasonable care to obtain the best price reasonably obtainable for the property at the time of sale.
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(8)If joint statutory receivers are appointed, each one severally may exercise any power or carry out any function of a statutory receiver.
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Statutory receiver to be agent of chargor, etc.
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149.— (1) A statutory receiver shall be taken to be the agent of the chargor for all purposes.
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(2)The chargor is solely responsible for the remuneration, contracts, engagements, acts, omissions, defaults and losses of a statutory receiver and for liabilities incurred by a statutory receiver. NAMA does not incur any liability (either to the chargor or to any other person) by reason of the appointment of a statutory receiver or for the actions or inactions of a statutory receiver.
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(3)A statutory receiver shall be taken to have been irrevocably appointed as an attorney of the chargor (with full powers of substitution and delegation) and to have the authority in the chargor’s name, on the chargor’s behalf and as the chargor’s act and deed, to— (a) sign, seal, execute, deliver and perfect and do all deeds, instruments, acts and things that the chargor could do or ought to do pursuant to any bank asset that has been acquired by NAMA or a NAMA group entity, (b) generally in the chargor’s name and on the chargor’s behalf exercise all or any of the powers, authorities and discretions— (i) conferred by any enactment, or the common law or pursuant to any agreement forming part of any acquired bank asset, or (ii) that NAMA or the statutory receiver thinks fit for carrying into effect a sale, lease, charge, mortgage or dealing by NAMA, the relevant NAMA group entity concerned or the statutory receiver, and (c) generally to use the chargor’s name in the exercise of any power, authority or discretion conferred on a statutory receiver.
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Appointment of liquidator or examiner to companies whose assets are under control of statutory receiver.
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150.— (1) Notwithstanding any provision of the Companies (Amendment) Act 1990 , the appointment of an examiner to a company whose assets or any part of them are under the control of a statutory receiver does not— (a) displace the statutory receiver or affect his or her powers, authority or agency, (b) prevent the statutory receiver from enforcing any security held by NAMA or a NAMA group entity, or (c) cause the de-crystallisation of any charge created as a floating charge over assets that are under the control of the statutory receiver.
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(2)The appointment of a liquidator to a company whose assets or any part of them are under the control of a statutory receiver does not displace the statutory receiver and does not affect his or her powers, authority and agency.
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Statutory receiver not obliged to sell property, etc.
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151.— A statutory receiver is not obliged to sell a charged property at any particular time or at all, but is accountable for all profits and other monetary benefits arising directly from possession of the property.
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Chapter 4
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Vesting Orders Application to Court.
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152.— (1) NAMA may apply to the Court for a vesting order if— (a) an acquired bank asset includes a charge over land, (b) the chargee’s power of sale has become exercisable, and (c) NAMA forms the view that it is unlikely that the sum secured by the charge can be recovered by a sale within 3 months after the application.
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(2)An application under subsection (1) shall, where there is a charge secured over the land concerned that has priority to the charge referred to in paragraph (a) of that subsection, contain an undertaking by NAMA to discharge that charge in accordance with section 154 .
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(3)An application under subsection (1) shall be supported by an affidavit to which is exhibited evidence— (a) as to the price likely to be realised, within 3 months after the application, by a sale of the land concerned, and (b) of any other interests in the land, including any prior charge referred to in subsection (2).
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(4)NAMA shall serve notice of the application on— (a) the chargor concerned, (b) any chargee (whether prior or subsequent), and (c) any guarantor of the relevant credit facility.
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(5)NAMA shall publish a notice of an application for a vesting order in at least one daily newspaper circulating generally in the State.
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(6)The Court shall set down an application under subsection (1) for preliminary hearing, at which it shall give directions for the taking of accounts in relation to the credit facility concerned. At the preliminary hearing the Court may stay the proceedings if a subsequent chargee wishes to offer to redeem in full the charge held by NAMA or a NAMA group entity.
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(7)At a preliminary hearing under subsection (6), the Court may direct that notice of the application shall be given to any other person.
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(8)The Court may, in any application under this Chapter where it seems to the Court appropriate to do so, direct that evidence be given on affidavit. The Court may deal with the application summarily on consideration of any affidavits presented to it.
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Vesting orders.
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153.— (1) If the Court is satisfied, after considering the accounts and other relevant matters, that— (a) it is unlikely that the sum secured by the charge would be recovered were the land to be sold within 3 months after the application, and (b) there is no reasonable prospect of the chargor redeeming the charge concerned, the Court shall make an order (in this Part referred to as a “ vesting order ”) vesting in NAMA, or a NAMA group entity nominated by NAMA, the interest of the chargor, subject to any undertaking under section 152
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(2), in the land concerned.
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(2)If the Court makes a vesting order, the Court shall also— (a) determine the amount likely to be realised were the land to be sold within 3 months after the application, and (b) make an order for possession of the land concerned in favour of NAMA or the nominated NAMA group entity.
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Prior chargee’s right to payment.
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154.— (1) In this section “ value ” means the amount determined by the court under section 153
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(2)(a).
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(2)Where the Court makes a vesting order in relation to land that is subject to a charge that is either prior to, or ranks equally with, that held by NAMA or the NAMA group entity concerned, the Court shall also order NAMA or the NAMA group entity— (a) if there is only one such chargee, to pay to that chargee whichever is the lesser of the amount secured by its charge and the value, or (b) if there is more than one such chargee, to pay to each such chargee, in the order of their priority, whichever is the lesser of— (i) the amount secured by its charge, and (ii) the value or the remainder of the value, as the case requires.
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Effect of vesting order.
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155.— (1) Notwithstanding any other enactment or rule of law, a vesting order— (a) extinguishes the chargor’s equity of redemption in the land concerned, (b) vests title to the land in NAMA or the NAMA group entity nominated by NAMA for that purpose, (c) extinguishes the interest in the land of any other chargee, and (d) satisfies the requirements of the Land Registration Rules 1972 to 2008.
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(2)The extinguishing of the interest of a chargee by subsection (1) (c) does not extinguish the debt secured by the charge concerned. However, a payment ordered to be made under section 154
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(2)shall be applied in reduction of the debt secured by the relevant charge.
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(3)The debt or debts owed by the chargor to NAMA or the NAMA group entity shall be reduced by the extent, if any, to which the value (within the meaning given by section 154 ) of the charged land exceeds the amount paid under that section.
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(4)NAMA shall cause a vesting order to be sent to the Property Registration Authority under the Registration of Title Act 1964 and the Registration of Deeds and Title Act 2006 . The Property Registration Authority shall cause NAMA or the nominated NAMA group entity, as the case requires, to be registered as owner of the land in accordance with the order.
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(5)For the avoidance of doubt, the making of a vesting order in relation to land does not impose on NAMA or any NAMA group entity any obligation to sell the land within any particular period or at all.
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Title of purchaser not impeachable.
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156.— (1) The title of a purchaser from NAMA or a NAMA group entity of land in relation to which NAMA has obtained a vesting order is not impeachable on the ground of any irregularity in the vesting order or any irregularity or impropriety in the obtaining of it.
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(2)No purchaser from NAMA or a NAMA group entity, and no subsequent purchaser, of land referred to in subsection (1) is either required or entitled to raise any requisition or make any objection on title specific to the vesting order.
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Chapter 5
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Compulsory Acquisition of Land Definitions (Chapter 5).
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157.— (1) In this Chapter— “ acquisition order ” means an order under section 163 ; “ compulsory transfer order ” means an order under section 167 ; “ initial notice ” means a notice referred to in section 160 .
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(2)In this Chapter— (a) a reference to charged land includes land in relation to which a vesting order has been made, and (b) a reference to the nominated NAMA group entity in relation to land is a reference to the NAMA group entity nominated by NAMA under section 163
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(1)in relation to the land.
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NAMA’s powers to acquire land compulsorily.
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158.— (1) NAMA may compulsorily acquire land if in its opinion it is necessary to do so— (a) to enable NAMA to perform the functions referred to in section 10
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(1)(b) and (c), (b) to enable a building constructed on charged land to be used or enjoyed for the purpose for which it was developed, or (c) to enable NAMA or a NAMA group entity to vest in a prudent and experienced purchaser good and marketable title to charged land but only if the land sought to be acquired is only of material benefit to the owner in so far as it affects the use or development of charged land.
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(2)In addition, NAMA may compulsorily acquire land where— (a) the land is owned by a person who is a debtor, associated debtor, guarantor or surety in relation to an acquired bank asset, and that person is in material default of his or her obligations to NAMA or a NAMA group entity and the default has caused, or is likely to cause, NAMA or the NAMA group entity substantial loss, (b) the land was intended to form part of a security in relation to a credit facility provided by a participating institution but was not included in the security through an error or omission, or (c) a debtor, associated debtor, guarantor or surety in relation to an acquired bank asset is using or intends to use his or her ownership of the land to materially impede the disposition, at a fair and reasonable price, of land by NAMA or a NAMA group entity.
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(3)NAMA may compulsorily acquire land only if it has first made a reasonable attempt to acquire the land by agreement.
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Application to Court for acquisition order.
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159.— (1) If NAMA proposes to compulsorily acquire any land, NAMA shall apply to the Court for an order (in this Chapter called an “ acquisition order ”) authorising it to acquire the land.
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(2)The application under subsection (1) shall be accompanied by the maps, plans and books of reference to be deposited in accordance with section 161 .
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Initial notice of acquisition.
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160.— (1) NAMA shall publish a notice (in this Chapter called the “ initial notice ”), in the form (if any) prescribed by the Minister by regulations, of an application under section 159