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34 2009

National Asset Management Agency Act 2009

Chapter 3

Statutory Receivers

NAMA’s power to appoint statutory receivers.

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.

(2) NAMA may remove a statutory receiver and may appoint a new statutory receiver in the place of a statutory receiver removed.

(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.

(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.

(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.

(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.

Powers of statutory receivers.

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 .

(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.

(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.

(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 .

(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 .

(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.

(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.

(8) If joint statutory receivers are appointed, each one severally may exercise any power or carry out any function of a statutory receiver.

Statutory receiver to be agent of chargor, etc.

149 .— (1) A statutory receiver shall be taken to be the agent of the chargor for all purposes.

(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.

(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.

Appointment of liquidator or examiner to companies whose assets are under control of statutory receiver.

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.

(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.

Statutory receiver not obliged to sell property, etc.

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.