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National Asset Management Agency Act 2009
Short title, commencement and collective citation.
1 .— (1) This Act may be cited as the National Asset Management Agency Act 2009.
(2) This Act comes into operation on such day or days as the Minister may appoint by order or orders either generally or with reference to a particular purpose or provision and different days may be so appointed for different purposes or different provisions.
(3) An order under subsection (2) may, in respect of the amendments of Acts set out in Part 15 and Schedule 3 , appoint different days for the amendment of different Acts or different provisions of them.
(4) The Central Bank Acts 1942 to 2001, the Central Bank and Financial Services Authority of Ireland Act 2003 , the Central Bank and Financial Services Authority of Ireland Act 2004 , this subsection, section 232 , and Part 2 of Schedule 3 may be cited together as the Central Bank and Financial Services Authority of Ireland Acts 1942 to 2009.
Purposes of this Act.
2 .— The purposes of this Act are—
(a) to address the serious threat to the economy and the stability of credit institutions in the State generally and the need for the maintenance and stabilisation of the financial system in the State, and
(b) to address the compelling need—
(i) to facilitate the availability of credit in the economy of the State,
(ii) to resolve the problems created by the financial crisis in an expeditious and efficient manner and achieve a recovery in the economy,
(iii) to protect the State’s interest in respect of the guarantees issued by the State pursuant to the Credit Institutions (Financial Support) Act 2008 and to underpin the steps taken by the Government in that regard,
(iv) to protect the interests of taxpayers,
(v) to facilitate restructuring of credit institutions of systemic importance to the economy,
(vi) to remove uncertainty about the valuation and location of certain assets of credit institutions of systemic importance to the economy,
(vii) to restore confidence in the banking sector and to underpin the effect of Government support measures in relation to that sector, and
(viii) to contribute to the social and economic development of the State.
Regulatory functions not affected.
3 .— Nothing in this Act—
(a) prevents the performance by the Governor, the Central Bank or the Regulatory Authority of functions in relation to any credit institution or other person authorised or regulated in the State, or
(b) affects any obligation arising under—
(i) the treaties governing the European Communities, or
(ii) the ESCB Statute.
4 .— (1) In this Act—
“ acquire ”, in relation to a bank asset, shall be construed in accordance with subsection (2);
“ acquired bank asset ” means a bank asset that NAMA or a NAMA group entity has acquired, and in which NAMA or a NAMA group entity retains an interest;
“ acquired portfolio ”, in relation to a participating institution, means all the bank assets specified in a completion notice that have been acquired from the participating institution;
“ acquisition value ”, in relation to a bank asset, means the value determined by NAMA in accordance with the valuation methodology;
“ applicant credit institution ” means a credit institution that is applying or has applied under section 62 to be designated;
“ appointed member ”, in relation to the Board, has the meaning given by section 19 ;
“ associated debtor ” has the meaning given by section 70 ;
“ bank asset ” includes—
(a) a credit facility,
(b) any security relating to a credit facility,
(c) every other right arising directly or indirectly in connection with a credit facility,
(d) every other asset owned by a participating institution, and
(e) an interest in a bank asset referred to in any of paragraphs (a) to (d);
“ Board ” means the Board of NAMA referred to in section 19 ;
“ borrow ” includes the raising of money in any manner (including, in particular, borrowing by the creation and issue of bonds, debentures and debt securities, whether subordinated or not);
“ Central Bank ” means the Central Bank and Financial Services Authority of Ireland;
“ Chairperson ” means the appointed member nominated under section 25 ;
“ charge ” includes—
(a) a mortgage, judgment mortgage, charge, lien, pledge, hypothecation or other security interest or encumbrance or collateral in or over any property,
(b) an assignment by way of security, and
(c) an undertaking or agreement by any person (including a solicitor) to give or create a security interest in property;
(a) in relation to any function of NAMA that the Chief Executive Officer has authorised an officer of NAMA to perform, that officer, and
(b) any officer of NAMA designated by the Board under section 38 (4);
“ company ” means—
(a) a company within the meaning of the Companies Acts, or
(b) a body established under the laws of a state other than the State and corresponding to a body referred to in paragraph (a);
“ completion notice ” means a notice referred to in section 97 ;
“ confidential information ” has the meaning given by section 202 ;
“ Court ” means the High Court;
“ credit facility ” includes every kind of financial accommodation (including a loan facility, a line of credit, a hedging facility, a derivative facility, a bond, a letter of credit, a guarantee facility, an invoice discounting facility, a debt factoring facility, a deferred payment arrangement, a leasing facility, a guarantee, an indemnity and any other financial accommodation giving rise to a payment or repayment obligation) provided to a debtor or associated debtor, whether alone or together with another person or persons and whether as part of a syndicate or otherwise;
“ credit facility documentation ” in relation to a credit facility means the documents, contracts, instruments and agreements containing or evidencing the terms or conditions applicable to, or that otherwise govern or regulate, any aspect of the credit facility or any associated arrangement or transaction entered into in connection with it, including any document issued or entered into by any person that directly or indirectly creates or provides or is expressed to create or provide any security, guarantee or surety or other benefit or collateral in connection with the credit facility or the associated arrangement or transaction;
“ credit institution ” has the same meaning as it has in the Central Bank Act 1997 ;
“ debtor ” means a person who is or was indebted or obligated to a participating institution under or in connection with a credit facility;
“ debt security ” means a note, bill, bond or similar financial instrument;
“ development land ” means land wherever situated (regardless of its zoning or its status under the Planning and Development Acts 2000 to 2007 or any other enactment or applicable law)—
(a) in, on, over or under which works or structures were or are to be constructed, or
(b) where it was intended to make a material change in the use of the land,
that was intended to be sold or otherwise exploited;
“ eligible bank asset ” has the meaning given by section 69 (4);
“ establishment day ” means the day appointed by the Minister under section 8 to be the establishment day;
“ financial year ”, in relation to NAMA, means—
(a) the period commencing on the establishment day and ending on 31 December 2010, and
(b) each subsequent period of 12 months ending on 31 December in any year;
“ functions ” includes powers and duties, and references to the performance of functions include, with respect to powers and duties, references to the exercise of the powers and the carrying out of the duties;
“ Governor ” has the same meaning as in the Central Bank Act 1942 ;
“ guarantor ” means a person who has entered into a guarantee or indemnity in connection with a bank asset;
“ interest ”, in relation to a bank asset, means—
(a) the whole or any part or fraction of the bank asset,
(b) any other estate in, right or title to or interest in, the bank asset (whether legal or beneficial), or
(c) any interest, other than a legal or beneficial interest;
“ land ” has the same meaning as in the Land and Conveyancing Law Reform Act 2009 , but also includes any right or interest in or over land;
“ legal proceedings ” includes any form of binding dispute resolution, and in particular includes arbitration;
“ local authority ” has the same meaning as in the Local Government Act 2001 ;
“ Minister ” means the Minister for Finance;
“ NAMA ” means the National Asset Management Agency;
“ NAMA group entity ” means—
(b) any other body corporate and any trust, partnership, arrangement for the sharing of profits and losses, joint venture, association, syndicate or other arrangement formed, registered, incorporated or established by NAMA for the purpose of performing any of its functions under this Act;
“ non-performing ”, in relation to a bank asset, has the meaning given by subsection (3);
“ NTMA ” means the National Treasury Management Agency;
“ officer of NAMA ” means—
(a) the Chief Executive Officer of NAMA, and
(b) any person assigned to NAMA in accordance with section 42 ;
“ participating institution ” means a credit institution that has been designated by the Minister under section 67 , including any of its subsidiaries that is not excluded under that section;
“ performing asset ” means a bank asset that is not a non-performing asset;
“ quarterly report ” means the report to the Minister under section 55 ;
“ Regulatory Authority ” has the same meaning as in the Central Bank Act 1942 ;
“ security ” includes—
(a) a charge,
(b) a guarantee, indemnity or surety,
(c) a right of set-off,
(d) a debenture,
(e) a bill of exchange,
(f) a promissory note,
(h) any other means of securing—
(i) the payment of a debt, or
(ii) the discharge or performance of an obligation or liability,
(i) any other agreement or arrangement having a similar effect;
“ statutory receiver ” means a receiver appointed by NAMA pursuant to section 147 ;
“ subsidiary ” means a subsidiary (within the meaning given by section 155 of the Companies Act 1963 ) or a subsidiary undertaking (within the meaning given by the European Communities (Companies: Group Accounts) Regulations 1992 (S.I. No. 201 of 1992));
“ surety ” means a person who has provided a security in connection with the repayment by a debtor of a credit facility or in connection with a guarantor’s obligations under a guarantee or indemnity;
“ tax clearance certificate ” has the meaning given by whichever of section 1094 or 1095 of the Taxes Consolidation Act 1997 applies in the particular case;
“ total portfolio acquisition value ”, in relation to an acquired portfolio of a participating institution, means the total of all the acquisition values for the acquired portfolio of the participating institution and any of its subsidiaries that are also participating institutions;
“ valuation methodology ” means the valuation methodology set out in Part 5.
(2) A reference in this Act to acquisition, in relation to a bank asset, includes—
(a) any form of legal or beneficial transfer, including a vesting by operation of law,
(b) a succession by operation of law,
(c) a synthetic transfer,
(d) a risk transfer,
(e) the imposition of a trust,
(f) the creation of a trust interest,
(g) a novation,
(h) an assignment,
(i) an assumption,
(k) sub-contracting, and
(l) any other form of transfer, acquisition, assumption or vesting recognised by the law applicable to the bank asset.
(3) For the purposes of this Act, a bank asset is non-performing if—
(a) it is in the course of being foreclosed or otherwise enforced,
(b) principal or interest or both are in arrears,
(c) interest is being or has been capitalised or otherwise deferred otherwise than in accordance with its terms,
(d) payments are not being, or have not been, met,
(e) its covenants are not being, or have not been, complied with, or
(f) other obligations are not being or have not been complied with.
5 .— (1) The Minister may make regulations to do anything that appears necessary or expedient for bringing this Act into operation.
(2) Where a provision of this Act requires or authorises the Minister to make regulations, such regulations—
(a) may make different provision for different circumstances or cases, classes or types, and
(b) may contain such incidental, consequential or transitional provisions as the Minister considers necessary or expedient for the purposes of this Act.
Expenses of Minister and NTMA.
6 .— (1) The expenses incurred by the Minister in the administration of this Act shall be paid out of money provided by the Oireachtas.
(2) The expenses incurred by the NTMA under this Act shall be paid out of the Central Fund and the growing produce of that Fund.
(3) The expenses incurred by the NTMA in relation to NAMA since 7 April 2009 shall be paid out of the Central Fund and the growing produce of that Fund.
7 .— (1) A person on whom an obligation is imposed by or under section 202 (2) and who intentionally does not comply with the obligation commits an offence.
(2) A person who intentionally, recklessly or through gross negligence provides false or inaccurate information to NAMA commits an offence.
(3) A person commits an offence if the person—
(a) intentionally withholds information from NAMA in breach of an obligation to provide that information imposed by or under this Act, and
(b) does so with the intention of having a material impact upon—
(i) the manner in which NAMA deals with a bank asset,
(ii) a decision by NAMA to refrain from dealing with a bank asset, or
(iii) the value that NAMA determines for a bank asset.
(4) A person who intentionally withholds information from NAMA in breach of an obligation to provide that information imposed under this Act commits an offence if the withholding of the information has a material impact upon—
(a) the manner in which NAMA deals with a bank asset,
(b) a decision by NAMA to refrain from dealing with a bank asset, or
(c) the value which NAMA determines for a bank asset.
(5) A credit institution that commits an offence under this section is liable—
(a) on summary conviction, to a fine not exceeding €5,000, or
(b) on conviction on indictment, to a fine not exceeding €20,000,000.
(6) A person other than a credit institution who commits an offence under this section is liable—
(a) on summary conviction, to a fine not exceeding €5,000 or imprisonment for a term not exceeding 12 months or both, or
(b) on conviction on indictment, to a fine not exceeding €5,000,000 or imprisonment for a term not exceeding 5 years or both.
(7) Where an offence under this section—
(a) has been committed by a body corporate, and
(b) is proved to have been committed with the consent or connivance of, or to be attributable to any wilful neglect on the part of, a person—
(i) who is a director, manager, secretary or other officer of the body corporate, or
(ii) purported to act in any such capacity,
that person as well as the body corporate shall be taken to have committed an offence and is liable to be proceeded against and punished as if he or she were guilty of the first-mentioned offence.
(8) Where the affairs of a body corporate are managed by its members, subsection (7) applies in relation to the acts and defaults of a member in connection with his or her functions of management as if he or she were a director or manager of the body corporate.