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34 2009

National Asset Management Agency Act 2009

PART 2

National Asset Management Agency

Chapter 1

Establishment, Functions and Powers

Establishment day.

8 .— The Minister shall by order appoint a day as the establishment day for the purposes of this Act.

Establishment of NAMA.

9 .— (1) There is established, on the establishment day, a body to be known as the National Asset Management Agency (in this Act referred to as “NAMA”), to perform the functions assigned to it by this Act.

(2) NAMA shall be a body corporate with perpetual succession. NAMA has power to sue and be sued in its corporate name and to acquire, hold and dispose of land or an interest in land, and to acquire, hold and dispose of any other property.

(3) Except where otherwise provided by this Act, NAMA is independent in the performance of its functions under this Act.

Purposes of NAMA.

10 .— (1) NAMA’s purposes shall be to contribute to the achievement of the purposes specified in section 2 by—

(a) the acquisition from participating institutions of such eligible bank assets as is appropriate,

(b) dealing expeditiously with the assets acquired by it, and

(c) protecting or otherwise enhancing the value of those assets, in the interests of the State.

(2) So far as possible, NAMA shall, expeditiously and consistently with the achievement of the purposes specified in subsection (1), obtain the best achievable financial return for the State having regard to—

(a) the cost to the Exchequer of acquiring bank assets and dealing with acquired bank assets,

(b) NAMA’s cost of capital and other costs, and

(c) any other factor which NAMA considers relevant to the achievement of its purposes.

Functions of NAMA.

11 .— (1) In order to achieve its purposes, NAMA shall perform the following functions:

(a) acquire, in accordance with Part 6, such eligible bank assets from participating institutions as it considers necessary or desirable for achieving its purposes;

(b) hold, manage and realise acquired bank assets (including the collection of interest, principal and capital due, the taking or taking over of collateral where necessary and the provision of funds where appropriate);

(c) perform such other functions, related to the management or realisation of acquired bank assets, as the Minister directs pursuant to section 14 ;

(d) take all steps necessary or expedient to protect, enhance or realise the value of acquired bank assets, including—

(i) the disposal of loans or portfolios of loans in the market for the best achievable price,

(ii) the securitisation or refinancing of portfolios of loans, and

(iii) holding, refinancing, realising and disposing of any relevant security.

(2) In the exercise of its functions NAMA shall have regard to the need to avoid undue concentrations or distortions in the market for development land.

(3) The Minister may confer on NAMA, by order, such additional functions connected with the functions for the time being of NAMA as he or she thinks necessary for the achievement of its purposes, subject to such conditions (if any) as may be specified in the order.

(4) An order under this section may contain such incidental, supplemental and consequential provisions as are, in the opinion of the Minister, necessary to give full effect to the order.

(5) An order under subsection (3) shall be laid before each House of the Oireachtas as soon as may be after it is made and, if a resolution annulling the order is passed by either such House within the next 21 days on which that House has sat after the order is laid before it, the order shall be annulled accordingly, but without prejudice to the validity of anything previously done thereunder.

(6) NAMA shall act in a transparent manner in carrying out its functions under this Act to the extent that to do so is consistent with the proper and efficient and effective discharge of those functions.

Powers of NAMA.

12 .— (1) NAMA has all powers necessary or expedient for, or incidental to, the achievement of its purposes and performance of its functions.

(2) Without prejudice to the generality of subsection (1), NAMA may—

(a) provide equity capital and credit facilities on such terms and conditions as NAMA thinks fit,

(b) borrow on any terms and conditions that NAMA thinks fit,

(c) secure the payment of money in any manner, including on the assets of NAMA or on any particular property and rights, present or future, of NAMA,

(d) initiate or participate in any enforcement, restructuring, reorganisation, scheme of arrangement or other compromise,

(e) enter into contract options and other derivative financial instruments (including instruments expressed in currencies other than the currency of the State), whose purposes include—

(i) eliminating or reducing the risk of loss arising from changes in interest rates, currency exchange rates or other factors of a similar nature, or

(ii) eliminating or reducing the costs of raising funds or borrowing or the cost of other transactions carried out in the ordinary course of business,

(f) guarantee, with or without security, the indebtedness and performance of obligations of others (whether or not NAMA receives any consideration for, or direct or indirect advantage from, the giving of the guarantee),

(g) draw, accept and negotiate negotiable instruments,

(h) distribute assets in specie to the Minister,

(i) accept any security, guarantee, indemnity or surety,

(j) enter into contracts of insurance, and insure and self-insure, in relation to any of its activities and property,

(k) enforce any security, guarantee or indemnity,

(l) compromise any claim,

(m) open and maintain bank accounts, including accounts in currencies other than the currency of the State, and carry out necessary banking transactions,

(n) form a NAMA group entity for the purpose of performing any of its functions,

(o) give security for any debt, obligation or liability of a NAMA group entity,

(p) enter into a partnership or joint venture for the purpose of performing any of its functions,

(q) establish a trust or participate in a trust as trustee or beneficiary,

(r) borrow, lend or transfer debt securities, including, (but not limited to) equity and debt instruments,

(s) acquire and dispose of property,

(t) purchase, by agreement, bank assets that are not eligible bank assets where in NAMA’s opinion it is necessary to do so in the interests of the proper performance of its functions,

(u) invest its funds as the Board determines,

(v) vest property in any other person on behalf of, or for the benefit of, NAMA with or without declaring a trust in NAMA’s favour,

(w) sell or dispose of the whole or any part of the property or investments of NAMA, either together or in portions, for such consideration and on such terms as the Board thinks fit,

(x) discharge any debt, obligation or liability,

(y) purchase, hold and sell any licence,

(z) make any planning application in relation to land, and intervene in any planning application made by another person,

(aa) make any application to develop minerals on land,

(ab) undertake development for the purpose of realising the full value of any asset,

(ac) carry on any business that NAMA considers can be conveniently carried on in connection with any of its functions or is calculated directly or indirectly to enhance the value of or facilitate the realisation of or render profitable any of NAMA’s property or rights,

(ad) benefit from any carbon credits acquired by it, and

(ae) do all such other things as the Board considers incidental to, or conducive to the achievement of, any of NAMA’s purposes under this Act.

(3) A reference in another provision of this Act to a power or the exercise of a power conferred by this section does not limit by implication the operation of this section unless the contrary intention is expressed.

(4) NAMA may exercise any of its powers or carry out any of its functions—

(a) within, or anywhere outside, the State,

(b) alone or in conjunction with others, and

(c) by or through an agent, NAMA group entity, contractor, factor, or trustee.

(5) NAMA may use its seal outside the State.

(6) NAMA may exercise any of its powers for the benefit of a NAMA group entity.

(7) Nothing in this Act authorises NAMA, when exercising any of its powers or carrying out any of its functions in any place, to act otherwise than in compliance with the law of that place.

(8) In exercise of its powers under paragraphs (s), (z), (ab) and (ac) of subsection (2), NAMA shall have regard to proper planning and sustainable development as expressed in Government policy and in any relevant regional planning guidelines (within the meaning of the Planning and Development Act 2000 ) and development plans (within the meaning of that Act).

Minister’s powers to issue guidelines to NAMA.

13 .— (1) The Minister may issue guidelines in writing to NAMA for the purposes of this Act and, in so far as any such guidelines relate to issues within the Governor’s remit, the Minister shall consult with the Governor before doing so.

(2) In particular, and without prejudice to the generality of subsection (1), the Minister may issue guidelines in relation to the purposes mentioned in subparagraph (viii) of section 2 (b).

(3) In performing its functions under this Act, NAMA shall have regard to any guidelines issued by the Minister under this section.

(4) As soon as practicable after issuing guidelines, the Minister—

(a) shall cause the guidelines to be published in Iris Oifigiúil, and

(b) shall lay a copy of the guidelines before each House of the Oireachtas.

Minister’s powers of direction.

14 .— (1) The Minister may give a direction in writing to NAMA concerning the achievement of the purposes of this Act.

(2) In particular, and without prejudice to the generality of subsection (1), the Minister may give directions in relation to the purposes mentioned in subparagraph (viii) of section 2 (b).

(3) NAMA shall comply with a direction given by the Minister under this section.

(4) As soon as practicable after giving a direction to NAMA, the Minister—

(a) shall cause the direction to be published in Iris Oifigiúil, and

(b) shall lay a copy of the direction before each House of the Oireachtas.

No shadow or de facto directorship.

15 .— (1) When discharging a function under this Act, none of the persons mentioned in subsection (2) shall be taken, only because of discharging that function, to be a shadow director (within the meaning given by section 27(1) of the Companies Act 1990 ) nor a de facto director nor a person discharging managerial responsibilities of—

(a) any participating institution,

(b) any person that is a debtor, guarantor or surety in relation to an acquired bank asset, or

(c) a person that is an associated debtor of a debtor referred to in paragraph (b).

(2) The persons are—

(a) the Minister,

(b) NAMA,

(c) any appointed member of the Board,

(d) the Chief Executive Officer of NAMA,

(e) an officer of NAMA,

(f) the NTMA,

(g) any employee of the NTMA,

(h) the Chief Executive of the NTMA,

(i) the Governor,

(j) a director of the Central Bank,

(k) an employee of the Central Bank,

(l) a member of the Regulatory Authority,

(m) a NAMA group entity,

(n) a director of a NAMA group entity, and

(o) an officer of, a consultant or adviser to, or a person employed by or under or acting on behalf of, any person, body or authority mentioned in paragraphs (a) to (n).

(3) For the purposes of this section, a de facto director is a person who is determined to have been a director of a company although not formally or validly appointed to the position.

Prevention of corruption.

16 .— (1) To avoid doubt, the provisions of the Prevention of Corruption Acts 1889 to 2001 apply to—

(a) every officer of NAMA,

(b) the Chief Executive Officer,

(c) the other members of the Board, and

(d) every director of a NAMA group entity.

(2) Where in any proceedings against a person who performs functions for or on or behalf of NAMA, or who performs functions connected to the valuation of eligible bank assets, for an offence under the Public Bodies Corrupt Practices Act 1889 or the Prevention of Corruption Act 1906 it is shown that—

(a) any gift, consideration or advantage has been given to or received by the person, and

(b) the person who gave the gift, consideration or advantage or on whose behalf the gift, consideration or advantage was given was—

(i) a person who is a debtor in relation to an eligible bank asset, or

(ii) an associated debtor of such a person,

the gift or consideration or advantage shall be taken, unless the contrary is proved, to have been given and received corruptly as an inducement to or reward for the person performing or omitting to perform any of those functions.

Liability of NAMA, etc.

17 .— Without prejudice to any defence otherwise available to, or immunity otherwise enjoyed at law by NAMA, a NAMA group entity or a person specified in section 34 (1), no action for damages shall lie against NAMA, a NAMA group entity or such a person in respect of or arising out of the performance or non-performance in good faith of any of the functions provided for in Parts 4, 5 and 6, or in respect of any decision made in good faith to perform or not to perform any of the functions provided for in Parts 8 and 9.