National Asset Management Agency Act 2009

PART 1 Preliminary

1. 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.

2. 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.

3. Regulatory functions not affected.

3.— Nothing in this Act—

(a) prevents the performance by F1[the Governor or the Central Bank] 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. Interpretation.

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 schedule” has the meaning given by sections 87and 89;

“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, F2[…]

F3[(dd) an asset owned by the Central Bank, and]

(e) an interest in a bank asset referred to in any of F4[paragraphs (a) to (dd)];

“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 F5[…] 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;

“Chief Executive Officer” means the Chief Executive Officer appointed under section 37or 40 (3), and includes—

(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;

“designated bank asset” means a bank asset specified in an acquisition schedule that has been served on a participating institution in accordance with section 87 or 89;

“development land” means land wherever situated (regardless of its zoning or its status under the F6[Planning and Development Act 2024] or any other enactment or applicable law)—

“eligible bank asset” has the meaning given by section 69 (4);

“ESCB Statute” has the meaning given by section 2 of the Central Bank Act 1942;

“establishment day” means the day appointed by the Minister under section 8 to be the establishment day;

“European Communities” has the meaning given by section 1 of the European Communities Act 1972;

“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—

(a) a subsidiary of NAMA (within the meaning given by section 155 of the Companies Act 1963), or

(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;

F7["officer of NAMA" means—

(a) the Chief Executive Officer of NAMA,

(b) any person assigned to NAMA in accordance withsection 42, and

(c) any person employed by NAMA undersection 16(2) of the Irish Bank Resolution Corporation Act 2013;]

“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;

F8[…]

“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,

(g) collateral,

(h) any other means of securing—

(i) the payment of a debt, or

(ii) the discharge or performance of an obligation or liability,

and

(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;

“the treaties governing the European Communities” has the meaning given by section 1 of the European Communities Act 1972;

“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,

(j) sub-participation,

(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. Regulations.

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.

6. 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. Offences.

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.

PART 2 National Asset Management Agency

Chapter 1

8. Establishment day.

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

9. 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.

10. Purposes of NAMA.

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

(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.

11. 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.

F9[(1A) NAMA has such other functions as are conferred on it by or under the Irish Bank Resolution Corporation Act 2013.]

(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.

12. 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,

F10[(h) distribute assetsin specieto the Minister, or, in the case of a direction to do so undersection 14, to the Land Development Agency,]

(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 F11[regional spatial and economic strategyF12[(within the meaning of thePlanning and Development Act 2024)]] and development plans (within the meaning of that Act).

13. 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 ofsubsection (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.

14. 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 ofsubsection (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.

15. 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 F13[member of the Commission] of the Central Bank,

(k) an employee of the Central Bank,

(l) F14[…]

(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 factodirector is a person who is determined to have been a director of a company although not formally or validly appointed to the position.

16. 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.

17. 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.

Chapter 2

18. Functions of Board.

18.— (1) There shall be a Board of NAMA, whose functions are as follows:

(a) to ensure that the functions of NAMA are performed effectively and efficiently;

(b) to set the strategic objectives and targets of NAMA;

(c) to ensure that appropriate systems and procedures are in place to achieve NAMA’s strategic objectives and targets and to take all reasonable steps available to it to achieve those targets and objectives.

(2) For the purposes of the Board exercising its functions under subsection (1), and without prejudice to any of its powers at law, the Board may provide for the performance of any such function by an officer of NAMA.

(3) In performing its functions, the Board shall act in utmost good faith with care, skill and diligence.

19. Membership of Board.

19.— (1) The Board consists of—

(a) 7 members appointed by the Minister (in this Act referred to as “appointed members”), and

(b) the Chief Executive Officer of NAMA and the Chief Executive of the NTMA as ex-officio members.

(2) Subject to subsections (3), (4) and (6), the Minister shall appoint a person to be an appointed member only if, in the opinion of the Minister, the person has expertise and experience at a senior level in one or more of the following:

(a) finance and economics;

(b) law;

(c) social housing and community development;

(d) accountancy and auditing;

(e) public administration;

(f) credit management;

(g) project finance;

(h) construction and land development;

(i) property management and sale;

(j) valuation;

(k) urban and land planning;

(l) banking and investment;

(m) insolvency and restructuring;

(n) risk management.

(3) A person who is for the time being entitled under the Standing Orders of either House of the Oireachtas to sit in that House or who is a member of the European Parliament is disqualified from appointment as an appointed member of the Board while he or she is so entitled or is such a member.

(4) A person who is a member of a local authority is disqualified from appointment as a member.

(5) A member of the Board shall, not later than 3 months after appointment, furnish to the Minister a tax clearance certificate.

(6) The Minister shall, so far as is practicable and having regard to relevant experience, ensure an equitable balance between men and women in the composition of the Board.

20. Term of office of appointed members.

20.— (1) Subject to subsection (2), the term of office of an appointed member is 5 years.

(2) Of the first appointed members, the Minister shall appoint 2 members for a term of office of 3 years and 3 members for a term of office of 4 years.

(3) Subject to subsection (4), an appointed member whose period of office expires by the passage of time is eligible for re-appointment as such a member.

(4) An appointed member is not eligible to serve for more than 2 consecutive terms of office.

21. Remuneration, etc., of appointed members.

21.— (1) An appointed member shall be paid such remuneration and such allowances in reimbursement of expenses incurred as the Minister from time to time determines.

(2) An appointed member holds office on such terms (other than the payment of remuneration and allowances for expenses incurred) as the Minister determines at the time of the member’s appointment.

22. How appointed members cease to hold office.

22.— (1) An appointed member ceases to be such a member if he or she—

(a) is adjudicated bankrupt,

(b) makes a composition or arrangement with creditors,

(c) is convicted of an indictable offence in relation to a company,

(d) does not furnish a tax clearance certificate as required by section 19 (5),

(e) is convicted of an offence involving fraud or dishonesty, or

(f) is disqualified or restricted from being a director of a company.

(2) If an appointed member—

(a) is nominated as a member of Seanad Éireann,

(b) is elected as a member of either House of the Oireachtas or as a member of the European Parliament,

(c) is regarded, pursuant to Part XIII of the Second Schedule to the European Parliament Elections Act 1997, as having been elected to the European Parliament to fill a vacancy, or

(d) becomes a member of a local authority,

he or she thereupon ceases to be an appointed member.

(3) An appointed member may at any time resign his or her membership by letter addressed to the Minister. The resignation takes effect on the date specified in the letter or when the Minister receives the letter, whichever is the later.

(4) The Minister may remove an appointed member on reasonable notice in writing at any time from membership of the Board (or, if the appointed member concerned is the Chairperson, either from the Board or only from being Chairperson) if—

(a) in the Minister’s opinion, the member—

(i) is not adequately performing his or her functions, whether because of incapacity through illness or injury or otherwise,

(ii) has contravened section 30 or 31, or

(iii) has committed misconduct specified in the written notice,

(b) in the Minister’s opinion, a material conflict of interest has arisen in relation to the member, or

(c) his or her removal appears to the Minister to be necessary or expedient for the effective performance by NAMA of its functions.

(5) An appointed member of the Board, upon the expiry or other termination of his or her term of office, shall also be taken to have resigned from any directorship of a NAMA group entity.

23. How ex-officio members cease to be Board members.

23.— (1) An ex-officio member of the Board ceases to be a member if he or she—

(a) ceases to be the Chief Executive Officer of NAMA or the Chief Executive of the NTMA, as the case may be,

(b) is adjudicated bankrupt,

(c) makes a composition or arrangement with creditors,

(d) is convicted of an indictable offence in relation to a company,

(e) is convicted of an offence involving fraud or dishonesty, or

(f) is disqualified or restricted from being a director of a company.

(2) If an ex-officio member of the Board—

(a) is nominated as a member of Seanad Éireann,

(b) is elected as a member of either House of the Oireachtas or as a member of the European Parliament,

(c) is regarded, pursuant to Part XIII of the Second Schedule to the European Parliament Elections Act 1997, as having been elected to the European Parliament to fill a vacancy, or

(d) becomes a member of a local authority,

he or she thereupon ceases to be an ex-officio member.

(3) An ex-officio member of the Board, upon the expiry or other termination of his or her term of office, shall also be taken to have resigned from any directorship of a NAMA group entity.

24. Filling of casual vacancies, etc.

24.— (1) If an appointed member dies, resigns, retires, becomes disqualified or is removed from office, the Minister may appoint a person to fill the vacancy so occasioned. The person so appointed shall be appointed in the same manner as, and for the remainder of the term of office of, the member whose death, resignation, retirement, disqualification or removal occasioned the vacancy.

(2) In the circumstances mentioned in subsection (1), and without prejudicing the Minister’s powers under that subsection, the Minister may appoint a person to act temporarily as a member of the Board. The duration of such an appointment, and the terms under which the person appointed holds office, shall be as the Minister determines at the time of appointment.

(3) Subject to this Act, NAMA may act notwithstanding one or more vacancies among the members of the Board.

25. Nomination and remuneration, etc., of Chairperson.

25.— (1) The Minister shall nominate one of the appointed members as Chairperson.

(2) The Chairperson holds that office for 5 years or until the end (whether by the passage of time, resignation or removal under section 22) of his or her term of office as an appointed member, whichever is the earlier.

(3) A person may hold the office of Chairperson for 2 terms only, whether or not the terms are consecutive.

(4) The Chairperson may at any time resign that office (with or without also resigning as an appointed member) by letter addressed to the Minister. The resignation takes effect on the date specified in the letter or when the Minister receives the letter, whichever is the later.

(5) If the Chairperson dies, resigns, retires, becomes disqualified or is removed from office, the Minister shall nominate another person to fill the vacancy so occasioned. The person nominated may be an appointed member.

(6) In the circumstances mentioned in subsection (5), and without prejudicing the Minister’s powers under that subsection, the Minister may appoint a person to act temporarily as Chairperson. The duration of such an appointment, and the terms under which the person appointed holds that office, shall be as the Minister determines at the time of appointment.

(7) An appointment pursuant tosubsection (5) may be for all or a specified part of the term of office of the person replaced.

(8) If the Minister proposes to nominate a person under subsection (5) who is not already an appointed member, the Minister may—

(a) appoint that person to the Board as an appointed member, even though doing so will cause the number of appointed members specified in section 19 to be exceeded, and

(b) nominate the person as Chairperson.

(9) The Minister may determine that the Chairperson shall be paid additional remuneration or allowances on account of his or her responsibilities as Chairperson.

26. Meetings of Board.

26.— (1) The Board shall hold such meetings as are necessary for the performance of its functions.

(2) The Board shall hold its first meeting on the establishment day or as soon as is practicable after that day.

(3) The quorum for a meeting of the Board is 5, or, if there is a vacancy in the Board, 4 while the vacancy exists.

(4) A meeting held while there is a vacancy in the Board is validly held notwithstanding the vacancy, so long as there is a quorum.

(5) At a meeting of the Board—

(a) if the Chairperson is present, he or she shall preside over the meeting, and

(b) if the Chairperson is not present or the office of Chairperson is vacant, the appointed members present shall choose one of themselves to preside over the meeting.

(6) At a meeting of the Board each member present has a vote and any question on which a vote is required in order to establish the Board’s view on the matter shall be determined by a majority of votes of members present and voting on the question. In the case of an equal division of votes, the Chairperson or other member presiding over the meeting has an additional casting vote.

(7) Subject to this Act, the Board shall regulate, by standing orders or otherwise, its procedure and business.

27. Electronic meetings.

27.— (1) In addition to meeting with all participants physically present, the Board may hold or continue a meeting by the use of any means of communication by which all the participants can hear and be heard at the same time. Such a meeting is referred to in this section as an “electronic meeting”.

(2) A member of the Board who participates in an electronic meeting is taken for all purposes to have been present at the meeting.

(3) The Board may establish procedures for electronic meetings (including recording the minutes of such meetings) in its standing orders.

28. Resolutions by circulation of copies.

28.— (1) The Board may pass a resolution without a meeting being held if—

(a) all of the members entitled to vote on the resolution are given notice of the resolution, and

(b) a majority of them sign a document containing a statement that they are in favour of the resolution in the document.

(2) A resolution referred to in subsection (1) may be passed by the members or some of them signing separate copies of the document referred to in paragraph (1) (b) if the date and time of each signature is indicated on the document.

(3) A resolution passed in accordance with this section is taken to have been passed at the time when a majority of members entitled to vote on the resolution have signed, or have signed copies of, the document referred to in paragraph (1) (b).

29. Seal of NAMA, etc.

29.— (1) The Board shall, as soon as possible after the establishment day, provide NAMA with a seal.

(2) The seal of NAMA shall be authenticated by the signature of any 2 members of the Board or in any other way that the Board resolves.

(3) Judicial notice shall be taken of the seal of NAMA. A document purporting to be an instrument made by, and sealed with the seal of, NAMA, and purporting to be authenticated in accordance with subsection (2), shall be received in evidence and be taken to be such an instrument unless the contrary is shown.

(4) The Board may, as the Board thinks fit, delegate the authority to enter into a contract or instrument that, if entered into by an individual, would not be required to be under seal.

30. Disclosure of interests.

30.— (1) If a member of the Board has a pecuniary interest or other beneficial interest in, and material to, a matter that falls to be considered by the Board—

(a) he or she shall disclose to the other members of the Board the nature of his or her interest in advance of any consideration of the matter,

(b) he or she shall not influence nor seek to influence a decision to be made in relation to the matter,

(c) he or she shall take no part in any consideration of the matter,

(d) he or she shall absent himself or herself from the meeting or that part of the meeting during which the matter is discussed, and

(e) he or she shall not vote or otherwise act on a decision relating to the matter.

(2) If a member discloses an interest pursuant to subsection (1), the disclosure shall be recorded in the minutes of the meeting of the Board or otherwise duly recorded. The Board may, at its discretion, refer to the disclosure in NAMA’s quarterly report.

(3) If a member of the Board fails to disclose an interest pursuant to subsection (1), and with that member present the Board makes a decision on the matter, a contract entered into by NAMA in consequence of the decision is not, by reason only of that fact, invalid or unenforceable.

(4) If a member of the Board fails to disclose an interest pursuant to subsection (1), and with that member present the Board makes a decision on the matter, the decision is not invalid if the Board subsequently reconsiders the matter without that member present and confirms the decision. If the Board does so, the decision shall be taken to have always been valid.

(5) If at a meeting of the Board a question arises as to whether or not a course of conduct, if pursued by a Board member, would constitute a failure by him or her to comply with subsection (1), the Chairperson or member of the Board presiding over the meeting may determine the question. The Chairperson’s or presiding member’s decision is final. If such a question arises in relation to the Chairperson or person presiding over a meeting, he or she shall retire from the chair and the question shall be determined by majority vote of the remaining Board members. In either case particulars of the determination shall be recorded in the minutes of the meeting.

(6) If the Minister is satisfied that a member of the Board has contravened subsection (1), the Minister may, if he or she thinks fit, remove that member from office.

(7) The Board shall issue guidelines as to what constitutes an interest for the purposes of this section having regard to the definitions in the Ethics in Public Office Act 1995.

31. Register of Board members’ interests.

31.— (1) As soon as practicable after the establishment day, NAMA shall prepare a Register of Members’ Interests.

(2) By 31 January in each year—

(a) each member of the Board, each officer of NAMA who has been directed by the Board to do so and each director of each NAMA group entity shall give notice to NAMA of all of his or her registrable interests (within the meaning given by the Ethics in Public Office Act 1995), and

(b) NAMA shall ensure that each registrable interest so notified is entered in the Register of Members’ Interests.

(3) Part VI of the Ethics In Public Office Act 1995 applies in relation to a contravention of subsection (2) as that Part does in relation to a contravention of Part IV of that Act.

32. Audit committee, credit committee, finance committee and risk-management committee.

32.— (1) As soon as practicable after the establishment day, the Board shall establish 4 committees, and shall (subject to subsection (2), in the case of the audit committee) appoint members to them, as follows:

(a) an audit committee;

(b) a credit committee;

(c) a finance committee;

(d) a risk-management committee.

(2) There shall be 6 members of the audit committee. The Minister shall appoint 2 members from among qualified persons who are not members of the Board, and shall determine the terms of their service on the Committee, including removal and resignation. The Board shall appoint the other 4 members from among the members of the Board.

(3) The Board shall not appoint the Chairperson or an ex-officio member of the Board as a member of the audit committee.

(4) The members of the credit committee, the finance committee and the risk-management committee shall be members of the Board or officers of NAMA. At least 2 members of each of those committees shall be members of the Board.

(5) A member of a committee (other than a member of the audit committee appointed by the Minister) established under subsection (1) serves on the committee concerned on such terms (including term of office, removal and resignation) as the Board determines.

(6) The Board shall determine the terms of reference and procedures of each committee established under subsection (1).

(7) With the approval of the Minister, NAMA, from its own resources, may remunerate a member of the audit committee who is not a member of the Board.

(8) The Board may dissolve a committee established under subsection (1). If the Board dissolves such a committee, the Board shall re-establish that committee as soon as practicable.

(9) Sections 27 and 28 apply in relation to a committee established under subsection (1).

(10) Section 30 applies in relation to a member of a committee established under subsection (1) who is not a member of the Board. For the purposes of that application—

(a) references to members of the Board shall be construed as references to members of the committee,

(b) references to the Board shall be construed as references to the committee, and

(c) guidelines made for the purposes of section 30 (7) apply with the modifications set out in paragraphs (a) and (b).

33. Other committees.

33.— (1) The Board may establish—

(a) such advisory committees as it considers necessary or desirable to advise it in the performance of its functions, and

(b) such other committees and sub-committees as it considers necessary or expedient,

and may appoint members to such a committee as it considers necessary.

(2) A committee established under subsection (1) may include persons who are not members of the Board, but a majority of the members of such a committee shall be members of the Board.

(3) A member of a committee established under subsection (1) shall serve on the committee on such terms (including term of office, removal and resignation) as the Board determines.

(4) The Board shall determine the terms of reference and procedures of a committee established under subsection (1).

(5) With the approval of the Minister, NAMA, from its own resources, may remunerate a member of a committee established under subsection (1) who is not a member of the Board.

(6) Sections 27 and 28 apply in relation to a committee established under subsection (1).

(7) Section 30 applies in relation to a member of a committee established under subsection (1) who is not a member of the Board. For the purposes of that application—

(a) references to members of the Board are to be construed as references to members of the committee,

(b) references to the Board are to be construed as references to the committee, and

(c) guidelines made for the purposes of section 30 (7) apply with the modifications set out in paragraphs (a) and (b).

34. Indemnification of members of Board and officers of NAMA, etc.

34.— (1) This section applies to the following persons:

(a) each member of the Board;

(b) each member of a committee established under section 32or 33;

(c) each officer of NAMA;

(d) a director of a NAMA group entity;

(e) a member of the staff of the NTMA.

(2) Where the Board is satisfied that a person to whom this section applies has discharged the functions appropriate to that person in relation to the functions of NAMA in good faith, NAMA shall indemnify that person against all actions or claims however they arise in relation to the discharge by that person of those functions.

(3) The Board shall not be prevented from revoking an indemnity granted to, or recovering any payment made pursuant to such an indemnity from, a person who is subsequently found to have carried out his or her duties in bad faith.

35. Codes of practice.

35.— (1) Within 3 months after the establishment day, NAMA shall prepare codes of practice for approval by the Minister in relation to the following matters:

(a) the conduct of officers of NAMA;

(b) servicing standards for acquired bank assets;

(c) risk management, including with regard to debtors;

(d) disposal of bank assets;

(e) the manner in which NAMA is to take account of the commercial interests of credit institutions that are not participating institutions;

(f) any other matter in relation to which the Minister directs NAMA to prepare a code of practice.

(2) A code of practice referred to in subsection (1) (a) shall set out—

(a) what constitutes misconduct in office for the purposes of section 43,

(b) the procedures for the investigation of an officer of NAMA suspected of misconduct, and

(c) the procedures for the suspension of such an officer from his or her duties for misconduct in office.

(3) After a code of practice is approved by the Minister, every person to whom it applies shall have regard to and be guided by that code in the performance of his or her functions and in relation to any other matters to which the code relates.

(4) If in the opinion of the Minister adequate provision has not been made in a code of practice drawn up by NAMA under subsection (1), the Minister may—

(a) direct NAMA to modify the code of practice, or

(b) substitute his or her own code of practice.

(5) NAMA shall publish a code of practice, issued under this section as approved by the Minister, on the NAMA website.

36. Application of certain provisions of this Chapter to directors of NAMA group entities.

36.— (1) With the modifications set out in subsection (2), the following provisions of this Chapter apply in relation to directors of NAMA group entities:

(a) subsections (1),(2),(3) and (4) of section 22;

(b) section 30.

(2) The modifications referred to insubsection (1)are—

(a) references to an appointed member shall be read as references to the director concerned,

(b) references to the Board of NAMA, or to members of that Board, shall be read as references to the directors of the NAMA group entity concerned, and

(c) the reference to NAMA in section 30 (3) shall be read as a reference to the NAMA group entity concerned.

Chapter 3

37. Appointment of first Chief Executive Officer.

37.— (1) The Minister, after consultation with the Chief Executive of the NTMA and the Chairperson of NAMA, shall appoint as the first Chief Executive Officer of NAMA a person who is, in the Minister’s opinion, suitably qualified.

(2) A person shall not be appointed under subsection (1) if he or she is disqualified from being appointed to the Board.

(3) Upon appointment as Chief Executive Officer, the person so appointed shall be appointed as a member of the staff of the NTMA if he or she is not already such a member. The term of office, remuneration, allowances and other terms and conditions (including the provision of superannuation benefits) of appointment of the Chief Executive Officer shall be determined in accordance with sections 7(2) and 8 of the National Treasury Management Agency Act 1990.

(4) The Chief Executive Officer is not a civil servant within the meaning of the Civil Service Regulation Act 1956.

38. Chief Executive Officer’s functions.

38.— (1) The Chief Executive Officer shall manage and control generally the administration and business of NAMA and the staff assigned to it, and shall perform any other functions conferred on him or her by or under this Act or by the Board.

(2) The Chief Executive Officer is responsible to the Board for the performance of his or her functions and the implementation of NAMA’s strategic targets and objectives.

(3) Such of the functions of the Chief Executive Officer as he or she may from time to time specify, with the consent of the Board, may be performed by an officer or officers of NAMA authorised by the Chief Executive Officer for that purpose. A reference in a provision of this Act to the Chief Executive Officer includes any officer so authorised.

(4) The functions of the Chief Executive Officer may be performed during his or her absence or when the position of Chief Executive Officer is vacant by an officer of NAMA designated for that purpose by the Board. A reference in a provision of this Act to the Chief Executive Officer includes any officer so designated.

(5) The Chief Executive Officer is the person who is accountable for the purposes of the Comptroller and Auditor General (Amendment) Act 1993.

39. Resignation of Chief Executive Officer.

39.— The Chief Executive Officer may resign his or her office by letter addressed to the Minister. The resignation takes effect on the date specified in the letter or when the Minister receives the letter, whichever is the later.

40. Removal of Chief Executive Officer from office.

40.— (1) The Chief Executive Officer ceases to hold that office if he or she—

(a) is adjudicated bankrupt,

(b) makes a composition or arrangement with creditors,

(c) is convicted of an indictable offence in relation to a company,

(d) is convicted of an offence involving fraud or dishonesty, or

(e) is disqualified or restricted from being a director of a company.

(2) The Minister may remove the Chief Executive Officer from office by reasonable notice in writing if—

(a) in the Minister’s opinion, the Chief Executive Officer—

(i) is not adequately performing his or her functions, whether because of incapacity through illness or injury or otherwise,

(ii) has contravened section 30 or 31, or

(iii) has committed misconduct specified in the written notice,

(b) in the Minister’s opinion, a material conflict of interest has arisen in relation to the Chief Executive Officer, or

(c) his or her removal appears to the Minister to be necessary or expedient for the effective performance by NAMA of its functions.

(3) If the Chief Executive Officer dies, resigns, retires, becomes disqualified or is removed from office, the Board, after consulting the Minister and the Chief Executive of the NTMA, shall appoint another person to fill the vacancy so occasioned.

(4) An appointment pursuant to subsection (3) may be for all or a specified part of the term of office of the person replaced.

(5) In the circumstances mentioned in subsection (3), and without prejudicing the Board’s powers under that subsection, the Board may appoint a person to perform the duties of the Chief Executive Officer temporarily. The duration of such an appointment, and the terms under which the person appointed holds that office, shall be as the Board determines at the time of appointment.

Chapter 4

41. NTMA to provide resources to NAMA.

41.— (1) The NTMA shall provide NAMA with such business and support services and systems as the Board determines, acting upon the recommendation of the Chief Executive Officer of NAMA and after consultation with the Chief Executive of the NTMA, to be necessary or expedient for NAMA to perform its functions under this Act.

(2) Where the NTMA is unable for any reason to provide business and support services or systems referred to in subsection (1), the NTMA, as agent of NAMA, may procure such services or systems as are necessary.

42. NTMA to provide staff to NAMA.

42.— (1) The NTMA shall assign so many of its staff to NAMA as the Board determines, upon the recommendation of the Chief Executive Officer of NAMA, after consultation with the Chief Executive of the NTMA, to be necessary for the performance by NAMA of its functions under this Act.

(2) Before employing or otherwise engaging a person to be assigned to NAMA under subsection (1), the NTMA shall ascertain to its satisfaction that the person—

(a) is of good character and has not been convicted of any offence likely to render him or her unfit or unsuitable to perform the duties that the person is required to undertake or is likely to be required to undertake,

(b) has not been disqualified or restricted from acting as a director under the Companies Acts, and

(c) has no material conflict of interest, whether actual or potential.

(3) Before the NTMA assigns a member of its staff to NAMA under subsection (1), the NTMA shall ensure that he or she provides a statement of his or her interests, assets and liabilities to the Chief Executive Officer of NAMA and the Chief Executive of the NTMA in a form that the NTMA specifies.

(4) NAMA shall reimburse the NTMA for the costs incurred by the NTMA in consequence of its assigning staff to NAMA under this section.

43. Suspension of officers of NAMA.

43.— The Chief Executive Officer of NAMA, after consultation with the Chief Executive of the NTMA, may suspend, on such terms and conditions as he or she thinks fit, an officer of NAMA from his or her duties as such an officer if—

(a) the officer has been convicted at any time of—

(i) an offence of theft, fraud or dishonesty, or

(ii) any other offence that the Chief Executive Officer considers likely to render him or her unfit or unsuitable to perform his or her duties,

(b) the officer is restricted or disqualified from acting as a director under the Companies Acts,

(c) the officer—

(i) is not adequately performing his or her functions, whether because of incapacity through illness or injury or otherwise, or

(ii) has committed misconduct in relation to his or her duties as an officer of NAMA,

(d) in the Chief Executive Officer’s opinion, a material conflict of interest in relation to his or her duties as an officer of NAMA has arisen in relation to the officer, or

(e) the officer’s suspension appears to the Chief Executive Officer to be necessary or expedient for the effective performance by NAMA of its functions.

Chapter 5

44. Power to engage service providers, etc.

44.— (1) Without prejudice to the powers of NAMA under section 12 or otherwise, NAMA may engage the services of any expert adviser or other service provider where NAMA considers it necessary or expedient to do so in connection with the performance of its functions.

(2) Without prejudice to the generality of subsection (1), NAMA may engage a person (including a credit institution that is not a participating institution) to manage or dispose of acquired bank assets as it thinks fit on such terms and conditions as it thinks fit.

(3) The services that NAMA may engage an expert adviser or service provider to provide include relevant services (within the meaning given by section 128).

(4) In performing its functions under this Act, in particular in relation to the development of land, NAMA may take account of the resources available to it from the National Building Agency or any other appropriate State agency.

45. Professional standards and audit.

45.— In contracts for the provision of services to NAMA by expert advisers and service providers, NAMA shall seek to ensure that each expert adviser or service provider—

(a) operates to the highest standards of honesty and fairness and with due skill, care, prudence and diligence in conducting its business activities under the mandate given to it so as to promote the best interests of NAMA,

(b) effectively employs the resources and procedures that are necessary for the proper performance of such business activities,

(c) makes every effort to avoid or manage conflicts of interest and to declare any such conflict (actual or potential) to NAMA,

(d) complies with any regulatory regime to which it is subject,

(e) permits NAMA to engage auditors to carry out an audit of the books, accounts and other financial statements of the expert adviser or service provider so far as they relate to the services performed for NAMA, and

(f) is obliged to co-operate fully in such audits.

PART 3 Finance, Planning, Accountability and Reporting

46. Financing arrangements, expenses and advances from Central Fund.

46.— (1) The expenses incurred by NAMA or a NAMA group entity in the performance of NAMA’s functions under this Act shall be charged on and paid out of funds at the disposal of NAMA and the NAMA group entities.

(2) The Minister may advance to NAMA or a NAMA group entity such sums of money as are necessary for the performance of its functions from the Central Fund or the growing produce of that Fund on such terms and conditions (including as to repayment of principal and interest) as he or she determines.

(3) Subsection (2) does not affect NAMA’s borrowing powers.

47. Financing arrangements — Minister may issue debt securities.

47.— (1) The Minister may, whenever and so often as he or she thinks fit, create and issue such debt securities that he or she specifies by order, charged on the Central Fund or the growing produce of that Fund and ranking pari passu with debt securities issued by the Minister under section 54 of the Finance Act 1970—

(a) bearing interest at such rate as he or she thinks fit, or no interest,

(b) for such cash or non-cash consideration or deferred consideration as he or she thinks fit, and

(c) subject to such terms and conditions as to repayment, repurchase, cancellation and redemption or any other matter as he or she thinks fit.

(2) When the Minister issues securities under this section he or she shall specify which of the following is the purpose of the issue:

(a) the financing of the general operations of NAMA and NAMA group entities;

(b) the providing of consideration for the acquisition of bank assets.

(3) Securities issued under this section shall be used only for the purpose specified under subsection (2).

48. Financing arrangements — NAMA, etc., may issue debt securities.

48.— (1) NAMA or a NAMA group entity may, whenever and so often as it thinks fit, create and issue debt securities—

(a) bearing interest at such rate as it thinks fit, or no interest,

(b) for such cash or non-cash consideration or deferred consideration as it thinks fit, and

(c) subject to such terms and conditions as to repayment, repurchase, cancellation and redemption or any other matter as it thinks fit.

(2) When NAMA or a NAMA group entity issues debt securities under this section NAMA or the NAMA group entity shall specify which of the following is the purpose of the issue:

(a) the financing of the general operations of NAMA or the NAMA group entity, as the case may be;

(b) the providing of consideration for the acquisition of bank assets.

(3) The Minister may guarantee debt securities issued by NAMA or a NAMA group entity under this section.

(4) Securities issued under this section shall be used only for the purpose specified under subsection (2).

49. Financing arrangements — NAMA, etc., may issue subordinated debt securities.

49.— (1) NAMA or a NAMA group entity may, whenever and so often as it thinks fit, create and issue subordinated debt securities of such class or type as it specifies—

(a) bearing interest at such rate as it thinks fit, or no interest,

(b) for such cash or non-cash consideration or deferred consideration as it thinks fit, and

(c) subject to such terms and conditions as to repayment, subordination, repurchase, cancellation or redemption or any other matter as it thinks fit.

(2) Subordinated debt securities issued under this section shall be used only for the purpose of providing part of the consideration for the acquisition of bank assets in accordance with section 92.

(3) To the extent that the terms and conditions of the subordinated debt securities (including the terms of subordination) are referenced to or based on a measure of financial performance, the measure shall be the financial performance of NAMA in totality and not any part or parts of the acquired portfolio.

(4) Subordinated debt securities may be subject to different terms and conditions for different classes or types of those securities.

(5) The total amount of subordinated debt securities issued under this section shall not exceed 5 per cent of the aggregate total portfolio acquisition value. Such securities will be issued to the participating institutions pro rata.

50. Financing arrangements — limits on borrowings.

50.— (1) NAMA may, from time to time, exercise its power to borrow, with or without the guarantee of the Minister, such sums of money as are required for the performance of its functions under this Act.

(2) The Minister may guarantee the repayment by NAMA or a NAMA group entity of the principal of any sum borrowed by NAMA or the NAMA group entity or the payment of interest on that sum or the repayment of both principal and interest.

(3) The aggregate of the principal of all sums outstanding for purposes other than the provision of consideration for the acquisition of bank assets shall not exceed €5,000,000,000 or such other amount that the Minister specifies by order for the purposes of this subsection.

(4) The aggregate of the principal of all debt securities issued to enable the provision of consideration for the acquisition of bank assets shall not exceed €54,000,000,000 or such other amount as the Minister may specify by order for the purposes of this subsection.

(5) Where the Minister proposes to make an order under subsection (3) or (4)—

(a) he or she shall cause a draft of the proposed order to be laid before Dáil Éireann, and

(b) he or she shall not make the order unless and until a resolution approving of the draft has been passed by Dáil Éireann.

(6) Within 30 working days after any issue of debt securities under section 47, 48 or 49, the Minister shall lay before each House of the Oireachtas a statement giving details of the securities.

51. Application of Borrowing Powers of Certain Bodies Act 1996.

51.— Section 5 of the Borrowing Powers of Certain Bodies Act 1996 does not apply to the giving of guarantees, letters of credit or other similar instruments by NAMA or a NAMA group entity.

52. Financing arrangements — treasury services.

52.— The NTMA shall provide NAMA with treasury services and advice in connection with debt securities, any borrowings of NAMA and debt securities issued by NAMA or a NAMA group entity, and for any other purpose and in connection with the provision of such treasury services, may enter into transactions of a normal banking nature with any person, as agent of NAMA.

53. Annual statements.

53.— (1) NAMA shall—

(a) for the financial year 2010, before 1 July 2010, and

(b) for each subsequent financial year 3 months before the commencement of it,

prepare a statement that complies with subsection (3), and submit the statement to the Minister.

(2) The Minister shall cause copies of each statement to be laid before each House of the Oireachtas not later than—

(a) in the case of 2010, 30 November 2010, and

(b) in the case of a statement for any other financial year, one month after the beginning of the subsequent financial year.

(3) A statement submitted to the Minister under subsection (1) shall specify—

(a) the proposed objectives of NAMA’s activities and those of each NAMA group entity for the financial year concerned,

(b) the proposed nature and scope of the activities to be undertaken,

(c) the proposed strategies and policies for achieving those objectives, and

(d) the uses to which it is proposed to apply NAMA’s resources and those of each NAMA group entity.

(4) The Minister may omit from a copy of a statement laid before the Oireachtas under subsection (2) any matter that would disclose confidential information. If the Minister omits such matter from such a copy, he or she shall insert in its place a statement that matter has been omitted and a general description of the omitted matter.

54. Annual accounts.

54.— (1) NAMA shall keep, in the form that the Minister directs, proper and usual accounts of money received and expended by it and of all financial transactions undertaken in the performance of its functions.

(2) The accounts shall include a separate account of the administration fees and expenses incurred by NAMA and of each NAMA group entity in the performance of its functions.

(3) The accounts shall include—

(a) a list of all debt securities issued for the purposes of this Act,

(b) a list of debt securities issued to and redeemed by each participating institution,

(c) a list of all advances made to NAMA from the Central Fund,

(d) a list of all advances made by NAMA and each NAMA group entity,

(e) a list of all asset portfolios held by NAMA and each NAMA group entity, and the book valuation placed on each portfolio, and

(f) a list of Government support measures, including any guarantees, received by NAMA and each NAMA group entity,

and may include any other information that the Minister considers appropriate.

55. Quarterly reports.

55.— (1) Every 3 months NAMA shall make a report (referred to in this Act as a “quarterly report”) to the Minister of its activities and the activities of each NAMA group entity.

(2) The first quarterly report shall be for the period ending on 31 March 2010 and shall be submitted to the Minister on or before 30 June 2010. Each subsequent quarterly report shall be for the period ending on a 30 June, 30 September, 31 December or 31 March, and shall be submitted to the Minister within 3 months after the end of the relevant quarter.

(3) The Minister shall cause copies of a quarterly report to be laid before each House of the Oireachtas, and shall send a copy of the report to a Committee (or a subcommittee of such a Committee) appointed by either House of the Oireachtas or jointly by both Houses of the Oireachtas (other than the Committee on Members’ Interests of Dáil Éireann or the Committee on Members’ Interests of Seanad Éireann) to examine matters relating to NAMA.

(4) A quarterly report shall be in the form, and shall include information regarding the matters, that the Minister directs.

(5) In a quarterly report, NAMA shall report on its compliance with—

(a) any guideline issued by the Minister under section 13, and

(b) any direction given by the Minister under section 14.

(6) A quarterly report shall include the following information for the relevant quarter:

(a) the number of all loans outstanding and the condition of those loans, categorised as between performing and non-performing loans;

(b) non-performing loans categorised as to the degree of default, distinguishing where default has occurred on capital payment as well as interest payments;

(c) the number of loans being foreclosed or otherwise enforced during the relevant quarter;

(d) the number of cases where liquidators and receivers have been appointed in the relevant quarter;

(e) a list of all legal proceedings (except any proceeding in relation to which a rule of law prohibits publication) commenced by NAMA and each NAMA group entity in relation to bank assets during the quarter, setting out for each proceeding—

(i) its title,

(ii) the parties to the proceeding, and

(iii) the reliefs sought by NAMA or the NAMA group entity concerned;

(f) a schedule of any finance raised by NAMA and each NAMA group entity in the relevant quarter;

(g) sums recovered from property sales in the relevant quarter;

(h) other income from interest-bearing loans owned by NAMA and each NAMA group entity;

(i) an abridged balance sheet of the assets and liabilities of NAMA and each NAMA group entity;

(j) a complete schedule of income and expenditure of NAMA and each NAMA group entity in the relevant quarter;

(k) an updated schedule of all information described in subsections (2) and (3)of section 54;

(l) any other matter directed by the Minister.

56. Other reports to Minister.

56.— (1) The Minister may require NAMA to report to him or her, at any time and in any format that the Minister directs, on any matter, including—

(a) the performance of its functions under this Act, and

(b) any information or statistics relating to the performance of its functions.

(2) NAMA shall comply with a requirement of the Minister under subsection (1).

(3) The content of a report provided to the Minister under this section may be taken to be confidential information.

(4) A reference in subsection (1)to the performance of the functions of NAMA includes the performance of those functions by a NAMA group entity.

57. Audit of accounts by Comptroller and Auditor General.

57.— (1) NAMA and each NAMA group entity shall submit its accounts to the Comptroller and Auditor General for audit within 2 months after the end of the financial year to which they relate, and the Comptroller and Auditor General shall—

(a) if he or she is satisfied that the accounts represent a true and fair view of the state of the affairs of NAMA or the NAMA group entity concerned, so certify, or

(b) otherwise qualify the accounts.

(2) NAMA shall present a copy of the accounts of NAMA and each NAMA group entity as audited to the Minister as soon as may be and the Minister shall cause a copy of the audited accounts to be laid before each House of the Oireachtas.

58. Accountability to Committee of Public Accounts.

58.— (1) The Chairperson, and the Chief Executive Officer, shall, whenever required by the Committee of Dáil Éireann established under the Standing Orders of Dáil Éireann to examine and report to Dáil Éireann on the accounts and reports of the Comptroller and Auditor General, give evidence to that Committee on—

(a) the regularity and propriety of the transactions recorded or required to be recorded in any book or other record or account subject to audit by the Comptroller and Auditor General that NAMA or a NAMA group entity is required by or under an enactment to prepare,

(b) the economy and efficiency of NAMA and each NAMA group entity in its use of the resources made available to it under this Act,

(c) the systems, procedures and practices employed by NAMA and each NAMA group entity for evaluating the effectiveness of its operations, and

(d) any matter affecting NAMA or any NAMA group entity referred to in—

(i) any special report of the Comptroller and Auditor General under section 11(2) of the Comptroller and Auditor General (Amendment) Act 1993, or

(ii) any other report of the Comptroller and Auditor General (in so far as it relates to a matter specified in any of paragraphs (a) to (c)) that is laid before Dáil Éireann.

(2) In appearing before a Committee referred to in subsection (1), the Chief Executive Officer appears as an accountable person and not as an accounting officer.

(3) The Chairperson and the Chief Executive Officer, in giving evidence under subsection (1), shall not question or express an opinion on the merits of any policy of the Government or a Minister of the Government or on the merits of the objectives of such a policy.

59. Appearances before another Oireachtas Committee.

59.— (1) The Chairperson and the Chief Executive Officer of NAMA shall, if requested to do so by a Committee (or a subcommittee of such a Committee) appointed by either House of the Oireachtas or jointly by both Houses of the Oireachtas (other than the Committee on Members’ Interests of Dáil Éireann or the Committee on Members’ Interests of Seanad Éireann) to examine matters relating to NAMA—

(a) attend before that Committee, and

(b) provide that Committee with such information as it requires.

(2) The Chairperson and the Chief Executive Officer, in giving evidence under subsection (1), shall not question or express an opinion on the merits of any policy of the Government or a Minister of the Government or on the merits of the objectives of such a policy.

60. Repayment to Central Fund to redeem debt.

60.— (1) NAMA or a NAMA group entity shall repay any funds advanced to it by the Minister out of the resources available to NAMA and the NAMA group entities from time to time.

(2) NAMA may, from time to time, after consultation with the Minister—

(a) use any surplus funds of NAMA to redeem and cancel debt securities issued under this Act, and

(b) transfer any surplus funds remaining after that redemption to the Central Fund.

(3) The assets of NAMA and of any NAMA group entity at the eventual dissolution of NAMA will be transferred to the Minister or paid into the Exchequer as the Minister directs.

PART 4 Designation of Credit Institutions as Participating Institutions and Designation of Eligible Bank Assets

Chapter 1

61. Definition (Chapter ).

61.— In this Chapter “group”, in relation to a credit institution, means—

(a) the credit institution,

(b) its subsidiaries, if any, and

(c) any entity of which it is a subsidiary.

62. Applications for designation as participating institution.

62.— (1) A credit institution may apply to the Minister, within 60 days (or such longer period that the Minister prescribes by order under this subsection) after the establishment day, for it and its subsidiaries to be designated as participating institutions. A credit institution that applies under this subsection shall include all of its subsidiaries in the application (including those that it has requested be excluded from designation).

(2) An applicant credit institution may include in its application a request to exclude particular subsidiaries from designation, and shall give reasons for any requested exclusion.

(3) An application under subsection (1) shall be in the form that the Minister directs. The Minister may direct that different forms shall be used for that purpose by different credit institutions.

(4) The Minister may direct an applicant credit institution to provide, as part of its application, a certificate, supported by a statutory declaration, in relation to it and all of its subsidiaries collectively, jointly by the chief executive officer and chief financial officer of the applicant credit institution—

(a) that since 30 July 2009, it and each of its subsidiaries has dealt in the way required by section 66 (1) with such of its bank assets as the Minister specifies, or if to any extent it has not done so, the extent to which it has not done so, and

(b) that the information in the application is accurate and complete.

(5) An applicant credit institution that is a subsidiary shall furnish an undertaking by its parent company to provide any information and do anything else required of the parent company or any other member of its group to enable the Minister to consider the application. The Minister is not obliged to consider an application by a subsidiary if no such undertaking is given.

(6) An applicant credit institution shall undertake to obtain all necessary consents, in accordance with any applicable law including the consents of all its subsidiaries (including subsidiaries that it has requested be excluded from designation) and any necessary consent of any other member of its group. The Minister may consider the relevant application whether or not he or she has evidence that any relevant consent has been obtained and is not required to seek evidence of any such consent.

(7) An applicant credit institution may make an application under this section notwithstanding that at the time of the application it has not yet received any or all of the necessary consents.

63. Effect of application for designation, etc.

63.— (1) By making an application under this Chapter the applicant credit institution and all of its subsidiaries shall be taken to undertake, subject to any prohibition in any applicable law, to comply with the provisions of this Act (including this Act as amended from time to time) and of any regulations made under it (including any regulations made designating further classes of bank assets as eligible bank assets), so far as those provisions apply to it as an applicant or participating credit institution. As and from the making of the application they shall be bound to comply with that undertaking.

(2) The service of a notice on, or any communication with, an applicant credit institution is for all purposes effective as service of the notice on, or communication with, every subsidiary of the credit institution.

64. Information, etc., to be provided in support of application for designation.

64.— (1) An applicant credit institution shall provide any information, explanation, books, documents and records that the Minister requires to consider the application, and in particular shall provide any information, explanation, books, documents and records that the Minister considers necessary to enable him or her to make a decision in relation to the matters set out in section 67 (2).

(2) The Minister may direct an applicant credit institution to procure that any of its subsidiaries provides the information, explanation, books, documents and records referred to in subsection (1) in relation to the subsidiary.

(3) The Minister may direct an applicant credit institution that any information provided by the credit institution or any of its subsidiaries 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 credit institution.

(4) An applicant credit institution shall, in a certificate under subsection (3), disclose in utmost good faith all matters and circumstances in relation to the credit institution or any subsidiary that might materially affect, or might reasonably be expected to materially affect, the Minister’s decision in relation to the matters mentioned in subsection (2) of section 67 (except paragraph (b) (iv) of that subsection).

65. Capacity of applicant credit institutions, etc.

65.— (1) An applicant credit institution and each of its subsidiaries shall be taken to have, and always to have had, as part of its functions and objects, the power and capacity to—

(a) apply for designation as, and become, a participating institution pursuant to this Act,

(b) warrant the truth, accuracy and completeness of the information supplied to NAMA in relation to bank assets, and

(c) indemnify NAMA in relation to—

(i) any breach of such a warranty, or

(ii) any claim or obligation under section 135.

(2) An applicant credit institution and each of its subsidiaries shall be taken to have, and always to have had, as part of its functions and objects, the power and capacity to engage in the following activities in so far as they relate to its designated bank assets:

(a) the provision of credit facilities;

(b) the entering into of joint venture, partnership, co-ownership, shareholder or other similar agreements;

(c) the entering into of contracts (including contracts in a currency other than the currency of the State) whose purpose or one of whose purposes is—