National Asset Management Agency Act 2009

Type Act

Publication 2009-11-22

Last updated 2025-12-31

State In force

Source Irish Statute Book

articles 241

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

(ii) to eliminate or reduce the costs of raising funds or borrowing or the cost of other transactions carried out in the ordinary course of business;

(d) the entering into of contracts to increase the return on an investment (including a credit facility);

and shall be taken to have and always to have had, as part of its functions and objects, the power to engage in any other transaction in so far as it relates to the acquisition of designated bank assets by NAMA.

(3) Nothing in this section limits the liability of an applicant credit institution or subsidiary to any person based on a transaction beyond its powers. However, any claim based on such a transaction—

(a) is enforceable only against the applicant credit institution or subsidiary and not against NAMA or any NAMA group entity, and

(b) gives rise to a remedy in damages only.

66. Dealings by applicant credit institutions, etc., with eligible bank assets after application for designation.

66.— (1) An applicant credit institution and each of its subsidiaries shall, until the Minister makes or is taken to have made a decision on the application—

(a) administer, service and deal with all of its eligible bank assets in the same manner as, and with the same level of professional skill, care and diligence as, a prudent lender acting reasonably would so administer, service and deal, and

(b) so act in relation to those bank assets in good faith having regard to the purposes of this Act.

(2) An applicant credit institution and each of its subsidiaries shall not without the prior written approval of NAMA—

(a) deal with any of its eligible bank assets otherwise than in the ordinary course of its business,

(b) deal with any of its eligible bank assets in such a way as to prejudice or impair NAMA’s prospective interests or priorities in relation to such a bank asset,

(c) compromise, release, vary or relinquish any claim or otherwise take or omit to take any action if its doing so could reduce, lessen or impair any security, right, obligation, ranking or priority held or enjoyed, directly or indirectly, in connection with such a bank asset, or

(d) amend or vary any contract relating to such a bank asset unless contractually obliged to do so.

(3) NAMA may issue guidelines or policy statements in relation to the kinds of transactions that it is likely to be prepared to approve under subsection (2).

67. Designation of participating institutions.

67.— (1) The Minister, after consultation with the Governor F15[…], may designate an applicant credit institution as a participating institution if the credit institution has applied under section 62 to be so designated.

(2) The Minister shall not designate an applicant credit institution as a participating institution unless he or she is satisfied that—

(a) the applicant credit institution is systemically important to the financial system in the State,

(b) the acquisition of bank assets from the applicant credit institution or its subsidiaries is necessary to achieve the purposes of this Act, having regard to—

(i) support that—

(I) is available to,

(II) has been received by, or

(III) in normal commercial circumstances might reasonably be expected, or might reasonably have been expected, to be or to have been available to,

the applicant credit institution or its subsidiaries from the State, any other Member State or a member of the group of the applicant credit institution,

(ii) the financial situation and stability of the applicant credit institution and its subsidiaries,

(iii) the financial situation and stability of the applicant credit institution’s group in the event that bank assets are not acquired from the applicant credit institution or its subsidiaries, and

(iv) the resources available to NAMA and the Minister,

and

(3) The designation of an applicant credit institution as a participating institution operates to designate as participating institutions all of its subsidiaries except any subsidiary excluded under subsection (6).

(4) Designation (including designation of a subsidiary in accordance with subsection (3)) has effect notwithstanding the absence of any necessary consent to the relevant application. Designation of a subsidiary does not prejudice any rights that the subsidiary may have against the relevant applicant credit institution.

(5) Before deciding whether to designate an applicant credit institution as a participating institution, the Minister, having consulted the F16[Central Bank], may direct that specified due diligence and stress testing of the applicant credit institution or any member of its group be carried out.

(6) If the Minister designates an applicant credit institution as a participating institution, he or she may exclude any subsidiary of the applicant credit institution from designation on any condition that he or she specifies, if he or she is satisfied that the subsidiary should not be designated.

(7) Where the Minister has specified a condition under subsection (6) in relation to the exclusion of a subsidiary of an applicant credit institution, and there is a failure to comply with the condition, the Minister may, by written notice to the applicant credit institution and the subsidiary, designate the subsidiary as a participating institution as at and from the date of the notice or a later date that the Minister specifies in the notice.

(8) If the Minister has not designated a credit institution as a participating institution within 3 months after its application under section 62, the Minister is taken to have refused the application.

68. Obligations of participating institutions.

68.— (1) A participating institution shall—

(a) when making a report, or providing information, books, records or an explanation, whether or not in answer to a request from NAMA or the Minister, make full disclosure in utmost good faith of matters relevant to the making of a decision by NAMA whether or not to acquire a bank asset or the determination of its acquisition value,

(b) co-operate promptly and fully (including by way of supplying information, books, records and explanations to NAMA in response to any request by NAMA) with NAMA in its due diligence processes in relation to bank assets being considered for acquisition,

(c) provide such services (including relevant services within the meaning given by section 128) as NAMA directs in connection with an acquired bank asset, in accordance with any terms and conditions that NAMA specifies,

(d) comply with any direction given by the Minister or NAMA in relation to the performance of the participating institution’s obligations under this Act,

(e) comply with such monitoring of lending and balance sheet management as the Minister in consultation with the F17[Central Bank] directs, and

(f) comply with any other requirement that the Minister specifies to achieve an effective acquisition of bank assets by NAMA.

(2) A participating institution shall provide such information, explanations, books, documents and records as the Minister requires to perform his or her functions under this Act.

(3) A participating institution shall be taken to have consented to any disclosure of information under section 205.

Chapter 2

69. Eligible bank assets.

69.— (1) The Minister may, after consultation with F18[NAMA and the Governor], and considering the purposes of NAMA and the resources available to the Minister, prescribe, by regulation, classes of bank asset as classes of eligible bank asset.

(2) The classes of bank assets prescribed under subsection (1) may include—

(a) credit facilities issued, created or otherwise provided by a participating institution—

(i) for the purpose, whether direct or indirect and whether in whole or in part, of purchasing, exploiting or developing development land,

(ii) where the security connected with the credit facility is or includes development land,

(iii) where the security connected with the credit facility is or includes an interest in a company engaged in purchasing, exploiting or developing development land,

(iv) where the credit facility is directly or indirectly guaranteed by a company referred to in subparagraph (iii),

(v) directly or indirectly to a debtor who has provided security referred to in subparagraph (ii) or (iii), or

(vi) directly or indirectly to a person who is an associated debtor of a debtor to whom a credit facility described in any of subparagraphs (i) to (iii) has been provided,

(b) credit facilities and classes of credit facilities (other than credit facilities referred to in paragraph (a)) relating to debtors or associated debtors of participating institutions (or classes of debtors or associated debtors of participating institutions) where the total amount of indebtedness in respect of such facilities is such that, in the opinion of the Minister, acquisition by NAMA is necessary for the purposes of this Act,

(c) other rights arising directly or indirectly in connection with a credit facility described in paragraph (a) or (b) including—

(i) a contract to which the participating institution is a party or in which it has an interest,

(ii) a benefit to which the participating institution is entitled, and

(iii) any other asset in which the participating institution has an interest,

(d) bank assets associated with bank assets specified in paragraphs (a) and (b), and

(e) any other class of bank asset of a participating institution the acquisition of which the Minister is of opinion, after consultation with the Commission of the European Communities, is necessary for the purposes of this Act.

(3) In forming an opinion for the purpose of subsection (2) (b), the Minister may take into account—

(a) the total number of credit facilities or classes of credit facilities provided by the participating institution to those debtors and associated debtors or classes of debtors and associated debtors, and

(b) the aggregate indebtedness of debtors and associated debtors or classes of debtors or associated debtors referred to in subsection (2) (b) owed to any other participating institution.

(4) A bank asset that is in a class prescribed under subsection (1) is referred to in this Act as an “eligible bank asset”.

(5) A class of bank asset prescribed under subsection (1) shall be taken not to include a credit facility that entered a participating institution’s balance sheet after 31 December 2008. For the avoidance of doubt, where a credit facility entered a participating institution’s balance sheet on or before 31 December 2008, but security was taken for the credit facility after that date, and the credit facility is otherwise an eligible bank asset, the credit facility is an eligible bank asset.

(6) Notwithstanding subsection (5), a bank asset in a prescribed class is an eligible bank asset if, in the opinion of NAMA, the related credit facility entered a participating institution’s balance sheet on or before that date even if renegotiated or refinanced after that date. For the purposes of determining whether a credit facility entered a participating institution’s balance sheet on or before 31 December 2008, NAMA may take into account the terms of any renegotiation, restructuring or refinancing of a credit facility effected after 31 December 2008.

70. Meaning of “ associated debtor ” in this Act.

70.— (1) For the purposes of this Act, a person is an “associated debtor” of a debtor if the person—

(a) is or was at any time directly or indirectly indebted or otherwise obligated to a participating institution under or in connection with a credit facility, and

(b) is or was at any time—

(i) a body corporate that was a subsidiary of, or a related company (within the meaning given by section 140(5) of the Companies Act 1990) to, the debtor,

(ii) a nominee of the debtor, including a person who may or does in fact act at the express or implied direction or instruction of the debtor or another associated debtor of the debtor,

(iii) acting in the capacity of trustee of a declared or undeclared trust the beneficiaries of which include (directly or indirectly)—

(I) the debtor,

(II) a person referred to in subparagraph (ii), or

(III) a body corporate controlled by the debtor or a person referred to in that subparagraph,

(iv) in partnership, within the meaning of the laws of any relevant place, with the debtor, in relation to a bank asset which at the time of the partnership was, or subsequently became, of a class of bank assets prescribed under section 69 (1),

(v) a body corporate of which the debtor is the sole member, or

(vi) a body corporate controlled by the debtor,

(2) For the purposes of subsection (1)(b)(vi), a body corporate shall be taken to be controlled by a debtor if the debtor is (whether alone or together with any one or more of the persons mentioned in subparagraphs (i) to (v) of subsection (1)(b), and whether directly or indirectly)—

(a) interested in one-quarter or more of the equity share capital of the body, or

(b) entitled to exercise or control the exercise of one-quarter or more of the voting powers at any general meeting of the body.

(3) In subsection (2)—

(a) “equity share capital” has the same meaning as it has in section 155 of the Companies Act 1963, and

(b) the reference to voting power exercised by a debtor includes voting power exercised by a nominee of the debtor or another body corporate which that debtor controls.

(4) Section 54 of the Companies Act 1990 applies for the purpose of determining, for the purposes of subsection (2), whether a person holds an interest in shares.

71. Dealings by participating institutions with eligible bank assets.

71.— (1) A participating institution shall, until it has been served with a completion notice or NAMA directs otherwise—

(b) so act in relation to those bank assets in good faith having regard to the purposes of this Act.

(2) A participating institution shall not without the prior written approval of NAMA—

(a) deal with any of its eligible bank assets otherwise than in the ordinary course of its business,

(b) deal with any of its eligible bank assets in such a way as to prejudice or impair NAMA’s prospective interests or priorities in relation to such a bank asset,

(c) compromise any claim or release, vary, relinquish or otherwise take or omit to take any action if its doing so could reduce, lessen or impair any security, right, obligation, ranking or priority held or enjoyed, directly or indirectly, in connection with such a bank asset, or

(d) amend or vary any contract relating to such a bank asset unless contractually obliged to do so.

(3) NAMA may issue guidelines or policy statements in relation to the kinds of transactions that it is likely to be prepared to approve under subsection (2).

PART 5 Valuation Methodology

72. Interpretation (Part 5).

72.— (1) In this Part “property” means property that is the subject of the security for a credit facility that is a bank asset.

(2) In this Part:

(a) a reference to the market value of property is a reference to the estimated amount that would be paid by a willing buyer to a willing seller in an arm’s-length transaction after proper marketing (where appropriate) where both parties act knowledgeably, prudently and without compulsion,

(b) a reference to the market value of a bank asset is a reference to the estimated amount that would be paid by a willing buyer to a willing seller in an arm’s-length transaction after proper marketing (where appropriate) where both parties act knowledgeably, prudently and without compulsion,

(c) a reference to the long-term economic value of property is a reference to the value, as determined by NAMA in accordance with this Part, that it can reasonably be expected to attain in a stable financial system when the crisis conditions prevailing at the passing of this Act are ameliorated and in which a future price or yield of the property is consistent with reasonable expectations having regard to the long-term historical average, and

(d) a reference to the long-term economic value of a bank asset is a reference to the value, as determined by NAMA in accordance with this Part, that it can reasonably be expected to attain in a stable financial system when the crisis conditions prevailing at the passing of this Act are ameliorated.

73. Determination of acquisition values — valuation dates, etc.

73.— (1) NAMA may specify a date or event by reference to which the market value of a bank asset or type of bank asset or property or type of property is to be determined.

(2) Under subsection (1) NAMA may specify different dates or events for any or any type of bank assets or property.

(3) Under subsection (1) NAMA may specify a date before the coming into operation of this Act.

(4) The specification of a date or event under subsection (1) has effect for the determination of a market value for any purpose under this Act (including for the purposes of Chapter 2 of Part 7).

74. Determination of acquisition values — guidelines, etc.

74.— NAMA may, for the purpose of determination of values in accordance with this Part, adopt such guidelines or rules as it considers necessary for efficiency or consistency.

75. Acquisition values.

75.— (1) Subject to subsection (2) and any regulations made by the Minister under subsection (3), the acquisition value of a bank asset is its long-term economic value as determined by NAMA.

(2) NAMA may, if it considers it appropriate after consultation with the Minister, and subject to any regulations made by the Minister under subsection (3), having regard to—

(a) the purposes of this Act,

(b) the expected date of acquisition of the bank asset concerned,

(d) the laws of the European Communities governing State aid, and

(e) any other relevant matter affecting valuation,

determine that the acquisition value of a bank asset shall be—

(i) its market value, or

(ii) a value (between its long-term economic value and its market value) that NAMA considers appropriate in the circumstances, having regard to the matters specified in paragraphs (a) to (e).

(3) The Minister may make regulations for the purposes of the application of subsection (2). For that purpose the Minister shall have regard to the factors set out in paragraphs (a) and (c) to (e) of subsection (2).

76. Determination of long-term economic values.

76.— (1) NAMA shall determine the long-term economic value of a bank asset having regard to the following:

(a) the market value of the property;

(b) the market value of the bank asset;

(d) the long-term economic value already determined by NAMA, in accordance with the valuation methodology, of any other similar property or bank asset;

(e) any report prescribed under section 78 that is reasonably available to NAMA when it carries out the valuation of the particular property or bank asset,

in accordance with—

(i) any regulations made by the Minister under section 79, and

(ii) the laws of the European Communities governing State aid.

(2) Notwithstanding any other provision of this Act or any regulations made under it—

(a) the long-term economic value determined by NAMA for a parcel of land shall not exceed the market value of the parcel by more than such fraction as the Minister may determine by regulations for the purposes of this paragraph,

(b) the total long-term economic value of all land held as security in an acquired portfolio shall not exceed the total market value of that land by such fraction as the Minister may determine by regulations for the purposes of this paragraph,

(c) NAMA may determine that, with regard to any particular class of property, or in the particular circumstances applicable to a parcel of land, its long-term economic value shall not exceed its market value, and

(d) the long-term economic value of a bank asset shall be calculated on the basis of net present value methodology.

77. Market values.

77.— (1) In determining the market value of property, NAMA may take into account—

(a) any value that the participating institution concerned submits as being, in its opinion, the market value of the property,

(b) any report prescribed under section 78 that is reasonably available to NAMA when it carries out the relevant valuation, and

(2) In determining the market value of a bank asset NAMA may take into account—

(a) any value that the participating institution concerned submits as being, in its opinion, the market value of the bank asset,

(b) the market value already determined by NAMA of any other similar bank asset,

(d) the performance of that asset, and

(e) the market value of property determined by NAMA under subsection (1).

78. Regulations in relation to certain reports.

78.— The Minister may make regulations prescribing reports or classes of reports (including reports prepared before the commencement of this Act) concerning factors or matters relevant to the valuation of property or of property of a particular type or in specific locations or with specific features or benefits, including—

(a) zoning,

(b) availability of utilities,

(d) historic value of property in particular locations, and

(e) recent valuations of similar property in similar locations.

79. Regulations in relation to determination of values.

79.— (1) The Minister may make regulations relating to the determination by NAMA of the long-term economic value, or the market value, of a bank asset or a class of bank asset or a property or a class of property, including the matters that NAMA shall or may derive, use, apply or take into account for those purposes.

(2) In making regulations for the purposes of subsection (1), the Minister shall have regard to the laws of the European Communities governing State aid and any relevant guidance issued by the Commission of the European Communities, and may have regard, and may include such provisions relating, to such of the following as he or she thinks appropriate:

(a) with reference to the long-term economic value of property—

(i) the extent to which the price or yield of such property has deviated from the long-term historical average,

(ii) supply and demand projections by reference to the type of asset and its location,

(iii) macroeconomic projections for growth in the gross domestic product and for inflation or deflation,

(iv) demographic projections,

(v) land and planning considerations (including national, regional or local authority development or spatial plans) that may exert an influence on the future value of the asset concerned,

(vi) analyses presented by the Minister for the Environment, Heritage and Local Government on the extent to which existing land zoning and planning permissions granted and in force meet or exceed projected growth requirements,

(vii) analyses presented by the Dublin Transportation Office or any national transport authority of existing and future transport planning and the associated supply and demand projections for land use,

(viii) any analysis by the Minister for Communications, Energy and Natural Resources in relation to the potential rise in energy and other costs due to the long-term decline in non-renewable resources,

(ix) the specification, for the purposes of the determination of the long-term economic value of particular parcels of land, of a fraction by which the long-term economic value determined by NAMA shall not exceed the market value of each such parcel,

(x) the specification, for the purposes of the determination of the long-term economic value of all land held as security in acquired portfolios, of a fraction, by which the long-term economic value of that land shall not exceed its total market value;

(b) with reference to the long-term economic value of bank assets—

(i) the long-term economic value of property,

(ii) the net present value of the anticipated income stream associated with bank assets of that kind,

(iii) in the case of rental property, current and projected vacancy rates,

(iv) loan margins,

(v) an appropriate discount rate to reflect NAMA’s cost of funds plus a margin that represents an adequate remuneration to the State that takes account of the risk in relation to the bank assets acquired by NAMA,

(vi) the mark-to-market value of any derivative contracts associated with bank assets of that kind,

(vii) any ancillary security such as personal guarantees and corporate assets, and

(viii) fees reflecting the costs of loan operation, maintenance and enforcement;

(c) such other matters that he or she considers relevant to the long-term economic value or market value of property or bank assets including—

(i) matters to be derived, used, applied, taken into account or not taken into account;

(ii) the values to be attributed to any matters or the adjustments to be made in or by virtue of their application;

(iii) the data, criteria, information, rules and methodology that may be used or applied in determining the value or application of any matters or in deriving any matters to be used or applied;

(iv) the use of the net present value methodology in determining the value of any property or bank asset;

(v) the appropriate discount rate to reflect NAMA’s cost of funds plus a margin that represents an adequate remuneration to the State that takes account of the risk in relation to the acquired bank assets to be applied in determining the net present value of a cash flow;

(vi) the specification, for the purposes of attribution and application across all bank assets, or all bank assets of a particular class, of a standard discount rate, to be attributed to or applied in the calculation of each bank asset, or each bank asset of the particular class, as the case may be, acquired by NAMA, which in the opinion of the Minister is necessary or appropriate to provide for enforcement costs, due diligence costs and other relevant costs incurred or likely to be incurred by NAMA over its lifetime in the discharge of its functions;

(vii) the extension of the maturity date of any bank asset for such period as NAMA considers appropriate after its actual maturity to allow a reasonable period for its management and enforcement;

(viii) the types or classes of property in respect of which the market value shall be deemed to be the long-term economic value.

(3) Every regulation made under subsection (1)shall be laid before each House of the Oireachtas as soon as may be after it is made and, if a resolution annulling the regulation is passed by either such House within the next 21 days on which that House has sat after the regulation is laid before it, the regulation shall be annulled accordingly, but without prejudice to the validity of anything previously done under the regulation.

Chapter 1

80. Applicant credit institutions and participating institutions to provide information about eligible bank assets.

80.— (1) NAMA may direct an applicant credit institution or a participating institution to provide NAMA with information, in the form directed by NAMA, about each of its bank assets, and (in the case of an applicant credit institution) each bank asset of each of its subsidiaries, that may be an eligible bank asset. In the case of a participating institution, such a direction has effect as a direction to provide that information about the bank assets of the participating institution and each of its subsidiaries that is also a participating institution.

(2) In particular, NAMA may require the provision of information about the debtors, associated debtors, guarantors and sureties concerned and the enforceability and marketability of the security associated with each such bank asset.

(3) When an applicant credit institution or participating institution provides information about bank assets under subsection (1) or (2), it shall, if it is of the opinion that a bank asset is not an eligible bank asset, state that fact, that it objects to the acquisition of the bank asset, and the reason for the opinion. If an applicant credit institution or a participating institution wishes to object to the proposed acquisition of a bank asset, it shall do so in that way and the objection shall be dealt with in accordance with Chapter 1 of Part 7.

(4) In a direction under subsection (1), NAMA may require that the information concerned is to be provided in a particular specified manner or form, including by way of tranches described by reference to debtors, associated debtors, security or in any other way.

(5) NAMA may direct an applicant credit institution or a participating institution that any information provided by the applicant credit institution, any of its subsidiaries or the participating institution under subsection (1) or (2) is to be certified as accurate and complete jointly by the chief executive officer and chief financial officer of the applicant credit institution or participating institution.

(6) An applicant credit institution or participating institution shall, on request by NAMA, provide NAMA with a report or a certificate or both, in the form directed by NAMA, about—

(a) any of its bank assets, or those of a subsidiary, that may be eligible bank assets, or

(b) any information relevant to the determination of the terms of acquisition (including the acquisition value) of any such bank asset.

(7) An applicant credit institution or a participating institution shall, in a report or certificate under subsection (5) or (6), disclose in utmost good faith all matters and circumstances in relation to each bank asset concerned that might materially affect, or might reasonably be expected to materially affect, NAMA’s decision to acquire the bank asset or the determination of its acquisition value.

(8) Notwithstanding any legal or contractual restriction, NAMA and a NAMA group entity may disclose to each other any information, or any report, certificate or other document, that either one obtains in connection with the performance of any of its functions.

81. Production of documentation, books and records for inspection.

81.— (1) An applicant credit institution or a participating institution shall, if NAMA so requests, produce to NAMA for inspection the credit facility documentation, books and records kept in connection with any eligible bank asset. The applicant credit institution or participating institution shall give NAMA such facilities for inspecting and taking copies of the contents of any such documentation, book or record as NAMA requires.

(2) NAMA may direct an applicant credit institution or a participating institution to procure that any of its subsidiaries—

(a) produces to NAMA for inspection the credit facility documentation, books and records kept in connection with any eligible bank asset, and

(b) gives NAMA such facilities for inspecting and taking copies of the contents of any such documentation, book or record as NAMA requires.

(3) If an applicant credit institution, participating institution or subsidiary is required under subsection (1) or (2)—

(a) to produce documentation or a book or record in connection with a bank asset to NAMA, or

(b) to provide facilities to NAMA to inspect or take copies of the contents of any such documentation, book or record,

and fails to do so, NAMA may apply to the Court, on notice to the credit institution or participating institution for an order directing the credit institution, participating institution or subsidiary to produce the documentation, book or record, or provide the facilities, as the case requires.

(4) The Court may make an order pursuant to the application under subsection (3) if the Court is satisfied that the production of the documentation, book or record, or the provision of the facilities sought is reasonably necessary to enable NAMA to perform any of its functions under this Act. The Court may make any interlocutory order (including a mandatory order) that it considers necessary in the circumstances.

(5) If the Court is satisfied that for reasons of commercial confidentiality a hearing under this section should be conducted otherwise than in public, the Court may so order.

(6) Subject to the privilege against self-incrimination, a document, book or record produced by a person in answer to a request or order under this section is admissible in evidence.

82. Provision of information and explanations, etc.

82.— (1) An applicant credit institution or a participating institution shall provide any information and explanations requested by NAMA in relation to the matters referred to in sections 80 and 81 or any other matter relevant to the acquisition of a bank asset, and shall also secure that an officer or staff member of the applicant credit institution or participating institution shall provide an explanation of any such information, documentation, book or record, including an explanation of any apparent omission from the information, documentation, book or record.

(2) NAMA may direct an applicant credit institution or participating institution to procure that any of its subsidiaries provides the information or explanations referred to in subsection (1) in relation to the bank assets of the subsidiary.

(3) If an applicant credit institution or participating institution is required to secure that an officer or staff member of the applicant credit institution, subsidiary or participating institution provides an explanation or information under this section, and fails to do so, NAMA may apply to the Court, on notice to the applicant credit institution or participating institution, for an order directing the applicant credit institution, subsidiary or participating institution to secure the provision of the explanation or information.

(4) The Court may make an order referred to in subsection (3) if the Court is satisfied that the provision of the explanation or information sought is reasonably necessary to enable NAMA to make a decision whether to acquire the bank asset concerned or determine its acquisition value. The Court may make any interlocutory order (including a mandatory order) that it considers necessary in the circumstances.

(5) If the Court is satisfied that for reasons of commercial confidentiality a hearing under this section should be conducted otherwise than in public, the Court may so order.

(6) Subject to the privilege against self-incrimination, information provided by a person in answer to a request or order under this section is admissible in evidence.

83. Obligations to co-operate and act in good faith, etc.

83.— (1) If a person who is a debtor, associated debtor, guarantor or surety of a credit facility has been notified that the credit facility is an eligible bank asset, the person shall co-operate and shall, in good faith, promptly furnish to the participating institution such information relating to the eligible bank asset concerned as the participating institution requests for the purposes of its compliance with a requirement or direction under section 80, 81 or 82.

(2) If a person referred to in subsection (1) fails to comply with a requirement of that subsection, the participating institution concerned may apply to the Court, on notice to the person, for an order directing the person to comply with the requirement in any way specified in the order, and shall notify NAMA that it has done so.

(3) The Court may make an order (including a mandatory order) under subsection (2) if the Court is satisfied that the compliance sought is reasonably necessary to enable the participating institution concerned to comply with the requirement or direction under section 80, 81 or 82. The Court may make any interlocutory order that it considers necessary in the circumstances.

(4) If the Court is satisfied that for reasons of commercial confidentiality a hearing under this section should be conducted otherwise than in public, the Court may so order.

(5) Subject to the privilege against self-incrimination, a document, book or record produced by a person in answer to a request or order under this section is admissible in evidence.

(6) If a participating institution suffers loss as a result of a debtor, guarantor or surety failing to comply with an obligation under subsection (1), the debtor, guarantor or surety shall be liable in damages to the participating institution.

84. Decision about acquisition of eligible bank assets.

84.— (1) NAMA may acquire an eligible bank asset of a participating institution if NAMA considers it necessary or desirable to do so having regard to the purposes of this Act and in particular the resources available to the Minister. NAMA is not obliged to acquire any particular, or any, eligible bank asset of such an institution on any grounds.

(2) For the avoidance of doubt, NAMA may acquire, from a participating institution, performing or non-performing eligible bank assets.

(3) For the avoidance of doubt, NAMA may, subject to Chapter 1 of Part 7, take steps to acquire an eligible bank asset even though the participating institution concerned has indicated in information provided to NAMA under section 80 that it does not consider the bank asset to be an eligible bank asset and that it objects to its acquisition.

(4) Without prejudice to the generality of subsection (1), NAMA may, in deciding whether to acquire a particular eligible bank asset, take into account—

(a) whether any security that is part of the bank asset is adequate,

(b) whether any security that is part of the bank asset has been perfected,

(d) whether the relevant credit facility documentation is defective or incomplete,

(e) whether the participating institution concerned or any other person has engaged in conduct concerning the bank asset that is or could be prejudicial to the position of NAMA,

(f) whether the participating institution has complied with its contractual and legal obligations and its obligations under this Act in relation to the bank asset, or its eligible bank assets generally,

(g) whether in NAMA’s opinion the participating institution has advanced a sufficient quantum of the credit facility concerned,

(h) the quality of the title to any property held as security that is part of the bank asset,

(i) any applicable legal, regulatory or planning requirement that has not been complied with in relation to development land held as security that is part of the bank asset,

(j) any association with another bank asset of a participating institution,

(k) the performance of the bank asset,

(l) any matter disclosed in any due diligence carried out by the participating institution or NAMA,

(m) the type of other eligible bank assets (whether of the participating institution or any other participating institution) that NAMA has acquired or proposes to acquire, and whether not acquiring the particular eligible bank asset concerned would contribute to the achievement of the purposes of this Act, and

(n) any other matter that NAMA considers relevant.

(5) Where NAMA determines that the long-term economic value of the property comprised in the security for a credit facility that is an eligible bank asset is less than the market value of the property, NAMA shall not acquire the bank asset.

85. NAMA to identify eligible bank assets for acquisition.

85.— (1) NAMA shall identify such of the eligible bank assets of a participating institution as NAMA proposes to acquire.

(2) NAMA may, for the purposes of identifying eligible bank assets that it proposes to acquire, consult with the participating institution concerned, but is not obliged to do so. The participating institution shall co-operate expeditiously with NAMA in any such consultation.

(3) If a participating institution has stated in information provided under section 80 that it does not consider a particular bank asset that NAMA proposes to acquire to be an eligible bank asset and that it objects to its acquisition, NAMA may—

(a) agree not to acquire the bank asset, or

(b) continue with the proposed acquisition and refer the matter to the expert reviewer.

(4) If NAMA proposes to continue with a proposed acquisition in accordance with subsection (3) (b), NAMA shall notify the participating institution concerned of that fact as soon as may be.

(5) NAMA shall inform the participating institution of its proposed timetable for the acquisition of the eligible bank assets identified for acquisition. The timetable may specify that identified bank assets will be acquired on different dates.

86. NAMA may specify general terms and conditions of acquisition.

86.— (1) NAMA may, from time to time, specify the terms and conditions that are to apply generally to the acquisition of eligible bank assets.

(2) The terms and conditions specified under subsection (1) may include the following warranties:

(a) a warranty (which may be subject to any legal reservation approved by NAMA in a particular case) that the security for the relevant bank asset is enforceable;

(b) a warranty that any land that is the security for the bank asset has good and marketable title;

(c) a warranty that the facts in the participating institution’s report in relation to the bank asset are complete and accurate;

(d) a warranty that any certificate provided in relation to the bank asset is accurate and complete;

(e) any other warranty customarily included in transactions for the purchase of bank assets.

(3) In relation to any particular acquisition NAMA may amend or vary the terms and conditions specified under subsection (1) as it thinks fit, but if it does so, it shall set out the amendment or variation in the relevant acquisition schedule.

87. NAMA to prepare acquisition schedule.

87.— (1) When NAMA has identified an eligible bank asset of a participating institution that NAMA proposes to acquire, and has determined the acquisition value of that asset, NAMA shall serve on the institution a schedule (referred to in this Act as an “acquisition schedule”).

(2) NAMA may nominate a NAMA group entity as the entity that is to acquire a bank asset identified for acquisition.

(3) An acquisition schedule shall set out for each eligible bank asset to be acquired—

(a) a statement of the eligible bank asset and the interest to be acquired,

(b) a statement of any obligations or liabilities excluded from the acquisition,

(d) details of how the acquisition value was calculated,

(e) any obligations, additional to those imposed by this Act, to be imposed on the participating institution after the acquisition that are to take effect after the acquisition,

(f) the date of acquisition, and

(g) if the eligible bank asset is not to be acquired by NAMA itself, the NAMA group entity that will acquire it.

(4) In addition to the matters required by subsection (3), NAMA may set out in an acquisition schedule any other matter (including any terms and conditions) that it considers necessary in the particular case.

(5) For the avoidance of doubt, an acquisition schedule may specify any number of particular eligible bank assets.

(6) For the avoidance of doubt, NAMA may serve more than one acquisition schedule on a participating institution.

(7) The date of acquisition of a designated bank asset shall be at least 28 days after the relevant acquisition schedule is served on the participating institution concerned unless NAMA specifies a shorter period in the acquisition schedule.

88. Errors or omissions in proposed acquisition schedules.

88.— A participating institution may apply to NAMA in writing for the correction of an obvious error or omission in an acquisition schedule. An application under this section is not an objection for the purposes of section 80 andsection 114.

89. Amendment of acquisition schedule.

89.— (1) After service of an acquisition schedule on a participating institution, but before the earliest acquisition date specified in the acquisition schedule, NAMA may—

(a) revoke the acquisition schedule, or

(b) amend the acquisition schedule in relation to the bank asset in any way.

(2) Without prejudice to the generality of subsection (1) (b), NAMA may amend an acquisition schedule in any of the following ways:

(a) to omit or add a bank asset;

(b) to alter the description of such an asset;

(d) to alter the acquisition value of such an asset;

(e) to alter any of the terms and conditions of the acquisition schedule;

(f) to correct an obvious error or omission.

(3) When NAMA has amended an acquisition schedule (in this subsection called the “original acquisition schedule”), NAMA shall serve an amended acquisition schedule on the participating institution. Where NAMA does so, the amended acquisition schedule has effect in place of the original acquisition schedule.

(4) When NAMA has revoked an acquisition schedule, NAMA shall serve on the participating institution a notice of the revocation. The revoked acquisition schedule is of no effect from the date of that service.

(5) References in this Act to an acquisition schedule include an acquisition schedule that has been amended in accordance with this section.

90. Effect of service of acquisition schedule.

90.— (1) Subject to subsection (7), the service of an acquisition schedule on a participating institution in accordance with section 87 or 89 operates by virtue of this Act to effect the acquisition of each bank asset specified in the acquisition schedule by NAMA or the specified NAMA group entity, on the date of acquisition specified in the acquisition schedule as the date of acquisition of the bank asset, notwithstanding that the consideration for the acquisition has not been paid.

(2) The acquisition of a bank asset pursuant to subsection (1) is subject to the terms and conditions set out in the acquisition schedule and any general terms and conditions specified by NAMA under section 86 (1) except to any extent that the acquisition schedule excludes or modifies such specified terms and conditions.

(3) Unless otherwise provided in an acquisition schedule, where an eligible bank asset is acquired, every relevant contract is deemed to be assigned to NAMA or the specified NAMA group entity, as the case may be.

(4) In subsection (3) “relevant contract” means a contract—

(a) relating to the bank asset,

(b) to which the participating institution is a party or in which it has an interest, and

(5) Unless otherwise provided in an acquisition schedule, where an eligible bank asset is acquired, NAMA or the specified NAMA group entity, as the case may be, becomes entitled to the benefit of—

(a) any certificate of title, solicitor’s undertaking, warranty, valuation, report, certificate or document issued to the participating institution or upon which the participating institution is entitled to rely in connection with the asset,

(b) an instruction, order, direction, bond, opinion, search, enquiry, declaration, consent, notice, power of attorney, authority or right given to, held by or issued for the benefit of, directly or indirectly, the participating institution in connection with the asset, and

(c) any other benefit arising under or in connection with any insurance or assurance policy or payment direction relating to the asset.

(6) Subject to section 91, subsections (1), (3) and (5) have effect in relation to a bank asset notwithstanding—

(a) any legal (including contractual) or equitable restrictions on the acquisition of the bank asset or any part of it,

(b) any legal or equitable restriction, inability or incapacity relating to or affecting any matter referred to in the acquisition schedule (whether generally or in particular) or any requirement for a consent, notification, authorisation, licence or document to similar effect (by whatever name and however described), in each case,

(d) any provision of any enactment to the contrary.

(7) The service of an acquisition schedule on a participating institution in accordance with sections 87 and 89 does not have the effects mentioned in subsections (1), (3) and (5) in relation to a bank asset if—

(a) notwithstanding that the participating institution stated in information provided under section 80 that it did not consider the bank asset to be an eligible bank asset, and that it objected to its aquisition NAMA decided under section 85 (3) to take steps to acquire the bank asset, and

(b) on the acquisition date—

(i) the Minister has not confirmed the inclusion of the bank asset in the acquisition schedule in accordance with section 117, or

(ii) NAMA—

(I) has amended the acquisition schedule to remove the bank asset from the acquisition schedule, or

(II) has revoked the acquisition schedule in accordance with section 89 or 121.

91. Effect of service of acquisition schedule in relation to foreign bank assets.

91.— (1) In this Part—

“foreign bank asset” means a bank asset in which the transfer or assignment of any right, title or interest that NAMA proposes to acquire is governed in whole or in part by the law of a state (including the law of a territorial unit of a state) other than the State;

“foreign law”, in relation to a foreign bank asset or a transaction in relation to a foreign bank asset means the law of a state other than the State.

(2) In this section, where a bank asset is to be acquired by a NAMA group entity, a reference to NAMA in this section (but not in sections 92 and 93 as applied by subsection (10)) shall be construed as a reference to the NAMA group entity.

(3) To the extent that a bank asset proposed to be acquired by NAMA is or includes a foreign bank asset—

(a) if the law governing the transfer or assignment of the foreign bank asset permits the transfer or assignment of that asset, the participating institution shall if NAMA so directs do everything required by law to give effect to the acquisition, or

(b) if the relevant foreign law does not permit the transfer or assignment of the foreign bank asset, the participating institution shall if NAMA so directs do all that the participating institution is permitted to do under that law to assign to NAMA the greatest interest possible in the foreign bank asset.

(4) A participating institution, to the extent that a foreign bank asset is one to which subsection (3) (b) applies—

(a) is subject to duties, obligations and liabilities as nearly as possible corresponding to those of a trustee in relation to that bank asset, and

(b) shall hold the bank asset for the benefit and to the direction of NAMA,

in each case subject to the nature of, and the terms and conditions of the acquisition of, the foreign bank asset.

(5) Subsection (3) applies in so far as the service of an acquisition schedule would not, of itself, as a matter of foreign law, operate to give effect to the acquisition of a foreign bank asset or otherwise effect or achieve the result referred to in that subsection in relation to such a bank asset.

(6) Without prejudice to subsection (4), a participating institution shall, immediately upon being so directed by NAMA to do so, execute and deliver to NAMA any contract, document, agreements, deed or other instrument that NAMA considers necessary or desirable to ensure that there is effected a binding acquisition by NAMA or the NAMA group entity concerned, under the applicable law, of the interest specified in the relevant acquisition schedule. NAMA may issue more than one direction under this subsection in connection with a foreign bank asset.

(7) A trust, duty, obligation or liability created or constituted by this section shall not be taken to constitute a security.

(8) A participating institution shall comply with any direction of NAMA in relation to any duty, obligation or liability under this section.

(9) A participating institution shall obtain, make, maintain and comply with any authorisation, consent, approval, resolution, licence, exemption, filing, notarisation or registration that is necessary in the State and in any other place in connection with ensuring the legality and enforceability of any act, matter or thing referred to in this section.

(10) Sections 92 and 93 apply with any necessary modifications in relation to a foreign bank asset.

92. Payment for bank assets.

92.— (1) As soon as may be after the service on a participating institution of an acquisition schedule (or after service of an amended acquisition schedule or a decision under section 117or121to confirm or continue with an acquisition schedule,as the case may be), NAMA shall notify the Minister and the NTMA of the amount payable to the participating institution as the acquisition value of the bank assets to be acquired.

(2) The Minister shall ensure that debt securities to an amount sufficient to allow the payment of the consideration payable under the acquisition schedule (other than any part of the consideration provided by an issue of subordinated debt securities under section 49) are issued.

(3) On the date of acquisition of a bank asset, NAMA or the NAMA group entity that acquired the bank asset shall transfer or issue to the participating institution concerned debt securities, or debt securities and subordinated debt securities, equal to the acquisition value of the bank asset.

(4) Subsections (1), (2) and (3) have effect in relation to a bank asset even if at the relevant time the total portfolio acquisition value is the subject of an objection.

(5) Subject to subsection (6), in the case of the acquisition of a foreign bank asset (within the meaning given by section 91), on the date of acquisition, NAMA or the NAMA group entity concerned shall transfer or issue to the participating institution concerned debt securities, or debt securities and subordinated debt securities, equal in value to the acquisition value of the bank asset.

(6) In the case of the acquisition of a foreign bank asset (within the meaning given by section 91), NAMA or the NAMA group entity concerned may withhold all or part of the acquisition value of a foreign bank asset until satisfied that the participating institution concerned has met its obligations under section 91.

93. Clawback of overpayments.

93.— (1) If a participating institution receives from NAMA or a NAMA group entity an amount in exchange for acquired bank assets that is more than is due to the participating institution under this Act, or receives any other amount from NAMA or a NAMA group entity to which it is not entitled, the institution shall repay to NAMA—

(a) in the case of overpayment of an amount due for the acquisition of bank assets, an amount equal to the overpayment and any accrued interest on it within the period that NAMA determines, or

(b) in any other case, an amount equal to the overpayment and any accrued interest on it within the period that NAMA determines.

(2) A certificate issued by NAMA under its seal as to the amount of an overpayment referred to in subsection (1) is admissible as evidence of the amount of that overpayment.

94. Dealings with bank assets after service of acquisition schedule until date of acquisition.

94.— After the service of an acquisition schedule on a participating institution, until the date of acquisition for each bank asset specified in the acquisition schedule, the participating institution—

(a) shall continue to hold and manage each bank asset concerned in accordance with section 71,

(b) shall not make nor permit the making of any change to the bank asset concerned without NAMA’s written consent, and

(c) shall notify NAMA in writing of any change in the bank asset concerned of which the participating institution is aware.

95. Books, records and title documents of participating institutions.

95.— (1) Where NAMA has acquired a bank asset, NAMA may direct the participating institution from which the bank asset was acquired—

(a) to deliver to NAMA all its books and records in relation to the bank asset concerned and any documents of title that it holds for any property that is subject to a security that is part of the bank asset, and

(b) to provide any information or explanation that NAMA requires in relation to those books, records and documents.

(2) A participating institution shall comply with a direction under subsection (1).

(3) Where NAMA directs a participating institution under subsection (1) to deliver to NAMA books, records or documents in relation to a bank asset, the participating institution shall also secure that any officer, employee or agent of the participating institution who is able to do so provides an explanation of any such book, record or document, including an explanation of any apparent omission from such a book, record or document.

(4) If a participating institution is subject to a direction under subsection (1) and does not comply with the direction, NAMA may apply to the Court, on notice to the participating institution, for an order directing the institution to comply with the direction.

(5) The Court may make an order (including a mandatory or interlocutory order) under subsection (4) if the Court is satisfied that the production of the book, record, document or explanation, the provision of the facilities sought is reasonably necessary to enable NAMA to perform any of its functions under this Act.

(6) Where NAMA so directs, a participating institution shall retain custody, on behalf of NAMA, of any book, record, document or document of title referred to in this section subject to the giving of an accountable trust receipt or on other terms that NAMA directs.

96. Notice to debtors, etc., of acquisition of bank assets.

96.— (1) Within 60 days after the acquisition of a bank asset from a participating institution, the participating institution shall make reasonable efforts to notify each debtor, associated debtor, guarantor or surety in relation to the credit facility concerned of the acquisition of the bank asset by NAMA or the relevant NAMA group entity.

(2) Where there has been failure or delay in notifying a person in accordance with subsection (1)—

(a) neither NAMA nor the relevant NAMA group entity is liable for any such failure or delay,

(b) the acquisition is valid notwithstanding any such failure or delay, and

(c) no objection may be raised by any debtor, associated debtor, guarantor or surety to NAMA’s or the relevant NAMA group entity’s acquisition of the bank asset concerned based on any such failure or delay.

97. NAMA to notify participating institutions of completion of acquisition process.

97.— (1) When NAMA has served on a participating institution one or more acquisition schedules that specify all the bank assets that NAMA has acquired or at the time proposes to acquire from the participating institution, NAMA shall serve on the participating institution a notice in writing of that fact (in this Act referred to as a “completion notice”).

(2) A completion notice shall specify—

(a) all the bank assets (being bank assets that are eligible bank assets at the time of service of the completion notice) that NAMA has acquired or proposes to acquire from the participating institution concerned,

(b) the acquisition value determined by NAMA for each such bank asset, and

(3) NAMA shall not serve any further acquisition schedules on a participating institution after service of a completion notice on the institution unless the Minister prescribes further classes of eligible bank assets.

98. Dispute over acquisition value.

98.— (1) If a participating institution wishes to dispute an acquisition value, it shall do so solely in accordance with this section and sections 121 and 122.

(2) A participating institution may apply to NAMA in writing for the correction of an obvious error in relation to the value of a bank asset in an acquisition schedule. An application under this subsection is not an objection or dispute for the purposes of sections 121 and 122.

Chapter 2

99. NAMA to have rights of creditors after acquisition of bank assets.

99.— (1) After NAMA or a NAMA group entity acquires a bank asset, and subject to section 101 and any exclusion of obligations and liabilities from the acquisition set out in the acquisition schedule—

(a) NAMA and the NAMA group entity each have and may exercise all the rights and powers, and subject to this Act is bound by all of the obligations, of the participating institution from which the bank asset was acquired in relation to—

(i) the bank asset,

(ii) the debtor concerned and any guarantor, surety or other person concerned,

(iii) any receiver, liquidator, or examiner concerned, and

(iv) the Official Assignee in Bankruptcy,

and

(b) the participating institution ceases to have those rights and obligations except to any extent to which this Act provides otherwise.

(2) The reference in subsection (1) to the rights, powers or obligations of a participating institution in relation to a bank asset is a reference to the rights, powers or obligations, as the case may be—

(a) derived from the bank asset, and

(b) arising under any law or in equity or by way of contract.

(3) In particular, NAMA and the NAMA group entity may each—

(a) take any action, including court action, that the participating institution could have taken to protect, perfect or enforce any security, right, interest, obligation or liability,

(b) realise any security that the participating institution could have realised,

(d) participate to the same extent as the participating institution could have participated in any resolution, workout, restructuring, arrangement, reorganisation, scheme or insolvency proceeding in relation to the bank asset, and

(e) exercise any powers conferred by any document that forms part of the bank asset of reviewing or amending any term or condition of any part of the bank asset.

100. Exercise of certain rights of set-off.

100.— (1) If a participating institution has a right to set off a claim owing by it to a debtor against a claim owing by the debtor to it in relation to a bank asset, and NAMA or a NAMA group entity acquires the bank asset, the right is taken to continue in existence as between the participating institution and the debtor as if the bank asset had not been acquired and—

(a) the participating institution shall inform NAMA in writing of the existence of the right,

(b) if NAMA so directs—

(i) the claims shall be set off as if they were mutual claims when and to the extent that the right of set-off would have become exercisable or would have arisen if there had been no acquisition, and

(ii) the claims shall be taken to have been discharged to the extent of that set-off,

and

(c) if the claims are so discharged, the participating institution shall, as soon as may be, pay an amount equal to the amount of the set-off to NAMA or the NAMA group entity concerned.

(2) If a debtor exercises, or is taken to have exercised, a set-off of a claim made by a participating institution against an acquired bank asset, the participating institution shall, as soon as may be, pay an amount equal to the amount of the set-off to NAMA or to the NAMA group entity concerned.

(3) In this section—

(a) a reference to a right of set-off includes a right of combination of accounts and any similar right, and

(b) a reference to a claim includes a direct or contingent obligation.

(4) Upon and following the acquisition of a bank asset from a participating institution by NAMA or a NAMA group entity, for the purposes only of the set-off pursuant to subsection (1) the claims shall be taken to be mutual for the purposes of paragraph 17(1) of the First Schedule to the Bankruptcy Act 1988.

101. Enforcement of certain representations, etc.

101.— (1) If in relation to a bank asset that NAMA or a NAMA group entity has acquired—

(a) it is alleged that a representation was made to, a consent was given to, an undertaking was given to, or any other obligation was undertaken (by agreement or otherwise) in favour of, the debtor or another person by the participating institution from which the bank asset was acquired or by some person acting or claiming to act on its behalf,

(b) no such representation, consent, undertaking or obligation was disclosed to NAMA in writing, before the service on the participating institution of the relevant acquisition schedule,

(c) the records of the participating institution do not contain a note or memorandum in writing of the terms of any such representation, consent, undertaking or obligation or do not contain a record of any consideration paid in relation to any such representation, undertaking or obligation, and

(d) the representation, consent, undertaking or obligation, if made, given or undertaken, would affect the creditor’s rights in relation to the bank asset,

then that representation, consent, undertaking or obligation—

(i) is not enforceable, and cannot be relied on, by the debtor or any other person against NAMA or the NAMA group entity,

(ii) is enforceable, and can be relied on, by the debtor or any other person, if at all, only against a person other than NAMA or a NAMA group entity, and

(iii) is not enforceable, and cannot be relied on, by NAMA or the NAMA group entity against the debtor.

(2) A claim based on a representation, consent, undertaking or obligation referred to in subsection (1) gives rise only to a remedy in damages or other relief that does not in any way affect the bank asset, its acquisition, or the interest of NAMA or the NAMA group entity or (for the avoidance of doubt) any property the subject of any security that is part of such a bank asset.

(3) The Court shall not make an order under section 182 in relation to a claim to enforce a representation, undertaking or obligation referred to in subsection (1).

102. Acquisition of bank assets not to affect conditions, etc.

102.— (1) Subject to the provisions of this Act, after a bank asset is acquired by NAMA or a NAMA group entity, the terms and conditions of the bank asset are unchanged.

(2) Where the documentation for a credit facility forming part of a bank asset that has been acquired by NAMA or a NAMA group entity refers to a reference rate of interest that is set by the participating institution concerned but is no longer available, the documentation shall continue to be construed as though it referred to—

(a) that participating institution’s reference rate for credit facilities of that type, or

(b) at NAMA’s discretion, another reference rate specified by NAMA.

(3) Where by reason of the acquisition by NAMA or a NAMA group entity of a bank asset, compliance with, or the operation of, a term or condition of the bank asset is no longer, in the opinion of NAMA, reasonably practicable, NAMA may, by notice in writing, change that term or condition. The new term or condition shall be as nearly as possible equivalent to the original term or condition.

(4) For the avoidance of doubt, the acquisition by NAMA or a NAMA group entity of a bank asset under this Act does not affect any relief or remedy to which the participating institution would otherwise be entitled.

103. Acquisition of bank assets not to give rise to cause of action, etc.

103.— No cause of action lies or is maintainable against NAMA or any NAMA group entity by reason solely of the acquisition of a bank asset by NAMA or a NAMA group entity.

104. NAMA to be notified of certain matters.

104.— If within one year after NAMA or a NAMA group entity acquires a bank asset, the participating institution from which the bank asset was acquired is notified or becomes aware of any significant dealing, event or circumstance or significant proposed or potential dealing, event or circumstance in relation to the bank asset that would adversely affect the bank asset or the rights (including priority), obligations or liabilities of NAMA or the NAMA group entity in relation to it, the participating institution shall notify NAMA of the dealing, event or circumstance without delay.

105. Acquisition of bank assets not to render NAMA liable for wrongs by participating institutions.

105.— (1) Nothing in this Act renders NAMA or a NAMA group entity liable for any breach of contract, misrepresentation, breach of duty, breach of trust or other legal or equitable wrong committed by a participating institution.

(2) No legal proceedings shall be brought against NAMA or a NAMA group entity in relation to any legal or equitable wrong referred to in subsection (1).

(3) Nothing in this Act deprives any person of a remedy in damages against a participating institution in relation to a legal or equitable wrong referred to in subsection (1).

106. Rights of others not affected by acquisition of bank assets, etc.

106.— Nothing in this Act relieves NAMA or a NAMA group entity of any obligation, at law or in equity, except to any extent to which this Act specifically provides otherwise.

107. NAMA not required to register certain instruments, etc.

107.— (1) Where a bank asset has been acquired by NAMA or a NAMA group entity—

(a) notwithstanding anything in any Act listed in subsection (2) or any other Act that provides for the registration of assets, security or details of them, NAMA or the NAMA group entity is not required to become registered as owner of any security that is part of the bank asset,

(b) notwithstanding sections 62 and 64 of the Registration of Title Act 1964, NAMA or the NAMA group entity has, in relation to any such charge, the powers of a mortgagee under a mortgage by deed, even though NAMA or the NAMA group entity is not registered as owner of any such charge,

(c) NAMA or the NAMA group entity has the powers and rights conferred on the registered owner of a charge by the Registration of Title Act 1964.

(2) The Acts referred to subsection (1) (a) are the following:

(a) the Bills of Sale (Ireland) Acts 1879 and 1883;

(b) the Industrial and Commercial Property (Protection) Act 1927;

(d) the Registration of Deeds and Title Acts 1964 and 2006;

(e) the Agricultural Credit Act 1978;

(f) the Patents Act 1992;

(g) the Trade Marks Act 1996;

(h) the Taxes Consolidation Act 1997.

(3) For the purposes of an Act referred to in subsection (1) (a), an acquisition schedule has effect in relation to a bank asset as a deed registered on the date of acquisition of the bank asset concerned.

(4) For the purposes of an Act referred to in subsection (1) (a), the registration in relation to an acquired bank asset of a participating institution has effect for all purposes as a registration of NAMA or the NAMA group entity concerned.

(5) Nothing in this section prevents NAMA or a NAMA group entity from registering any interest capable of registration.

(6) Nothing in this section has the effect of relieving NAMA or a NAMA group entity from any obligation under a relevant foreign law.

(7) Sections 23 and 25 of the Registration of Title Act 1964 do not apply to NAMA or a NAMA group entity.

(8) Where a NAMA group entity acquires a bank asset from NAMA or another NAMA group entity, the provisions of this section also apply to the first-mentioned NAMA group entity.

108. NAMA, etc., may give certificates in relation to bank assets held.

108.— (1) NAMA or a NAMA group entity may certify under its seal or common seal, as the case requires, that NAMA or the NAMA group entity holds a bank asset specified in the certificate.

(2) A document purporting to be a certificate issued in accordance with subsection (1)—

(a) shall be taken to be such a certificate, and to have been certified under the seal of NAMA or the NAMA group entity, as the case may be, unless the contrary is proved, and

(b) is conclusive as to the matters set out in it.

109. NAMA, etc., may give certain directions in relation to bank assets.

109.— (1) This section applies, without prejudice to any other provision of this Act or any right arising at law, to a bank asset that NAMA or a NAMA group entity has acquired, the terms and conditions of which entitle the participating institution from which NAMA or the NAMA group entity acquired it to give directions to a third party that holds an interest in the bank asset on behalf of others.

(2) In relation to a bank asset to which or in relation to which this section applies—

(a) NAMA or a NAMA group entity may give directions to the third party concerned to realise any security, enforce any guarantee or surety or do any other act or thing in relation to the bank asset, or

(b) if the third party is not incorporated in the State, but is a subsidiary of an entity that is incorporated in the State, NAMA or a NAMA group entity may direct the entity concerned to secure compliance by the subsidiary with a direction to do any of the things mentioned in paragraph (a).

(3) Where a direction is given under subsection (2) (a), then the third party shall be under an equivalent obligation to comply with the direction as if the direction had been given by the participating institution from which the bank asset concerned was acquired.

(4) Where a direction is given under subsection (2) (b), then the entity shall be under an obligation to secure the compliance of the subsidiary but only to the extent that the subsidiary would be bound to comply with a direction given under paragraph (a) of subsection (2) if the subsidiary were incorporated in the State.

110. Effect of acquisition of bank assets on certain other rights.

110.— (1) In this section “relevant instrument” means an agreement, licence, document, security, obligation or other instrument (other than the Credit Institutions (Financial Support) Scheme 2008 (S.I. No. 411 of 2008)) (or an instrument entered into under that Scheme) to which any of the following is a party or by which any of the following is bound or in which any of the following has an interest:

(a) a participating institution;

(b) a subsidiary of such an institution;

(2) Any provision in a relevant instrument that would (apart from this subsection) cause any of the consequences specified in subsection (3) to follow by virtue of—

(a) the enactment of this Act,

(b) any entity becoming a participating institution,

(c) the provision of any information to NAMA by an applicant credit institution or a participating institution pursuant to this Act,

(d) the acquisition of a bank asset by NAMA or a NAMA group entity under this Act,

(e) any disposition by NAMA or a NAMA group entity of any acquired bank asset, or

(f) any other thing done or authorised to be done under, pursuant to or resulting from any provision of this Act,

is of no effect, without the express consent of NAMA, except to any extent to which the Minister provides otherwise by order under section 111.

(3) The consequences referred to in subsection (2) are the following:

(a) the creation of an obligation;

(b) the suspension or extinction (however described, and whether in whole or in part) of a right or an obligation or the becoming subject to a right or an obligation;

(d) a right becoming exercisable to terminate or modify the relevant instrument or a right or obligation under it;

(e) an amount becoming due and payable or capable of being declared due and payable;

(f) any other change in the amount or timing of any payment falling to be made or due to be received by any person;

(g) a right becoming exercisable to withhold, net or set off any payment;

(h) the occurrence of an event giving rise to a default or breach of a right or obligation;

(i) a right becoming exercisable not to advance any amount;

(j) an obligation arising to provide or transfer a deposit or collateral;

(k) a right of transfer or assignment of the asset that is stated to be exercisable only once or for a limited number of times;

(l) a right to enforce a guarantee, indemnity or security interest (however described);

(m) the triggering of any mandatory prepayment;

(n) any obligation to return collateral or its equivalent;

(o) the cancellation of any obligation to advance any amount or to provide credit or a contingent instrument;

(p) legal proceedings becoming maintainable to enforce the relevant instrument, to any extent that such proceedings would not have been maintainable had the bank asset not been acquired or had any other thing done or matter arising by virtue of or in connection with this Act not been done or not arisen, as the case may be;

(q) any other right or remedy (whether or not similar in kind to those referred to in paragraphs (a) to (o)) arising or becoming exercisable;

(r) the termination or modification of an obligation to provide a service or product.

(4) In making an order referred to in subsection (2), the Minister shall have regard to—

(a) the consequences specified in subsection (3) so far as they are relevant,

(b) the matters set out in subsection (2), and

(c) the likely impact of the proposed order on any of the matters specified in section 2, and on NAMA’s ability to perform its functions under this Act.

111. Minister’s power to modify application of section 110.

111.— (1) In this section “relevant instrument” has the same meaning as in section 110.

(2) If the Minister is satisfied that in the special circumstances of—

(a) a particular case, or

(b) a particular class of cases,

the effect of section 110 would be unduly onerous or would cause undue unfairness or undue hardship, and that it is appropriate in all the circumstances to do so, he or she may by order provide that, notwithstanding anything in that section, a provision in a relevant instrument that provides for a consequence mentioned or referred to in that section has effect to the extent specified in the order.

(3) An order under subsection (2)—

(a) may make provision in relation to the effect of a provision—

(i) in a particular relevant instrument,

(ii) in relevant instruments of a particular class,

(iii) on rights held under a relevant instrument by—

(I) a particular person, or

(II) a particular class of person,

(iv) on rights held under relevant instruments of a particular class by—

(I) a particular person, or

(II) a particular class of person,

(b) in the case of an order that makes provision in relation to relevant instruments of a particular class, may specify the class by reference to any common characteristic of the instruments concerned,

(c) in the case of an order that makes provision in relation to rights held by a particular class of persons, may specify the class by reference to any common characteristic of the persons concerned, and

(d) may be expressed to have retrospective effect to a date falling after 30 July 2009.

(4) If the Minister considers that an order under subsection (2) contains matter that is commercially sensitive, he or she may direct—

(a) that the obligations in relation to the order under section 3(1) of the Statutory Instruments Act 1947 are to be taken to be satisfied by the printing, sending to the institutions mentioned in section 3(1)(a) of that Act, publication and sale of a version of the order from which the commercially sensitive matter is omitted, or

(b) if the preparation of such a version would be impracticable, or would result in the version being seriously misleading, that the order is exempt from the operation of section 3(1) of that Act.

(5) A version of an order prepared in accordance with a direction given by the Minister under subsection (4) (a) shall indicate that matter has been omitted from the version of the order and the general nature of that matter.

(6) A direction given by the Minister under subsection (4) shall be published in Iris Oifigiúil as soon as practicable.

(7) Evidence of a direction given by the Minister under subsection (4) may be given by the production of a copy of Iris Oifigiúil purporting to contain the direction.

PART 7 Review of Decisions Relating to Acquisition

Chapter 1

112. Appointment and functions of expert reviewer.

112.— (1) The Minister may appoint as the expert reviewer for the purposes of this Chapter a suitably qualified person who, in the Minister’s opinion, has the experience necessary to perform the functions conferred on the expert reviewer under this Chapter.

(2) The terms and conditions of the appointment of the expert reviewer (including remuneration and reimbursement for expenses incurred) shall be as the Minister determines at the time of appointment.

(3) The functions of the expert reviewer are to review the objections referred to him or her under section 85 (3) and to advise the Minister in accordance with section 116.

(4) Without prejudice to subsection (3), the expert reviewer may, if he or she thinks that it is appropriate to do so, conduct the review of all or some of the objections from a participating institution on the basis of a sample of the bank assets that were the subject of objections referred to him or her under section 85 (3) and if he or she does so, the advice to the Minister under section 116 shall be based on that sample and shall be as valid, for all purposes of this Chapter, as if it had been based on a review of each bank asset that was the subject of an objection.

113. Procedure of expert reviewer.

113.— (1) The Minister may make regulations providing for the procedures of the expert reviewer.

(2) Subject to any regulations made by the Minister under subsection (1), the expert reviewer shall determine, in his or her sole discretion, procedures for—

(a) the form and type of submissions to be made to the expert reviewer,

(b) the means by which confidential information will be protected from public disclosure, and

114. Objections to proposed acquisition of bank assets.

114.— A participating institution may object to the proposed acquisition of a bank asset only as provided for in section 80.

115. Materials, etc., to be made available to expert reviewer.

115.— (1) A participating institution shall provide to the expert reviewer and to NAMA, no later than 7 days after NAMA notifies the participating institution under section 85 (4), all the material on which it bases its objection and any comments it may wish to make regarding the objection.

(2) For the purposes of the expert reviewer’s review of NAMA’s decision to acquire a bank asset, NAMA shall make available to the expert reviewer and the participating institution concerned, no later than 7 days after NAMA refers the objection to the expert reviewer under section 85 (3) (b), all the material that was before NAMA when it made its decision and any comments it may wish to make on the objection.

(3) NAMA and the participating institution shall each be allowed an opportunity to respond to the other’s material and comments, and shall furnish any such responses to the expert reviewer and to the participating institution or NAMA, as the case may be, no later than 4 days after that material and those comments have been made available.

(4) The expert reviewer may request NAMA or a participating institution to provide additional information in relation to a bank asset that NAMA proposes to acquire. NAMA or a participating institution shall comply with any such request without delay.

116. Opinion of expert reviewer.

116.— (1) In forming his or her opinion, the expert reviewer shall take into account the material, comments, responses and any additional information provided by the participating institution and NAMA under section 115.

(2) The expert reviewer shall advise the Minister, no later than 5 days after receiving the material, comments, responses and information under section 115, whether he or she is of the opinion that the bank asset is or is not an eligible bank asset.

(3) The Minister may, if he or she considers that to do so is warranted by exceptional circumstances, specify a longer period within which the expert reviewer is to provide advice under subsection (2).

117. Confirmation by Minister of acquisition, etc.

117.— (1) The Minister shall, in accordance with the advice of the expert reviewer under section 116 in relation to a bank asset, and no later than 5 days after receipt of that advice—

(a) confirm that the bank asset may be acquired by NAMA, or

(b) direct NAMA not to acquire the bank asset on the grounds that it is not an eligible bank asset.

(2) The Minister shall send copies of his or her confirmation or direction under subsection (1) to NAMA and to the participating institution concerned.

118. Costs.

118.— (1) The costs of a review under this Chapter are payable as follows:

(a) in a case where the Minister’s decision is one referred to in section 117 (1) (a), the costs of both parties are payable by the participating institution; and

(b) in any other case, neither of the parties pays costs and each of the parties bears its own costs.

(2) If a participating institution withdraws an application for the review under this Chapter, it is liable for the costs incurred up to the time of the withdrawal unless NAMA agrees otherwise.

(3) If NAMA and the participating institution concerned cannot reach agreement on costs, the costs of the review shall be determined by a Taxing Master of the Court. For that purpose, the Taxing Master has all the functions for the time being conferred on him or her under any enactment or in any rules of court (with any necessary modifications) in relation to the taxation of costs to be paid by one party to another in proceedings before the Court.

(4) The Taxing Master may direct that the costs of all reviews under this Chapter in relation to a participating institution shall be dealt with together after the service on the participating institution of a completion notice.

Chapter 2

119. Appointment of valuation panel.

119.— (1) There shall be a valuation panel to adjudicate on disputes referred to it by NAMA under section 122 (3).

(2) The valuation panel shall consist of persons that the Minister appoints to be members of it. The Minister may determine how many members there shall be, but there shall not be more than 12 members.

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National Asset Management Agency Act 2009

66. Dealings by applicant credit institutions, etc., with eligible bank assets after application for designation.

67. Designation of participating institutions.

68. Obligations of participating institutions.

Chapter 2

69. Eligible bank assets.

70. Meaning of “ associated debtor ” in this Act.

71. Dealings by participating institutions with eligible bank assets.

PART 5 Valuation Methodology

72. Interpretation (Part 5).

73. Determination of acquisition values — valuation dates, etc.

74. Determination of acquisition values — guidelines, etc.

75. Acquisition values.

76. Determination of long-term economic values.

77. Market values.

78. Regulations in relation to certain reports.

79. Regulations in relation to determination of values.

PART 6 Acquisition of Bank Assets and Related Matters

Chapter 1

80. Applicant credit institutions and participating institutions to provide information about eligible bank assets.

81. Production of documentation, books and records for inspection.

82. Provision of information and explanations, etc.

83. Obligations to co-operate and act in good faith, etc.

84. Decision about acquisition of eligible bank assets.

85. NAMA to identify eligible bank assets for acquisition.

86. NAMA may specify general terms and conditions of acquisition.

87. NAMA to prepare acquisition schedule.

88. Errors or omissions in proposed acquisition schedules.

89. Amendment of acquisition schedule.

90. Effect of service of acquisition schedule.

91. Effect of service of acquisition schedule in relation to foreign bank assets.

92. Payment for bank assets.

93. Clawback of overpayments.

94. Dealings with bank assets after service of acquisition schedule until date of acquisition.

95. Books, records and title documents of participating institutions.

96. Notice to debtors, etc., of acquisition of bank assets.

97. NAMA to notify participating institutions of completion of acquisition process.

98. Dispute over acquisition value.

Chapter 2

99. NAMA to have rights of creditors after acquisition of bank assets.

100. Exercise of certain rights of set-off.

101. Enforcement of certain representations, etc.

102. Acquisition of bank assets not to affect conditions, etc.

103. Acquisition of bank assets not to give rise to cause of action, etc.

104. NAMA to be notified of certain matters.

105. Acquisition of bank assets not to render NAMA liable for wrongs by participating institutions.

106. Rights of others not affected by acquisition of bank assets, etc.

107. NAMA not required to register certain instruments, etc.

108. NAMA, etc., may give certificates in relation to bank assets held.

109. NAMA, etc., may give certain directions in relation to bank assets.

110. Effect of acquisition of bank assets on certain other rights.

111. Minister’s power to modify application of section 110.

PART 7 Review of Decisions Relating to Acquisition

Chapter 1

112. Appointment and functions of expert reviewer.

113. Procedure of expert reviewer.

114. Objections to proposed acquisition of bank assets.

115. Materials, etc., to be made available to expert reviewer.

116. Opinion of expert reviewer.

117. Confirmation by Minister of acquisition, etc.

118. Costs.

Chapter 2

119. Appointment of valuation panel.