Credit Guarantee Act 2012

1.. Interpretation.

1.— In this Act—

“applicable conditions” has the meaning assigned to it by subsection (3) of section 5;

F1[“asset credit facility agreement”means an agreement (other than a loan agreement or a credit facility agreement) under which a participating finance provider agrees to provide to a qualifying enterprise credit in the form of tangible movable property upon—

(a) such date or dates as may be specified in the agreement, or

(b) the happening of such event as may be so specified,

in consideration of that qualifying enterprise agreeing to make payments to the participating finance provider on such date or dates, or the happening of such event as may be so specified, and‘asset credit facility’shall be construed accordingly;]

F1[“cash price”means, in relation to property provided pursuant to a qualifying finance agreement that is an asset credit facility agreement, the price that the participating enterprise would have been required to pay for the property if, at the time of the making of the agreement, that enterprise had elected to—

(a) purchase the property, and

(b) pay for the property in cash;]

“contractor” has the meaning assigned to it by section 7;

F2[“covid-19 credit guarantee scheme”has the meaning assigned to it bysection 4A(1);]

F1[“credit amount”means—

(a) in the case of a qualifying finance agreement that is a loan agreement, the principal of moneys borrowed from the participating finance provider by a participating enterprise pursuant to the agreement,

(b) in the case of a qualifying finance agreement that is a credit facility agreement, the maximum amount (whether or not drawn down) of moneys agreed to be given or advanced by the participating finance provider to a participating enterprise, or to a third party nominated in that behalf by a participating enterprise, pursuant to the agreement,

(c) in the case of a qualifying finance agreement that is an asset credit facility agreement, the cash price (specified in the agreement) of the property provided by the participating finance provider to a participating enterprise pursuant to the agreement, and

(d) in the case of a qualifying finance agreement that is an invoice finance facility agreement, the maximum amount of moneys agreed to be given or advanced by the participating finance provider to a participating enterprise pursuant to the agreement, irrespective of whether that amount is given or advanced;]

F1[“credit facility agreement”means an agreement (other than a loan agreement) under which a participating finance provider agrees to give or advance to a qualifying enterprise, or to a third party nominated in that behalf by a qualifying enterprise, a sum or sums of money upon—

(a) such date or dates as may be specified in the agreement, or

(b) the happening of such event as may be so specified,

in consideration of that qualifying enterprise agreeing to repay to the participating finance provider the said sum or sums of money so given or advanced, and interest or charges (if any) thereon, on such date or dates as may be so specified, and‘credit facility’shall be construed accordingly;]

“credit guarantee scheme” means a scheme under section 5;

F3[…]

F3[…]

F1[“finance agreement”means—

(a) a loan agreement,

(b) a credit facility agreement,

(c) an asset credit facility agreement, or

(d) an invoice finance facility agreement;]

F1[“finance provider”means a person who, in the ordinary course of business—

(a) provides financial products to qualifying enterprises,

(b) arranges for the provision by other persons of financial products to qualifying enterprises, or

(c) provides facilities for the provision on credit of goods or services by the person to qualifying enterprises,

but does not include a person who is prohibited under the law of the State or any other state from engaging in any of the activities specified in the foregoing paragraphs, and references to the provision of a financial product shall be construed accordingly;]

F1[“financial product”means—

(a) a loan,

(b) a credit facility,

(c) an asset credit facility, or

(d) an invoice finance facility,

provided to a qualifying enterprise under a finance agreement;]

F1[“invoice finance facility agreement”means an agreement under which a participating finance provider agrees to give or advance to a qualifying enterprise a sum or sums of money in consideration of that qualifying enterprise assigning to the participating finance provider the right to recover debts owed to that qualifying enterprise, and‘invoice finance facility’shall be construed accordingly;]

F3[…]

“loan agreement” means an agreement under which a F4[participating finance provider] agrees to give or advance to a qualifying enterprise a sum or sums of money upon—

(a) such date or dates as may be specified in the agreement, or

(b) the happening of such event as may be so specified,

in consideration of that qualifying enterprise agreeing to repay to the F4[participating finance provider] the principal of any sum or sums so given or advanced, and interest (if any) thereon, on such date or dates as may be so specified, but does not include an agreement to provide a facility commonly known as an overdraft facility F5[, credit card facility or credit line facility]) to a qualifying enterprise; and “loan” shall be construed accordingly;

“Minister” means the Minister for Jobs, Enterprise and Innovation;

F3[…]

F1[“participating enterprise”means a qualifying enterprise—

(a) belonging to a class to which a credit guarantee scheme applies, and

(b) who has entered into a qualifying finance agreement with a participating finance provider;]

F1[“participating finance provider”shall be construed in accordance with section 2;]

F3[…]

F1[“qualifying finance agreement”means a finance agreement—

(a) in respect of which there has been compliance with the conditions specified in a credit guarantee scheme under subsection (4) of section 5,

(b) belonging to a class of finance agreement to which a credit guarantee scheme applies,

(c) that is made for a purpose that does not contravene a provision of a credit guarantee scheme to which paragraph (c) of that subsection applies, and

(d) that does not permit a finance provider to exercise his or her powers under the finance agreement in such manner as would result in—

(i) the value of the financial product provided under the agreement exceeding the maximum value specified under that subsection,

(ii) the aggregate of the value of the financial products provided under a particular class of finance agreements with the qualifying enterprise concerned exceeding the maximum value so specified, or

(iii) the aggregate of the value of the financial products provided under all qualifying finance agreements with the qualifying enterprise concerned exceeding the maximum value specified under that subsection;]

“qualifying enterprise” shall be construed in accordance with section 3;

F3[…]

F6["Ukraine credit guarantee scheme" has the meaning assigned to it bysection 4B(1).]

2.. Participating lender.

F7[2.(1) For the purposes of this Act, a finance provider is a participating finance provider if—

(a) the finance provider is a person in respect of whom a certificate undersubsection (2)has effect, and

(b) the finance provider stands approved for the time being by the Minister in accordance with this section.

(2) For the purposes of this section, the Minister may, on the provision by the person referred to inparagraph (a) or (b), as may be appropriate, of such information or documentation as the Minister considers necessary, certify in writing that he or she is satisfied—

(a) that a person is a finance provider, or

(b) that a person intends to carry on the business of—

(i) providing financial products to qualifying enterprises,

(ii) arranging for the provision by other persons of financial products to qualifying enterprises, or

(iii) providing facilities for the provision on credit of goods or services by the person first-mentioned in this paragraph to qualifying enterprises.

(3) The Minister may approve a finance provider under this section if—

(a) the finance provider declares, in writing, that he or she agrees to comply with and be bound by the terms of a credit guarantee scheme, and

(b) the Minister is satisfied that the finance provider has complied with the applicable conditions.

(4) The Minister may withdraw an approval under this section if a finance provider ceases to comply with the applicable conditions or contravenes any other provisions of a credit guarantee scheme.]

3.. Qualifying enterprise.

3.— (1) F8[Subject tosubsection (1A), for the purposes] of this Act, a person is a qualifying enterprise if—

(a) the person is established in the State and employs fewer than 250 persons (calculated in accordance with the Commission Recommendation) whether or not in the State, and

(b) the person’s—

(i) annual turnover does not exceed €50 million (calculated in accordance with the Commission Recommendation) whether or not earned in, or derived from activities carried on in, the State,

(ii) estimated annual turnover (in circumstances where the person has been carrying on business for less than 12 months) in the year concerned does not exceed €50 million (calculated in accordance with the Commission Recommendation) whether or not estimated to be earned, or derived from activities carried on, in the State, or

(iii) annual balance sheet total does not exceed €43 million (calculated in accordance with the Commission Recommendation).

F9[(1A) For the purposes of this Act, insofar as it applies to a Covid-19 credit guarantee schemeF10[or a Ukraine credit guarantee scheme], a person is a qualifying enterprise if—

(a) the person is a qualifying enterprise within the meaning ofsubsection (1), or

(b) in the case of a person who is not a qualifying enterprise within the meaning ofsubsection (1), the person is established in the State and employs not more than 499 persons (calculated in accordance with the Commission Recommendation) whether or not in the State.]

(2) In this section “Commission Recommendation” means Commission Recommendation (2003/361/EC) of 6 May 2003 ^1 concerning the definition of micro, small and medium-sized enterprises.

4.. Power of Minister to give guarantees.

F11[4.(1) Subject toF12[this section,F13[sections 4Aand4B,]]andsection 12of the Credit Guarantee (Amendment) Act 2016, the Minister may, in accordance with a credit guarantee scheme, enter into an agreement with a participating finance provider guaranteeing the due repayment or payment, as the case may be, to that participating finance provider of such part of the credit amount under a qualifying finance agreement as is specified in the first-mentioned agreement.

(2) Subject toF14[subsection (3),F13[sections 4Aand4B,]]andsection 12of the Credit Guarantee (Amendment) Act 2016, the Minister shall not, pursuant to a guarantee under this section, be liable, in relation to any particular qualifying finance agreement, to pay an amount exceeding 80 per cent of the credit amount that—

(a) the participating enterprise concerned stands liable, for the time being, to pay to the participating finance provider concerned, and

(b) stands unpaid.

(3)F15[Subject tosubsection (4A), the Minister]shall not exercise the powers conferred on him or her by this section in such manner as would result in his or her being liable, in respect of qualifying finance agreements entered into by the same participating finance provider, to pay to that participating finance provider amounts the aggregate of which would exceed 13 per cent of the aggregate of the credit amounts under those qualifying finance agreements.

(4)F16[Subject tosubsection (4A), the Minister]shall not exercise the powers conferred on him or her by this section in such manner as would result in the yearly credit amount to which guarantees under this section apply exceeding€150 million.

F17[(4A)Subsections (3)and(4)shall not apply to—

(a) guarantees given under this section in accordance with a Covid-19 credit guarantee schemeF18[or a Ukraine credit guarantee scheme], or

(b) qualifying finance agreements to which those guarantees apply.]

(5) The Minister shall, in relation to a credit guarantee scheme, after consultation with the participating finance provider concerned, and by notice in writing given to the provider, specify the maximum value of financial products that may be provided by that provider pursuant to qualifying finance agreements—

(a) entered into in any year, and

(b) to which guarantees under this section apply.

(6) The Minister may notify a participating finance provider in writing that an agreement entered into by the Minister with the participating finance provider under this section shall not apply in relation to one or more classes of qualifying finance agreements (in this section referred to as“new finance agreements”) entered into by the participating finance provider after such date as may be specified in the notice.

(7) An agreement under this section shall not apply to new finance agreements.

(8) In this section“yearly credit amount”means, in relation to any particular year, the aggregate of all credit amounts in respect of all qualifying finance agreements made in that year.]

4A. F19[Power of Minister to give guarantees in accordance with Covid-19 credit guarantee scheme

4A.(1) In the case of a credit guarantee scheme made to facilitate the provision of financial products to participating enterprises in response to the economic difficulties caused by Covid-19 (in this Act referred to as a "Covid-19 credit guarantee scheme")—

(a) any agreement entered into by the Minister undersection 4in accordance with that scheme shall be entered into on or before—

(i) subject tosubparagraph (ii), the 31st day of December 2020, or

(ii) subject tosubsection (2), such later date as the Minister may, with the consent of the Minister for Finance and the Minister for Public Expenditure and Reform, appoint by order if he or she is satisfied that there is good and sufficient reason for doing so due to ongoing economic difficulties caused by Covid-19,

and

(b) any guarantee given pursuant to that agreement shall not exceed a maximum duration of 6 years from the date of the agreement.

(2) The date that may be appointed by order under subsection (1)(a)(ii) shall be a date not later than theF20[31st day of December 2022].

(3) The Minister shall not exercise the powers conferred on him or her by section 4 in accordance with a Covid-19 credit guarantee scheme in such manner as would result in the aggregate of all credit amounts in respect of all Covid-19 qualifying finance agreements exceeding€2 billion.

(4) The Minister shall not exercise the powers conferred on him or her by section 4 in accordance with a Covid-19 credit guarantee scheme in such manner as would result in the aggregate of the Minister’s liability in respect of all Covid-19 qualifying finance agreements exceeding€1.6 billion.

(5) In this section—

"Covid-19" means a disease caused by infection with the virus SARS-CoV-2 and specified as an infectious disease in accordance with Regulation 6 of, and the Schedule to, the Infectious Diseases Regulations 1981 (S.I. No. 390 of 1981) or any variant of the disease so specified as an infectious disease in those Regulations;

"Covid-19 qualifying finance agreement", in relation to a Covid-19 credit guarantee scheme, means a qualifying finance agreement to which a guarantee given under section 4 in accordance with that scheme applies.]

4B. F21[Power of Minister to give guarantees in accordance with Ukraine credit guarantee scheme

4B.(1) In the case of a credit guarantee scheme made to facilitate the provision of financial products to participating enterprises in response to the economic difficulties resulting from the aggression against Ukraine by Russia (in this Act referred to as a "Ukraine credit guarantee scheme")—

(a) any guarantee given pursuant to an agreement entered into by the Minister undersection 4in accordance with that scheme shall not, with respect to any Ukraine qualifying finance agreement, have a duration greater than 6 years from the date on which such qualifying finance agreement was entered into, and

(b) any Ukraine qualifying finance agreement shall be entered into on or before the 31st day of December 2024.

(2) The Minister shall not exercise the powers conferred on him or her bysection 4in accordance with a Ukraine credit guarantee scheme in such manner as would result in the aggregate of all credit amounts in respect of all Ukraine qualifying finance agreements exceeding €1.2 billion.

(3) The Minister shall not exercise the powers conferred on him or her bysection 4in accordance with a Ukraine credit guarantee scheme in such manner as would result in the aggregate of the Minister’s liability in respect of all Ukraine qualifying finance agreements exceeding €960 million.

(4) In this section, "Ukraine qualifying finance agreement", in relation to a Ukraine credit guarantee scheme, means a qualifying finance agreement to which a guarantee given undersection 4in accordance with that scheme applies.]

5.. Credit guarantee scheme.

5.— (1) The Minister may, with the consent of the Minister for Finance and the Minister for Public Expenditure and Reform, make a scheme or schemes for the purposes of this Act.

(2) Without prejudice to the generality of subsection (1), a scheme under this section may make provision in relation to all or any of the following matters:

F22[(a) the giving of such information to the Minister, as he or she may reasonably require for the purposes of the granting of approval undersection 2or the making of an agreement undersection 4;]

(b) the extent of the Minister’s liability to a F22[participating finance provider] in accordance with an agreement under section 4 in circumstances where the F22[participating finance provider] fails or refuses to comply with this Act or a scheme under this section;

(c) variation of the terms of an agreement under section 4 in circumstances where a F22[participating finance provider] fails or refuses to comply with this Act or a scheme under this section;