Statutory Purpose of NAMA
The purpose of NAMA is to address the serious threat to the economy, to secure the stability of credit institutions and to deal with the need for the maintenance and stabilisation of the financial system in the State. In doing this, its further purposes are to address the compelling need:-
- to resolve the financial crises and achieve a recovery in the economy;
- to protect the State’s interest in respect of the guarantee of the liabilities of certain lenders;
- to protect the interests of taxpayers;
- to facilitate restructuring of credit institutions of systemic importance to the economy;
- to remove uncertainty about the valuation and location of certain assets of credit institutions of systemic importance to the economy;
- to restore confidence in the banking sector and underpin the effect of Government support measures in relation to that sector;
These objectives are significant as the legislation refers to them at several points as the purpose behind and context in which many of the new powers are created. The courts are to look to these objectives in interpreting certain powers and rights of NAMA.
The initial phase of the operation of NAMA will be the acquisition of the benefit of loans, mortgages and other securities by NAMA from ”participating institutions”. The designation covers the credit institution and all of its subsidiaries, other than those the Minister specifically excludes.
A participating institution is one which the Minister for Finance designates to be systemically important to the financial system of the State and in respect of which he determines that the acquisition of assets from the institution is necessary to achieve the purposes of NAMA, having regard to the support available to or received by it, its financial situation and the resources available to the Minister.
The Minister for Finance can designate classes of “eligible bank assets” (i.e. loan facilities and their attendant packages of securities) which are to be eligible for acquisition by NAMA. These include (but are not necessarily limited to) facilities:-
- wholly or partly for the purchase, exploitation or development of land;
- secured on development land;
- secured on the shares of or guaranteed by a company engaged in purchasing, exploiting or developing land; and
- certain associated facilities;
NAMA may also acquire other credit facilities and classes of facilities to debtors or persons associated with debtors, where the total amount of debt is such that their acquisition is necessary for achieving the purposes of NAMA. NAMA .may also acquire other rights, securities and assets associated with the facilities.
The Minister for Finance may also designate other class of bank assets for acquisition by NAMA, if he is of the opinion that this is necessary for achieving NAMA’s purposes. Only facilities entered prior to 2009 may be acquired. This does affect restructuring, renegotiation or refinancing after that date.
Where a participating institution has applied to NAMA, it has duties in relation to the way it deals with its eligible assets pending acquisition by NAMA. It may do nothing which prejudices NAMA’s interest. Participating institutions have obligations to co-operate fully and act in good faith in their dealings with NAMA. They must comply with directions by NAMA relating to its functions. They must fully and frankly disclose and explain all relevant material.
Once directed by NAMA, lending institutions are obliged to provide information in good faith in relation to any assets that may be eligible assets. This includes information regarding enforceability of the security. This may be required to be certified as accurate by the Chief Executive and Chief Financial Officer.
A report or certificate is required about each eligible bank assets and in relation to acquisition valuation. The institution is obliged to act in utmost good faith and must disclose anything that might materially affect NAMA’s decision to acquire the asset or the value placed on it by NAMA. NAMA is entitled to inspect all documents and records it requires.
Criteria for Acquisition
NAMA may acquire an eligible bank asset or an interest in the asset if it is necessary or desirable. NAMA need not acquire any asset it chooses not to acquire. In deciding to acquire as asset, it takes into account a range of factors including:
- adequacy of security;
- completion of security;
- economic value of security;
- whether the credit documents or security are defective;
- whether the institution has engaged in prejudicial conduct;
- whether the institution has complied with its obligations;
- whether a sufficient amount of the facility has been advanced;
- quality of title;
- legal, regulatory or planning compliance issues;
- the performance of the asset (loan);
- any matter disclosed on due diligence;
- its association with another asset;
- any material matter disclosed.
Once NAMA decides to acquire eligible bank assets, it draws up a schedule of the assets setting out:-
- the assets it will acquire;
- a statement of obligations and liabilities excluded from the acquisition;
- acquisition value;
- calculation of the acquisition value;
- obligations to be imposed on the institution after acquisition;
- date of acquisition;
- whether it is to pass to an entity owned by NAMA .
The acquisition schedule can be amended.
The service of the acquisition schedule transfers the assets to NAMA. This is notwithstanding any legal contractual or other restrictions on the acquisition, any restriction, incapacity or requirement for consent or licence, or any insignificant or immaterial error or any law to the contrary.
Objection may made by the participating institution to the inclusion of particular assets in the Acquisition Schedule. A review procedure exists.
Any mortgage or charge securing a bank asset transferred to NAMA is not invalidated by reason of the following:-
- contractual prohibitions;
- various companies acts defects such as acquisition of own shares, failure to register a charge, breach of restrictions on loans to directors and connected persons;
- failure to pass resolution approving transfer;
- being outside the powers of the company;
- by reason of the fact that the company was unable to pay its debts when the security was granted by reason of the absence of a necessary consent.
Purchase of Loans
The loans (bank assets) are purchased by debt securities issued by the Irish Government. The debt securities /Government bonds are created by the Minister for Finance and are exchanged by NAMA or its subsidiary entity upon the date of acquisition.
After the acquisition schedule is served by NAMA, the institution continues to manage the asset but may not make any change in them and must notify NAMA of any changes of which it becomes aware. All records, documents and books referring to the asset must be delivered to NAMA or its nominee.
When assets are transferred, the institution must give warranties (legally binding promises and undertakings), the details of which are to be prescribed in Regulations. This may include the following:-
- that the security is enforceable;
- that there is good and marketable title to the security;
- that the institution’s reports and certificate in relation to the asset are complete and correct;
- such other warranties as may be required.
Once transferred, the institution is to endeavour to give the debtor notice of the transfer. This is not a pre-condition of the transfer.
Where the transfer to NAMA, any acquisition or disposal by NAMA or anything necessary for the operation of NAMA triggers a right under the facility, security or other relevant agreement to terminate the agreement, changes the amounts due on it, changes the timing, cancels an obligation or otherwise adversely affects the agreement, then it is to have no effect, unless NAMA otherwise agrees. The Minister may order that if this is unduly onerous or causes hardship or undue unfairness, that this may be modified. Orders may be in relation to the effect of particular clauses of this nature in particular types of documents.
The only basis upon which an institution may object to the inclusion of an asset, is that it does not qualify as an eligible bank asset (see above). There is a procedure whereby an objection can be taken within seven days of service of an acquisition schedule or amended schedule to the inclusion of a particular asset.
If NAMA does not accept the objection, then the matter may be referred to an independent reviewer. Generally, the reviewer must render a decision within five days as to whether or not the asset is an eligible asset. The Minister may either confirm the acquisition or direct the amendment or revocation of the acquisition schedule.
If an institution objects to the acquisition value specified by NAMA, it may serve a notice within 14 days after the acquisition schedule or an amended schedule. NAMA may remove the asset or continue with its acquisition, but the institution may dispute the total portfolio acquisition value.
After completion of the acquisition, the institution may dispute the total portfolio value, if it is of the opinion that the value is incorrect having regard to the current market value of the assets and it has served notice in respect of at least 1/8th in value of its total portfolio. The reference to valuation does not affect the actual acquisition.
The matter of the valuation is referred to an independent valuation panel. The function of the valuation panel is to review the total portfolio acquisition value having regard to the current market value in accordance with the valuation criteria. On receipt of the advice of the valuation panel, the Minister for Finance can confirm the total portfolio acquisition value as advised or if he considers it wrong in a material respect, remit the matter to the valuation panel for reconsideration, setting out reasons.
Where the Minister’s determination is that the total acquisition value should be increased but the current market value of the portfolio is not greater than the acquisition value of the portfolio, no adjustment shall be made. Where the Minister decides that the total acquisition value should be increased, he may direct NAMA to compensate the institution by either return of assets equal in value or by giving further consideration such as in the form of cash or government securities. If there is a decrease, the institution repays the overpayment.
NAMA’s Rights and Powers
NAMA takes over the rights and powers of the participating institution in relation to the transferred assets. It also has substantial additional powers, which are likely to be controversial. These can only apply to Irish situate assets.
NAMA takes over all the rights of the participating institution under the facility and security documents. It may therefore take any one or more of the following actions:-
- personal action to enforce any debt;
- right to realise any security;
- right to call in a guarantee;
- right to participate in any resolution, work out restructuring, arrangement or re-organisation or scheme an insolvency as the institution itself may have had any rights conferred by any security documents.
NAMA is entitled to any right of set-off which the institution has against the borrower. It is entitled to direct the participating institution to pay an amount equal to the benefit of the right of set-off to meet any actual or contingent liability of the borrower. The participating institution may exercise the right of set-off only for the benefit of NAMA and at its direction. NAMA may direct an institution to exercise any right of set-off or combination of accounts and require it to account to NAMA for that purpose.
If any borrower or a party to a loan or security document alleges that any undertakings, representations or other obligations were made in his favour by the institution or someone on its behalf, which might affect the security, that were not disclosed to NAMA and are not disclosed in the written records of the institution with evidence of the consideration provided in return, then such undertaking is not enforceable against NAMA. It can only be enforced against the institution. There is a right of damages only against the institution by reason of any breach of such representations or side agreements.
Acquisition by NAMA does not affect the terms and conditions of the facility and the security. Where a facility has been acquired by NAMA it is to continue to be subject to the relevant institution’s reference interest rate for facilities of that type or at NAMA’s discretion another reference rate specified.
If for any reason, compliance with the terms or conditions of a facility is not reasonably practicable, NAMA may by notice in writing change the terms and conditions, so that the new term and condition is as nearly as possible equivalent to the original term or condition.
NAMA is not required to register in any registers to perfect its security, but it may do so. This would include, for example, obligations to register in the Companies Office or in the Land Registry or Registry of Deeds and other registers.
Where NAMA has acquired an asset, it is entitled to give directions in relation to it. For example, in the case of a transferred foreign asset, it may give directions to require the enforcement of any security or guarantee. These directions are binding on the institution and its subsidiaries in another State. The Irish situate holding company must ensure its subsidiaries comply notwithstanding that the subsidiary itself is not subject to Irish law being situated outside the jurisdiction.
NAMA has wide powers in relation to dealing with assets. Some of these powers could not have effect outside the jurisdiction. However the NAMA powers which are consistent with English law, such as its powers to do what any other person or company could do, will be effective in England and Wales.
NAMA may direct an institution to deal with assets which it has not acquired in a particular way. NAMA may agree, with the consent of the Minister for Finance, the arrangements in relation to servicing or bank assets it acquires. This may include an adjustment to the total acquisition value, performance fees and profits sharing, each on terms approved by the Department of Finance.
Services by Banks for NAMA
Where NAMA has acquired or intends to acquire an asset, the participating institution is to continue to perform the services of management, administration and enforcement until such time as NAMA directs otherwise. NAMA is entitled to direct an institution to perform services in relation to management, administration and enforcement in connection with the loan.
An institution may be required to enter an arrangement or agreement to perform services with NAMA. NAMA’s representatives are to have full access to its books. This arrangement may be revoked at any time.
The services may be for NAMA or another entity. An institution may, but is not obliged, to notify any borrower, guarantor etc. in relation to a direction by which it administers the facility on behalf of NAMA. All receivables and monies recovered are held on trust for NAMA.
Where NAMA has put in place an arrangement for the servicing of the facility, the borrower, guarantor and other relevant persons are obliged to deal with the service provider. The institution is obliged to do all such things as NAMA may direct or require to facilitate the assumption of the services.
Breaches by Lender
NAMA is not to have any of the liabilities of the participating institutions by reason of any breach of contract, representation or other terms which it may have committed prior to the transfer. If an institution becomes aware of any dealing, potential dealing, event or circumstances, in relation to the asset which would adversely affect the asset or NAMA’s rights, the institution must notify NAMA of the dealing, event or circumstance without delay.
No legal proceedings are to be taken against NAMA in relation to breach of contract, misrepresentation or wrong committed by the institution. The claimant concerned may be able to enforce such right against the institution itself.
Data Protection and Confidentiality
The general banker’s duties of confidentiality are modified for the purpose of the acquisition of lands and acts taken by institutions in relation to NAMA. Disclosures to NAMA and disclosures of books, documents and records is not a breach of confidentiality. Institution’s advisers can be obliged to provide information to NAMA. The same applies in respect of Data Protection Act.
Disclosure to Authorities
NAMA has obligations to pass information to the authorities including Garda Siochana, Revenue Commissioners, Director of Corporate Enforcement or other regulatory bodies where it believes an institution may have committed a criminal offence or may have contravened the law in relation to taxation, companies or financial services legislation.