1.1 What are the main trends/significant developments in the lending markets in your jurisdiction?
There are two key trends. First, a resurgence in property-based lending by banks and alternative lenders. There has been increased activity in property investment and development lending. The main players are banks taking the role of senior lender with alternative lenders providing mezzanine and/or equity finance. There is currently plenty of finance available to established players in the property development sector. Second, uncertainty as to the precise shape of the United Kingdom's post-Brexit relationship with the EU is impacting on the economy in general, and on some finance deals with a UK element.
1.2 What are some significant lending transactions that have taken place in your jurisdiction in recent years?
Consistent with the recent growth in development finance transactions, a significant recent lending transaction was financing in late 2015 by senior and mezzanine lenders of the O'Flynn Construction group's purchase of their loans from Carbon (Blackstone) and which were formerly in the National Asset Management Agency (the institution created by the State to purchase loans from Irish banks during the recession). The total funding package was €400 million with senior debt of €45 million. Maples acted for the senior lender. The transaction is significant not only because it its size, but also because it represented a major sign of turnaround in the property development finance scene.
2.1 Can a company guarantee borrowings of one or more other members of its corporate group (see below for questions relating to fraudulent transfer/financial assistance)?
Yes. (See below as to the potential impact of the corporate benefit rule.)
2.2 Are there enforceability or other concerns (such as director liability) if only a disproportionately small (or no) benefit to the guaranteeing/securing company can be shown?
The Companies Act 2014 ('CA 2014') largely abolishes the law of ultra vires (i.e. the rule that a company may not act for a purpose not expressly or impliedly provided for in its memorandum of association). However, CA 2014 does not address the basic and long-standing rule of company law that a company cannot enter into a transaction for no benefit ('the corporate benefit rule'). Accordingly, the prudent view is that the corporate benefit rule still applies in Ireland. Where a company enters into a transaction which does not benefit it, or benefits it only to a negligible degree, the transaction will be void. Directors who authorise such a transaction will be liable for breach of their statutory and fiduciary duties to the company. As regards intra-group transactions, however, Irish courts take a pragmatic approach and recognise that a commercial benefit accruing to a group company is likely to benefit indirectly other group companies. Accordingly, even in the case of an upstream guarantee (a guarantee given by a subsidiary for the parent's obligations), the corporate benefit to the parent is likely to be sufficient.
2.3 Is lack of corporate power an issue?
As noted at question 2.2, CA 2014 has largely abolished the law of ultra vires. Although a transaction outside the company's powers will be enforceable, shareholders may have a claim against the company for entering into such a transaction. The prudent view is that a lender should, notwithstanding CA 2014, still satisfy itself that the transaction is within the express or implied powers of the company. This is in order to avoid becoming indirectly involved with a dispute between the company and its shareholders.
2.4 Are any governmental or other consents or filings, or other formalities (such as shareholder approval), required?
Not in the case of a normal trading company. Where one or more of the shareholders in the company is a government minister, the constitutional documents may well provide that it should not enter into a guarantee without the consent of that minister. This will depend on the content of those documents.
2.5 Are net worth, solvency or similar limitations imposed on the amount of a guarantee?
No. However, see section 8 below as to insolvency law issues.
2.6 Are there any exchange control or similar obstacles to enforcement of a guarantee?
No. However, a lender should, if relevant, check that the transaction will not be impacted by Irish and international legislation designed to counter money laundering/terrorist financing.
3 COLLATERAL SECURITY
3.1 What types of collateral are available to secure lending obligations?
In principle, a lender can take security over any assets belonging to an Irish company.
The types of collateral security available under Irish law are as follows:
- Mortgage: this is the transfer of legal title to the asset as security for the obligation and a proviso that legal title will be transferred back to the obligor when it discharges its obligations. Mortgages are commonly encountered where the collateral comprises real estate, aircraft or ships.
- Charge: this is an agreement to make an asset available to the creditor to satisfy the underlying debt. This is the most common form of security under Irish law and is encountered where the collateral comprises real estate, intellectual property, bank accounts and securities. A charge may be fixed or floating in nature. A fixed charge is a charge which applies immediately upon execution of the charging instrument to make the asset available to the creditor if the chargor becomes insolvent or commits an event of default. A floating charge does not take effect immediately but upon certain defined events and/or if the creditor gives notice. The process by which a floating charge takes effect is called 'crystallisation'. Only a company may create a floating charge.
- Pledge: this is the transfer of possession of an asset to the creditor upon the agreement that possession of the asset will be transferred back when the secured obligation is discharged. Technically, true pledges are seldom encountered in commercial financings but the word is sometimes used to refer to a charge.
- Assignment: this is the transfer of legal or beneficial ownership in an asset upon the understanding that ownership is transferred back when the secured obligation is discharged. It is similar to a mortgage. It is mainly used for intangible assets such as debts and other receivables. The most secure form of an assignment is a legal assignment. This is the transfer of the whole asset, signed by the assignor, and where notice of the assignment is given to the underlying obligor, i.e. the debtor or payer of the receivable.
- Lien: a lien arises where a creditor has the right to withhold possession of an asset pending discharge of the secured obligation. A lien does not normally give rise to a right of sale. An exception to this is a banker's lien which traditionally involves the right not only to withhold possession of the asset but also to liquidate it. A lien can arise by agreement and, in certain circumstances, by operation of law – e.g. where a vehicle (such as a ship or aircraft) has been repaired or maintained and the owner has failed to pay for the repairs or maintenance, the service provider may retain possession until payment is received.
- Financial Collateral: security may be provided over relevant classes of instruments covered by the Financial Collateral Directive by way of collateral or title transfer. If the security option is chosen, recent case law from the Court of Justice of the European Union clarifies that the collateral taker must have practical and legal control over the posted collateral.
3.2 Is it possible to give asset security by means of a general security agreement or is an agreement required in relation to each type of asset? Briefly, what is the procedure?
It is possible to give asset security by means of a general security agreement. Where this is given by a company, it is frequently referred to as a 'debenture'. It is common practice, however, for a separate agreement to be used to effect a charge over shares, and a guarantee. Where security is created over real estate registered with the Property Registration Authority ('PRA'), a prescribed form is required.
3.3 Can collateral security be taken over real property (land), plant, machinery and equipment? Briefly, what is the procedure?
Yes. This is normally done by way of a general security agreement – i.e. a debenture. The collateral provider will execute the security by way of a deed and operative charging clauses will create security over different classes of assets which will be referred to generically, and, if possible, specifically. Where the real estate is registered with the PRA, a prescribed form must also be used.
3.4 Can collateral security be taken over receivables? Briefly, what is the procedure? Are debtors required to be notified of the security?
Yes. The best security over receivables is a legal assignment. This involves the assignor transferring ownership in the receivables to the creditor under a document signed by the assignor and where notice of the assignment is given to the debtor. This means that the assignee may sue for the debt, has priority over subsequent assignees (if any) and the debtor may not reduce the receivable by exercising a right of set-off against the assignor. Security may also be taken by way of a charge/equitable assignment or floating charge, but these are not as robust as a legal assignment.
3.5 Can collateral security be taken over cash deposited in bank accounts? Briefly, what is the procedure?
Yes. The best security over cash in a bank account is where the chargor is prohibited from withdrawing the cash, directing the cash to be paid to a third party, or transferring the account to a third party, without the consent of the creditor. This is referred to as a 'blocked account'. This may not be a commercially attractive form of security where the chargor requires ready access to the cash. In such a case, the collateral provider can create a floating charge over the account. This means that the charge does not become blocked until the floating charge crystallises either on a default and/or if the creditor gives a notice of crystallisation. However, a floating charge ranks behind preferential creditors such as the Irish Revenue Commissioners ('the Revenue'), and employees of the chargor in respect of unpaid wages, etc.
3.6 Can collateral security be taken over shares in companies incorporated in your jurisdiction? Are the shares in certificated form? Can such security validly be granted under a New York or English law governed document? Briefly, what is the procedure?
Yes: security can be taken over shares issued by an Irish company. Shares may be in certificated or uncertificated form. In general, a private company will typically issue its shares in certificated form. A public company whose shares are listed on the Stock Exchange will have to issue shares in uncertificated form. Security can in theory be granted over shares and be governed by the law of a jurisdiction other than Ireland, e.g. the State of New York, or England and Wales. However, it is recommended that security over shares in an Irish company should be governed by Irish law because most likely the security will have to be enforced in Ireland and Irish remedies utilised. Security over shares is typically created by way of a fixed charge. This will be executed as a deed and will require a number of deliverables such as the share certificates, stock transfer forms and directors' letters of resignation for use in a default situation.
3.7 Can security be taken over inventory? Briefly, what is the procedure?
Yes. This is created by way of a charge. If the chargor is a company, it is normal for the charge to be a floating charge so as to allow the company to sell the inventory in the course of its business so as to create an income stream.
3.8 Can a company grant a security interest in order to secure its obligations (i) as a borrower under a credit facility, and (ii) as a guarantor of the obligations of other borrowers and/or guarantors of obligations under a credit facility (see below for questions relating to the giving of guarantees and financial assistance)?
Yes, a company can grant security interest in order to secure such obligations.
3.9 What are the notarisation, registration, stamp duty and other fees (whether related to property value or otherwise) in relation to security over different types of assets?
When an Irish company creates security over certain types of asset, particulars must be registered with the Irish Companies Registration office (the 'CRO'). Where the collateral comprises certain classes of financial asset such as cash, bank account claims and securities, the security may well be exempt from registration under CA 2014 and the Financial Collateral Regulations. The same applies to an external company registered in Ireland creating security over Irish assets. Where security is created over Irish real estate, an appropriate filing will be made with the PRA. Furthermore, specific registration regimes also apply for ships, aircraft, patents, trade-marks and agricultural assets respectively.
Where the security comprises a fixed charge over book debts, notification should be made to the Revenue so as to protect the chargee's interests should the chargor default on certain tax obligations in the future.
Irish stamp duty is not payable on the creation of security. Stamp duty may be payable by the purchaser of assets being liquidated on an enforcement event. Documents are not required to be notarised under Irish law.
3.10 Do the filing, notification or registration requirements in relation to security over different types of assets involve a significant amount of time or expense?
This depends on the extent and complexity of the security arrangements. Filing fees are modest but great care must be taken in preparing filing documents because errors may cause security over the relevant assets to be void and corrections may require an application to be made to court or new security to be taken.
3.11 Are any regulatory or similar consents required with respect to the creation of security?
In general, no – but certain types of company may be subject to a regime which restricts the security it may grant. For example, a regulated financial service provider will be restricted in creating security over its regulatory capital or over assets required to meet obligations to customers.
3.12 If the borrowings to be secured are under a revolving credit facility, are there any special priority or other concerns?
In principle, no. However, the security should make it clear that the repayment of the facility does not extinguish the security and that the security operates to secure the outstanding amount owed at any given time by the debtor.
3.13 Are there particular documentary or execution requirements (notarisation, execution under power of attorney, counterparts, deeds)?
It is prudent for security to be executed as a deed. This means that there can be no disputes as to identifying consideration for the security and also that the relevant statute of limitations for claims will be 12 years instead of six.
4 FINANCIAL ASSISTANCE
4.1 Are there prohibitions or restrictions on the ability of a company to guarantee and/or give security to support borrowings incurred to finance or refinance the direct or indirect acquisition of: (a) shares of the company; (b) shares of any company which directly or indirectly owns shares in the company; or (c) shares in a sister subsidiary?
(a) Shares of the company
Yes: section 82 of CA 2014.
Where the party giving security is a private company, it can avail of a "whitewash" procedure which involves (amongst other things) the directors making a declaration that the company will not be rendered insolvent by giving the security. Where the company is a public company, it may not avail of the whitewash procedure, but other exemptions may apply.
(b) Shares of any company which directly or indirectly owns shares in the company
Yes: section 82 of CA 2014.
(c) Shares in a sister subsidiary
No: the prohibition only applies to shares in the company itself or in a holding company (direct or indirect).
5 SYNDICATED LENDING/AGENCY/TRUSTEE/TRANSFERS
5.1 Will your jurisdiction recognise the role of an agent or trustee and allow the agent or trustee (rather than each lender acting separately) to enforce the loan documentation and collateral security and to apply the proceeds from the collateral to the claims of all the lenders?
Yes. These structures are common in the Irish corporate market.
5.2 If an agent or trustee is not recognised in your jurisdiction, is an alternative mechanism available to achieve the effect referred to above which would allow one party to enforce claims on behalf of all the lenders so that individual lenders do not need to enforce their security separately?
This is not applicable in Ireland.
5.3 Assume a loan is made to a company organised under the laws of your jurisdiction and guaranteed by a guarantor organised under the laws of your jurisdiction. If such loan is transferred by Lender A to Lender B, are there any special requirements necessary to make the loan and guarantee enforceable by Lender B?
Lender B must give notice of the transfer of the loan, and the benefit of the guarantee, to the company and the guarantor respectively.
6 WITHHOLDING, STAMP AND OTHER TAXES; NOTARIAL AND OTHER COSTS
6.1 Are there any requirements to deduct or withhold tax from (a) interest payable on loans made to domestic or foreign lenders, or (b) the proceeds of a claim under a guarantee or the proceeds of enforcing security?
(a) Withholding – loan interest
Where a payment of Irish source yearly interest is made, Irish tax at 20% must be withheld unless an exemption applies.
Interest will typically have an Irish source if the borrower is Irish resident or an Irish branch or if the loan is secured on Irish real estate. Interest will be yearly interest if it is paid under a loan that is capable of lasting more than one year.
There are a number of exemptions from withholding which may apply if the conditions are satisfied. For example, there are exemptions for interest paid on an advance from a bank carrying on business in Ireland and for payments to a company that is resident in an EU Member State or a state with which Ireland has signed a double taxation agreement ('EU/treaty state') or which are exempted from tax by virtue of a double taxation agreement. There are also exemptions for payments to a "qualifying company" (within the meaning of section 110 of the Taxes Consolidation Act 1997) or payments by a "qualifying company" to a person resident for tax purposes in an EU/treaty state.
(b) Withholding – proceeds of guarantee/security
Where an interest payment obligation is discharged by a guarantor, or out of the proceeds of enforcing security, the analysis at (a) above should be relevant.
Where security includes Irish land or shares deriving their value from Irish land (and the proceeds of enforcement referable to those assets exceed €500,000) the purchaser is obliged to withhold Irish tax at 15% unless the seller provides a CG50A Tax Certificate from the Revenue Commissioners.
Where security is enforced, tax must be paid by the seller on any gains arising in priority to any secured liability.
6.2 What tax incentives or other incentives are provided preferentially to foreign lenders? What taxes apply to foreign lenders with respect to their loans, mortgages or other security documents, either for the purposes of effectiveness or registration?
There are no tax incentives provided preferentially to foreign lenders.
No taxes generally apply to foreign lenders with respect to their loans, mortgages or other security documents for the purposes of effectiveness or registration.
In limited circumstances, such as where a loan is convertible into Irish shares, stamp duty might arise on the acquisition of the loan by way of assignment. No stamp duty arises on origination or novation of a loan.
6.3 Will any income of a foreign lender become taxable in your jurisdiction solely because of a loan to or guarantee and/or grant of security from a company in your jurisdiction?
Pursuant to general Irish tax rules, unless otherwise exempt, a foreign lender in receipt of Irish source interest income would be liable to Irish income tax. There are, however, exemptions from such income tax in Irish law available in certain circumstances to lenders resident in an EU/treaty state.
A foreign lender may also be subject to capital gains tax on gains arising from the disposal of loans secured over Irish real estate, based on current Irish Revenue guidance. This is a highly technical area and advice should be taken.
6.4 Will there be any other significant costs which would be incurred by foreign lenders in the grant of such loan/guarantee/security, such as notarial fees, etc.?
No; see question 3.9 above.
6.5 Are there any adverse consequences to a company that is a borrower (such as under thin capitalisation principles) if some or all of the lenders are organised under the laws of a jurisdiction other than your own? Please disregard withholding tax concerns for purposes of this question.
Ireland does not have thin capitalisation rules. However, interest paid to a foreign lender that owns 75% of the shares in the Irish borrower may be regarded as a distribution and not tax-deductible in certain cases. However, this treatment is disapplied in a number of circumstances, including where the lender is resident in an EU Member State or pursuant to the terms of certain double taxation agreements.
7 JUDICIAL ENFORCEMENT
7.1 Will the courts in your jurisdiction recognise a governing law in a contract that is the law of another jurisdiction (a "foreign governing law")? Will courts in your jurisdiction enforce a contract that has a foreign governing law?
Yes – save for very limited exceptions and for certain consumer transactions. Yes – subject to the same exceptions.
7.2 Will the courts in your jurisdiction recognise and enforce a judgment given against a company in New York courts or English courts (a "foreign judgment") without re-examination of the merits of the case?
As regards New York courts, yes provided that the defendant has validly submitted to the jurisdiction of the courts of New York and the judgment is not for the recovery of tax. As regards English courts, the current answer is yes but this may change in the light of the outcome of the United Kingdom's negotiations on leaving the EU.
7.3 Assuming a company is in payment default under a loan agreement or a guarantee agreement and has no legal defence to payment, approximately how long would it take for a foreign lender to (a) assuming the answer to question 7.1 is yes, file a suit against the company in a court in your jurisdiction, obtain a judgment, and enforce the judgment against the assets of the company, and (b) assuming the answer to question 7.2 is yes, enforce a foreign judgment in a court in your jurisdiction against the assets of the company?
If the claim is admitted to the Commercial List of the High Court, judgment can be obtained within a period of four weeks or thereabouts. If the claim is not admitted to the Commercial List this period can take up to nine months. In general, a claim for over €1 million which is issued promptly will normally be admitted to the Commercial List.
7.4 With respect to enforcing collateral security, are there any significant restrictions which may impact the timing and value of enforcement, such as (a) a requirement for a public auction, or (b) regulatory consents?
In general, no. However, in certain circumstances it may be necessary to hold an auction of real estate if this is the only way of ensuring that the best price reasonably obtainable is achieved.
7.5 Do restrictions apply to foreign lenders in the event of (a) filing suit against a company in your jurisdiction, or (b) foreclosure on collateral security?
No, restrictions do not apply.
7.6 Do the bankruptcy, reorganisation or similar laws in your jurisdiction provide for any kind of moratorium on enforcement of lender claims? If so, does the moratorium apply to the enforcement of collateral security?
Yes: there is a debtor in possession process called examinership, which provides for a moratorium for companies of up to 100 days. The moratorium will prevent the enforcement of collateral security except where the security is in the form of collateral under the Financial Collateral regime. It is also possible to exercise a right of set-off during the moratorium period.
7.7 Will the courts in your jurisdiction recognise and enforce an arbitral award given against the company without re-examination of the merits?
Yes, subject to a number of very limited circumstances. As a jurisdiction, Ireland is very supportive of providing certainty within the arbitral process while maintaining the independence of that process and protecting the autonomy of the parties who have chosen to arbitrate.
Ireland ratified the New York Convention on the Recognition and Enforcement of Foreign Arbitral Awards (the 'New York Convention') in 1981 and no reservations have been entered.
The Arbitration Act 2010 (the '2010 Act'), which adopted the UNCITRAL Model Law, as amended in 2006 (the 'Model Law'), with some minimal amendments, applies to all arbitrations, both domestic and international. The grounds for challenging an arbitral award before the Irish High Court under the 2010 Act are limited to those expressly enumerated under Article 34(2) of the Model Law (which mirrors the grounds on which recognition and enforcement might be refused under the New York Convention as per Article 36 of the Model Law). The timelines for challenges are limited. The jurisprudence suggests Irish courts will construe the ground of public policy as extending only to breaches of the most fundamental notions of morality and justice.
As a signatory to the New York Convention, Ireland supports the recognition and enforcement of foreign arbitral awards. Article 36 of the Model Law as adopted by the 2010 Act prescribes the limited grounds upon which an Irish court can refuse the recognition or enforcement of a foreign arbitral award. Again, the grounds prescribed mirror those prescribed under the New York Convention.
8 BANKRUPTCY PROCEEDINGS
8.1 How does a bankruptcy proceeding in respect of a company affect the ability of a lender to enforce its rights as a secured party over the collateral security?
A lender can enforce its rights as a secured party where the company which has granted security is in bankruptcy (liquidation). A secured lender may enforce its security and if this is insufficient to discharge the debt, the lender may claim the balance in the liquidation process.
8.2 Are there any preference periods, clawback rights or other preferential creditors' rights (e.g., tax debts, employees' claims) with respect to the security?
There are provisions in Irish company law which allow for transactions which perpetrate a fraud on creditors to be unwound. A floating charge granted within 12 months of insolvency is invalid if no new moneys are lent to the company. (The period is three years where the floating chargee is connected to the company, e.g. a director.) A floating charge ranks behind preferential creditors such as the Revenue, employees in respect of unpaid salaries and local authorities in respect of rates and certain other payments.
8.3 Are there any entities that are excluded from bankruptcy proceedings and, if so, what is the applicable legislation?
All trading companies in Ireland are subject to CA 2014.
8.4 Are there any processes other than court proceedings that are available to a creditor to seize the assets of a company in an enforcement?
Other than certain "self-help" remedies such as exercising a right of set-off, repossession of goods subject to a valid retention of title clause and exercising a lien on assets, no.
9 JURISDICTION AND WAIVER OF IMMUNITY
9.1 Is a party's submission to a foreign jurisdiction legally binding and enforceable under the laws of your jurisdiction?
Yes, it is legally binding and enforceable under Irish law.
9.2 Is a party's waiver of sovereign immunity legally binding and enforceable under the laws of your jurisdiction?
In principle, an Irish court will recognise a party's waiver of sovereign immunity.
10.1 What are the licensing and other eligibility requirements in your jurisdiction for lenders to a company in your jurisdiction, if any? Are these licensing and eligibility requirements different for a "foreign" lender (i.e. a lender that is not located in your jurisdiction)? In connection with any such requirements, is a distinction made under the laws of your jurisdiction between a lender that is a bank versus a lender that is a non-bank? If there are such requirements in your jurisdiction, what are the consequences for a lender that has not satisfied such requirements but has nonetheless made a loan to a company in your jurisdiction? What are the licensing and other eligibility requirements in your jurisdiction for an agent under a syndicated facility for lenders to a company in your jurisdiction?
Where loans are made to companies a lender does not require an authorisation from the relevant regulator, the Central Bank of Ireland (the 'CBI'). However, all lenders must comply with anti-money laundering/terrorist finance requirements under the Criminal Justice (Money Laundering and Terrorist Offences) Act 2010. Lenders will also be required to make statistical reports to the CBI under the Credit Reporting Act 2013. Irish law would likely apply to a foreign lender lending to persons located in Ireland. A lender which carries on business as a bank will have to obtain an authorisation from the CBI. Carrying on banking business without an authorisation is a criminal offence. It is also possible that any loans made by the lender will not be recoverable. Provided that an agent under a syndicated facility is not also carrying on banking business, it will not normally require a banking licence. In some circumstances a party purchasing consumer or SME loans from an institution regulated by the CBI (or an EU equivalent banking regulator) may be required to become, or appoint, an authorised credit servicer.
11 OTHER MATTERS
11.1 Are there any other material considerations which should be taken into account by lenders when participating in financings in your jurisdiction?
Care should be taken when lending to individuals, either acting as such or in partnership. Such lending is likely to be captured by the retail credit regime which requires a CBI licence. Furthermore, an entity which purchases loans and associated securities from a bank authorised by the CBI in Ireland or which carries on business in Ireland passporting from another EU Member State will have to appoint a credit servicer to service the portfolio. This is in order to ensure that regulatory protections formerly enjoyed by the borrowers will continue even though the loans and security have been transferred.
This article first appeared in The International Comparative Legal Guide: Lending & Secured Finance 2017 published by Global Legal Group in April 2017.
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.