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1 | AN ACT concerning regulation.
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2 | Be it enacted by the People of the State of Illinois,
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3 | represented in the General Assembly:
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4 | Section 5. The Illinois Banking Act is amended by changing | ||||||
5 | Section 35.2 as follows:
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6 | (205 ILCS 5/35.2) (from Ch. 17, par. 345)
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7 | Sec. 35.2. Limitations on investments in and loans to | ||||||
8 | affiliates.
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9 | (a) Restrictions on transactions with affiliates.
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10 | (1) A state bank and
its subsidiaries may engage in a | ||||||
11 | covered transaction with an affiliate,
as expressly | ||||||
12 | provided in this Section 35.2, only if:
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13 | (A) in the case of any one affiliate, the aggregate | ||||||
14 | amount of covered
transactions of the state bank and | ||||||
15 | its subsidiaries will not exceed 10%
of the unimpaired | ||||||
16 | capital and unimpaired surplus of the state bank; and
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17 | (B) in the case of all affiliates, the aggregate | ||||||
18 | amount of covered
transactions of the state bank and | ||||||
19 | its subsidiaries will not exceed 20% of
the unimpaired | ||||||
20 | capital and unimpaired surplus of the state bank.
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21 | (2) For the purpose of this Section, any transactions | ||||||
22 | by a state bank
with any person shall be deemed to be a | ||||||
23 | transaction with an affiliate to
the extent that the |
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1 | proceeds of the transaction are used for the benefit
of, or | ||||||
2 | transferred to, that affiliate.
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3 | (3) A state bank and its subsidiaries may not purchase | ||||||
4 | a low-quality asset
from an affiliate unless the bank or | ||||||
5 | such subsidiary, pursuant to an
independent credit | ||||||
6 | evaluation, committed itself to purchase such asset
prior | ||||||
7 | to the time such asset was acquired by the affiliate.
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8 | (4) Any covered transactions and any transactions | ||||||
9 | exempt under subsection
(d) between a state bank and an | ||||||
10 | affiliate shall be on terms and conditions
that are | ||||||
11 | consistent with safe and sound banking practices.
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12 | (b) Definitions. For the purpose of this Section, the | ||||||
13 | following rules
and definitions apply:
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14 | (1) "Affiliate" with respect to a state bank means
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15 | (A) any company that controls the state bank and | ||||||
16 | any other company that
is controlled by the company | ||||||
17 | that controls the state bank;
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18 | (B) a bank subsidiary of the state bank;
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19 | (C) any company
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20 | (i) controlled directly or indirectly, by a | ||||||
21 | trust or otherwise, by
or for the benefit of | ||||||
22 | shareholders who beneficially or otherwise | ||||||
23 | control,
directly or indirectly, by trust or | ||||||
24 | otherwise, the state bank or any
company
that | ||||||
25 | controls the state
bank; or
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26 | (ii) a majority of the directors or trustees of |
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1 | which constitute a
majority
of the persons holding | ||||||
2 | any such office with the state bank or any company
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3 | that controls the state bank;
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4 | (D) (i) any company, including a real estate | ||||||
5 | investment trust, that is
sponsored and advised on | ||||||
6 | a contractual basis by the state bank or any
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7 | subsidiary or affiliate of the state bank; or
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8 | (ii) any investment company with respect to | ||||||
9 | which a state bank or any
affiliate thereof is an | ||||||
10 | investment advisor. An investment advisor is | ||||||
11 | defined
as "any person (other than a bona fide | ||||||
12 | officer, director, trustee, member
of an advisory | ||||||
13 | board, or employee of such company, as such) who | ||||||
14 | pursuant
to contract with such company regularly | ||||||
15 | furnishes advice to such company,
with respect to | ||||||
16 | the desirability or investing in, purchasing, or | ||||||
17 | selling
securities or other property shall be | ||||||
18 | purchased or sold by such company,
and any other | ||||||
19 | who pursuant to contract with a person as described | ||||||
20 | above
regularly performs substantially all of the | ||||||
21 | duties undertaken by such person
described above; | ||||||
22 | but does not include a person whose advice is | ||||||
23 | furnished
solely through uniform publications to | ||||||
24 | subscribers thereto or a person who
furnishes only | ||||||
25 | statistical and other factual information, advice | ||||||
26 | regarding
economic factors and trends, or advice |
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1 | as to occasional transactions in
specific | ||||||
2 | securities, but without generally furnishing | ||||||
3 | advice or making
recommendations regarding the | ||||||
4 | purchase or sale of securities, or a company
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5 | furnishing such services at cost to one or more | ||||||
6 | investment companies,
insurance companies or other | ||||||
7 | financial institutions, or any person the
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8 | character and amount of whose compensation for | ||||||
9 | such services must be approved
by a court.
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10 | (E) any company the Commissioner determines as | ||||||
11 | having a relationship
with
the state bank or any | ||||||
12 | subsidiary or affiliate of the state bank, such that
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13 | covered transactions by the state bank or its | ||||||
14 | subsidiary with the company
may be affected by the | ||||||
15 | relationship to the detriment of the state bank or
its | ||||||
16 | subsidiary.
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17 | (2) None of the following are considered to be an | ||||||
18 | affiliate:
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19 | (A) any company, other than a bank, that is a | ||||||
20 | subsidiary of a state
bank,
unless a determination is | ||||||
21 | made under subparagraph (E) of paragraph (1) not
to | ||||||
22 | exclude such subsidiary company from the definition of | ||||||
23 | affiliate;
| ||||||
24 | (B) any company engaged solely in holding the | ||||||
25 | premises of the state
bank;
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26 | (C) any company engaged solely in conducting a safe |
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1 | deposit business;
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2 | (D) any company engaged solely in holding | ||||||
3 | obligations of the United
States
or its agencies or | ||||||
4 | obligations fully guaranteed by the United States or
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5 | its agencies as to principal and interest; and
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6 | (E) any company where control results from the | ||||||
7 | exercise of rights
arising
out of a bona fide debt | ||||||
8 | previously contracted, but only for the period of
time | ||||||
9 | specifically authorized under applicable State and | ||||||
10 | federal law or
regulations or, in the absence of such | ||||||
11 | law or regulation, for a period of 2
years from the | ||||||
12 | date of the exercise of such rights or the effective | ||||||
13 | date of
this Act, whichever date is later, subject, | ||||||
14 | upon application, to
authorization by the Commissioner | ||||||
15 | for good cause shown of extensions of
time for not more | ||||||
16 | than one year at a time, with such extensions not to
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17 | exceed an aggregate of 3 years.
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18 | (3) (A) A company or shareholder has control over | ||||||
19 | another company if
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20 | (i) such company or shareholder, directly or | ||||||
21 | indirectly, or acting
through
one or more other | ||||||
22 | persons, owns, controls, or has power to vote 25% | ||||||
23 | or more
of any class of voting securities of the | ||||||
24 | other company;
| ||||||
25 | (ii) such company or shareholder controls in | ||||||
26 | any manner the election
of a majority of the |
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1 | directors or trustees of the other company; or
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2 | (iii) the Commissioner determines, after | ||||||
3 | notice and opportunity for
hearing, that such | ||||||
4 | company or shareholder, directly or indirectly,
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5 | exercises a controlling influence over the | ||||||
6 | management or policies of the
other company.
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7 | (B) Notwithstanding any other provisions of this | ||||||
8 | Section, no company
shall be deemed to own or control | ||||||
9 | another company by virtue of its
ownership or control | ||||||
10 | of shares in a fiduciary capacity, except as provided
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11 | in subparagraph (C) of paragraph (1) or because of its | ||||||
12 | ownership or control
of such shares in a business | ||||||
13 | trust.
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14 | (4) "Subsidiary" with respect to a specified company | ||||||
15 | means a company that
is controlled by such specified | ||||||
16 | company.
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17 | (5) "Bank" means any bank now or hereafter organized | ||||||
18 | under the laws of
any State or territory of the United | ||||||
19 | States including the District of Columbia,
any national | ||||||
20 | bank, and any trust company.
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21 | (6) "Company" means a corporation, partnership, | ||||||
22 | business trust,
association,
or similar organization and, | ||||||
23 | unless specifically excluded, includes a "state
bank" and a | ||||||
24 | "bank".
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25 | (7) "Covered transaction" means, with respect to an | ||||||
26 | affiliate of a
state bank,
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1 | (A) a loan or extension of credit to the affiliate;
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2 | (B) a purchase of or an investment in securities | ||||||
3 | issued by the
affiliate;
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4 | (C) a purchase of assets, including assets subject | ||||||
5 | to an agreement to
repurchase, from the affiliate, | ||||||
6 | except such purchases of real and personal
property as | ||||||
7 | may be specifically exempted by the Commissioner;
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8 | (D) the acceptance of securities issued by the | ||||||
9 | affiliate as collateral
security for a loan or | ||||||
10 | extension of credit to any person or company; or
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11 | (E) the issuance of a guarantee, acceptance, or | ||||||
12 | letter of credit,
including
an endorsement or standby | ||||||
13 | letter of credit, on behalf of an affiliate.
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14 | (8) "Aggregate amount of covered transactions" means | ||||||
15 | the amount of
covered transactions about to be engaged in | ||||||
16 | added to the current amount of
all outstanding covered | ||||||
17 | transactions.
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18 | (9) "Securities" means stocks, bonds, debentures, | ||||||
19 | notes or other similar
obligations.
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20 | (10) "Low-quality asset" means an asset that falls into | ||||||
21 | any one or more
of the following categories:
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22 | (A) an asset classified as "substandard", | ||||||
23 | "doubtful", or "loss" or
treated
as "other loans | ||||||
24 | especially mentioned" in the most recent report of | ||||||
25 | examination
of an affiliate;
| ||||||
26 | (B) an asset in a nonaccrual status;
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1 | (C) an asset on which principal or interest | ||||||
2 | payments are more than 30
days past due; or
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3 | (D) an asset whose terms have been renegotiated or | ||||||
4 | compromised due to
the deteriorating financial | ||||||
5 | condition of the obligor.
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6 | (c) Collateral for certain transactions with affiliates.
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7 | (1) Each loan
or extension of credit to, or guarantee, | ||||||
8 | acceptance or letter of credit
issued on behalf of, an | ||||||
9 | affiliate by a state bank or its subsidiary shall
be | ||||||
10 | secured at the time of the transaction by collateral having | ||||||
11 | a market value
equal to
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12 | (A) 100% of the amount of such loan or extension of | ||||||
13 | credit, guarantee,
acceptance, or letter of credit, if | ||||||
14 | the collateral is composed of
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15 | (i) obligations of the United States or its | ||||||
16 | agencies;
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17 | (ii) obligations fully guaranteed by the | ||||||
18 | United States or its agencies
as to principal and | ||||||
19 | interest;
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20 | (iii) notes, drafts, bills of exchange or | ||||||
21 | bankers' acceptances that
are
eligible for | ||||||
22 | rediscount or purchase by a Federal Reserve Bank; | ||||||
23 | or
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24 | (iv) a segregated, earmarked deposit account | ||||||
25 | with the state bank;
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26 | (B) 110% of the amount of such loan or extension of |
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1 | credit, guarantee,
acceptance or letter of credit if | ||||||
2 | the collateral is composed of obligations
of any state | ||||||
3 | or political subdivision of any State;
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4 | (C) 120% of the amount of such loan or extension of | ||||||
5 | credit, guarantee,
acceptance, or letter of credit if | ||||||
6 | the collateral is composed of other debt
instruments, | ||||||
7 | including receivables; and
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8 | (D) 130% of the amount of such loan or extension of | ||||||
9 | credit, guarantee,
acceptance or letter of credit if | ||||||
10 | the collateral is composed of stock, leases,
or other | ||||||
11 | real or personal property.
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12 | (2) Any such collateral that is subsequently retired or | ||||||
13 | amortized shall
be replaced by additional eligible | ||||||
14 | collateral where needed to keep the
percentage of the | ||||||
15 | collateral value relative to the amount of the
outstanding | ||||||
16 | loan or extension of credit, guarantee, acceptance, or | ||||||
17 | letter
of credit equal to the minimum percentage required | ||||||
18 | at the inception of the
transaction.
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19 | (3) A low-quality asset shall not be acceptable as | ||||||
20 | collateral for a loan
or extension of credit to, or | ||||||
21 | guarantee, acceptance, or letter of credit
issued on behalf | ||||||
22 | of, an affiliate.
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23 | (4) The securities issued by an affiliate of the state | ||||||
24 | bank shall not
be acceptable as collateral for a loan or | ||||||
25 | extension of credit to, or guarantee,
acceptance or letter | ||||||
26 | of credit issued on behalf of, that affiliate or any
other |
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1 | affiliate of the state bank.
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2 | (5) The collateral requirements of this paragraph do | ||||||
3 | not apply to an
acceptance that is already fully secured | ||||||
4 | either by attached documents or by
other property having an | ||||||
5 | ascertainable market value that is involved in the
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6 | transaction.
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7 | (d) Exemptions. The provisions of this Section, except | ||||||
8 | paragraph (4) of
subsection (a), shall not be applicable to
the | ||||||
9 | following as to which there shall be no limitation:
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10 | (1) any transaction, subject to the prohibition | ||||||
11 | contained in paragraph
(3) of subsection (a), with a bank
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12 | (A) which controls 80% or more of the voting shares | ||||||
13 | of the state bank;
| ||||||
14 | (B) in which the state bank controls 80% or more of | ||||||
15 | the voting shares;
or
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16 | (C) in which 80% or more of the voting shares are | ||||||
17 | controlled by the
company
that controls 80% or more of | ||||||
18 | the voting shares of the state bank;
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19 | (2) making deposits in an affiliated bank or affiliated | ||||||
20 | foreign bank in
the ordinary course of correspondent | ||||||
21 | business, subject to any restrictions
that the | ||||||
22 | Commissioner may prescribe;
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23 | (3) giving immediate credit to an affiliate for | ||||||
24 | uncollected items received
in the ordinary course of | ||||||
25 | business;
| ||||||
26 | (4) making a loan or extension of credit to, or issuing |
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1 | a guarantee,
acceptance, or letter of credit on behalf of, | ||||||
2 | an affiliate that is fully
secured by
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3 | (A) obligations of the United States or its | ||||||
4 | agencies;
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5 | (B) obligations fully guaranteed by the United | ||||||
6 | States or its agencies
as to principal and interest; or
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7 | (C) a segregated, earmarked deposit account with | ||||||
8 | the state bank;
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9 | (5) purchasing securities issued by any company of the | ||||||
10 | kinds described
as follows:
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11 | Shares of any company engaged or to be engaged solely | ||||||
12 | in one or more of
the following activities: holding or | ||||||
13 | operating properties used wholly or
substantially by any | ||||||
14 | banking subsidiary of such bank holding company in
the | ||||||
15 | operations of such banking subsidiary or acquired for such | ||||||
16 | future use;
or conducting a safe deposit business; or | ||||||
17 | furnishing services to or
performing services for such bank | ||||||
18 | holding company or its banking
subsidiaries; or | ||||||
19 | liquidating assets acquired from such bank holding company
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20 | or its banking subsidiaries or acquired from any other | ||||||
21 | source prior to May
9, 1956, or the date on which such | ||||||
22 | company became a bank holding company,
whichever is later;
| ||||||
23 | (6) purchasing assets having a readily identifiable | ||||||
24 | and publicly available
market quotation and purchased at | ||||||
25 | the market quotation or, subject to the
prohibition | ||||||
26 | contained in paragraph (3) of subsection (a), purchasing |
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1 | loans
on a nonrecourse basis from affiliated banks; and
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2 | (7) purchasing from an affiliate a loan or extension of | ||||||
3 | credit that was
originated by the state bank and sold to | ||||||
4 | the affiliate subject to a repurchase
agreement or with | ||||||
5 | recourse.
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6 | (e) Notwithstanding the provisions of this Section, a state | ||||||
7 | bank and its subsidiaries in compliance with the provisions of | ||||||
8 | Regulation W [12 C.F.R. Part 223] promulgated by the Board of | ||||||
9 | Governors of the Federal Reserve, as amended from time to time, | ||||||
10 | shall be deemed to be in compliance with this Section.
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11 | This Section shall apply to any transaction entered into | ||||||
12 | after January
1, 1984, except for transactions which are the | ||||||
13 | subject of a binding written
contract or commitment entered | ||||||
14 | into on or before July 28, 1982, and except
that any renewal of | ||||||
15 | a participation in a loan outstanding on July 28, 1982,
to a | ||||||
16 | company that becomes an affiliate as a result of the enactment | ||||||
17 | of this
Act, or any participation in a loan to such an | ||||||
18 | affiliate emanating from the
renewal of a binding written | ||||||
19 | contract or commitment outstanding on July 28,
1982, shall not | ||||||
20 | be subject to the collateral requirements of this Act.
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21 | (Source: P.A. 88-546; 89-364, eff. 8-18-95.)
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22 | Section 10. The Banking Emergencies Act is amended by | ||||||
23 | changing Section 2 as follows:
| ||||||
24 | (205 ILCS 610/2) (from Ch. 17, par. 1002)
|
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1 | Sec. 2. Power of Commissioner. | ||||||
2 | (a) Whenever the Commissioner is notified by any officer of | ||||||
3 | a bank or by any
other means becomes aware that an
emergency | ||||||
4 | exists, or is impending, he may, by proclamation, authorize all | ||||||
5 | banks in the State
of Illinois to close any or all of their | ||||||
6 | offices, or if only a
bank or banks, or offices thereof, in a | ||||||
7 | particular
area or areas of the State of Illinois are affected | ||||||
8 | by the emergency or
impending
emergency, the Commissioner may | ||||||
9 | authorize only the affected bank, banks, or
offices thereof, to | ||||||
10 | close. The office or offices so closed may remain closed
until
| ||||||
11 | the Commissioner declares, by further proclamation, that the | ||||||
12 | emergency or
impending emergency has ended. The
Commissioner | ||||||
13 | during an emergency or while an impending emergency exists,
| ||||||
14 | which affects, or may affect, a particular bank or banks, or a | ||||||
15 | particular
office or offices thereof, but not banks located in | ||||||
16 | the area generally of
the said county or municipality, may | ||||||
17 | authorize the particular bank or
banks, or office or offices so | ||||||
18 | affected, to close. The office or offices so
closed shall | ||||||
19 | remain closed until the Commissioner is notified by a bank
| ||||||
20 | officer of the closed bank that the emergency has ended. The | ||||||
21 | Commissioner
shall notify, at such time, the officers of the | ||||||
22 | bank that one or more
offices, heretofore closed because of the | ||||||
23 | emergency, should reopen and, in
either event, for such further | ||||||
24 | time thereafter as may reasonably be
required to reopen.
| ||||||
25 | (b) Whenever the Commissioner becomes aware that an | ||||||
26 | emergency exists, or is impending, he or she may, by |
| |||||||
| |||||||
1 | proclamation, authorize any bank organized under the laws of | ||||||
2 | another state, or of the United States, to open and operate | ||||||
3 | offices in this State, notwithstanding any other laws of this | ||||||
4 | State to the contrary. Any office or offices opened in | ||||||
5 | accordance with this subsection may remain open until the | ||||||
6 | Commissioner declares, by further proclamation, that the | ||||||
7 | emergency or impending emergency has ended. The Department of | ||||||
8 | Financial and Professional Regulation shall adopt rules to | ||||||
9 | implement this subsection (b).
| ||||||
10 | (Source: P.A. 92-483, eff. 8-23-01.)
| ||||||
11 | Section 15. The Financial Institutions Electronic | ||||||
12 | Documents and Digital Signature Act is amended by changing | ||||||
13 | Sections 5 and 10 as follows:
| ||||||
14 | (205 ILCS 705/5)
| ||||||
15 | Sec. 5. Definitions. As used in this Act:
| ||||||
16 | "Digital signature" means an encrypted
electronic | ||||||
17 | identifier, created by computer, intended by the party using it | ||||||
18 | to
have the same force and effect as the use of a manual | ||||||
19 | signature.
| ||||||
20 | "Financial institution" means a bank,
a savings
and loan | ||||||
21 | association, a savings bank, or
a credit
union or any | ||||||
22 | subsidiary or affiliate of a bank, savings and loan | ||||||
23 | association, savings bank, or credit union .
| ||||||
24 | "Substitute check" means a paper reproduction of an |
| |||||||
| |||||||
1 | original check, as defined in the Check Clearing for the 21st | ||||||
2 | Century Act (12 U.S.C. 5001, et seq.), as amended from time to | ||||||
3 | time, and the rules promulgated thereunder.
| ||||||
4 | (Source: P.A. 94-458, eff. 8-4-05.)
| ||||||
5 | (205 ILCS 705/10)
| ||||||
6 | Sec. 10. Electronic documents; digital signatures ; | ||||||
7 | electronic notices .
| ||||||
8 | (a) Electronic documents. If in the regular course of | ||||||
9 | business, a financial institution possesses,
records, or | ||||||
10 | generates any document, representation, image, substitute | ||||||
11 | check, reproduction, or
combination thereof, of any agreement, | ||||||
12 | transaction, act, occurrence, or event
by any electronic or | ||||||
13 | computer-generated process that accurately reproduces,
| ||||||
14 | comprises, or records the agreement, transaction, act, | ||||||
15 | occurrence, or event,
the recording, comprising, or | ||||||
16 | reproduction shall have the same force and effect under the | ||||||
17 | laws of this State
as one comprised, recorded, or created on | ||||||
18 | paper or other tangible form by
writing, typing, printing, or | ||||||
19 | similar means.
| ||||||
20 | (b) Digital signatures. In any communication, | ||||||
21 | acknowledgement, agreement, or contract between a
financial | ||||||
22 | institution and its customer, in which a signature is required | ||||||
23 | or
used, any party to the communication, acknowledgement, | ||||||
24 | agreement, or contract
may affix a signature by use of a | ||||||
25 | digital signature, and the digital signature,
when lawfully |
| |||||||
| |||||||
1 | used by the person whose signature it purports to be,
shall | ||||||
2 | have the same force and effect as the use of a manual signature | ||||||
3 | if it is
unique to the person using it, is capable of | ||||||
4 | verification, is under the sole
control of the person using it, | ||||||
5 | and is linked to data in such a manner that if
the data are | ||||||
6 | changed, the digital signature is invalidated. Nothing in this
| ||||||
7 | Section shall require any financial institution or customer to | ||||||
8 | use or permit
the use of a digital signature.
| ||||||
9 | (c) Electronic notices. | ||||||
10 | (1) Consent to electronic records. If a statute, | ||||||
11 | regulation, or other rule of law requires that information | ||||||
12 | relating to a transaction or transactions in or affecting | ||||||
13 | intrastate commerce in this State be provided or made | ||||||
14 | available by a financial institution to a consumer in | ||||||
15 | writing, the use of an electronic record to provide or make | ||||||
16 | available that information satisfies the requirement that | ||||||
17 | the information be in writing if: | ||||||
18 | (A) the consumer has affirmatively consented to | ||||||
19 | the use of an electronic record to provide or make | ||||||
20 | available that information and has not withdrawn | ||||||
21 | consent; | ||||||
22 | (B) the consumer, prior to consenting, is provided | ||||||
23 | with a clear and conspicuous statement: | ||||||
24 | (i) informing the consumer of: | ||||||
25 | (I) any right or option of the consumer to | ||||||
26 | have the record provided or made available on |
| |||||||
| |||||||
1 | paper or in nonelectronic form, and | ||||||
2 | (II) the right of the consumer to withdraw | ||||||
3 | the consent to have the record provided or made | ||||||
4 | available in an electronic form and of any | ||||||
5 | conditions, consequences (which may include | ||||||
6 | termination of the parties' relationship), or | ||||||
7 | fees in the event of a withdrawal of consent; | ||||||
8 | (ii) informing the consumer of whether the | ||||||
9 | consent applies: | ||||||
10 | (I) only to the particular transaction | ||||||
11 | that gave rise to the obligation to provide the | ||||||
12 | record, or | ||||||
13 | (II) to identified categories of records | ||||||
14 | that may be provided or made available during | ||||||
15 | the course of the parties' relationship; | ||||||
16 | (iii) describing the procedures the consumer | ||||||
17 | must use to withdraw consent, as provided in clause | ||||||
18 | (i), and to update information needed to contact | ||||||
19 | the consumer electronically; and | ||||||
20 | (iv) informing the consumer: | ||||||
21 | (I) how, after the consent, the consumer | ||||||
22 | may, upon request, obtain a paper copy of an | ||||||
23 | electronic record, and | ||||||
24 | (II) whether any fee will be charged for a | ||||||
25 | paper copy; | ||||||
26 | (C) the consumer: |
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1 | (i) prior to consenting, is provided with a | ||||||
2 | statement of the hardware and software | ||||||
3 | requirements for access to and retention of the | ||||||
4 | electronic records; and | ||||||
5 | (ii) consents electronically, or confirms his | ||||||
6 | or her consent electronically, in a manner that | ||||||
7 | reasonably demonstrates that the consumer can | ||||||
8 | access information in the electronic form that | ||||||
9 | will be used to provide the information that is the | ||||||
10 | subject of the consent;
and | ||||||
11 | (D) after the consent of a consumer in accordance | ||||||
12 | with subparagraph (A), if a change in the hardware or | ||||||
13 | software requirements needed to access or retain | ||||||
14 | electronic records creates a material risk that the | ||||||
15 | consumer will not be able to access or retain a | ||||||
16 | subsequent electronic record that was the subject of | ||||||
17 | the consent, the person providing the electronic | ||||||
18 | record: | ||||||
19 | (i) provides the consumer with a statement of: | ||||||
20 | (I) the revised hardware and software | ||||||
21 | requirements for access to and retention of the | ||||||
22 | electronic records, and | ||||||
23 | (II) the right to withdraw consent without | ||||||
24 | the imposition of any fees for the withdrawal | ||||||
25 | and without the imposition of any condition or | ||||||
26 | consequence that was not disclosed under |
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1 | subparagraph (B)(i); and | ||||||
2 | (ii) again complies with subparagraph (C). | ||||||
3 | (2) Other rights. | ||||||
4 | (A) Preservation of consumer protections. Nothing | ||||||
5 | in this subsection (c) affects the content or timing of | ||||||
6 | any disclosure or other record required to be provided | ||||||
7 | or made available to any consumer under any statute, | ||||||
8 | regulation, or other rule of law. | ||||||
9 | (B) Verification or acknowledgment. If a law that | ||||||
10 | was enacted prior to this amendatory Act of the 95th | ||||||
11 | General Assembly expressly requires a record to be | ||||||
12 | provided or made available by a specified method that | ||||||
13 | requires verification or acknowledgment of receipt, | ||||||
14 | the record may be provided or made available | ||||||
15 | electronically only if the method used provides the | ||||||
16 | required verification or acknowledgment of receipt. | ||||||
17 | (3) Effect of failure to obtain electronic consent or | ||||||
18 | confirmation of consent. The legal effectiveness, | ||||||
19 | validity, or enforceability of any contract executed by a | ||||||
20 | consumer shall not be denied solely because of the failure | ||||||
21 | to obtain electronic consent or confirmation of consent by | ||||||
22 | that consumer in accordance with paragraph (1)(C)(ii). | ||||||
23 | (4) Prospective effect. Withdrawal of consent by a | ||||||
24 | consumer shall not affect the legal effectiveness, | ||||||
25 | validity, or enforceability of electronic records provided | ||||||
26 | or made available to that consumer in accordance with |
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1 | paragraph (1) prior to implementation of the consumer's | ||||||
2 | withdrawal of consent. A consumer's withdrawal of consent | ||||||
3 | shall be effective within a reasonable period of time after | ||||||
4 | receipt of the withdrawal by the provider of the record. | ||||||
5 | Failure to comply with paragraph (1)(D) may, at the | ||||||
6 | election of the consumer, be treated as a withdrawal of | ||||||
7 | consent for purposes of this paragraph. | ||||||
8 | (5) Prior consent. This subsection does not apply to | ||||||
9 | any records that are provided or made available to a | ||||||
10 | consumer who has consented prior to the effective date of | ||||||
11 | this amendatory Act of the 95th General Assembly to receive | ||||||
12 | the records in electronic form as permitted by any statute, | ||||||
13 | regulation, or other rule of law. | ||||||
14 | (6) Oral communications. An oral communication or a | ||||||
15 | recording of an oral communication shall not qualify as an | ||||||
16 | electronic record for purposes of this subsection (c), | ||||||
17 | except as otherwise provided under applicable law.
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18 | (Source: P.A. 94-458, eff. 8-4-05.)
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19 | Section 99. Effective date. This Act takes effect upon | ||||||
20 | becoming law.
|