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91_SB0749ham001
LRB9103048DJcdam
1 AMENDMENT TO SENATE BILL 749
2 AMENDMENT NO. . Amend Senate Bill 749 by replacing
3 the title with the following:
4 "AN ACT to amend the Illinois Business Brokers Act of
5 1995 by changing Sections 10-25, 10-105, and 10-115."; and
6 by replacing everything after the enacting clause with the
7 following:
8 "Section 5. The Illinois Business Brokers Act of 1995
9 is amended by changing Sections 10-25, 10-105, and 10-115 as
10 follows:
11 (815 ILCS 307/10-25)
12 Sec. 10-25. Fees and funds. All fees and funds accruing
13 for the administration of this Act shall be accounted for by
14 the Secretary of State and shall be deposited with the State
15 Treasurer who shall deposit them in the Securities Audit and
16 Enforcement Fund.
17 (a) The Secretary of State shall, by rule or regulation,
18 impose and collect fees necessary for the administration of
19 this Act, including but not limited to, fees for the
20 following purposes:
21 (1) Filing an application pursuant to Section 10-10
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1 of this Act;
2 (2) Examining an application pursuant to Sections
3 10-10 and 10-20 of this Act;
4 (3) Registering a business broker under Section
5 10-10 of this Act;
6 (4) Renewing registration of a business broker
7 pursuant to Section 10-20 of this Act;
8 (5) Failure to file or file timely any document or
9 information required under this Act;
10 (6) Filing a notice of lien with the Secretary of
11 State pursuant to Section 10-115 of this Act.
12 (b) The Secretary of State may, by rule or regulation,
13 raise or lower any fee imposed by, and which he or she is
14 authorized by law to collect under, this Act.
15 (Source: P.A. 89-209, eff. 1-1-96; 90-70, eff. 7-8-97.)
16 (815 ILCS 307/10-105)
17 Sec. 10-105. Scope of the Act. This Act shall apply
18 only when the person engaging or seeking to engage engaged or
19 sought to be engaged by the business broker is domiciled in
20 this State or when the company or business sought to be sold
21 has its principal place of business in this State.
22 Notwithstanding any other provision of this Section, a lien
23 on property arising under Section 10-115 is enforceable only
24 against tangible property located in this State.
25 (Source: P.A. 90-70, eff. 7-8-97.)
26 (815 ILCS 307/10-115)
27 Sec. 10-115. Business broker lien.
28 (a) Any business broker shall have a lien upon the
29 tangible assets of a business located in this State that is
30 the subject of a business broker's written contract and the
31 proceeds from the sale of such business in the amount due to
32 that the broker under the written contract is due.
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1 (b) The lien shall be available to the business broker
2 named in the instrument signed by the owner of an interest in
3 the assets seller or purchaser. The lien arising under this
4 Act shall be in addition to any other rights that a business
5 broker may have.
6 (c) A The lien under this Act does not shall attach
7 unless and until: upon
8 (1) the business broker is being otherwise entitled
9 to a fee or commission under a written contract
10 instrument signed by the seller or its purchaser or the
11 seller or purchaser's duly authorized agent; and, as
12 applicable
13 (2) before the actual conveyance or transfer of the
14 business assets or property with respect to which the
15 business broker is claiming a lien, the business broker
16 files a notice of lien (i) as to real property, with the
17 recorder of the county in which the real property is
18 located or (ii) as to tangible personal property, in the
19 Office of the Secretary of State.
20 (d) When payment to a business broker is due in
21 installments, a portion of which is due only after the
22 conveyance or transfer of the tangible assets business, any
23 claim for lien for those payments due after the transfer or
24 conveyance may be filed at any time subsequent to the
25 transfer or conveyance of the tangible assets business and
26 prior to the date on which the payment is due but shall only
27 be effective as a lien against the tangible assets business
28 or proceeds to the extent moneys are still owed to the
29 transferor by the transferee. In all other respects, the lien
30 shall attach as described in this subsection of the filing of
31 the notice of lien and not relate back to the date of the
32 written agreement.
33 (e) If a business broker has a written agreement with a
34 prospective purchaser or seller, then the lien shall attach
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1 upon the prospective purchaser or seller that is purchasing,
2 selling, or otherwise accepting a conveyance or transfer of
3 the real property or tangible personal property of the
4 business and the filing of a notice of lien (i) in the
5 recorder's office of the county in which the real property is
6 located, as to real property, and (ii) in the Office of the
7 Secretary of State, as to tangible personal property, by the
8 business broker in the Office of the Secretary of State
9 within 90 days after the transfer to the purchaser purchase,
10 sale, or other conveyance or transfer of the business that is
11 the subject of the written agreement with the business broker
12 receipt of any consideration by the seller of the business
16 that is the subject of the written agreement with the
17 business broker.
18 (f) The business broker shall, within 10 days after
19 filing its notice of lien, mail a copy of the notice of lien
20 to the owner of the property business by depositing it in the
21 United States mail, registered or certified mail, with return
22 receipt requested, or personally serve a copy of the notice
23 served on the owner of record or his agent. If the lien is
24 filed within 10 days prior to closing, the business broker is
25 not required to mail or personally serve a copy of the notice
26 of lien. Mailing of the copy of the notice of lien is
27 effective if mailed to the address of the business that is
28 the subject of the notice of lien, or to such other address
29 as the seller or purchaser has provided to the business
30 broker in writing and signed by the seller or purchaser.
31 Mailing of the copy of the notice of claim for lien is
32 effective if mailed to the seller at the address of the
33 business that is the subject of the notice of lien or to
34 another address that the seller or purchaser has provided in
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1 writing to the business broker when deposited in a United
2 States mailbox with postage prepaid. The broker's lien shall
3 be unenforceable if mailing of the copy of the notice of lien
4 does not occur at the time and in the manner required by this
5 Act.
6 (g) A business broker may bring suit to enforce a lien
7 in the circuit court (i) in the county where the real
8 property headquarters of the business being sold is located,
9 as to real property, or (ii) as to tangible personal
10 property, either in the county where the personal property
11 is located or where the principal office of the owner of the
12 personal property, or the owner's residence, is located
13 where the purchaser resides (or maintains its headquarters)
14 if the lien is being filed against the purchaser, or where
15 the seller resides (or maintains its headquarters) if the
16 lien is filed against the seller, by filing a complaint and
17 sworn affidavit that the lien has been filed.
18 (h) The person claiming a lien shall, within 2 years
19 after filing the lien, commence proceedings by filing a
20 complaint. Failure to commence proceedings within 2 years
21 after filing the lien shall extinguish the lien. No
22 subsequent notice of lien may be given for the same claim nor
23 may that claim be asserted in any proceedings under this Act.
24 (i) A complaint under this Section shall have attached
25 to it a copy contain a brief statement of the written
26 contract or agreements on which the lien is founded and shall
27 contain, the date when the contract or agreement was made, a
28 description of the services performed, the amount due and
29 unpaid, a description of the tangible assets of the business
30 that is, or the proceeds from sale of which are, subject to
31 the lien, and other facts necessary for a full understanding
32 of the rights of the parties. The plaintiff shall make all
33 interested parties, of whose interest the plaintiff is
34 notified or has actual or constructive knowledge, defendants
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1 to the action and shall issue summons and provide service as
2 in other civil actions. When any defendant resides or has
3 gone out of the State, or on inquiry cannot be found, or is
4 concealed within this State so that process cannot be served
5 on that defendant, the plaintiff shall cause a notice to be
6 given to that defendant, or cause a copy of the complaint to
7 be served upon that defendant, in the manner and upon the
8 same conditions as in other civil actions. Failure of the
9 plaintiff to provide proper summons or notice shall be
10 grounds for judgment against the plaintiff with prejudice.
11 Every lien claimed under this Act shall be foreclosed as
12 provided in the Illinois Mortgage Foreclosure Law, if the
13 lien is on real property, or as provided in the Uniform
14 Commercial Code, if the lien is on personal property.
15 (j) The lien notice shall state the name and address of
16 the claimant, the name of the purchaser or seller whose
17 property or assets are subject to the lien, a description of
18 the real or personal property that is subject to the lien
19 business upon which or upon the proceeds from the sale of
20 which the lien is being claimed, the amount for which the
21 lien is claimed, and the registration number of the business
22 broker. The notice of lien shall recite that the information
23 contained in the notice is true and accurate to the knowledge
24 of the signer signatory. The notice of lien shall be signed
25 by the business broker or by a person authorized to sign on
26 behalf of the business broker and shall be verified.
27 (k) Whenever a claim for lien has been filed with the
28 Office of the Secretary of State or the county recorder's
29 office and a condition occurs that would preclude the
30 business broker from receiving compensation under the terms
31 of the business broker's written agreement, the business
32 broker shall provide to the purchaser of the business, if the
33 lien is filed against the purchaser's assets of the business
34 that are subject to this Act purchaser, or the seller of the
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1 business, if the lien is filed against the seller's assets of
2 the business that are subject to this Act seller, within 10
3 days following demand by that party the owner of record, a
4 written release or satisfaction of the lien.
5 (l) Upon written demand of the owner, lienee, or other
6 authorized agent, served on the person claiming the lien
7 requiring suit to be commenced to enforce the lien or answer
8 to be filed in a pending suit, a suit shall be commenced or
9 answer filed within 30 days thereafter, or the lien shall be
10 extinguished. Service may be by registered or certified
11 mail, return receipt requested, or by personal service.
12 (m) If a claim for lien has been filed with the Office
13 of the Secretary of State or the county recorder's office and
14 is paid, or if there is failure to institute a suit to
15 enforce the lien within the time provided by this Act, the
16 business broker shall acknowledge satisfaction or release of
17 the lien, in writing, on written demand of the purchaser of
18 the business, if the lien is filed against the purchaser, or
19 the seller of the business, if the lien is filed against the
20 seller, within 5 days after payment or expiration of the time
21 in which to file the lien.
22 (n) The cost of proceedings brought under this Act
23 asserting or defending a business broker's claim of lien,
24 including reasonable attorneys' fees, costs, and prejudgment
25 interest interests due to the prevailing party, shall be
26 borne by the nonprevailing party or parties. When more than
27 one party is responsible for costs, fees, and prejudgment
28 interest, the costs, fees, and prejudgment interest shall be
29 equitably apportioned by the court among those responsible
30 parties.
31 (o) Prior recorded liens and mortgages shall have
32 priority over a broker's lien. A prior recorded lien shall
33 include, without limitation, (i) a valid mechanic's lien
34 claim, that is recorded subsequent to the broker's notice of
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1 lien but which relates back to a date prior to the recording
2 date of the broker's notice of lien and (ii) prior recorded
3 liens securing revolving credit or and future advances under
4 of construction loans as described in Section 15-1302 of the
5 Code of Civil Procedure, and (iii) prior recorded liens
6 perfected under the Uniform Commercial Code.
7 (Source: P.A. 90-70, eff. 7-8-97.)".