Public Act 90-0301 of the 90th General Assembly
Public Act 90-0301
HB1288 Enrolled LRB9000532JSsbB
AN ACT in relation to the powers and duties of the Office
of Banks and Real Estate.
Be it enacted by the People of the State of Illinois,
represented in the General Assembly:
Section 5. The Office of Banks and Real Estate Act is
amended by changing Section 5 as follows:
(20 ILCS 3205/5) (from Ch. 17, par. 455)
Sec. 5. Powers. In addition to all the other powers and
duties provided by law, the Commissioner shall have the
following powers:
(a) To exercise the rights, powers and duties formerly
vested by law in the Director of Financial Institutions under
the Illinois Banking Act.
(b) To exercise the rights, powers and duties formerly
vested by law in the Department of Financial Institutions
under "An act to provide for and regulate the administration
of trusts by trust companies", approved June 15, 1887, as
amended.
(c) To exercise the rights, powers and duties formerly
vested by law in the Director of Financial Institutions under
"An act authorizing foreign corporations, including banks and
national banking associations domiciled in other states, to
act in a fiduciary capacity in this state upon certain
conditions herein set forth", approved July 13, 1953, as
amended.
(d) Whenever the Commissioner is authorized or required
by law to consider or to make findings regarding the
character of incorporators, directors, management personnel,
or other relevant individuals under the Illinois Banking Act
or the Corporate Fiduciary Act or at other times as the
Commissioner deems necessary for the purpose of carrying out
the Commissioner's statutory powers and responsibilities, the
Commissioner shall consider criminal history record
information, including nonconviction information, pursuant to
the Criminal Identification Act. The Commissioner shall, in
the form and manner required by the Department of State
Police and the Federal Bureau of Investigation, cause to be
conducted a criminal history record investigation to obtain
information currently contained in the files of the
Department of State Police or the Federal Bureau of
Investigation, provided that the Commissioner need not cause
additional criminal history record investigations to be
conducted on individuals for whom the Commissioner or a
federal bank regulatory agency has caused such investigations
to have been conducted previously unless such additional
investigations are otherwise required by law or unless the
Commissioner deems such additional investigations to be
necessary for the purposes of carrying out the Commissioner's
statutory powers and responsibilities. The Department of
State Police shall provide, on the Commissioner's request,
information concerning criminal charges and their disposition
currently on file with respect to a relevant individual.
Information obtained as a result of an investigation under
this Section shall be used in determining eligibility to be
an incorporator, director, management personnel, or other
relevant individual in relation to a financial institution
supervised by the Commissioner. Upon request and payment of
fees in conformance with the requirements of paragraph (22)
of subsection (A) of Section 55a of the Civil Administrative
Code of Illinois, the Department of State Police is
authorized to furnish, pursuant to positive identification,
such information contained in State files as is necessary to
fulfill the request.
(Source: P.A. 88-546; 89-508, eff. 7-3-96.)
Section 10. The Illinois Banking Act is amended by
changing Sections 2, 5, 7, 8, 9, 13, 14, 16, 17, 32, 34, 35,
48, 48.3, and 79 and by adding Sections 13.5 and 16.5 as
follows:
(205 ILCS 5/2) (from Ch. 17, par. 302)
Sec. 2. General definitions. In this Act, unless the
context otherwise requires, the following words and phrases
shall have the following meanings:
"Accommodation party" shall have the meaning ascribed to
that term in Section 3-419 3-415 of the Uniform Commercial
Code.
"Action" in the sense of a judicial proceeding includes
recoupments, counterclaims, set-off, and any other proceeding
in which rights are determined.
"Affiliate facility" of a bank means a main banking
premises or branch of another commonly owned bank. The main
banking premises or any branch of a bank may be an "affiliate
facility" with respect to one or more other commonly owned
banks.
"Appropriate federal banking agency" means the Federal
Deposit Insurance Corporation, the Federal Reserve Bank of
Chicago, or the Federal Reserve Bank of St. Louis, as
determined by federal law.
"Bank" means any person doing a banking business whether
subject to the laws of this or any other jurisdiction.
A "banking house", "branch", "branch bank" or "branch
office" shall mean any place of business of a bank at which
deposits are received, checks paid, or loans made, but shall
not include any place at which only records thereof are made,
posted, or kept. A place of business at which deposits are
received, checks paid, or loans made shall not be deemed to
be a branch, branch bank, or branch office if the place of
business is adjacent to and connected with the main banking
premises, or if it is separated from the main banking
premises by not more than an alley; provided always that (i)
if the place of business is separated by an alley from the
main banking premises there is a connection between the two
by public or private way or by subterranean or overhead
passage, and (ii) if the place of business is in a building
not wholly occupied by the bank, the place of business shall
not be within any office or room in which any other business
or service of any kind or nature other than the business of
the bank is conducted or carried on. A place of business at
which deposits are received, checks paid, or loans made shall
not be deemed to be a branch, branch bank, or branch office
(i) of any bank if the place is a an automatic teller machine
established and maintained in accordance with paragraph (16)
of Section 5 of this Act, or (ii) of any bank if the place is
a point of sale terminal established and maintained in
accordance with paragraph (17) of Section 5 of this Act, or
(ii) (iii) of a commonly owned bank by virtue of transactions
conducted at that place on behalf of the other commonly owned
bank under paragraph (23) of Section 5 of this Act if the
place is an affiliate facility with respect to the other
bank.
"Branch of an out-of-state bank" means a branch
established or maintained in Illinois by an out-of-state bank
as a result of a merger between an Illinois bank and the
out-of-state bank that occurs on or after May 31, 1997, or
any branch established by the out-of-state bank following the
merger.
"Call report fee" means the fee to be paid to the
Commissioner by each State bank pursuant to paragraph (a) of
subsection (3) of Section 48 of this Act.
"Capital" includes the aggregate of outstanding capital
stock and preferred stock.
"Cash flow reserve account" means the account within the
books and records of the Commissioner of Banks and Real
Estate used to record funds designated to maintain a
reasonable Bank and Trust Company Fund operating balance to
meet agency obligations on a timely basis.
"Charter" includes the original charter and all
amendments thereto and articles of merger or consolidation.
"Commissioner" means the Commissioner of Banks and Real
Estate or a person authorized by the Commissioner, the Office
of Banks and Real Estate Act, or this Act to act in the
Commissioner's stead.
"Commonly owned banks" means 2 or more banks that each
qualify as a bank subsidiary of the same bank holding company
pursuant to Section 18 of the Federal Deposit Insurance Act;
"commonly owned bank" refers to one of a group of commonly
owned banks but only with respect to one or more of the other
banks in the same group.
"Community" means a city, village, or incorporated town
in this State.
"Company" means a corporation, partnership, business
trust, association, or similar organization and, unless
specifically excluded, includes a "State bank" and a "bank".
"Consolidating bank" means a party to a consolidation.
"Consolidation" takes place when 2 or more banks, or a
trust company and a bank, are extinguished and by the same
process a new bank is created, taking over the assets and
assuming the liabilities of the banks or trust company
passing out of existence.
"Continuing bank" means a merging bank, the charter of
which becomes the charter of the resulting bank.
"Converting bank" means a State bank converting to become
a national bank, or a national bank converting to become a
State bank.
"Converting trust company" means a trust company
converting to become a State bank.
"Court" means a court of competent jurisdiction.
"Eligible depository institution" means an insured
savings association that is in default, an insured savings
association that is in danger of default, a State or national
bank that is in default or a State or national bank that is
in danger of default, as those terms are defined in this
Section, or a new bank as that term defined in Section 11(m)
of the Federal Deposit Insurance Act or a bridge bank as that
term is defined in Section 11(n) of the Federal Deposit
Insurance Act or a new federal savings association authorized
under Section 11(d)(2)(f) of the Federal Deposit Insurance
Act.
"Fiduciary" means trustee, agent, executor,
administrator, committee, guardian for a minor or for a
person under legal disability, receiver, trustee in
bankruptcy, assignee for creditors, or any holder of similar
position of trust.
"Financial institution" means a bank, savings and loan
association, credit union, or any licensee under the Consumer
Installment Loan Act or the Sales Finance Agency Act and, for
purposes of Section 48.3, any proprietary network, funds
transfer corporation, or other entity providing electronic
funds transfer services, or any corporate fiduciary, its
subsidiaries, affiliates, parent company, or contractual
service provider that is examined by the Commissioner.
"Foundation" means the Illinois Bank Examiners' Education
Foundation.
"General obligation" means a bond, note, debenture,
security, or other instrument evidencing an obligation of the
issuer that is supported by the full available resources of
the issuer, the principal and interest of which is payable in
whole or in part by taxation.
"Guarantee" means an undertaking or promise to answer for
payment of another's debt or performance of another's duty,
liability, or obligation whether "payment guaranteed" or
"collection guaranteed".
"In danger of default" means a State or national bank, a
federally chartered insured savings association or an
Illinois state chartered insured savings association with
respect to which the Commissioner or the appropriate federal
banking agency has advised the Federal Deposit Insurance
Corporation that:
(1) in the opinion of the Commissioner or the
appropriate federal banking agency,
(A) the State or national bank or insured
savings association is not likely to be able to meet
the demands of the State or national bank's or
savings association's obligations in the normal
course of business; and
(B) there is no reasonable prospect that the
State or national bank or insured savings
association will be able to meet those demands or
pay those obligations without federal assistance; or
(2) in the opinion of the Commissioner or the
appropriate federal banking agency,
(A) the State or national bank or insured
savings association has incurred or is likely to
incur losses that will deplete all or substantially
all of its capital; and
(B) there is no reasonable prospect that the
capital of the State or national bank or insured
savings association will be replenished without
federal assistance.
"In default" means, with respect to a State or national
bank or an insured savings association, any adjudication or
other official determination by any court of competent
jurisdiction, the Commissioner, the appropriate federal
banking agency, or other public authority pursuant to which a
conservator, receiver, or other legal custodian is appointed
for a State or national bank or an insured savings
association.
"Insured savings association" means any federal savings
association chartered under Section 5 of the federal Home
Owners' Loan Act and any State savings association chartered
under the Illinois Savings and Loan Act of 1985 or a
predecessor Illinois statute, the deposits of which are
insured by the Federal Deposit Insurance Corporation. The
term also includes a savings bank organized or operating
under the Savings Bank Act.
"Insured savings association in recovery" means an
insured savings association that is not an eligible
depository institution and that does not meet the minimum
capital requirements applicable with respect to the insured
savings association.
"Issuer" means for purposes of Section 33 every person
who shall have issued or proposed to issue any security;
except that (1) with respect to certificates of deposit,
voting trust certificates, collateral-trust certificates, and
certificates of interest or shares in an unincorporated
investment trust not having a board of directors (or persons
performing similar functions), "issuer" means the person or
persons performing the acts and assuming the duties of
depositor or manager pursuant to the provisions of the trust,
agreement, or instrument under which the securities are
issued; (2) with respect to trusts other than those specified
in clause (1) above, where the trustee is a corporation
authorized to accept and execute trusts, "issuer" means the
entrusters, depositors, or creators of the trust and any
manager or committee charged with the general direction of
the affairs of the trust pursuant to the provisions of the
agreement or instrument creating the trust; and (3) with
respect to equipment trust certificates or like securities,
"issuer" means the person to whom the equipment or property
is or is to be leased or conditionally sold.
"Letter of credit" and "customer" shall have the meanings
ascribed to those terms in Section 5-102 of the Uniform
Commercial Code.
"Main banking premises" means the location that is
designated in a bank's charter as its main office.
"Maker or obligor" means for purposes of Section 33 the
issuer of a security, the promisor in a debenture or other
debt security, or the mortgagor or grantor of a trust deed or
similar conveyance of a security interest in real or personal
property.
"Merged bank" means a merging bank that is not the
continuing, resulting, or surviving bank in a consolidation
or merger.
"Merger" includes consolidation.
"Merging bank" means a party to a bank merger.
"Merging trust company" means a trust company party to a
merger with a State bank.
"Mid-tier bank holding company" means a corporation that
(a) owns 100% of the issued and outstanding shares of each
class of stock of a State bank, (b) has no other
subsidiaries, and (c) 100% of the issued and outstanding
shares of the corporation are owned by a parent bank holding
company.
"Municipality" means any municipality, political
subdivision, school district, taxing district, or agency.
"National bank" means a national banking association
located in this State and after May 31, 1997, means a
national banking association without regard to its location.
"Out-of-state bank" means a bank chartered under the laws
of a state other than Illinois, a territory of the United
States, or the District of Columbia.
"Parent bank holding company" means a corporation that is
a bank holding company as that term is defined in the
Illinois Bank Holding Company Act of 1957 and owns 100% of
the issued and outstanding shares of a mid-tier bank holding
company.
"Person" means an individual, corporation, partnership,
joint venture, trust, estate, or unincorporated association.
"Public agency" means the State of Illinois, the various
counties, townships, cities, towns, villages, school
districts, educational service regions, special road
districts, public water supply districts, fire protection
districts, drainage districts, levee districts, sewer
districts, housing authorities, the Illinois Bank Examiners'
Education Foundation, the Chicago Park District, and all
other political corporations or subdivisions of the State of
Illinois, whether now or hereafter created, whether herein
specifically mentioned or not, and shall also include any
other state or any political corporation or subdivision of
another state.
"Public funds" or "public money" means current operating
funds, special funds, interest and sinking funds, and funds
of any kind or character belonging to, in the custody of, or
subject to the control or regulation of the United States or
a public agency. "Public funds" or "public money" shall
include funds held by any of the officers, agents, or
employees of the United States or of a public agency in the
course of their official duties and, with respect to public
money of the United States, shall include Postal Savings
funds.
"Published" means, unless the context requires otherwise,
the publishing of the notice or instrument referred to in
some newspaper of general circulation in the community in
which the bank is located at least once each week for 3
successive weeks. Publishing shall be accomplished by, and
at the expense of, the bank required to publish. Where
publishing is required, the bank shall submit to the
Commissioner that evidence of the publication as the
Commissioner shall deem appropriate.
"Recorded" means the filing or recording of the notice or
instrument referred to in the office of the Recorder of the
county wherein the bank is located.
"Resulting bank" means the bank resulting from a merger
or conversion.
"Securities" means stocks, bonds, debentures, notes, or
other similar obligations.
"Stand-by letter of credit" means a letter of credit
under which drafts are payable upon the condition the
customer has defaulted in performance of a duty, liability,
or obligation.
"State bank" means any banking corporation that has a
banking charter issued by the Commissioner under this Act.
"State Banking Board" means the State Banking Board of
Illinois.
"Subsidiary" with respect to a specified company means a
company that is controlled by the specified company. For
purposes of paragraphs (8) and (12) of Section 5 of this Act,
"control" means the exercise of operational or managerial
control of a corporation by the bank, either alone or
together with other affiliates of the bank.
"Surplus" means the aggregate of (i) amounts paid in
excess of the par value of capital stock and preferred stock;
(ii) amounts contributed other than for capital stock and
preferred stock and allocated to the surplus account; and
(iii) amounts transferred from undivided profits.
"Tier 1 Capital" and "Tier 2 Capital" have the meanings
assigned to those terms in regulations promulgated for the
appropriate federal banking agency of a state bank, as those
regulations are now or hereafter amended.
"Trust company" means a corporation incorporated in this
State for the purpose of accepting and executing trusts.
"Undivided profits" means undistributed earnings less
discretionary transfers to surplus.
"Unimpaired capital and unimpaired surplus", for the
purposes of paragraph (21) of Section 5 and Sections 32, 33,
34, 35.1, 35.2, and 47 of this Act means the sum of the state
bank's Tier 1 Capital and Tier 2 Capital plus such other
shareholder equity as may be included by regulation of the
Commissioner. Unimpaired capital and unimpaired surplus
shall be calculated on the basis of the date of the last
quarterly call report filed with the Commissioner preceding
the date of the transaction for which the calculation is
made, provided that: (i) when a material event occurs after
the date of the last quarterly call report filed with the
Commissioner that reduces or increases the bank's unimpaired
capital and unimpaired surplus by 10% or more, then the
unimpaired capital and unimpaired surplus shall be calculated
from the date of the material event for a transaction
conducted after the date of the material event; and (ii) if
the Commissioner determines for safety and soundness reasons
that a state bank should calculate unimpaired capital and
unimpaired surplus more frequently than provided by this
paragraph, the Commissioner may by written notice direct the
bank to calculate unimpaired capital and unimpaired surplus
at a more frequent interval. In the case of a state bank
newly chartered under Section 13 or a state bank resulting
from a merger, consolidation, or conversion under Sections 21
through 26 for which no preceding quarterly call report has
been filed with the Commissioner, unimpaired capital and
unimpaired surplus shall be calculated for the first calendar
quarter on the basis of the effective date of the charter,
merger, consolidation, or conversion.
(Source: P.A. 88-45; 88-271; 88-546; 89-208, eff. 9-29-95;
89-364, eff. 8-18-95; revised 9-18-95; 89-508, eff. 7-3-96;
89-534, eff. 1-1-97; 89-567, eff. 7-26-96; 89-626, eff.
8-9-96; revised 8-27-96.)
(205 ILCS 5/5) (from Ch. 17, par. 311)
Sec. 5. General corporate powers. A bank organized
under this Act or subject hereto shall be a body corporate
and politic and shall, without specific mention thereof in
the charter, have all the powers conferred by this Act and
the following additional general corporate powers:
(1) To sue and be sued, complain, and defend in its
corporate name.
(2) To have a corporate seal, which may be altered at
pleasure, and to use the same by causing it or a facsimile
thereof to be impressed or affixed or in any manner
reproduced, provided that the affixing of a corporate seal to
an instrument shall not give the instrument additional force
or effect, or change the construction thereof, and the use of
a corporate seal is not mandatory.
(3) To make, alter, amend, and repeal bylaws, not
inconsistent with its charter or with law, for the
administration of the affairs of the bank.
(4) To elect or appoint and remove officers and agents
of the bank and define their duties and fix their
compensation.
(5) To adopt and operate reasonable bonus plans,
profit-sharing plans, stock-bonus plans, stock-option plans,
pension plans and similar incentive plans for its directors,
officers and employees.
(5.1) To manage, operate and administer a fund for the
investment of funds by a public agency or agencies, including
any unit of local government or school district, or any
person. The fund for a public agency shall invest in the
same type of investments and be subject to the same
limitations provided for the investment of public funds. The
fund for public agencies shall maintain a separate ledger
showing the amount of investment for each public agency in
the fund. "Public funds" and "public agency" as used in this
Section shall have the meanings ascribed to them in Section 1
of the Public Funds Investment Act.
(6) To make reasonable donations for the public welfare
or for charitable, scientific, religious or educational
purposes.
(7) To borrow or incur an obligation; and to pledge its
assets:
(a) to secure its borrowings, its lease of personal
or real property or its other nondeposit obligations;
(b) to enable it to act as agent for the sale of
obligations of the United States;
(c) to secure deposits of public money of the
United States, whenever required by the laws of the
United States, including without being limited to,
revenues and funds the deposit of which is subject to the
control or regulation of the United States or any of its
officers, agents, or employees and Postal Savings funds;
(d) to secure deposits of public money of any state
or of any political corporation or subdivision thereof
including, without being limited to, revenues and funds
the deposit of which is subject to the control or
regulation of any state or of any political corporation
or subdivisions thereof or of any of their officers,
agents, or employees;
(e) to secure deposits of money whenever required
by the National Bankruptcy Act;
(f) (Blank) to qualify under Section 2-9 of the
Corporate Fiduciary Act; and
(g) to secure trust funds commingled with the
bank's funds, whether deposited by the bank or an
affiliate of the bank, pursuant to Section 2-8 of the
Corporate Fiduciary Act.
(8) To own, possess, and carry as assets all or part of
the real estate necessary in or with which to do its banking
business, either directly or indirectly through the ownership
of all or part of the capital stock, shares or interests in
any corporation, association, trust engaged in holding any
part or parts or all of the bank premises, engaged in such
business and in conducting a safe deposit business in the
premises or part of them, or engaged in any activity that the
bank is permitted to conduct in a subsidiary pursuant to
paragraph (12) of this Section 5.
(9) To own, possess, and carry as assets other real
estate to which it may obtain title in the collection of its
debts or that was formerly used as a part of the bank
premises, but title to any real estate except as herein
permitted shall not be retained by the bank, either directly
or by or through a subsidiary, as permitted by subsection
(12) of this Section for a total period of more than 10 5
years after acquiring title, either directly or indirectly,
unless a request for extension of time shall have been
submitted in writing to and approved by the Commissioner.
(10) To do any act, including the acquisition of stock,
necessary to obtain insurance of its deposits, or part
thereof, and any act necessary to obtain a guaranty, in whole
or in part, of any of its loans or investments by the United
States or any agency thereof, and any act necessary to sell
or otherwise dispose of any of its loans or investments to
the United States or any agency thereof, and to acquire and
hold membership in the Federal Reserve System.
(11) Notwithstanding any other provisions of this Act,
to do any act and to own, possess, and carry as assets
property of the character, including stock, that is at the
time authorized or permitted to national banks by an Act of
Congress, but subject always to the same limitations and
restrictions as are applicable to national banks by the
pertinent federal law.
(12) To own, possess, and carry as assets stock of one
or more corporations that is, or are, engaged in one or more
of the following businesses:
(a) holding title to and administering assets
acquired as a result of the collection or liquidating of
loans, investments, or discounts; or
(b) holding title to and administering personal
property acquired by the bank, directly or indirectly
through a subsidiary, for the purpose of leasing to
others, provided the lease or leases and the investment
of the bank, directly or through a subsidiary, in that
personal property otherwise comply with Section 35.1 of
this Act; or
(c) carrying on or administering any of the
activities excepting the receipt of deposits or the
payment of checks or other orders for the payment of
money in which a bank may engage in carrying on its
general banking business; provided, however, that nothing
contained in this paragraph (c) shall be deemed to permit
a bank organized under this Act or subject hereto to do,
either directly or indirectly through any subsidiary, any
act, including the making of any loan or investment, or
to own, possess, or carry as assets any property that if
done by or owned, possessed, or carried by the State bank
would be in violation of or prohibited by any provision
of this Act.
The provisions of this subsection (12) shall not apply to
and shall not be deemed to limit the powers of a State bank
with respect to the ownership, possession, and carrying of
stock that a State bank is permitted to own, possess, or
carry under this Act.
Any bank intending to establish a subsidiary under this
subsection (12) shall give written notice to the Commissioner
60 days prior to the subsidiary's commencing of business or,
as the case may be, prior to acquiring stock in a corporation
that has already commenced business. After receiving the
notice, the Commissioner may waive or reduce the balance of
the 60 day notice period. The Commissioner may specify the
form of the notice and may promulgate rules and regulations
to administer this subsection (12).
(13) To accept for payment at a future date not
exceeding one year from the date of acceptance, drafts drawn
upon it by its customers; and to issue, advise, or confirm
letters of credit authorizing the holders thereof to draw
drafts upon it or its correspondents.
(14) To own and lease personal property acquired by the
bank at the request of a prospective lessee and upon the
agreement of that person to lease the personal property
provided that the lease, the agreement with respect thereto,
and the amount of the investment of the bank in the property
comply with Section 35.1 of this Act.
(15) (a) To establish and maintain, in addition to the
main banking premises, branches offering any banking services
permitted at the main banking premises of a State bank.
(b) To establish and maintain, after May 31, 1997,
branches in another state that may conduct any activity in
that state that is authorized or permitted for any bank that
has a banking charter issued by that state, subject to the
same limitations and restrictions that are applicable to
banks chartered by that state.
(16) (Blank).
(17) To establish and maintain terminals, as authorized
by the Electronic Fund Transfer Act.
(18) To establish and maintain temporary service booths
at any International Fair held in this State which is
approved by the United States Department of Commerce, for the
duration of the international fair for the sole purpose of
providing a convenient place for foreign trade customers at
the fair to exchange their home countries' currency into
United States currency or the converse. This power shall not
be construed as establishing a new place or change of
location for the bank providing the service booth.
(19) To indemnify its officers, directors, employees,
and agents, as authorized for corporations under Section 8.75
of the Business Corporation Act of 1983.
(20) To own, possess, and carry as assets stock of, or
be or become a member of, any corporation, mutual company,
association, trust, or other entity formed exclusively for
the purpose of providing directors' and officers' liability
and bankers' blanket bond insurance or reinsurance to and for
the benefit of the stockholders, members, or beneficiaries,
or their assets or businesses, or their officers, directors,
employees, or agents, and not to or for the benefit of any
other person or entity or the public generally.
(21) To make debt or equity investments in corporations
or projects, whether for profit or not for profit, designed
to promote the development of the community and its welfare,
provided that the aggregate investment in all of these
corporations and in all of these projects does not exceed 10%
5% of the unimpaired capital and unimpaired surplus of the
bank and provided that this limitation shall not apply to
creditworthy loans by the bank to those corporations or
projects. Upon written application to the Commissioner, a
bank may make an investment that would, when aggregated with
all other such investments, exceed 10% 5% of the unimpaired
capital and unimpaired surplus of the bank. The Commissioner
may approve the investment if he is of the opinion and finds
that the proposed investment will not have a material adverse
effect on the safety and soundness of the bank.
(22) To own, possess, and carry as assets the stock of a
corporation engaged in the ownership or operation of a travel
agency or to operate a travel agency as a part of its
business, provided that the bank either owned, possessed, and
carried as assets the stock of such a corporation or operated
a travel agency as part of its business before July 1, 1991.
(23) With respect to affiliate facilities:
(a) to conduct at affiliate facilities any of the
following transactions for and on behalf of another
commonly owned bank, if so authorized by the other bank:
receiving deposits; cashing and issuing checks, drafts,
and money orders; changing money; and receiving payments
on existing indebtedness; and
(b) to authorize a commonly owned bank to conduct
for and on behalf of it any of the transactions listed in
this paragraph (23) at one or more affiliate facilities.
Any bank intending to conduct or to authorize a commonly
owned bank to conduct at an affiliate facility any of the
transactions specified in this paragraph (23) shall give
written notice to the Commissioner at least 30 days before
any such transaction is conducted at the affiliate facility.
(Source: P.A. 88-4; 89-208, eff. 9-29-95; 89-310, eff.
1-1-96; 89-364, eff. 8-18-95; 89-626, eff. 8-9-96.)
(205 ILCS 5/7) (from Ch. 17, par. 314)
Sec. 7. Organization capital requirements. A bank may be
organized to exercise the powers conferred by this Act with
minimum capital and, surplus and reserve for operating
expenses as determined by the Commissioner. The Commissioner
shall record such organization capital requirements in the
Office of the Secretary of State.
(Source: P.A. 84-1004.)
(205 ILCS 5/8) (from Ch. 17, par. 315)
Sec. 8. Incorporators. A State bank may be organized on
application by 5 or more incorporators who shall be
individuals and residents of this State except that a bank
holding company may be the sole incorporator of a State bank.
Each incorporator shall undertake to subscribe and pay in
full in cash for stock having a value of not less than one
per cent of the minimum capital and, surplus and reserve for
operating expense requirements as set forth in Section 7,
except that incorporators of a State bank that will be owned
by a bank holding company may subscribe and pay in full in
cash for stock of the bank holding company, provided that the
incorporator's investment in the bank holding company must at
least equal the amount of money that would have been needed
for the incorporator to acquire shares of the bank's stock
pursuant to this Section.
(Source: P.A. 88-546.)
(205 ILCS 5/9) (from Ch. 17, par. 316)
Sec. 9. Contents of application. The application for a
permit to organize shall be in a form specified by the
Commissioner and shall be filed with the Commissioner signed
by each of the applicants and shall be acknowledged before
some officer authorized by law to acknowledge deeds. It shall
state:
(1) The name, residence, business or occupation and
address of each applicant, and a statement of the proposed
management;
(2) The name for the proposed bank;
(3) The location of the proposed bank;
(4) The amount of capital, surplus and reserve for
operating expenses for the proposed bank;
(5) The number of shares of capital stock, the number of
shares and classes of preferred stock, if any, the par value
of the capital stock and preferred stock, and the amount for
which each share of capital stock and preferred stock is to
be sold;
(6) A statement of the financial worth of each of the
applicants;
(7) (Blank) Three references as to the personal
character of each of the applicants;
(8) Such other relevant information as the Commissioner
may require.
(Source: P.A. 86-754.)
(205 ILCS 5/13) (from Ch. 17, par. 320)
Sec. 13. Issuance of charter.
(a) When the directors have organized as provided in
Section 12 of this Act, and the capital stock and the
preferred stock, if any, together with a surplus of not less
than 50% of the capital, and a reserve for operating expenses
of at least 25% of the capital, has been all fully paid in
and a record of the same filed with the Commissioner, the
Commissioner or some competent person of the Commissioner's
appointment shall make a thorough examination into the
affairs of the proposed bank, and if satisfied that all the
requirements of this Act have been complied with, and that no
intervening circumstance has occurred to change the
Commissioner's findings made pursuant to Section 10 of this
Act, upon payment into the Commissioner's office of the
reasonable expenses of the examination, as determined by the
Commissioner, the Commissioner shall issue a charter
authorizing the bank to commence business as authorized in
this Act. All charters issued by the Commissioner or any
predecessor agency which chartered State banks, including any
charter outstanding as of September 1, 1989, shall be
perpetual. For the 2 years after the Commissioner has issued
a charter to a bank, the bank shall request and obtain from
the Commissioner prior written approval before it may change
senior management personnel or directors.
The original charter, duly certified by the Commissioner,
shall be recorded, and the original or a certified copy shall
be evidence in all courts and places of the existence and
authority of the bank to do business. Upon the issuance
recording of the charter by the Commissioner, the bank shall
be deemed fully organized and may proceed to do business.
The Commissioner may, in the Commissioner's discretion,
withhold the issuing of the charter when the Commissioner has
reason to believe that the bank is organized for any purpose
other than that contemplated by this Act or that a commission
or fee has been paid in connection with the sale of the stock
of the bank. The Commissioner shall revoke the charter and
order liquidation in the event that the bank does not
commence a general banking business within one year from the
date of the issuance of the charter, unless a request has
been submitted, in writing, to the Commissioner for an
extension and the request has been approved. After
commencing a general banking business, a bank, upon written
notice to the Commissioner, may change its name.
(b) (1) The Commissioner may also issue a charter to a
bank that is owned exclusively by other depository
institutions or depository institution holding companies and
is organized to engage exclusively in providing services to
or for other depository institutions, their holding
companies, and the officers, directors, and employees of such
institutions and companies, and in providing correspondent
banking services at the request of other depository
institutions or their holding companies (also referred to as
a "bankers' bank").
(2) A bank chartered pursuant to paragraph (1) shall,
except as otherwise specifically determined by the
Commissioner, be vested with the same rights and privileges
and subject to the same duties, restrictions, penalties, and
liabilities now or hereafter imposed under this Act.
(c) A bank chartered under this Act after November 1,
1985, and an out-of-state bank that merges with a State bank
and establishes or maintains a branch in this State after May
31, 1997, shall obtain from and, at all times while it
accepts or retains deposits, maintain with the Federal
Deposit Insurance Corporation, or such other instrumentality
of or corporation chartered by the United States, deposit
insurance as authorized under federal law.
(d) (i) A bank that has a banking charter issued by the
Commissioner under this Act may, pursuant to a written
purchase and assumption agreement, transfer substantially all
of its assets to another State bank or national bank in
consideration, in whole or in part, for the transferee banks'
assumption of any part or all of its liabilities. Such a
transfer shall in no way be deemed to impair the charter of
the transferor bank or cause the transferor bank to forfeit
any of its rights, powers, interests, franchises, or
privileges as a State bank, nor shall any voluntary reduction
in the transferor bank's activities resulting from the
transfer have any such effect; provided, however, that a
State bank that transfers substantially all of its assets
pursuant to this subsection (d) and following the transfer
does not accept deposits and make loans, shall not have any
rights, powers, interests, franchises, or privileges under
subsection (15) of Section 5 of this Act until the bank has
resumed accepting deposits and making loans.
(ii) The fact that a State bank does not resume
accepting deposits and making loans for a period of 24 months
commencing on September 11, 1989 or on a date of the transfer
of substantially all of a State bank's assets, whichever is
later, or such longer period as the Commissioner may allow in
writing, may be the basis for a finding by the Commissioner
under Section 51 of this Act that the bank is unable to
continue operations.
(iii) The authority provided by subdivision (i) of this
subsection (d)(i) shall terminate on May 31, 1997, and no
bank that has transferred substantially all of its assets
pursuant to this subsection (d) shall continue in existence
after May 31, 1997.
(Source: P.A. 89-208, eff. 9-29-95; 89-567, eff. 7-26-96;
89-603, eff. 8-2-96; revised 9-9-96.)
(205 ILCS 5/13.5 new)
Sec. 13.5. Formation and merger of interim banks.
(a) An interim bank may be chartered as a State bank for
the exclusive purpose of accomplishing a corporate
restructuring through merger with an existing State bank. An
interim bank shall be chartered and merged pursuant to the
provisions of this Section. The interim bank shall not
accept deposits, make loans, pay checks, or engage in the
general banking business or any part thereof, and shall not
be subject to the provisions of this Act other than those set
forth in this Section; provided, however, that if the interim
bank becomes the resulting bank in a merger, such resulting
bank shall have all of the powers, rights, and duties of a
State bank and must comply with all applicable provisions of
this Act.
(b) An interim State bank may be organized upon
application by 5 or more incorporators or by a bank holding
company. The application shall be made on forms prescribed
by the Commissioner which shall request, at a minimum, the
following information:
(1) the names and addresses of the incorporators;
(2) the proposed name and address of the interim
bank;
(3) the name and address of all banks with which
the interim bank will be merging;
(4) a copy of the merger agreement by which the
interim bank will be merged with the banks identified in
item (3) containing the same information required in
merger agreements pursuant to subsection (1) of Section
22 of this Act; and
(5) an acknowledgement that the interim bank shall
not engage in the general banking business or any part
thereof unless and until the interim bank becomes the
resulting bank in a merger.
(c) The merger agreement must be approved by all of the
incorporators of the interim bank and must be approved by the
existing State bank with which the interim bank will merge,
as required by Section 22 of this Act.
(d) Upon receipt of the application to organize the
interim bank and the merger agreement submitted pursuant to
this Section and Section 22 of this Act, the Commissioner may
issue a charter to the interim bank and approve the merger
agreement if the Commissioner makes the findings set forth in
subsection (3) of Section 22 of this Act. The interim bank's
charter shall not take effect until, and shall only be
effective for purposes of, the merger.
(e) Nothing in this Section affects the obligations of
an existing State bank with which the interim bank will
merge, or the rights of minority or dissenting shareholders
of the existing State bank, in connection with the approval,
execution, and accomplishment of a merger agreement as
provided elsewhere in this Act.
(205 ILCS 5/14) (from Ch. 17, par. 321)
Sec. 14. Stock. Unless otherwise provided for in this Act
provisions of general application to stock of a state bank
shall be as follows:
(1) All banks shall have their capital divided into
shares of a par value of not less than one dollar each and
not more than one hundred dollars each. No issue of capital
stock or preferred stock shall be valid until not less than
the par value of all such stock so issued shall be paid in
and notice thereof by the president, a vice-president or
cashier of the bank has been transmitted to the Commissioner.
In the case of an increase in capital stock by the
declaration of a stock dividend, the capitalization of
retained earnings effected by such stock dividend shall
constitute the payment for such shares required by the
preceding sentence, provided that the surplus of said bank
after such stock dividend shall be at least equal to fifty
per cent of the capital as increased. The charter shall not
limit or deny the voting power of the shares of any class of
stock except as provided in Section 15(3) of this Act.
(2) Pursuant to action taken in accordance with the
requirements of Section 17, a bank may issue preferred stock
of one or more classes as shall be approved by the
Commissioner as hereinafter provided, and make such amendment
to its charter as may be necessary for this purpose; but in
the case of any newly organized bank which has not yet issued
capital stock the requirements of Section 17 shall not apply.
(3) Without limiting the authority herein contained a
bank, when so provided in its charter and when approved by
the Commissioner, may issue shares of preferred stock:
(a) Subject to the right of the bank to redeem any of
such shares at not exceeding the price fixed by the charter
for the redemption thereof;
(b) Subject to the provisions of subsection (8) of this
Section 14 entitling the holders thereof to cumulative or
noncumulative dividends;
(c) Having preference over any other class or classes of
shares as to the payment of dividends;
(d) Having preference as to the assets of the bank over
any other class or classes of shares upon the voluntary or
involuntary liquidation of the bank;
(e) Convertible into shares of any other class of stock,
provided that preferred shares shall not be converted into
shares of a different par value unless that part of the
capital of the bank represented by such preferred shares is
at the time of the conversion equal to the aggregate par
value of the shares into which the preferred shares are to be
converted.
(4) If any part of the capital of a bank consists of
preferred stock, the determination of whether or not the
capital of such bank is impaired and the amount of such
impairment shall be based upon the par value of its stock
even though the amount which the holders of such preferred
stock shall be entitled to receive in the event of retirement
or liquidation shall be in excess of the par value of such
preferred stock.
(5) Pursuant to action taken in accordance with the
requirements of Section 17 of this Act, a state bank may
provide for a specified number of authorized but unissued
shares of capital stock for one or more of the following
purposes:
(a) Reserved for issuance under stock option plan or
plans to directors, officers or employees;
(b) Reserved for issuance upon conversion of convertible
preferred stock issued pursuant to and in compliance with the
provisions of subsections (2) and (3) of this Section 14.
(c) Reserved for issuance upon conversion of convertible
debentures or other convertible evidences of indebtedness
issued by a state bank, provided always that the terms of
such conversion have been approved by the Commissioner;
(d) Reserved for issuance by the declaration of a stock
dividend. If and when any shares of capital stock are
proposed to be authorized and reserved for any of the
purposes set forth in subparagraphs (a), (b) or (c) above,
the notice of the meeting, whether special or annual, of
stockholders at which such proposition is to be considered
shall be accompanied by a statement setting forth or
summarizing the terms upon which the shares of capital stock
so reserved are to be issued, and the extent to which any
preemptive rights of stockholders are inapplicable to the
issuance of the shares so reserved or to the convertible
preferred stock or convertible debentures or other
convertible evidences of indebtedness, and the approving vote
of the holders of at least two-thirds of the outstanding
shares of stock entitled to vote at such meeting of the terms
of such issuance shall be requisite for the adoption of any
amendment providing for the reservation of authorized but
unissued shares for any of said purposes. Nothing in this
subsection (5) contained shall be deemed to authorize the
issuance of any capital stock for a consideration less than
the par value thereof.
(6) Upon written application to the Commissioner 60 days
prior to the proposed purchase and receipt of the written
approval of the Commissioner, a state bank may purchase and
hold as treasury stock such amounts of the total number of
issued and outstanding shares of its capital and preferred
stock outstanding as the Commissioner determines is
consistent with safety and soundness of the bank. The
Commissioner may specify the manner of accounting for the
treasury stock and the form of notice prior to ultimate
disposition of the shares. Except as authorized in this
subsection, it shall not be lawful for a state bank to
purchase or hold any additional such shares or securities
described in subsection (2) of Section 37 unless necessary to
prevent loss upon a debt previously contracted in good faith,
in which event such shares or securities so purchased or
acquired shall, within 6 months from the time of purchase or
acquisition, be sold or disposed of at public or private
sale. Any state bank which intends to purchase and hold
treasury stock as authorized in this subsection (6) shall
file a written application with the Commissioner 60 days
prior to any such proposed purchase. The application shall
state the number of shares to be purchased, the consideration
for the shares, the name and address of the person from whom
the shares are to be purchased, if known, and the total
percentage of its issued and outstanding shares to be held by
the bank after the purchase. The total consideration paid by
a state bank for treasury stock shall reduce capital and
surplus of the bank for purposes of Sections of this Act
relating to lending and investment limits which require
computation of capital and surplus. After considering and
approving an application to purchase and hold treasury stock
under this subsection, the Commissioner may waive or reduce
the balance of the 60 day application period. The
Commissioner may specify the form of the application for
approval to acquire treasury stock and promulgate rules and
regulations for the administration of this subsection (6). A
state bank may, acquire or resell its owns shares as treasury
stock pursuant to this subsection (6) without a change in its
charter pursuant to Section 17. Such stock may be held for
any purpose permitted in subsection (5) of this Section 14 or
may be resold upon such reasonable terms as the board of
directors may determine provided notice is given to the
Commissioner prior to the resale of such stock.
(7) During the time that a state bank shall continue its
banking business, it shall not withdraw or permit to be
withdrawn, either in the form of dividends or otherwise, any
portion of its capital, but nothing in this subsection shall
prevent a reduction or change of the capital stock or the
preferred stock under the provisions of Sections 17 through
30 of this Act, a purchase of treasury stock under the
provisions of subsection (6) of this Section 14 or a
redemption of preferred stock pursuant to charter provisions
therefor.
(8)(a) Subject to the provisions of this Act, the board
of directors of a state bank from time to time may declare a
dividend of so much of the net profits of such bank as it
shall judge expedient, but each bank before the declaration
of a dividend shall carry at least one-tenth of its net
profits since the date of the declaration of the last
preceding dividend, or since the issuance of its charter in
the case of its first dividend, to its surplus until the same
shall be equal to its capital.
(b) No dividends shall be paid by a state bank while it
continues its banking business to an amount greater than its
net profits then on hand, deducting first therefrom its
losses and bad debts. All debts due to a state bank on which
interest is past due and unpaid for a period of 6 months or
more, unless the same are well secured and in the process of
collection, shall be considered bad debts.
(Source: P.A. 86-754.)
(205 ILCS 5/16) (from Ch. 17, par. 323)
Sec. 16. Directors. The business and affairs of a State
bank shall be managed by its board of directors that shall
exercise its powers as follows:
(1) Directors shall be elected as provided in this Act.
Any omission to elect a director or directors shall not
impair any of the rights and privileges of the bank or of any
person in any way interested. The existing directors shall
hold office until their successors are elected and qualify.
(2) (a) Notwithstanding the provisions of any charter
heretofore or hereafter issued, the number of directors,
not fewer than 5 nor more than 25, may be fixed from time
to time by the stockholders at any meeting of the
stockholders called for the purpose of electing directors
or changing the number thereof by the affirmative vote of
at least two-thirds of the outstanding stock entitled to
vote at the meeting, and the number so fixed shall be the
board regardless of vacancies until the number of
directors is thereafter changed by similar action. At
least a majority of the directors must have resided in
the State of Illinois or within 100 miles of the main
banking premises for at least one year immediately
preceding their election and must be residents of the
State of Illinois or the territory within 100 miles of
the main banking premises during their continuance in
office. Any director who becomes disqualified shall
forthwith resign his office.
(b) Notwithstanding the minimum number of directors
specified in paragraph (a) of this subsection, a State
bank that has been in existence for 10 years or more and
has less than $20,000,000 in assets, as of the December
31 immediately preceding the annual meeting of
shareholders at which directors are elected, may, subject
to the approval of the Commissioner, have a minimum of 3
directors; provided that if a State bank has fewer than 5
directors, at least one director shall not be an officer
or employee of the bank. The Commissioner shall annually
review the appropriateness of the grant of authority to
have a reduced minimum number of directors pursuant to
this paragraph (b).
(3) Except as otherwise provided in this paragraph (3),
directors shall hold office until the next annual meeting of
the stockholders succeeding their election or until their
successors are elected and qualify. If the board of directors
consists of 6 or more members, in lieu of electing the
membership of the whole board of directors annually, the
charter or by-laws of a State bank may provide that the
directors shall be divided into either 2 or 3 classes, each
class to be as nearly equal in number as is possible. The
term of office of directors of the first class shall expire
at the first annual meeting of the stockholders after their
election, that of the second class shall expire at the second
annual meeting after their election, and that of the third
class, if any, shall expire at the third annual meeting after
their election. At each annual meeting after classification,
the number of directors equal to the number of the class
whose terms expire at the time of the meeting shall be
elected to hold office until the second succeeding annual
meeting, if there be 2 classes, or until the third succeeding
annual meeting, if there be 3 classes. Vacancies may be
filled by stockholders at a special meeting called for the
purpose.
If authorized by the bank's by-laws or an amendment
thereto, the directors of a State bank may properly fill a
vacancy or vacancies arising between shareholders' meetings,
but at no time may the number of directors selected to fill a
vacancy in this manner during any interim period between
shareholders' meetings exceed 33 1/3% of the total membership
of the board of directors.
(4) The board of directors shall hold regular meetings
at least once each month, provided that, upon prior written
approval by the Commissioner, the board of directors may hold
regular meetings less frequently than once each month but at
least once each calendar quarter. A special meeting of the
board of directors may be held as provided by the by-laws. A
special meeting of the board of directors may also be held
upon call by the Commissioner or a bank examiner appointed
under the provisions of this Act upon not less than 12 hours
notice of the meeting by personal service of the notice or by
mailing the notice to each of the directors at his residence
as shown by the books of the bank. A majority of the board
of directors shall constitute a quorum for the transaction of
business unless a greater number is required by the charter
or the by-laws. The act of the majority of the directors
present at a meeting at which a quorum is present shall be
the act of the board of directors unless the act of a greater
number is required by the charter or by the by-laws.
(5) A member of the board of directors shall be elected
president. The board of directors may appoint other officers,
as the by-laws may provide, and fix their salaries to carry
on the business of the bank. The board of directors may make
and amend by-laws (not inconsistent with this Act) for the
government of the bank and may, by the affirmative vote of a
majority of the board of directors, establish reasonable
compensation of all directors for services to the corporation
as directors, officers, or otherwise. An officer, whether
elected or appointed by the board of directors or appointed
pursuant to the by-laws, may be removed by the board of
directors at any time.
(6) The board of directors shall cause suitable books
and records of all the bank's transactions to be kept.
(7) In discharging the duties of their respective
positions, the board of directors, committees of the board,
and individual directors may, in considering the best long
term and short term interests of the bank, consider the
effects of any action (including, without limitation, action
that may involve or relate to a merger or potential merger or
to a change or potential change in control of the bank) upon
employees, depositors, suppliers, and customers of the
corporation or its subsidiaries, communities in which the
main banking premises, branches, offices, or other
establishments of the bank or its subsidiaries are located,
and all pertinent factors.
(Source: P.A. 88-532; 88-636, eff. 9-9-94; 89-364, eff.
8-18-95.)
(205 ILCS 5/16.5 new)
Sec. 16.5. Employment of persons with convictions.
Except with the prior written consent of the Commissioner, no
State bank shall knowingly employ or otherwise permit an
individual to serve as an officer, director, employee, or
agent of the State bank if the individual has been convicted
of a felony or of any criminal offense relating to dishonesty
or breach of trust.
(205 ILCS 5/17) (from Ch. 17, par. 324)
Sec. 17. Changes in charter.
(a) By compliance with the provisions of this Act a
State bank may:
(1) Change its main banking premises provided that
there shall not be a removal to a new location without
complying with the capital requirements of Section 7 and
of subsection (1) of Section 10 hereof, nor unless the
Commissioner shall find that the convenience and needs of
the area sought to be served by the bank at its proposed
new location will be promoted.
(2) Increase, decrease or change its capital stock,
whether issued or unissued, provided that in no case
shall the capital be diminished to the prejudice of its
creditors;
(3) Provide for authorized but unissued capital
stock reserved for issuance for one or more of the
purposes provided for in subsection (5) of Section 14
hereof;
(4) Authorize preferred stock, or increase,
decrease or change the preferences, qualifications,
limitations, restrictions or special or relative rights
of its preferred stock, whether issued or unissued,
provided that in no case shall the capital be diminished
to the prejudice of its creditors;
(5) Increase, decrease or change the par value of
its shares of its capital stock or preferred stock,
whether issued or unissued;
(6) Extend the duration of its charter;
(7) Eliminate cumulative voting rights under all or
specified circumstances, or eliminate voting rights
entirely, as to any class or classes or series of stock
of the bank pursuant to paragraph (3) of Section 15,
provided that one class of shares or series thereof shall
always have voting in respect to all matters in the bank,
and provided further that the proposal to eliminate such
voting rights receives the approval of the holders of 70%
of the outstanding shares of stock entitled to vote as
provided in paragraph (7) of subsection (b) of this
Section 17; or
(8) Make such other change in its charter as may be
authorized in this Act.
(b) To effect a change or changes in a State bank's
charter as provided for in this Section 17:
(1) The board of directors shall adopt a resolution
setting forth the proposed amendment and directing that
it be submitted to a vote at a meeting of stockholders,
which may be either an annual or special meeting.
(2) If the meeting is a special meeting, written or
printed notice setting forth the proposed amendment or
summary thereof shall be given to each stockholder of
record entitled to vote at such meeting at least 30 days
before such meeting and in the manner provided in this
Act for the giving of notice of meetings of stockholders.
(3) At such special meeting, a vote of the
stockholders entitled to vote shall be taken on the
proposed amendment. Except as provided in paragraph (7)
of this subsection (b), the proposed amendment shall be
adopted upon receiving the affirmative vote of the
holders of at least two-thirds of the outstanding shares
of stock entitled to vote at such meeting, unless holders
of preferred stock are entitled to vote as a class in
respect thereof, in which event the proposed amendment
shall be adopted upon receiving the affirmative vote of
the holders of at least two-thirds of the outstanding
shares of each class of shares entitled to vote as a
class in respect thereof and of the total outstanding
shares entitled to vote at such meeting. Any number of
amendments may be submitted to the stockholders and voted
upon by them at one meeting. A certificate of the
amendment, or amendments, verified by the president, or a
vice-president, or the cashier, shall be filed
immediately in the office of the Commissioner.
(4) At any annual meeting without a resolution of
the board of directors and without a notice and prior
publication, as hereinabove provided, a proposition for a
change in the bank's charter as provided for in this
Section 17 may be submitted to a vote of the stockholders
entitled to vote at the annual meeting, except that no
proposition for authorized but unissued capital stock
reserved for issuance for one or more of the purposes
provided for in subsection (5) of Section 14 hereof shall
be submitted without complying with the provisions of
said subsection. The proposed amendment shall be adopted
upon receiving the affirmative vote of the holders of at
least two-thirds of the outstanding shares of stock
entitled to vote at such meeting, unless holders of
preferred stock are entitled to vote as a class in
respect thereof, in which event the proposed amendment
shall be adopted upon receiving the affirmative vote of
the holders of at least two-thirds of the outstanding
shares of each class of shares entitled to vote as a
class in respect thereof and the total outstanding shares
entitled to vote at such meeting. A certificate of the
amendment, or amendments, verified by the president, or a
vice-president or cashier, shall be filed immediately in
the office of the Commissioner.
(5) If an amendment or amendments shall be approved
in writing by the Commissioner, a like certificate,
together with the Commissioner's written approval, shall
be recorded, a file marked copy delivered to the
Commissioner, and thereupon the amendment or amendments
so adopted and so approved shall be accomplished in
accordance with the vote of the stockholders. The
Commissioner shall revoke such approval in the event such
amendment or amendments are not effected within one year
from the date of the issuance of the Commissioner's
certificate and written approval except for transactions
permitted under subsection (5) of Section 14 of this Act.
(6) No amendment or amendments shall affect suits
in which the bank is a party, nor affect causes of
action, nor affect rights of persons in any particular,
nor shall actions brought against such bank by its former
name be abated by a change of name.
(7) A proposal to amend the charter to eliminate
cumulative voting rights under all or specified
circumstances, or to eliminate voting rights entirely, as
to any class or classes or series or stock of a bank,
pursuant to paragraph (3) of Section 15 and paragraph (7)
of subsection (a) of this Section 17, shall be adopted
only upon such proposal receiving the approval of the
holders of 70% of the outstanding shares of stock
entitled to vote at the meeting where the proposal is
presented for approval, unless holders of preferred stock
are entitled to vote as a class in respect thereof, in
which event the proposed amendment shall be adopted upon
receiving the approval of the holders of 70% of the
outstanding shares of each class of shares entitled to
vote as a class in respect thereof and of the total
outstanding shares entitled to vote at the meeting where
the proposal is presented for approval. The proposal to
amend the charter pursuant to this paragraph (7) may be
voted upon at the annual meeting or a special meeting.
(c) The purchase and holding and later resale of
treasury stock of a state bank pursuant to the provisions of
subsection (6) of Section 14 may be accomplished without a
change in its charter reflecting any decrease or increase in
capital stock.
(Source: P.A. 88-546; 89-541, eff. 7-19-96.)
(205 ILCS 5/32) (from Ch. 17, par. 339)
Sec. 32. Basic loaning limits. The liabilities
outstanding at one time to a state bank of a person for money
borrowed, including the liabilities of a partnership or joint
venture in the liabilities of the several members thereof,
shall not exceed 20% of the amount of the unimpaired capital
and unimpaired surplus of the bank.
The liabilities to any state bank of a person may exceed
20% of the unimpaired capital and unimpaired surplus of the
bank, provided that (i) the excess amount from time to time
outstanding is fully secured by readily marketable collateral
having a market value, as determined by reliable and
continuously available quotations, at least equal to the
excess amount outstanding; and (ii) the total liabilities
shall not exceed 30% of the unimpaired capital and unimpaired
surplus of the bank.
The following shall not be considered as money borrowed
within the meaning of this Section:
(1) The purchase of discount of bills of exchange
drawn in good faith against actually existing values.
(2) The purchase or discount of commercial or
business paper actually owned by the person negotiating
the same.
(3) The purchase of or loaning money in exchange
for evidences of indebtedness which shall be secured by
mortgage or trust deed upon productive real estate the
value of which, as ascertained by the oath of 2 qualified
appraisers, neither of whom shall be an officer,
director, or employee of the bank or of any subsidiary or
affiliate of the bank, is double the amount of the
principal debt secured at the time of the original
purchase of evidence of indebtedness or loan of money and
which is still double the amount of the principal debt
secured at the time of any renewal of the indebtedness or
loan, and which mortgage or trust deed is shown, either
by a guaranty policy of a title guaranty company approved
by the Commissioner or by a registrar's certificate of
title in any county having adopted the provisions of the
Registered Titles (Torrens) Act, or by the opinion of an
attorney-at-law, to be a first lien upon the real estate
therein described, and real estate shall not be deemed to
be encumbered within the meaning of this subsection (3)
by reason of the existence of instruments reserving
rights-of-way, sewer rights and rights in wells, building
restrictions or other restrictive covenants, nor by
reason of the fact it is subject to lease under which
rents or profits are reserved by the owners.
(4) The purchase of marketable investment
securities.
(5) The liability to a state bank of a person who
is an accommodation party to, or guarantor of payment
for, any evidence of indebtedness of another person who
obtains a loan from or discounts paper with or sells
paper to the state bank; but the total liability to a
state bank of a person as an accommodation party or
guarantor of payment in respect of such evidences of
indebtedness shall not exceed 20% of the amount of the
unimpaired capital and unimpaired surplus of the bank;
provided however that the liability of an accommodation
party to paper excepted under subsection 2 of this
Section shall not be included in the computation of this
limitation.
(6) The liability to a state bank of a person, who
as a guarantor, guarantees collection of the obligation
or indebtedness of another person.
The total liabilities of any one person, for money
borrowed, or otherwise, shall not exceed 25% of the deposits
of the bank, and those total liabilities shall at no time
exceed 50% of the amount of the unimpaired capital and
unimpaired surplus of the bank. Absent an actual unremedied
breach, the obligation or responsibility for breach of
warranties or representations, express or implied, of a
person transferring negotiable or non-negotiable paper to a
bank without recourse and without guaranty of payment, shall
not be included in determining the amount of liabilities of
the person to the bank for borrowed money or otherwise; and
in the event of and to the extent of an unremedied breach,
the amount remaining unpaid for principal and interest on the
paper in respect of which the unremedied breach exists shall
thereafter for the purpose of determining whether subsequent
transactions giving rise to additional liability of the
person to the state bank for borrowed money or otherwise are
within the limitations of Sections 32 through 34 of this Act,
be included in computing the amount of liabilities of the
person for borrowed money or otherwise.
The liability of a person to a state bank on account of
acceptances made or issued by the state bank on behalf of the
person shall be included in the computation of the total
liabilities of the person for money borrowed except to the
extent the acceptances grow out of transactions of the
character described in subsection (6) of Section 34 of this
Act and are otherwise within the limitations of that
subsection; provided nevertheless that any such excepted
acceptances acquired by the state bank which accepted the
same shall be included in the computation of the liabilities
of the person to the state bank for money borrowed.
(Source: P.A. 88-546; 89-364, eff. 8-18-95.)
(205 ILCS 5/34) (from Ch. 17, par. 342)
Sec. 34. Exceptions to loans and investment limits. The
limitations in Sections 32, and 33, and 35.1 of this Act upon
the liabilities of any one person and upon the purchase and
holding of marketable investment securities shall not apply:
(1) To the extent of 50% of the unimpaired capital and
unimpaired surplus of any bank, to loans to or obligations of
any person to the extent that the loan shall be secured by a
like amount of obligations of or guaranteed by the United
States or by the State of Illinois, or by a like amount of
obligations of any corporation wholly owned directly or
indirectly by the United States or of any agency or
instrumentality of the United States or of the State of
Illinois, including any unit of local government or school
district, provided that the total liabilities to any bank of
any one person shall not exceed 50% of such unimpaired
capital and unimpaired surplus.
(2) To the extent of 30% of the unimpaired capital and
unimpaired surplus of any bank, to loans to or obligations of
any person to the extent that the same shall be secured by
shipping documents or instruments transferring or securing
title covering livestock or giving a lien on livestock when
the market value of the livestock securing the obligation is
not at the time of the making of the loan less than 115% of
the principal amount of the obligation, provided that the
total liabilities to any bank of any one person shall not
exceed 50% of the unimpaired capital and unimpaired surplus.
(3) To the extent of the unimpaired capital and
unimpaired surplus of any bank, to the purchase of or holding
by any bank of the general obligations of each municipality
located in the State of Illinois or in any other state of the
United States or to the purchase of or holding of the tax
anticipation warrants of each such municipality.
(4) To the obligations as endorser, whether with or
without recourse, or as guarantor, whether conditional or
unconditional, of negotiable or nonnegotiable installment
consumer paper of the person transferring the same if the
bank's files or the knowledge of its officers of the
financial condition of each maker of those obligations is
reasonably adequate and if an officer of the bank, designated
for that purpose by the board of directors of the bank,
certifies that the responsibility of each maker of the
obligations has been evaluated and that the bank is relying
primarily upon each maker for the payment of the obligations;
certification shall be in writing and shall be retained as
part of the records of the bank.
(5) To the issuance, advice, or confirmation of letters
of credit; however, if the letter of credit is a standby
letter of credit, it shall be included within the limit under
Section 32 for the person who has procured the issuance of
the standby letter of credit unless the issuing bank has, at
the time of issuance, an irrevocable commitment by another
bank to purchase or participate out any amounts that may
later be drawn under the letter of credit that would create a
loan in excess of the limits under Section 32 for the person
or the amounts are secured by pledge of United States
government securities, a segregated deposit account, or
other security that would exempt a loan so secured by
application of Section 34 or 35 of this Act; if, however, a
commitment to purchase or participate is in place, the
amounts are not included in the limits under Section 32 for
the person until drafts are presented upon the letter.
(6) To the acceptance of drafts or bills of exchange
that grow out of transactions involving the importation or
exportation of goods; or that grow out of transactions
involving the domestic shipment of goods, provided documents
of title covering the goods secure the acceptances at the
time of acceptance; or that are secured at the time of
acceptances by documents of title covering readily marketable
staples; but the aggregate amount of these acceptances by any
State bank on behalf of any one person at any one time
outstanding shall not exceed 20% of the unimpaired capital
and unimpaired surplus of the bank unless the part thereof in
excess of that percentum of unimpaired capital and unimpaired
surplus is and will remain secured by accompanying documents
of title or proceeds thereof growing out of the same
transaction or by substituted security of similar character;
provided further, however, that the aggregate amount of the
acceptances on behalf of any one person outstanding at any
one time shall not exceed 50% of the amount of unimpaired
capital and unimpaired surplus of the bank. The provisions of
this paragraph (6) apply to the acceptances by a State bank
on behalf of any one person and not to the purchase by a
State bank of other banks' acceptances. A State bank may
purchase acceptances from other banks in amounts not to
exceed 50% of the State bank's unimpaired capital and
unimpaired surplus from any one bank.
(7) To the extent of 20% of the unimpaired capital and
unimpaired surplus of any bank, to the purchase of or holding
by any bank of obligations of the State of Israel or
obligations fully guaranteed by the State of Israel as to
payment of principal and interest.
(Source: P.A. 87-132; 88-546.)
(205 ILCS 5/35) (from Ch. 17, par. 343)
Sec. 35. Exemptions from loan and investment limits. The
limitations in Sections 32, 33, and 34, and 35.1 upon the
liabilities of any one person and upon the purchase or
holding of marketable investment securities shall not apply
to the following as to which there shall be no limitation:
(1) Obligations of, or guaranteed by the United States.
(2) Loans to or obligations of any person to the extent
that they are secured by not less than a like amount of bonds
or notes of the United States, or certificates of
indebtedness of the United States, or Treasury Bills of the
United States or obligations fully guaranteed as to both
principal and interest by the United States, or to the extent
that the same shall be secured or covered by guaranty or by
commitment or agreement to take over or purchase, made by any
Federal Reserve Bank or by the United States or any
department, bureau, board, commission or establishment of the
United States, including any corporation wholly owned,
directly or indirectly, by the United States.
(3) Obligations of any corporation wholly owned,
directly or indirectly, by the United States or of any agency
or instrumentality of the United States.
(4) General obligations and tax anticipation warrants of
each state of the United States and general obligations of
each municipality located in whole or in part in the county
in which the bank is located.
(5) Loans to or obligations of any person to the extent
that they are secured by not less than the same amount of
general obligations and tax anticipation warrants of each
state of the United States and of each municipality located
in whole or in part in the county in which the bank is
located.
(6) Loans to or obligations of or investments in those
subsidiaries, established or acquired pursuant to subsection
(12) of Section 5 of this Act, all of the stock of which is
owned by the bank.
(7) Loans or extensions of credit secured by a
segregated deposit account in the lending bank.
(8) Obligations of the State of Illinois, and obligations
guaranteed by the State of Illinois to the extent of the
guarantee.
(9) To the ownership of certificates of participation in
open-end investment companies registered with the Securities
and Exchange Commission under the Investment Company Act of
1940 and Securities Act of 1933, provided the portfolios of
such investment companies consist wholly of investments in
which the bank could invest directly without limitation.
(Source: P.A. 86-368; 86-635; 86-754; 86-1028.)
(205 ILCS 5/48) (from Ch. 17, par. 359)
Sec. 48. Commissioner's powers; duties. The Commissioner
shall have the powers and authority, and is charged with the
duties and responsibilities designated in this Act, and a
State bank shall not be subject to any other visitorial power
other than as authorized by this Act, except those vested in
the courts, or upon prior consultation with the Commissioner,
a foreign bank regulator with an appropriate supervisory
interest in the parent or affiliate of a state bank. In the
performance of the Commissioner's duties:
(1) The Commissioner shall call for statements from all
State banks as provided in Section 47 at least one time
during each calendar quarter.
(2) (a) The Commissioner, as often as the Commissioner
shall deem necessary or proper, and no less frequently than
18 months following the preceding examination at least once
in each year, shall appoint a suitable person or persons to
make an examination of the affairs of every State bank,
except that for every eligible State bank, as defined by
regulation, the Commissioner in lieu of the an annual
examination may every other year shall accept on an
alternating basis the examination made by the eligible State
bank's appropriate federal banking agency pursuant to Section
111 of the Federal Deposit Insurance Corporation Improvement
Act of 1991, provided the appropriate federal banking agency
has made such an examination. A person so appointed shall not
be a stockholder or officer or employee of any bank which
that person may be directed to examine, and shall have powers
to make a thorough examination into all the affairs of the
bank and in so doing to examine any of the officers or agents
or employees thereof on oath and shall make a full and
detailed report of the condition of the bank to the
Commissioner. In making the examination the examiners shall
include an examination of the affairs of all the affiliates
of the bank, as defined in subsection (b) of Section 35.2 of
this Act, as shall be necessary to disclose fully the
conditions of the affiliates, the relations between the bank
and the affiliates and the effect of those relations upon the
affairs of the bank, and in connection therewith shall have
power to examine any of the officers, directors, agents, or
employees of the affiliates on oath. After May 31, 1997, the
Commissioner may enter into cooperative agreements with state
regulatory authorities of other states to provide for
examination of State bank branches in those states, and the
Commissioner may accept reports of examinations of State bank
branches from those state regulatory authorities. These
cooperative agreements may set forth the manner in which the
other state regulatory authorities may be compensated for
examinations prepared for and submitted to the Commissioner.
(b) After May 31, 1997, the Commissioner is authorized
to examine, as often as the Commissioner shall deem necessary
or proper, branches of out-of-state banks. The Commissioner
may establish and may assess fees to be paid to the
Commissioner for examinations under this subsection (b). The
fees shall be borne by the out-of-state bank, unless the fees
are borne by the state regulatory authority that chartered
the out-of-state bank, as determined by a cooperative
agreement between the Commissioner and the state regulatory
authority that chartered the out-of-state bank.
(2.5) Whenever any State bank, any subsidiary or
affiliate of a State bank, or after May 31, 1997, any branch
of an out-of-state bank causes to be performed, by contract
or otherwise, any bank services for itself, whether on or off
its premises:
(a) that performance shall be subject to
examination by the Commissioner to the same extent as if
services were being performed by the bank or, after May
31, 1997, branch of the out-of-state bank itself on its
own premises; and
(b) the bank or, after May 31, 1997, branch of the
out-of-state bank shall notify the Commissioner of the
existence of a service relationship. The notification
shall be submitted with the first statement of condition
(as required by Section 47 of this Act) due after the
making of the service contract or the performance of the
service, whichever occurs first. The Commissioner shall
be notified of each subsequent contract in the same
manner.
For purposes of this subsection (2.5), the term "bank
services" means services such as sorting and posting of
checks and deposits, computation and posting of interest and
other credits and charges, preparation and mailing of checks,
statements, notices, and similar items, or any other
clerical, bookkeeping, accounting, statistical, or similar
functions performed for a State bank, including but not
limited to electronic data processing related to those bank
services.
(3) The expense of administering this Act, including the
expense of the examinations of State banks as provided in
this Act, shall to the extent of the amounts resulting from
the fees provided for in paragraphs (a), (a-2), and (b) of
this subsection (3) be assessed against and borne by the
State banks:
(a) Each bank shall pay to the Commissioner a Call
Report Fee which shall be paid in quarterly installments
equal to one-fourth of the sum of the annual fixed fee of
$800, plus a variable fee based on the assets shown on
the quarterly statement of condition delivered to the
Commissioner in accordance with Section 47 for the
preceding quarter according to the following schedule:
16¢ per $1,000 of the first $5,000,000 of total assets,
15¢ per $1,000 of the next $20,000,000 of total assets,
13¢ per $1,000 of the next $75,000,000 of total assets,
9¢ per $1,000 of the next $400,000,000 of total assets,
7¢ per $1,000 of the next $500,000,000 of total assets,
and 5¢ per $1,000 of all assets in excess of
$1,000,000,000, of the State bank. The Call Report Fee
shall be calculated by the Commissioner and billed to the
banks for remittance at the time of the quarterly
statements of condition provided for in Section 47. The
Commissioner may require payment of the fees provided in
this Section by an electronic transfer of funds or an
automatic debit of an account of each of the State banks.
In case more than one examination of any bank is deemed
by the Commissioner to be necessary in any examination
frequency cycle specified in subsection 2(a) of this
Section, fiscal year and is performed at his direction,
the Commissioner may assess a reasonable additional fee
to recover the cost of the additional examination, but
the additional fee shall not exceed the sum of the
remittances from the Call Report Fees applicable to the 4
consecutive quarterly statements of condition immediately
preceding the date of the additional examination. In
lieu of the method and amounts set forth in this
paragraph (a) for the calculation of the Call Report Fee,
the Commissioner may specify by rule that the Call Report
Fees provided by this Section may be assessed
semiannually or some other period and may provide in the
rule the formula to be used for calculating and assessing
the periodic Call Report Fees to be paid by State banks.
(a-1) If in the opinion of the Commissioner an
emergency exists or appears likely, the Commissioner may
assign an examiner or examiners to monitor the affairs of
a State bank with whatever frequency he deems
appropriate, including but not limited to a daily basis.
The reasonable and necessary expenses of the Commissioner
during the period of the monitoring shall be borne by the
subject bank. The Commissioner shall furnish the State
bank a statement of time and expenses if requested to do
so within 30 days of the conclusion of the monitoring
period.
(a-2) On and after January 1, 1990, the reasonable
and necessary expenses of the Commissioner during
examination of the performance of electronic data
processing services under subsection (2.5) shall be borne
by the banks for which the services are provided. An
amount, based upon a fee structure prescribed by the
Commissioner, shall be paid by the banks or, after May
31, 1997, branches of out-of-state banks receiving the
electronic data processing services along with the Call
Report Fee assessed under paragraph (a) of this
subsection (3).
(a-3) After May 31, 1997, the reasonable and
necessary expenses of the Commissioner during examination
of the performance of electronic data processing services
under subsection (2.5) at or on behalf of branches of
out-of-state banks shall be borne by the out-of-state
banks, unless those expenses are borne by the state
regulatory authorities that chartered the out-of-state
banks, as determined by cooperative agreements between
the Commissioner and the state regulatory authorities
that chartered the out-of-state banks.
(b) "Fiscal year" for purposes of this Section 48
is defined as a period beginning July 1 of any year and
ending June 30 of the next year. The Commissioner shall
receive for each fiscal year, commencing with the fiscal
year ending June 30, 1987, a contingent fee equal to the
lesser of the aggregate of the fees paid by all State
banks under paragraph (a) of subsection (3) for that
year, or the amount, if any, whereby the aggregate of the
administration expenses, as defined in paragraph (c), for
that fiscal year exceeds the sum of the aggregate of the
fees payable by all State banks for that year under
paragraph (a) of subsection (3), plus all other amounts
collected by the Commissioner for that year under any
other provision of this Act, plus the aggregate of all
fees collected for that year by the Commissioner under
the Corporate Fiduciary Act, excluding the receivership
fees provided for in Section 5-10 of the Corporate
Fiduciary Act, and the Foreign Banking Office Act. The
aggregate amount of the contingent fee thus arrived at
for any fiscal year shall be apportioned amongst,
assessed upon, and paid by the State banks and foreign
banking corporations, respectively, in the same
proportion that the fee of each under paragraph (a) of
subsection (3), respectively, for that year bears to the
aggregate for that year of the fees collected under
paragraph (a) of subsection (3). The aggregate amount of
the contingent fee, and the portion thereof to be
assessed upon each State bank and foreign banking
corporation, respectively, shall be determined by the
Commissioner and shall be paid by each, respectively,
within 120 days of the close of the period for which the
contingent fee is computed and is payable, and the
Commissioner shall give 20 days advance notice of the
amount of the contingent fee payable by the State bank
and of the date fixed by the Commissioner for payment of
the fee.
(c) The "administration expenses" for any fiscal
year shall mean the ordinary and contingent expenses for
that year incident to making the examinations provided
for by, and for otherwise administering, this Act, the
Corporate Fiduciary Act, excluding the expenses paid from
the Corporate Fiduciary Receivership account in the Bank
and Trust Company Fund, the Foreign Banking Office Act,
the Electronic Fund Transfer Act, and the Illinois Bank
Examiners' Education Foundation Act, including all
salaries and other compensation paid for personal
services rendered for the State by officers or employees
of the State, including the Commissioner and the Deputy
Commissioners, all expenditures for telephone and
telegraph charges, postage and postal charges, office
stationery, supplies and services, and office furniture
and equipment, including typewriters and copying and
duplicating machines and filing equipment, surety bond
premiums, and travel expenses of those officers and
employees, employees, expenditures or charges for the
acquisition, enlargement or improvement of, or for the
use of, any office space, building, or structure, or
expenditures for the maintenance thereof or for
furnishing heat, light, or power with respect thereto,
all to the extent that those expenditures are directly
incidental to such examinations or administration. The
Commissioner shall not be required by paragraphs (c) or
(d-1) of this subsection (3) to maintain in any fiscal
year's budget appropriated reserves for accrued vacation
and accrued sick leave that is required to be paid to
employees of the Commissioner upon termination of their
service with the Commissioner in an amount that is more
than is reasonably anticipated to be necessary for any
anticipated turnover in employees, whether due to normal
attrition or due to layoffs, terminations, or
resignations.
(d) The aggregate of all fees collected by the
Commissioner under this Act, the Corporate Fiduciary Act,
or the Foreign Banking Office Act on and after July 1,
1979, shall be paid promptly after receipt of the same,
accompanied by a detailed statement thereof, into the
State treasury and shall be set apart in a special fund
to be known as the "Bank and Trust Company Fund", except
as provided in paragraph (c) of subsection (11) of this
Section. The amount from time to time deposited into the
Bank and Trust Company Fund shall be used to offset the
ordinary administrative expenses of the Commissioner of
Banks and Real Estate as defined in this Section. Nothing
in this amendatory Act of 1979 shall prevent continuing
the practice of paying expenses involving salaries,
retirement, social security, and State-paid insurance
premiums of State officers by appropriations from the
General Revenue Fund. However, the General Revenue Fund
shall be reimbursed for those payments made on and after
July 1, 1979, by an annual transfer of funds from the
Bank and Trust Company Fund.
(d-1) Adequate funds shall be available in the Bank
and Trust Company Fund to permit the timely payment of
administration expenses. In each fiscal year the total
administration expenses shall be deducted from the total
fees collected by the Commissioner and the remainder
transferred into the Cash Flow Reserve Account, unless
the balance of the Cash Flow Reserve Account prior to the
transfer equals or exceeds one-fourth of the total
initial appropriations from the Bank and Trust Company
Fund for the subsequent year, in which case the remainder
shall be credited to State banks and foreign banking
corporations and applied against their fees for the
subsequent year. The amount credited to each State bank
and foreign banking corporation shall be in the same
proportion as the Call Report Fees paid by each for the
year bear to the total Call Report Fees collected for the
year. If, after a transfer to the Cash Flow Reserve
Account is made or if no remainder is available for
transfer, the balance of the Cash Flow Reserve Account is
less than one-fourth of the total initial appropriations
for the subsequent year and the amount transferred is
less than 5% of the total Call Report Fees for the year,
additional amounts needed to make the transfer equal to
5% of the total Call Report Fees for the year shall be
apportioned amongst, assessed upon, and paid by the State
banks and foreign banking corporations in the same
proportion that the Call Report Fees of each,
respectively, for the year bear to the total Call Report
Fees collected for the year. The additional amounts
assessed shall be transferred into the Cash Flow Reserve
Account. For purposes of this paragraph (d-1), the
calculation of the fees collected by the Commissioner
shall exclude the receivership fees provided for in
Section 5-10 of the Corporate Fiduciary Act.
(e) The Commissioner may upon request certify to
any public record in his keeping and shall have authority
to levy a reasonable charge for issuing certifications of
any public record in his keeping.
(f) In addition to fees authorized elsewhere in
this Act, the Commissioner may, in connection with a
review, approval, or provision of a service, levy a
reasonable charge to recover the cost of the review,
approval, or service.
(4) Nothing contained in this Act shall be construed to
limit the obligation relative to examinations and reports of
any State bank, deposits in which are to any extent insured
by the United States or any agency thereof, nor to limit in
any way the powers of the Commissioner with reference to
examinations and reports of that bank.
(5) The nature and condition of the assets in or
investment of any bonus, pension, or profit sharing plan for
officers or employees of every State bank or, after May 31,
1997, branch of an out-of-state bank shall be deemed to be
included in the affairs of that State bank or branch of an
out-of-state bank subject to examination by the Commissioner
under the provisions of subsection (2) of this Section, and
if the Commissioner shall find from an examination that the
condition of or operation of the investments or assets of the
plan is unlawful, fraudulent, or unsafe, or that any trustee
has abused his trust, the Commissioner shall, if the
situation so found by the Commissioner shall not be corrected
to his satisfaction within 60 days after the Commissioner has
given notice to the board of directors of the State bank or
out-of-state bank of his findings, report the facts to the
Attorney General who shall thereupon institute proceedings
against the State bank or out-of-state bank, the board of
directors thereof, or the trustees under such plan as the
nature of the case may require.
(6) The Commissioner shall have the power:
(a) To promulgate reasonable rules for the purpose
of administering the provisions of this Act.
(b) To issue orders for the purpose of
administering the provisions of this Act and any rule
promulgated in accordance with this Act.
(c) To appoint hearing officers to execute any of
the powers granted to the Commissioner under this Section
for the purpose of administering this Act and any rule
promulgated in accordance with this Act.
(d) To subpoena witnesses, to compel their
attendance, to administer an oath, to examine any person
under oath, and to require the production of any relevant
books, papers, accounts, and documents in the course of
and pursuant to any investigation being conducted, or any
action being taken, by the Commissioner in respect of any
matter relating to the duties imposed upon, or the powers
vested in, the Commissioner under the provisions of this
Act or any rule promulgated in accordance with this Act.
(e) To conduct hearings.
(7) Whenever, in the opinion of the Commissioner, any
director, officer, employee, or agent of a State bank or,
after May 31, 1997, of any branch of an out-of-state bank
shall have violated any law, rule, or order relating to that
bank or shall have engaged in an unsafe or unsound practice
in conducting the business of that bank, the Commissioner may
issue an order of removal. If in the opinion of the
Commissioner any former director, officer, employee, or agent
of a State bank violated any law, rule, or order relating to
that State bank or engaged in an unsafe or unsound practice
in conducting the business of that bank prior to the
termination of his or her service with that bank, the
Commissioner may issue an order prohibiting that person from
further service with a bank as a director, officer, employee,
or agent. An The order issued pursuant to this subsection
shall be served upon the director, officer, employee, or
agent. A copy of the order shall be sent to each director of
the bank affected by registered mail. The person affected by
the action may request a hearing before the State Banking
Board within 10 days after receipt of the order of removal.
The hearing shall be held by the Board within 30 days after
the request has been received by the Board. The Board shall
make a determination approving, modifying, or disapproving
the order of the Commissioner as its final administrative
decision. If a hearing is held by the Board, the Board shall
make its determination within 60 days from the conclusion of
the hearing. Any person affected by a decision of the Board
under this subsection (7) of Section 48 of this Act may have
the decision reviewed only under and in accordance with the
Administrative Review Law and the rules adopted pursuant
thereto. A copy of the order shall also be served upon the
bank of which he is a director, officer, employee, or agent,
whereupon he shall cease to be a director, officer, employee,
or agent of that bank. The order and the findings of fact
upon which it is based shall not be made public or disclosed
to anyone except the director, officer, employee, or agent
involved and the directors of the bank involved, otherwise
than in connection with proceedings for a violation of or
failure to comply with this Section. The Commissioner may
institute a civil action against the director, officer, or
agent of the State bank or, after May 31, 1997, of the branch
of the out-of-state bank against whom any order provided for
by this subsection (7) of this Section 48 has been issued,
and against the State bank or, after May 31, 1997,
out-of-state bank, to enforce compliance with or to enjoin
any violation of the terms of the order. Any person who has
been the subject of removed by an order of removal or an
order of prohibition issued by the Commissioner under this
subsection or Section 5-6 of the Corporate Fiduciary Act may
not thereafter serve as director, officer, employee, or agent
of any State bank or of any branch of any out-of-state bank,
or of any corporate fiduciary, as defined in Section 1-5.05
of the Corporate Fiduciary Act, or of any other entity that
is subject to licensure or regulation by the Commissioner or
the Office of Banks and Real Estate unless the Commissioner
has granted prior approval in writing.
(8) The Commissioner may impose civil penalties of up to
$10,000 against any person for each violation of any
provision of this Act, any rule promulgated in accordance
with this Act, any order of the Commissioner, or any other
action which in the Commissioner's discretion is an unsafe or
unsound banking practice.
(9) The Commissioner may impose civil penalties of up to
$100 against any person for the first failure to comply with
reporting requirements set forth in the report of examination
of the bank and up to $200 for the second and subsequent
failures to comply with those reporting requirements.
(10) All final administrative decisions of the
Commissioner hereunder shall be subject to judicial review
pursuant to the provisions of the Administrative Review Law.
For matters involving administrative review, venue shall be
in either Sangamon County or Cook County.
(11) The endowment fund for the Illinois Bank Examiners'
Education Foundation shall be administered as follows:
(a) (Blank).
(b) The Foundation is empowered to receive
voluntary contributions, gifts, grants, bequests, and
donations on behalf of the Illinois Bank Examiners'
Education Foundation from national banks and other
persons for the purpose of funding the endowment of the
Illinois Bank Examiners' Education Foundation.
(c) The aggregate of all special educational fees
collected by the Commissioner and property received by
the Commissioner on behalf of the Illinois Bank
Examiners' Education Foundation under this subsection
(11) on or after June 30, 1986, shall be either (i)
promptly paid after receipt of the same, accompanied by a
detailed statement thereof, into the State Treasury and
shall be set apart in a special fund to be known as "The
Illinois Bank Examiners' Education Fund" to be invested
by either the Treasurer of the State of Illinois in the
Public Treasurers' Investment Pool or in any other
investment he is authorized to make or by the Illinois
State Board of Investment as the board of trustees of the
Illinois Bank Examiners' Education Foundation may direct
or (ii) deposited into an account maintained in a
commercial bank or corporate fiduciary in the name of the
Illinois Bank Examiners' Education Foundation pursuant to
the order and direction of the Board of Trustees of the
Illinois Bank Examiners' Education Foundation.
(12) (Blank).
(Source: P.A. 88-45; 88-289; 88-481; 88-546; 88-670, eff.
12-2-94; 89-208, eff. 9-29-95; 89-317, eff. 8-11-95; 89-508,
eff. 7-3-96; 89-567, eff. 7-26-96; 89-626, eff. 8-9-96;
revised 9-9-96.)
(205 ILCS 5/48.3) (from Ch. 17, par. 360.2)
Sec. 48.3. Disclosure of reports of examinations;
limitations.
(a) Any report of examination prepared by the
Commissioner under Section 48 of this Act, Section 25 of the
Electronic Fund Transfer Act, Section 5-2 of the Corporate
Fiduciary Act, Section 3.1 of the Illinois Bank Holding
Company Act of 1957, and Section 18 of the Foreign Banking
Office Act, and any examination prepared by the state
regulatory authority of another state that examines a branch
of an Illinois State bank in that state, or any document or
record obtained in connection with any examination shall be
the property of the Commissioner and shall only be disclosed
under the circumstances and for the purposes set forth in
this Section.
The Commissioner, his officers, agents, and employees
may disclose a report of examination, or any document or
record obtained in connection with any examination, only
under the following circumstances:
(1) The Commissioner may furnish to the Board of
Governors of the Federal Reserve System, the federal
reserve bank of the federal reserve district in which the
State bank is located or in which the parent or other
affiliate of the State bank is located, any official or
examiner thereof duly accredited for the purpose, or any
other state regulator, federal regulator, or in the case
of a foreign bank possessing a certificate of authority
pursuant to the Foreign Banking Office Act or a license
pursuant to the Foreign Bank Representative Office Act,
the bank regulator in the country where the foreign bank
is chartered, that the Commissioner determines to have an
appropriate regulatory interest, a copy or copies of any
or all examinations of the bank and of any or all reports
made by the bank. He may give access to and disclose to
the Board, federal reserve bank, or any official or
examiner thereof duly accredited for the purpose, any and
all information possessed by the Commissioner with
reference to the condition or affairs of the State bank.
Nothing contained in this Act shall be construed to limit
the obligation of any member State bank to comply with
the requirements relative to examinations and reports of
the Federal Reserve Act and of the Board of Governors of
the Federal Reserve System or the federal reserve bank of
the federal reserve district in which the bank is
located, nor to limit in any way the powers of the
Commissioner with reference to examinations and reports.
(2) The Commissioner may furnish to the United
States, any agency thereof that has insured a bank's
deposits in whole or in part, or any official or examiner
thereof duly accredited for the purpose a copy or copies
of any or all examinations of the bank and of any or all
reports made by the bank. He may also give access to and
disclose to the United States, such an agency thereof, or
any official or examiner thereof duly accredited for the
purpose any and all information possessed by the
Commissioner with reference to the condition or affairs
of any such insured bank. Nothing contained in this Act
shall be construed to limit the obligation relative to
examinations and reports of any State bank, deposits in
which are to any extent insured by the United States, any
agency thereof, nor to limit in any way the powers of the
Commissioner with reference to examination and reports of
such bank.
(3) The Commissioner may furnish information to the
appropriate law enforcement authorities when he
reasonably believes a bank, which he has caused to be
examined, has been a victim of a crime.
(4) The Commissioner may furnish information
relating to a bank or other financial institution, which
he has caused to be examined, to be sent to the
administrator of the Uniform Disposition of Unclaimed
Property Act.
(5) The Commissioner may furnish information
relating to a bank or other financial institution, which
he has caused to be examined, relating to its performance
of obligations under the Illinois Income Tax Act and the
Illinois Estate and Generation-Skipping Transfer Tax Act
to the Illinois Department of Revenue.
(6) The Commissioner may furnish information
relating to a bank or other financial institution, which
he has caused to be examined, under the federal Currency
and Foreign Transactions Reporting Act, Title 31, United
States Code, Section 1051 et seq.
(6.5) The Commissioner may furnish information,
including excerpts or summaries of information contained
in a report of examination prepared by the Commissioner,
to any other agency or entity that the Commissioner
determines to have a legitimate regulatory interest.
(7) The Commissioner may furnish information under
any other statute that by its terms or by regulations
promulgated thereunder requires the disclosure of
financial records other than by subpoena, summons,
warrant, or court order.
(8) At the request of the affected bank or other
financial institution, the Commissioner may furnish
information relating to a bank or other financial
institution, which he has caused to be examined, in
connection with the obtaining of insurance coverage or
the pursuit of an insurance claim for or on behalf of the
bank or other financial institution; provided that, when
possible, the Commissioner shall disclose only relevant
information while maintaining the confidentiality of
financial records not relevant to such insurance coverage
or claim and, when appropriate, may delete identifying
data relating to any person or individual.
(9) The Commissioner may furnish a copy of a report
of any examination performed by the Commissioner of the
condition and affairs of any electronic data processing
entity to the banks serviced by the electronic data
processing entity.
(10) In addition to the foregoing circumstances,
the Commissioner may, but is not required to, furnish a
copy of a report of any examination performed by the
Commissioner of the condition and affairs of any bank or
other financial institution under the same circumstances
under which the bank or financial institution may
disclose the report of examination pursuant to subsection
(b) of this Section, except that the Commissioner shall
provide a copy of a report of examination under
circumstances described in paragraph (3) of subsection
(b) of this Section only upon the request of the bank or
other financial institution.
(b) A bank or other financial institution or its
officers, agents, and employees may disclose a report of
examination of the bank or other financial institution
prepared by the Commissioner only under the following
circumstances:
(1) to the board of directors of the bank or other
financial institution, as well as the president,
vice-president, cashier, and other officers of the bank
or other financial institution to whom the board of
directors may delegate duties with respect to compliance
with recommendations for action within the report, and to
the board of directors of a bank holding company that
owns at least 80% of the outstanding stock of the bank or
other financial institution;
(2) to attorneys for the bank or other financial
institution and to a certified public accountant engaged
by the State bank or financial institution to perform an
independent audit provided that the attorney or certified
public accountant shall not permit the report of
examination or information therein to be further
disseminated;
(3) to any person who seeks to acquire a
controlling interest in the bank or financial
institution, provided that all attorneys, certified
public accountants, officers, agents, or employees of
that person shall agree to be bound to respect the
confidentiality of the information in the report of
examination and to not further disseminate the
information therein contained; or
(4) in response to a lawful subpoena, summons,
warrant, or court order that meets the requirements of
subsection (c) of this Section; or.
(5) to the bank's insurance company in relation to
an insurance claim or the effort by the bank to procure
insurance coverage, provided that, when possible, the
bank shall disclose only information that is relevant to
the insurance claim or that is necessary to procure the
insurance coverage, while maintaining the confidentiality
of financial information pertaining to customers. When
appropriate, the bank may delete identifying data
relating to any person.
(c) A bank or financial institution shall disclose a
report of examination under paragraph (4) of subsection (b)
of this Section pursuant to a lawful subpoena, summons,
warrant, or court order only after the bank or financial
institution mails a copy of the subpoena, summons, warrant,
or court order to the Commissioner by certified mail, postage
prepaid, at least 15 days prior to providing the report. The
Commissioner shall have the right to intervene in a court or
administrative proceeding at any time to obtain a protective
order in the proceeding to protect the confidentiality of the
report. If the date by which the bank or financial
institution is directed to provide the report is sooner than
15 days, then the bank or financial institution shall give
notice telephonically, which notice shall be confirmed in
writing in the manner provided in this subsection (c), and
the Commissioner shall have the right to intervene to obtain
a protective order.
(d) If any officer, agent, attorney, or employee of a
bank or financial institution knowingly and willfully
furnishes a report of examination in violation of this
Section, the Commissioner may impose a civil monetary penalty
up to $1,000 for the violation against the officer, agent,
attorney, or employee.
(Source: P.A. 89-208, eff. 9-29-95; 89-310, eff. 1-1-96;
89-567, eff. 7-26-96; 89-626, eff. 8-9-96.)
(205 ILCS 5/79) (from Ch. 17, par. 391)
Sec. 79. Board, terms of office. The terms of office of
the Class A and Class B members of the Board of Banks and
Trust Companies who are in office on the effective date of
this Amendatory Act of 1985 shall expire on December 31,
1985. The terms of office of Class A and Class B members of
the State Banking Board shall be as follows:
(a) The terms of office of all Class A and Class B
members of the State Banking Board shall begin on January 1,
1986.
(b) The persons first appointed as the Class A members
of the State Banking Board shall have the following terms as
designated by the Governor; one person for a term of one
year, one person for a term of 2 years, one person for a term
of 3 years and one person for a term of 4 years. Thereafter,
the term of office of each Class A member shall be 4 years,
except that an appointment to fill a vacancy shall be for the
unexpired term of the member whose term is being filled.
(c) The persons first appointed as Class B members of
the State Banking Board shall have the following terms as
designated by the Governor; one member for a term of one
year, 3 members for a term of 2 years, 3 members for a term
of 3 years, and 3 members for a term of 4 years. Thereafter,
the term of office of each Class B member shall be 4 years,
except that an appointment to fill a vacancy shall be for the
unexpired term of the member whose term is being filled.
(d) No Class A or Class B State Banking Board member
shall serve more than 2 full 4-year terms of office.
(e) The term of office of a State Banking Board member
shall terminate automatically when the member no longer meets
the qualifications for the member's appointment to the Board
provided that an increase or decrease in the asset size of
the member's bank during the member's term of office on the
State Banking Board shall not result in the termination of
the member's term of office.
(Source: P.A. 84-905.)
Section 15. The Illinois Bank Holding Company Act of
1957 is amended by changing Section 3.1 as follows:
(205 ILCS 10/3.1) (from Ch. 17, par. 2510.1)
Sec. 3.1. If the Commissioner finds with respect to any
state bank or with respect to any company which directly or
indirectly owns or controls 25 per centum or more of the
voting shares of a state bank, that the business of the bank
or the company is being conducted in an unsafe or unsound
manner, The Commissioner may appoint a suitable person or
persons to make an examination of the affairs of any such
company that directly or indirectly owns or controls 25% or
more of the voting shares of a State bank. A person so
appointed shall not be a stockholder or officer or employee
of any company which such person may be directed to examine,
and shall have the power to make a thorough examination into
all of the affairs of the company and in so doing to examine
any of the officers or agents or employees thereof on oath
and shall make a full and detailed report of the condition of
such company. Such person shall require a current list of
the stockholders of the company including the number of
shares of stock held by and the address of each stockholder,
t