Illinois General Assembly - Full Text of SB1753
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Full Text of SB1753  102nd General Assembly

SB1753sam002 102ND GENERAL ASSEMBLY

Sen. Michael E. Hastings

Filed: 4/19/2021

 

 


 

 


 
10200SB1753sam002LRB102 10455 BMS 25092 a

1
AMENDMENT TO SENATE BILL 1753

2    AMENDMENT NO. ______. Amend Senate Bill 1753 by replacing
3everything after the enacting clause with the following:
 
4    "Section 5. The Illinois Insurance Code is amended by
5changing Sections 445 and 445.1 as follows:
 
6    (215 ILCS 5/445)  (from Ch. 73, par. 1057)
7    Sec. 445. Surplus line.
8    (1) Definitions. For the purposes of this Section:
9    "Affiliate" means, with respect to an insured, any entity
10that controls, is controlled by, or is under common control
11with the insured. For the purpose of this definition, an
12entity has control over another entity if:
13        (A) the entity directly or indirectly or acting
14    through one or more other persons owns, controls, or has
15    the power to vote 25% or more of any class of voting
16    securities of the other entity; or

 

 

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1        (B) the entity controls in any manner the election of
2    a majority of the directors or trustees of the other
3    entity.
4    "Affiliated group" means any group of entities that are
5all affiliated.
6    "Authorized insurer" means an insurer that holds a
7certificate of authority issued by the Director but, for the
8purposes of this Section, does not include a domestic surplus
9line insurer as defined in Section 445a or any residual market
10mechanism.
11    "Exempt commercial purchaser" means any person purchasing
12commercial insurance that, at the time of placement, meets the
13following requirements:
14        (A) The person employs or retains a qualified risk
15    manager to negotiate insurance coverage.
16        (B) The person has paid aggregate nationwide
17    commercial property and casualty insurance premiums in
18    excess of $100,000 in the immediately preceding 12 months.
19        (C) The person meets at least one of the following
20    criteria:
21            (I) The person possesses a net worth in excess of
22        $20,000,000, as such amount is adjusted pursuant to
23        the provision in this definition concerning percentage
24        change.
25            (II) The person generates annual revenues in
26        excess of $50,000,000, as such amount is adjusted

 

 

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1        pursuant to the provision in this definition
2        concerning percentage change.
3            (III) The person employs more than 500 full-time
4        or full-time equivalent employees per individual
5        insured or is a member of an affiliated group
6        employing more than 1,000 employees in the aggregate.
7            (IV) The person is a not-for-profit organization
8        or public entity generating annual budgeted
9        expenditures of at least $30,000,000, as such amount
10        is adjusted pursuant to the provision in this
11        definition concerning percentage change.
12            (V) The person is a municipality with a population
13        in excess of 50,000 persons.
14    Effective on January 1, 2015 and each fifth January 1
15occurring thereafter, the amounts in subitems (I), (II), and
16(IV) of item (C) of this definition shall be adjusted to
17reflect the percentage change for such 5-year period in the
18Consumer Price Index for All Urban Consumers published by the
19Bureau of Labor Statistics of the Department of Labor.
20    "Home state" means the following:
21        (A) With respect to an insured, except as provided in
22    item (B) of this definition:
23            (I) the state in which an insured maintains its
24        principal place of business or, in the case of an
25        individual, the individual's principal residence; or
26            (II) if 100% of the insured risk is located out of

 

 

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1        the state referred to in subitem (I), the state to
2        which the greatest percentage of the insured's taxable
3        premium for that insurance contract is allocated.
4        (B) If more than one insured from an affiliated group
5    are named insureds on a single surplus line insurance
6    contract, then "home state" means the home state, as
7    determined pursuant to item (A) of this definition, of the
8    member of the affiliated group that has the largest
9    percentage of premium attributed to it under such
10    insurance contract.
11        If more than one insured from a group that is not
12    affiliated are named insureds on a single surplus line
13    insurance contract, then:
14            (I) if individual group members pay 100% of the
15        premium for the insurance from their own funds, "home
16        state" means the home state, as determined pursuant to
17        item (A) of this definition, of each individual group
18        member; each individual group member's coverage under
19        the surplus line insurance contract shall be treated
20        as a separate surplus line contract for the purposes
21        of this Section;
22            (II) otherwise, "home state" means the home state,
23        as determined pursuant to item (A) of this definition,
24        of the group.
25    Nothing in this definition shall be construed to alter the
26terms of the surplus line insurance contract.

 

 

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1    "Master policy" means a surplus line insurance contract
2with a single set of general contractual terms that are
3designed to apply on a group basis to multiple insureds who may
4or may not be affiliated and who may be added to or removed
5from the contract throughout the course of the contract
6period. A master policy may include certain provisions that
7vary for each insured depending on the insured's
8characteristics and the coverage sought.
9    "Multi-State risk" means a risk with insured exposures in
10more than one State.
11    "NAIC" means the National Association of Insurance
12Commissioners or any successor entity.
13    "Personal lines insurance" means insurance as defined in
14subsection (a), (b), or (c) of Section 143.13 of this Code.
15    "Premium" means any amount designated as premium on the
16declarations page or elsewhere in a policy and on any
17endorsement, but does not include taxes, the Surplus Line
18Association of Illinois recording fee, or any other fee.
19    "Program business" means a clearly defined group of
20insurance contracts procured by a licensed surplus line
21producer from an unauthorized insurer, under a single
22agreement between the producer and insurer, for insureds with
23the same or similar characteristics and containing the same or
24similar contract terms.
25    "Qualified risk manager" means, with respect to a
26policyholder of commercial insurance, a person who meets all

 

 

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1of the following requirements:
2        (A) The person is an employee of, or third-party
3    consultant retained by, the commercial policyholder.
4        (B) The person provides skilled services in loss
5    prevention, loss reduction, or risk and insurance coverage
6    analysis, and purchase of insurance.
7        (C) With regard to the person:
8            (I) the person has:
9                (a) a bachelor's degree or higher from an
10            accredited college or university in risk
11            management, business administration, finance,
12            economics, or any other field determined by the
13            Director or his designee to demonstrate minimum
14            competence in risk management; and
15                (b) the following:
16                    (i) three years of experience in risk
17                financing, claims administration, loss
18                prevention, risk and insurance analysis, or
19                purchasing commercial lines of insurance; or
20                    (ii) alternatively has:
21                        (AA) a designation as a Chartered
22                    Property and Casualty Underwriter (in this
23                    subparagraph (ii) referred to as "CPCU")
24                    issued by the American Institute for
25                    CPCU/Insurance Institute of America;
26                        (BB) a designation as an Associate in

 

 

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1                    Risk Management (ARM) issued by the
2                    American Institute for CPCU/Insurance
3                    Institute of America;
4                        (CC) a designation as Certified Risk
5                    Manager (CRM) issued by the National
6                    Alliance for Insurance Education &
7                    Research;
8                        (DD) a designation as a RIMS Fellow
9                    (RF) issued by the Global Risk Management
10                    Institute; or
11                        (EE) any other designation,
12                    certification, or license determined by
13                    the Director or his designee to
14                    demonstrate minimum competency in risk
15                    management;
16            (II) the person has:
17                (a) at least 7 years of experience in risk
18            financing, claims administration, loss prevention,
19            risk and insurance coverage analysis, or
20            purchasing commercial lines of insurance; and
21                (b) has any one of the designations specified
22            in subparagraph (ii) of paragraph (b);
23            (III) the person has at least 10 years of
24        experience in risk financing, claims administration,
25        loss prevention, risk and insurance coverage analysis,
26        or purchasing commercial lines of insurance; or

 

 

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1            (IV) the person has a graduate degree from an
2        accredited college or university in risk management,
3        business administration, finance, economics, or any
4        other field determined by the Director or his or her
5        designee to demonstrate minimum competence in risk
6        management.
7    "Residual market mechanism" means an association,
8organization, or other entity described in Article XXXIII of
9this Code or Section 7-501 of the Illinois Vehicle Code or any
10similar association, organization, or other entity.
11    "State" means any state of the United States, the District
12of Columbia, the Commonwealth of Puerto Rico, Guam, the
13Northern Mariana Islands, the Virgin Islands, and American
14Samoa.
15    "Surplus line insurance" means insurance on a risk:
16        (A) of the kinds specified in Classes 2 and 3 of
17    Section 4 of this Code; and
18        (B) that is procured from an unauthorized insurer
19    after the insurance producer representing the insured or
20    the surplus line producer is unable, after diligent
21    effort, to procure the insurance from authorized insurers;
22    and
23        (C) where Illinois is the home state of the insured,
24    for policies effective, renewed or extended on July 21,
25    2011 or later and for multiyear policies upon the policy
26    anniversary that falls on or after July 21, 2011; and

 

 

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1        (D) that is located in Illinois, for policies
2    effective prior to July 21, 2011.
3    "Taxable premium" means a premium for any risk that is
4located in or attributed to any state.
5    "Unauthorized insurer" means an insurer that does not hold
6a valid certificate of authority issued by the Director but,
7for the purposes of this Section, shall also include a
8domestic surplus line insurer as defined in Section 445a.
9    (1.5) Procuring surplus line insurance; surplus line
10insurer requirements.
11        (a) License required. Insurance producers may procure
12    surplus line insurance only if licensed as a surplus line
13    producer under this Section.
14        (b) Domestic and foreign insurer eligibility. Licensed
15    surplus line producers may procure surplus line insurance
16    from an unauthorized insurer domiciled in any state the
17    United States only if the insurer:
18            (i) is permitted in its domiciliary jurisdiction
19        to write the type of insurance involved; and
20             (ii) has, based upon information available to the
21        surplus line producer, a policyholders surplus of not
22        less than $15,000,000 determined in accordance with
23        the laws of its domiciliary jurisdiction; and
24             (iii) has standards of solvency and management
25        that are adequate for the protection of policyholders.
26         Where an unauthorized insurer does not meet the

 

 

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1    standards set forth in (ii) and (iii) above, a surplus
2    line producer may, if necessary, procure insurance from
3    that insurer only if prior written warning of such fact or
4    condition is given to the insured by the insurance
5    producer or surplus line producer.
6        (c) Alien insurer eligibility. Licensed surplus line
7    producers may procure surplus line insurance from an
8    unauthorized insurer not domiciled in any state outside of
9    the United States only if the insurer meets the standards
10    for unauthorized insurers domiciled in any state the
11    United States in paragraph (b) of this subsection (1.5) or
12    is listed on the Quarterly Listing of Alien Insurers
13    maintained by the International Insurers Department of the
14    NAIC at the time of procurement. The Director shall make
15    the Quarterly Listing of Alien Insurers available to
16    surplus line producers without charge.
17        (d) Prohibited transactions. Insurance producers shall
18    not procure from an unauthorized insurer an insurance
19    policy:
20            (i) that is designed to satisfy the proof of
21        financial responsibility and insurance requirements in
22        any Illinois law where the law requires that the proof
23        of insurance is issued by an authorized insurer or
24        residual market mechanism;
25            (ii) that covers the risk of accidental injury to
26        employees arising out of and in the course of

 

 

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1        employment according to the provisions of the Workers'
2        Compensation Act; or
3            (iii) that insures any Illinois personal lines
4        risk, as defined in subsection (a), (b), or (c) of
5        Section 143.13 of this Code, that is eligible for
6        residual market mechanism coverage, unless the insured
7        or prospective insured requests limits of liability
8        greater than the limits provided by the residual
9        market mechanism. In the course of making a diligent
10        effort to procure insurance from authorized insurers,
11        an insurance producer shall not be required to submit
12        a risk to a residual market mechanism when the risk is
13        not eligible for coverage or exceeds the limits
14        available in the residual market mechanism.
15        Where there is an insurance policy issued by an
16    authorized insurer or residual market mechanism insuring a
17    risk described in item (i), (ii), or (iii) above, nothing
18    in this paragraph shall be construed to prohibit a surplus
19    line producer from procuring from an unauthorized insurer
20    a policy insuring the risk on an excess or umbrella basis
21    where the excess or umbrella policy is written over one or
22    more underlying policies.
23        (e) Exempt commercial purchaser diligent effort.
24    Licensed surplus line producers may procure surplus line
25    insurance from an unauthorized insurer for an exempt
26    commercial purchaser without making the required diligent

 

 

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1    effort to procure the insurance from authorized insurers
2    if:
3            (i) the producer has disclosed to the exempt
4        commercial purchaser that such insurance may or may
5        not be available from authorized insurers that may
6        provide greater protection with more regulatory
7        oversight; and
8            (ii) the exempt commercial purchaser has
9        subsequently in writing requested the producer to
10        procure such insurance from an unauthorized insurer.
11        (f) Commercial wholesale transaction diligent effort.
12    A licensed surplus line producer may procure a surplus
13    line insurance contract, other than a personal lines
14    insurance contract, from an unauthorized insurer without
15    making the required diligent effort to procure the
16    insurance from authorized insurers if the risk was
17    referred to the surplus line producer by an
18    Illinois-licensed insurance producer who is not affiliated
19    with the surplus line producer.
20        (g) Master policy diligent effort. For a master policy
21    insurance contract, a licensed surplus line producer may
22    make the required diligent effort to procure the insurance
23    from authorized insurers annually for the master policy
24    rather than individually for each insured that is added
25    during the policy period. The diligent effort shall
26    include all variable provisions of the master policy.

 

 

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1        (h) Program business diligent effort. For program
2    business, a licensed surplus line producer may make the
3    required diligent effort to procure the insurance from
4    authorized insurers annually for the program rather than
5    individually for each contract. The diligent effort shall
6    include all variable provisions of the master policy.
7    (2) Surplus line producer; license. Any licensed producer
8who is a resident of this State, or any nonresident who
9qualifies under Section 500-40, may be licensed as a surplus
10line producer upon payment of an annual license fee of $400.
11    A surplus line producer so licensed shall keep a separate
12account of the business transacted thereunder for 7 years from
13the policy effective date which shall be open at all times to
14the inspection of the Director or his representative.
15    No later than July 21, 2012, the State of Illinois shall
16participate in the national insurance producer database of the
17NAIC, or any other equivalent uniform national database, for
18the licensure of surplus line producers and the renewal of
19such licenses.
20    (3) Taxes and reports.
21        (a) Surplus line tax and penalty for late payment. The
22    surplus line tax rate for a surplus line insurance policy
23    or contract is determined as follows:
24            (i) 3% for policies or contracts with an effective
25        date prior to July 1, 2003;
26            (ii) 3.5% for policies or contracts with an

 

 

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1        effective date of July 1, 2003 or later.
2        A surplus line producer shall file with the Director
3    on or before February 1 and August 1 of each year a report
4    in the form prescribed by the Director on all surplus line
5    insurance procured from unauthorized insurers and
6    submitted to the Surplus Line Association of Illinois
7    during the preceding 6 month period ending December 31 or
8    June 30 respectively, and on the filing of such report
9    shall pay to the Director for the use and benefit of the
10    State a sum equal to the surplus line tax rate multiplied
11    by the gross taxable premiums less returned taxable
12    premiums upon all surplus line insurance submitted to the
13    Surplus Line Association of Illinois during the preceding
14    6 months.
15        Any surplus line producer who fails to pay the full
16    amount due under this subsection is liable, in addition to
17    the amount due, for such late fee, penalty, and interest
18    charges as are provided for under Section 412 of this
19    Code. The Director, through the Attorney General, may
20    institute an action in the name of the People of the State
21    of Illinois, in any court of competent jurisdiction, for
22    the recovery of the amount of such taxes, late fees,
23    interest, and penalties due, and prosecute the same to
24    final judgment, and take such steps as are necessary to
25    collect the same.
26        (b) Fire Marshal Tax. Each surplus line producer shall

 

 

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1    file with the Director on or before February 1 March 31 of
2    each year a report in the form prescribed by the Director
3    on all fire insurance procured from unauthorized insurers
4    and submitted to the Surplus Line Association of Illinois
5    during the previous year that is subject to tax under
6    Section 12 of the Fire Investigation Act and shall pay to
7    the Director the fire marshal tax required thereunder.
8        (c) Taxes and fees charged to insured. The taxes
9    imposed under this subsection and the recording
10    countersigning fees charged by the Surplus Line
11    Association of Illinois may be charged to and collected
12    from surplus line insureds.
13    (4) (Blank).
14    (5) Submission of documents to Surplus Line Association of
15Illinois. A surplus line producer shall submit every insurance
16contract and premium-bearing endorsement issued under his or
17her license to the Surplus Line Association of Illinois for
18recording and countersignature. The submission and recording
19countersignature may be effected through electronic means. The
20submission shall set forth:
21        (a) the name of the insured;
22        (b) the description and location of the insured
23    property or risk;
24        (c) (blank); the amount insured;
25        (d) the gross premiums charged or returned;
26        (e) the name of the unauthorized insurer from whom

 

 

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1    coverage has been procured;
2        (f) the kind or kinds of insurance procured; and
3        (g) amount of premium subject to tax required by
4    Section 12 of the Fire Investigation Act.
5    Proposals, endorsements, and other documents which are
6incidental to the insurance but which do not affect the
7premium charged are exempted from the submission and recording
8requirements filing and countersignature.
9    The submission of insuring contracts to the Surplus Line
10Association of Illinois constitutes a certification by the
11surplus line producer or by the insurance producer who
12presented the risk to the surplus line producer for placement
13as a surplus line risk that after diligent effort, where
14required, the required insurance could not be procured from
15authorized insurers and that such procurement was otherwise in
16accordance with the surplus line law.
17    (6) Evidence of recording Countersignature required. It
18shall be unlawful for an insurance producer to deliver any
19unauthorized insurer contract or premium-bearing endorsement
20unless it contains evidence of recording such insurance
21contract is countersigned by the Surplus Line Association of
22Illinois.
23    (7) Inspection of records. A surplus line producer shall
24maintain separate records of the business transacted under his
25or her license for 7 years from the policy effective date,
26including complete copies of surplus line insurance contracts

 

 

10200SB1753sam002- 17 -LRB102 10455 BMS 25092 a

1maintained on paper or by electronic means, which records
2shall be open at all times for inspection by the Director and
3by the Surplus Line Association of Illinois.
4    (8) Violations and penalties. The Director may suspend or
5revoke or refuse to renew a surplus line producer license for
6any violation of this Code. In addition to or in lieu of
7suspension or revocation, the Director may subject a surplus
8line producer to a civil penalty of up to $2,000 for each cause
9for suspension or revocation. Such penalty is enforceable
10under subsection (5) of Section 403A of this Code.
11    Whenever it appears to the satisfaction of the Director
12that a surplus line producer has made a documented good faith
13determination of the home state for a surplus line insurance
14contract and has paid the surplus line taxes to a state other
15than Illinois, and the Director determines that the producer's
16good faith determination was incorrect and the home state is
17Illinois, the surplus line producer may, at the discretion of
18the Director, be required to submit the contract to the
19Surplus Line Association of Illinois and pay applicable taxes
20and recording fees, but there shall be no penalty, interest,
21or late fee assessed.
22    (9) Director may declare insurer ineligible. If the
23Director determines that the further assumption of risks might
24be hazardous to the policyholders of an unauthorized insurer,
25the Director may order the Surplus Line Association of
26Illinois not to accept and record countersign insurance

 

 

10200SB1753sam002- 18 -LRB102 10455 BMS 25092 a

1contracts evidencing insurance in such insurer and order
2surplus line producers to cease procuring insurance from such
3insurer.
4    (10) Service of process upon Director. Insurance contracts
5delivered under this Section from unauthorized insurers, other
6than domestic surplus line insurers as defined in Section
7445a, shall contain a provision designating the Director and
8his successors in office the true and lawful attorney of the
9insurer upon whom may be served all lawful process in any
10action, suit or proceeding arising out of such insurance.
11Service of process made upon the Director to be valid
12hereunder must state the name of the insured, the name of the
13unauthorized insurer and identify the contract of insurance.
14The Director at his option is authorized to forward a copy of
15the process to the Surplus Line Association of Illinois for
16delivery to the unauthorized insurer or the Director may
17deliver the process to the unauthorized insurer by other means
18which he considers to be reasonably prompt and certain.
19    (10.5) Required notice to policyholder. Insurance
20contracts delivered under this Section from unauthorized
21insurers, other than domestic surplus line insurers as defined
22in Section 445a, shall have stamped or imprinted on the first
23page thereof in not less than 12-pt. bold face type the
24following legend: "Notice to Policyholder: This contract is
25issued, pursuant to Section 445 of the Illinois Insurance
26Code, by a company not authorized and licensed to transact

 

 

10200SB1753sam002- 19 -LRB102 10455 BMS 25092 a

1business in Illinois and as such is not covered by the Illinois
2Insurance Guaranty Fund." Insurance contracts delivered under
3this Section from domestic surplus line insurers as defined in
4Section 445a shall have stamped or imprinted on the first page
5thereof in not less than 12-pt. bold face type the following
6legend: "Notice to Policyholder: This contract is issued by a
7domestic surplus line insurer, as defined in Section 445a of
8the Illinois Insurance Code, pursuant to Section 445, and as
9such is not covered by the Illinois Insurance Guaranty Fund."
10    (11) Marine, aviation, and transportation. The Illinois
11Surplus Line law does not apply to insurance of property and
12operations of railroads or aircraft engaged in interstate or
13foreign commerce, insurance of vessels, crafts or hulls,
14cargoes, marine builder's risks, marine protection and
15indemnity, or other risks including strikes and war risks
16insured under ocean or wet marine forms of policies.
17    (12) Applicability of Illinois Insurance Code. Surplus
18line insurance procured under this Section, including
19insurance procured from a domestic surplus line insurer, is
20not subject to the provisions of the Illinois Insurance Code
21other than Sections 123, 123.1, 401, 401.1, 402, 403, 403A,
22408, 412, 445, 445a, 445.1, 445.2, 445.3, 445.4, and all of the
23provisions of Article XXXI to the extent that the provisions
24of Article XXXI are not inconsistent with the terms of this
25Act.
26(Source: P.A. 97-955, eff. 8-14-12; 98-978, eff. 1-1-15.)
 

 

 

10200SB1753sam002- 20 -LRB102 10455 BMS 25092 a

1    (215 ILCS 5/445.1)  (from Ch. 73, par. 1057.1)
2    Sec. 445.1. Surplus Line Association of Illinois. There is
3hereby created a non-profit association to be known as the
4Surplus Line Association of Illinois. All surplus line
5producers shall be and must remain individual members of the
6Association as a condition of their holding a license as a
7surplus line producer in this State. The Association must
8perform its functions under the plan of operation established
9and approved under Section 445.3 and must exercise its powers
10through a board of directors established under Section 445.2
11of this Code. The Association shall be supervised by the
12Director and is subject to the applicable provisions of the
13Illinois Insurance Code. The Association shall be authorized
14and have the duty to:
15        (1) receive and , record and countersign all surplus
16    line insurance contracts that which surplus line producers
17    are required to file with the Association under subsection
18    (5) of Section 445;
19        (2) prepare monthly reports for the Director on
20    surplus line insurance procured by its members during the
21    preceding month in such form and providing such
22    information as the Director may prescribe;
23        (3) prepare and deliver to the Director and, at the
24    discretion of the Director, to each licensee the reports
25    of surplus line business prescribed in subsection (3) of

 

 

10200SB1753sam002- 21 -LRB102 10455 BMS 25092 a

1    Section 445;
2        (4) assess its members for costs of operations in
3    accordance with a schedule adopted by the Board of
4    Directors of the Association and approved by the Director;
5        (5) employ and retain such persons as are necessary to
6    carry out the duties of the Association;
7        (6) borrow money as necessary to effect the purposes
8    of the Association;
9        (7) enter contracts as necessary to effect the
10    purposes of the Association;
11        (8) perform such other acts as will facilitate and
12    encourage compliance by its members with the surplus line
13    law of this State and rules promulgated thereunder; and
14        (9) provide such other services to its members as are
15    incidental or related to the purposes of the Association.
16    Nothing in this Act shall be construed as giving the
17Association any discretionary authority to enforce this Act or
18to withhold or decline acceptance and recording
19countersignature of insurance contracts that which meet the
20requirements of subsection (5) of Section 445.
21(Source: P.A. 98-978, eff. 1-1-15.)
 
22    Section 99. Effective date. This Act takes effect January
231, 2022.".