Full Text of SB1693 96th General Assembly
SB1693 96TH GENERAL ASSEMBLY
|
|
|
96TH GENERAL ASSEMBLY
State of Illinois
2009 and 2010 SB1693
Introduced 2/19/2009, by Sen. Michael W. Frerichs SYNOPSIS AS INTRODUCED: |
|
240 ILCS 40/1-10 |
|
240 ILCS 40/25-10 |
|
|
Amends the Grain Code. Authorizes a claimant that is a lender to receive more than $1 million out of the Illinois Grain Insurance Fund if it meets certain requirements. Defines "lender". Effective immediately.
|
| |
|
|
| FISCAL NOTE ACT MAY APPLY | |
|
|
A BILL FOR
|
|
|
|
|
SB1693 |
|
LRB096 08487 JDS 18607 b |
|
| 1 |
| AN ACT concerning warehouses.
| 2 |
| Be it enacted by the People of the State of Illinois,
| 3 |
| represented in the General Assembly:
| 4 |
| Section 5. The Grain Code is amended by changing Sections | 5 |
| 1-10 and 25-10 as follows:
| 6 |
| (240 ILCS 40/1-10)
| 7 |
| Sec. 1-10. Definitions. As used in this Act:
| 8 |
| "Board" means the governing body of the Illinois Grain | 9 |
| Insurance
Corporation.
| 10 |
| "Certificate" means a document, other than the license, | 11 |
| issued by
the Department that certifies that a grain dealer's | 12 |
| license has
been issued and is in effect.
| 13 |
| "Claimant" means:
| 14 |
| (a) a person, including, without limitation, a lender:
| 15 |
| (1) who possesses warehouse receipts issued from an | 16 |
| Illinois location
covering grain
owned or stored by a | 17 |
| failed warehouseman; or
| 18 |
| (2) who has other written evidence of a storage
| 19 |
| obligation of a failed warehouseman issued from an Illinois | 20 |
| location in favor
of the holder,
including, but not limited | 21 |
| to, scale tickets,
settlement sheets, and ledger cards; or
| 22 |
| (3) who has loaned
money to a warehouseman and was to | 23 |
| receive a warehouse receipt
issued from an Illinois |
|
|
|
SB1693 |
- 2 - |
LRB096 08487 JDS 18607 b |
|
| 1 |
| location as security for that loan, who
surrendered | 2 |
| warehouse receipts as part of a grain sale at an Illinois | 3 |
| location,
or who
delivered grain out of storage with the | 4 |
| warehouseman as part of a grain sale at
an Illinois | 5 |
| location;
and
| 6 |
| (i) the grain dealer or warehouseman failed within | 7 |
| 21 days after the
loan
of money, the surrender of | 8 |
| warehouse receipts, or the delivery of grain, as the
| 9 |
| case may be, and no
warehouse receipt was issued or | 10 |
| payment in full was not made on the grain sale,
as the | 11 |
| case may be; or
| 12 |
| (ii) written notice was given by the person to the | 13 |
| Department within 21
days after the loan of money, the | 14 |
| surrender of warehouse receipts, or the
delivery of | 15 |
| grain, as the case may be, stating that no warehouse | 16 |
| receipt was
issued or payment in full made on the grain | 17 |
| sale, as the case may be; or
| 18 |
| (b) a producer not included in item (a)(3) in the | 19 |
| definition of "Claimant"
who possesses evidence of the sale at | 20 |
| an Illinois location of grain delivered
to a failed grain | 21 |
| dealer, or its designee in Illinois and who was not paid
in | 22 |
| full.
| 23 |
| "Class I warehouseman" means a warehouseman who is | 24 |
| authorized to
issue negotiable and non-negotiable warehouse | 25 |
| receipts.
| 26 |
| "Class II warehouseman" means a warehouseman who is |
|
|
|
SB1693 |
- 3 - |
LRB096 08487 JDS 18607 b |
|
| 1 |
| authorized to
issue only non-negotiable warehouse receipts.
| 2 |
| "Code" means this Grain Code.
| 3 |
| "Collateral" means:
| 4 |
| (a) irrevocable letters of credit;
| 5 |
| (b) certificates of deposit;
| 6 |
| (c) cash or a cash equivalent; or
| 7 |
| (d) any other property acceptable to the Department to the
| 8 |
| extent there exists equity in that property. For the purposes | 9 |
| of
this item (d), "equity" is the amount by which the fair
| 10 |
| market value of the property exceeds the amount owed to a | 11 |
| creditor who
has a valid, prior, perfected security interest in | 12 |
| or other valid, prior,
perfected lien on
the property.
| 13 |
| "Corporation" means the Illinois Grain Insurance | 14 |
| Corporation.
| 15 |
| "Daily position record" means a grain inventory | 16 |
| accountability
record maintained on a daily basis that includes | 17 |
| an accurate
reflection of changes in grain inventory, storage | 18 |
| obligations,
company-owned inventory by commodity, and other | 19 |
| information
that is required by the Department.
| 20 |
| "Daily grain transaction report" means a record of the | 21 |
| daily
transactions of a grain dealer showing the amount of all | 22 |
| grain
received and shipped during each day and the amount on | 23 |
| hand at the
end of each day.
| 24 |
| "Date of delivery of grain" means:
| 25 |
| (a) the date grain is delivered to a grain dealer, or its | 26 |
| designee in
Illinois, for
the
purpose of sale;
|
|
|
|
SB1693 |
- 4 - |
LRB096 08487 JDS 18607 b |
|
| 1 |
| (b) the date grain is delivered to a warehouseman, or its | 2 |
| designee in
Illinois, for
the
purpose of storage; or
| 3 |
| (c) in reference to grain in storage with a warehouseman,
| 4 |
| the date a warehouse receipt representing stored grain is | 5 |
| delivered
to the issuer of the warehouse receipt for the | 6 |
| purpose of selling the stored
grain
or, if no warehouse receipt | 7 |
| was issued:
| 8 |
| (1) the date the purchase price for stored grain is
| 9 |
| established; or
| 10 |
| (2) if sold by price later contract, the date of the
| 11 |
| price later contract.
| 12 |
| "Department" means the Illinois Department of Agriculture.
| 13 |
| "Depositor" means a person who has evidence of a storage
| 14 |
| obligation from a warehouseman.
| 15 |
| "Director", unless otherwise provided, means the Illinois | 16 |
| Director of
Agriculture, or the Director's designee.
| 17 |
| "Electronic document" means a document that is generated, | 18 |
| sent, received,
or stored by electrical, digital, magnetic, | 19 |
| optical electromagnetic, or any
other similar means, | 20 |
| including, but not limited to, electronic data
interchange, | 21 |
| electronic mail,
telegram, telex, or telecopy.
| 22 |
| "Electronic warehouse receipt" means a warehouse receipt | 23 |
| that is issued or
transmitted in the form of an electronic | 24 |
| document.
| 25 |
| "Emergency storage" means space measured in bushels and | 26 |
| used for a
period of time not to exceed 3 months for storage of |
|
|
|
SB1693 |
- 5 - |
LRB096 08487 JDS 18607 b |
|
| 1 |
| grain
as a consequence of an emergency situation.
| 2 |
| "Equity assets" means:
| 3 |
| (a) The equity in any property of the
licensee or failed
| 4 |
| licensee, other than grain assets. For purposes of this item | 5 |
| (a):
| 6 |
| (1) "equity" is the amount by which the fair market
| 7 |
| value of the property exceeds the amount owed to a creditor | 8 |
| who
has a valid security interest in or other valid lien on | 9 |
| the property
that was perfected before the date of failure | 10 |
| of the
licensee;
| 11 |
| (2) a creditor is not deemed to have a valid
security | 12 |
| interest or other valid lien
on property if (i) the | 13 |
| property can be directly traced as being from the sale
of | 14 |
| grain by the licensee or failed licensee; (ii) the security | 15 |
| interest was
taken as additional collateral on account of | 16 |
| an antecedent debt owed to the
creditor; and (iii) the | 17 |
| security interest or other lien was perfected (A) on or
| 18 |
| within 90 days before the date of failure of the licensee | 19 |
| or (B) when the
creditor is a related person, within one | 20 |
| year of the date of failure of the
licensee.
| 21 |
| "Failure" means, in reference to a licensee:
| 22 |
| (a) a formal declaration of insolvency;
| 23 |
| (b) a revocation of a license;
| 24 |
| (c) a failure to apply for license renewal, leaving
| 25 |
| indebtedness to claimants;
| 26 |
| (d) a denial of license renewal, leaving indebtedness to
|
|
|
|
SB1693 |
- 6 - |
LRB096 08487 JDS 18607 b |
|
| 1 |
| claimants; or
| 2 |
| (e) a voluntary surrender of a license, leaving
| 3 |
| indebtedness to claimants.
| 4 |
| "Federal warehouseman" means a warehouseman licensed
by | 5 |
| the United States government under the United
States Warehouse | 6 |
| Act (7 U.S.C. 241 et seq.).
| 7 |
| "Fund" means the Illinois Grain Insurance Fund.
| 8 |
| "Grain" means corn, soybeans, wheat, oats, rye, barley, | 9 |
| grain
sorghum, canola, buckwheat, flaxseed, edible soybeans, | 10 |
| and
other like agricultural commodities that may be
designated | 11 |
| by rule.
| 12 |
| "Grain assets" means:
| 13 |
| (a) all grain owned and all grain stored by a licensee or
| 14 |
| failed licensee, wherever located, including redeposited grain | 15 |
| of a licensee
or failed licensee;
| 16 |
| (b) (blank);
| 17 |
| (c) identifiable proceeds, including, but not limited to, | 18 |
| insurance
proceeds,
received by or due to a licensee or failed | 19 |
| licensee resulting
from the sale, exchange,
destruction, loss, | 20 |
| or theft of grain, or other disposition of grain by the
| 21 |
| licensee or failed licensee; or
| 22 |
| (d) assets in hedging or speculative margin accounts held | 23 |
| by
commodity or security exchanges on behalf of a licensee or | 24 |
| failed
licensee and any moneys due or to become due to a | 25 |
| licensee or
failed licensee, less any secured financing | 26 |
| directly associated with those
assets or moneys, from any |
|
|
|
SB1693 |
- 7 - |
LRB096 08487 JDS 18607 b |
|
| 1 |
| transactions on those exchanges.
| 2 |
| For purposes of this Act, storage charges, drying charges, | 3 |
| price later
contract service charges, and other grain service | 4 |
| charges received by or due to
a licensee or failed licensee | 5 |
| shall not be deemed to be grain assets, nor shall
such charges | 6 |
| be deemed to be proceeds from the sale or other disposition of
| 7 |
| grain by a licensee or a failed licensee, or to have been | 8 |
| directly or
indirectly traceable from, to have resulted from, | 9 |
| or to have been derived in
whole
or in part from, or otherwise | 10 |
| related to, the sale or other disposition of
grain by the | 11 |
| licensee or failed licensee.
| 12 |
| "Grain dealer" means a person who is licensed by the | 13 |
| Department to
engage in the business of buying grain from | 14 |
| producers.
| 15 |
| "Grain Indemnity Trust Account" means a trust account | 16 |
| established by
the Director under Section 205-410 of the | 17 |
| Department of
Agriculture Law (20 ILCS 205/205-410) that is | 18 |
| used for the receipt and
disbursement of
moneys paid from the | 19 |
| Fund and proceeds from the liquidation of and
collection upon | 20 |
| grain assets, equity assets, collateral, and
guarantees of or | 21 |
| relating to failed licensees. The Grain Indemnity
Trust Account | 22 |
| shall be used to pay valid claims, authorized refunds
from the | 23 |
| Fund, and expenses incurred in preserving, liquidating, and
| 24 |
| collecting upon grain assets, equity assets, collateral, and
| 25 |
| guarantees relating to failed licensees.
| 26 |
| "Guarantor" means a person who assumes all or part of the
|
|
|
|
SB1693 |
- 8 - |
LRB096 08487 JDS 18607 b |
|
| 1 |
| obligations of a licensee to claimants.
| 2 |
| "Guarantee" means a document executed by a guarantor by | 3 |
| which the
guarantor assumes all or part of the obligations of a | 4 |
| licensee
to claimants.
| 5 |
| "Incidental grain dealer" means a grain dealer who | 6 |
| purchases
grain
only in connection with a feed milling | 7 |
| operation and whose total
purchases of grain from producers | 8 |
| during the grain dealer's fiscal
year do not exceed $100,000.
| 9 |
| "Lender" includes the person that extended credit to a | 10 |
| licensee and also includes any person to which the original | 11 |
| lender sold all or a portion of the original lender's interest | 12 |
| in such extension of credit. | 13 |
| "Licensed storage capacity" means the maximum grain | 14 |
| storage capacity
measured in bushels approved by the applicable | 15 |
| licensing agency for
use by a warehouseman.
| 16 |
| "Licensee" means a grain dealer or warehouseman who is | 17 |
| licensed by
the Department and a federal warehouseman that is a | 18 |
| participant
in the Fund, under subsection (c) of Section 30-10.
| 19 |
| "Official grain standards" means the official grade | 20 |
| designations as
adopted by the United States Department of | 21 |
| Agriculture under
the United States Grain Standards Act and | 22 |
| regulations adopted under that Act (7
U.S.C. 71 et seq. and 7 | 23 |
| CFR 810.201 et seq.).
| 24 |
| "Permanent storage capacity" means the capacity of | 25 |
| permanent structures
available for storage of grain on a | 26 |
| regular and continuous basis,
measured in bushels.
|
|
|
|
SB1693 |
- 9 - |
LRB096 08487 JDS 18607 b |
|
| 1 |
| "Person" means any individual or entity, including, but not
| 2 |
| limited to, a sole proprietorship, a partnership, a | 3 |
| corporation,
a cooperative, an association, a limited | 4 |
| liability company, an estate,
a trust, or a governmental | 5 |
| agency.
| 6 |
| "Price later contract" means a written contract for the | 7 |
| sale of
grain whereby any part of the purchase price may be | 8 |
| established by
the seller after delivery of the grain to a | 9 |
| grain dealer
according to a pricing formula contained in the | 10 |
| contract. Title to
the grain passes to the grain dealer at the | 11 |
| time of delivery. The
precise form
and the general terms and | 12 |
| conditions
of the contract
shall be established by rule.
| 13 |
| "Producer" means the owner, tenant, or operator of land who | 14 |
| has an
interest in and receives all or part of the proceeds | 15 |
| from the
sale of the grain produced on the land.
| 16 |
| "Producer protection holding corporation" means a holding
| 17 |
| corporation to receive, hold title to, and liquidate assets of | 18 |
| or
relating to a failed licensee, including assets in reference | 19 |
| to
collateral or guarantees relating to a failed licensee.
| 20 |
| "Regulatory Fund" means the fund created under Article 35.
| 21 |
| "Related persons" means affiliates of a licensee, key | 22 |
| persons
of a licensee, owners of a licensee, and persons who | 23 |
| have
control over a licensee. For the purposes of this | 24 |
| definition:
| 25 |
| (a) "Affiliate" means a person who has direct or | 26 |
| indirect control
of a licensee, is controlled by a |
|
|
|
SB1693 |
- 10 - |
LRB096 08487 JDS 18607 b |
|
| 1 |
| licensee, or is under common
control with a licensee.
| 2 |
| (b) "Key person" means an officer, a director, a | 3 |
| trustee, a partner,
a proprietor, a manager, a managing | 4 |
| agent, or the spouse of a licensee. An
officer or a | 5 |
| director of an entity organized or operating as a | 6 |
| cooperative,
however, shall not be considered to be a "key | 7 |
| person".
| 8 |
| (c) "Owner" means the holder of: over 10% of the total
| 9 |
| combined voting power of a corporation or over 10% of
the | 10 |
| total value of shares of all classes of stock of a | 11 |
| corporation;
over a 10% interest in a partnership; over
10% | 12 |
| of the value of a trust computed actuarially; or over
10% | 13 |
| of the legal or beneficial interest in any other
business, | 14 |
| association, endeavor, or entity that is a licensee. For
| 15 |
| purposes of computing these percentages, a holder is
deemed | 16 |
| to own stock or other interests in a business entity
| 17 |
| whether the ownership is direct or indirect.
| 18 |
| (d) "Control" means the power to exercise authority | 19 |
| over or direct
the management or policies of a business | 20 |
| entity.
| 21 |
| (e) "Indirect" means an interest in a business held by | 22 |
| the holder
not through the holder's actual holdings in the | 23 |
| business, but
through the holder's holdings in another | 24 |
| business or other businesses.
| 25 |
| (f) Notwithstanding any other provision of this Act, | 26 |
| the term "related
person" does not include a lender, |
|
|
|
SB1693 |
- 11 - |
LRB096 08487 JDS 18607 b |
|
| 1 |
| secured party, or other lien holder solely
by reason of the | 2 |
| existence of the loan, security interest, or lien, or | 3 |
| solely
by reason of the lender, secured party, or other | 4 |
| lien holder having or
exercising any right or remedy | 5 |
| provided by law or by agreement with a licensee
or a failed | 6 |
| licensee.
| 7 |
| "Reserve Fund" means a separate and discrete fund of up to | 8 |
| $2,000,000 held
by the Corporation as set forth in Section | 9 |
| 30-25.
| 10 |
| "Successor agreement" means an agreement by which a | 11 |
| licensee succeeds to
the grain obligations of a former | 12 |
| licensee.
| 13 |
| "Temporary storage space" means space measured in bushels | 14 |
| and used
for 6 months or less for storage of grain
on a | 15 |
| temporary basis due to a need for additional storage in excess
| 16 |
| of permanent storage capacity.
| 17 |
| "Trust account" means the Grain Indemnity Trust Account.
| 18 |
| "Valid claim" means a request for payment under the | 19 |
| provisions of this
Code, submitted by a claimant, the amount
| 20 |
| and category of which have been determined by the Department, | 21 |
| to the extent
that determination is not subject to further | 22 |
| administrative review
or appeal.
Each grain sale transaction | 23 |
| and each storage obligation shall be considered a
separate and | 24 |
| discrete request for payment even though one or more requests | 25 |
| are
contained on one claim form or are filed with the | 26 |
| Department in one document.
|
|
|
|
SB1693 |
- 12 - |
LRB096 08487 JDS 18607 b |
|
| 1 |
| "Warehouse" means a building, structure, or enclosure in | 2 |
| which grain
is stored for the public for compensation, whether | 3 |
| grain of
different owners is commingled or whether identity of
| 4 |
| different lots of grain is preserved.
| 5 |
| "Warehouse receipt" means a receipt for the storage of | 6 |
| grain issued
by a warehouseman.
| 7 |
| "Warehouseman" means a person who is licensed:
| 8 |
| (a) by the Department to engage in the
business of | 9 |
| storing grain for compensation; or
| 10 |
| (b) under the United States Warehouse Act but | 11 |
| participates in
the Fund
under
subsection (c) of Section | 12 |
| 30-10.
| 13 |
| (Source: P.A. 92-16, eff.
6-28-01; 93-225, eff. 7-21-03.)
| 14 |
| (240 ILCS 40/25-10)
| 15 |
| Sec. 25-10. Claimant compensation. Within 30 days after the | 16 |
| day on which a
claim becomes a valid claim, a claimant shall be
| 17 |
| compensated to the extent of its valid claim as provided in | 18 |
| this Section.
| 19 |
| It is the express intent of this legislation that each | 20 |
| undisputed portion
of
a claim shall be paid in accordance with | 21 |
| the deadlines of this Code, even if
there are disputed portions | 22 |
| of the claim. For example, the amount of a valid
claim | 23 |
| calculated
for an "unpriced obligation" shall be paid to the | 24 |
| claimant despite the fact
that claimant additionally seeks the | 25 |
| amount for a "priced obligation".
|
|
|
|
SB1693 |
- 13 - |
LRB096 08487 JDS 18607 b |
|
| 1 |
| Each claimant shall be compensated in accordance with the | 2 |
| following
provisions:
| 3 |
| (a) Valid claims filed by warehouse claimants shall be paid
| 4 |
| 100% of the amount determined by the
Department out of the net | 5 |
| proceeds of the liquidation of grain assets as set
forth in | 6 |
| this subsection (a). To the extent the net proceeds are | 7 |
| insufficient,
warehouse claimants shall be paid their pro rata | 8 |
| share of the net proceeds of
the liquidation of grain assets | 9 |
| and, subject to subsection (j) of this Section,
an additional | 10 |
| amount per claimant
not to exceed the balance of their | 11 |
| respective claims out of the Fund.
| 12 |
| (b) Subject to subsection (j) of this Section, if the net
| 13 |
| proceeds as set
forth in subsection (a) of this Section
are | 14 |
| insufficient to pay in full all valid claims filed by warehouse | 15 |
| claimants
as
payment becomes due, the balance shall be paid out | 16 |
| of the Fund
in accordance with subsection (b) of Section
25-20.
| 17 |
| (c) Valid claims filed by producers who:
| 18 |
| (1) have delivered grain within 21 days
before the date | 19 |
| of failure, or the date of suspension if the suspension
| 20 |
| results in a failure,
for which pricing of that grain
has | 21 |
| been completed before date of failure; or
| 22 |
| (2) gave written notice to the Department within
21 | 23 |
| days of the date of delivery of grain, if the
pricing of | 24 |
| that grain has been completed, that payment in full
for | 25 |
| that grain has not been made;
| 26 |
| shall be paid, subject to subsection (j) of this Section, 100% |
|
|
|
SB1693 |
- 14 - |
LRB096 08487 JDS 18607 b |
|
| 1 |
| of
the amount of
the valid
claim determined by the Department. | 2 |
| Valid claims that are included in
subsection (c) of this | 3 |
| Section
shall receive no payment under subsection (d) of this | 4 |
| Section, and
any claimant
having a valid claim under this | 5 |
| subsection (c) determined by the
Department to
be in excess of | 6 |
| the limits, if any, imposed under subsection (j) of
this
| 7 |
| Section shall be paid only sums in excess of those limits to | 8 |
| the
extent additional money is available under subsection | 9 |
| (d)(2) of Section 25-20.
| 10 |
| (d) Valid
claims that are not included in subsection (c) of | 11 |
| this Section that
are filed
by producers where the later date | 12 |
| of completion of
delivery or pricing of
the grain is
within
160 | 13 |
| days before the date of failure shall be paid
85% of the amount | 14 |
| of the valid claim determined by the
Department or $250,000, | 15 |
| whichever is less, per claimant.
In computing the 160-day | 16 |
| period, the phrase "date of completion of delivery"
means the | 17 |
| date
of the last delivery of grain to be applied to the | 18 |
| quantity requirement of the
contract, and the phrase "the later | 19 |
| date" means the
date closest to the date of failure. In | 20 |
| addition,
for claims filed by producers for grain sold on a
| 21 |
| contract, the later of the date of execution of the
contract or | 22 |
| the date of delivery of the grain
covered by the price later | 23 |
| contract must not be more than 365 days
before the date of | 24 |
| failure in order for the claimant to receive
any compensation.
| 25 |
| In computing the 365-day period, the phrase "the later of the | 26 |
| date" means the
date closest to the date of failure,
and the |
|
|
|
SB1693 |
- 15 - |
LRB096 08487 JDS 18607 b |
|
| 1 |
| phrase "date of delivery" means the date of the last delivery | 2 |
| of
grain to be applied to the quantity requirement of the price | 3 |
| later contract.
| 4 |
| (e) Valid claims filed by producers for grain sold on a | 5 |
| price
later contract, for which the final price has not been | 6 |
| established,
shall be paid 85% of the amount of
the valid
| 7 |
| claims determined by the Department or $250,000, whichever is
| 8 |
| less,
per claimant, if the later of the date of execution of | 9 |
| the
contract or the date of delivery of the grain
covered by | 10 |
| the price later contract occurred not more than 365 days
before | 11 |
| the date of failure.
In computing the 365-day period, the | 12 |
| phrase "the later of the date" means the
date closest to the | 13 |
| date of failure, and the phrase "date of delivery" means
the | 14 |
| date of the last delivery of grain to be applied to the | 15 |
| quantity
requirement of the price later contract.
| 16 |
| The execution of subsequent price
later contracts by the | 17 |
| producer and the licensee for grain
previously covered by a | 18 |
| price later contract shall not extend the
coverage of a claim | 19 |
| beyond the original 365 days.
| 20 |
| (f) The maximum payment to producers under
subsections (d) | 21 |
| and (e) of this
Section, combined, shall be $250,000 per | 22 |
| claimant.
| 23 |
| (g) The following claims shall be barred and disallowed in
| 24 |
| their entirety and shall not be entitled to any recovery from | 25 |
| the
Fund or the Trust Account:
| 26 |
| (1) Claims filed by producers where both the date of |
|
|
|
SB1693 |
- 16 - |
LRB096 08487 JDS 18607 b |
|
| 1 |
| completion of
delivery and the date of pricing of the grain | 2 |
| are in excess of 160 days
before the date of failure.
| 3 |
| (2) Claims filed by producers for grain sold on a price
| 4 |
| later contract if the later of the date of execution of the
| 5 |
| contract or the date of delivery of grain in reference to | 6 |
| the
grain covered by the price later contract occurred more | 7 |
| than
365 days before the date of failure.
In computing the | 8 |
| 365-day period, the phrase "the later of the date" means | 9 |
| the
date closest to the date of failure, and the phrase | 10 |
| "date of delivery" means
the date of the last delivery of | 11 |
| grain to be applied to the quantity
requirement of the | 12 |
| price later contract.
| 13 |
| (3) Claims filed by any claimant that are based upon or | 14 |
| acquired by
fraudulent or illegal acts of the claimant.
| 15 |
| (h) To the extent moneys are available, additional pro rata
| 16 |
| payments may be made to claimants under subsection (d) of | 17 |
| Section
25-20.
| 18 |
| (i) For purposes of this Section, a claim filed in | 19 |
| connection
with
warehouse receipts that are possessed under a | 20 |
| collateral pledge of a producer,
or that are subject to a | 21 |
| perfected security interest, or that were acquired by
a secured | 22 |
| party or lien holder under an obligation of a producer,
shall | 23 |
| be
deemed to be a claim filed by the producer and not a claim | 24 |
| filed by the secured
party or the lien holder, regardless of | 25 |
| whether the producer is in default
under that collateral | 26 |
| pledge, security agreement, or other obligation.
|
|
|
|
SB1693 |
- 17 - |
LRB096 08487 JDS 18607 b |
|
| 1 |
| (j) The
maximum payment out of the Fund for claimants under | 2 |
| subsection (a) or , (b) of
this Section shall be $1,000,000 per | 3 |
| claimant and the maximum payment out of
the Fund for claimants | 4 |
| under subsections (c), (d), and (e)
of this Section, combined, | 5 |
| shall be $1,000,000 per claimant ; however, notwithstanding any | 6 |
| other provision of this Act, a claimant that is a lender may | 7 |
| receive more than $1,000,000 out of the Fund if that lender has | 8 |
| sold one or more participating interests in its loan to other | 9 |
| lenders and produces satisfactory evidence that: (i) its | 10 |
| recovery in excess of $1,000,000 out of the Fund is made on | 11 |
| behalf of the other lender or lenders that have an interest in | 12 |
| the loan; (ii) the recovery from the Fund would not exceed the | 13 |
| actual financial interest held by the respective lender or | 14 |
| lenders on behalf of which the recovery is sought; and (iii) no | 15 |
| lender, whether it be the original lender or a lender that | 16 |
| purchased a participating interest in the loan, shall in any | 17 |
| event recover for its own account more than $1,000,000 out of | 18 |
| the Fund in relation to a claim .
| 19 |
| (k) The amounts to be paid to warehouse valid claimants and | 20 |
| grain dealer
valid claimants shall be calculated according to | 21 |
| the following:
| 22 |
| (1) Valid claimants who have warehouse claims, or who | 23 |
| have grain dealer
claims for grain sold, delivered but | 24 |
| unpriced as of the date of failure, shall
have "unpriced | 25 |
| obligations", and to determine the per bushel value of | 26 |
| these
valid claims the Department shall use an average of |
|
|
|
SB1693 |
- 18 - |
LRB096 08487 JDS 18607 b |
|
| 1 |
| the cash bid prices on the
date of failure from grain | 2 |
| dealers located within the market area of the failed
| 3 |
| licensee, and the cash bid price offered by the failed | 4 |
| licensee on the date of
failure, less transportation, | 5 |
| handling costs, and discounts applicable as of
that date.
| 6 |
| (2) Valid claimants who have grain dealer claims for | 7 |
| grain sold,
delivered, and priced as of the date of failure | 8 |
| shall have "priced
obligations", and the price per bushel | 9 |
| to be used in calculating the
compensation due these valid | 10 |
| claimants shall be that which has been agreed upon
by the | 11 |
| failed licensee and the claimant, less applicable | 12 |
| discounts. For
purposes of this item (2), a person has | 13 |
| "priced" his or her grain if he or she
has done those | 14 |
| things necessary under the agreement to set, choose, or | 15 |
| select a
price for
any portion of the grain under the | 16 |
| agreement, without regard to whether he or
she has received | 17 |
| a check in payment for the grain, or could have received a
| 18 |
| check in payment for the grain, prior to the failure.
| 19 |
| (l) Arrangements whereby a producer agrees with a licensee | 20 |
| to defer
receipt of payment of amounts due from the sale of | 21 |
| grain are covered by this
Code and are not to be considered | 22 |
| loans by the producer to the licensee,
despite payments to the | 23 |
| producer as an inducement for the leaving of moneys
with the | 24 |
| licensee, unless the licensee has executed and delivered to the
| 25 |
| producer a promissory note covering those amounts.
| 26 |
| (Source: P.A. 93-225, eff. 7-21-03.)
|
|
|
|
SB1693 |
- 19 - |
LRB096 08487 JDS 18607 b |
|
| 1 |
| Section 99. Effective date. This Act takes effect upon | 2 |
| becoming law.
|
|