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The Florida Senate

2011 Florida Statutes

Title XIV TAXATION AND FINANCE
Chapter 215 FINANCIAL MATTERS: GENERAL PROVISIONS Entire Chapter
SECTION 56005
Tobacco Settlement Financing Corporation.
F.S. 215.56005
215.56005 Tobacco Settlement Financing Corporation.—
(1) DEFINITIONS.—As used in this section:
(a) “Bond” means any bond, debenture, note, certificate, or other obligation of financial indebtedness issued by the corporation under this section.
(b) “Corporation” means the Tobacco Settlement Financing Corporation created by this section.
(c) “Department” means the Department of Financial Services or its successor.
(d) “Purchase agreement” means a contract between the corporation and the State of Florida, acting by and through the department, in which the State of Florida sells to the corporation any or all of the state’s right, title, and interest in and to the tobacco settlement agreement, including, but not limited to, the moneys to be received thereunder.
(e) “State” means the State of Florida.
(f) “Tobacco settlement agreement” means the settlement agreement, as amended, entered into by the state and participating cigarette manufacturers in settlement of State of Florida v. American Tobacco Co., No. 95-1466AH (Fla. 15th Cir. Ct. 1996).
(2) CORPORATION CREATION AND AUTHORITY.—
(a) The Tobacco Settlement Financing Corporation is hereby created as a special purpose, not-for-profit, public benefits corporation, for the purpose of purchasing any or all of the state’s right, title, and interest in and to the tobacco settlement agreement and issuing bonds to pay the purchase price therefor which shall be used to provide funding for the Lawton Chiles Endowment Fund. The corporation is authorized to purchase any or all of the state’s right, title, and interest in and to the tobacco settlement agreement and to issue bonds to pay the purchase price therefor. The proceeds derived by the state from the sale of any or all of the state’s right, title, and interest in and to the tobacco settlement agreement shall be used to fund the Lawton Chiles Endowment Fund. The fulfillment of the purposes of the corporation promotes the health, safety, and general welfare of the people of this state and serves essential governmental functions and a paramount public purpose.
(b) The corporation shall be governed by a board of directors consisting of the Governor, the Chief Financial Officer or the Chief Financial Officer’s designee, the Attorney General, two directors appointed from the membership of the Senate by the President of the Senate, and two directors appointed from the membership of the House of Representatives by the Speaker of the House of Representatives. The executive director of the State Board of Administration shall be the chief executive officer of the corporation and shall direct and supervise the administrative affairs and operation of the corporation. The corporation shall also have such other officers as may be determined by the board of directors.
(c) The corporation shall have all the powers of a corporate body under the laws of this state, including, but not limited to, the powers of corporations under chapter 617, to the extent not inconsistent with or restricted by the provisions of this section, including, but not limited to, the power to:
1. Adopt, amend, and repeal bylaws not inconsistent with this section.
2. Sue and be sued.
3. Adopt and use a common seal.
4. Acquire, purchase, hold, lease, and convey real and personal property, contract rights, general intangibles, revenues, moneys, and accounts as may be proper or expedient to carry out the purposes of the corporation and this section, and to assign, convey, sell, transfer, lease, or otherwise dispose of such property.
5. Elect or appoint and employ such officers, agents, and employees as the corporation deems advisable to operate and manage the affairs of the corporation, which officers, agents, and employees may be employees of this state or of the state officers and agencies represented on the board of directors of the corporation.
6. Make and execute any and all contracts, trust agreements, trust indentures, and other instruments and agreements necessary or convenient to accomplish the purposes of the corporation and this section, including but not limited to investment contracts, swap agreements, or liquidity facilities.
7. Select, retain, and employ professionals, contractors, or agents, which may include the Division of Bond Finance of the State Board of Administration, as necessary or convenient to enable or assist the corporation in carrying out the purposes of the corporation.
8. Do any act or thing necessary or convenient to carry out the purposes of the corporation subject to approval of the Legislature where required in this section.
(d) The corporation is authorized to enter into one or more purchase agreements with the department pursuant to which the corporation purchases any or all of the state’s right, title, and interest in and to the tobacco settlement agreement and to execute and deliver any other documents necessary or desirable to effectuate such purchase. Sale of all or part of the state’s right, title, and interest in and to the tobacco settlement agreement is subject to approval by the Legislature in a regular, extended, or special session. The tobacco settlement agreement moneys received pursuant to the purchase agreements may be used for the costs and expenses of administration of the corporation.
(e)1. The corporation may issue bonds payable from and secured by amounts payable to the corporation pursuant to the tobacco settlement agreement. Issuance of bonds by the corporation is subject to approval by the Legislature in a regular, extended, or special session. In addition, the corporation is authorized to issue bonds to refund previously issued bonds and to deposit the proceeds of such bonds as provided in the documents authorizing the issuance of such bonds. The corporation is authorized to do all things necessary or desirable in connection with the issuance of the bonds, including, but not limited to, establishing debt service reserves or other additional security for the bonds, providing for capitalized interest, and executing and delivering any and all documents and agreements. The total principal amount of bonds issued by the corporation shall not exceed $3 billion. The principal amount of bonds issued in any single fiscal year shall not exceed $1.5 billion, beginning with the 2000-2001 fiscal year. The limitation on the principal amount of bonds issued by the corporation shall not apply to bonds issued to refund previously issued bonds. No series of bonds issued shall have a true interest cost rate of more than 4 percent over the yield on U.S. Treasury obligations which have a maturity approximately equal to the average life of such series of bonds. Satisfaction of the foregoing interest rate limitation shall be determined on the date such bonds are sold or a definitive agreement to sell such bonds at specified prices or yields is executed and delivered. The corporation may sell bonds through competitive bidding or negotiated contracts, whichever method of sale is determined by the corporation to be in the best interest of the corporation.
2. The corporation does not have the power to pledge the credit, the general revenues, or the taxing power of the state or of any political subdivision of the state. The obligations of the department and the corporation under the purchase agreement and under any bonds shall not constitute a general obligation of the state or a pledge of the faith and credit or taxing power of the state. The bonds shall be payable from and secured by payments received under the tobacco settlement agreement, and neither the state nor any of its agencies shall have any liability on such bonds. Such bonds shall not be construed in any manner as an obligation of the state or any agency of the state, the department, the State Board of Administration or entities for which the State Board of Administration invests funds, or board members or their respective agencies. The corporation shall not be authorized to expend moneys for payment of debt service on bonds from any source other than revenues received under the tobacco settlement agreement or reserves, funds, or accounts established pursuant to documents authorizing the issuance of such bonds.
3. The corporation may validate any bonds issued pursuant to this paragraph and the security for payment for such bonds, as provided in chapter 75. The validation complaint shall be filed only in the circuit court for Leon County. The notice required under s. 75.06 shall be published in Leon County, and the complaint and order of the circuit court shall be served only on the State Attorney for the Second Judicial Circuit. The provisions of ss. 75.04(2) and 75.06(2) shall not apply to a validation complaint filed as authorized in this paragraph. The validation of the first bonds issued pursuant to this paragraph may be appealed to the Supreme Court, and such appeal shall be handled on an expedited basis.
4. The state hereby covenants with the holders of bonds of the corporation that the state will not limit or alter the authority or the rights under this section vested in the corporation to fulfill the terms of any agreement, including the terms of any purchase agreement, or in any way impair the rights and remedies of such bondholders until at least 1 year and 1 day after which no such bonds remain outstanding unless adequate provision has been made for the payment of such bonds pursuant to the documents authorizing such bonds.
5. The corporation shall not take any action which will materially and adversely affect the rights of holders of any bonds issued under this paragraph as long as such bonds are outstanding.
6. Until at least 1 year and 1 day after which no bonds of the corporation remain outstanding, the corporation shall not have the authority to file a voluntary petition under chapter 9 of the federal Bankruptcy Code or such corresponding chapter or sections as may be in effect, from time to time, and neither any public officer nor any organization, entity, or other person shall authorize the corporation to be or become a debtor under chapter 9 of the federal Bankruptcy Code or such corresponding chapter or sections as may be in effect, from time to time, during any such period. The state hereby covenants with the holders of bonds of the corporation that the state will not limit or alter the denial of authority to file bankruptcy under this paragraph until at least 1 year and 1 day after which no bonds of the corporation remain outstanding.
7. The corporation may contract with the State Board of Administration to serve as trustee with respect to bonds issued by the corporation as provided by this paragraph and to hold, administer, and invest proceeds of such bonds and other funds of the corporation and to perform other services required by the corporation. The State Board of Administration may perform such services and may contract with others to provide all or a part of such services and to recover the costs and expenses of providing such services.
(f) Notwithstanding any other provision of law, any pledge of or other security interest in revenues, moneys, accounts, contract rights, general intangibles, or other personal property made or created by the corporation or department resulting from the authority of this section shall be valid, binding, and perfected from the time such pledge is made or other security interest attaches without any physical delivery of the collateral or further act, and the lien of any such pledge or other security interest shall be valid, binding, and perfected against all parties having claims of any kind in tort, contract, or otherwise against the corporation irrespective of whether such parties have notice of such claims. No instrument by which such a pledge or security interest is created or any financing statement need be recorded or filed.
(g) The corporation shall not be deemed to be a special district for purposes of chapter 189 or a unit of local government for purposes of part III of chapter 218. The provisions of chapter 120, part I of chapter 287, and ss. 215.57-215.83 shall not apply to this section, the corporation created in this section, the purchase agreements entered into pursuant to this section, or bonds issued by the corporation as provided in this section, except that underwriters, financial advisors, and legal counsel shall be selected in a manner consistent with the rules adopted pursuant to the State Bond Act for the selection of service providers and underwriters.
(h) In no event shall any of the benefits or earnings of the corporation inure to the benefit of any private person.
(i) Unless such officer, employee, or agent acted outside the course and scope of his or her employment or acted in bad faith or with malicious purpose or in a manner exhibiting wanton and willful disregard of human rights, safety, or property, there shall be no liability on the part of, and no cause of action shall arise against, any board member of the corporation or any employee of the corporation or the state for any actions taken by such board member or employee in the performance of his or her duties under this section.
(j) The corporation is exempt from taxation and assessments of any nature whatsoever upon the income of the corporation and any property, assets, or revenues acquired, received, or used in the furtherance of the purposes provided in this section.
(k) The corporation and its corporate existence shall continue until terminated by law; however, no such law shall take effect until at least 1 year and 1 day after which no bonds of the corporation remain outstanding unless adequate provision has been made for the payment of such bonds pursuant to the documents authorizing the issuance of such bonds. Upon termination of the existence of the corporation, all rights and properties of the corporation in excess of obligations of the corporation shall pass to and be vested in the Lawton Chiles Endowment Fund.
(l) If any provision of this section or its application to any person or circumstance is held invalid, the invalidity shall not affect other provisions or applications of this section which can be given effect without the invalid provision or application, and under such circumstances the provisions of this section are declared severable.
(3) POWERS OF THE DEPARTMENT.—
(a) The department is authorized, on behalf of the state, to do all things necessary or desirable to assist the corporation in the execution of the corporation’s responsibilities, including, but not limited to, processing budget amendments against the Department of Financial Services Tobacco Settlement Clearing Trust Fund, subject to the requirements of s. 216.177, for the costs and expenses of administration of the corporation in an amount not to exceed $500,000; entering into one or more purchase agreements to sell to the corporation any or all of the state’s right, title, and interest in and to the tobacco settlement agreement; executing any administrative agreements with the corporation to fund the administration, operation, and expenses of the corporation from moneys appropriated for such purpose; and executing and delivering any and all other documents and agreements necessary or desirable in connection with the sale of any or all of the state’s right, title, and interest in and to the tobacco settlement agreement to the corporation or the issuance of the bonds by the corporation. The department’s authority to sell any or all of the state’s right, title, and interest in and to the tobacco settlement agreement is subject to approval by the Legislature in a regular, extended, or special session.
(b) The state hereby covenants with the holders of bonds of the corporation that the state will not limit or alter the authority or the rights under this section vested in the department to fulfill the terms of any agreement, including the terms of any purchase agreement, or in any way impair the rights and remedies of such bondholders until at least 1 year and 1 day after which no such bonds remain outstanding unless adequate provision has been made for the payment of such bonds pursuant to the documents authorizing such bonds.
(c) The department is authorized, on behalf of the state, to make any covenant, representation, or warranty necessary or desirable in connection with the sale of any or all of the state’s right, title, and interest in and to the tobacco settlement agreement to the corporation or the issuance of the bonds by the corporation. Such covenants may specifically include a covenant to take whatever actions are necessary on behalf of the corporation or holders of the bonds issued by the corporation to enforce the provisions of the tobacco settlement agreement, and any rights and remedies thereunder.
History.—s. 1, ch. 2000-128; s. 141, ch. 2001-266; s. 223, ch. 2003-261.