Senate Bill sb0252er
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1
2 An act relating to business filings; amending
3 s. 608.406, F.S.; deleting certain authorized
4 words or abbreviations in limited liability
5 company names; requiring a company name to be
6 distinguishable on records maintained by the
7 Division of Corporations of the Department of
8 State; providing exceptions; deleting a
9 name-recording requirement for the department;
10 providing for nonapplication of certain
11 requirements relating to distinguishability of
12 company names in certain records under certain
13 circumstances; amending s. 608.407, F.S.;
14 requiring the name of a limited liability
15 company in the company's articles of
16 organization to satisfy certain requirements;
17 repealing s. 15.091, F.S., relating to
18 processing fees for filings of financial
19 statements and other written documents under
20 the Uniform Commerical Code; amending s.
21 671.101, F.S.; providing scope of chapter and a
22 short title; amending s. 671.102, F.S.;
23 authorizing certain timeframes to be fixed by
24 agreement; amending s. 671.106, F.S.; making
25 editorial changes; amending s. 671.107, F.S.;
26 providing for the discharge of a claim or right
27 under certain circumstances; amending s.
28 671.201, F.S.; providing, revising, and
29 deleting definitions; amending ss. 671.202 and
30 671.203, F.S.; making editorial changes;
31 amending s. 671.204, F.S.; revising criteria
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1 determining when an action is taken within a
2 reasonable time and seasonably; amending s.
3 671.205, F.S.; defining "course of
4 performance"; revising the definition of
5 "course of dealing"; providing that course of
6 performance and course of dealing may be used
7 for certain purposes; revising uses for express
8 terms of an agreement; specifying when course
9 of performance, course of dealing, or usage of
10 trade prevails; providing that course of
11 performance is relevant to show a waiver or
12 modification in certain circumstances;
13 repealing s. 671.206, F.S., relating to statute
14 of frauds for kinds of personal property not
15 otherwise covered; amending s. 671.208, F.S.;
16 making editorial changes; creating s. 671.209,
17 F.S.; providing definitions; specifying when
18 notice, knowledge, or notification becomes
19 effective with the exercise of due diligence;
20 creating s. 671.21, F.S.; providing that
21 whenever the code creates certain presumptions,
22 the trier of fact must find the existence of
23 the fact presumed unless evidence is introduced
24 which supports a finding of its nonexistence;
25 creating s. 671.211, F.S.; providing in what
26 instances a person gives value for rights;
27 creating s. 671.212, F.S.; providing that the
28 code modifies, limits, and supersedes certain
29 provisions of the federal Electronic Signatures
30 in Global and National Commerce Act; creating
31 s. 671.213, F.S.; authorizing the subordination
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1 of certain obligations; authorizing the
2 registry to use the fees collected to fund its
3 operations; amending s. 679.525, F.S.; deleting
4 the filing fees for electronically filing a
5 financing statement or an amendment thereto;
6 amending ss. 559.9232, 563.022, 668.50,
7 670.106, 670.204, 675.102, 680.518, 680.519,
8 680.527, and 680.528, F.S.; conforming
9 cross-references; amending s. 713.901, F.S.;
10 specifying fees under the Florida Uniform
11 Federal Lien Registration Act previously
12 provided through cross-reference; deleting a
13 cross-reference to conform to changes made by
14 the act; providing an effective date.
15
16 Be It Enacted by the Legislature of the State of Florida:
17
18 Section 1. Section 608.406, Florida Statutes, is
19 amended to read:
20 608.406 Limited liability company name.--
21 (1) A limited liability company name:
22 (a) Must contain the words "limited liability company"
23 or "limited company," or the abbreviation abbreviations
24 "L.L.C." or "L.C.," or the designation designations "LLC" or
25 "LC" as the last words of the name of every limited liability
26 company formed under the provisions of this chapter. The word
27 "limited" may be abbreviated as "Ltd.," and the word "company"
28 may be abbreviated as "Co." Omission of the words "limited
29 liability company" or "limited company," the abbreviation
30 abbreviations "L.L.C." or "L.C. ," or the designation
31 designations "LLC" or "LC" in the use of the name of the
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1 limited liability company shall render any person who
2 knowingly participates in the omission, or knowingly
3 acquiesces in the omission, liable for any indebtedness,
4 damage, or liability caused by the omission.
5 (b) May not contain language stating or implying that
6 the limited liability company is organized for a purpose other
7 than that permitted in this chapter and its articles of
8 organization.
9 (c) May not contain language stating or implying that
10 the limited liability company is connected with a state or
11 federal government agency or a corporation or other entity
12 chartered under the laws of the United States.
13 (2) The name of the limited liability company must be
14 distinguishable on the records of the Division of Corporations
15 of the Department of State, except for fictitious name
16 registrations filed pursuant to s. 865.09 and general
17 partnership registrations filed pursuant to s. 620.8105;
18 however, a limited liability company may register under a name
19 that is not otherwise distinguishable on the records of the
20 Division of Corporations with written consent of the owner
21 entity provided the consent is filed with the Division of
22 Corporations at the time of registration of such name.
23 (3)(2) The name of the limited liability company shall
24 be filed with the Department of State for public notice only
25 and shall not alone create any presumption of ownership beyond
26 that which is created under the common law. The Department of
27 State shall record the name without regard to any other name
28 recorded.
29 (4) In the case of any limited liability company in
30 existence prior to July 1, 2007, and registered with the
31 Division of Corporations, the requirement in this section that
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1 the name of the entity be distinguishable from the names of
2 other entities and filings shall not apply except when the
3 limited liability company files documents on or after July 1,
4 2007, that would otherwise have affected its name.
5 Section 2. Paragraph (a) of subsection (1) of section
6 608.407, Florida Statutes, is amended to read:
7 608.407 Articles of organization.--
8 (1) In order to form a limited liability company,
9 articles of organization of a limited liability company shall
10 be filed with the Department of State by one or more members
11 or authorized representatives of the limited liability
12 company. The articles of organization shall set forth:
13 (a) The name of the limited liability company, which
14 must satisfy the requirements of s. 608.406.
15 Section 3. Section 15.091, Florida Statutes, is
16 repealed.
17 Section 4. Section 671.101, Florida Statutes, is
18 amended to read:
19 671.101 Short title; scope of chapter.--
20 (1) Chapters 670-680 may be cited as the "Uniform
21 Commercial Code."
22 (2) This chapter applies to a transaction to the
23 extent that it is governed by another chapter of this code and
24 may be cited as the "Uniform Commercial Code--General
25 Provisions."
26 Section 5. Section 671.102, Florida Statutes, is
27 amended to read:
28 671.102 Purposes; rules of construction; variation by
29 agreement.--
30 (1) This code shall be liberally construed and applied
31 to promote its underlying purposes and policies, which.
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1 (2) Underlying purposes and policies of this code are:
2 (a) To simplify, clarify, and modernize the law
3 governing commercial transactions.;
4 (b) To permit the continued expansion of commercial
5 practices through custom, usage, and agreement of the
6 parties.;
7 (c) To make uniform the law among the various
8 jurisdictions.
9 (2)(a)(3) Except as otherwise provided in this code,
10 the effect of provisions of this code may be varied by
11 agreement., except as otherwise provided in this code and
12 except that
13 (b) The obligations of good faith, diligence,
14 reasonableness, and care prescribed by this code may not be
15 disclaimed by agreement, but the parties may by agreement
16 determine the standards by which the performance of such
17 obligations is to be measured if such standards are not
18 manifestly unreasonable. Whenever this code requires an action
19 to be taken within a reasonable time, a time that is not
20 manifestly unreasonable may be fixed by agreement.
21 (c)(4) The presence in certain provisions of this code
22 of the words "unless otherwise agreed" or words of similar
23 import does not imply that the effect of other provisions may
24 not be varied by agreement under this subsection (3).
25 (3)(5) In this code, unless the context otherwise
26 requires:
27 (a) Words in the singular number include the plural,
28 and words in the plural include the singular.;
29 (b) Gender-specific language includes the other gender
30 and neuter, and when the sense so indicates Words of either
31 the neuter gender also may refer to the other any gender.
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1 Section 6. Subsection (1) of section 671.106, Florida
2 Statutes, is amended to read:
3 671.106 Remedies to be liberally administered.--
4 (1) The remedies provided by this code must shall be
5 liberally administered to the end that the aggrieved party may
6 be put in as good a position as if the other party had fully
7 performed, but neither consequential or special nor penal
8 damages may be had except as specifically provided in this
9 code or by other rule of law.
10 Section 7. Section 671.107, Florida Statutes, is
11 amended to read:
12 671.107 Waiver or renunciation of claim or right after
13 breach.--A Any claim or right arising out of an alleged breach
14 can be discharged in whole or in part without consideration by
15 agreement of a written waiver or renunciation signed and
16 delivered by the aggrieved party in an authenticated record.
17 Section 8. Section 671.201, Florida Statutes, is
18 amended to read:
19 671.201 General definitions.--Unless the context
20 otherwise requires, words or phrases defined in this section,
21 or in the additional definitions contained in other chapters
22 of this code which apply to particular chapters or parts
23 thereof, have the meanings stated. Subject to additional
24 definitions contained in other the subsequent chapters of this
25 code which apply which are applicable to particular specific
26 chapters or parts thereof, the term and unless the context
27 otherwise requires, in this code:
28 (1) "Action," in the sense of a judicial proceeding,
29 includes recoupment, counterclaim, setoff, suit in equity, and
30 any other proceedings in which rights are determined.
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1 (2) "Aggrieved party" means a party entitled to pursue
2 resort to a remedy.
3 (3) "Agreement," as distinguished from "contract,"
4 means the bargain of the parties in fact, as found in their
5 language or inferred by implication from other circumstances,
6 including course of dealing, or usage of trade, or course of
7 performance as provided in this code (ss. 671.205 and
8 672.208). Whether an agreement has legal consequences is
9 determined by the provisions of this code, if applicable;
10 otherwise by the law of contracts (s. 671.103). (Compare
11 "contract.")
12 (4) "Bank" means a any person engaged in the business
13 of banking and includes a savings bank, a savings and loan
14 association, a credit union, and a trust company.
15 (5) "Bearer" means a the person in possession of a
16 negotiable an instrument, document of title, or certificated
17 security that is payable to bearer or indorsed in blank.
18 (6) "Bill of lading" means a document evidencing the
19 receipt of goods for shipment issued by a person engaged in
20 the business of transporting or forwarding goods, and includes
21 an airbill. "Airbill" means a document serving for air
22 transportation as a bill of lading does for marine or rail
23 transportation, and includes an air consignment note or air
24 waybill.
25 (7) "Branch" includes a separately incorporated
26 foreign branch of a bank.
27 (8) "Burden of establishing" a fact means the burden
28 of persuading the triers of fact that the existence of the
29 fact is more probable than its nonexistence.
30 (9) "Buyer in ordinary course of business" means a
31 person who, in ordinary course, buys goods in good faith,
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1 without knowledge that the sale violates the rights of another
2 person in the goods, and in the ordinary course from a person,
3 other than a pawnbroker, in the business of selling goods of
4 that kind. A person buys goods in the ordinary course if the
5 sale to the person comports with the usual or customary
6 practices in the kind of business in which the seller is
7 engaged or with the seller's own usual or customary practices.
8 A person who sells oil, gas, or other minerals at the wellhead
9 or minehead is a person in the business of selling goods of
10 that kind. A buyer in the ordinary course of business may buy
11 for cash, by exchange of other property, or on secured or
12 unsecured credit and may acquire goods or documents of title
13 under a preexisting contract for sale. Only a buyer who takes
14 possession of the goods or has a right to recover the goods
15 from the seller under chapter 672 may be a buyer in the
16 ordinary course of business. "Buyer in ordinary course of
17 business" does not include a person who acquires goods in a
18 transfer in bulk or as security for or in total or partial
19 satisfaction of a money debt is not a buyer in the ordinary
20 course of business.
21 (10) A term or clause is "Conspicuous," with reference
22 to a term, means when it is so written, displayed, or
23 presented that a reasonable person against whom it is to
24 operate ought to have noticed it. Whether a term is
25 "conspicuous" is a decision for the court. Conspicuous terms
26 include the following:
27 (a) A printed heading in capitals in a size equal to
28 or larger than that of the surrounding text or in a (as:
29 NONNEGOTIABLE BILL OF LADING) is conspicuous. Language in the
30 body of a form is conspicuous if it is in larger or other
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1 contrasting type, font, or color in contrast to the
2 surrounding text of the same or lesser size.
3 (b) Language in the body of a record or display in
4 type larger than that of the surrounding text; in a type,
5 font, or color in contrast to the surrounding text of the same
6 size; or set off from surrounding text of the same size by
7 symbols or other marks that call attention to the language.
8 But in a telegram any stated term is conspicuous. Whether a
9 term or clause is conspicuous or not is for decision by the
10 court.
11 (11) "Consumer" means an individual who enters into a
12 transaction primarily for personal, family, or household
13 purposes.
14 (12)(11) "Contract," as distinguished from
15 "agreement," means the total legal obligation that which
16 results from the parties' agreement as determined affected by
17 this code and as supplemented by any other applicable laws
18 rules of law. (Compare "agreement.")
19 (13)(12) "Creditor" includes a general creditor, a
20 secured creditor, a lien creditor, and any representative of
21 creditors, including an assignee for the benefit of creditors,
22 a trustee in bankruptcy, a receiver in equity, and an executor
23 or administrator of an insolvent debtor's or assignor's
24 estate.
25 (14)(13) "Defendant" includes a person in the position
26 of defendant in a cross-action or counterclaim, cross-claim,
27 or third-party claim.
28 (15)(14) "Delivery," with respect to an instrument
29 instruments, document documents of title, or chattel paper, or
30 certificated securities means voluntary transfer of
31 possession.
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1 (16)(15) "Document of title" includes bill of lading,
2 dock warrant, dock receipt, warehouse receipt or order for the
3 delivery of goods, and also any other document that which in
4 the regular course of business or financing is treated as
5 adequately evidencing that the person in possession of it is
6 entitled to receive, hold, and dispose of the document and the
7 goods it covers. To be a document of title, a document must
8 purport to be issued by or addressed to a bailee and purport
9 to cover goods in the bailee's possession which are either
10 identified or are fungible portions of an identified mass.
11 (17)(16) "Fault" means a default, breach, or wrongful
12 act or, omission or breach.
13 (18)(17) "Fungible goods" with respect to goods or
14 securities means:
15 (a) Goods or securities of which any unit is, by
16 nature or usage of trade, is the equivalent of any other like
17 unit; or.
18 (b) Goods which are not fungible shall be deemed
19 fungible for the purposes of this code to the extent that, by
20 under a particular agreement, or document unlike units are
21 treated as equivalents.
22 (19)(18) "Genuine" means free of forgery or
23 counterfeiting.
24 (20)(19) "Good faith," except as otherwise provided in
25 this code, means honesty in fact and in the observance of
26 reasonable commercial standards of fair dealing conduct or
27 transaction concerned.
28 (21)(20) "Holder," with respect to a negotiable
29 instrument, means:
30 (a) The person in possession of a negotiable if the
31 instrument that is payable either to bearer or, in the case of
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1 an instrument payable to an identified person that is, if the
2 identified person is in possession; or. "Holder," with respect
3 to a document of title, means
4 (b) The person in possession of a document of title if
5 the goods are deliverable either to bearer or to the order of
6 the person in possession.
7 (21) To "honor" is to pay or to accept and pay, or
8 where a credit so engages to purchase or discount a draft
9 complying with the terms of the credit.
10 (22) "Insolvency proceeding proceedings" includes an
11 any assignment for the benefit of creditors or other
12 proceeding proceedings intended to liquidate or rehabilitate
13 the estate of the person involved.
14 (23) A person is "Insolvent" means:
15 (a) Having who either has ceased to pay his or her
16 debts in the ordinary course of business other than as a
17 result of a bona fide dispute;
18 (b) Being unable to or cannot pay his or her debts as
19 they become due; or
20 (c) Being is insolvent within the meaning of the
21 Federal Bankruptcy Law.
22 (24) "Money" means a medium of exchange currently
23 authorized or adopted by a domestic or foreign government. The
24 term and includes a monetary unit of account established by an
25 intergovernmental organization or by agreement between two or
26 more countries nations.
27 (25) A person has "notice" of a fact when
28 (a) He or she has actual knowledge of it; or
29 (b) He or she has received a notice or notification of
30 it; or
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1 (c) From all the facts and circumstances known to the
2 person at the time in question he or she has reason to know
3 that it exists.
4
5 A person "knows" or has "knowledge" of a fact when he or she
6 has actual knowledge of it. "Discover" or "learn" or a word or
7 phrase of similar import refers to knowledge rather than to
8 reason to know. The time and circumstances under which a
9 notice or notification may cease to be effective are not
10 determined by this code.
11 (26) A person "notifies" or "gives" a notice or
12 notification to another by taking such steps as may be
13 reasonably required to inform the other in ordinary course
14 whether or not such other actually comes to know of it. A
15 person "receives" a notice or notification when
16 (a) It comes to his or her attention; or
17 (b) It is duly delivered at the place of business
18 through which the contract was made or at any other place held
19 out by the person as the place for receipt of such
20 communications.
21 (27) Notice, knowledge or a notice or notification
22 received by an organization is effective for a particular
23 transaction from the time when it is brought to the attention
24 of the individual conducting that transaction, and in any
25 event from the time when it would have been brought to his or
26 her attention if the organization had exercised due diligence.
27 An organization exercises due diligence if it maintains
28 reasonable routines for communicating significant information
29 to the person conducting the transaction and there is
30 reasonable compliance with the routines. Due diligence does
31 not require an individual acting for the organization to
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1 communicate information unless such communication is part of
2 his or her regular duties or unless the individual has reason
3 to know of the transaction and that the transaction would be
4 materially affected by the information.
5 (25)(28) "Organization" means a person other than an
6 individual includes a corporation, government or governmental
7 subdivision or agency, business trust, estate, trust,
8 partnership or association, two or more persons having a joint
9 or common interest, or any other legal or commercial entity.
10 (26)(29) "Party," as distinguished distinct from
11 "third party," means a person who has engaged in a transaction
12 or made an agreement subject to within this code.
13 (27)(30) "Person" means includes an individual;
14 corporation; business trust; estate; trust; partnership;
15 limited liability company; association; joint venture;
16 government; governmental subdivision, agency, or
17 instrumentality; public corporation; or any other legal or
18 commercial entity or an organization (see s. 671.102).
19 (28) "Present value" means the amount as of a date
20 certain of one or more sums payable in the future, discounted
21 to the date certain by use of either an interest rate
22 specified by the parties if that rate is not manifestly
23 unreasonable at the time the transaction is entered into or,
24 if an interest rate is not so specified, a commercially
25 reasonable rate that takes into account the facts and
26 circumstances at the time the transaction is entered into.
27 (31) "Presumption" or "presumed" means that the trier
28 of fact must find the existence of the fact presumed unless
29 and until evidence is introduced which would support a finding
30 of its nonexistence.
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1 (29)(32) "Purchase" means includes taking by sale,
2 lease, discount, negotiation, mortgage, pledge, lien, security
3 interest, issue or reissue, gift, or any other voluntary
4 transaction creating an interest in property.
5 (30)(33) "Purchaser" means a person who takes by
6 purchase.
7 (31) "Record" means information that is inscribed on a
8 tangible medium or that is stored in an electronic or other
9 medium and is retrievable in perceivable form.
10 (32)(34) "Remedy" means any remedial right to which an
11 aggrieved party is entitled with or without resort to a
12 tribunal.
13 (33)(35) "Representative" means a person empowered to
14 act for another, including includes an agent, an officer of a
15 corporation or association, and a trustee, executor, or
16 administrator of an estate, or any other person empowered to
17 act for another.
18 (34)(36) "Right Rights" includes "remedy" remedies.
19 (35)(37) "Security interest" means an interest in
20 personal property or fixtures which secures payment or
21 performance of an obligation. "Security interest" The term
22 also includes any interest of a consignor and a buyer of
23 accounts, chattel paper, a payment intangible, or a promissory
24 note in a transaction that which is subject to chapter 679.
25 "Security interest" does not include the special property
26 interest of a buyer of goods on identification of those goods
27 to a contract for sale under s. 672.401 is not a security
28 interest, but a buyer may also acquire a security interest by
29 complying with chapter 679. Except as otherwise provided in s.
30 672.505, the right of a seller or lessor of goods under
31 chapter 672 or chapter 680 to retain or acquire possession of
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1 the goods is not a security interest, but a seller or lessor
2 may also acquire a security interest by complying with chapter
3 679. The retention or reservation of title by a seller of
4 goods, notwithstanding shipment or delivery to the buyer under
5 (s. 672.401), is limited in effect to a reservation of a
6 security interest. Whether a transaction in the form of a
7 lease creates a lease or security interest is determined by
8 the facts of each case; however:
9 (a) A transaction in the form of a lease creates a
10 security interest if the consideration that the lessee is to
11 pay the lessor for the right to possession and use of the
12 goods is an obligation for the term of the lease not subject
13 to termination by the lessee, and:;
14 1. The original term of the lease is equal to or
15 greater than the remaining economic life of the goods;
16 2. The lessee is bound to renew the lease for the
17 remaining economic life of the goods or is bound to become the
18 owner of the goods;
19 3. The lessee has an option to renew the lease for the
20 remaining economic life of the goods for no additional
21 consideration or nominal additional consideration upon
22 compliance with the lease agreement; or
23 4. The lessee has an option to become the owner of the
24 goods for no additional consideration or nominal additional
25 consideration upon compliance with the lease agreement.
26 (b) A transaction does not create a security interest
27 merely because it provides that:
28 1. The present value of the consideration the lessee
29 is obligated to pay the lessor for the right to possession and
30 use of the goods is substantially equal to or is greater than
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1 the fair market value of the goods at the time the lease is
2 entered into;
3 2. The lessee assumes the risk of loss of the goods or
4 agrees to pay taxes; insurance; filing, recording, or
5 registration fees; or service or maintenance costs with
6 respect to the goods;
7 3. The lessee agrees to pay, with respect to the
8 goods, taxes; insurance; filing, recording, or registration
9 fees; or service or maintenance costs;
10 4.3. The lessee has an option to renew the lease or to
11 become the owner of the goods;
12 5.4. The lessee has an option to renew the lease for a
13 fixed rent that is equal to or greater than the reasonably
14 predictable fair market rent for the use of the goods for the
15 term of the renewal at the time the option is to be performed;
16 or
17 6.5. The lessee has an option to become the owner of
18 the goods for a fixed price that is equal to or greater than
19 the reasonably predictable fair market value of the goods at
20 the time the option is to be performed.
21 (c) For purposes of this subsection:
22 1. Additional consideration is not nominal if it is
23 less than the lessee's reasonably predictable cost of
24 performing under the lease agreement if the option is not
25 exercised. Additional consideration is not nominal if:,
26 1. When the option to renew the lease is granted to
27 the lessee, the rent is stated to be the fair market rent for
28 the use of the goods for the term of the renewal determined at
29 the time the option is to be performed; or if,
30 2. When the option to become the owner of the goods is
31 granted to the lessee, the price is stated to be the fair
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1 market value of the goods determined at the time the option is
2 to be performed. Additional consideration is nominal if it is
3 less than the lessee's reasonably predictable cost of
4 performing under the lease agreement if the option is not
5 exercised.
6 (d)2. The "Reasonably predictable" and "remaining
7 economic life of the goods" and "reasonably predictable" fair
8 market rent, fair market value, or cost of performing under
9 the lease agreement must are to be determined with reference
10 to the facts and circumstances at the time the transaction is
11 entered into.
12 3. "Present value" means the amount as of a date
13 certain of one or more sums payable in the future, discounted
14 to the date certain. The discount is determined by the
15 interest rate specified by the parties if the rate is not
16 manifestly unreasonable at the time the transaction is entered
17 into; otherwise, the discount is determined by a commercially
18 reasonable rate that takes into account the facts and
19 circumstances of each case at the time the transaction was
20 entered into.
21 (36)(38) "Send," in connection with a any writing,
22 record, or notice, means:
23 (a) To deposit in the mail or deliver for transmission
24 by any other usual means of communication with postage or cost
25 of transmission provided for and properly addressed and, in
26 the case of an instrument, to an address specified thereon or
27 otherwise agreed, or, if there be none, to any address
28 reasonable under the circumstances; or.
29 (b) In any other way to cause to be received The
30 receipt of any record writing or notice within the time at
31
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1 which it would have arrived if properly sent has the effect of
2 a proper sending.
3 (37)(39) "Signed" means bearing includes any symbol
4 executed or adopted by a party with present intention to adopt
5 or accept authenticate a writing.
6 (38) "State" means a state of the United States, the
7 District of Columbia, Puerto Rico, the United States Virgin
8 Islands, or any territory or insular possession subject to the
9 jurisdiction of the United States.
10 (39)(40) "Surety" includes a guarantor or other
11 secondary obligor.
12 (41) "Telegram" includes a message transmitted by
13 radio, teletype, cable, any mechanical method of transmission,
14 or the like.
15 (40)(42) "Term" means a that portion of an agreement
16 which relates to a particular matter.
17 (41)(43) "Unauthorized" signature" means a signature
18 one made without actual, implied, or apparent authority. The
19 term and includes a forgery.
20 (44) "Value." Except as otherwise provided with
21 respect to negotiable instruments and bank collections (ss.
22 673.3031, 674.2101, and 674.2111), a person gives value for
23 rights if he or she acquires them:
24 (a) In return for a binding commitment to extend
25 credit or for the extension of immediately available credit
26 whether or not drawn upon and whether or not a charge-back is
27 provided for in the event of difficulties in collection;
28 (b) As security for or in total or partial
29 satisfaction of a preexisting claim;
30 (c) By accepting delivery pursuant to a preexisting
31 contract for purchase; or
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1 (d) Generally, in return for any consideration
2 sufficient to support a simple contract.
3 (42)(45) "Warehouse receipt" means a written receipt
4 or an electronic notification of receipt issued by a person
5 engaged in the business of storing goods for hire.
6 (43)(46) "Written" or "Writing" includes printing,
7 typewriting, or any other intentional reduction to tangible
8 form. "Written" has a corresponding meaning.
9 Section 9. Section 671.202, Florida Statutes, is
10 amended to read:
11 671.202 Prima facie evidence by third-party
12 documents.--A document in due form purporting to be a bill of
13 lading, policy or certificate of insurance, official weigher's
14 or inspector's certificate, consular invoice, or any other
15 document authorized or required by the contract to be issued
16 by a third party is shall be prima facie evidence of its own
17 authenticity and genuineness and of the facts stated in the
18 document by the third party.
19 Section 10. Section 671.203, Florida Statutes, is
20 amended to read:
21 671.203 Obligation of good faith.--Every contract or
22 duty within this code imposes an obligation of good faith in
23 its performance and or enforcement.
24 Section 11. Section 671.204, Florida Statutes, is
25 amended to read:
26 671.204 Actions taken within Time; reasonable time;
27 "seasonably."--
28 (1) Whether a time for taking an action required by
29 Whenever this code is requires any action to be taken within a
30 reasonable time, any time which is not manifestly unreasonable
31 may be fixed by agreement.
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1 (2) What is a reasonable time for taking any action
2 depends on the nature, purpose, and circumstances of the such
3 action.
4 (2)(3) An action is taken "seasonably" if when it is
5 taken at or within the time agreed or, if no time is agreed,
6 at or within a reasonable time.
7 Section 12. Section 671.205, Florida Statutes, is
8 amended to read:
9 671.205 Course of performance; course of dealing; and
10 usage of trade.--
11 (1) A "course of performance" is a sequence of conduct
12 between the parties to a particular transaction that exists
13 if:
14 (a) The agreement of the parties with respect to the
15 transaction involves repeated occasions for performance by a
16 party; and
17 (b) The other party, with knowledge of the nature of
18 the performance and opportunity for objection to it, accepts
19 the performance or acquiesces in it without objection.
20 (2)(1) A "course of dealing" is a sequence of previous
21 conduct concerning previous transactions between the parties
22 to a particular transaction which is fairly to be regarded as
23 establishing a common basis of understanding for interpreting
24 their expressions and other conduct.
25 (3)(2) A "usage of trade" is any practice or method of
26 dealing having such regularity of observance in a place,
27 vocation, or trade as to justify an expectation that it will
28 be observed with respect to the transaction in question. The
29 existence and scope of such a usage are to be proved as facts.
30 If it is established that such a usage is embodied in a
31 written trade code or similar record, writing the
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1 interpretation of the record writing is a question of law for
2 the court.
3 (4)(3) A course of performance or a course of dealing
4 between the parties or and any usage of trade in the vocation
5 or trade in which they are engaged or of which they are or
6 should be aware is relevant in ascertaining the give
7 particular meaning of the parties' to and supplement or
8 qualify terms of an agreement, may give particular meaning to
9 specific terms of the agreement, and may supplement or qualify
10 the terms of the agreement. A usage of trade applicable in the
11 place in which part of the performance under the agreement is
12 to occur may be so utilized as to that part of the
13 performance.
14 (5)(4) Except as otherwise provided in subsection (6),
15 the express terms of an agreement and any an applicable course
16 of performance, course of dealing, or usage of trade must
17 shall be construed whenever wherever reasonable as consistent
18 with each other. If; but when such a construction is
19 unreasonable:
20 (a) Express terms prevail over control both course of
21 performance, course of dealing, and usage of trade;
22 (b) Course of performance prevails over course of
23 dealing and usage of trade; and
24 (c) Course of dealing prevails over controls usage of
25 trade.
26 (6) A course of performance is relevant to show a
27 waiver or modification of any term inconsistent with the
28 course of performance.
29 (5) An applicable usage of trade in the place where
30 any part of performance is to occur shall be used in
31 interpreting the agreement as to that part of the performance.
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1 (7)(6) Evidence of a relevant usage of trade offered
2 by one party is not admissible unless that party and until he
3 or she has given the other party such notice that as the court
4 finds sufficient to prevent unfair surprise to the other party
5 latter.
6 Section 13. Section 671.206, Florida Statutes, is
7 repealed.
8 Section 14. Section 671.208, Florida Statutes, is
9 amended to read:
10 671.208 Option to accelerate at will.--A term
11 providing that one party or the party's successor in interest
12 may accelerate payment or performance or require collateral or
13 additional collateral "at will" or "when she or he deems
14 herself or himself insecure" or in words of similar import
15 must shall be construed to mean that she or he has shall have
16 power to do so only if she or he in good faith believes that
17 the prospect of payment or performance is impaired. The burden
18 of establishing lack of good faith is on the party against
19 whom the power has been exercised.
20 Section 15. Section 671.209, Florida Statutes, is
21 created to read:
22 671.209 Notice; knowledge.--
23 (1) Subject to subsection (6), a person has "notice"
24 of a fact if the person:
25 (a) Has actual knowledge of it;
26 (b) Has received a notice or notification of it; or
27 (c) From all the facts and circumstances known to the
28 person at the time in question, has reason to know that it
29 exists.
30 (2) "Knowledge" means actual knowledge. "Knows" has a
31 corresponding meaning.
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1 (3) "Discover," "learn," or words of similar import
2 refer to knowledge rather than to reason to know.
3 (4) A person "notifies" or "gives a notice or
4 notification to" another person by taking such steps as may be
5 reasonably required to inform the other person in ordinary
6 course, regardless of whether the other person actually comes
7 to know of it.
8 (5) Subject to subsection (6), a person "receives" a
9 notice or notification when:
10 (a) It comes to that person's attention; or
11 (b) It is duly delivered in a form reasonable under
12 the circumstances at the place of business through which the
13 contract was made or at another location held out by that
14 person as the place for receipt of such communications.
15 (6) Notice, knowledge, or a notice or notification
16 received by an organization is effective for a particular
17 transaction from the time it is brought to the attention of
18 the person conducting that transaction and, in any event, from
19 the time it would have been brought to the person's attention
20 if the organization had exercised due diligence. An
21 organization exercises due diligence if it maintains
22 reasonable routines for communicating significant information
23 to the person conducting the transaction and there is
24 reasonable compliance with the routines. Due diligence does
25 not require an individual acting for the organization to
26 communicate information unless the communication is part of
27 the individual's regular duties or the individual has reason
28 to know of the transaction and that the transaction would be
29 materially affected by the information.
30 Section 16. Section 671.21, Florida Statutes, is
31 created to read:
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1 671.21 Presumptions.--Whenever this code creates a
2 "presumption" with respect to a fact or provides that a fact
3 is "presumed," the trier of fact must find the existence of
4 the fact presumed unless evidence is introduced which supports
5 a finding of its nonexistence.
6 Section 17. Section 671.211, Florida Statutes, is
7 created to read:
8 671.211 Value.--Except as otherwise provided with
9 respect to negotiable instruments and bank collections as
10 provided in ss. 673.3031, 674.2101, and 674.2111, a person
11 gives value for rights if the person acquires them:
12 (1) In return for a binding commitment to extend
13 credit or for the extension of immediately available credit
14 whether or not drawn upon and whether or not a charge-back is
15 provided for in the event of difficulties in collection;
16 (2) As security for, or in total or partial
17 satisfaction of, a preexisting claim;
18 (3) By accepting delivery under a preexisting contract
19 for purchase; or
20 (4) In return for any consideration sufficient to
21 support a simple contract.
22 Section 18. Section 671.212, Florida Statutes, is
23 created to read:
24 671.212 Relation to Electronic Signatures in Global
25 and National Commerce Act.--This code modifies, limits, and
26 supersedes the federal Electronic Signatures in Global and
27 National Commerce Act, 15 U.S.C. ss. 7001 et seq., except that
28 nothing in this code modifies, limits, or supersedes 15 U.S.C.
29 s. 7001(c) or authorizes electronic delivery of any of the
30 notices described in 15 U.S.C. s. 7003(b).
31
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1 Section 19. Section 671.213, Florida Statutes, is
2 created to read:
3 671.213 Subordinated obligations.--An obligation may
4 be issued as subordinated to performance of another obligation
5 of the person obligated, or a creditor may subordinate its
6 right to performance of an obligation by agreement with either
7 the person obligated or another creditor of the person
8 obligated. Subordination does not create a security interest
9 as against either the common debtor or a subordinated
10 creditor.
11 Section 20. Subsection (2) of section 559.9232,
12 Florida Statutes, is amended to read:
13 559.9232 Definitions; exclusion of rental-purchase
14 agreements from certain regulations.--
15 (2) A rental-purchase agreement that complies with
16 this act shall not be construed to be, nor be governed by, any
17 of the following:
18 (a) A lease or agreement that which constitutes a
19 credit sale as defined in 12 C.F.R. s. 226.2(a)(16) and s.
20 1602(g) of the federal Truth in Lending Act, 15 U.S.C. ss.
21 1601 et seq.;
22 (b) A lease that which constitutes a "consumer lease"
23 as defined in 12 C.F.R. s. 213.2(a)(6);
24 (c) Any lease for agricultural, business, or
25 commercial purposes;
26 (d) Any lease made to an organization;
27 (e) A lease or agreement that which constitutes a
28 "retail installment contract" or "retail installment
29 transaction" as those terms are defined in s. 520.31; or
30 (f) A security interest as defined in s. 671.201(35)
31 s. 671.201(37).
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1 Section 21. Paragraph (g) of subsection (2) of section
2 563.022, Florida Statutes, is amended to read:
3 563.022 Relations between beer distributors and
4 manufacturers.--
5 (2) DEFINITIONS.--In construing this section, unless
6 the context otherwise requires, the word, phrase, or term:
7 (g) "Good faith" means honesty in fact in the conduct
8 or transaction concerned as defined and interpreted under s.
9 671.201(20) s. 671.201(19).
10 Section 22. Paragraph (b) of subsection (3) and
11 paragraph (d) of subsection (16) of section 668.50, Florida
12 Statutes, are amended to read:
13 668.50 Uniform Electronic Transaction Act.--
14 (3) SCOPE.--
15 (b) This section does not apply to a transaction to
16 the extent the transaction is governed by:
17 1. A provision of law governing the creation and
18 execution of wills, codicils, or testamentary trusts;
19 2. The Uniform Commercial Code other than s. ss.
20 671.107 and 671.206 and chapters 672 and 680;
21 3. The Uniform Computer Information Transactions Act;
22 or
23 4. Rules relating to judicial procedure.
24 (16) TRANSFERABLE RECORDS.--
25 (d) Except as otherwise agreed, a person having
26 control of a transferable record is the holder, as defined in
27 s. 671.201(21) s. 671.201(20), of the transferable record and
28 has the same rights and defenses as a holder of an equivalent
29 record or writing under the Uniform Commercial Code,
30 including, if the applicable statutory requirements under s.
31 673.3021, s. 677.501, or s. 679.308 are satisfied, the rights
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1 and defenses of a holder in due course, a holder to which a
2 negotiable document of title has been duly negotiated, or a
3 purchaser, respectively. Delivery, possession, and indorsement
4 are not required to obtain or exercise any of the rights under
5 this paragraph.
6 Section 23. Subsection (1) of section 670.106, Florida
7 Statutes, is amended to read:
8 670.106 Time payment order is received.--
9 (1) The time of receipt of a payment order or
10 communication canceling or amending a payment order is
11 determined by the rules applicable to receipt of a notice
12 stated in s. 671.209 s. 671.201(27). A receiving bank may fix
13 a cut-off time or times on a funds-transfer business day for
14 the receipt and processing of payment orders and
15 communications canceling or amending payment orders. Different
16 cut-off times may apply to payment orders, cancellations, or
17 amendments or to different categories of payment orders,
18 cancellations, or amendments. A cut-off time may apply to
19 senders generally, or different cut-off times may apply to
20 different senders or categories of payment orders. If a
21 payment order or communication canceling or amending a payment
22 order is received after the close of a funds-transfer business
23 day or after the appropriate cut-off time on a funds-transfer
24 business day, the receiving bank may treat the payment order
25 or communication as received at the opening of the next
26 funds-transfer business day.
27 Section 24. Subsection (2) of section 670.204, Florida
28 Statutes, is amended to read:
29 670.204 Refund of payment and duty of customer to
30 report with respect to unauthorized payment order.--
31
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1 (2) Reasonable time under subsection (1) may be fixed
2 by agreement as stated in s. 671.204(1), but the obligation of
3 a receiving bank to refund payment as stated in subsection (1)
4 may not otherwise be varied by agreement.
5 Section 25. Subsection (3) of section 675.102, Florida
6 Statutes, is amended to read:
7 675.102 Scope.--
8 (3) With the exception of this subsection, subsections
9 (1) and (4), ss. 675.103(1)(i) and (j), 675.106(4), and
10 675.114(4), and except to the extent prohibited in ss.
11 671.102(2) ss. 671.102(3) and 675.117(4), the effect of this
12 chapter may be varied by agreement or by a provision stated or
13 incorporated by reference in an undertaking. A term in an
14 agreement or undertaking generally excusing liability or
15 generally limiting remedies for failure to perform obligations
16 is not sufficient to vary obligations prescribed by this
17 chapter.
18 Section 26. Subsection (1) of section 679.525, Florida
19 Statutes, is amended to read:
20 679.525 Processing fees.--
21 (1) Except as otherwise provided in subsection (3),
22 the nonrefundable processing fee for filing and indexing a
23 record under this part, other than an initial financing
24 statement of the kind described in s. 679.5021(3), is:
25 (a) For filing an initial financing statement, $25 for
26 the first page, which shall include the cost of filing a
27 termination statement for the financing statement;
28 (b) For filing an amendment, $12 for the first page;
29 (c) For indexing by additional debtor, secured party,
30 or assignee, $3 per additional name indexed;
31 (d) For use of a nonapproved form, $5;
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1 (e) For each additional page attached to a record, $3;
2 (f) For filing a financing statement communicated by
3 an electronic filing process authorized by the filing office,
4 $15 with no additional fees for multiple names or attached
5 pages;
6 (g) For filing an amendment communicated by an
7 electronic filing process authorized by the filing office, $5
8 with no additional fees for multiple names or attached pages;
9 (f)(h) For a certified copy of a financing statement
10 and any and all associated amendments, $30; and
11 (g)(i) For a photocopy of a filed record, $1 per page.
12 Section 27. Subsection (2) of section 680.518, Florida
13 Statutes, is amended to read:
14 680.518 Cover; substitute goods.--
15 (2) Except as otherwise provided with respect to
16 damages liquidated in the lease agreement (s. 680.504) or
17 otherwise determined pursuant to agreement of the parties (ss.
18 671.102(2) ss. 671.102(3) and 680.503), if a lessee's cover is
19 by lease agreement substantially similar to the original lease
20 agreement and the new lease agreement is made in good faith
21 and in a commercially reasonable manner, the lessee may
22 recover from the lessor as damages:
23 (a) The present value, as of the date of the
24 commencement of the term of the new lease agreement, of the
25 rent under the new lease agreement and applicable to that
26 period of the new lease term which is comparable to the then
27 remaining term of the original lease agreement minus the
28 present value as of the same date of the total rent for the
29 then remaining lease term of the original lease agreement; and
30 (b) Any incidental or consequential damages, less
31 expenses saved in consequence of the lessor's default.
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1 Section 28. Subsection (1) of section 680.519, Florida
2 Statutes, is amended to read:
3 680.519 Lessee's damages for nondelivery, repudiation,
4 default, or breach of warranty in regard to accepted goods.--
5 (1) Except as otherwise provided with respect to
6 damages liquidated in the lease agreement (s. 680.504) or
7 otherwise determined pursuant to agreement of the parties (ss.
8 671.102(2) ss. 671.102(3) and 680.503), if a lessee elects not
9 to cover or a lessee elects to cover and the cover is by lease
10 agreement, whether or not the lease agreement qualifies for
11 treatment under s. 680.518(2), or is by purchase or otherwise,
12 the measure of damages for nondelivery or repudiation by the
13 lessor or for rejection or revocation of acceptance by the
14 lessee is the present value, as of the date of the default, of
15 the then market rent minus the present value as of the same
16 date of the original rent, computed for the remaining lease
17 term of the original lease agreement, together with incidental
18 and consequential damages, less expenses saved in consequence
19 of the lessor's default.
20 Section 29. Subsection (2) of section 680.527, Florida
21 Statutes, is amended to read:
22 680.527 Lessor's rights to dispose of goods.--
23 (2) Except as otherwise provided with respect to
24 damages liquidated in the lease agreement (s. 680.504) or
25 otherwise determined pursuant to agreement of the parties (ss.
26 671.102(2) ss. 671.102(3) and 680.503), if the disposition is
27 by lease agreement substantially similar to the original lease
28 agreement and the new lease agreement is made in good faith
29 and in a commercially reasonable manner, the lessor may
30 recover from the lessee as damages:
31
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1 (a) Accrued and unpaid rent as of the date of the
2 commencement of the term of the new lease agreement;
3 (b) The present value, as of the same date, of the
4 commencement of the term of the new lease agreement of the
5 total rent for the then remaining lease term of the original
6 lease agreement minus the present value, as of the same date,
7 of the rent under the new lease agreement applicable to that
8 period of the new lease term which is comparable to the then
9 remaining term of the original lease agreement; and
10 (c) Any incidental damages allowed under s. 680.53,
11 less expenses saved in consequence of the lessee's default.
12 Section 30. Subsection (1) of section 680.528, Florida
13 Statutes, is amended to read:
14 680.528 Lessor's damages for nonacceptance or
15 repudiation.--
16 (1) Except as otherwise provided with respect to
17 damages liquidated in the lease agreement (s. 680.504) or
18 otherwise determined pursuant to agreement of the parties (ss.
19 671.102(2) ss. 671.102(3) and 580.503), if a lessor elects to
20 retain the goods or a lessor elects to dispose of the goods
21 and the disposition is by lease agreement that for any reason
22 does not qualify for treatment under s. 680.527(2), or is by
23 sale or otherwise, the lessor may recover from the lessee as
24 damages a default of the type described in s. 680.523(1) or
25 (3)(a), or if agreed, for other default of the lessee:
26 (a) Accrued and unpaid rent as of the date of default
27 if the lessee has never taken possession of the goods, or, if
28 the lessee has taken possession of the goods, as of the date
29 the lessor repossesses the goods or an earlier date on which
30 the lessee makes a tender of the goods to the lessor.
31
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1 (b) The present value as of the date determined under
2 paragraph (a) of the total rent for the then remaining lease
3 term of the original lease agreement minus the present value
4 as of the same date of the market rent at the place where the
5 goods were located on that date computed for the same lease
6 term.
7 (c) Any incidental damages allowed under s. 680.53,
8 less expenses saved in consequence of the lessee's default.
9 Section 31. Subsection (6) of section 713.901, Florida
10 Statutes, is amended to read:
11 713.901 Florida Uniform Federal Lien Registration
12 Act.--
13 (6) FEES.--
14 (a) The charges or fees of the Secretary of State,
15 with respect to a notice or certificate filed under this
16 section, or for searching records with respect thereto, are:
17 1. For filing a notice of lien, which fee shall
18 include the cost of filing a certificate of release or
19 nonstatement for said notice of lien, $25.
20 2. For indexing of each additional debtor or secured
21 party, $3.
22 3. For each additional facing page attached to a
23 notice or certificate, $3.
24 4. For use of a nonapproved form, $5.
25 5. For filing a certificate of discharge or
26 subordination, $12.
27 6. For filing a refiled notice of federal lien, $12.
28 7. For filing any other document required or permitted
29 to be filed under this act, $12.
30 8. For certifying any record, $10 shall be the same as
31 prescribed in s. 15.091.
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1 (b) The charges or fees of the clerks of the circuit
2 court with respect to a notice or certificate filed under this
3 section shall be the same as prescribed in s. 28.24, relating
4 to instruments recorded in the official records.
5 Section 32. This act shall take effect January 1,
6 2008.
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