House Bill 1721e1

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                                   CS/HB 1721, First Engrossed/ntc



  1                      A bill to be entitled

  2         An act relating to tobacco settlement proceeds;

  3         providing legislative intent; creating s.

  4         215.5600, F.S.; providing definitions; creating

  5         the Tobacco Settlement Financing Corporation;

  6         providing purposes; providing for a governing

  7         board of directors; providing for membership;

  8         providing powers of the corporation;

  9         authorizing the corporation to enter into

10         certain purchase agreements with the Department

11         of Banking and Finance for certain purposes;

12         authorizing the corporation to issue bonds for

13         certain purposes; providing requirements,

14         limitations, and procedures for issuing such

15         bonds; providing application; providing

16         limitations; limiting liability of the

17         corporation; exempting the corporation from

18         taxation; providing for continued existence of

19         the corporation; authorizing the Auditor

20         General to conduct financial audits of the

21         corporation; providing severability; specifying

22         powers of the Department of Banking and

23         Finance; amending s. 17.41, F.S.; revising

24         provisions relating to deposit into and

25         disbursement of moneys from the Tobacco

26         Settlement Clearing Trust Fund; authorizing

27         sale of the state's right, title, and interest

28         in the tobacco settlement agreement to the

29         corporation; providing for payment of certain

30         moneys into the Tobacco Settlement Clearing

31         Trust Fund; providing for deposit of net


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                                   CS/HB 1721, First Engrossed/ntc



  1         proceeds of the sale of the tobacco settlement

  2         agreement into the Lawton Chiles Endowment

  3         Fund; amending s. 215.5601, F.S.; providing for

  4         additional funding of the Lawton Chiles

  5         Endowment Fund; revising provisions relating to

  6         transfer of endowment moneys; clarifying

  7         administration of the endowment; providing for

  8         receipt by the endowment of minimum amounts in

  9         certain fiscal years; providing an effective

10         date.

11

12         WHEREAS, the State of Florida is dependent upon future

13  payments from the tobacco industry pursuant to a 1997 lawsuit

14  settlement, and

15         WHEREAS, it has been determined that the settlement

16  proceeds shall be used to provide a perpetual source of

17  funding for health and human service programs for Florida's

18  disabled, children, and elderly, and

19         WHEREAS, there is considerable uncertainty as to the

20  amount of future payments under the settlement agreement and

21  the future ability of the tobacco industry to make the

22  payments required by the lawsuit settlement, and

23         WHEREAS, future funding for vital services to Florida's

24  most vulnerable citizens can be secured by selling a portion

25  of the state's right, title, and interest in and to the

26  tobacco settlement payments and depositing the sale proceeds

27  into the Lawton Chiles Endowment Fund to earn interest, NOW,

28  THEREFORE,

29

30  Be It Enacted by the Legislature of the State of Florida:

31


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                                   CS/HB 1721, First Engrossed/ntc



  1         Section 1.  Legislative intent.--The Legislature

  2  intends to insulate future funding for health care programs

  3  for children and the elderly from the risk of nonpayment of

  4  amounts due under the tobacco settlement agreement.  The

  5  Legislature therefore intends to transfer said risk via the

  6  sale of any or all of the state's right, title, and interest

  7  in and to the tobacco settlement payments to a nonprofit

  8  corporate entity.

  9         Section 2.  Section 215.5600, Florida Statutes, is

10  created to read:

11         215.5600  Tobacco Settlement Financing Corporation.--

12         (1)  DEFINITIONS.--As used in this section:

13         (a)  "Bond" means any bond, debenture, note,

14  certificate, or other obligation of financial indebtedness

15  issued by the corporation under this section.

16         (b)  "Corporation" means the Tobacco Settlement

17  Financing Corporation created by this section.

18         (c)  "Department" means the Department of Banking and

19  Finance or its successor.

20         (d)  "Purchase agreement" means a contract between the

21  corporation and the State of Florida, acting by and through

22  the department, in which the State of Florida sells to the

23  corporation any or all of the state's right, title, and

24  interest in and to the tobacco settlement agreement,

25  including, but not limited to, the moneys to be received

26  thereunder.

27         (e)  "State" means the State of Florida.

28         (f)  "Tobacco settlement agreement" means the

29  settlement agreement, as amended, entered into by the state

30  and participating cigarette manufacturers in settlement of

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                                   CS/HB 1721, First Engrossed/ntc



  1  State of Florida v. American Tobacco Co., No. 95-1466AH (Fla.

  2  15th Cir. Ct. 1996).

  3         (2)(a)  CORPORATION CREATION AND AUTHORITY.--The

  4  Tobacco Settlement Financing Corporation is hereby created as

  5  a special purpose, not-for-profit, public benefits

  6  corporation, for the purpose of purchasing any or all of the

  7  state's right, title, and interest in and to the tobacco

  8  settlement agreement and issuing bonds to pay the purchase

  9  price therefor which shall be used to provide funding for the

10  Lawton Chiles Endowment Fund.  The corporation is authorized

11  to purchase any or all of the state's right, title, and

12  interest in and to the tobacco settlement agreement and to

13  issue bonds to pay the purchase price therefor.  The proceeds

14  derived by the state from the sale of any or all of the

15  state's right, title, and interest in and to the tobacco

16  settlement agreement shall be used to fund the Lawton Chiles

17  Endowment Fund.  The fulfillment of the purposes of the

18  corporation promotes the health, safety, and general welfare

19  of the people of this state and serves essential governmental

20  functions and a paramount public purpose.

21         (b)  The corporation shall be governed by a board of

22  directors consisting of the Governor, the Treasurer, the

23  Comptroller, the Attorney General, two directors appointed

24  from the membership of the Senate by the President of the

25  Senate, and two directors appointed from the membership of the

26  House of Representatives by the Speaker of the House of

27  Representatives.  On January 7, 2003, the board shall include

28  the Chief Financial Officer or the Chief Financial Officer's

29  designee, in place of the Treasurer and the Comptroller or

30  their designees. The executive director of the State Board of

31  Administration shall be the chief executive officer of the


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                                   CS/HB 1721, First Engrossed/ntc



  1  corporation and shall direct and supervise the administrative

  2  affairs and operation of the corporation.  The corporation

  3  shall also have such other officers as may be determined by

  4  the board of directors.

  5         (c)  The corporation shall have all the powers of a

  6  corporate body under the laws of this state, including, but

  7  not limited to, the powers of corporations under chapter 617,

  8  to the extent not inconsistent with or restricted by the

  9  provisions of this section, including, but not limited to, the

10  power to:

11         1.  Adopt, amend, and repeal bylaws not inconsistent

12  with this section.

13         2.  Sue and be sued.

14         3.  Adopt and use a common seal.

15         4.  Acquire, purchase, hold, lease, and convey real and

16  personal property, contract rights, general intangibles,

17  revenues, moneys, and accounts as may be proper or expedient

18  to carry out the purposes of the corporation and this section,

19  and to assign, convey, sell, transfer, lease, or otherwise

20  dispose of such property.

21         5.  Elect or appoint and employ such officers, agents,

22  and employees as the corporation deems advisable to operate

23  and manage the affairs of the corporation, which officers,

24  agents, and employees may be employees of this state or of the

25  state officers and agencies represented on the board of

26  directors of the corporation.

27         6.  Make and execute any and all contracts, trust

28  agreements, trust indentures, and other instruments and

29  agreements necessary or convenient to accomplish the purposes

30  of the corporation and this section, including but not limited

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                                   CS/HB 1721, First Engrossed/ntc



  1  to investment contracts, swap agreements, liquidity facilities

  2  or the purchase of insurance or reinsurance products.

  3         7.  Select, retain, and employ professionals,

  4  contractors, or agents, which may include the Division of Bond

  5  Finance of the State Board of Administration, as necessary or

  6  convenient to enable or assist the corporation in carrying out

  7  the purposes of the corporation.

  8         8.  Do any act or thing necessary or convenient to

  9  carry out the purposes of the corporation.

10         (d)  The corporation is authorized to enter into one or

11  more purchase agreements with the department pursuant to which

12  the corporation purchases any or all of the state's right,

13  title, and interest in and to the tobacco settlement agreement

14  and to execute and deliver any other documents necessary or

15  desirable to effectuate such purchase.  The tobacco settlement

16  agreement moneys received pursuant to the purchase agreements

17  may be used for the costs and expenses of administration of

18  the corporation.

19         (e)1.  The corporation may issue bonds payable from and

20  secured by amounts payable to the corporation pursuant to the

21  tobacco settlement agreement. In addition, the corporation is

22  authorized to issue bonds to refund previously issued bonds

23  and to deposit the proceeds of such bonds as provided in the

24  documents authorizing the issuance of such bonds.  The

25  corporation is authorized to do all things necessary or

26  desirable in connection with the issuance of the bonds,

27  including, but not limited to, establishing debt service

28  reserves or other additional security for the bonds, providing

29  for capitalized interest, and executing and delivering any and

30  all documents and agreements.  The total principal amount of

31  bonds issued by the corporation shall not exceed $3.0 billion.


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                                   CS/HB 1721, First Engrossed/ntc



  1  The principal amount of bonds issued in any single fiscal year

  2  shall not exceed $1.5 billion, beginning with the 2000-2001

  3  fiscal year.  The limitation on the principal amount of bonds

  4  issued by the corporation shall not apply to bonds issued to

  5  refund previously issued bonds.  No series of bonds issued

  6  shall have a true interest cost rate of more than 4 percent

  7  over the yield on U.S. Treasury obligations which have a

  8  maturity approximately equal to the average life of such

  9  series of bonds.  Satisfaction of the foregoing interest rate

10  limitation shall be determined on the date such bonds are sold

11  or a definitive agreement to sell such bonds at specified

12  prices or yields is executed and delivered.  The corporation

13  may sell bonds through competitive bidding or negotiated

14  contracts, whichever method of sale is determined by the

15  corporation to be in the best interest of the corporation.

16         2.  The corporation does not have the power to pledge

17  the credit, the general revenues, or the taxing power of the

18  state or of any political subdivision of the state. The

19  obligations of the department and the corporation under the

20  purchase agreement and under any bonds shall not constitute a

21  general obligation of the state or a pledge of the faith and

22  credit or taxing power of the state.  The bonds shall be

23  payable from and secured by payments received under the

24  tobacco settlement agreement and neither the state nor any of

25  its agencies shall have any liability on such bonds.  Such

26  bonds shall not be construed in any manner as an obligation of

27  the state or any agency of the state, the department, the

28  State Board of Administration or entities for which the State

29  Board of Administration invests funds, or board members or

30  their respective agencies.

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                                   CS/HB 1721, First Engrossed/ntc



  1         3.  The corporation may validate any bonds issued

  2  pursuant to this paragraph and the security for payment for

  3  such bonds, as provided in chapter 75. The validation

  4  complaint shall be filed only in the circuit court for Leon

  5  County. The notice required under s. 75.06 shall be published

  6  in Leon County and the complaint and order of the circuit

  7  court shall be served only on the State Attorney for the

  8  Second Judicial Circuit. The provisions of ss. 75.04(2) and

  9  75.06(2) shall not apply to a validation complaint filed as

10  authorized in this paragraph. The validation of the first

11  bonds issued pursuant to this paragraph may be appealed to the

12  Supreme Court and such appeal shall be handled on an expedited

13  basis.

14         4.  The state hereby covenants with the holders of

15  bonds of the corporation that the state will not limit or

16  alter the authority or the rights under this section vested in

17  the corporation to fulfill the terms of any agreement,

18  including the terms of any purchase agreement, or in any way

19  impair the rights and remedies of such bondholders until at

20  least one year and one day after which no such bonds remain

21  outstanding unless adequate provision has been made for the

22  payment of such bonds pursuant to the documents authorizing

23  such bonds.

24         5.  The corporation shall not take any action which

25  will materially and adversely affect the rights of holders of

26  any bonds issued under this paragraph as long as such bonds

27  are outstanding.

28         6.  Until at least one year and one day after which no

29  bonds of the corporation remain outstanding, the corporation

30  shall not have the authority to file a voluntary petition

31  under chapter 9 of the federal Bankruptcy Code or such


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                                   CS/HB 1721, First Engrossed/ntc



  1  corresponding chapter or sections as may be in effect, from

  2  time to time, and neither any public officer nor any

  3  organization, entity, or other person shall authorize the

  4  corporation to be or become a debtor under chapter 9 of the

  5  federal Bankruptcy Code or such corresponding chapter or

  6  sections as may be in effect, from time to time, during any

  7  such period. The state hereby covenants with the holders of

  8  bonds of the corporation that the state will not limit or

  9  alter the denial of authority to file bankruptcy under this

10  paragraph until at least one year and one day after which no

11  bonds of the corporation remain outstanding.

12         7.  The corporation may contract with the State Board

13  of Administration to serve as trustee with respect to bonds

14  issued by the corporation as provided by this paragraph and to

15  hold, administer, and invest proceeds of such bonds and other

16  funds of the corporation and to perform other services

17  required by the corporation.  The State Board of

18  Administration may perform such services and may contract with

19  others to provide all or a part of such services and to

20  recover the costs and expenses of providing such services.

21         (f)  Notwithstanding any other provision of law, any

22  pledge of or other security interest in revenues, moneys,

23  accounts, contract rights, general intangibles, or other

24  personal property made or created by the corporation or

25  department resulting from the authority of this section shall

26  be valid, binding, and perfected from the time such pledge is

27  made or other security interest attaches without any physical

28  delivery of the collateral or further act, and the lien of any

29  such pledge or other security interest shall be valid,

30  binding, and perfected against all parties having claims of

31  any kind in tort, contract, or otherwise against the


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                                   CS/HB 1721, First Engrossed/ntc



  1  corporation irrespective of whether such parties have notice

  2  of such claims.  No instrument by which such a pledge or

  3  security interest is created or any financing statement need

  4  be recorded or filed.

  5         (g)  The corporation shall not be deemed to be a

  6  special district for purposes of chapter 189 or a unit of

  7  local government for purposes of part III of chapter 218.  The

  8  provisions of chapter 120, part I of chapter 287, and ss.

  9  215.57-215.83 shall not apply to this section, the corporation

10  created in this section, the purchase agreements entered into

11  pursuant to this section, or bonds issued by the corporation

12  as provided in this section, except that underwriters,

13  financial advisors, and legal counsel shall be selected in a

14  manner consistent with the rules adopted pursuant to the State

15  Bond Act for the selection of service providers and

16  underwriters.

17         (h)  In no event shall any of the benefits or earnings

18  of the corporation inure to the benefit of any private person.

19         (i)  There shall be no liability on the part of, and no

20  cause of action shall arise against, any board member of the

21  corporation or any employee of the corporation or the state

22  for any actions taken by such board member or employee in the

23  performance of his or her duties under this section.

24         (j)  The corporation is exempt from taxation and

25  assessments of any nature whatsoever upon the income of the

26  corporation and any property, assets, or revenues acquired,

27  received, or used in the furtherance of the purposes provided

28  in this section.

29         (k)  The corporation and its corporate existence shall

30  continue until terminated by law; however, no such law shall

31  take effect until at least one year and one day after which no


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                                   CS/HB 1721, First Engrossed/ntc



  1  bonds of the corporation remain outstanding unless adequate

  2  provision has been made for the payment of such bonds pursuant

  3  to the documents authorizing the issuance of such bonds.  Upon

  4  termination of the existence of the corporation, all rights

  5  and properties of the corporation in excess of obligations of

  6  the corporation shall pass to and be vested in the Lawton

  7  Chiles Endowment Fund.

  8         (l)  The Auditor General may conduct financial audits

  9  of the accounts and records of the corporation.

10         (m)  If any provision of this section or its

11  application to any person or circumstance is held invalid, the

12  invalidity shall not affect other provisions or applications

13  of this section which can be given effect without the invalid

14  provision or application, and under such circumstances the

15  provisions of this section are declared severable.

16         (3)  POWERS OF THE DEPARTMENT.--

17         (a)  The department is authorized, on behalf of the

18  state, to do all things necessary or desirable to assist the

19  corporation in the execution of the corporation's

20  responsibilities, including, but not limited to, entering into

21  one or more purchase agreements to sell to the corporation any

22  or all of the state's right, title, and interest in and to the

23  tobacco settlement agreement; executing any administrative

24  agreements with the corporation to fund the administration,

25  operation, and expenses of the corporation from moneys

26  appropriated for such purpose; and executing and delivering

27  any and all other documents and agreements necessary or

28  desirable in connection with the sale of any or all of the

29  state's right, title, and interest in and to the tobacco

30  settlement agreement to the corporation or the issuance of the

31  bonds by the corporation.


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                                   CS/HB 1721, First Engrossed/ntc



  1         (b)  The state hereby covenants with the holders of

  2  bonds of the corporation that the state will not limit or

  3  alter the authority or the rights under this section vested in

  4  the department to fulfill the terms of any agreement,

  5  including the terms of any purchase agreement, or in any way

  6  impair the rights and remedies of such bondholders until at

  7  least one year and one day after which no such bonds remain

  8  outstanding unless adequate provision has been made for the

  9  payment of such bonds pursuant to the documents authorizing

10  such bonds.

11         (c)  The department is authorized, on behalf of the

12  state, to make any covenant, representation, or warranty

13  necessary or desirable in connection with the sale of any or

14  all of the state's right, title, and interest in and to the

15  tobacco settlement agreement to the corporation or the

16  issuance of the bonds by the corporation. Such covenants may

17  specifically include a covenant to take whatever actions are

18  necessary on behalf of the corporation or holders of the bonds

19  issued by the corporation to enforce the provisions of the

20  tobacco settlement agreement, and any rights and remedies

21  thereunder. Nothing in this act shall be construed to bind or

22  in any way restrict the legislature by a contract or other

23  agreement entered into by the corporation pursuant to this

24  act.

25         Section 3.  Section 17.41, Florida Statutes, is amended

26  to read:

27         17.41  Department of Banking and Finance Tobacco

28  Settlement Clearing Trust Fund.--

29         (1)  The Department of Banking and Finance Tobacco

30  Settlement Clearing Trust Fund is created within that

31  department.


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                                   CS/HB 1721, First Engrossed/ntc



  1         (2)  Funds to be credited to the Tobacco Settlement

  2  Clearing Trust Fund shall consist of all annual payments

  3  received by the state from settlement of State of Florida v.

  4  American Tobacco Co., No. 95-1466AH (Fla. 15th Cir. Ct. 1996).

  5  All Moneys received from the settlement and shall be deposited

  6  into the trust fund and are exempt from the service charges

  7  imposed under s. 215.20.

  8         (3)(a)  All or any portion of the state's right, title,

  9  and interest in and to the tobacco settlement agreement may be

10  sold to the Tobacco Settlement Financing Corporation, created

11  pursuant to s. 215.5600.  Any such sale shall be a true sale

12  and not a borrowing.

13         (b)  Any moneys received by the state pursuant to any

14  residual interest retained in the tobacco settlement agreement

15  or the payments to be made under the tobacco settlement

16  agreement shall be deposited into the Tobacco Settlement

17  Clearing Trust Fund.

18         (4)  Net proceeds of the sale of the tobacco settlement

19  agreement received by the state shall be immediately deposited

20  into the Lawton Chiles Endowment Fund, created in s.

21  215.5601(4), without deposit to the Tobacco Settlement

22  Clearing Trust Fund.

23         (3)  The State Board of Administration shall invest and

24  reinvest the moneys in the trust fund in accordance with ss.

25  215.44-215.53. Costs and fees of the State Board of

26  Administration for providing such investment services shall be

27  deducted from the earnings accruing to the trust fund.

28         (5)(4)  The department shall disburse funds, by

29  nonoperating transfer, from the Tobacco Settlement Clearing

30  Trust Fund to the tobacco settlement trust funds of the

31  various agencies in amounts equal to the annual appropriations


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                                   CS/HB 1721, First Engrossed/ntc



  1  made from those agencies' trust funds in the General

  2  Appropriations Act.

  3         (6)(5)  Pursuant to the provisions of s. 19(f)(3), Art.

  4  III of the State Constitution, the Tobacco Settlement Clearing

  5  Trust Fund is exempt from the termination provisions of s.

  6  19(f)(2), Art. III of the State Constitution.

  7         Section 4.  Paragraphs (a), (b), and (f) of subsection

  8  (4), paragraphs (d) and (e) of subsection (5), and subsection

  9  (7) of section 215.5601, Florida Statutes, are amended to

10  read:

11         215.5601  Lawton Chiles Endowment Fund.--

12         (4)  LAWTON CHILES ENDOWMENT FUND; CREATION; PURPOSES

13  AND USES.--

14         (a)  There is created the Lawton Chiles Endowment Fund,

15  to be administered by the State Board of Administration. The

16  endowment shall serve as a clearing trust fund not subject to

17  termination pursuant to s. 19(f), Art. III of the State

18  Constitution and shall be funded by settlement moneys received

19  from the tobacco industry and by moneys received from the sale

20  of the state's right, title, and interest in and to the

21  tobacco settlement agreement, including the right to receive

22  payments under such agreement. The endowment fund shall be

23  exempt from the service charges imposed by s. 215.20.

24         (b)  Funds from the endowment shall be transferred

25  distributed by the board to the Tobacco Settlement Clearing

26  Trust Fund, created in s. 17.41, trust funds of the state

27  agencies in the amounts indicated by reference to the

28  legislative appropriations for the state agencies, except as

29  otherwise provided in this section.

30         (f)  When advised by the Revenue Estimating Conference

31  that a deficit will occur with respect to the appropriations


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                                   CS/HB 1721, First Engrossed/ntc



  1  from the tobacco settlement trust funds of the state agencies

  2  Tobacco Settlement Trust Fund in any fiscal year, the Governor

  3  shall develop a plan of action to eliminate the deficit.

  4  Before implementing the plan of action, the Governor must

  5  comply with the provisions of s. 216.177(2). In developing the

  6  plan of action, the Governor shall, to the extent possible,

  7  preserve legislative policy and intent, and, absent any

  8  specific directions to the contrary in the General

  9  Appropriations Act, any reductions in appropriations from the

10  tobacco settlement trust funds of the state agencies Tobacco

11  Settlement Trust Fund for a fiscal year shall be prorated

12  among the purposes for which funds were appropriated from the

13  Tobacco Settlement Trust Fund for that year.

14         (5)  ADMINISTRATION OF THE ENDOWMENT.--

15         (d)  No later than August 15 and February 15 of each

16  year, 2000, the board shall report on the financial status of

17  the endowment to the Governor, the Speaker of the House of

18  Representatives, the President of the Senate, the chairs of

19  the respective appropriations and appropriate substantive

20  committees of each chamber, and the Revenue Estimating

21  Conference. Thereafter, the board shall make a status report

22  to such persons no later than August 15 and February 15 of

23  each year.

24         (e)  Accountability for funds from the endowment which

25  have been appropriated to a state agency and distributed by

26  the board shall reside with the state agency. The board is not

27  responsible for the proper expenditure or accountability of

28  funds from the endowment after transfer distribution to the

29  Tobacco Settlement Clearing Trust Fund a state agency.

30         (7)  ENDOWMENT PRINCIPAL; APPROPRIATION OF

31  EARNINGS.--The endowment shall receive moneys from the sale of


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                                   CS/HB 1721, First Engrossed/ntc



  1  the state's right, title, and interest in and to the tobacco

  2  settlement agreement and from following amounts are

  3  appropriated transferred from the Department of Banking and

  4  Finance Tobacco Settlement Clearing Trust Fund.  Amounts to be

  5  transferred from the clearing trust fund shall be in the

  6  following amounts for the following fiscal years to the Lawton

  7  Chiles Endowment Fund for Health and Human Services:

  8         (a)  For fiscal year 1999-2000, $1.1 billion;

  9         (b)  For fiscal year 2000-2001, $200 million;

10         (c)  For fiscal year 2001-2002, $200 million; and

11         (d)  For fiscal year 2002-2003, $200 million.

12  Amounts to be transferred pursuant to paragraphs (b), (c), and

13  (d) shall be reduced by an amount equal to the lesser of $200

14  million or the amount the endowment receives in that fiscal

15  year pursuant to the sale of the state's right, title, and

16  interest in and to the tobacco settlement agreement.

17         Section 5.  This act shall take effect upon becoming a

18  law.

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