SB178 INTR

Senate Bill No. 178

(By Senators Tomblin (Mr. President) and Sprouse

By Request of the Executive)
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[Introduced January 11, 2002; referred to the Committee

on Finance.]
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A BILL to amend and reenact sections one, two and three, article eleven-a, chapter four of the code of West Virginia, one thousand nine hundred thirty-one, as amended; and to further amend said article by adding thereto sixteen new sections, designated sections six through twenty-one, inclusive, all relating to legislative appropriation of tobacco settlement funds; setting forth legislative findings and purposes; receipt of settlement funds and required deposit in West Virginia tobacco settlement medical trust fund; receipt of settlement funds and required deposit in the West Virginia tobacco settlement fund; creation of tobacco settlement authority and providing for general powers; establishing governing board of authority; defining staff of the authority; limitation of liability; providing certain definitions; authorizing sale of rights in a master settlement agreement; authorization of bonds of the authority; providing for the establishment of a tobacco settlement endowment fund and for the investment of funds therein; creating a tobacco settlement debt service fund; providing an exemption from state purchasing provisions; providing for the delivery of an annual report by the authority to the governor; providing bankruptcy provisions; establishing the dissolution of the authority; severability of sections; and construction of article.

Be it enacted by the Legislature of West Virginia:

That sections one, two and three, article eleven-a, chapter four of the code of West Virginia, one thousand nine hundred thirty-one, as amended, be amended and reenacted; and that said article be further amended by adding thereto sixteen new sections, designated sections six through twenty-one, inclusive, all to read as follows:
ARTICLE 11A. LEGISLATIVE APPROPRIATION OF TOBACCO SETTLEMENT FUNDS; CREATION OF TOBACCO SETTLEMENT AUTHORITY.

§4-11A-1. Legislative findings and purpose.
(a) On the twenty-third day of November, one thousand nine hundred ninety-eight, tobacco product manufacturers entered into a settlement agreement with the state. This "master settlement agreement" releases those manufacturers from past, present and specific future claims against them in return for payment of annual sums of money to the state, obligates the manufacturers to change their advertising and marketing practices, and requires the establishment by the manufacturers of a national foundation for the interests of public health.

(b) The revenues received pursuant to the master settlement agreement are directly related to the past, present and future costs incurred by the state for the treatment of tobacco-related illnesses. The purpose of this article is to preserve the revenues received from the settlement.

(c) The receipt of funds in accordance with the master settlement agreement shall be deposited only in accordance with the provisions of this article.

(d) West Virginia receives approximately seventy million dollars in revenue each year under the terms of the master settlement agreement with the tobacco manufacturers. The revenue is used to fund programs of vital importance to the people of West Virginia, and the Legislature finds that it is in the best interest of the people of this state to protect these revenues.

(e) The sale of a portion of such revenues, the issuance of bonds payable therefrom and the establishment of a permanent endowment fund with proceeds of such bonds to provide funding for programs of vital importance to the people of West Virginia is in the best interest of the people of this state.
§4-11A-2. Receipt of settlement funds and required deposit in West Virginia tobacco settlement medical trust fund.

(a) The Legislature finds and declares that certain dedicated revenues should be preserved in trust for the purpose of stabilizing the states health related programs and delivery systems. It further finds and declares that these dedicated revenues should also be preserved in trust for the purpose of educating the public about the health risks associated with tobacco usage and for the establishment of a program designed to reduce and stop the use of tobacco by the citizens of this state and in particular by teenagers.

(b) There is hereby created a special account in the state treasury, designated the "West Virginia Tobacco Settlement Medical Trust Fund", which shall be an interest-bearing account and may be invested in the manner permitted by section nine article six, chapter twelve of this code, with the interest income a proper credit to the fund. The fund shall consist of a principal sub-account and an interest sub-account. Unless contrary to federal law, fifty percent of all revenues received pursuant to the master settlement agreement and not sold by the state pursuant to section thirteen of this article, shall be deposited in this fund. Funds paid into the account may also be derived from the following sources:

(1) All interest or return on investment accruing to the fund;

(2) Any gifts, grants, bequests, transfers or donations which may be received from any governmental entity or unit or any person, firm, foundation or corporation; and

(3) Any appropriations by the Legislature which may be made for this purpose.

(c) The moneys from the principal sub-account in the trust fund may not be expended for any purpose. The moneys in the interest sub-account in the trust fund resulting from interest earned on the moneys in the fund and the return on investments of the moneys in the fund shall be available only upon appropriation by the Legislature as part of the state budget and expended in accordance with the provisions of section three of this article.
§4-11A-3. Receipt of settlement funds and required deposit in the West Virginia tobacco settlement fund.

(a) There is hereby created in the state treasury a special revenue account, designated the "Tobacco Settlement Fund", which shall be an interest bearing account and may be invested in the manner permitted by the provisions of article six, chapter twelve of this code, with the interest income a proper credit to the fund. Unless contrary to federal law, fifty percent of all revenues received pursuant to the master settlement agreement and not sold by the state pursuant to section thirteen of this article, shall be deposited in this fund. These funds shall be available only upon appropriation by the Legislature as part of the state budget: Provided, That for the fiscal year two thousand, the first five million dollars received into the fund shall be transferred to the public employees insurance reserve fund created in article two, chapter five-a of this code.

(b) Appropriations from the tobacco settlement fund are limited to expenditures for the following purposes:

(1) Reserve funds for continued support of the programs offered by the public employees insurance agency established in article sixteen, chapter five of this code;

(2) Funding for expansion of the federal-state medicaid program as authorized by the Legislature or mandated by the federal government;

(3) Funding for public health programs, services and agencies; and

(4) Funding for any state owned or operated health facilities.

(c) Notwithstanding the provisions of section two, article two, chapter twelve of this code, moneys within the tobacco settlement trust fund may not be redesignated for any purpose other than those set forth in this section.
§4-11A-6. Creation of tobacco settlement authority.
(a) The tobacco settlement authority is hereby created and constitutes a body corporate and politic, constituting a public corporation and government instrumentality.

(b) The purposes of the authority include all of the following:

(1) To establish a stable source of revenue to be used for the purposes designated in this article.

(2) To enter into sales agreements.

(3) To issue bonds and enter into funding options, consistent with this article, including refunding and refinancing its debt and obligations.

(4) To sell, pledge, or assign, as security or consideration, all or a portion of the state's share sold to the authority pursuant to a sales agreement, to provide for and secure the issuance and repayment of its bonds.

(5) To invest funds as provided under this article.

(6) To enter into agreements with the state for the periodic distribution of amounts due the state under any sales agreement.

(7) To refund and refinance the authority's debts and obligations, and to manage its funds, obligations and investments as necessary and if consistent with its purpose.

(8) To sell, pledge, or assign, as security or consideration, all or a portion of the state's share to implement alternative funding options.

(9) To implement the purposes of this article.

(c) The authority shall invest its funds and accounts in accordance with this chapter and shall not take action or invest in any manner that would cause the state to become a stockholder in any corporation or that would cause the state to assume or agree to pay the debt or liability of any corporation in violation of the United States constitution or the constitution of the State of West Virginia.

(d) The authority shall not create any obligation of this state or any political subdivision of this state within the meaning of any constitutional or statutory debt limitation.

(e) The authority shall not pledge the credit or taxing power of the state or any political subdivision of this state, or make its debts payable out of any moneys except those of the authority specifically pledged for their payment.

(f) The authority shall not pledge or make its debts payable out of the moneys deposited in the tobacco settlement endowment fund.

(g) The authority shall have no other assets or property than the portion of the state's share as received, and the right to receive such portion, purchased by sales agreement, proceeds of bonds held as security for the bonds and investment income on the foregoing.
§4-11A-7. Definitions.
Unless the context clearly indicates otherwise, as used in this article:

(a) "Authority" means the tobacco settlement authority created in this article.

(b) "Board" means the governing board of the authority.

(c) "Bonds" means bonds, notes, and other obligations and financing arrangements issued or entered into by the authority pursuant to this article.

(d) "Financial institution" means a bank, trust company or credit union within or without the state.

(e) "Interest rate agreement" means an interest rate swap or exchange agreement, an agreement establishing an interest rate floor or ceiling or both, or any similar agreement. Any such agreement may include the option to enter into or cancel the agreement or to reverse or extend the agreement.

(f) "Master settlement agreement" means the master settlement agreement as defined in section one of this article.

(g) "Medical trust fund" means the West Virginia medical trust fund created in section two of this article.

(h) "Net proceeds" means the amount of proceeds remaining following each sale of bonds which are not required by the authority to establish and fund reserve funds, to fund capitalized interest, if any, and to pay the costs of issuance and other expenses and fees directly related to the authorization and issuance of bonds.

(i) "Notes" means notes, warrants, loan agreements, and all other forms of evidence of indebtedness authorized under this article.

(j) "Qualified investments" means investments of the authority authorized pursuant to this article.

(k) "Sales agreement" means any agreement authorized pursuant to this article in which the state provides for the sale of all or a portion of the state's share to the authority.

(l) "State's share" means all of the following:

(1) All payments required to be made by tobacco product manufacturers to the state, and the state's rights to receive such payments, under the master settlement agreement.

(2) To the extent that such amounts have been assigned to the state, all payments of attorney fees required to be made by tobacco product manufacturers under the master settlement agreement, and all rights to receive such attorney fees.

(m) "Tax-exempt bonds" means bonds issued by the authority that are accompanied by a written opinion of legal counsel to the authority that the bonds are excluded from the gross income of the recipients for federal income tax purposes.

(n) "Taxable bonds" means bonds issued by the authority that are not accompanied by a written opinion of legal counsel to the authority that the bonds are excluded from the gross income of the recipients for federal income tax purposes.

(o) "Tobacco settlement debt service fund" means the tobacco settlement debt service fund created in section fifteen-a of this article.

(p) "Tobacco settlement endowment fund" means the tobacco settlement endowment fund created in section fifteen of this article.

(q) "Tobacco settlement fund" means the tobacco settlement fund created in section three of this article.
§4-11A-8. Powers not restricted; law complete in itself.
This article shall not restrict or limit the powers that the authority has under any other law of this state, but is cumulative as to any such powers. A proceeding, notice, or approval is not required for the creation of the authority or the issuance of obligations or an instrument as security, except as provided in this chapter.
§4-11A-9. Governing Board.
(a) The powers of the authority are vested in and shall be exercised by a board of seven individuals, consisting of the governor, three persons appointed by the governor, with the advice and consent of the Senate, each having skill and experience in finance, the treasurer of state, the attorney general and the auditor of state. The governor may appoint a designee to act on his or her behalf on the board.

(b) Four members of the board constitute a quorum.

(c) The members shall elect a chairperson, vice chairperson, and secretary, annually, and other officers as the members determine necessary. The treasurer of state shall serve as treasurer of the authority.

(d) Meetings of the board shall be held at the call of the chairperson or when a majority of the members so requests.

(e) The members of the board shall not receive compensation by reason of their membership on the board.

(f) Each appointment of a member of the board shall be for a term of four years. Any member whose term has expired shall serve until his or her successor has been duly appointed and qualified. Any person appointed to fill a vacancy shall serve only for the unexpired term.
§4-11A-10. Staff; assistance by state officers, agencies and departments.

(a) The staff of the office of the department of administration, under the supervision of the secretary of the department of administration shall also serve as staff of the authority.

(b) State officers, agencies and departments may render services to the authority within their respective functions, as requested by the authority.
§4-11A-11. Limitation of liability.
Members of the board and persons acting on the authority's behalf, while acting within the scope of their employment or agency, are not subject to personal liability resulting from carrying out the powers and duties conferred on them under this article.
§4-11A-12. General powers.
(a) The authority has all the general powers necessary to carry out its purposes and duties and to exercise its specific powers, including, but not limited to, all of the following powers:

(1) The power to issue its bonds and to enter into other funding options as provided in this article.

(2) The power to have perpetual succession as a public instrumentality and agency of the state, until dissolved in accordance with this article.

(3) The power to sue and be sued in its own name.

(4) The power to make and execute agreements, contracts, and other instruments, with any public or private person, in accordance with this chapter.

(5) The power to hire and compensate legal counsel, bond counsel, underwriters, consultants and advisors.

(6) The power to hire investment advisors and other persons as necessary to fulfill its purpose.

(7) The power to invest or deposit moneys in the manner permitted by section nine, article six, chapter twelve of this code.

(8) The power to procure insurance, other credit enhancements, and other financing arrangements, and to execute instruments and contracts and to enter into agreements convenient or necessary to facilitate financing arrangements of the authority and to fulfill the purposes of the authority under this article, including, but not limited to, such arrangements, instruments, contracts and agreements as municipal bond insurance, liquidity facilities, interest rate agreements and letters of credit.

(9) The power to accept appropriations, gifts, grants, loans or other aid from public or private entities.

(10) The power to adopt and promulgate rules, consistent with this article and in accordance with this code, as the board determines necessary.

(11) The power to acquire, own, hold, administer, and dispose of property.

(12)

The power to determine, in connection with the issuance of bonds, and subject to the sales agreement, the terms and other details of financing.

(13)

The power to perform any act not inconsistent with federal or state law necessary to carry out the purposes of the authority.

§4-11A-13. Authorization of the sale of rights in the master settlement agreement.

(a) The governor or the governor's designee shall sell and assign all or a portion of the state's share to the authority pursuant to one or more sales agreements for the purpose of securitization of all or a portion of amounts received by the state under the master settlement agreement.

(b) The terms and conditions of the sale established in any sales agreement shall include the following:

(1) A requirement that the state enforce, at the sole expense of the authority, the provisions of the master settlement agreement that require payment of the state's share that has been sold to the authority under a sales agreement.

(2) A requirement that the state not agree to any amendment of the master settlement agreement that materially and adversely affects the authority's ability to receive the state's share that has been sold to the authority.

(3) An agreement that the anticipated use by the state of bond proceeds received pursuant to the sales agreement shall be for the purposes set forth in this article, payment of attorney fees related to the master settlement agreement, and to provide a secure and stable source of funding to the state for purposes designated by this article.

(4) A statement that the net proceeds from the sale of bonds shall be deposited in the tobacco settlement endowment fund established under section fifteen of this article and that in no event shall the amounts in the trust fund be available or be applied for payment of bonds or any claim against the authority or any debt or obligation of the authority.

(5) A requirement that the net proceeds received by the authority from the sale of any tax-exempt bonds issued to provide funds for the purposes set forth in this article be paid by the authority to the state as consideration for the sale of that portion of the state's share, that such net proceeds be deposited by the state upon receipt in the tax-exempt bond proceeds account of the tobacco settlement endowment fund, and that such proceeds are to be held by the authority solely for the benefit of the state to be used as provided in section fifteen of this article. Each amount transferred shall be the consideration received by the state for that portion of the state's share.

(6) A requirement that the net proceeds received by the authority from the sale of taxable bonds issued to provide funds for the purposes set forth in this article be paid by the authority to the state as consideration for the sale of that portion of the state's share, that such net proceeds be deposited by the state upon receipt in the taxable bond proceeds account of the tobacco settlement endowment fund, and that such proceeds are to be held by the authority solely for the benefit of the state to be used as provided in section fifteen of this article. Each amount transferred shall be the consideration received by the state for that portion of the state's share.

(7) An agreement that the effective date of the sale is the date of receipt of the bond proceeds by the authority and the deposits of the net proceeds of the tax-exempt bonds and any taxable bonds in the respective accounts of the tobacco settlement endowment fund.

(c) The sale made under this section shall be irrevocable during the time when bonds are outstanding under this article, and shall be a part of the contractual obligation owed to the bondholders. The sale shall constitute and be treated as a true sale and absolute transfer of the property so transferred and not as a pledge or other security interest for any borrowing. The characterization of such a sale as an absolute transfer shall not be negated or adversely affected by the fact that only a portion of the state's share is being sold, or by the state's acquisition or retention of an ownership interest in the residual assets.

(d) On or after the effective date of such sale, the state shall not have any right, title, or interest in the portion of the state's share sold and such portion shall be the property of the authority and not the state, and shall be owned, received, held, and disbursed by the authority or its trustee or assignee, and not the state.

(e) On or before the effective date of the sale, the state shall notify the escrow agent under the master settlement agreement of the sale and shall instruct the escrow agent that subsequent to that date, all payments constituting the portion sold shall be made directly to the authority.
§4-11A-14. Authorization of bonds of the authority.

(a) The authority may issue bonds and, if bonds are issued, shall make the net proceeds from the bonds available to the state pursuant to the sales agreement to be applied as set forth in section fifteen of this article and to provide a secure and stable source of funding to the state, consistent with the purposes of this article. In connection with the issuance of bonds and subject to the terms of the sales agreement, the authority shall determine the terms and other details of the financing. Bonds issued pursuant to this section may be secured by a pledge of all or a portion of the state's share purchased by the authority and any moneys derived from the state's share purchased by the authority, and any other sources available to the authority with the exception of moneys in the tobacco settlement endowment fund. The authority may also issue refunding bonds, including advance refunding bonds, for the purpose of refunding previously issued bonds, and may issue other types of bonds, debt obligations, and financing arrangements necessary to fulfill its purposes or the purposes of this article.

(b) The authority may issue its bonds in principal amounts which, in the opinion of the authority, are necessary to provide sufficient funds for achievement of its purposes, the payment of interest on its bonds, the establishment of reserves to secure the bonds, the costs of issuance of its bonds, and all other expenditures of the authority incident to and necessary to carry out its purposes or powers. The bonds are investment securities and negotiable instruments within the meaning of and for the purposes of the uniform commercial code.

(c) Bonds issued by the authority are payable solely and only out of the moneys, assets, or revenues pledged by the authority and are not a general obligation or indebtedness of the authority or an obligation or indebtedness of the state or any subdivision of the state. The authority shall not pledge the credit or taxing power of the state or any political subdivision of the state, or create a debt or obligation of the state, or make its debts payable out of any moneys except those of the authority, excluding those moneys deposited in the tobacco settlement endowment fund.

(d) Bonds of the authority shall state on their face that they are payable both as to principal and interest solely out of the assets of the authority pledged for their purpose and do not constitute an indebtedness of the state or any political subdivision of the state; are secured solely by and payable solely from assets of the authority pledged for such purpose; constitute neither a general, legal, or moral obligation of the state or any of its political subdivisions; and that the state has no obligation or intention to satisfy any deficiency or default of any payment of the bonds.

(e) Any amount pledged by the authority to be received under any sales agreement shall be valid and binding at the time the pledge is made. Amounts so pledged and then or thereafter received by the authority shall immediately be subject to the lien of such pledge without any physical delivery thereof or further act. The lien of any such pledge shall be valid and binding as against all parties having claims of any kind against the authority, whether such parties have notice of the lien. Notwithstanding any other provision to the contrary, the resolution of the authority or any other instrument by which a pledge is created need not be recorded or filed to perfect such pledge.

(f) The proceeds of bonds issued by the authority and not required for deposit in the tobacco settlement endowment fund may be invested in any security or obligation approved by the board and specified in the trust indenture or resolution pursuant to which the bonds must be issued, notwithstanding any other provision to the contrary.

(g) The exercise of the powers granted to the authority by this article will be in all respects for the benefit of the people of the state for the improvement of their health, safety, convenience and welfare and is a public purpose. All bonds of the authority, and all interest and income thereon, shall be exempt from all taxation by this state and any county, municipality, political subdivision or agency thereof.

(h) Bonds of the authority shall comply with all of the following:

(1) The bonds shall be in a form, issued in denominations, executed in a manner, and payable over terms and with rights of redemption, as the board prescribes in the trust indenture or resolution authorizing their issuance.

(2) The bonds shall be fully negotiable instruments under the laws of this state and may be sold at prices, at public or private sale, and in a manner as prescribed by the board.

(3) The bonds shall be subject to the terms, conditions, and covenants providing for the payment of the principal, redemption premiums, if any, interest which may be fixed or variable during any period the bonds are outstanding, and other terms, conditions, covenants, and protective provisions safeguarding payment, not inconsistent with this chapter and as determined by the trust indenture or resolution of the board authorizing their issuance.

(i) The bonds issued under this article are securities in which insurance companies and associations and other persons engaged in the business of insurance; banks, trust companies, savings associations, savings and loan associations, and investment companies; administrators, guardians, executors, trustees, and other fiduciaries; and other persons authorized to invest in bonds or other obligations of the state may properly and legally invest funds, including capital, in their control or belonging to them.

(j) Bonds must be authorized by a resolution of the board. However, a resolution authorizing the issuance of bonds may delegate to an officer of the authority the power to negotiate and fix the details of an issue of bonds and of their sale by an appropriate certificate of the authorized officer or by execution and delivery of a trust indenture or bond purchase agreement.

(k) To comply with federal law with respect to the issuance of bonds, the interest of which is tax-exempt pursuant to the Internal Revenue Code, the authority may issue a certain series of bonds, or periodically issue several series of bonds, so that interest on the bonds remains exempt from federal taxation or to comply with the purposes specified in this article.

(l) In connection with the issuance of any bonds authorized and issued pursuant to this section, and in addition to the funds and accounts established elsewhere in this article, the board may, under the trust indenture or resolution pursuant to which the bonds are issued, establish such other accounts, sub-accounts or reserves as may be deemed necessary by the board.

(m) The state reserves the right at any time to alter, amend, repeal, or otherwise change the structure, organization, programs, or activities of the authority, including the power to terminate the authority, except that a law shall not be enacted that impairs any obligation made pursuant to this statute to the extent that any law would contravene the constitution of the State of West Virginia or the constitution of the United States.

§4-11A-15. Tobacco settlement endowment fund established; investment; liability.

(a) A tobacco settlement endowment fund is hereby established in the state treasury, separate and apart from all other public moneys or funds of the state. The fund shall consist of moneys paid to the authority and not pledged to the payment of bonds or otherwise obligated. Such moneys shall include but are not limited to payments received from the master settlement agreement which are not pledged to the payment of bonds or which are subsequently released from a pledge to the payment of any bonds and which have been sold to the authority by the state in the manner set forth in section twelve of this article; payments which, in accordance with any sales agreement with the state, are to be paid to the state and not pledged to the bonds, including that portion of the proceeds of any bonds designated for purchase of all or a portion of the state's share, which are designated for deposit in the fund, together with all interest, dividends, and rents on the bonds; and all securities or investment income and other assets acquired by and through the use of the moneys belonging to the fund and any other moneys deposited in the fund. Moneys in the fund are to be used solely and only for the payment of all amounts due and to become due to the state, and shall not be used for any other purpose. The moneys shall not be available for the payment of any claim against the authority or any debt or obligation of the authority.

(b) The fund shall consist of the following sub-accounts:

(1) The tax-exempt bond proceeds sub-account. The net proceeds of tax-exempt bonds shall be deposited in the account and shall be used for the purposes set forth in subsection (c) of this section.

(2) The taxable bond proceeds sub-account. The net proceeds of any taxable bonds shall be deposited in the account and shall be used for the purposes set forth in subsection (c) of this section.

(3) The revenue sub-account. Payments received from the master settlement agreement which are not pledged to the payment of bonds or which are subsequently released from a pledge to the payment of any bonds and which have been sold to the authority by the state in the manner set forth in section twelve of this article and any other moneys appropriated by the state for deposit in the tobacco settlement endowment fund shall be deposited in the revenue sub-account and shall be used for the purposes specified in subsection (c) of this section.

(1) Commencing the first day of July of the fiscal year immediately following the fiscal year in which any moneys have been deposited in the tobacco settlement endowment fund, and subject to any federal tax laws that might restrict the amount of any transfer, five percent of the principal balance of the tobacco settlement endowment fund shall be transferred to interest sub-account of the tobacco settlement medical trust fund created in section two of this article to be expended as provided therein.

(2) In no event shall there be transferred any moneys from the tobacco settlement endowment fund in any fiscal year which would result in the reduction of principal balance of the tobacco settlement endowment fund being reduced by more than five percent from the principal balance in the tobacco settlement endowment fund as of the thirtieth day of June of the prior fiscal year, or, with respect to the first fiscal year in which a deposit is made into the tobacco settlement endowment fund, from the highest principal balance in the tobacco settlement endowment fund during that fiscal year.

(d) The treasurer of the authority shall act as custodian and trustee of the tobacco settlement endowment fund and shall administer the fund as directed by the authority. The treasurer of the authority shall do all of the following:

(1) Hold the funds.

(2) Invest the portion of the funds that, as deemed by the authority, is not necessary for current payment of sums to the state under this article, such investments which are permitted by article six, chapter twelve of this code.

(3) Disburse funds, if and as directed by the authority.

(4) Sell any securities or other properties held by the tobacco settlement endowment fund and reinvest the proceeds as directed by the authority, when deemed advisable by the authority for the protection of the tobacco settlement endowment fund or the preservation of the value of the investment. The sale of securities or other property held by the tobacco settlement endowment fund shall only be made on behalf of the board by the treasurer of the board in the manner and to the extent provided in this article with regard to the purchase of investments.

(5) Subscribe, at the direction of the authority, for the purchase of securities for future delivery in anticipation of future income. Such securities shall be paid for by such anticipated income or from funds from the sale of securities or other property held by the fund.

(6) Pay for securities, as directed by the authority, on the receipt of the purchasing entity's paid statement or paid confirmation of purchase.

(e) The authority shall execute the disposition and investment of moneys in the tobacco settlement endowment fund in accordance with the investment policy and goal statement established by the board.

(1) In establishing the investment policy and goal statement of the fund, the standard utilized by the board shall be the exercise of judgment and care, under the prevailing circumstances, which persons of prudence, discretion, and intelligence exercise in the management of their own financial affairs, not for the purpose of speculation, but with regard to the permanent disposition of the funds, considering the probable income, as well as the probable safety, of their capital.

(2) Within the limitations of the standard prescribed in this subsection, the treasurer of the authority, the authority, and the board may acquire and retain any type of property or investment which persons of prudence, discretion, and intelligence would acquire or retain for their own financial interests.

(3) The authority and the board shall give appropriate consideration to those facts and circumstances that the authority and board know or should know are relevant to the particular investment or investment policy involved, including the role the investment plays in the total value of the fund. For the purposes of this paragraph, "appropriate consideration" includes, but is not limited to, a determination by the authority and the board that the particular investment or investment policy is reasonably designed to further the purposes of this article, taking into consideration the risk of loss and the opportunity for gain or other return associated with the investment or investment policy and consideration of all of the following as they relate to the tobacco settlement endowment fund:

(A) The composition of the tobacco settlement endowment fund with regard to diversification.

(B) The liquidity and current return of the investments in the tobacco settlement endowment fund relative to the anticipated cash flow requirements of the tobacco settlement endowment fund.

(D) If consistent with the investment policy established by the board, the authority may invest moneys of or held by the authority in structured notes and investment agreements.

(f) The authority, its staff, members of the board, and the treasurer of the authority are not personally liable for actions or omissions under this article that do not involve malicious or wanton misconduct even if those actions or omissions violate the standards established in this section.

(g) Except as provided in this section, if there is loss to the tobacco settlement endowment fund, the treasurer, the authority, the board, and the staff are not personally liable, and the loss shall be charged against the tobacco settlement endowment fund. The amount required to cover a loss may be paid from the tobacco settlement endowment fund.

(h) Expenses incurred in the sale and purchase of securities belonging to the tobacco settlement endowment fund shall be charged to said fund, and the amount required for the investment management expenses may be paid from said fund, subject to the limitations stated in this subsection. The amount paid for investment management expenses for a fiscal year under this section shall not exceed the reasonable and customary charge to similar funds for similar purposes. The authority shall report the investment management expenses for a fiscal year as a percent of the market value of the fund in the annual report to the governor submitted pursuant to section seventeen of this article.

(i) All moneys paid to or deposited in the tobacco settlement endowment fund are available to the authority to be used for the exclusive purposes of this article, including, but not limited to, all of the following:

(1) For payment of amounts due to the state pursuant to the terms of the sales agreements entered into between the state and the authority.

(2) For payment of other amounts and costs incurred in the administration of the board's duties and obligations under this article.
§4-11A-15a. Tobacco settlement debt service fund created.

There is hereby created a special fund with the state treasury separate and apart from all other public moneys or funds of the state named the tobacco settlement debt service fund into which there shall be deposited on behalf of the authority all portions of the state's share sold pursuant to the terms of one or more sales agreements and to be used or pledged to the payment of debt service on any bonds issued under this article. The authority may provide by resolution authorizing bonds issued under this article or in the resolution or trust indenture pursuant to which bonds are issued under this article for priorities on revenues paid into the tobacco settlement debt service fund as may be necessary for the protection of the prior rights of holders of bonds issued at different times under the provisions of this article. Moneys on deposit in the tobacco settlement debt service fund shall be transferred and disbursed at the times and in the manner set forth in the resolution or trust indenture pursuant to which bonds are issued under this article.
§4-11A-16. Exemption from purchasing provisions.

The provisions of article three, chapter five-a of this code shall not apply to the authority and contracts entered into by the authority in carrying out its public and essential governmental functions are exempt from the laws of the state which provide for competitive bids and hearings in connection with contracts.
§4-11A-17. Annual report.

(a)

The authority shall submit to the governor, the Legislature, and the attorney general, on or before the thirty-first day of December, annually, a report including information regarding all of the following:

(1) Its operations and accomplishments.

(2) Its receipts and expenditures during the previous fiscal year, in accordance with classifications it establishes for its operating and capital accounts.

(3) Its assets and liabilities at the end of the previous fiscal year and the status of reserve, special and other funds.

(4) A schedule of its bonds outstanding at the end of the previous fiscal year, and a statement of the amounts redeemed and issued during the previous fiscal year.

(5) A statement of its proposed and projected activities.

(6) Recommendations to the governor and the Legislature, as deemed necessary.

(7) Any other information deemed necessary.

(b) The annual report shall identify performance goals of the authority, and clearly indicate the extent of progress, during the reporting period, in attaining these goals.
§4-11A-18. Bankruptcy.

Prior to the date which is three hundred sixty-six days after which the authority no longer has any bonds outstanding, the authority is prohibited from filing a voluntary petition under chapter nine of the federal bankruptcy code or such corresponding chapter or section as may, from time to time, be in effect, and a public official or organization, entity, or other person shall not authorize the authority to be or become a debtor under chapter nine or any successor or corresponding chapter or sections during such periods. The provisions of this section shall be part of any contractual obligation owed to the holders of bonds issued under this article. State law shall not subsequently modify any contractual obligation, during the period of the contractual obligation.
§4-11A-19. Dissolution of the authority.

The authority shall dissolve no later than two years from the date of final payment of all outstanding bonds and the satisfaction of all outstanding obligations of the authority, except to the extent necessary to remain in existence to fulfill any outstanding covenants or provisions with bondholders or third parties made in accordance with this article. Upon dissolution of the authority, all assets of the authority shall be transferred to the state and fifty percent shall be deposited in the medical trust fund and fifty percent shall be deposited in the tobacco settlement fund, unless otherwise directed by the Legislature, and the authority shall execute any necessary assignments or instruments, including any assignment of any right, title, or ownership to the state for receipt of payments under the master settlement agreement.
§4-11A-20. Severability.

If any section, subsection, subdivision, subparagraph, sentence or clause of this article is adjudged to be unconstitutional or invalid, such adjudication shall not affect the validity of the remaining portions of this article, and, to this end, the provisions of this article are hereby declared to be severable.
§4-11A-21. Construction.

This article, being deemed necessary for the welfare of the state and its people, shall be liberally construed to effect its purpose.

NOTE: The purpose of this bill is to provide for efficient administration of funds received by the state pursuant to the master settlement agreement entered into by the state and various other states and tobacco manufacturers. The bill allows for the sale of a portion of revenues received under the master settlement agreement to a newly created tobacco settlement authority, the issuance of bonds by the authority and the creation of a permanent endowment to provide for vital needs of the people of the state while transferring the risk of the receipt of future revenues under the master settlement agreement from the state to holders of bonds issued by the authority.

§§4-11A-1, 2 and 3 are completely rewritten; therefore, strike-throughs and underscoring have been omitted.

§§4-11A-6 through 21 are new; therefore, strike-throughs and underscoring have been omitted.