EMPIRE STATE MUNICIPAL EXEMPT TRUST
GUARANTEED SERIES 138
REFERENCE TRUST AGREEMENT
This Reference Trust Agreement dated November 25, 1997 among
Glickenhaus & Co. and Lebenthal & Co., Inc., as Depositors, The Bank of New
York, as Trustee and ▇▇▇▇▇▇ Data Corporation, as Evaluator, sets forth certain
provisions in full and incorporates other provisions by reference to the
document entitled "Empire State Municipal Exempt Trust, Guaranteed Series 66,
Trust Indenture and Agreement" dated December 18, 1990 as amended in part by
this Reference Trust Agreement (herein as amended or supplemented called the
"Indenture"). This Reference Trust Agreement and the Indenture, as
incorporated by reference herein, will constitute a single instrument.
WITNESSETH THAT:
In consideration of the premises and of the mutual agreements
herein contained, the Depositors, the Trustee, and the Evaluator agree as
follows:
Part I
STANDARD TERMS AND CONDITIONS OF TRUST
Subject to the provisions of Part II hereof, all the provisions
contained in the Indenture are herein incorporated by reference in their
entirety and shall be deemed to be a part of this instrument as fully and to
the same extent as though said provisions had been set forth in full in this
instrument except that for all purposes of this Empire State Municipal Exempt
Trust, Guaranteed Series 136, and all subsequent Series, the following
sections of the Indenture are amended as follows:
(a) Section 1.1(8) is hereby amended in its entirety to read as
follows:
"(8) "Evaluation Time" shall mean 12:00 p.m. New York Time on the
Business Day prior to the Date of Deposit and 2:00 p.m. New York
Time thereafter."
(b) Section 1.1(9) is hereby amended by deleting the words
"Standard and Poor's Corporation" therein and substituting the words "▇▇▇▇▇▇
Data Corporation" in place thereof.
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(c) Section 3.1 is hereby amended by revising it in
its entirety to read as follows:
Section 3.1. Initial Cost. The cost of the initial preparation,
printing and execution of the Certificates and this Indenture,
Registration Statement and other documents relating to the Trust,
Federal and State registration fees and costs, the initial fees
and expenses of the Trustee and Evaluator, legal and auditing
expenses and other out-of-pocket expenses (excluding expenses
incurred in the preparation and printing of preliminary
prospectuses and prospectuses, expenses incurred in the
preparation and printing of brochures and other advertising
materials and any other selling expenses), to the extent not borne
by the Depositors, shall be paid by the Trust; provided, however,
the Trust shall not bear such expenses in excess of the amount
shown in the Statement of Condition included in the Prospectus,
and any such excess shall be borne by the Depositors. To the
extent the funds in the Interest and Principal Accounts of the
Trust shall be insufficient to pay the expenses borne by the Trust
specified in this Section 3.1, the Trustee shall advance out of
its own funds and cause to be deposited and credited to the
Interest Account such amount as may be required to permit payment
of such expenses. The Trustee shall be reimbursed for such advance
in the manner provided in Section 3.5, and the provisions of
Section 6.4 with respect to the reimbursement of disbursements for
Trust expenses, including, without limitation, the lien in favor
of the Trustee therefor, shall apply to the payment of expenses
made pursuant to this Section. For purposes of calculation of
distributions under Section 3.5 and the addition provided in
clause (4) of Section 5.1, the expenses borne by the Trust
pursuant to this Section shall be deemed to accrue at a daily rate
over the time period specified for their amortization provided in
the Prospectus; provided, however, that nothing herein shall be
deemed to prevent, and the Trustee shall be entitled to, full
reimbursement for any advances made pursuant to this Section no
later than the termination of the Trust.
(d) Section 5.1 is hereby amended by revising the second sentence
thereof to read as follows:
Such evaluations shall take into account and itemize separately
(1) the cash on hand in the Trust Fund (other than cash declared
held specially for purchase of Contract Bonds under Section 3.14
hereof or cash credited to the Reserve Account) or moneys in the
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process of being collected from matured interest coupons or bonds
matured or called for redemption prior to maturity, (2) the value
of each issue of the Bonds (including Contract Bonds) on the bid
side of the market as determined by the Evaluator pursuant to
Section 4.1, (3) interest accrued thereon not subject to
collection and distribution, and (4) amounts representing
organizational expenses paid less amounts representing secured
organizational expenses of the Trust.
Part II
SPECIAL TERMS AND CONDITIONS OF TRUST
The following special terms and conditions are hereby agreed to:
(a) The interest-bearing obligations listed in the Prospectus for
Empire State Municipal Exempt Trust Guaranteed Series 137 have been deposited
in trust under this Indenture (see "Portfolio" in Part A of the Prospectus
which for purposes of this Indenture is the Schedule of Securities or Schedule
A).
(b) For the purposes of the definition of the Unit in item (28) of
Section 1.1, the fractional undivided interest in and ownership of the Trust
is 10,000.
(c) The fiscal year for the Trust shall end on September 30th of
each year.
(d) All Certificateholders of record on December 15, 1997 (the
"First Monthly Record Date") who have selected the monthly distribution plan,
will receive a distribution to be made on or shortly after January 1, 1998
(the "First Distribution Date"), and thereafter distributions will be made
monthly. The first semi-annual distribution will be made on or shortly after
June 1, 1998 to all Certificateholders of record on May 15, 1998 who
have selected the semi-annual distribution plan, and thereafter distributions
will be made semi-annually.
(e) The First Settlement Date shall mean December 1, 1997.
(f) The number of Units referred to in Section 2.3 is
10,000.
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(g) For the purposes of Section 4.3, the Evaluator shall receive
for each evaluation of the Bonds in the Trust $.55 per Bond for each
valuation.
(h) For purposes of Section 6.4, the Trustee shall be
paid per annum $1.34 per $1,000 principal amount of Bonds for
that portion of the Trust under the monthly distribution plan and $.89 per
$1,000 principal amount of Bonds for that portion of the Trust under the
semi-annual distribution plan.
(i) For purposes of Section 8.6, the Depositors' maximum annual
fee is hereby specified to be $0.25 per $1,000 principal amount of Bonds in
the Trust.
(j) For purposes of Section 9.2, the Mandatory Termination Date
for the Trust is December 31, 2046.
(k) For purposes of this Series of Empire State Municipal Exempt
Trust, the form of Certificate set forth in this Indenture shall be
appropriately modified to reflect the title of this Series as set forth above.
(l) For purposes of this Series of Empire State Municipal Exempt
Trust, the execution date of this Indenture shall be the date first written
above.
IN WITNESS WHEREOF, the parties hereto have caused this Reference
Trust Agreement to be duly executed on the date first above written.
[Signatures on separate pages]
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GLICKENHAUS & CO.
By /s/ ▇▇▇▇▇▇▇ ▇▇▇▇▇
Attorney-in-Fact
for each of the
General Partners
STATE OF NEW YORK )
) ss.:
COUNTY OF NEW YORK )
I, ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇, a Notary Public in and for the said County in the State
aforesaid, do hereby certify that ▇▇▇▇ ▇▇▇▇▇▇▇, personally known to me to be
the same whose name is subscribed to the foregoing instrument, appeared before
me this day in person, and acknowledged that he signed and delivered the said
instrument as his free and voluntary act as Attorney-in-Fact for each of the
General Partners, and as the free and voluntary act of said GLICKENHAUS & CO.,
for the uses and purposes therein set forth.
GIVEN, under my hand and notarial seal this 25th day of November, 1997.
/s/ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
Notary Public
▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
Notary Public, State of New York
No. 01MC5044884
Qualified in New York County
Commission Expires June 5, 1999
[SEAL]
313665.1
Lebenthal & Co., Inc.
By: /s/▇▇▇▇▇ ▇▇▇▇▇▇▇
Authorized Officer
ATTEST:
By: /s/D. ▇▇▇▇▇▇ ▇▇▇▇▇▇▇
Secretary
[CORPORATE SEAL]
STATE OF NEW YORK )
) ss.:
COUNTY OF NEW YORK )
I, ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇, a Notary Public in and for the said County in
the State aforesaid, do hereby certify that ▇▇▇▇▇ ▇▇▇▇▇▇▇ and D. ▇▇▇▇▇▇
▇▇▇▇▇▇▇ personally known to me to be the same persons whose names are
subscribed to the foregoing instrument and personally known to me to be the
Authorized Officer and Secretary, respectively, of LEBENTHAL & CO., INC.,
appeared before me this day in person, and acknowledged that they signed,
sealed with the corporate seal of LEBENTHAL & CO., INC., and delivered the
said instrument as their free and voluntary act as such Authorized Officer and
Secretary, respectively, and as the free and voluntary act of said LEBENTHAL &
CO., INC., for the uses and purposes therein set forth.
GIVEN, under my hand and notarial seal this 25th day of November.
1997.
/s/ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
Notary Public
▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
Notary Public, State of New York
No. 01MC5044884
Qualified in New York County
Commission Expires June 5, 1999
[SEAL]
313665.1
THE BANK OF NEW YORK, Trustee
By: /s/ ▇▇▇▇▇▇▇ ▇▇▇▇▇
Vice President
ATTEST:
By: /s/ ▇▇▇▇▇ ▇▇▇▇▇▇▇
(CORPORATE SEAL)
STATE OF NEW YORK )
) ss.:
COUNTY OF NEW YORK )
I, ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇, ▇▇., a Notary Public in and for the said County in
the State aforesaid, do hereby certify that ▇▇▇▇▇▇▇ ▇▇▇▇▇ and ▇▇▇▇▇ ▇▇▇▇▇▇▇,
personally known to me to be the same persons whose names are subscribed to the
foregoing instrument and personally known to me to be a Vice President and
Assistant Vice President, respectively, of The Bank of New York, appeared
before me this day in person, and acknowledge that they signed, sealed with the
corporate seal of The Bank of New York and delivered the said instrument as
their free and voluntary act as such Vice President and Assistant Vice
President, respectively, and as the free and voluntary act of said The Bank of
New York for the uses and purposes therein set forth.
GIVEN, under my hand and notarial seal this 17th day of November, 1997.
/s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇, ▇▇.
Notary Public
[SEAL]
My commission expires: April 30, 1999
313665.1
▇▇▇▇▇▇ DATA CORPORATION, Evaluator
By: /s/▇▇▇ ▇▇▇▇▇▇▇▇
▇▇▇ ▇▇▇▇▇▇▇▇
Chief Operating Officer
[Seal]
ATTEST:
By: /s/ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
Vice President
313665.1