EMPIRE STATE MUNICIPAL EXEMPT TRUST
GUARANTEED SERIES 140
REFERENCE TRUST AGREEMENT
This Reference Trust Agreement dated May 18, 1998 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 140, 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. 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 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
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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
related to Empire State Municipal Exempt Trust, Guaranteed Series 140 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 8,000.
(c) The fiscal year for the Trust shall end on September 30th
of each year.
(d) All Certificateholders of record on June 15, 1998 (the
"First Monthly Record Date") who have selected the monthly distribution plan,
will receive a distribution to be made on or shortly after July 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 December 1,
1998 to all Certificateholders of record on November 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 May 21, 1998.
(f) The number of Units referred to in Section 2.3 is
8,000.
(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 1.13 per $1,000 principal amount of Bonds for that portion of the Trust
under the monthly distribution plan and $.73
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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 $.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, 2047.
(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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295222.1
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 18th day of May, 1998.
/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 18th day of May,
1998.
/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 18th day of May, 1998.
/s/ ▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇, ▇▇.
Notary Public
[SEAL]
My commission expires: October 6, 1999
313665.1
▇▇▇▇▇▇ DATA CORPORATION, Evaluator
By: /s/▇▇▇ ▇▇▇▇▇▇▇▇
▇▇▇ ▇▇▇▇▇▇▇▇
Chief Operating Officer
[Seal]
ATTEST:
By: /s/ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
Vice President
313665.1