EMPIRE STATE MUNICIPAL EXEMPT TRUST
GUARANTEED SERIES 153
REFERENCE TRUST AGREEMENT
This Reference Trust Agreement dated August 3, 2000 among Glickenhaus &
Co. and Lebenthal & Co., Inc., as Depositors, The Bank of New York, as Trustee
and Interactive 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 152, 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 "Interactive Data
Corporation" in place thereof.
295222.1
(c) Section 3.1 is hereby amended by revising it in its entirety to
read as follows:
"Section 3.1. Initial Cost. Subject to reimbursement by Unitholders
to the Depositors of the estimated per-Unit amount set forth in the
Prospectus, the cost of organizing the Trust and sale of the Trust
Units shall be borne by the Depositors, provided, however, that the
liability on the part of the Depositors under this section shall
not include any fees or other expenses incurred in connection with
the administration of the Trust subsequent to the deposit referred
to in Section 2.1. As used herein, the Depositors' reimbursable
expenses of organizing the Trust and sale of the Trust Units shall
include the cost of the initial preparation and typesetting of the
registration statement, prospectuses (including preliminary
prospectuses), the indenture, and other documents relating to the
Trust, SEC and state blue sky registration fees, the cost of the
initial valuation of the portfolio and audit of the Trust, the
initial fees and expenses of the Trustee, and legal and other
out-of-pocket expenses related thereto but not including the
expenses incurred in the printing of preliminary prospectuses and
prospectuses, expenses incurred in the preparation and printing of
brochures and other advertising materials and any other selling
expenses."
(d) Section 3.1.1 is hereby added, to read as follows:
Section 3.1.1 Update Costs. To the extent permitted by an
opinion of independent counsel or in reliance to No-Action
letters isssued by the staff of the Securities and Exchange
Commission, the Turst shall bear the expenses associated with
updateing the Trusts' regulation statements and maintaining
registeration or qualifications of the Units and/or a Trust under
Federal or state securiteis laws subsequent to initial
registration. Such expenses shall include legal fees, accounting
fees, typesetting fees, electronic filing expenses and regulatory
filing fees. However, all direct distribution expenses of the
Trusts (incuding the costs of maintaining the secondary market
for the Trusts), such as printing and distributing prospectuses,
and preparing, printing and distributing any advertisements or
sales literature will be paid at no cost to the Trusts. Any
payments received by the Sponsor reimbursing it for payments made
to update Trusts' registration statements will not exceed the
costs incurred by the Sponsors. The Trusts shall further incur
expenses associated with all taxes and other governmental charges
imposed upon the Bonds or any part of a Trust (no such taxes or
charges are bieng levied or made or, to the knowledge of the
Sponsor, contemplated). The above expenses, including the
Trustee's fees, when paid by or owing to the Trustee, are secured
by a lien on the Trust. In addition, the Trustee is empowered to
sell Bonds in order to make funds available to pay all expenses."
(e) Section 3.15 is hereby amended by revising it in its entirety to
read as follows:
"Section 3.15 Grantor Trust Status: The Trust is intended to be
treated as a fixed investment (i.e., grantor) trust for income
tax purposes, and its powers shall be limited in accordance with
the restrictions imposed on such trusts by Treasury Regulations
Section 301.7701-4(c) or similar or successor provisions of
Treasury Regulations under the Internal Revenue Code of 1986, as
amended ("Treas. Reg. $ 301.7701-4(c))". Nothing in this
Indenture, or otherwise, shall be construed to give the Trustee
the power to vary the investment of the Unitholders within the
meaning of Treas. Reg. $ 301.7701-4(c), nor shall the Depositor
give the Trustee any direction that would vary the investment of
the Unitholders."
-2-
295222.1
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 152 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
5,000.
(c) The fiscal year for the Trust shall end on May 31 of each year.
(d) All Certificateholders of record on August 15, 2000 (the "First
Monthly Record Date") who have selected the monthly distribution plan, will
receive a distribution to be made on or shortly after September 1, 2000 (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,
2000 to all Certificateholders of record on November 15, 2000 who have selected
the semi-annual distribution plan, and thereafter distributions will be made
semi-annually.
(e) The First Settlement Date shall mean August 8, 2000.
(f) The number of Units referred to in Section 2.3 is 5,000.
(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
$1.09 per $1,000 principal amount of Bonds for that portion of the Trust under
the monthly distribution plan and $.69 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 February 1, 2039.
-3-
295222.1
(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]
-4-
295222.1
GLICKENHAUS & CO.
By /s/ Xxxxxxx Xxxxx
----------------------------
Attorney-in-Fact
for each of the
General Partners
STATE OF NEW YORK )
) ss.:
COUNTY OF NEW YORK )
I, Xxxxxxx X. Xxxxxxx, a Notary Public in and for the said County in the
State aforesaid, do hereby certify that Xxxxxxx Xxxxx, 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 3rd day of August, 2000.
/s/ Xxxxxxx X. Xxxxxxx
---------------------------
Notary Public
[SEAL]
XXXXXXX X. XXXXXXX
Notary Public, State of New York
No. 00-0000000
Qualified in Bronx County
Commission Expires September 26, 2001
313665.1
Lebenthal & Co., Inc.
By: /s/Xxxxx X. XxXxxxx
---------------------------
Authorized Officer
ATTEST:
By: /s/D. Xxxxxx Xxxxxxx
----------------------------
Secretary
[CORPORATE SEAL]
STATE OF NEW YORK )
) ss.:
COUNTY OF NEW YORK )
I, Xxxxxxx X. Xxxxxxx, a Notary Public in and for the said County in the
State aforesaid, do hereby certify that Xxxxx X. XxXxxxx and D. Xxxxxx
Xxxxxxx 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 3rd day of August, 2000.
/s/ Xxxxxxx X. Xxxxxxx
--------------------------
Notary Public
[SEAL]
XXXXXXX X. XXXXXXX
Notary Public, State of New York
No. 00-0000000
Qualified in Bronx County
Commission Expires September 26, 2001
313665.1
THE BANK OF NEW YORK, Trustee
By: /s/ Xxxxxx Pharlese
--------------------------
Vice President
ATTEST:
By: /s/Xxxxxxx Xxxxxxx
--------------------------
(CORPORATE SEAL)
STATE OF NEW YORK )
) ss.:
COUNTY OF NEW YORK )
I, Xxxxxxxx X. Xxxxx, Xx., a Notary Public in and for the said County in
the State aforesaid, do hereby certify that Xxxxxx Pharlese and Xxxxxxx Xxxxxxx,
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
Asst. Treasurer, 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 Asst. Treasurer,
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 27th day of July, 2000.
/s/ Xxxxxxxx X. Xxxxx, Xx.
--------------------------
Notary Public
[SEAL]
My commission expires: April 30, 2001
313665.1
INTERACTIVE DATA CORPORATION, Evaluator
By: /s/Art Xxxxxx
-----------------------------
Vice President
[Seal]
ATTEST:
By: /s/ Xxxxxx Xxxxxxx
----------------------------
