AMENDMENT TO MEMORANDUM OF AGREEMENT
This amendment (the "Amendment") dated and effective as of October 17, 2008
amends the memorandum of agreement dated as of December 15, 1998 (the
"Sub-License Agreement") by and among The Select Sector SPDR(R) Trust (the
"Trust"), Merrill, Lynch, Xxxxxx, Xxxxxx & Xxxxx Incorporated ("Xxxxxxx Xxxxx")
and Standard & Poor's, a division of The XxXxxx-Xxxx Companies, Inc. ("S&P").
WITNESSETH THAT:
WHEREAS, pursuant to the license agreement dated November 17, 1998, as
amended (the "License Agreement"), by and among Xxxxxxx Xxxxx, S&P, NYSE
Alternext US (formerly known as the American Stock Exchange LLC) and PDR
Services LLC, S&P has granted to Xxxxxxx Xxxxx a license to use the S&P 500
Index and the S&P Marks (as defined in the License Agreement) in connection with
the issuance, exchange trading, marketing and/or promotion of the series of the
Trust, an open-end management investment company consisting of the Products (as
defined in the License Agreement);
WHEREAS, the parties entered into the Sub-License Agreement allowing
the Trust to use and refer to the S&P Marks and certain Xxxxxxx Xxxxx trademarks
in connection with the marketing and promotion of, and making disclosures
related to, the Products;
WHEREAS, the parties desire to amend the Sub-License Agreement to add
certain break-points with respect to licensing fees payable to Xxxxxxx Xxxxx by
the Trust under the Sub-License Agreement;
NOW THEREFORE, in consideration of the premises and of the mutual
agreements contained herein, the parties agree as follows:
1. Section 5.a. of the Sub-License Agreement is hereby deleted in its
entirety and replaced with the following:
"a. A license fee at a rate of:
(i) three (3) basis points (.0003) per annum of the average
aggregate daily net assets of the Trust up to $35 billion in
Trust assets;
(ii) two (2) basis points (.0002) per annum of the average
aggregate daily net assets of the Trust over $35 billion up to
and including $50 billion in Trust assets; and
(iii) one (1) basis point (.0001) per annum of the average aggregate
daily net assets of the Trust over $50 billion in Trust
assets.
Fees shall be accrued daily at the rate of 1/365th of the applicable
fee rate and payable at the end of each quarter of the Computation
Year."
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2. Any reference in the Sub-License Agreement to an entity, whether by
specific name or by duties and responsibilities, shall be deemed to include any
successor corporation or entity thereto, including any affiliate or successor in
interest.
3. This Amendment contains the entire understanding among the parties with
respect to the transactions contemplated hereby. To the extent that any
provision of this Amendment modifies or is otherwise inconsistent with any
provision of the Sub-License Agreement, this Amendment shall control, but the
Sub-License Agreement shall otherwise remain in full force and effect.
4. This Amendment may be simultaneously executed in several counterparts,
each of which shall be an original and all of which shall constitute but one and
the same instrument.
IN WITNESS WHEREOF, the parties hereto have caused this Amendment to be
executed by their officers designated below as of the date first written above.
THE SELECT SECTOR SPDR TRUST
BY: /s/ Xxxxxx X. Xxxxxxx
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NAME: Xxxxxx X. Xxxxxxx
TITLE: Chairman
MERRILL, LYNCH, XXXXXX, XXXXXX & XXXXX INCORPORATED
BY: /s/ Xxxxx Xxx
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NAME: Xxxxx Xxx
TITLE: Managing Director
STANDARD & POOR'S, A DIVISION OF THE MCGRAW HILL COMPANIES, INC.
BY: /s/ Xxxxxx X. Xxxxxxxx
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NAME: Xxxxxx X. Xxxxxxxx
TITLE: Managing Director
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