AMENDMENT TO CUSTODIAN AGREEMENT
THIS AMENDMENT is made as of November 11, 2005, by and between THE SELECT
SECTOR SPDR TRUST, a Massachusetts business trust (the "FUND") and STATE STREET
BANK AND TRUST COMPANY, a Massachusetts trust company (the "CUSTODIAN").
RECITALS
A. The Fund and the Custodian are parties to that certain Custodian
Agreement dated as of December 1, 1998, as amended, (the "AGREEMENT") pursuant
to which the Custodian was appointed custodian of the Fund's assets;
B. The Fund and the Custodian wish to amend the terms of the Agreement as
set forth herein; and
C. All capitalized terms used herein and not otherwise defined herein shall
have the meanings ascribed to them in the Agreement.
NOW, THEREFORE, in consideration of the covenants and agreements set forth
herein, and other good and valuable consideration, the receipt and sufficiency
of which is hereby jointly and severally acknowledged, the parties hereto agree
as follows:
1. Amendment to Agreement. The Agreement is hereby amended to add the following
new Section 2.5A:
Section 2.5A. ALLOCATION OF DEPOSIT SECURITY SHORTFALLS. The Fund
acknowledges that the Custodian maintains only one account on the books of
the National Securities Clearing Corporation (the "NSCC") for the benefit
of all exchange traded funds for which the Custodian serves as custodian,
including the Fund (collectively, the "ETF CUSTODY CLIENTS"). In the event
that (a) two or more ETF Custody Clients require delivery of the same
Deposit Security in order to purchase a Creation Unit, and (b) the NSCC,
pursuant to its Continuous Net Settlement system, delivers to the
Custodian's NSCC account less than the full amount of such Deposit Security
necessary to satisfy in full each affected ETF Custody Client's required
amount (a "COMMON DEPOSIT SECURITY SHORTFALL"), then, until all Common
Deposit Security Shortfalls for a given Deposit Security are satisfied in
full, the Custodian will allocate to each affected ETF Custody Client, on a
pro rata basis, securities and/or cash received in the Custodian's NSCC
account relating to such shortfall, first to satisfy any prior unsatisfied
Common Deposit Security Shortfall, and then to satisfy the current Common
Deposit Security Shortfall.
2. No Other Modifications. Except to the extent amended hereby, the terms of the
Agreement shall remain unchanged and unaffected hereby and shall remain in full
force and effect to the extent of, and in accordance with, its terms.
3. Governing Law. This Amendment shall be governed by, subject to and construed
under the laws of the Commonwealth of Massachusetts without regard to the
conflict of laws provisions thereof.
4. Counterparts. This Amendment may be signed in counterparts, which shall
together with the Agreement constitute the original Agreement.
IN WITNESS WHEREOF, the parties hereto have caused to be duly executed this
Amendment as of the day and year written above.
THE SELECT SECTOR SPDR TRUST
By: /s/ Xxxx X. Xxxxxx
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Xxxx X. Xxxxxx,
President
STATE STREET BANK AND TRUST COMPANY
By: /s/ Xxxxxx X. Xxxxxx
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Xxxxxx X. Xxxxxx,
Executive Vice President
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