EXHIBIT(H)(23)

FINANCIAL WARRANTY AGREEMENT

among

DWS            TARGET FUND,

on            behalf of its series,

DWS            LIFECOMPASS PROTECT FUND,

DEUTSCHE INVESTMENT MANAGEMENT AMERICAS INC.,

as            investment adviser

|   | and |
|--------|-----|

MERRILL LYNCH BANK USA,

as            warranty provider

Dated as of [ ], 2007

             

 

**TABLE OF CONTENTS**

**Page**

| ARTICLE I                            DEFINITIONS | 4 |
|--------------------------------------------------|---|

|   | Section 1.1General Definitions. | 4 |
|--------|---------------------------------|---|

|   | Section 1.2Generic Terms. | 16 |
|--------|---------------------------|----|

| ARTICLE II AMOUNT AND TERMS OF THE                            FINANCIAL WARRANTY | 16 |
|----------------------------------------------------------------------------------|----|

|   | Section 2.1The Financial Warranty. | 16 |
|--------|------------------------------------|----|

|   | Section 2.2Procedure for Issuance of Financial                            Warranty. | 17 |
|--------|-------------------------------------------------------------------------------------|----|

|   | Section 2.3Conditions Precedent to                            Effectiveness. | 17 |
|--------|------------------------------------------------------------------------------|----|

|   | Section                            2.4   Financial Warranty Fee; Accelerated Financial                            Warranty Fee. | 21 |
|--------|------------------------------------------------------------------------------------------------------------------------------------------------|----|

|   | Section 2.5   Drawing                            Upon the Financial Warranty; Aggregate Shortfall Amount; Accelerated                            Shortfall Amount. | 21 |
|--------|-----------------------------------------------------------------------------------------------------------------------------------------------------------------------------------|----|

|   | Section 2.6   Certain                            Defined Terms Relating to the Protected Amount and Accelerated                            Protected Amount. | 22 |
|--------|-----------------------------------------------------------------------------------------------------------------------------------------------------------------------------|----|

| ARTICLE III MANAGEMENT OF THE                            FUND | 24 |
|---------------------------------------------------------------|----|

|   | Section 3.1General; Issuance of Shares. | 24 |
|--------|-----------------------------------------|----|

|   | Section 3.2Restrictions on Investments. | 24 |
|--------|-----------------------------------------|----|

|   | Section 3.3Allocation and Reallocation of Fund's                            Assets. | 26 |
|--------|-------------------------------------------------------------------------------------|----|

|   | Section 3.4Reports; Access to Information. | 28 |
|--------|--------------------------------------------|----|

|   | Section 3.5Intent. | 29 |
|--------|--------------------|----|

|   | Section 3.6Trading Restrictions. | 29 |
|--------|----------------------------------|----|

| ARTICLE IV TRIGGER                            EVENTS | 30 |
|------------------------------------------------------|----|

|   | Section 4.1Trigger Events. | 30 |
|--------|----------------------------|----|

|   | Section 4.2Defeasance Portfolio. | 35 |
|--------|----------------------------------|----|

| ARTICLE V INDEMNIFICATION AND                            CONTRIBUTION | 36 |
|-----------------------------------------------------------------------|----|

|   | Section 5.1Survival. | 36 |
|--------|----------------------|----|

|   | Section 5.2Indemnification. | 36 |
|--------|-----------------------------|----|

|   | Section 5.3Indemnification Procedure. | 39 |
|--------|---------------------------------------|----|

|   | Section 5.4Contribution. | 40 |
|--------|--------------------------|----|

| ARTICLE VI REPRESENTATIONS AND                            WARRANTIES | 41 |
|----------------------------------------------------------------------|----|

|   | Section 6.1Representations and Warranties of the                            Adviser. | 41 |
|--------|--------------------------------------------------------------------------------------|----|

|   | Section                            6.2   Representations and Warranties of the Trust on                            Behalf of the Fund. | 43 |
|--------|-------------------------------------------------------------------------------------------------------------------------------------------------------|----|

|   | Section                            6.3   Representations and Warranties of the Warranty                            Provider. | 46 |
|--------|---------------------------------------------------------------------------------------------------------------------------------------------|----|

 

| ARTICLE VII                            COVENANTS | 47 |
|--------------------------------------------------|----|

|   | Section 7.1Covenants of the Adviser. | 47 |
|--------|--------------------------------------|----|

|   | Section 7.2Covenants of the Trust on Behalf of the                            Fund. | 52 |
|--------|-------------------------------------------------------------------------------------|----|

|   | Section 7.3Covenants of the Trust. | 55 |
|--------|------------------------------------|----|

|   | Section 7.4Covenants of the Warranty                            Provider. | 55 |
|--------|---------------------------------------------------------------------------|----|

| ARTICLE VIII FURTHER                            AGREEMENTS | 56 |
|------------------------------------------------------------|----|

|   | Section 8.1Obligations Absolute. | 56 |
|--------|----------------------------------|----|

|   | Section 8.2Participations and Assignments. | 56 |
|--------|--------------------------------------------|----|

|   | Section 8.3Fund Liability. | 57 |
|--------|----------------------------|----|

|   | Section 8.4Limitation of Liability of the Warranty                            Provider. | 57 |
|--------|-----------------------------------------------------------------------------------------|----|

|   | Section 8.5Adviser Liability for Actions of                            Subadviser. | 58 |
|--------|------------------------------------------------------------------------------------|----|

|   | Section 8.6Calculation Agent as Agent; Alternative                            Delivery. | 58 |
|--------|-----------------------------------------------------------------------------------------|----|

|   | Section 8.7Calculation Agent Determinations Final and                            Binding. | 58 |
|--------|-------------------------------------------------------------------------------------------|----|

|   | Section                            8.8   Eligibility of Underlying Funds and Eligible Money                            Market Funds. | 58 |
|--------|-----------------------------------------------------------------------------------------------------------------------------------------------------|----|

| ARTICLE IX                            CONFIDENTIALITY | 59 |
|-------------------------------------------------------|----|

|   | Section 9.1Confidentiality Obligations of the Warranty                            Provider. | 59 |
|--------|---------------------------------------------------------------------------------------------|----|

|   | Section 9.2Holdings Information and Other                            Information. | 60 |
|--------|-----------------------------------------------------------------------------------|----|

|   | Section 9.3Confidentiality Obligations of the Adviser and the                            Fund. | 60 |
|--------|------------------------------------------------------------------------------------------------|----|

|   | Section 9.4Copies of Confidential                            Information. | 61 |
|--------|---------------------------------------------------------------------------|----|

| ARTICLE X                            TERMINATION | 62 |
|--------------------------------------------------|----|

|   | Section 10.1Termination; Financial Warranty                            Acceleration. | 62 |
|--------|--------------------------------------------------------------------------------------|----|

| ARTICLE XI                            MISCELLANEOUS | 63 |
|-----------------------------------------------------|----|

|   | Section 11.1Amendments and Waivers. | 63 |
|--------|-------------------------------------|----|

|   | Section 11.2Notices. | 64 |
|--------|----------------------|----|

|   | Section 11.3No Waiver, Remedies and                            Severability. | 65 |
|--------|------------------------------------------------------------------------------|----|

|   | Section 11.4Payments. | 65 |
|--------|-----------------------|----|

|   | Section 11.5Governing Law. | 66 |
|--------|----------------------------|----|

|   | Section 11.6Submission to Jurisdiction, Waiver of Jury                            Trial. | 66 |
|--------|------------------------------------------------------------------------------------------|----|

|   | Section 11.7Counterparts. | 66 |
|--------|---------------------------|----|

|   | Section 11.8Paragraph Headings. | 66 |
|--------|---------------------------------|----|

|   | Section 11.9Reliance on Information. | 66 |
|--------|--------------------------------------|----|

|   | Section 11.10Time of the Essence. | 67 |
|--------|-----------------------------------|----|

|   | Section 11.11No Third-Party Rights. | 67 |
|--------|-------------------------------------|----|

|   | Section 11.12Further Assurances. | 67 |
|--------|----------------------------------|----|

 

|   | Section 11.13Entire Agreement. | 67 |
|--------|--------------------------------|----|

                                                                                                                                                                            

 

|   |   |
|--------|--------|

 

Exhibit            A       Form of Financial Warranty

| Schedule 1 | Form of Daily Report |
|------------|----------------------|

| Schedule 2 | Names and Addresses of Certain Persons to Receive the                            Daily Report |
|------------|-----------------------------------------------------------------------------------------------|

| Schedule 3 | Designated Contacts |
|------------|---------------------|

| Schedule 4 | Adviser Parties to Receive Notices Under Section                            11.2 |
|------------|----------------------------------------------------------------------------------|

| Schedule A | Eligible Equity Investments |
|------------|-----------------------------|

| Schedule B | Eligible Fixed-Income Investments |
|------------|-----------------------------------|

| Schedule C | Eligible Money Market Funds |
|------------|-----------------------------|

| Schedule D | Equity Index ETF Indices |
|------------|--------------------------|

| Schedule E | Index Futures Indices |
|------------|-----------------------|

| Schedule F | Underlying Funds |
|------------|------------------|

| Annex A | Form of WP Information Letter |
|---------|-------------------------------|

| Annex B | Form of Escrow Agreement |
|---------|--------------------------|

| Annex C | Form of Confidentiality Agreement |
|---------|-----------------------------------|

 

**FINANCIAL WARRANTY AGREEMENT**

FINANCIAL WARRANTY AGREEMENT, dated as of [DATE], 2007 (the            “Agreement”), among DWS            TARGET FUND, an open-end management investment company organized as a business trust            under the laws of the Commonwealth of Massachusetts (the            “Trust”), on behalf of            its series, DWS LIFECOMPASS PROTECT FUND (the            “Fund”), DEUTSCHE            INVESTMENT MANAGEMENT AMERICAS INC., a corporation organized under the laws of the            State of Delaware (the            “Adviser”), and MERRILL            LYNCH BANK USA, an industrial bank organized under the laws of the State of Utah (the            “Warranty            Provider”).

WITNESSETH:

WHEREAS, the Trust is an open-end, management investment company            registered under the Investment Company Act of 1940, as amended (the            “Investment Company            Act”);

WHEREAS, the Trust on behalf of the Fund has requested, and the Warranty            Provider has agreed to issue, a financial warranty in substantially the form ofExhibit A(such financial warranty being            the “Financial            Warranty”) in an amount not to exceed $1 billion in            coverage of the Aggregate Protected Amount (as defined below), subject to the terms and            conditions of this Agreement; and

WHEREAS, the parties hereto, among other things, desire to specify the            conditions precedent to the issuance by the Warranty Provider of the Financial Warranty            and the drawdown of the Financial Warranty, the payment of fees to the Warranty            Provider in respect of the Financial Warranty, and to provide for certain other matters            related thereto.

NOW, THEREFORE, for good and valuable consideration, the receipt and            sufficiency of which is hereby acknowledged, the parties hereto agree as            follows:

 

**ARTICLE I**

**DEFINITIONS**

Section            1.1       General Definitions.The terms defined in            this Article I shall have the meanings provided herein for all purposes of this            Agreement, including all exhibits, schedules and annexes hereto, in both singular and            plural form, as appropriate.

“Accelerated Aggregate Shortfall            Amount” has the meaning provided inSection 2.6(a).

“Accelerated Discount            Factor” has the meaning provided inSection 2.6(b).

“Accelerated Financial Warranty            Fee” has the meaning provided inSection 2.6(c).

“Accelerated            Floor” has the meaning provided inSection 2.6(d).

“Accelerated Floor            Shortfall” has the meaning provided inSection 2.6(e).

“Accelerated Shortfall            Amount” has the meaning provided inSection 2.6(f).

“Act of            Insolvency” means, with respect to any party (including            the Fund as a series of the Trust), (i) the commencement by such party as debtor            of any case or proceeding under any

 

bankruptcy, insolvency, reorganization, liquidation, dissolution or            similar law, or such party seeking the appointment of a receiver, trustee, custodian or            similar official for such party or any substantial part of its property; (ii) the            appointment of a receiver, conservator, or manager for such party by any Government            Authority having the jurisdiction to do so; (iii) the commencement of any case or            proceeding referred to in (i) above against such party, which (a) is            consented to or not timely contested by such party, (b) results in the entry of an            order for relief, such an appointment, the issuance of such a protective decree or the            entry of an order having a similar effect, or (c) is not dismissed within 72            hours; (iv) the making or offering by such party of a composition with its            creditors or a general assignment for the benefit of creditors; (v) the admission            by such party of such party’s inability to pay its debts or discharge its            obligations as they become due or mature; or (vi) any action taken by any            Government Authority or any person, agency or entity acting under a Government            Authority to condemn, seize or appropriate, or to assume custody or control of, all or            any substantial part of the property of such party.

“Acts”            means the Investment Company Act and the Securities Act.

“Additional Floor            Shortfall” has the meaning provided inSection 4.1(d).

“Adjusted Discount            Factor” has the meaning provided inSection 3.3(a).

“Adjusted Fee            Factor” has the meaning provided inSection 2.6(g).

“Adverse            Effect” means, (i) with respect to the Adviser, a            material adverse effect upon (a) the ability of the Adviser to perform its            obligations under this Agreement or any other Transaction Document to which it is a            party, or (b) the rights of the Warranty Provider under the Transaction Documents,            (ii) with respect to the Trust or the Fund, a material adverse effect upon            (a) the ability of the Trust or the Trust on behalf of the Fund, to perform its            obligations under this Agreement or any other Transaction Document to which it is a            party or (b) the rights of the Warranty Provider under the Transaction Documents,            (iii) with respect to the Warranty Provider, a material adverse effect upon (a)            the ability of the Warranty Provider to perform its obligations under this Agreement or            any other Transaction Document to which it is a party or (b) the rights of the Adviser,            the Trust or the Fund under the Transaction Documents; and (iv) with respect to each            party, an adverse effect on the binding nature, validity or enforceability of this            Agreement. The determination of whether a particular set of circumstances could            reasonably be expected to have an Adverse Effect includes a determination of the            likelihood of the occurrence of such set of circumstances and the likelihood that such            set of circumstances, if it were to occur, would result in an Adverse            Effect.

“Adviser”            has the meaning provided in the preamble.

“Adviser            Conduct” has the meaning provided inSection 4.1(d).

“Affiliate”            means any Person directly or indirectly controlling or controlled by or under common            control with such Person or any Subsidiary;*provided*that for purposes of this            definition, “control” (including, with correlative meanings, the terms            “controlled by” and “under common control with”), as used with            respect to any Person, shall mean the possession, directly or indirectly, of the power            to direct or cause the direction of the management and policies of such Person, whether            through the ownership of voting securities or by contract or otherwise.

             

“Aggregate Protected            Amount” has the meaning provided inSection 2.6(h).

 

“Aggregate Shortfall            Amount” has the meaning provided inSection 2.6(i).

“Agreement”            has the meaning provided in the preamble.

“Arbitration Submission            Notice” has the meaning provided inSection 4.1(e).

“Assignee            Criteria” has the meaning provided inSection 8.2(a).

“Bank            Deposits” means any of the following: demand and time            deposits in, certificates of deposit of, and bankers’ acceptances issued by any            depository institution or trust company incorporated under the laws of the United            States of America or any state thereof and subject to supervision and examination by            federal and/or state banking authorities so long as the commercial paper or debt            obligations of such depository institution or trust company (or, in the case of the            principal depository institution in a holding company system, the commercial paper or            debt obligations of such holding company) have a credit rating of at least            “P-1” by Moody’s and at least “A-1” by S&P (or            equivalent credit ratings if different rating categories are used), in the case of            commercial paper and short-term obligations;*provided*that the issuer thereof must also            have at the time of such investment a long-term credit rating of at least            “Aa3” by Moody’s or at least “AA” by S&P (or            equivalent credit ratings if different rating categories are used).

“Benchmark Yield            Curve” means either USD LIBOR and USD swap rates or            U.S. dollar Treasury rates, any of such as determined by the Calculation            Agent.

“Board”            means the Board of Trustees of the Trust, unless the context otherwise            requires.

“Bond            Ladder” means a portfolio of U.S. Zeroes whose            maturities fall within a date range between and including ____________ and            ____________,*provided*that no more            than 52% of all such U.S. Zeroes, based on face value, matures either before or after            the Maturity Date; and*provided**further*, that if at any time there are            three or more issues of U.S. Zero STRIPS available in the market that mature between            and including ____________ and ____________ and if the Fund’s assets have not            already been required to be invested in the Defeasance Portfolio, the Adviser will            narrow the date range hereunder to ____________ and____________ for all future            purchases of U.S. Zeros.

“Business            Day” means any day other than a day on which banks            located in the City of New York, New York are required or authorized by law to close or            on which the New York Stock Exchange, the American Stock Exchange, and the NASDAQ            National Market are closed for business.

“Calculation            Agent” means Merrill Lynch International or any            successor calculation agent.

“Calculation Agent            Certificate”has the meaning            provided inSection            2.5(a).

“Calculation            Date” has the meaning provided inSection 2.6(j).

“Cash”            means legal tender of the United States.

“Cash            Equivalents” means Bank Deposits, Commercial Paper,            U.S. Government Securities and any Eligible Money Market Fund. To be considered Cash            Equivalents, Bank Deposits and Commercial Paper shall have a maturity of ninety days or            less and U.S. Government Securities shall have a maturity of 180 days or            less.

 

“Class of            Shares” means each class of shares of beneficial            interest of the Fund designated pursuant to the Declaration of Trust.

“Code”            means the Internal Revenue Code of 1986, as amended.

“Commercial            Paper” means commercial paper that (i) is issued or            guaranteed by an operating company and not a “Special Purpose Entity” (as            such term is defined in Rule 2a-7 under the Investment Company Act); (ii) is not an            “Asset Backed Security” (as such term is defined in Rule 2a-7 under the            Investment Company Act) regardless of its credit rating; and has a credit rating of at            least “P-1” by Moody’s and at least “A-1” by S&P (or            equivalent credit ratings if different rating categories are used), either bearing            interest or sold at a discount from the face amount thereof, and issued by either            (x) a corporation or limited liability company incorporated under the laws of the            United States of America or any state thereof, or (y) any depository institution            or trust company incorporated under the laws of the United States of America or any            state thereof and subject to supervision and examination by federal and/or state            banking authorities;*provided*that            the issuer thereof must also have at the time of such investment a long-term credit            rating of at least “Aa3” by Moody’s or at least “AA-” by            S&P (or equivalent credit ratings if different rating categories are            used).

“Commission”            means the United States Securities and Exchange Commission.

“Contractual            Obligation” means, as to any Person, any provision of            any security issued by such Person or any agreement, instrument or other undertaking to            which such Person is a party or by which it or any of its property is bound.

“Curative            Steps” has the meaning provided inSection 4.1(b).

“Custodian”            means State Street Bank and Trust Company, as the Fund’s custodian pursuant to            the Custodian Agreement or any successor custodian of the Fund’s assets appointed            by the Board.

“Custodian            Agreement” means the Master Custodian Agreement, dated            March 17, 2004between the Custodian and the Trust, as amended to            add the Fund as a party, and as such contract may be amended from time to time or any            successor agreement providing for the custody of the Fund’s assets.

“Custodian Instruction            Agreement” means the Custodian Instruction Letter and            Agreement, dated as of the date of this Agreement, among the Custodian and the Trust on            behalf of the Fund, as such agreement may be amended from time to time.

“Daily            Report” means a report in the form of the sample            attached asSchedule 1hereto.

“Declaration of            Trust” means the Trust’s Declaration of Trust,            dated as of September 15, 1994, as amended and in effect from time to time.

“Defeasance            Date” is the date on which a Trigger Initiated            Defeasance Event or Market Initiated Defeasance Event occurs.

“Defeasance            Portfolio” means the Fund Portfolio where all of the            Fund’s assets have been allocated to U.S. Zeroes and Cash and Cash Equivalents            after a Market Initiated Defeasance Event occurs or after the Warranty Provider            exercises its rights underSection            4.1(c)(i). The Defeasance Portfolio shall consist solely of            the following assets: (a) U.S. Zeros, which collectively shall be held in conformity            with the Bond Ladder; and (b) Cash and Cash Equivalents up to a maximum of 1% of            the

 

Fund’s Total Assets as determined on each Exchange Business            Day,*provided*that the Fund shall be            permitted to hold an amount of Cash (i) necessary to meet redemption requests actually            received by the Fund or to pay for Fund Fees and Expenses payable within the next 5            Exchange Business Days, or (ii) received by the Fund as a result of U.S. Zeroes            maturing, and*provided further*that            the Fund may invest any Cash received as a result of the U.S. Zeroes maturing in an            Eligible Money Market Fund to the extent such Eligible Money Market Fund continues to            otherwise be an eligible investment hereunder.

“Designated            Contact” has the meaning provided inSection 3.6(a).

“Determination            Notice” has the meaning provided inSection 4.1(d).

“Distribution Per            Share” means, with respect to any Class of Shares, an            amount equal to the quotient of (i) the amount of any distribution or payment by            the Fund in respect of, or allocated to, such Class of Shares that is not a Fund Fee            and Expense and shall include, without limitation, any distribution of income,            dividends, capital gains or principal to the Shareholders of such Class of Shares and            any payment of Income Taxes allocated to such Class of Shares, and (ii) the number of            Shares of such Class of Shares outstanding immediately prior to the date of such            distribution or payment.

“Early Close Exchange Business            Day” has the meaning provided inSection 4.1(a).

“Early Termination            Date” is the date the Board designates as the date as            of which any Accelerated Shortfall Amount shall be calculated because of an Early            Termination Event, which date shall be within 120 days of the date the Board determines            that the Early Termination Event has occurred.

“Early Termination            Event” has the meaning provided inSection 10.1(c). 

“Effective            Date” means the date as of which this Agreement has            been executed and delivered by all of the parties hereto and all of the closing            conditions in Section 2.3 have been either satisfied or waived.

“Eligible Equity            Investments” means, subject to the limits of Section            3.2, (i) shares of any Underlying Fund as set forth on Schedule F hereto, (ii) Index            Assets, (iii) Cash and Cash Equivalents to the extent that the value of such Cash and            Cash Equivalents is in excess of 3% of the value of the Fund’s Total Assets on            any Exchange Business Day and (iv) such other instruments and investments as may be            permitted (and subject to such terms as may be specified) in writing by the Warranty            Provider in its sole discretion, which approval shall be evidenced by an amendment to            Schedule A.

“Eligible Fixed-Income            Investments” means, subject to the limits of Section            3.2, (i) U.S. Government Securities, (ii) Cash and Cash Equivalents, (iii) shares of            any Underlying Fund as set forth on Schedule F hereto and (iv) such other instruments            and investments as may be permitted (and subject to such terms as may be specified) in            writing by the Warranty Provider in its sole discretion, which approval shall be            evidenced by an amendment to Schedule B.

“Eligible Money Market            Fund” means (i) DWS Cash Management QP Trust, an            unregistered money market fund, but only so long as such fund is managed in accordance            with the requirements of Rule 2a-7 under the Investment Company Act (where the Adviser            performs such duties as are permitted or required to be performed by a money market            fund’s board of directors under Rule 2a-7) or (ii) any other money market fund            (whether or not registered under the Investment Company Act) managed in accordance with            Rule 2a-7 under the Investment Company Act as may be permitted (and subject to such            terms as may be specified) in writing by the Warranty Provider in its sole discretion,            which approval shall be evidenced by an amendment to Schedule C;*provided*that in each case no            notice

 

has            been given by the Warranty Provider to the Adviser and the Fund pursuant toSection 8.8that the DWS Cash Management QP            Trust or such other money market fund has ceased to be eligible as an Eligible Money            Market Fund hereunder.

“Equity Index            ETF” means, as limited by Schedule D hereto, a            U.S.-dollar denominated non-leveraged, long only exchange-traded fund that is            registered as an open-end investment company under the Investment Company Act and            primarily traded on either the New York Stock Exchange, the NYSE Arca Exchange or the            American Stock Exchange and that is based on (and is intended to substantially track            without any stock selection or index composition enhancement, weighting or other            difference from the methodology employed by the official maintainer of such index            (other than any optimization technique utilized solely to reduce tracking error to the            index)) one of the following indices: S&P 500 Index, Russell 1000 Index, Russell            2000 Index, S&P MidCap 400 Index and MSCI EAFE Index or such other indices as may            be permitted (and subject to such terms as may be specified) in writing by the Warranty            Provider in its sole discretion, which approval shall be evidenced by an amendment to            Schedule D.

“Equity Limit for all Classes of            Shares” has the meaning provided inSection 3.3(a).

“Equity            Portfolio” means the portion of the Fund’s assets            invested in Eligible Equity Investments at any time during the Warranty            Period.

“Escrow            Account” has the meaning provided inSection 4.1(f).

“Escrow            Agreement” means the Escrow Agreement, dated as of the            date of this Agreement, between the Adviser, the Custodian and the Warranty Provider,            as such Escrow Agreement may be amended from time to time.

“Excess            Fees” has the meaning provided inSection 2.6(k).

“Exchange Business            Day” means any day other than a day on which the New            York Stock Exchange is scheduled to be closed for business.

“Expected Shortfall            Notice” has the meaning provided inSection 2.5(a).

“Extraordinary            Expenses” means all Fund Fees and Expenses that are            incurred or accrued by the Fund other than in its ordinary course of business,            including by way of example only and not intended as an exhaustive list, (i) all            costs of defending or prosecuting any claim or litigation to which the Fund is a party,            (ii) any amount in judgment or settlement or indemnification expenses incurred by            the Fund, (iii) any other non-recurring or non-operating expenses, (iv) any            payment by the Fund of any liability, expense or fee of another series of the Trust,            and (v) any Income Taxes. Extraordinary Expenses shall also include all redemption fees            and sales charges incurred or accrued by the Fund as a shareholder of any Underlying            Fund, Eligible Money Market Fund or any other investment fund or asset pool advised,            administered, managed or sponsored by the Adviser or its affiliates, whether or not            incurred in the ordinary course of the Fund’s business.

“Fee            Factor” has the meaning provided inSection 3.3(a).

“Fee Payment            Date” has the meaning provided inSection 2.4.

“Final Post-Effective            Amendment” means post-effective amendment number [__]            to the Registration Statement, as in effect as of the Date of this            Agreement.

 

“Final            Prospectus” means the definitive prospectuses of the            Fund (as evidenced by a filing under Rule 497 of the Securities Act) dated            [_____________, 2007], as amended, modified or supplemented and in effect as of the            date of this Agreement.

“Financial            Warranty” has the meaning provided in the            recitals.

“Financial Warranty Amount            Limit” has the meaning provided inSection 2.1.

“Financial Warranty            Fee” has the meaning provided inSection 2.4.

“Fitch”            means Fitch Ratings, a division of Fitch, Inc.

“Fixed-Income            Portfolio” means the portion of the Fund’s assets            invested in Eligible Fixed-Income Investments at any time during the Warranty            Period.

“Floor”            means the product of (i) the Adjusted Discount Factor and (ii) the Protected            Amount Per Share, in each case with respect to the relevant Class of Shares.

“Floor            Shortfall” with respect to each Class of Shares at any            time, means the Shares Outstanding for such Class of Shares multiplied by the            difference of the NAV Per Share minus the Floor, if a negative number in each case, at            the relevant time.

“Force Majeure            Event” means any act of God (such as an earthquake,            flood, fire, storm, epidemic and any other natural physical disaster), war (declared or            undeclared), act of war, conditions due to war (such an invasion, act of hostilities,            embargo, blockade or other enemy action, revolution or rebellion), civil commotion,            riot, insurrection, explosion, terrorist acts, seizure or act of sabotage or            expropriation or compulsory acquisition by any Government Authority.

“Fund”            has the meaning provided in the Preamble.

“Fund/Adviser            Parties” has the meaning provided inSection 5.2(c).

“Fund/Adviser            Representatives” has the meaning provided inSection 9.3(b).

“Fund Confidential            Information” has the meaning provided inSection 9.1.

“Fund Fees and            Expenses” means all fees, costs, charges and expenses            incurred or accrued by the Fund, including, without limitation, management fees,            distribution fees, custodian fees, service fees, redemption fees and sales charges (as            may be incurred by the Fund as a shareholder of any investment fund or other asset            pool), the Financial Warranty Fee, Trustee Fees and Expenses, interest, stamp, transfer            or other similar taxes, brokerage commissions, transaction fees and other investment            related costs and any other expense whether or not incurred in the ordinary course of            the Fund’s business (including, without limitation, the cost of defending or            prosecuting any claim or litigation to which the Fund is a party, together with any            amount in judgment or settlement or indemnification expenses incurred by the Fund and            any other non-recurring or non-operating expenses).

“Fund            Portfolio” has the meaning provided inSection 3.1.

“Futures Balance            Cash” means an amount of segregated or earmarked            unencumbered Cash and Cash Equivalents allocated to the Equity Portfolio as set forth            in this definition. If any assets are allocated to the Fixed Income Portfolio, the Fund            shall hold an amount of Futures Margin Cash and

 

Futures Balance Cash that is collectively equal to or greater than the            aggregate Market Value of the Index Futures held in the Equity Portfolio. If no assets            are allocated to the Fixed Income Portfolio, the Fund shall hold an amount of Futures            Margin Cash and Futures Balance Cash that is collectively equal to or greater than the            Total Assets of the Fund minus the sum of (i) the Market Value of the Equity Index            ETFs, and (ii) the Market Value of the Underlying Fund shares held by the Fund            allocated to the Equity Portfolio;*provided*,*however,*that notwithstanding the above            formula, the Fund shall segregate or earmark Futures Balance Cash in excess of the            amount determined by such formula if the Fund is required to segregate or earmark such            additional amount by Requirements of Law.

“Futures Margin            Cash” means, with respect to any particular Index            Future, the market value of the Cash and Cash Equivalents posted as margin by the Fund            when engaging in transactions in Index Futures.

“Government            Authority” means any nation or government, any state or            other political subdivision or agency thereof and any entity exercising executive,            legislative, judicial, regulatory or administrative functions or pertaining to            government, including any self-regulatory organization.

“Guarantor            Affiliate” has the meaning provided inSection 8.2(a).

“Highest            Floor” has the meaning provided inSection 3.3(a).

“Holdings            Information” has the meaning provided inSection 9.1.

“Income            Taxes” means income or excise taxes that are calculated            on the net income or undistributed net income of the Fund, including any interest,            penalties or additions thereon.

“Indemnification            Notice” has the meaning provided inSection 5.3(a).

“Indemnified            Party” has the meaning provided inSection 5.3(a).

“Indemnifying            Party” has the meaning provided inSection 5.3(a).

“Index            Assets” means Index Futures and Equity Index            ETFs.

“Index Assets Balance            Limit” means, at the time of determination, (i) no more            than 25% of the Total Equity Exposure shall be comprised of Index Assets intended to            substantially track the performance of each of the Russell 2000 Index, S&P Mid-Cap            400 Index and the MSCI EAFE Index, with the 25% limit applying to each such index            individually; and (ii) no more than 50% of the Total Equity Exposure shall be comprised            of Index Assets intended to substantially track the performance of the Russell 1000            Index, Russell 2000 Index, S&P Mid-Cap 400 Index and MSCI EAFE Index, with the 50%            limit applying to such indices in the aggregate.

“Index            Futures” means, as limited by Schedule E hereto,            futures contracts (which must be U.S.-exchange traded and U.S. dollar denominated)            based on the following indices, or their respective successor indices: S&P 500            Index, Russell 1000 Index, Russell 2000 Index, S&P Mid-Cap 400 Index and MSCI EAFE            Index or such other indices as may be permitted (and subject to such terms as may be            specified) in writing by the Warranty Provider in its sole discretion, which approval            shall be evidenced by an amendment to Schedule E.

“Ineligible            Investments” means a security or instrument that is            neither an Eligible Equity Investment nor an Eligible Fixed-Income            Investment.

 

“Investment Advisers            Act” means the Investment Advisers Act of 1940, as            amended.

“Investment Company            Act” has the meaning provided in the            recitals.

“Investment Management            Agreement” means the Investment Advisory Agreement,            dated as of [DATE], 2007, between the Trust on behalf of the Fund and the            Adviser.

“Irrevocable            Instructions” has the meaning provided inSection 4.2(a).

“Letter            Agreement” means the Letter Agreement, dated as of the            date of this Agreement, between the Adviser and the Warranty Provider, as such Letter            Agreement may be amended from time to time.

“Lien”            means any mortgage, pledge, hypothecation, assignment, deposit arrangement,            encumbrance, charge, lien or security interest (statutory or otherwise) of any kind or            nature whatsoever.

“Litigation            Event” means, with respect to the Adviser, the Trust or            the Fund, as applicable, the submission of any claim or the commencement of any            proceedings by or against such party in any federal, state or local court in any            jurisdiction or before any other Government Authority, or before any arbitrator, or the            explicit threat of any such proceedings, which, if adversely determined, could have an            Adverse Effect in respect of such party.

“Loans for Temporary or Emergency            Purposes” means loans that are outstanding for not more            than 60 days (and are not extended or renewed) in an aggregate amount not exceeding            five percent of the value of the total assets of the Fund at the time when the loan is            made, in conformity with Section 18(g) of the Investment Company Act.

“Losses”            has the meaning provided inSection 5.2(a).

“Lowest NAV Per            Share” has the meaning provided inSection 3.3(a).

“Market Initiated Defeasance            Event” means any time during the Warranty Period when            absent the occurrence of a Trigger Event or Trigger Initiated Defeasance Event, the            Maximum Equity Component, as determined in accordance with the formula set forth            inSection 3.3(a), is less than or            equal to 0.025.

“Market            Value” means the value of (i) any security or            instrument or (ii) in the case of the Equity Portfolio or Fixed Income Portfolio, the            assets allocated to the Equity Portfolio or Fixed Income Portfolio, respectively, in            each case determined in accordance with the valuation procedures of the Trust. In the            case of shares of an Underlying Fund or shares of an Eligible Money Market Fund held by            the Fund, Market Value means the last published or determined net asset value per share            of such Underlying Fund or Eligible Money Market Fund multiplied by the number of such            shares held by the Fund. In the case of an Index Future, Market Value means the            Underlying Value of such Index Future held by the Fund.

“Marketing            Material” means any communication (whether in writing,            electronic form, by radio, by television, by internet or otherwise) used by any person            to offer to sell or induce, or in connection with, the sales of any securities of the            Fund. Communications between issuers, underwriters and dealers are included in this            definition of Marketing Material if such communications, or the information contained            therein, could reasonably be expected to be communicated to prospective            investors

 

in            the offer or sale of securities or are designed to be employed in either written or            oral form in the sale of securities.

“Maturity            Date” means ____________, 2017 [ten years from            Effective Date], but if that date is not an Exchange Business Day the Maturity Date            shall be the first Exchange Business Day thereafter.

“Maximum Equity            Component” has the meaning provided inSection 3.3(a).

“ML &            Co.” has the meaning provided inSection 8.2(a).

“Moody’s”            means Moody’s Investors Service, Inc.

“MSCI EAFE            Index” means the Morgan Stanley Capital International            Europe, Australasia, and Far East Index.

“Multiple”            has the meaning provided inSection 3.3(a).

“NAV Per            Share” has the meaning provided inSection 2.6(l).

“Net            Assets” means at any time, the value of all of the            assets of the Fund minus the value of its accrued and unpaid liabilities at the time of            determination, as calculated in accordance with the provisions of the Investment            Company Act and the procedures of the Trust.

“Objection            Event” has the meaning provided inSection 4.1(d).

“Objection            Notice” has the meaning provided inSection 4.1(d).

“Other            Information” has the meaning provided inSection 9.1.

“Overweight            Index” has the meaning provided inSection 3.6(b).

“Overweight Index            Exposure” has the meaning provided inSection 3.6(b).

“Permitted            Instructions” has the meaning provided inSection 7.1(p).

“Permitted            Recipients” has the meaning provided inSection 9.2(a).

“Person”            means a natural person, partnership, corporation, business trust, joint stock company,            trust, unincorporated association, limited liability company, joint venture, Government            Authority or other entity of whatever nature.

“Portfolio            Requirements” has the meaning provided inSection 3.1.

“Potential Trigger            Event” means any action, inaction, omission, event or            circumstance that with the giving of notice or lapse of time or if not cured or waived            could give rise to a Trigger Event.

“Prospectus”            means for any Class of Shares, the prospectus and statement of additional information            pursuant to which the shares of such Class of Shares are offered for sale, including            any supplement or information contained in a prospectus or statement of additional            information filed with the Commission pursuant to Rule 497 under the Securities Act, as            the same may be amended, supplemented or modified and in effect from time to            time.

 

“Protected Amount Per            Share” has the meaning provided inSection 2.6(m).

“Protected High            NAV” has the meaning provided inSection 2.6(n).

“Rebalance            Date” means the last Exchange Business Day of every            month; such day being the day on which date the Index Assets held by the Fund shall be            rebalanced by the Adviser in accordance withSection            3.2(ii)(B)of this Agreement.

“Reduced Financial Warranty            Fee” has the meaning provided inSection 2.4(a).

“Registration            Statement” has the meaning provided inSection 2.3(a)(vi).

“Regulatory            Change” means with respect to the Adviser or the Fund,            as the case may be, any change in any law, regulation or rule, or interpretation of any            such law, regulation or rule, by a Government Authority that becomes effective after            the Effective Date with respect to any statute to which such party or any of its            property is subject including, as applicable, the Investment Company Act and the            Investment Advisers Act which has resulted in or could be reasonably expected to result            in an Adverse Effect in respect of such party.

“Regulatory            Event” means with respect to the Adviser or the Fund,            as the case may be, any governmental or regulatory action that limits, suspends, or            terminates the rights, privileges or operation of such party, which has resulted in or            could be reasonably expected to result in an Adverse Effect in respect of such            party.

“Requirements of            Law” means, as to any Person, the charter, by-laws,            declaration of trust or other organizational or governing document or documents of such            Person, and any law, treaty, rule, regulation, exemptive order issued to, and relied on            by, or no-action letter issued to, and relied on by, such Person, or determination of            an arbitrator or a court or other Government Authority, in each case applicable to or            binding upon such Person or any of its property or to which such Person or any of its            property is subject.

“Russell 1000            Index” means the Russell 1000 Index maintained by the            Russell Investment Group.

“Russell 2000            Index” means the Russell 2000 Index maintained by the            Russell Investment Group.

“Securities            Act” means the Securities Act of 1933, as            amended.

“Service            Agreement” means the Service Agreement, dated as of the            date of this Agreement, among the Adviser, the Trust on behalf of the Fund, and the            Warranty Provider, as such agreement may be amended from time to time.

“Shareholders”            means the shareholders of the Fund.

“Shares”            means shares of beneficial interest of any Class of Shares of the Fund.

“Shares            Outstanding” means on any day of determination, the            number of issued and outstanding Shares with respect to a Class of Shares, excluding            any Shares issued in violation ofSection 3.1and Shares for which redemption orders have been received and accepted            by the Fund.

 

“Shortfall            Amount” has the meaning provided inSection 2.6(o).

“S&P”            means Standard & Poor’s Ratings Services, a Division of The McGraw-Hill            Companies, Inc.

“S&P Mid-Cap 400            Index” means the Standard & Poor’s MidCap 400            Index.

“S&P 500            Index” means the Standard and Poor’s 500 Price            Index.

“SPX”            means the S&P 500 Index or other successor index as determined by the Calculation            Agent.

“State Street            System” means the In~SightSM System operated            by the Custodian or any equivalent successor system acceptable to the Warranty Provider            in its reasonable discretion.

“Subsequent Exchange Business            Day” means the day following the relevant Exchange            Business Day.

“Subsidiary”            means, with respect to any Person, any corporation, business trust, association or            other entity of which securities representing 50% or more of the combined voting power            of the total capital stock (or in the case of a business trust, an association or other            business entity which is not a corporation, 50% or more of the equity interest) is at            the time owned or controlled, directly or indirectly, by that Person or one or more            Subsidiaries of that Person or a combination thereof.

“Termination            Date” has the meaning provided inSection 10.1(a).

“Total            Assets” has the meaning provided inSection 2.6(p).

“Total Equity            Exposure” means the aggregate Market Value of the Index            Assets, Underlying Fund shares and any Cash or Cash Equivalents or other securities or            instruments held, or deemed to be held (including any Ineligible Investments) in the            Equity Portfolio at any time, but excluding any Futures Margin Cash or Futures Balance            Cash.

“Transaction            Documents” means this Agreement, the Financial            Warranty, the Investment Management Agreement, the Custodian Agreement, the Custodian            Instruction Agreement, the Service Agreement, the Irrevocable Instructions, the WP            Information Letter, the Letter Agreement, the Declaration of Trust, the Prospectus            (including the Final Prospectus) and the Registration Statement (including the Final            Post-Effective Amendment) relating to each Class of Shares, as each may be amended,            supplemented or otherwise modified from time to time.

“Trigger            Event” means each event set forth inSection 4.1(a).

“Trigger Initiated Defeasance            Event” has the meaning provided inSection 4.1(c).

“Trust”            has the meaning provided in the preamble.

“Trustee Fees and            Expenses” means compensation and expenses of the            Trust’s trustees who are not “interested persons” (as that term is            defined in the Investment Company Act) of the Adviser or the Fund allocated to the            Fund, and the expenses of any counsel or other Persons, or for services, retained by            such trustees for and on behalf of the Fund or such trustees.

 

“Underlying            Fund” means the DWS Short Duration Plus Fund (Bloomberg            Ticker “MGSFX”) or such other registered investment company managed by the            Adviser as may be permitted (and subject to such terms as may be specified) in writing            by the Warranty Provider in its sole discretion, which approval shall be evidenced by            an amendment to Schedule F;*provided*that no notice has been given by the Warranty Provider to the Adviser            and the Fund pursuant toSection 8.8that such registered investment company has ceased to be eligible as an            Underlying Fund hereunder.

“Underlying            Value” means, with respect to any particular Index            Future, at the time of valuation, the product of (i) the exchange reported closing            price for the day such valuation is calculated (or, if such exchange reported closing            price is not available (due to an intra-day valuation or otherwise), the current bid            price) of such Index Future as quoted on the applicable exchange; and (ii) the            applicable multiplier (as defined by the exchange on which such Index Future is listed)            for such Index Future.

“U.S. Government            Securities” means non-callable general obligations of            the United States Treasury backed by the full faith and credit of the United States of            America.

“U.S.            Zeroes” means U.S. Government Securities that pay no            coupon and have a single bullet maturity payment, including regular Separate Trading of            Registered Interest and Principal Securities (“STRIPS”) or Principal            STRIPS.

“Warranty            Period” means the period commencing on and including            the Effective Date through and including the Maturity Date.

“Warranty            Provider” has the meaning provided in the            preamble.

“Warranty Provider Confidential            Information” has the meaning provided inSection 9.3(a).

“Warranty Provider            Parties” has the meaning provided inSection 5.2(a).

“Warranty Provider            Representatives” has the meaning provided inSection 9.2(b).

“WP Information            Letter” means a letter in substantially the form            attached hereto as Annex A delivered to the Fund setting forth the information            regarding the Warranty Provider that the Warranty Provider has provided for inclusion            or to be incorporated by reference into the Registration Statement.

Section            1.2       Generic Terms.All words used herein shall            be construed to be of such gender or number as the circumstances require. The words            “herein,” “hereby,” “hereof” and            “hereto,” and words of similar import, refer to this Agreement in its            entirety and not to any particular paragraph, clause or other subdivision, unless            otherwise specified. The word “including” shall mean “including            without limitation” unless otherwise specified. Section, Exhibit, Schedule and            Annex references are to this Agreement unless otherwise specified.

             

**ARTICLE II**

**AMOUNT AND TERMS OF THE FINANCIAL WARRANTY**

Section 2.1      The            Financial Warranty.The Warranty Provider agrees to issue the Financial Warranty in            substantially the Form of Annex A hereto, subject to the conditions set forth herein,            on the Effective Date, in an amount not to exceed $1 billion in coverage of the            Aggregate Protected Amount (the “Financial Warranty            Amount Limit”). The Financial Warranty will be issued            in the form of a letter of credit issued in accordance with Chapter 5 of the Utah            Uniform Commercial Code, Section 70A-5-101*et            seq.*, and the amount available for any drawing on the            Financial Warranty shall be determined as provided for in this Agreement.

|   | Section 2.2 | Procedure for Issuance of Financial Warranty. |
|--------|-------------|-----------------------------------------------|

If, and only if, all of the applicable conditions set forth inSection 2.3hereof are fulfilled prior to            9:00 a.m. (Eastern time) on the proposed Effective Date, the Warranty Provider will            issue the Financial Warranty by 9:00 a.m. on the proposed Effective Date to the Fund in            an amount equal to the Financial Warranty Amount Limit, it being acknowledged and            understood that the Fund may draw upon the Financial Warranty only following the            Maturity Date or the Early Termination Date, if any, and in all cases only in the            lesser amount of the Shortfall Amount or Accelerated Shortfall Amount, as applicable,            as each such amount may be reduced in accordance with the provisions of this            Agreement.

|   | Section 2.3 | Conditions Precedent to Effectiveness. |
|--------|-------------|----------------------------------------|

            (a)   Article V, Article VI and Article VII hereof            shall be effective immediately upon the execution and delivery of this Agreement. The            effectiveness of all other provisions of this Agreement and the obligation of the            Warranty Provider to issue the Financial Warranty is subject to the satisfaction or            waiver of the conditions set forth below on the Effective Date. For the avoidance of            doubt, it is acknowledged and agreed by the parties hereto that all of the conditions            below deemed to be for the benefit of the Warranty Provider are considered material and            the Warranty Provider shall incur no obligation under Article V or otherwise under this            Agreement for its failure to issue the Financial Warranty until the conditions set            forth below are satisfied or waived. Each provision of this Section 2.3(a),            except for (vii)(B), (viii)(B), (ix), (xi), and            (xix) below, is deemed to be for the benefit of the Warranty Provider and may be            waived or postponed, in whole or in part, solely by the Warranty Provider at any time            in its sole discretion. Sections (vii)(B), (viii)(B), (ix),            (xi), and (xix) are deemed to be for the benefit of the Adviser and the            Trust on behalf of the Fund, and may be waived or postponed, in whole or in part,            solely by the Adviser and the Trust on behalf of the Fund at any time in their sole            discretion.

(i)        Each Transaction            Document (other than the Registration Statement and Prospectus) shall be duly            authorized, executed and delivered by each of the parties thereto and be in full force            and effect and executed counterparts of each such Transaction Document shall have been            delivered to the Warranty Provider, the Adviser and the Trust.

(ii)       The Custodian Instruction            Agreement shall provide that the Warranty Provider is a third-party beneficiary of such            agreement and that the Custodian will agree to receive and comply with the Irrevocable            Instructions delivered by the Warranty Provider in accordance withSections 4.1(c)and4.2(a). The Service Agreement shall provide            that the Trust and the Adviser will cause the Custodian to provide to the Warranty            Provider electronically in a format reasonably acceptable to the Warranty Provider the            records and access to the State Street System required bySections 3.4(c)and(d), respectively. The Warranty Provider            shall have access to the State Street

             

System as of the Effective Date. Any licensing, remote access addendum            or other agreement required by the Custodian, the Adviser or the Trust to be executed            or in effect in connection with receiving access to the State Street System shall have            been made available to the Warranty Provider and its counsel and shall be acceptable to            the Warranty Provider in its sole discretion.

(iii)      The Warranty Provider shall            have received a certificate of the Secretary or Assistant Secretary of the Adviser,            dated as of the Effective Date, certifying (A) as to the incumbency and signature of            the officers or other employees of the Adviser authorized to sign this Agreement and            all other Transaction Documents to which the Adviser is a party, in each case on behalf            of the Adviser and certifying that attached thereto are true, complete and correct            copies of its constituent documents and resolutions duly adopted by the Adviser            authorizing the execution and delivery of this Agreement and such other Transaction            Documents, which resolutions have not been modified, amended, annulled or rescinded,            are in full force and effect on the Effective Date and constitute the most recent            resolutions of the Board of Directors of the Adviser relating to the transactions            contemplated hereby and thereby, (B) the Fund Portfolio as of the Effective Date is in            compliance with the Portfolio Requirements, (C) the conditions to be performed by the            Adviser set forth inSection 2.3(a)have been satisfied, (D)  the Underlying Fund’s registration            statement on Form N-1A (1) has been prepared in material conformity with the            requirements of the Acts and the rules and regulations of the Commission thereunder,            (2) has been filed with the Commission under the Acts, and (3) has become or            been declared effective by the Commission, (E) the Commission has not issued any order            preventing or suspending the use of any prospectus relating to any class of shares of            the Underlying Fund and the Underlying Fund has not received any notice from the            Commission pursuant to Section 8(e) of the Investment Company Act with respect to            the registration statement on Form N-1A currently in effect for the Underlying Fund,            (F) attached thereto are true, complete and correct copies of resolutions duly            adopted by the Board of Trustees of the Underlying Fund and the sole Trustee of the            Eligible Money Market Fund authorizing the investment in shares of the Underlying Fund            and Eligible Money Market Fund (including any periodic redemptions and reinvestments            thereof pursuant toSections 3.2and3.3) as            contemplated by this Agreement and the other Transaction Documents; and (G) the Fund is            eligible to invest in the Eligible Money Market Fund.

(iv)      The Warranty Provider shall have            received a good standing certificate from the Secretary of State of the State of            Delaware regarding the Adviser.

(v)       The Warranty Provider shall            have received (A) a certificate of the Secretary or Assistant Secretary of the            Trust, dated as of the Effective Date, as to the incumbency and signature of the            officers or other employees of the Trust authorized to sign this Agreement and the            other Transaction Documents to which the Trust is a party, in each case on behalf of            the Fund, and certifying that the Board of the Trust has duly adopted resolutions            authorizing the execution and delivery on behalf of the Fund of this Agreement and such            other Transaction Documents to which the Trust on behalf of the Fund is a party and            that attached thereto are true, complete and correct copies of such resolutions, which            resolutions have not been modified, amended, annulled or rescinded, are in full force            and effect on the Effective Date and constitute the most recent resolutions of the            Board of the Trust relating to the transactions contemplated hereby and thereby;            (B) a copy of the Declaration of Trust as the same may be amended and as is in            effect on the Effective Date certified as of a recent date by the Secretary or            Assistant Secretary of the Trust; and (C) a good standing certificate for the Trust            issued by the Secretary of State of the Commonwealth of Massachusetts.

(vi)      The Warranty Provider shall have            received a certificate of the Secretary, Assistant Secretary, Treasurer or Assistant            Treasurer of the Trust, dated as of the Effective Date,

             

certifying that (A) the Trust’s registration statement on            Form N-1A (including any amendments) with respect to each Class of Shares (1) have            been prepared by the Trust in material conformity with the requirements of the Acts and            the rules and regulations of the Commission thereunder, and (2) have been filed            with the Commission under the Acts, (B) the most recent amendment to such            registration statement with respect to each Class of Shares has become effective or has            been declared effective by the Commission, (C) true and complete copies of such            amendment to the registration statement on Form N-1A as in effect on the Effective            Date, including any exhibits, are attached thereto (such registration statement to the            extent it relates to the Fund (including any Prospectus relating to a Class of Shares            of the Fund), as it may be amended, supplemented or modified from time to time with            respect to the Fund, the “Registration            Statement”), (D) the Commission has not issued any            order preventing or suspending the use of any Prospectus relating to any Class of            Shares of the Fund and the Trust has not received any notice from the Commission            pursuant to Section 8(e) of the Investment Company Act with respect to the            Registration Statement, (E) the Registration Statement and the Prospectus with            respect to each Class of Shares of the Fund contain all information and statements            which are required by the Acts and the rules and regulations thereunder, (F) the            Registration Statement and the Prospectus with respect to each Class of Shares do not            contain any untrue statement of a material fact or omit to state any material fact            required to be stated therein or necessary to make the statements therein, in the light            of the circumstances under which they were made, not misleading            (*provided*that such certification            shall not be required to address any information regarding the Warranty Provider            contained in the WP Information Letter), and (G) the shares of each Class of            Shares conform in all respects to the description thereof contained in the Registration            Statement and Prospectus with respect to such Class of Shares.

(vii)     (A) The Warranty Provider shall have            received the opinions of Vedder, Price, Kaufman & Kammholz P.C., counsel to the            Fund, and Morgan, Lewis & Bockius LLP, counsel to the Adviser, in a form acceptable            to the Warranty Provider, in its sole discretion; and (B) the Adviser and the Fund            shall have received the opinions of Willkie Farr & Gallagher, LLP, counsel to the            Warranty Provider, Shearman & Sterling LLP, special counsel to the Warranty            Provider, and Callister Nebeker & McCullough, special Utah counsel to the Warranty            Provider, in a form acceptable to each of them, in their sole discretion.

(viii)    (A) All Transaction Documents and            proceedings, documents, instruments and other legal matters in connection with the            transactions contemplated by this Agreement shall be satisfactory in form and substance            to the Warranty Provider in its sole discretion, and the Warranty Provider shall have            received such other documents in respect of any aspect or consequence of the            transactions contemplated hereby or thereby as it shall reasonably request; and (B) All            Transaction Documents and proceedings, documents, instruments and other legal matters            in connection with the transactions contemplated by this Agreement shall be            satisfactory in form and substance to each of the Adviser and the Trust, on behalf of            the Fund, in each of its sole discretion, and the Adviser and the Trust, on behalf of            the Fund, shall have received such other documents in respect of any aspect or            consequence of the transactions contemplated hereby or thereby as each shall reasonably            request.

(ix)      The Adviser and the Fund shall            have received (A) a certificate of the Secretary or Assistant Secretary of the Warranty            Provider, dated as of the Effective Date, as to the incumbency and signature of the            officers or employees of the Warranty Provider authorized to sign this Agreement and            all other Transaction Documents to which the Warranty Provider is a party, in each case            on behalf of the Warranty Provider and certifying that the Warranty Provider has all            requisite authority to enter into the transactions contemplated hereby and thereby, and            (B) a good standing certificate or equivalent certification regarding the Warranty            Provider from the

             

State of Utah Department of Financial Institutions and the State of Utah            Department of Commerce Division of Corporations and Commercial Code.

(x)       Each of the representations            and warranties made by the Adviser, the Trust and the Trust on behalf of the Fund in            this Agreement shall be true and correct in all respects on and as of such date, and            the Warranty Provider shall have received a certification from each of the Adviser and            the Trust on behalf of the Fund to such effect as to the representations and warranties            made by it.

(xi)      Each of the representations and            warranties made by the Warranty Provider in this Agreement shall be true and correct in            all respects on and as of such date, and the Adviser and the Fund shall have received a            certification from the Warranty Provider to such effect as to the representations and            warranties made by it.

|   | (xii) | No Trigger Event, Regulatory Event or Regulatory Change                            shall have occurred. |
|--------|-------|---------------------------------------------------------------------------------------------------------|

(xiii)    No statute, rule, regulation or order, or            interpretation of any such statute, rule, regulation or order, shall have been enacted,            entered, proposed or deemed applicable by any Government Authority which would make the            transactions contemplated by any of the Transaction Documents illegal or otherwise            prevent the consummation thereof or which could have an a material adverse effect on            the transactions (including without limitation on the binding nature, validity or            enforceability of this Agreement) contemplated by this Agreement or on a party’s            ability to enjoy the full benefits intended to be conferred pursuant to this            Agreement.

(xiv)    No suit, action or other proceeding,            investigation, or injunction or final judgment relating thereto, shall be pending or,            to the knowledge of the Adviser or the Trust, threatened before any court or Government            Authority in which it is sought to restrain or prohibit or to obtain damages or other            relief in connection with any of the Transaction Documents or the transactions            contemplated thereby, or where it is alleged that the Adviser or the Fund committed or            engaged in or attempted to commit or engage in any act, practice or course of business            which is fraudulent, deceptive or manipulative.

(xv)      A copy of the Registration            Statement, including the Final Post-Effective Amendment, in the form in which it became            or was declared effective by the Commission and the Prospectus, including the Final            Prospectus, in the form to be delivered to Shareholders with respect to each Class of            Shares shall have been delivered to the Warranty Provider.

(xvi)    The Warranty Provider shall have received a            certificate of the Secretary or Assistant Secretary of the Trust, dated as of the            Effective Date, certifying that attached thereto are true, complete and correct copies            of resolutions duly adopted by the Board of the Trust authorizing the issuance of the            Shares of each Class of Shares in respect of which the Warranty Provider is providing            the Financial Warranty, which resolutions have not been modified, amended, annulled or            rescinded, are in full force and effect on the Effective Date and constitute the most            recent resolutions of the Board of the Trust relating to the transactions contemplated            hereby and thereby.

(xvii)   The Adviser shall have delivered the Irrevocable            Instructions duly executed by the Adviser to the Warranty Provider.

(xviii)  The Adviser shall have delivered to the Warranty            Provider (A) a copy of its most recently filed Form ADV; (B) a copy of its audited            financial statements (including the report of

             

its independent registered public accountants with respect to such            financial statements) covering its most recent fiscal year; and (C) a certificate of an            officer of the Adviser certifying that (i) such Form ADV and such financial statements            are true, complete and correct as of the date filed and (ii) there has been no material            change in the matters contained in such documents since the date they were respectively            filed.

(xix)    The Warranty Provider shall have delivered            to the Trust on behalf of the Fund the WP Information Letter.

|   | Section 2.4 | Financial Warranty Fee; Accelerated Financial Warranty Fee. |
|--------|-------------|-------------------------------------------------------------|

            In consideration of the issuance by the Warranty Provider of the Financial Warranty,            the Fund shall pay to the Warranty Provider a fee in an amount equal to 0.57% per annum            of the average daily Net Assets of the Fund during the Warranty Period (the            “Financial Warranty Fee”), *provided* that upon the occurrence            of a Trigger Initiated Defeasance Event or a Market Initiated Defeasance Event, the            Financial Warranty Fee shall be reduced to 0.30% per annum (the “Reduced            Financial Warranty Fee”) of the average daily Net Assets of the Fund during            the remaining portion of the Warranty Period. The Financial Warranty Fee or Reduced            Financial Warranty Fee, as applicable at the time, shall accrue daily and shall be            payable monthly in arrears on the fifth Business Day of the following calendar month            (each a “Fee Payment Date”). The Financial Warranty Fee payable on            each Fee Payment Date will be calculated based on a 365 day year for the actual number            of days elapsed. In the case of an Early Termination Event, the Fund shall pay to the            Warranty Provider the Accelerated Financial Warranty Fee which shall be payable on the            Early Termination Date.

            (b)   The obligation to pay the Financial Warranty Fee            or Reduced Financial Warranty Fee shall cease if this Agreement and the Financial            Warranty are terminated in accordance with Section 10.1 hereof. Notwithstanding            the previous sentence, the obligation to pay the Financial Warranty Fee or any Reduced            Financial Warranty Fee that has accrued hereunder up to the Termination Date, or in the            case of an Early Termination Event (or if the Fund is terminated, merged or liquidated            for any other reason), the Accelerated Financial Warranty Fee, shall survive            termination of this Agreement to the extent not paid in full prior to such            termination.

Section 2.5  Drawing Upon the            Financial Warranty; Aggregate Shortfall Amount; Accelerated Shortfall Amount.

            (a)   Unless this Agreement and, if applicable, the            Financial Warranty shall have been terminated in accordance with Article X prior            to such time, (i) in the event a Shortfall Amount exists on the Maturity Date, for ten            Business Days commencing two Business Days after the Maturity Date the Fund shall be            entitled to draw upon the Financial Warranty in an amount equal to the Aggregate            Shortfall Amount, as determined by the Calculation Agent as of the Maturity Date; or            (ii) in the event an Accelerated Shortfall Amount exists on an Early Termination Date,            for ten Business Days commencing two Business Days after the Early Termination Date the            Fund shall be entitled to draw upon the Financial Warranty in an amount equal to the            Accelerated Aggregate Shortfall Amount. If the Adviser believes there is any likelihood            that the Fund will draw on the Financial Warranty, it shall provide the Warranty            Provider and the Fund with notice of such event at least ten (10) business days before            the applicable Maturity Date or the Early Termination Date (or on the date it learns of            such Shortfall, if shorter) (an “Expected Shortfall Notice”). The            Calculation Agent shall determine the Aggregate Shortfall Amount or Accelerated            Aggregate Shortfall Amount, as applicable, in a good faith commercially reasonable            manner and provide the Adviser and the Fund with a certificate certifying (A) the            amount of such Aggregate Shortfall Amount or Accelerated Aggregate Shortfall Amount, as            applicable; and (B) the date of the Early Termination Date, if applicable (the            “Calculation Agent Certificate”), within two (2) Business Days            following the Maturity Date or the Early Termination Date,

             

            as applicable. In the event that the Calculation Agent does not submit the certificate            specified in the previous sentence within two (2) Business Days following the Maturity            Date or the Early Termination Date, as applicable, the Fund may provide the certificate            and shall determine the Aggregate Shortfall Amount or Accelerated Aggregate Shortfall            Amount, as applicable, pursuant to the Financial Warranty in a good faith commercially            reasonable manner. The Trust on behalf of the Fund shall notify the Warranty Provider            in writing of the date of any Early Termination Date designated by the Board within one            Business Day of the determination of such Early Termination Date.

            (b)   The Protected Amount Per Share with respect to            each Class of Shares shall be reduced as set forth below:

(i)     Dividends and distributions attributable to each Share of a Class of            Shares will reduce the Protected Amount Per Share of such Class of Shares to an amount            equal to the Protected Amount Per Share for such Class of Shares on the immediately            preceding Exchange Business Day divided by the sum of one plus the quotient of (a) the            amount of any Distribution Per Share with respect to such Class of Shares effective            since the immediately preceding Exchange Business Day and (b) the net asset value            for such Class of Shares at the close of business on the Exchange Business Day that            such Distribution Per Share was effective;

(ii)    Excess Fees attributable to each Share of a Class of Shares shall reduce            the Protected Amount Per Share of such Class of Shares to an amount equal to the            Protected Amount Per Share for such Class of Shares on the immediately preceding            Exchange Business Day divided by the sum of one plus the quotient of (a) the amount of            any Excess Fees accrued with respect to such Class of Shares as of the immediately            preceding Exchange Business Day and (b) the NAV for such Class of Shares at the close            of business on the Exchange Business Day that such Excess Fees were accrued;

(iii)   In            the event of changes in accounting practices for the Fund from those used on the            Effective Date or corporate actions or other events that otherwise would result in an            increase in the Protected Amount Per Share with respect to a Class of Shares, upon            prior notice to the Fund and the Adviser, appropriate adjustments shall be made by the            Warranty Provider (or Calculation Agent), to the Protected Amount Per Share for such            Class of Shares or the way such Protected Amount Per Share is calculated to the extent            deemed necessary by the Warranty Provider (or Calculation Agent), in its sole            discretion, to preserve the economic equivalent of this Agreement and the Financial            Warranty by disregarding an amount equal to such increase in the Protected Amount Per            Share with respect to such Class of Shares. The Fund agrees that no such changes,            actions or events may be made or taken by the Fund or the Adviser without the prior            written consent of the Warranty Provider, except as necessary in the opinion of counsel            to comply with applicable law. The Fund and the Adviser shall immediately provide the            Warranty Provider with written notice of any such change or action taken in accordance            with applicable law. The consent of the Warranty Provider shall not be unreasonably            withheld if, in the sole discretion of the Warranty Provider, any such change, action            or event does not increase the Warranty Provider’s liabilities or risks or            decrease the Warranty Provider’s economic bargain under any Transaction            Document.

            Section 2.6         Certain Defined Terms Relating to the Protected Amount and            Accelerated Protected Amount.

            (a)   “Accelerated Aggregate Shortfall            Amount” means the sum of the Accelerated Shortfall Amount, if any, of each of            the Class A, Class C, Class S and Institutional Shares as of the close of business on            the Early Termination Date.

 

            (b)   “Accelerated Discount Factor”            means with respect to each Class of Shares, the present value discount factor            representing the theoretical price, expressed as a percentage of par, of a theoretical            zero coupon bond maturing on the Maturity Date, the yield of which is consistent with            USD LIBOR as of the date of determination as determined by the Calculation Agent in a            commercially reasonable manner.

            (c)   “Accelerated Financial Warranty            Fee” with respect to each Class of Shares, is deemed to be, if the            Accelerated Floor Shortfall is positive, the lesser of (a) the Accelerated Floor            Shortfall and (b) the Shares Outstanding of such class of Shares as of the close of            business on the Early Termination Date multiplied by the Accelerated Discount Factor            multiplied by (Protected Amount Per Share - (Protected Amount Per Share * (1 - Adjusted            Fee Factor /360) ^360*t), where t is number of years expressed to the fourth            decimal).

            (d)   “Accelerated Floor” means for            each Class of Shares the Accelerated Discount Factor multiplied by the Protected Amount            Per Share for each Class of Shares.

            (e)   “Accelerated Floor Shortfall”,            with respect to each Class of Shares, is deemed to be the (A) Shares Outstanding of            such Class of Shares as of the close of business on the Early Termination Date            multiplied by (B) (i) the NAV Per Share of such Class of Shares minus (ii) the            Accelerated Floor for such Class of Shares.

            (f)    “Accelerated Shortfall            Amount” means the following: (i) if the Accelerated Floor Shortfall is            negative, then the absolute value of the Accelerated Floor Shortfall; and (ii) if the            Accelerated Floor Shortfall is positive or zero, then zero.

|   | (g) | “Adjusted Fee Factor” means 0.0030. |
|--------|-----|-------------------------------------------------|

            (h)   “Aggregate Protected Amount”            means, at any time, the sum of the products, for each of the Class A, Class C, Class S            and Institutional Shares, of the Protected Amount Per Share of each Class of Shares and            the Shares Outstanding of such Class, in each case, at the relevant time.

            (i)     “Aggregate Shortfall            Amount” means the sum of the Shortfall Amount, if any, of each of the Class            A, Class C, Class S and Institutional Shares

|   | (j) | “Calculation Date” means each and every Exchange                            Business Day.. |
|--------|-----|--------------------------------------------------------------------------------------------------------|

            (k)   “Excess Fees” means (i) on or            prior to the Maturity Date, including on or prior to the occurrence of a Trigger            Initiated Defeasance Event, a Market Initiated Defeasance Event or an Early Termination            Event, any Extraordinary Expenses incurred or accrued by the Fund which would give            rise, directly or indirectly, to a Floor Shortfall (or in the case of an Early            Termination Event, any Accelerated Floor Shortfall) or increase, directly or            indirectly, an existing Floor Shortfall (or in the case of an Early Termination Event,            any Accelerated Shortfall Amount), but for the adjustment required under Section            2.5(b)(ii); and (ii) following the occurrence of a Trigger Initiated            Defeasance Event, a Market Initiated Defeasance Event or an Early Termination Event,            any Fund Fees and Expenses, including any Extraordinary Expenses incurred or accrued by            the Fund, that exceed 135 basis points per annum (on an annualized basis) of the            average daily Net Assets of the Fund for the Class A Shares, 200 basis points per annum            (on an annualized basis) of the average daily Net Assets of the Fund for the Class C            Shares, 100 basis points per annum (on an annualized basis) of the average daily Net            Assets of the Fund for the Class S Shares and 100 basis points per annum (on an            annualized basis) of the average daily Net Assets of the Fund for the Institutional            Shares.

 

            (l)     “NAV Per Share”            means with respect to each Class of Shares on a per share basis at the time of            determination, the last published net asset value per Share for such Class of Shares at            such time.

            (m)  “Protected Amount Per Share” on any            day and with respect to each Class of Shares on a per share basis means the greater of            (i) the NAV Per Share of such Class of Shares as of the close of business on the            Effective Date and (ii) the then current Protected High NAV.

            (n)   “Protected High NAV” means at            any time, with respect to each separate Class of Shares, the highest NAV Per Share of            such Class of Shares previously attained on any Calculation Date, as adjusted pursuant            to this Agreement.

            (o)   “Shortfall Amount” with            respect to each Class of Shares is deemed to be the Shares Outstanding of such Class of            Shares as of the close of business on the Maturity Date multiplied by the difference,            if positive, between the Protected Amount Per Share as determined as of the close of            business on the Maturity Date for such Class in accordance with Section 2.6(m)            and the NAV Per Share as of the close of business on the Maturity Date for such            Class.

            (p)   “Total Assets” means the sum            of the products, for each of the Class A, Class C, Class S and Institutional Shares at            the time of determination, of the NAV Per Share for each Class of Shares and the Shares            Outstanding of such Class of Shares at such time.

**ARTICLE III**

**MANAGEMENT OF THE FUND**

Section 3.1                    General; Issuance of Shares.(a)During the Warranty Period, so long as no Trigger            Initiated Defeasance Event or Market Initiated Defeasance Event has occurred, the Fund            may issue additional Shares. Following the occurrence of a Trigger Initiated Defeasance            Event or a Market Initiated Defeasance Event, the Fund shall not issue additional            Shares *except for* Shares issued in response to reinvestment of dividends or            distributions. Notwithstanding any new issuances of Shares permitted under this            Agreement, it is acknowledged and agreed that under no circumstances shall the Warranty            Provider be liable for the portion of any Aggregate Shortfall Amount or Accelerated            Aggregate Shortfall Amount attributable to Shares issued in excess of the Financial            Warranty Amount Limit. Under no circumstances shall the Aggregate Protected Amount            exceed the Financial Warranty Amount Limit. Except as set forth in            Section 4.2(a) hereof, commencing on the Effective Date, all of the            Fund’s assets shall be allocated between the Equity Portfolio and Fixed-Income            Portfolio (collectively, the “Fund Portfolio”) and such assets shall            be invested and reinvested in accordance with the provisions set forth in this            Article III (collectively, the “Portfolio Requirements”). The            Adviser shall fairly and objectively interpret the Portfolio Requirements, consistent            with the intent thereof. The Adviser shall consult with the Warranty Provider as to any            requirement contained herein which, in the Adviser’s reasonable opinion, is not            clear, including without limitation the permissibility or classification of any            investment (including any types of investment that may be used in the market during the            term of this Agreement that were not widely used as of the date hereof), the valuation            methodology applicable thereto, and the methodology used to calculate and report to the            Warranty Provider compliance with the Portfolio Requirements.

|   | Section 3.2 | Restrictions on Investments. |
|--------|-------------|------------------------------|

            During the Warranty Period, unless the assets of the Fund are required to be invested            in the Defeasance Portfolio, the Fund Portfolio shall be invested only in accordance            with the following

             

            Portfolio Requirements, the compliance with which shall be determined as of the close            of business on each Exchange Business Day, except with respect to subsection (i)            below, the compliance with which shall be determined as of any time on any Exchange            Business Day and except with respect to subsection (ii)(B) below, the compliance with            which shall be determined as of the close of business on each Rebalance Date:

(i)     the Fund’s assets shall be invested only in Eligible Equity            Investments and Eligible Fixed-Income Investments;

(ii)    (A) the Total Equity Exposure, calculated as a percentage of the Total            Assets of the Fund, shall not exceed the Maximum Equity Component as of the close of            business on any Exchange Business Day and shall be zero in the event of a Trigger            Initiated Defeasance Event or a Market Initiated Defeasance Event; (B) on each            Rebalance Date the Index Assets shall not exceed the Index Asset Balance Limit; and (C)            if Index Futures are used in the Equity Portfolio, the Fund shall have sufficient (i)            Futures Margin Cash to meet all applicable futures exchange margin requirements in            effect from time to time and as otherwise may be required by applicable law in effect            at the time of determination and (ii) Futures Balance Cash.

(iii)   (A)            Cash and Cash Equivalents held by the Fund allocated to the Fixed Income Portfolio that            is not a Defeasance Portfolio shall not exceed 3% of the Fund’s Total Assets on            any Exchange Business Day;*provided*that at any time the Fixed Income Portfolio is equal to 70% or more of            the Fund’s Total Assets (other than if the Fund is required to hold the            Defeasance Portfolio**)**, Cash and Cash            Equivalents allocated to the Fixed Income Portfolio shall not exceed 2% of the            Fund’s Total Assets on any Exchange Business Day; and*provided further*that Cash and Cash            Equivalents held as Futures Margin Cash and Futures Balance Cash shall always be            allocated to the Equity Portfolio; and*provided            further*that any Cash received by the Fund as a result of            Eligible Fixed-Income Investments maturing or being redeemed may be allocated, on a            temporary basis only, to the Fixed-Income Portfolio without being counted against such            3% limitation and*provided further*that any Cash received by the Fund as a result of a sale of a portion of            the Equity Portfolio in order to reduce the Total Equity Exposure below the Maximum            Equity Component may be allocated to Cash in the Fixed Income Portfolio in excess of            the limits of this provision if such allocation occurs on a day that the fixed income            markets are scheduled or required to be closed; and (B) any portion, if any, in excess            of the 3% and 2% limitations set forth in subparagraph (iii)(A) above shall be            considered allocated to the Equity Portfolio;

(iv)   The            only U.S. Government Securities included as part of the Fixed-Income Portfolio shall be            U.S. Zeroes (other than U.S. Government Securities that have a maturity of 180 days or            less and are held as Cash Equivalents);

(v)    U.S. Government Securities held as Eligible Fixed-Income Investments by            the Fund shall collectively conform to the Bond Ladder (other than U.S. Government            Securities that have a maturity of 180 days or less and are held as Cash            Equivalents);

(vi)   (A)            the Fund will not borrow for investment purposes and, other than solely as a result of            investing in Class S shares of the Underlying Fund, investing in Index Futures or            entering into this Agreement, will not invest in instruments which have, or engage in a            series of portfolio transactions that have the effect of providing, implicit, embedded            or synthetic leverage; and (B) that after prior consultation with the Warranty            Provider, the Fund may use Loans for Temporary or Emergency Purposes to the extent            necessary in emergency situations to meet redemption requests (based on redemption            orders actually received by the Fund) after using all Cash held by the Fund to meet            such redemption requests, other than Cash necessary to pay Fund

             

Fees and Expenses then incurred by the Fund and Cash held by the Fund as            Futures Margin Cash and Futures Balance Cash;

(vii)  at any            time the Fund holds Index Futures, the Fund shall hold Futures Balance Cash in the            amount of the mark-to-market value of such Index Futures;

(viii) (A) the portion            of the Equity Portfolio invested in an Underlying Fund shall be limited to ___% of the            net asset value of the Equity Portfolio; (B) the portion of the Fixed Income Portfolio            invested in an Underlying Fund shall be limited to ___% of the net asset value of the            Fixed Income Portfolio; and (C) notwithstanding (A) and (B) of this section, the            Fund’s investment in an Underlying Fund shall be allocated in its entirety to the            Equity Portfolio if the net asset value of the Fixed Income Portfolio at any time            comprises greater than ___% of the Fund’s Total Assets or if there is less than            five years remaining until the Maturity Date;

(ix)   (A)            no more than __% of the Fixed Income Portfolio may be invested in an Eligible Money            Market Fund, and any investment in an Eligible Money Market Fund in the Fixed Income            Portfolio shall be counted against the __% and __% Cash and Cash Equivalent limits set            forth in subsection (iii)(A) of thisSection            3.2;*provided, however,*that any Cash received as a result of U.S. Zeroes included in the Bond            Ladder maturing may be invested in an Eligible Money Market Fund unless the Warranty            Provider has delivered a notice to the Adviser and the Fund that such fund is no longer            an Eligible Money Market Fund as provided inSection            8.8; and (B) the portion of the Total Assets of the Fund            invested in an Eligible Money Market Fund shall not exceed the lesser of (i) __% of the            Equity Portfolio, and (ii) $__ million; and

(x)    no Index Asset may be purchased by the Fund if at the time of purchase            the Fund’s net long holding of the Index Asset would be equal to or greater than            __% of that Index Asset’s daily trading volume, determined by the Calculation            Agent on a rolling 30 trading day basis (as reported in Bloomberg or other information            source approved by the Calculation Agent).

|   | Section 3.3 | Allocation and Reallocation of Fund’s Assets. |
|--------|-------------|-----------------------------------------------------|

            (a)   The “Maximum Equity Component”            on any Exchange Business Day, as a percentage of the Total Assets of the Fund, means            the Equity Limit for all Classes of Shares, expressed as a percentage, determined in            accordance with the formula set forth below:

Equity            Limit

for all            Classes

| of Shares | =(Lowest NAV Per Share – Highest Floor)/Lowest NAV                            Per Share)*Multiple (or zero in the event that the Equity Limit for all                            Classes of Shares is less than 0.025);*provided*that the Equity                            Limit for all Classes of Shares shall not exceed 130% at any                            time; |
|-----------|---------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------|

where,

Highest Floor = the            product of (i) the Adjusted Discount Factor and (ii) the highest Protected            AmountPer Share of any of the four Classes of Shares;

| Lowest NAV | = the lowest NAV Per Share of any of the four Classes of                            Shares. |
|------------|---------------------------------------------------------------------------------------------|

Per Share

             

where,

Adjusted

 

Discount

| Factor | = with respect to each Class of Shares, means the                            following quotient as determined by the Calculation Agent in a                            commercially reasonable manner and communicated to the Adviser prior to                            9:00 a.m. (Eastern time) on each Exchange Business Day (and if not so                            communicated, the Adjusted Discount Factor last communicated to the                            Adviser by the Calculation Agent): (i) the present value discount                            factor representing the theoretical price, expressed as a percentage of                            par, of a theoretical zero coupon bond maturing on the Maturity Date,                            the yield of which is consistent with the Benchmark Yield Curve as of                            the date of determination; over (ii) an amount, based on the Fee                            Factor and the time (in years) remaining to the Maturity Date,                            determined by the Calculation Agent as follows: |
|--------|-----------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------|

|  |   |
|--|--------|

| Fee Factor | =0.0200 |
|------------|---------|

| Multiple | = __ |
|----------|------|

| t | = the time, in years, remaining until the Maturity                            Date. |
|---|-------------------------------------------------------------------------------------|

            (b)  The Warranty Provider (or the Calculation Agent, on            behalf of the Warranty Provider) shall prior to 9:00 a.m. on each Exchange Business Day            provide the Adviser with the Maximum Equity Component as calculated pursuant to the            formula set forth in Section 3.3(a) hereof based on, among other things, the            information contained in the latest Daily Report received by the Warranty Provider from            the Adviser pursuant to Section 3.4(a); *provided*, *however*, that if            the Warranty Provider or the Calculation Agent does not provide the Adviser with a            determination of the Maximum Equity Component pursuant to this            Section 3.3(b), the Adviser shall calculate the Maximum Equity Component            pursuant to the formula set forth in Section 3.3(a) hereof based on the            information contained in the latest Daily Report provided by the Adviser to the            Warranty Provider pursuant to Section 3.4(a). During each Exchange Business Day            on which the Maximum Equity Component is provided to the Adviser by the Warranty            Provider (or the Calculation Agent, on behalf of the Warranty Provider) or calculated            by the Adviser, as applicable, pursuant to this Section 3.3(b), the Adviser must            sell assets and reallocate a portion of the Fund’s assets from the Equity            Portfolio to the Fixed-Income Portfolio as necessary such that the allocation of the            Fund’s assets to the Equity Portfolio is less than or equal to such Maximum            Equity Component, as a percentage of the Total Assets of the Fund as of the close of            business on such Exchange Business Day.

            (c)   Notwithstanding any of the foregoing, if, as            determined by the Calculation Agent in its sole discretion at any time on any Exchange            Business Day, the SPX declines 7.5% or more from the level or value thereof as of the            close of business on the prior Exchange Business Day, then the Warranty Provider (or            its designee) may immediately, upon notice to the Adviser and in its sole discretion,            adjust the Multiple__. Such notification shall be provided by the Warranty Provider or            the Calculation Agent and shall specify the Maximum Equity Component recalculated using            such adjusted Multiple as determined by the Calculation Agent in its sole discretion            and based on information available to it as of such time and such other information            contained in the latest Daily Report received by the Warranty Provider and/or the            Calculation Agent from the Adviser pursuant to Section 3.4(a). The Adviser            shall, upon receipt of such notification and as soon as practicable, sell assets and            reallocate the Fund Portfolio to the extent necessary so that the Market Value of the            Equity Portfolio, as a percentage of the Total Assets of the Fund, is less than or            equal to the Maximum Equity Component

             

            provided by the Calculation Agent in such notification, it being agreed that such            rebalancing shall be completed (i) by the close of business on the Exchange Business            Day on which such notification is given if the notification is received by the Adviser            at or before 3:00 p.m. (Eastern time) or (ii) by 10:00 a.m. (Eastern time) on the            succeeding Exchange Business Day if the Adviser receives such notification after 3:00            p.m. (Eastern time). The Multiple shall remain as so adjusted until            ____________________.

            (d)   If at any time during the Warranty Period the            portion of the Fund’s assets allocated to the Equity Portfolio as a percentage of            the Total Assets of the Fund exceeds the Maximum Equity Component, the Adviser shall            cause the Fund to not acquire any additional Eligible Equity Investments until after            the allocation to the Equity Portfolio has been reduced to below the Maximum Equity            Component.

            (e)   Notwithstanding any other provision hereof, if            the Warranty Provider determines in its reasonable discretion that the Fund is not            complying with any Portfolio Requirement, the Warranty Provider shall have the right to            notify the Adviser of such violation and direct the Adviser to promptly take such            action as the Warranty Provider shall determine in its reasonable discretion to be            necessary to cause the Fund to comply with the Portfolio Requirements (it being            understood that the Warranty Provider shall not be entitled to direct the Adviser to            sell any specific security unless such security is an Ineligible Investment).

|   | Section 3.4 | Reports; Access to Information. |
|--------|-------------|---------------------------------|

            (a)   No later than 9:00 p.m. (Eastern time) on each            Exchange Business Day, the Adviser shall transmit to the Warranty Provider, the            Calculation Agent and the Persons listed on Schedule 2 hereto, in accordance            with such Schedule, the Daily Report which shall include the information described            below in each case as of the close of business on such Exchange Business Day.

(i)     the Market Value of the Equity Portfolio and the percentage that the            Market Value of the Equity Portfolio represents of Total Assets;

|   | (ii) | the number of Class S shares of the Underlying Fund held                            by the Fund; |
|--------|------|--------------------------------------------------------------------------------------------------|

(iii)  the Market            Valueof the Fixed-Income Portfolio and the value of the shares of            the Eligible Money Market Fund and Underlying Fund held by the Fund;

(iv)   the            Total Assets of the Fund and whether any portion of the Total Assets of the Fund has            been determined pursuant to fair value pricing, identifying the particular portfolio            security or securities that were valued using fair value pricing and the procedures            used to make such determination;

|   | (v) | the Shares Outstanding for each Class of                            Shares; |
|--------|-----|-----------------------------------------------------------------------------|

|   | (vi) | the NAV per Share for each Class of Shares; |
|--------|------|---------------------------------------------|

|   | (vii) | the Protected Amount Per Share for each Class of                            Shares; |
|--------|-------|-------------------------------------------------------------------------------------|

(viii)if the Maximum Equity Component is calculated by the Adviser            pursuant toSection 3.3(b), the            Maximum Equity Component so calculated including the information and method used in the            calculation thereof;

|   | (ix) | a list of all Ineligible Investments held by the Fund,                            if any; |
|--------|------|-------------------------------------------------------------------------------------------|

 

(x)    a list of all Index Assets held by the Fund, including the Underlying            Value of any Index Future and the percentage each such instrument represents of the            Total Assets of the Fund;

|   | (xi) | the total amount of all Cash posted as Futures Margin                            Cash by the Fund; |
|--------|------|----------------------------------------------------------------------------------------------------|

|   | (xii) | the total amount of all Cash and Cash Equivalents held                            by the Fund; [and] |
|--------|-------|------------------------------------------------------------------------------------------------------|

(xiii)the total amount of all Cash and Cash Equivalents held as Futures            Balance Cash by the Fund[; and

|   | (xiv) | a list of all of the Fund’s trades during such                            Exchange Business Day]. |
|--------|-------|---------------------------------------------------------------------------------------------------------|

            (b)   If on any Exchange Business Day the Adviser shall            fail to reallocate the Fund Portfolio in accordance with Section 3.3(b),            the Adviser shall provide the Warranty Provider with written notice of such failure            prior to 9:00 p.m. (Eastern time) on such Exchange Business Day and, if applicable,            written notice of the cure of such failure. For the avoidance of doubt, it is            acknowledged and agreed that the delivery of written notice to the Warranty Provider            hereunder shall not in any way operate to waive or otherwise affect the Warranty            Provider’s right to declare a Trigger Event for the breach of Section            3.3(b) that is the subject of the notice.

            (c)   The Adviser and the Fund shall cause the            Custodian to provide to the Warranty Provider and the Calculation Agent electronically            in a format acceptable to the Warranty Provider in its reasonable discretion not later            than 9:00 p.m. (Eastern time) on each Exchange Business Day a copy of the records it            maintains with respect to the assets of the Fund as of the close of business on such            Exchange Business Day.

            (d)   The Adviser and the Fund shall arrange for the            Warranty Provider and the Calculation Agent to be able to continuously view and monitor            the Fund Portfolio by causing the Custodian to give the Warranty Provider and the            Calculation Agent access to the State Street System. If the Warranty Provider or the            Calculation Agent is denied such access at any time, other than during a Force Majeure            Event that directly effects such access, the Warranty Provider (or the Calculation            Agent) may, in its sole discretion, adjust the Multiple until such time as such access            is restored; *provided,* that if the failure to comply with this Section            3.4(d) is the result of a *Force Majeure Event* that causes a denial of access            for five consecutive calendar days, the Warranty Provider will be permitted to adjust            the Multiple until such time as such access is restored; and *further**provided* that the Multiple shall not be reduced if the Adviser or the Fund            provides the Warranty Provider and the Calculation Agent with an alternative source of            the information provided by the State Street System that includes substantially the            same information that is available via the State Street System and that is acceptable            to the Warranty Provider (or the Calculation Agent) in its sole discretion. The            Warranty Provider shall notify the Adviser and the Fund of the Warranty            Provider’s exercise of remedies pursuant to this Section 3.4(d).

Section3.5 Intent.The            economic intent of the Portfolio Requirements is to ensure that the Fund’s Net            Assets are at least equal to the Aggregate Protected Amount on the Maturity            Date.

Section            3.6       Trading            Restrictions.(a)The Adviser shall not engage in portfolio transactions on behalf of the            Fund during the period from 4:00 p.m. (New York City time) to 9:30 a.m. (New York City            time) on any Exchange Business Day, and shall not engage in portfolio transactions on            behalf of the Fund on any days that are not Exchange Business Days; *provided*,            *however*, the Adviser may cause the Fund to engage in such transaction(s) if the            Adviser receives written permission from a Designated Contact in writing (including by            e-mail) to engage in such transaction(s). “Designated  

             

Contact” shall be any person listed on Schedule 3 hereto, as            amended by the Warranty Provider from time to time.

            (b)   (i) Following any Rebalance Date and prior to the            next Rebalance Date (the “Interim Period”), if an Index Asset            Balance Limit for any Index Asset is exceeded (each, an “Overweight            Index”) due solely to fluctuations in the value of an Index Asset, any net            monies received by the Fund as a result of the purchase of Shares by investors during            such Interim Period may be invested in any Index Asset, *provided* that no such            investment shall cause such Overweight Index to further exceed the percentage it            exceeded the Index Asset Balance Limit (the “Overweight Index            Exposure”) on the Exchange Business prior to the receipt by the Fund of such            monies.

(ii)    If, during any Interim Period, an Overweight Index becomes overweight            due solely to fluctuations in the value of an Index Asset, the Fund may reduce its            position in an Index Asset in order to fund redemptions of Shares by investors in the            Fund,*provided*that no such            reduction of a position in an Index Asset shall cause such Overweight Index to further            exceed the Overweight Index Exposure on the Exchange Business prior to the sale by the            Fund of Fund assets.

(iii)   If,            during any Interim Period, the Fund is required to reallocate assets between the Equity            Portfolio and Fixed Income Portfolio in accordance withArticle IIIhereof, the Fund shall not be            required to decrease exposure to an Index Asset, unless the reallocation of assets            causes the Overweight Index Exposure to exceed the Overweight Index Exposure on the            Exchange Business Day prior to the reallocation.

**ARTICLE IV**

**TRIGGER EVENTS**

|   | Section 4.1 | Trigger Events. |
|--------|-------------|-----------------|

            (a)   The following events shall constitute Trigger            Events hereunder; *provided*, *however*, that in the event the New York Stock            Exchange closes more than two hours early or does not open on any Exchange Business Day            due to any Force Majeure Event, other than due to the effect of exchange            “circuit-breaker” induced closings (an “Early Close Exchange            Business Day”), the cure periods specified in this Section 4.1(a)            will be automatically extended until the next Exchange Business Day following the Early            Close Exchange Business Day; *provided* that if three or more Early Close Exchange            Business Days occur consecutively, the Warranty Provider may declare an immediate end            to the cure period at 9 am New York time on the third such subsequent Early Close            Exchange Business Day.

|   | (i) | Any failure at any time to comply with the provisions                            ofSection 3.1; |
|--------|-----|------------------------------------------------------------------------------------------------------|

(ii)   Any            failure to comply with the provisions ofSection            3.2,Section            3.3,Section 3.4(d)or3.6;

(iii)   Any            failure at any time to comply with the provisions ofSection            3.4(a)unless such failure is attributable solely to a Force            Majeure Event;*provided, however,*that if such failure to comply withSection            3.4(a)is the result of a Force Majeure Event that causes a            failure to comply for five consecutive calendar days, such failure to comply will be            considered a Trigger Event notwithstanding the exception in thisSection 4.1(a)(iii)for a Force Majeure            Event;*provided further*that the            Adviser shall have a cure period for its first three failures to meet the 9 p.m.            reporting obligation ofSection 3.4(a)as follows: the Warranty Provider shall be required to

             

make a good faith effort to notify (by e-mail or otherwise) the Adviser            of its intention to declare a Trigger Event and the Adviser shall have until 8 a.m. on            the Exchange Business Day immediately succeeding the day on which the violation            occurred to transmit the Daily Report required bySection            3.4(a). For the avoidance of doubt, it is acknowledged and            agreed that the failure of the Warranty Provider, due to its own act or omission, to            receive information otherwise transmitted by the Adviser in accordance withSection 3.4(a), shall not be considered to            be a failure to comply withSection            3.4(a),*provided*that once the Adviser is advised by the Warranty Provider of its failure            to receive a properly transmitted report, the Adviser shall re-transmit the information            as soon as reasonably practicable.

(iv)   Any            violation ofArticle IIIthat is not            provided for in clause (i), (ii), or (iii) above that could have an Adverse            Effect, unless cured by the end of the Exchange Business Day following the Exchange            Business Day on which the violation occurred;

(v)    The Fund shall fail to pay the Financial Warranty Fee when due as            provided inSection 2.4and            such failure shall continue unremedied for a period of ten Business Days following            notice of such failure by the Warranty Provider to the Fund;

(vi)   (A) The Adviser resigns; (B) the Fund elects to terminate the            Investment Management Agreement with the Adviser; (C) the Fund appoints a successor            adviser (including a subadviser) without the prior written consent of the Warranty            Provider in its sole discretion; (D) the Investment Management Agreement terminates in            accordance with its terms; or (E) the Adviser becomes prohibited from serving as an            investment adviser to the Fund by Section 9 of the Investment Company Act; and in each            of the cases of (A) through (E) above, any successor adviser (including the Adviser)            that agrees to be bound by the terms of this Agreement is appointed by the Board of the            Trust or the Shareholders, in each case without the prior written consent of the            Warranty Provider in its reasonable discretion;*provided*that the Warranty Provider’s            failure to consent to a successor adviser shall be deemed to be reasonable if, among            other possible reasons, the successor adviser (1) fails to agree to all of the terms of            the Transaction Documents to which the Adviser is a party, (2) fails to meet the credit            approval procedures then in place for business transactions with the Warranty Provider;            (3) is subject to any litigation, regulatory action or other proceeding that may affect            its ability to perform any of the Transaction Documents; (4) may in any reasonable            manner adversely affect the Warranty Provider’s economic bargain under this            Agreement; or (5) is not reasonably believed by the Warranty Provider to be capable of            managing the Fund;

(vii)  The            Adviser resigns, the Fund elects to terminate the Investment Management Agreement with            the Adviser or the Investment Management Agreement terminates in accordance with its            terms and either (A) the Adviser is no longer obligated to manage the Fund            pursuant to the terms of the Investment Management Agreement and a successor investment            adviser acceptable to the Warranty Provider has not entered into an investment            management agreement with the Fund or (B) the termination of the Investment            Management Agreement is not yet effective but the Board of the Trust, on behalf of the            Fund, has indicated its intention to the Warranty Provider, or taken any further            action, to appoint a successor investment adviser notwithstanding the fact that the            Warranty Provider has advised the Board that such successor investment adviser would            not be acceptable to the Warranty Provider, in its sole discretion, then in either such            case a Trigger Event shall be deemed to have occurred notwithstanding the fact that a            successor investment adviser has not yet been appointed;

(viii) Subject to the            foregoing provisions of thisSection            4.1(a), the Adviser does nototherwise            manage in all material respects the assets of the Fund in accordance with            the

             

investment objective, policies and strategies set forth in the            Registration Statement and/or in accordance with the Investment Management            Agreement;

(ix)   Any            representation or warranty made by the Adviser, the Trust or the Trust on behalf of the            Fund in any Transaction Document or in any document or certification provided in            connection with any Transaction Document, shall have been incorrect or misleading when            made or when deemed made, except where such incorrect or misleading representation or            warranty could not reasonably be expected to have an Adverse Effect;

(x)    The Adviser, the Trust, the Fund or the Custodian shall fail to perform            any obligation, or shall breach any covenant, under this Agreement or the Transaction            Documents that is not expressly provided for in clauses (i), (ii), (iii), (iv),            (v), (vi), (vii), (viii) or (ix) above, which failure could reasonably be expected to            have an Adverse Effectand such violation, if capable of being            remedied, shall continue unremedied for a period of three Business Days after the            Adviser becomes aware of the occurrence of such breach or failure;*provided,*that the Adviser shall be deemed            to be aware of such violation if such violation has been in existence for three            Exchange Business Days;

(xi)   The            occurrence of any of the following: (A) a Regulatory Event or Litigation Event            (other than a Litigation Event arising out of a claim under this Agreement between the            Adviser and/or the Trust on behalf of the Fund on one side and the Warranty Provider on            the other side), (B) an Act of Insolvency with respect to the Adviser or the Fund;            (C) the Trust, with respect to the Fund, ceases to be (1) duly registered with the            Commission as an open-end management investment company under the Investment Company            Act, (2) an investment company for purposes of the Commodity Exchange Act, or (3) a            regulated investment company eligible to receive pass through tax treatment under            Subchapter M of the Code; or (D) the adoption by the Fund of a new share class without            the express written consent of the Warranty Provider.

(xii)  Any change            in circumstances occurs with respect to an Underlying Fund or Eligible Money Market            Fund, that could have an Adverse Effect on the Fund, the Adviser or the Warranty            Provider, and the Fund fails to liquidate all of its shares of the Underlying Fund or            Eligible Money Market Fund, as applicable, within 2 Exchange Business Days;*provided*thata            decrease in net asset value occurring due to market fluctuations in the case of an            Underlying Fund shall not be considered to be such an Adverse Effect;*and further provided*that with respect to            an Eligible Money Market Fund and for purposes of this subsection (xii) a material            adverse effect shall include having a net asset value other than $1.00 per            share;

(xiii) If the Adviser            at any time fails to have at least $__ billion of assets under management;*provided*that if the Adviser’s assets            under management fall under $__ billion, the Adviser shall have 30 Business Days to            arrange for an entity under common control with the Adviser to unconditionally            guarantee the Adviser’s obligations under this Agreement, as such guarantee may            be approved in writing by the Warranty Provider in its sole discretion; or

(xiv)(A) Any failure at any time of any Eligible Money Market Fund in            which the Fund is then invested to be managed pursuant to the requirements of Rule 2a-7            under the Investment Company Act; unless such failure is remedied within two Exchange            Business Days; (B) Any failure at any time of any Eligible Money Market Fund in which            the Fund is then invested that is not registered under the Investment Company Act to be            managed pursuant to the requirements of Rule 12d1-1(b) under the Investment Company            Act; unless such failure is remedied within two Exchange Business Days.

 

            (b)   Notwithstanding any other provision hereof, in            the event of a Potential Trigger Event, the Adviser shall not permit the Fund to            acquire any additional Eligible Equity Investments until such Potential Trigger Event            is cured and shall upon becoming aware of such Potential Trigger Event immediately            notify the Warranty Provider of such Potential Trigger Event, which notice shall            include a description of the manner in which the Adviser intends to cure such Potential            Trigger Event (“Curative Steps”), the Adviser’s assessment of            the likelihood of success, the time the Adviser expects to elapse before such Potential            Trigger Event is cured, and such other information as the Warranty Provider may            reasonably request. Upon sending such notice to the Warranty Provider, the Adviser            shall immediately take the Curative Steps set forth in such notice unless and until            such time as the Warranty Provider notifies the Adviser that it objects to such            Curative Steps, in which case the Adviser shall immediately cease the implementation of            such Curative Steps. The Warranty Provider shall only object to such Curative Steps if,            in the Warranty Provider’s reasonable discretion, they are not consistent with            this Agreement or are not likely to be an effective cure of the Potential Trigger Event            within the cure period set forth in Section 4.1(a), if any.

            (c)   If a Trigger Event occurs, then, at the election            of the Warranty Provider in its sole discretion, the Warranty Provider shall have the            right at any time after such Trigger Event to either (i) (A) instruct the Adviser            to invest all of the Fund’s assets in accordance with Section 4.2(a) for            the remainder of the Warranty Period or (B) to deliver the Irrevocable Instructions to            the Custodian to invest all of the Fund’s assets in accordance with Section            4.2(a) for the remainder of the Warranty Period (in each case, a “Trigger            Initiated Defeasance Event”) or (ii) adjust the Multiple. Any such            adjustment to the Multiple shall be permanent, unless and until further adjusted by the            Warranty Provider in its sole discretion. For the avoidance of doubt, the parties            hereto agree that (i) the Warranty Provider may at its election, in its sole            discretion, exercise the remedy provided in Section 4.1(c)(i)(B) after it has            exercised the remedy provided in Section 4.1(c)(i)(A) and (ii) if the Warranty            Provider exercises its rights to adjust the Multiple, the Warranty Provider shall not            be precluded subsequent thereto from exercising its rights under Sections            4.1(c)(i)(A) and/or 4.1(c)(i)(B). The Warranty Provider shall notify the            Adviser and the Fund of the Warranty Provider’s decision to exercise the remedies            pursuant to this Section 4.1(c) prior to such exercise. The Adviser shall            invest all of the Fund’s assets in accordance with Section 4.2(a) within            one Exchange Business Day following its receipt of a written instruction by the            Warranty Provider under Section 4.1(c)(i)(A).

            (d)                      In the event of (i) an act or omission on the part of the Adviser with respect to            the Trust or the Fund which constitutes a breach of this Agreement, negligence,            recklessness, bad faith, willful misconduct or fraud, including by way of example only            and not intended as an exhaustive list, if (A) the Adviser fails to comply with the            Portfolio Requirements prior to a Trigger Initiated Defeasance Event or Market            Initiated Defeasance Event, (B) any violation of reporting in accordance with            Section 3.4(a), including material inaccuracies or late transmission of            information, or (C) the Adviser causes the Fund to purchase investments other than            those permitted to be invested in hereunder after the occurrence of a Trigger Initiated            Defeasance Event or a Market Initiated Defeasance Event resulting in a violation of            Section 4.1(c) or Section 4.2(a) (such conduct referenced in            subsection (i) of this Section 4.1(d), the “Adviser            Conduct”) and (ii) the existence of a Floor Shortfall, the Adviser            agrees to pay to the Warranty Provider an amount equal to the amount of such Floor            Shortfall determined as provided in this Section 4.1(d) to have been            directly or indirectly attributable to such Adviser Conduct. The amount of such Floor            Shortfall directly or indirectly attributable to the Adviser Conduct shall be equal to            the sum of the differences with respect to each Class of Shares, if negative, between            (a) the actual NAV Per Share as of the date of determination and (b) the            hypothetical NAV Per Share of a hypothetical portfolio comprised of the actual            portfolio assets as of the date of determination adjusted to eliminate the effect of            the Adviser Conduct to the extent necessary to eliminate any Floor Shortfall directly            or indirectly attributable to such Adviser Conduct. In making the determination of the            Floor Shortfall, the hypothetical portfolio will be based on the actual portfolio of            assets as of the date of determination adjusted to bring the portfolio into

 

compliance with            all of the restrictions of Section 3.2 hereof, by decreasing and increasing            positions in asset classes, as the case may be, on a pro rata basis. In addition, if            all of the Fund’s assets are required to be invested in a Defeasance Portfolio            pursuant to Sections 4.1(c)(i) and 4.2 and the Fund’s assets are            not so invested on the Exchange Business Day immediately following the Defeasance Date            and for the remainder of the Warranty Period, then if (and only if) a Floor Shortfall            or an additional Floor Shortfall (collectively “Additional Floor            Shortfall”) arises due to the Fund’s assets not being so invested            within such period and/or for the remainder of the Warranty Period, then the Adviser            agrees to pay to the Warranty Provider such Additional Floor Shortfall (if any). The            Fund’s assets shall be deemed to be invested in the Defeasance Portfolio if at            the time of determination the Fund has executed orders to sell all Eligible Equity            Investments and Ineligible Investments, if any, and subsequent thereto has executed            orders to invest all of the proceeds thereof in the Defeasance Portfolio. The Warranty            Provider shall notify (the “Determination Notice”) the Adviser in            writing of its determination that Adviser Conduct has occurred and any Floor Shortfall            directly or indirectly attributable to such Adviser Conduct and any Additional Floor            Shortfall. If the Adviser disagrees with the Warranty Provider’s determination            that there has been Adviser Conduct and/or the amount of the Floor Shortfall directly            or indirectly attributable to such Adviser Conduct and/or the amount of the Additional            Floor Shortfall contained in the Determination Notice, then (i) the Adviser shall            notify (the “Objection Notice”) the Warranty Provider in writing of            such disagreement within five Business Days after the delivery by the Warranty Provider            of the Determination Notice and (ii) unless the Adviser and the Warranty Provider            otherwise agree, the existence, if any, of Adviser Conduct and the amount, if any, of            the Floor Shortfall directly or indirectly attributable to such Adviser Conduct and the            amount of any Additional Floor Shortfall shall be determined by arbitration in            accordance with the procedures set forth in Section 4.1(e) (an            “Objection Event”). If the Adviser does not provide the Warranty            Provider with the Objection Notice within such five Business Day period, then the            Adviser shall be deemed to have agreed to the Warranty Provider’s determination            of the existence of Adviser Conduct and of the amount of the Floor Shortfall directly            or indirectly attributable to the Adviser Conduct and the amount of the Additional            Floor Shortfall, in each case as contained in the Determination Notice. Except as            provided in the Escrow Agreement, any amount payable by the Adviser under this            Section 4.1(d) with respect to Adviser Conduct (i) shall be paid to            the Warranty Provider within five Business Days of the delivery of the Determination            Notice or if such amount is determined pursuant to an arbitration proceeding, within            five Business Days after such final arbitration decision; *provided* that should            the parties otherwise agree on any amount payable by the Adviser under this Section            4.1(d), such amount shall be paid to the Warranty Provider within five Business            Days of such agreement; and (ii) shall be reduced on a dollar for dollar basis by            any amounts paid by the Adviser to the Fund (subject to applicable law) as a result of            the same Adviser Conduct to the extent that the Total Assets is increased and the Floor            Shortfall or Additional Floor Shortfall, as applicable, is in fact decreased by such            amount. In the event that the Adviser fails to pay to the Warranty Provider any amounts            payable under this Section 4.1(d) or fails to deposit into the Escrow            Account any amounts required to be so deposited in accordance with Section            4.1(f) hereof, in each case within the time period specified herein, the Shortfall            Amount shall be decreased (i) in the case of a Floor Shortfall, on a pro rata            basis by the percentage of the Floor Shortfall directly or indirectly attributable to            the Adviser Conduct, and (ii) in the case of an Additional Floor Shortfall, by the            amount of such Additional Floor Shortfall on a dollar for dollar basis. The payment of            the Floor Shortfall amount by the Adviser to the Warranty Provider pursuant to this            Section 4.1(d) is in addition to, and not in lieu of, any obligations of            the Adviser or Fund to indemnify the Warranty Provider under this Agreement.

            (e)                      In the case of an Objection Event, within three Business Days after the delivery by the            Adviser of the Objection Notice, the Adviser shall file with the American Arbitration            Association a submission to arbitration (an “Arbitration Submission            Notice”) pursuant to the Commercial Dispute Resolution Procedures of the            American Arbitration Association and the rules thereunder and shall pay any filing            fees. The Arbitration Submission Notice shall state that the parties have agreed to the            use of the American Arbitration Association’s procedures on expedited arbitration            and desire that such expedited

 

procedures be            applied to their dispute regardless of the amount of the claim at issue. A copy of the            Arbitration Submission Notice shall be delivered to the Warranty Provider concurrently            with the Adviser’s delivery of such Arbitration Submission Notice to the American            Arbitration Association. An arbitrator shall be selected in accordance with the            American Arbitration Association’s procedures on expedited arbitration. No Person            affiliated with any party hereto shall be eligible to be an arbitrator. The arbitrator            shall determine (i) whether the Adviser Conduct that is the subject of the            applicable Objection Notice occurred, (ii) the amount of the Floor Shortfall directly            or indirectly attributable to such Adviser Conduct as of such date of determination,            and/or (iii) the amount of any Additional Floor Shortfall as of such date of            determination. The Adviser and the Warranty Provider hereby acknowledge and agree that            the arbitration shall be held in New York, New York and shall be conducted in            accordance with the Commercial Dispute Resolution Procedures of the American            Arbitration Association including the procedures for expedited arbitration, as each are            in effect as of the date of this Agreement. Each determination to be made by the            arbitrator pursuant to this Section 4.1(e) shall be final, binding and subject            to judicial enforcement and shall be the exclusive remedy of the Warranty Provider and            the Adviser with regard to the specific determinations made by such arbitrator;            *provided*, *however*, that the Warranty Provider shall neither be limited            from seeking indemnification under Section 5.2(a) hereof nor be limited            from exercising its full rights to pursue any and all other claims that were not            determined by the arbitrator in any manner or forum arising out of any Adviser Conduct,            including with respect to any other Losses incurred by the Warranty Provider and/or any            other Warranty Provider Party in connection with or arising out of such Adviser            Conduct. The amount of any Floor Shortfall directly or indirectly attributable to            Adviser Conduct and/or Additional Floor Shortfall determined by the arbitrator shall be            as of the date of such determination. Fees and expenses of the arbitration (including            fees and expenses of the arbitrator) shall be borne by the party against which the            arbitration is decided.

            (f)    In the case of an Objection Event, an            amount equal to any Floor Shortfall and/or Additional Floor Shortfall that is the            subject under such Objection Event as set forth in the Determination Notice delivered            to the Adviser by the Warranty Provider in accordance with Section 4.1(d) shall            be deposited into an escrow account (the total amount held in such account at any time            being the “Escrow Account”) pursuant to the Escrow Agreement by the            Adviser within five Business Days of its delivery to the Warranty Provider of the            Objection Notice relating to such Objection Event pending a final determination of the            amount of such Floor Shortfall and/or Additional Floor Shortfall in accordance with            Section 4.1(e). The Escrow Account shall be held in escrow by State Street Bank            and Trust Company, as escrow agent, pursuant to the terms of the Escrow Agreement            substantially in the form attached hereto as Annex B.

|   | Section 4.2 | Defeasance Portfolio. |
|--------|-------------|-----------------------|

            (a)   The Warranty Provider may exercise the remedies            provided in Section 4.1(c) at any time after the occurrence of a Trigger Event            or Market Initiated Defeasance Event. For the avoidance of doubt, the parties hereby            agree that (i) the Warranty Provider may at its election, in its sole discretion,            exercise the remedy provided in Section 4.1(c)(i)(B) after it has exercised the            remedy provided in Section 4.1(c)(i)(A) and (ii) if the Warranty Provider            exercises its rights to adjust the Multiple under Section 4.1(c)(ii), the            Warranty Provider shall not be precluded subsequent thereto from exercising its rights            under Sections 4.1(c)(i)(A) and/or 4.1(c)(i)(B). The Financial Warranty            Fee shall remain due and payable in accordance with Section 2.4            notwithstanding the occurrence of a Trigger Event, Trigger Initiated Defeasance Event            or a Market Initiated Defeasance Event. The Adviser shall provide the Warranty Provider            as a condition precedent to the issuance of the Financial Warranty with irrevocable            instructions (“Irrevocable Instructions”), in substantially the form            of Exhibit 1 to the Custodian Instruction Agreement, executed by the Adviser.            The Adviser will amend Schedule 1 to the Irrevocable Instructions from time to time as            necessary to ensure that the table of U.S. Zeros included in such Schedule 1 to the            Irrevocable Instructions conforms to the Bond Ladder and shall provide a copy

             

            of such amended schedule to the Warranty Provider promptly upon such amendment. The            Irrevocable Instructions shall constitute a limitation of the further authority of the            Adviser (including any subadviser of the Fund) to manage the Fund’s assets other            than in accordance with the Irrevocable Instructions after the occurrence of a Trigger            Initiated Defeasance Event or Market Initiated Defeasance Event, as applicable, and the            delivery of the Irrevocable Instructions to the Custodian by the Warranty Provider. The            Warranty Provider shall only deliver the Irrevocable Instructions to the Custodian            following a Trigger Event or Trigger Initiated Defeasance Event, as applicable, or a            Market Initiated Defeasance Event and shall give prior notice thereof to the            Adviser.

            (b)   If a Trigger Initiated Defeasance Event or a            Market Initiated Defeasance Event shall have occurred, the Adviser shall reduce its            management fee so as to immediately cause maximum Fund Fees and Expenses (excluding            Extraordinary Expenses) to be reduced to 135 basis points per annum of the average            daily Net Assets of the Fund for the Class A Shares, 200 basis points per annum of the            average daily Net Assets of the Fund for the Class C Shares, 100 basis points per annum            of the average daily Net Assets of the Fund for the Class S Shares and 100 basis points            per annum of the average daily Net Assets of the Fund for the Class Institutional            Shares.

**ARTICLE V**

**INDEMNIFICATION AND CONTRIBUTION**

Section 5.1  Survival.Except as otherwise specifically provided in this Agreement,            the indemnification obligations inSection 5.2and contribution obligations inSection            5.4shall survive the Termination Date or any earlier            termination of this Agreement pursuant toSection            10.1hereof.

|   | Section 5.2 | Indemnification. |
|--------|-------------|------------------|

            (a)   The Adviser agrees to indemnify and hold harmless            the Warranty Provider, its Affiliates, and their respective employees, officers,            directors, agents and controlling persons (collectively, the “Warranty            Provider Parties”) from and against any and all losses, claims, damages,            liabilities, judgments, costs (including reasonable attorneys’ fees), expenses            (including expenses of investigation and enforcement) and disbursements (collectively,            “Losses”) incurred or suffered by any of them, directly or            indirectly, in connection with or arising out of (i) any breach or alleged breach            of any warranty, or the inaccuracy or alleged inaccuracy of any representation, as the            case may be, made by either of the Adviser or the Fund under this Agreement or any of            the other Transaction Documents to which it is a party, (ii) the failure or            threatened failure of either of the Adviser (including any subadviser of the Fund) or            the Fund to fulfill any of their respective agreements or covenants contained in this            Agreement or any of the other Transaction Documents to which it is a party, including            without limitation the failure or threatened failure to pay to the Warranty Provider            any amounts pursuant to Section 4.1(d) or the failure to comply with            Section 4.1(b), (iii) the enforcement or preservation of any of the            Warranty Provider’s rights under this Agreement and the other Transaction            Documents, (iv) the overpayment (including without limitation a situation where no            payment was required by the Warranty Provider) of the Aggregate Shortfall Amount or            Accelerated Aggregate Shortfall Amount, including by reason of mistake, negligence,            fraud or error in calculation; *provided*, *however*, that the Warranty            Provider Parties shall not be entitled to indemnification for any such overpayment to            the extent that such overpayment was a result of the fault of the Warranty Provider or            the Calculation Agent, (v) any portion of a payment made by the Warranty Provider for            the Aggregate Shortfall Amount or Accelerated Aggregate Shortfall Amount attributable            to any expense or obligation incurred by the Fund as a result of liabilities owed by a            series of the Trust other than the Fund, (vi) the improper calculation of the            Total Assets of the Fund or each Class of Shares of the Fund by reason of mistake,            negligence, fraud or error in calculation thereof, (vii) any actions by the Custodian            in breach of its obligations under

             

            the Transaction Documents which cause the Warranty Provider to incur or suffer Losses            in connection with or arising out of this Agreement, and (viii) any claim, suit or            demand involving (A) the transactions or actions contemplated by the Transaction            Documents (which should be interpreted to include the performance by the Warranty            Provider of services it is required to provide pursuant to the Agreement), (B) any            investigation or defense of, participation in, or preparation for any pending or            threatened claim or any legal proceeding relating to the execution, delivery,            enforcement, performance or administration of the Transaction Documents, (C) the            investigation of, preparation for and prosecution of any claim against the Adviser by            the Warranty Provider or its affiliates for failure of the Adviser to perform its            obligations under the Agreement; (D) the liquidation or termination of the Fund after            the Effective Date and prior to the Maturity Date, or (E) an allegation or other            claim that any Marketing Material, the Registration Statement or any Prospectus            included any untrue statement of a material fact or omitted to state any material fact            required to be stated therein or necessary to make the statements therein, in light of            the circumstances under which they were made, not misleading other than with respect to            any information relating solely to the Warranty Provider included in the Registration            Statement, Prospectus or Marketing Material, which has been provided by the Warranty            Provider in writing for inclusion therein under the WP Information Letter;            *provided*, *however*, that the Adviser shall not be liable for any Losses to            the extent that such Losses result, directly or indirectly, from any action or omission            on the part of any of the Warranty Provider Parties which constitutes negligence,            recklessness, bad faith, willful misconduct or fraud by such Warranty Provider Parties.            The Adviser agrees to promptly reimburse any of the Warranty Provider Parties for all            Losses in respect of which indemnification may be sought by such Warranty Provider            Party hereunder as they are incurred or suffered by such Warranty Provider Party. For            the avoidance of doubt, and not by way of limitation, the parties hereby acknowledge            and agree that the indemnification obligations of the Adviser for any alleged breach of            any warranty, any alleged inaccuracy of any representation and any threatened failure            to fulfill any agreement or covenant under subsections (i) and (ii) above shall not            apply in the case of disputes between the Adviser and one or more Warranty Provider            Parties unless such dispute has been determined substantially in favor of the Warranty            Provider Party or Parties by a court of competent jurisdiction.

            (b)   The Fund agrees to indemnify and hold harmless            the Warranty Provider Parties from and against any and all Losses incurred or suffered            by any of them, directly or indirectly, in connection with or arising out of            (i) any breach or alleged breach of any warranty, or the inaccuracy or alleged            inaccuracy of any representation, as the case may be, made by the Trust or the Trust on            behalf of the Fund under this Agreement or any of the other Transaction Documents to            which it is a party, (ii) the failure or threatened failure of the Fund to fulfill            any agreement or covenant of the Fund (or the Trust on behalf of the Fund) contained in            this Agreement or any of the other Transaction Documents to which it is a party,            (iii) the enforcement or preservation of any of the Warranty Provider’s            rights under this Agreement and the other Transaction Documents, (iv) the            overpayment (including without limitation a situation where no payment was required by            the Warranty Provider) of the Aggregate Shortfall Amount or Accelerated Aggregate            Shortfall Amount, including by reason of mistake, negligence, fraud or error in            calculation; *provided*, *however*, that the Warranty Provider Parties shall            not be entitled to indemnification for any such overpayment to the extent that such            overpayment was a result of the fault of the Warranty Provider or the Calculation            Agent, (v) any portion of a payment made by the Warranty Provider for the Aggregate            Shortfall Amount or Accelerated Aggregate Shortfall Amount attributable to any expense            or obligation incurred by the Fund as a result of liabilities owed by a series of the            Trust other than the Fund, (vi) the improper calculation of the Total Assets of            the Fund or each Class of Shares of the Fund by reason of mistake, negligence, fraud or            error in calculation thereof (vii) any actions by the Custodian in breach of its            obligations under the Transaction Documents which cause the Warranty Provider to incur            or suffer Losses in connection with or arising out of this Agreement or any of the            other Transaction Documents, and (viii) any claim, suit or demand involving            (A) the transactions or actions contemplated by the Transaction Documents (which            should be

             

            interpreted to include the performance by the Warranty Provider of services it is            required to provide pursuant to the Agreement), (B) any investigation or defense            of, participation in, or preparation for any pending or threatened claim or any legal            proceeding relating to the execution, delivery, enforcement, performance or            administration of the Transaction Documents, (C) the investigation of, preparation for            and prosecution of any claim against the Fund by the Warranty Provider or its            affiliates for failure of the Fund to perform its obligations under the Agreement, (D)            the liquidation or termination of the Fund after the Effective Date and prior to the            Maturity Date, or (E) an allegation or other claim that any Marketing Material,            the Registration Statement or any Prospectus included any untrue statement of a            material fact or omitted to state any material fact required to be stated therein or            necessary to make the statements therein, in light of the circumstances under which            they were made, not misleading other than with respect to any information relating            solely to the Warranty Provider included in the Registration Statement, Prospectus or            Marketing Material, which has been provided by the Warranty Provider in writing for            inclusion therein under the WP Information Letter; *provided*, *however*,            that the Fund shall not be liable for any Losses to the extent that such Losses result,            directly or indirectly, from any action or omission on the part of any of the Warranty            Provider Parties which constitutes negligence, recklessness, bad faith, willful            misconduct or fraud by such Warranty Provider Parties. The Fund agrees to promptly            reimburse any of the Warranty Provider Parties for all Losses in respect of which            indemnification may be sought by such Warranty Provider Party hereunder as they are            incurred or suffered by such Warranty Provider Party. For the avoidance of doubt, and            not by way of limitation, the parties hereby acknowledge and agree that the            indemnification obligations of the Fund for any alleged breach of any warranty, any            alleged inaccuracy of any representation and any threatened failure to fulfill an            agreement or covenant under subsections (i) and (ii) above shall not apply in the case            of disputes between the Fund and one or more Warranty Provider Parties unless such            dispute has been determined substantially in favor of the Warranty Provider Party or            Parties by a court of competent jurisdiction.

            (c)   The Warranty Provider agrees to indemnify and            hold harmless the Adviser and the Fund, their Affiliates, and their respective            employees, officers, directors, trustees and agents (collectively, the            “Fund/Adviser Parties”) from and against any and all Losses incurred            or suffered by any of them, directly or indirectly, in connection with or arising out            of (i) any breach or alleged breach of any warranty, or the inaccuracy or alleged            inaccuracy of any representation, as the case may be, made by the Warranty Provider            under this Agreement or any of the other Transaction Documents to which it is a party,            (ii) the failure or threatened failure of the Warranty Provider to fulfill any            agreement or covenant of the Warranty Provider contained in this Agreement or any other            Transaction Documents to which it is a party, or (iii) the Warranty            Provider’s failure to pay the Aggregate Shortfall Amount or Accelerated Aggregate            Shortfall Amount, if any, required to be paid by it under the Financial Warranty in            accordance with the terms of this Agreement including by reason of the Calculation            Agent failing to provide to the Adviser or the Fund a certificate certifying the            calculation of the Aggregate Shortfall Amount or Accelerated Aggregate Shortfall Amount            within two Business Days following the Maturity Date or the Early Termination Date or            if there is a final determination by a court of competent jurisdiction that the            Aggregate Shortfall Amount or Accelerated Aggregate Shortfall Amount determined by the            Calculation Agent and included in such certificate is less than the actual Aggregate            Shortfall Amount or Accelerated Aggregate Shortfall Amount as determined by such court;            *provided*, *however*, that (A) the Warranty Provider shall not be liable for            any Losses to the extent that such Losses result, directly or indirectly, from any            action or omission on the part of any of the Fund/Adviser Parties which constitutes a            breach of this Agreement, negligence, recklessness, bad faith, willful misconduct or            fraud by such Fund/Adviser Party and (B) the Warranty Provider’s liability under            this Section 5.2(c) shall be subject to the limitations in Section 8.4.            The Warranty Provider agrees to promptly reimburse any of the Fund/Adviser Parties for            all Losses in respect of which indemnification may be sought by such Fund/Adviser            Parties hereunder as they are incurred or suffered by such Fund/Adviser Parties. For            the avoidance of doubt, and not by way of limitation, the parties hereby acknowledge            and agree that the

             

            indemnification obligations of the Warranty Provider for any alleged breach of any            warranty, any alleged inaccuracy of any representation and any threatened failure to            fulfill an agreement or covenant under subsections (i) and (ii) above shall not apply            in the case of disputes between the Warranty Provider and one or more Fund/Adviser            Parties unless such dispute has been determined substantially in favor of the            Fund/Adviser Party or Parties by a court of competent jurisdiction.

|   | Section 5.3 | Indemnification Procedure.   |
|--------|-------------|-----------------------------------|

            (a)   The party or parties being indemnified are            referred to herein as the “Indemnified Party” and the indemnifying            party is referred to herein as the “Indemnifying Party.” In the            event that any party shall incur or suffer any Losses in respect of which            indemnification may be sought by such party hereunder, the Indemnified Party shall            assert a claim for indemnification by written notice (the “Indemnification            Notice”) to the Indemnifying Party stating the nature and basis of such            claim. In the case of Losses arising by reason of any third party claim, the            Indemnification Notice shall be given within thirty (30) days of the filing or other            written assertion of any such claim against the Indemnified Party, but the failure of            the Indemnified Party to give the Indemnification Notice within such time period shall            not relieve the Indemnifying Party of any liability that the Indemnifying Party may            have to the Indemnified Party, except to the extent that the Indemnifying Party            demonstrates that the defense of such action has been prejudiced by the Indemnified            Party’s failure to give such Indemnification Notice.

            (b)   In the case of third party claims for which            indemnification is sought, the Indemnifying Party shall have the option (i) to            conduct any proceedings or negotiations in connection therewith, (ii) to take all            other steps to settle or defend any such claim (*provided* that the Indemnifying            Party shall not settle any such claim without the consent of the Indemnified Party            (which consent shall not be unreasonably withheld or delayed)), and (iii) to            employ counsel (reasonably satisfactory to the Indemnified Party) to contest any such            claim or liability in the name of the Indemnified Party or otherwise. In any event, the            Indemnified Party shall be entitled to participate at its own expense and by its own            counsel in any proceedings relating to any third party claim. The Indemnifying Party            shall, within twenty (20) days of receipt of the Indemnification Notice, notify the            Indemnified Party of its intention to assume the defense of such claim. If (i) the            Indemnifying Party shall decline to assume the defense of any such claim, (ii) the            Indemnifying Party shall fail to notify the Indemnified Party within twenty (20) days            after receipt of the Indemnification Notice of the Indemnifying Party’s election            to defend such claim or (iii) the Indemnified Party shall have reasonably            concluded that there may be defenses available to it which are different from or in            addition to those available to the Indemnifying Party or a conflict exists between the            Indemnifying Party and the Indemnified Party (in which case the Indemnifying Party            shall not have the right to direct the defense of such action on behalf of the            Indemnified Party), the Indemnified Party shall defend against such claim and the            Indemnified Party may settle such claim without the consent of the Indemnifying Party,            and the Indemnifying Party may not challenge the reasonableness of any such settlement.            The expenses of all proceedings, contests or lawsuits in respect of such claims shall            be borne and paid by the Indemnifying Party (up to a limit of one counsel in the case            of attorneys’ fees) and the Indemnifying Party shall pay the Indemnified Party,            in immediately available funds, as such Losses are incurred upon receipt of supporting            documentation thereof. Regardless of which party shall assume the defense of the claim,            the parties agree to cooperate fully with one another in connection therewith. In the            event that any Losses incurred by the Indemnified Party do not involve payment by the            Indemnified Party of a third party claim, then, the Indemnifying Party shall pay,            within ten (10) days after agreement on the amount of Losses or the occurrence of a            determination of such amount payable, to the Indemnified Party, in immediately            available funds, the amount of such Losses. Anything in this Section 5.3 to            the contrary notwithstanding, the Indemnifying Party shall not, without the Indemnified            Party’s prior written consent, settle or compromise any pending or threatened            claim, action or proceeding or consent to entry of any judgment in respect thereof            which imposes any future obligation on the Indemnified Party, or

             

            which does not include, as an unconditional term thereof, the giving by the claimant or            plaintiff to the Indemnified Party, a release from all liability in respect of such            claim, action or proceeding and which does not include a statement as to or admission            of fault, culpability or failure to act by or on behalf of any Indemnified Party.

            (c)   The remedies provided for in this Article            V shall not be exclusive of any other rights or remedies available to one party            against the other, either at law or in equity.

            (d)   (A) In the event that an Indemnified Party is            requested or required to appear as a witness in any action arising from transactions            contemplated by the Transaction Documents brought by or on behalf of or against the            Adviser, the Fund or any of their affiliates in which such Indemnified Party is not            named as a defendant, the Adviser agrees to reimburse the Warranty Provider for all            reasonable expenses incurred by it in connection with such Indemnified Party’s            appearing and preparing to appear as such a witness, including, without limitation, the            reasonable fees and disbursements of its legal counsel, and to compensate the Warranty            Provider in an amount to be mutually agreed upon. (B) In the event that an Indemnified            Party is requested or required to appear as a witness in any action arising from            transactions contemplated by the Transaction Documents brought by or on behalf of or            against the Warranty Provider or any of its affiliates in which such Indemnified Party            is not named as a defendant, the Warranty Provider agrees to reimburse the Adviser or            the Fund, as applicable, for all reasonable expenses incurred by it in connection with            such Indemnified Party’s appearing and preparing to appear as such a witness,            including, without limitation, the reasonable fees and disbursements of its legal            counsel, and to compensate the Adviser or the Fund, as applicable, in an amount to be            mutually agreed upon.

|   | Section 5.4 | Contribution. |
|--------|-------------|---------------|

            (a)   To provide for just and equitable contribution,            if the indemnification by an Indemnifying Party provided for in Article V of            this Agreement is determined to be unavailable or insufficient to hold harmless any            Indemnified Party in respect of any Losses, such Indemnifying Party shall contribute to            the amount paid or payable by such Indemnified Party as a result of such Losses (A) in            such proportion as shall be appropriate to reflect the relative fault of the            Indemnifying Party on the one hand and the Indemnified Party on the other with respect            to the matter that resulted in such Losses or (B) if the allocation provided by clause            (A) above is not permitted by applicable law, in such proportion as is appropriate to            reflect not only the relative fault referred to in clause (A) above but also the            relative benefits received by each of such parties from the offering of the Shares and            entering and performance of this Agreement, as well as any other relevant equitable            considerations. The relative fault of each Indemnifying Party on the one hand and each            Indemnified Party on the other shall be determined by reference to, among other things,            whether (i) any negligence, recklessness, bad faith, willful misconduct or fraud            relates to action or inaction within the control of the Indemnifying Party or the            Indemnified Party and the parties’ relative intent, knowledge, access to            information and opportunity to correct or prevent such negligence, recklessness, bad            faith, willful misconduct or fraud and (ii) any untrue or alleged untrue statement of a            material fact or the omission or alleged omission of a material fact relates to            information supplied by or action within the control of, the Indemnifying Party or the            Indemnified Party and the parties’ relative intent, knowledge, access to            information and opportunity to correct or prevent such statement or omission. The            parties hereto agree that it would not be just and equitable if contributions pursuant            to this Section 5.4 were to be determined by pro rata allocation or by any other            method of allocation that does not take into account the equitable considerations            referred to herein.

 

            (b)   Each Indemnifying Party agrees to promptly            reimburse an Indemnified Party for all Losses in respect of which contribution may be            sought hereunder as they are incurred or suffered by such Indemnified Party.

**ARTICLE VI**

**REPRESENTATIONS AND WARRANTIES**

Section 6.1   Representations and Warranties of the Adviser.To induce the Warranty            Provider to enter into this Agreement and to issue the Financial Warranty, the Adviser            hereby represents and warrants to the Warranty Provider as follows, on and as of the            date this Agreement is executed and delivered pursuant toSection 2.3hereof and on and as of the            Effective Date:

(a)    The Adviser (i) is a corporation duly organized, validly existing            and in good standing under the laws of the State of Delaware, (ii) has the power            and authority, and the legal right, to own its assets and to transact the business in            which it is engaged, (iii) is duly qualified to do business and is in good            standing under the laws of each jurisdiction where its ownership or lease of property            or the conduct of its business requires such qualification, except where the failure to            so qualify could not reasonably be expected to have an Adverse Effect, (iv) is in            compliance with all Requirements of Law except where non-compliance could not            reasonably be expected to have an Adverse Effect and (v) with respect to the Fund, is            in compliance with all Requirements of Law, written policies of the Adviser, and            fiduciary responsibilities except where non-compliance could not reasonably be expected            to have an Adverse Effect.

(b)    The Adviser has the power and authority, and the legal right, to            execute, deliver and perform its obligations under the Transaction Documents to which            it is a party and has taken all necessary action required by applicable Requirements of            Law to authorize the execution, delivery and performance of the Transaction Documents            to which it is a party. Except as has been obtained, no consent or authorization of,            filing with, or other act by or in respect of, any Government Authority or any other            Person is required in connection with the execution, delivery, performance, validity or            enforceability by or against the Adviser of the Transaction Documents to which it is a            party, other than such consents, authorizations, filings or acts the absence of which            could not reasonably be expected to have an Adverse Effect. This Agreement and each            other Transaction Document to which the Adviser is a party has been duly executed and            delivered on behalf of the Adviser. Each Transaction Document to which the Adviser is a            party, when executed and delivered, constitutes a legal, valid and binding obligation            of the Adviser enforceable against it in accordance with its terms, except as            enforceability may be limited by applicable bankruptcy, insolvency, reorganization,            moratorium or similar laws affecting the enforcement of creditors’ rights            generally and by general equitable principles (whether enforcement is sought by            proceedings in equity or at law).

(c)    The execution, delivery and performance by the Adviser of the            Transaction Documents to which it is a party do not and will not violate any            Requirement of Law or Contractual Obligation of the Adviser and will not result in, or            require, the creation or imposition of any Lien on any of its property, assets or            revenues, except where such violation or Lien could not reasonably be expected to have            an Adverse Effect. The Adviser is not in violation of any Contractual Obligation,            except where such violation could not reasonably be expected to have an Adverse            Effect.

(d)    No litigation, proceeding or investigation of or before any arbitrator            or Government Authority is pending or, to the Adviser’s knowledge, threatened by            or against the

             

Adviser or against any of its properties or revenues (i) asserting            the invalidity or unenforceability of any of the Transaction Documents,            (ii) seeking to prevent the consummation of any of the transactions contemplated            by the Transaction Documents, (iii) seeking any determination or ruling that could            reasonably be expected to have an Adverse Effect, except as previously disclosed in            writing to the Warranty Provider or (iv) asserting any violation by the Adviser or            the Fund of the Investment Advisers Act or the Investment Company Act or the respective            rules and regulations thereunder or alleging that the Adviser or the Fund committed or            engaged in or attempted to commit or engage in any act, practice or course of business            which is fraudulent, deceptive, or manipulative, except where such alleged violation            could not reasonably be expected to have an Adverse Effect.

(e)    The Adviser is duly registered with the Commission as an investment            adviser under the Investment Advisers Act; and to the best of the Adviser’s            knowledge there does not exist any proceeding or any facts or circumstances the            existence of which could adversely affect the registration of the Adviser with the            Commission; the Adviser is not prohibited by any provision of the Investment Advisers            Act or the Investment Company Act, or the respective rules and regulations thereunder,            from acting as an investment adviser of the Fund as contemplated hereunder and in the            Registration Statement.

(f)    All factual information prepared and furnished by or on behalf of the            Adviser to the Warranty Provider and/or the Calculation Agent (whether prepared by the            Adviser or any other Person) for purposes of or in connection with this Agreement, any            other Transaction Document or any transaction contemplated hereby or thereby is true            and accurate in all material respects on the date as of which such information is dated            or certified and such information taken as a whole does not omit to state any material            fact necessary to make such information in the context in which it is furnished not            misleading.

(g)    To the best of the Adviser’s knowledge, no statute, rule,            regulation, order or publicly available interpretation of any such statute, rule,            regulation or order by a Government Authority has been enacted or deemed applicable by            any Government Authority that would make the transactions contemplated by the            Transaction Documents illegal or otherwise prevent the consummation thereof by the            Adviser.

(h)    The Trust is duly registered with the Commission as an open-end            management investment company under the Investment Company Act and has been operated in            compliance in all material respects with the Investment Company Act and the rules and            regulations thereunder and the Commission has not issued any order preventing or            suspending the use of any prospectus relating to any Class of Shares and the Fund has            not received any notice from the Commission pursuant to Section 8(e) of the            Investment Company Act with respect to the Registration Statement.

(i)     The Underlying Fund is duly registered with the Commission as an            open-end management investment company under the Investment Company Act and has been            operated in compliance in all material respects with the Investment Company Act and the            rules and regulations thereunder and the Commission has not issued any order preventing            or suspending the use of any prospectus relating to any class of shares of the            Underlying Fund and the Underlying Fund has not received any notice from the Commission            pursuant to Section 8(e) of the Investment Company Act with respect to the            registration statement on Form N-1A currently in effect for the Underlying Fund. The            Underlying Fund is managed in accordance with the investment objectives, strategies and            fundamental investment restrictions detailed in the registration statement of such            Underlying Fund in effect as of the date of this Agreement. The outstanding

             

shares of each class of shares of the Underlying Fund held by the Fund            are duly authorized and validly issued and are fully paid and nonassessable and conform            in all respects to the description thereof contained in the registration statement with            respect to such shares as in effect when such shares were issued.

(j)     The DWS Cash Management QP Trust (A) is not required to be registered            under the Securities Act or the Investment Company Act; (B) is managed in accordance            with the requirements of Rule 2a-7 under the Investment Company Act (with the Adviser            performing the duties assigned to the board of directors of a money market fund under            Rule 2a-7); and (C) is managed in accordance with the investment objectives, strategies            and investment restrictions detailed in its offering documentation as provided to the            Warranty Provider and in effect as of the date of this Agreement. The outstanding            shares of each class of shares of the DWS Cash Management QP Trust held by the Fund are            duly authorized and validly issued and are fully paid and nonassessable and conform in            all respects to the description thereof contained in the offering documentation with            respect to such shares as in effect when such shares were issued.

(k)    Except as previously disclosed in writing to the Warranty Provider, no            employee, officer, trustee, investment adviser or principal underwriter of the Fund is            ineligible or subject to disqualification pursuant to Section 9(a) or 9(b) of the            Investment Company Act and there is no proceeding or investigation pending or, to the            knowledge of the Adviser, threatened that would reasonably be expected to become the            basis for any such ineligibility or disqualification. Except as previously disclosed in            writing to the Warranty Provider, neither the Adviser, nor any “person associated            with an investment adviser” (as defined in the Investment Advisers Act), is            ineligible or subject to disqualification pursuant to Sections 203(e) or (f) of the            Investment Advisers Act to serve as an investment adviser or as a person associated            with an investment adviser and there is no proceeding or investigation pending or, to            the knowledge of the Adviser, threatened that would reasonably be expected to become            the basis for any such ineligibility or disqualification.

(l)     No Class of Shares of the Fund has been authorized by the Board or is            otherwise outstanding other than Class A, Class C, Class S and Institutional            Class.

(m)  The Fund is            not required to register as a commodity pool under the Commodity Exchange            Act.

(n)    The Warranty Provider is a third-party beneficiary of the Custodian            Instruction Agreement.

Section            6.2   Representations and            Warranties of the Trust on Behalf of the Fund.The Trust on behalf of the Fund hereby            represents and warrants to the Warranty Provider as follows, on and as of the date this            Agreement is executed and delivered pursuant toSection            2.3hereof and on and as of the Effective Date:

(a)    The Trust (i) is a business trust duly formed, validly existing and            in good standing under the laws of the Commonwealth of Massachusetts; (ii) has the            power and authority, and the legal right, to own its assets and to transact the            business in which it is engaged; (iii) is duly qualified to do business and is in            good standing under the laws of each jurisdiction where its ownership or lease of            property or the conduct of its business requires such qualification, except where the            failure to so qualify could not reasonably be expected to have an Adverse Effect; and            (iv) with respect to the Fund, is in compliance with all Requirements of Law and            written policies of the Fund adopted by the Board, except where non-compliance could            not reasonably be expected to have an Adverse Effect.

 

(b)    The Trust has the power and authority, and the legal right, on behalf of            the Fund, to execute, deliver and perform on behalf of the Fund its obligations under            the Transaction Documents to which the Fund is a party and has taken all necessary            action required by applicable Requirements of Law to authorize the execution, delivery            and performance of the Transaction Documents to which the Fund is a party. No consent            or authorization of, filing with, or other act by or in respect of, any Government            Authority or any other Person is required in connection with the execution, delivery,            performance, validity or enforceability by or against the Fund of the Transaction            Documents to which it is a party, other than the filing under the Acts of the            Registration Statement and the Prospectus, filings in accordance with Blue Sky laws and            the requisite approval of the Trust’s Board, other than such consents,            authorizations, filings or acts, the absence of which could not reasonably be expected            to have an Adverse Effect. This Agreement and each other Transaction Document to which            the Trust, on behalf of the Fund, is a party has been duly executed and delivered on            behalf of the Fund. Each Transaction Document to which the Trust, on behalf of the            Fund, is a party, when executed and delivered, constitutes a legal, valid and binding            obligation of the Fund enforceable against the Fund in accordance with its terms,            except as enforceability may be limited by applicable bankruptcy, insolvency,            reorganization, moratorium or similar laws affecting the enforcement of            creditors’ rights generally and by general equitable principles (whether            enforcement is sought by proceedings in equity or at law).

(c)    The execution, delivery and performance by the Trust, on behalf of the            Fund, of the Transaction Documents to which the Fund is a party (including the            Declaration of Trust) do not and will not violate any Requirement of Law or Contractual            Obligation of the Fund and will not result in, or require, the creation or imposition            of any Lien on any of its property, assets or revenues, except for liens arising under            the Custody Agreement and where such violation or Lien could not reasonably be expected            to have an Adverse Effect. The Fund is not in violation of any Contractual Obligation,            except where such violation could not reasonably be expected to have an Adverse            Effect.

(d)    No litigation, proceeding or investigation of, or before any arbitrator            or Governmental Authority is pending or, to the Fund’s knowledge, threatened by            or against the Fund or against any of its properties or revenues (i) asserting the            invalidity or unenforceability of any of the Transaction Documents, (ii) seeking            to prevent the consummation of any of the transactions contemplated by the Transaction            Documents, (iii) seeking any determination or ruling that could reasonably be            expected to have an Adverse Effect or (iv) asserting any violation by the Fund of            the Investment Company Act or the rules and regulations promulgated thereunder or            alleging that the Fund committed or engaged in or attempted to commit or engage in any            act, practice or course of business which is fraudulent, deceptive, or            manipulative.

(e)    The Trust is duly registered with the Commission as an open-end            management investment company under the Investment Company Act and, with respect to the            Fund, has been operated in compliance in all material respects with the Investment            Company Act and the rules and regulations thereunder and the Commission has not issued            any order preventing or suspending the use of any prospectus relating to any Class of            Shares and the Fund has not received any notice from the Commission pursuant to            Section 8(e) of the Investment Company Act with respect to the Registration            Statement.

(f)    The Fund is registered as a “diversified” fund within the            meaning of the Investment Company Act.

 

(g)    The Shares of each Class of Shares of the Fund are duly authorized and            when issued in accordance with the Registration Statement against the receipt of due            consideration therefor, will be validly issued, fully paid and nonassessable and when            so issued, will conform in all respects to the description thereof contained in the            currently effective Registration Statement and Prospectus in effect as of the date of            such issuance with respect to such Class of Shares.

(h)    The Final Post-Effective Amendment and Final Prospectus (other than with            respect to any information relating solely to the Warranty Provider included in such            Final Post-Effective Amendment or Final Prospectus which has been provided by the            Warranty Provider in writing for inclusion therein under the WP Information Letter) (A)            have been prepared by the Trust in materialconformity with the            requirements of the Acts and the rules and regulations of the Commission thereunder;            (B) have become or been declared effective by the Commission; (C) contain all            information and statements which are required by the Acts and the rules and regulations            thereunder; and (D) do not contain any untrue statement of a material fact or omit            to state any material fact required to be stated therein or necessary to make the            statements therein, in the light of the circumstances under which they were made, not            misleading.

(i)     All factual information prepared and furnished by or on behalf of the            Fund to the Warranty Provider and/or the Calculation Agent (whether prepared by the            Fund or any other Person) for purposes of or in connection with this Agreement, any            other Transaction Document or any transaction contemplated hereby or thereby is true            and accurate in all material respects on the date as of which such information is dated            or certified and such information taken as a whole does not omit to state any material            fact necessary to make such information in the context in which it is furnished not            misleading.

(j)     To the best of the Fund’s knowledge, no statute, rule, regulation,            order or publicly available interpretation of any such statute, rule, regulation or            order by a Government Authority has been enacted or deemed applicable by any Government            Authority that would make the transactions contemplated by this Agreement or any other            Transaction Document to which it is a party illegal or otherwise prevent the            consummation thereof by the Fund.

(k)    To the best of the Fund’s knowledge, no employee, officer or            trustee of the Fund is ineligible or subject to disqualification pursuant to Section            9(a) or 9(b) of the Investment Company Act and there is no proceeding or investigation            pending or, to the knowledge of the Fund, threatened that would reasonably be expected            to become the basis for any such ineligibility or disqualification.

(l)     No Class of Shares of the Fund has been authorized by the Board or is            otherwise outstanding other than Class A, Class C, Class S and Institutional            Class.

(m)  The Fund has            received from the Commission such exemptive, no action or other relief from the            Investment Company Act (and the rules promulgated thereunder), or the Fund is able to            properly rely on rules under the Investment Company Act, such that it may hold the            securities and other instruments contemplated by this Agreement, including without            limitation shares of the Underlying Fund, Eligible Money Market Fund and the Index            Assets.

|   | (n) | The Fund is an investment company as defined in the                            Investment Company Act. |
|--------|-----|--------------------------------------------------------------------------------------------------------|

(o)  The Fund has            properly claimed exclusion from the definition of “commodity pool operator”            (and has filed a notice of eligibility for such exclusion with the National            Futures

             

Associated) and is not required to register as a commodity pool under            the Commodity Exchange Act).

(p)    The Warranty Provider is a third-party beneficiary of the Custodian            Instruction Agreement.

Section 6.3  Representations and Warranties of the Warranty Provider.The Warranty            Provider hereby represents and warrants to the Adviser and the Fund as follows, on and            as of the date this Agreement is executed and delivered pursuant toSection 2.3hereof and on and as of the            Effective Date:

(a)    The Warranty Provider (i) is an industrial bank, organized and in good            standing under the laws of the State of Utah; (ii) has the power and authority, and the            legal right, to own its assets and to transact the business in which it is engaged;            (iii) is duly qualified to do business and is in good standing under the laws of each            jurisdiction where its ownership or lease of property or the conduct of its business            requires such qualification, except where the failure to so qualify would not            reasonably be expected to have an Adverse Effect with respect to the Warranty Provider;            and (iv) is in compliance with all Requirements of Law, except where non-compliance            would not reasonably be expected to have an Adverse Effect with respect to the Warranty            Provider.

(b)    The Warranty Provider has the power and authority, and the legal right,            to execute, deliver and perform its obligations under this Agreement and any other            Transaction Document to which it is a party and has taken all necessary action required            by applicable Requirements of Law to authorize the execution, delivery and performance            of this Agreement and any other Transaction Document to which it is a party. Except as            has been obtained, no consent or authorization of, filing with, or other act by or in            respect of, any Government Authority or any other Person is required in connection with            the execution, delivery, performance, validity or enforceability by or against the            Warranty Provider of the Transaction Documents to which it is a party, other than such            consents, authorizations, filings or acts the absence of which could not reasonably be            expected to have an Adverse Effect. Each Transaction Document to which the Warranty            Provider is a party has been duly executed and delivered on behalf of the Warranty            Provider. Each Transaction Document to which the Warranty Provider is a party, when            executed and delivered, constitutes a legal, valid and binding obligation of the            Warranty Provider enforceable against it in accordance with its terms, except as            enforceability may be limited by applicable bankruptcy, insolvency, reorganization,            moratorium or similar laws affecting the enforcement of creditors’ rights            generally and by general equitable principles (whether enforcement is sought by            proceedings in equity or at law).

(c)    The execution, delivery and performance by the Warranty Provider of each            of this Agreement and any other Transaction Document to which it is a party does not            and will not violate any Requirement of Law or Contractual Obligation of the Warranty            Provider and will not result in, or require, the creation or imposition of any Lien on            any of its property, assets or revenues, except where such violation or Lien could not            reasonably be expected to have an Adverse Effect with respect to the Warranty Provider.            The Warranty Provider is not in violation of any Contractual Obligation, except where            such violation could not reasonably be expected to have an Adverse Effect with respect            to the Warranty Provider.

(d)    No litigation, proceeding or investigation of or before any arbitrator            or Government Authority is pending or, to the Warranty Provider’s knowledge,            threatened by or against the Warranty Provider (i) asserting the invalidity or            unenforceability of this Agreement or any other Transaction Document to which it is a            party, or (ii) seeking to prevent the

             

consummation of any of the transactions contemplated by this Agreement            or any other Transaction Document to which it is a party or (iii) seeking any            determination or ruling that could reasonably be expected to have an Adverse Effect            with respect to the Warranty Provider.

(e)    To the Warranty Provider’s knowledge, no statute, rule,            regulation, order or publicly available interpretation of any such statute, rule,            regulation or order by any Government Authority has been enacted or deemed applicable            by any Government Authority that would make the transactions contemplated by this            Agreement or any other Transaction Document to which it is a party illegal or otherwise            prevent the consummation thereof by the Warranty Provider.

(f)    All information provided by the Warranty Provider to the Adviser and the            Trust as set forth in the WP Information Letter (including the audited financial            statements referenced therein) is true and accurate in all material respects as of the            date of such WP Information Letter.

(g)    The financial statements of the Warranty Provider included or            incorporated by reference in the Trust’s Registration Statement with respect to            the Fund fairly present in all material respects the financial position of the Warranty            Provider as of the dates and for the periods referred to therein and in conformity with            generally accepted accounting principles applied on a consistent basis.

(h)    The Warranty Provider is “well capitalized” within the            meaning of the capital maintenance regulations of the Federal Deposit Insurance            Corporation (“FDIC”), 12 C.F.R. Part 325.

**ARTICLE VII**

**COVENANTS**

Section 7.1   Covenants of the Adviser.The Adviser hereby covenants and agrees that            through the Termination Date and so long as a drawing is available under the Financial            Warranty:

(a)    it shall not amend, supplement, modify, terminate, or agree to any            waiver of any rights with respect to, any of the Transaction Documents (other than            amendments or supplements to the Registration Statement or Prospectus pursuant to Rules            485 or 497 under the Securities Act that do not modify references to or otherwise            relate to the Warranty Provider, this Agreement or the Financial Warranty or include            any change to the Fund’s investment objective or any material change to the            Fund’s investment policies or strategies), without the prior written consent of            the Warranty Provider, which consent shall not be unreasonably withheld or            delayed;

(b)    it shall notify the Warranty Provider promptly of (i) any request            by the Commission for (A) an amendment to the Registration Statement with respect            to any Class of Shares of the Fund or a supplement to the Prospectus with respect to            any Class of Shares of the Fund, or (B) an amendment to the registration statement            of any Underlying Fund or any Eligible Money Market Fund or a supplement to the            prospectus of any Underlying Fund or any Eligible Money Market Fund, (ii) the            issuance by the Commission of any stop-order suspending the effectiveness of            (A) the Registration Statement with respect to any Class of Shares of the Fund or            the initiation or threat of any such stop-order proceeding, or (B) the            registration statement of any Underlying Fund or any Eligible Money Market Fund or the            initiation or threat of any such stop-order proceeding, (iii) receipt by the Trust            of a notice from or order of the Commission pursuant to Section 8(e) of the            Investment Company Act with respect to any Registration Statement with respect to the            Fund or (B) receipt by any Underlying Fund or any Eligible Money Market Fund            of

             

a notice from or order of the Commission pursuant to Section 8(e)            of the Investment Company Act with respect to any registration statement with respect            to any Underlying Fund or any Eligible Money Market Fund, or (iv) receipt by the            Adviser, any Underlying Fund, any Eligible Money Market Fund or the Trust of any            subpoena, Wells Notice, or other similar document indicating or threatening the            initiation of a formal investigation of the Adviser, any Underlying Fund, any Eligible            Money Market Fund or the Fund by any Person or Government Authority;*provided*that (i), (ii) and (iii) of this            paragraph (b), shall only be applicable to any Eligible Money Market Fund if such fund            is required to be registered under the Investment Company Act;

(c)    within five days after the filing with the Commission of any amendment            to the Registration Statement with respect to any Class of Shares or supplement to the            Prospectus with respect to any Class of Shares, it shall furnish a copy thereof to the            Warranty Provider;*provided*,*however*            , that the Adviser shall within a reasonable period of time prior to filing with the            Commission of any such amendment or supplement furnish a copy thereof to the Warranty            Provider and obtain the prior written consent of the Warranty Provider, which consent            shall not be unreasonably withheld, if such amendment or supplement modifies references            to or otherwise relates to the Warranty Provider, this Agreement or the Financial            Warranty or includes any change to the Fund’s investment objective or any            material change to the Fund’s investment policies or strategies;

(d)    it shall manage the Fund Portfolio in accordance with the Portfolio            Requirements;

(e)    (i) it shall comply in all material respects with the terms and            provisions of all Requirements of Law (including without limitation the Acts, the            Commodity Exchange Act, the Code and the Investment Advisers Act and in each case the            rules and regulations promulgated thereunder), (ii) with respect to the Fund, it shall            comply in all respects with all Requirements of Law, written policies of the Adviser,            and any fiduciary responsibilities except where non-compliance could not reasonably be            expected to have an Adverse Effect and (iii) it shall obtain and maintain all licenses,            permits, charters and registrations which are necessary to the conduct of its business            or where the failure to obtain and maintain the same could reasonably be expected to            have an Adverse Effect;

(f)    it shall promptly inform the Warranty Provider of any Potential Trigger            Events and the action, inaction, omission, event or circumstance giving rise            thereto;

(g)    it shall promptly inform the Warranty Provider in writing of the            occurrence of any of the following events of which it has knowledge: any Litigation            Event, Regulatory Change, Regulatory Event or other event that could reasonably be            expected to have an Adverse Effect;

(h)    it shall promptly and fully perform all of, and comply in all respects            with, its obligations (i) under each Transaction Document to which it is a party,            and (ii) under each other agreement, instrument or contract delivered in            connection with a Transaction Document and by which it is bound, except in each case to            the extent that such non-performance could not reasonably be expected to have an            Adverse Effect and shall provide the Warranty Provider with written notice promptly            upon becoming aware of any breach by it of the provisions of any such agreements. The            Adviser shall take all action necessary to preserve its existence and ensure that the            Transaction Documents remain in full force and effect;

(i)     it shall keep or cause to be kept in reasonable detail books and records            of account of its business in relation to the Fund, including, without limitation,            electronic information with

             

respect thereto, in form and detail customary in the industry and            sufficient to satisfy the Adviser’s obligation to provide to the Warranty            Provider and the Calculation Agent the information referred to herein;

(j)     it shall implement compliance procedures reasonably designed to monitor            the Fund Portfolio’s compliance with the Portfolio Requirements on an ongoing            basis;

(k)    it shall not include any material relating to the Warranty Provider (or            any Affiliate thereof) or describing the terms of the Financial Warranty or this            Agreement in any Marketing Materials used by or on behalf of the Adviser or the Fund            unless such material has been approved in writing by the Warranty Provider prior to any            use of such Marketing Materials, which approval shall not be unreasonably            withheld;*provided*that no such            Marketing Materials shall state, imply or suggest that the Warranty Provider (or any            Affiliate of the Warranty Provider) is in any way responsible for the offering of            Shares or the management of the Fund; and,*provided,            further,*that any such request shall be in writing and shall            include the Marketing Material submitted for approval, and failure of the Warranty            Provider to respond to such request after notice from the Adviser shall, upon the 15th            Business Day following the date of the request, be deemed an approval by the Warranty            Provider hereunder;

(l)     it shall not delegate any of its management responsibilities under the            Investment Management Agreement to a subadviser or subsequent thereto terminate such            delegation to any subadviser or materially modify any then existing subadvisory            agreement with any subadviser to which it has delegated any of its management            responsibilities under the Investment Management Agreement;*provided*that upon obtaining prior written            consent of the Warranty Provider, the Adviser may take any action enumerated in this            subsection (l) if the subadviser is solely responsible for managing assets held in the            Equity Portfolio;

(m)  it shall            provide to the Warranty Provider such additional information with respect to the Trust            and the Fund as the Warranty Provider may from time to time reasonably request and,            after the occurrence of a Trigger Event, at the expense of the Adviser, during normal            business hours with reasonable prior notice allow the Warranty Provider to inspect,            audit and make copies of and abstracts from the Fund’s records and to visit the            offices of the Adviser for the purpose of examining such records maintained by the            Adviser;

(n)    in the case of a Floor Shortfall, it shall provide the Warranty Provider            and the Calculation Agent with such information regarding the assets and liabilities of            the Underlying Fund and Eligible Money Market Fund as the Warranty Provider may            reasonably request that directly or indirectly relate to the existence of a Floor            Shortfall;*provided, however,*that            such information shall be subject to the confidentiality provisions contained inSection 9.1and may be used solely for the            purposes of evaluating the circumstances relating to a Floor Shortfall and not for any            other purposes, including trading purposes;

(o)    all factual information prepared and furnished by or on behalf of the            Adviser to the Warranty Provider and/or the Calculation Agent (whether prepared by the            Adviser or any other Person) for purposes of or in connection with this Agreement, any            other Transaction Document or any transaction contemplated hereby or thereby will be            true and accurate in all material respects on the date as of which such information is            dated or certified and such information taken as a whole will not omit to state any            material fact necessary to make such information in the context in which it is            furnished not misleading;

 

(p)    it shall (A) immediately upon notice to the Adviser from the Warranty            Provider, the Calculation Agent or the Custodian that the Warranty Provider has            exercised its right to deliver the Irrevocable Instructions, deliver to the Custodian            (1) a schedule setting forth (i) the dates of expected payments of expected Fund Fees            and Expenses, exclusive of any Extraordinary Expenses, for the remainder of the            Warranty Period and (ii) the amount of any redemption requests actually received by the            Fund that are payable within the next five Exchange Business Days and (2) a notice            instructing the Custodian as to which broker or dealer the Custodian shall utilize to            execute any transaction to purchase or sell securities in accordance with the terms of            the Irrevocable Instructions; (B) thereafter deliver to the Custodian on a            periodic basis as necessary a notice specifying (1) the amount of redemption requests            actually received by the Fund that are payable within the next five Exchange Business            Days on a rolling basis and any appropriate changes to the schedule setting forth the            dates of expected payments of expected Fund Fees and Expenses, exclusive of any            Extraordinary Expenses and (2) the name and CUSIP of any Eligible Money Market Fund            that the Adviser and the Warranty Provider agree may serve as the investment vehicle            for Cash held by the Fund in accordance with the Irrevocable Instructions and (C) at            all times do, make, honor, execute and deliver (and shall likewise use reasonable            efforts to cause the Trust, on behalf of the Fund, to do, make, honor, execute and            deliver) all such additional and further acts, information, instruments, documents and            Instructions (the terms referenced in (A), (B) and (C) shall collectively be referred            to as, “Permitted            Instructions”) as the Custodian may at any time            reasonably request (each in form and substance satisfactory to the Custodian) in            connection with the Irrevocable Instructions. The Adviser hereby covenants and agrees            that all Permitted Instructions delivered by it to the Custodian shall be consistent            with the intent of the Irrevocable Instructions and be in accordance the terms of the            Custodian Instruction Agreement and the Service Agreement;

(q)    during the period beginning on the Effective Date through and including            the Maturity Date, the Adviser will use its reasonable best efforts to cause the Fund            not to authorize, establish, designate, offer, sell or otherwise issue any Shares of            any Class of Shares of the Fund other than Class A, Class C, Class S and Institutional            Class;

(r)    if, at any time during the period after the Effective Date through and            including the Maturity Date, the Adviser causes the Fund to hold Index Futures, the            Adviser will cause the Fund to segregate or earmark liquid assets in conformity with            the guidance provided by the Commission or its staff regarding compliance with Section            18 of the Investment Company Act;

(s)    for services rendered to a series of the Trust other than the Fund            (including fees and expenses associated with rendering such services), or for any claim            by the Adviser in connection with services rendered to a series of the Trust other than            the Fund, the Adviser shall look only to assets of such series of the Trust, and not to            the Fund, for satisfaction;

(t)     the Fund’s financial statements shall be prepared in conformity            with accounting principles generally accepted in the United States of America            (“GAAP”), applied on a consistent basis;

(u)    the Fund shall be an investment company under the Investment Company Act            and shall be operated in compliance in all material respects with the Investment            Company Act and the rules and regulations thereunder;

|   | (v) | the Fund shall be managed to comply with Subchapter M of                            the Code; |
|--------|-----|-----------------------------------------------------------------------------------------------|

 

(w)  the Fund            shall not be operated as a commodity pool requiring registration under the Commodity            Exchange Act;

(x)    (A) any Eligible Money Market Fund in which the Fund invests that is            registered, or required to be registered, under the Investment Company Act will be            managed in accordance with the requirements of Rule 2a-7 under the Investment Company            Act; (B) any Eligible Money Market Fund in which the Fund invests that is not            registered, or required to be registered, under the Investment Company Act will be            managed in accordance with the requirements of Rule 12d1-1(b) under the Investment            Company Act; (C) any Underlying Fund and any Eligible Money Market Fund required to be            registered under the Investment Company Act in which the Fund invests shall be (i)            operated in compliance in all material respects with the Investment Company Act and the            rules and regulations thereunder and (ii) managed in a manner consistent with the            investment objective, strategies and fundamental policies and investment restrictions            detailed in the registration statement in effect for such Underlying Fund or Eligible            Money Market Fund, as applicable; (D) the Adviser shall provide the Warranty Provider            with fifteen days’ written notice of any material change in the investment            objective, fundamental policies, fundamental investment restrictions or principal            investment strategies of each Underlying Fund or Eligible Money Market Fund that is an            Underlying Fund or Eligible Money Market Fund as of the date hereof as such objective,            policies, restrictions, or strategies are described in the registration statement or            offering memorandum of such fund in effect as of the date of this Agreement or as            changed since the last written notice provided by the Adviser under this subsection;            (E) the shares of each of the Underlying Fund and Eligible Money Market Fund are duly            authorized and when issued to the Fund in accordance with the registration statement or            offering documentation then in effect against the receipt of due consideration            therefor, will be validly issued, fully paid and nonassessable and when so issued, will            conform in all respects to the description thereof contained in the currently effective            registration statement or offering documentation in effect as of the date of such            issuance with respect to such shares; and (F) in respect of an Eligible Money Market            Fund that is not registered under the Investment Company Act, it shall provide a            quarterly portfolio holdings report to the Warranty Provider, or, in the alternative,            it shall provide a way for the Warranty Provider and the Calculation Agent to            electronically access the portfolio holdings of such Eligible Money Market Fund in a            format acceptable to the Warranty Provider in its reasonable discretion not later than            9:00 p.m. (Eastern time) on each Exchange Business Day with respect to the assets of            the Eligible Money Market Fund as of the close of business on such Exchange Business            Day;

(y)    the Fund will limit its use of futures contracts or take such other            actions as are necessary to meet the definition of investment company in Section 3 of            the Investment Company Act and the rules and regulations thereunder;

(z)    the Adviser (A) shall provide within 10 Business Days of any written            request by the Warranty Provider, a true, correct and complete statement of the amount            of its investment advisory assets under management (calculated in the same manner as it            calculates its assets under management for purposes of its reporting requirements on            Form ADV) and (B) shall notify the Warranty Provider promptly if it fails to have at            least $__ billion of assets under management;

(aa) the Adviser shall            provide a true, complete and correct copy of its audited financial statements            (including the report of its independent registered public accountants with respect to            such financial statements) to the Warranty Provider not later than July 31st of each            calendar year;

 

(bb) the Adviser shall            maintain its status as a registered investment adviser under the Investment Advisers            Act and shall make true, complete and correct annual filings with the Commission on            Form ADV, including any required amendments thereto;

(cc) the Warranty            Provider will remain a third-party beneficiary of the Custodian Instruction Agreement            and the Adviser will not cause the Trust to terminate, amend, rescind, waive or            otherwise change the provisions of the Custodian Instruction Agreement in effect as of            the date hereof and will not cause the Trust to consent to any changes to the Custodian            Instruction Agreement, including the third party beneficiary provision, without the            consent of the Warranty Provider; and

(dd) the Adviser will            amend Schedule 1 to the Irrevocable Instructions from time to time as necessary to            ensure that the table of U.S. Zeros included in such Schedule 1 to the Irrevocable            Instructions conforms to the Bond Ladder and deliver such amended Schedule to the            Warranty Provider within 5 Business Days of such amendment becoming necessary under the            Bond Ladder.

Section            7.2   Covenants of the            Trust on Behalf of the Fund.The Trust on behalf of the Fund hereby covenants and agrees            that through the Termination Date and so long as a drawing is available under the            Financial Warranty:

(a)    it shall provide the Warranty Provider with true, accurate, correct and            complete audited statements of assets and liabilities of the Fund with values            determined in accordance with the procedures described in the Registration Statement            and in accordance with the Investment Company Act and the rules and regulations            promulgated thereunder, and an audited schedule of investments of the Fund, each as of            such fiscal year end, promptly after it has filed such financial statements with the            Commission in accordance with the rules and regulations under the Investment Company            Act. Such audited financial statements will fairly and accurately present in all            materialrespects the financial position of the Fund as of the            dates and for the periods referred to therein and in conformity with generally accepted            accounting principles applied on a consistent basis. Such audited financial statements            shall not contain any untrue statement of a material fact or omit to state any material            fact required to be stated therein or necessary to make the statements therein not            misleading, in each case as of the dates and for the periods referred to in such            audited financial statements;

(b)    it shall provide the Warranty Provider with accurate, correct and            complete semi-annual (and if required to be filed with the Commission by applicable            law, quarterly) unaudited statements of assets and liabilities of the Fund with values            determined in accordance with the procedures described in the Registration Statement            and in accordance with the Investment Company Act and the rules and regulations            promulgated thereunder, and a semi-annual unaudited schedule of investments of the            Fund, in each case promptly after it has filed such financial statements with the            Commission in accordance with the rules and regulations under the Investment Company            Act. Such unaudited financial statements will fairly and accurately present in all            materialrespects the financial position of the Fund as of the            dates and for the periods referred to therein and in            materialconformity with generally accepted accounting principles            applied on a consistent basis. Such unaudited financial statements shall not contain            any untrue statement of a material fact or omit to state any material fact required to            be stated therein or necessary to make the statements therein not misleading, in each            case as of the dates and for the periods referred to in such unaudited financial            statements;

 

(c)    it shall promptly and fully perform all of, and comply in all respects            with, its obligations (i) under each Transaction Document to which it is a party,            and (ii) under each other agreement, instrument or contract delivered in            connection with a Transaction Document and by which it is bound, except in each case to            the extent that such non-performance would not reasonably be expected to have an            Adverse Effect and shall provide the Warranty Provider with written notice promptly            upon becoming aware of any breach by it of the provisions of any such            agreements;

(d)    it shall not amend, supplement, modify, terminate, or agree to any            waiver of any rights with respect to, any of the Transaction Documents (other than            amendments or supplements to the Registration Statement or Prospectus pursuant to Rules            485 or 497 under the Securities Act that do not modify references to or otherwise            relate to the Warranty Provider, this Agreement or the Financial Warranty or include            any change to the Fund’s investment objective or any material change to the            Fund’s investment policies or strategies) or the Declaration of Trust (as it            relates to the Fund) in each case without the prior written consent of the Warranty            Provider, which consent shall not be unreasonably withheld or delayed;

(e)    it shall not include any material relating to the Warranty Provider (or            any Affiliate thereof) or describing the terms of the Financial Warranty or this            Agreement in any Marketing Materials used by or on behalf of the Fund unless such            material has been approved in writing by the Warranty Provider prior to its inclusion            in such Marketing Materials, which approval shall not be unreasonably withheld;*provided*that no such Marketing Materials            shall state, imply or suggest that the Warranty Provider (or any Affiliate of the            Warranty Provider) is in any way responsible for the offering of Shares or the            management of the Fund; and,*provided further,*that any such request shall be in writing and shall include the            Marketing Material submitted for approval, and failure of the Warranty Provider to            respond to such request after notice from the Fund shall, upon the 15th Business Day            following the date of the request, be deemed an approval by the Warranty Provider            hereunder;

(f)    it shall not change in any respect the manner in which the assets or            liabilities of the Fund are allocated to any Class of Shares, except to the extent            necessary to comply with Requirements of Law, without the prior written consent of the            Warranty Provider;

(g)    prior to taking any action to terminate the Custodian, the Fund shall            notify the Warranty Provider and, in the event that the Custodian shall terminate the            Custodian Agreement with respect to the Fund, the Fund shall notify the Warranty            Provider and engage a successor Custodian;*provided*,*however*            ,that the Fund shall not engage as successor Custodian any            Custodian that (1) is not a bank meeting the qualifications set forth in Section            17(f)(1)(A) of the Investment Company Act, (2) does not agree to be bound by the            Custodian Instruction Agreement (or a substantially equivalent agreement), (3) does not            have a system in place that is substantially equivalent to the State Street System            (that provides data that includes substantially the same information that is available            via the State Street System) acceptable to the Warranty Provider in its reasonable            discretion and agree to provide the Warranty Provider with access to such system or (4)            is not acceptable to the Warranty Provider in its sole discretion;

(h)    in the event that the Adviser resigns, the Fund elects to terminate the            Investment Management Agreement with the Adviser or the Investment Management Agreement            terminates in accordance with its terms, the Fund shall immediately notify the Warranty            Provider and engage a successor adviser;*provided*,*however*            , that the Fund shall not engage as successor adviser any adviser (including the            Adviser) that (1) does not agree to be bound by the terms of this Agreement, subject to            applicable law, and the other Transaction Documents, in each case prior to

             

the effective date of such termination or (2) is not acceptable to the            Warranty Provider in its sole discretion;

(i)     it shall comply in all material respects with the terms and provisions            of the Acts, and the rules and regulations promulgated thereunder, with respect to the            Fund;

(j)     it promptly shall provide the Warranty Provider with a copy of any            amendment or waiver of any provision of the Transaction Documents or the filing of any            amendment to the Declaration of Trust if such amendment would reasonably be expected to            have an Adverse Effect on the Fund;

(k)    it shall provide to the Warranty Provider such additional information            with respect to the Fund as the Warranty Provider may from time to time reasonably            request and, after the occurrence of a Trigger Event, during normal business hours with            reasonable prior notice allow the Warranty Provider to inspect, audit and make copies            of and abstracts from the Fund’s records and visit the offices of the Fund for            the purpose of examining such records maintained by the Fund or the Adviser on behalf            of the Fund;

(l)     all factual information prepared and furnished by or on behalf of the            Fund to the Warranty Provider and/or the Calculation Agent (whether prepared by the            Fund or any other Person), other than information with respect to an Underlying Fund or            Eligible Money Market Fund, for purposes of or in connection with this Agreement, any            other Transaction Documents or any transaction contemplated hereby or thereby will be            true and accurate in all material respects on the date as of which such information is            dated or certified and such information taken as a whole will not omit to state any            material fact necessary to make such information in the context in which it is            furnished not misleading;

(m)  it shall not            approve or implement conversion rights for any Class of Shares without the prior            written consent of the Warranty Provider;

(n)    the Fund Portfolio shall be managed in accordance with the Portfolio            Requirements;

(o)    it shall maintain a fidelity bond with respect to its officers, trustees            and employees of the type and in the amounts as is required by law under Rule 17g-1 of            the Investment Company Act;

(p)    during the period beginning on the Effective Date through and including            the Maturity Date, the Fund will not authorize, establish, designate, offer, sell or            otherwise issue any Shares of any Class of Shares of the Fund other than Class A, Class            C, Class S and Institutional Class without the prior written consent of the Warranty            Provider;

(q)    if, at any time during the period after the Effective Date through and            including the Maturity Date, the Fund holds Index Futures, the Fund will segregate or            earmark liquid assets in conformity with the guidance provided by the Commission or its            staff regarding compliance with Section 18 of the Investment Company Act;

(r)    if a Trigger Initiated Defeasance Event or Market Initiated Defeasance            Event has occurred, the Fund shall not issue any additional Shares except in connection            with the reinvestment of dividends and distributions by the Fund to its Shareholders in            respect of the

             

Shares, or the transfer of Shares that does not result in an increase in            the Shares that are issued and outstanding;

(s)    the Fund’s financial statements shall be prepared in conformity            with GAAP, as applied on a consistent basis;

(t)     the Fund shall be an investment company under the Investment Company Act            and shall be operated in compliance in all material respects with the Investment            Company Act and the rules and regulations thereunder;

(u)    the Fund will limit its use of futures contracts or take such other            actions as are necessary to meet the definition of investment company in Section 3 of            the Investment Company Act and the rules and regulations thereunder;

|   | (v) | the Fund shall be managed to comply with Subchapter M of                            the Code; |
|--------|-----|-----------------------------------------------------------------------------------------------|

(w) to the extent that            the Fund invests in Eligible Money Market Funds in reliance on Rule 12d1-1, the fund            will comply with the provisions of Rule 12d1-1;

(x)    the Fund shall not operate as a commodity pool requiring registration            under the Commodity Exchange Act;

(y)    the Fund will be operated as a “diversified” fund within the            meaning of the Investment Company Act;

(z)    the Warranty Provider will remain a third-party beneficiary of the            Custodian Instruction Agreement and the Trust will not terminate, amend, rescind, waive            or otherwise change the provisions of the Custodian Instruction Agreement in effect as            of the date hereof and will not consent to any changes to the Custodian Instruction            Agreement, including the third party beneficiary provision, without the consent of the            Warranty Provider; and

(aa) the Shares of            each Class of Shares of the Fund shall be validly issued, fully paid and nonassessable            and shall conform in all respects to the description thereof contained in the            Registration Statement and Prospectus in effect as of the date of issuance with respect            to such Class of Shares.

Section            7.3   Covenants of the            Trust.The Trust hereby covenants and agrees that through the Termination Date in            satisfying any claim, liability or expense directed toward a series of the Trust other            than the Fund, or in paying fees and expenses of a series of the Trust other than the            Fund, the Trust will look to that series, and not to the Fund, to satisfy such            claim.

Section            7.4   Covenants of the            Warranty Provider.The Warranty Provider hereby covenants and agrees that through the            Termination Date:

(a)    it will make its audited annual financial statements, together with the            relevant auditor’s consents, and its unaudited quarterly financial statements            available to the Trust on behalf of the Fund for inclusion in the Registration            Statement as required by the Commission. Such audited financial statements shall be so            provided within 90 days of the end of each fiscal year end of the Warranty Provider and            such unaudited financial statements shall be so provided within 45 days of the end of            the applicable quarterly period;

 

(b)    it will provide the Adviser and the Trust promptly upon becoming aware            of the same with written notice (i) if the Warranty Provider ceases to be classified as            “well capitalized” based on the most recent call report filed by the            Warranty Provider with its primary federal banking regulator, for purposes of the            capital maintenance regulations of the FDIC, 12 C.F.R. Part 325, or any successor            regulations or (ii) of the commencement of any conservatorship, receivership or other            Act of Insolvency of the Warranty Provider;

(c)    it shall comply in all material respects with the terms and provisions            of all Requirements of Law with respect to the Warranty Provider and it shall obtain            and maintain all licenses, permits, charters and registrations which are necessary to            the conduct of its business or where the failure to obtain and maintain the same would            not reasonably be expected to have an Adverse Effect with respect to the Warranty            Provider;

(d)    it shall promptly and fully perform all of, and comply in all respects            with, its obligations (i) under each Transaction Document to which it is a party, and            (ii) under each other agreement, instrument or contract delivered in connection with a            Transaction Document and by which it is bound, except in each case to the extent that            such non-performance would not reasonably be expected to have an Adverse Effect with            respect to the Warranty Provider and shall provide the Adviser and the Trust with            written notice promptly upon becoming aware of any material breach by it of the            provisions of any such agreements. The Warranty Provider shall take all action            reasonably necessary to preserve its existence and ensure that the Transaction            Documents remain in full force and effect; and

(e)    all information provided by the Warranty Provider to the Adviser and the            Trust in the WP Information Letter (including the audited financial statements            referenced therein) is true and accurate in all material respects as of the date of            such WP Information Letter and such information taken as a whole will not omit to state            any material fact necessary to make such information in the context in which it is            furnished not misleading;*provided*that any representation regarding any information in the WP Information            Letter that references the Warranty Provider’s financial statements shall be            deemed to be made as of the date and for the periods referred to in such financial            statements.

**ARTICLE VIII**

**FURTHER AGREEMENTS**

Section 8.1   Obligations Absolute.The obligations of the Adviser and the Fund,            pursuant to this Agreement are absolute and unconditional and will be paid or performed            strictly in accordance with the respective terms hereof, irrespective of (but not            limited to):

(a)    (i) Any lack of validity or enforceability of any of the Transaction            Documents (other than the Financial Warranty), unless such lack of validity or            enforceability is finally determined by a final, non-appealable judgment of a court of            competent jurisdiction;*provided*,            the invalidity or enforceability of such Transaction Document(s) as determined by such            court has an Adverse Effect, or (ii) any amendment or other modification of, or waiver            with respect to, or consent to departure from, any of the Transaction Documents (other            than amendments to this Agreement in accordance withSection            11.1); or

(b)    The existence of any claim, set-off, defense or other right either may            have at any time against the other, any beneficiary or any transferee of the Financial            Warranty (or any persons or entities for whom any such beneficiary or any such            transferee may be acting), the Warranty

             

Provider or any other Person or entity whether in connection with this            Agreement, any of the Transaction Documents or any unrelated transactions; the            inaccuracy or alleged inaccuracy upon which any drawing under the Financial Warranty is            based; or any default or alleged default of the Warranty Provider under this Agreement,            other than a default with respect to payment of the Aggregate Shortfall Amount or            Accelerated Aggregate Shortfall Amount as determined by a final, non-appealable            judgment of a court of competent jurisdiction.

|   | Section 8.2 | Participations and Assignments.   |
|--------|-------------|----------------------------------------|

(a)  The Warranty            Provider may assign its obligations under this Agreement and any other Transaction            Document to which it is a party to (i) its ultimate parent company Merrill Lynch &            Co., Inc. (together with any successor entity, “ML &            Co.”) or an Affiliate of the Warranty Provider or ML            & Co. without the prior consent of the Fund or the Adviser,*provided,*(A) such Affiliate has the same            or better long-term unsecured credit rating as the Warranty Provider, (B) such            Affiliate assumes all of the obligations of the Warranty Provider hereunder, including            without limitation, the obligation to provide audited financial statements prepared in            accordance with applicable standards for filing an exhibit to the Fund’s            Registration Statement, and (C) such assignment shall not reasonably be expected to            have an Adverse Effect on the Fund and (ii) any other Person, subject to the prior            consent of the Fund and the Adviser, in their sole discretion;*provided that*, if such Affiliate does not            meet both criteria set forth in (A) and (B) requiring that it have the same or better            long-term unsecured credit rating as the Warranty Provider and/or provide audited            financial statements prepared in accordance with applicable standards for filing an            exhibit to the Fund’s Registration Statement (the            “Assignee Criteria”),            then such Affiliate may still be an assignee provided that (i) another Affiliate (the            “Guarantor Affiliate”)            guarantees the Affiliate’s obligations under the Agreement and (ii) such            Guarantor Affiliate meets the Assignee Criteria. Prior to any such assignment taking            effect, any applicable conditions with respect to the Warranty Provider set forth            inSection 2.3shall have been            fulfilled by such Affiliate assignee or waived by the Fund or the Adviser.

(b)    The Warranty Provider shall have the right to issue participations in            its rights under this Agreement with respect to the Financial Warranty;*provided*, that the Warranty Provider agrees            that any such disposition will not alter or affect in any way whatsoever the Warranty            Provider’s direct obligations hereunder and under the Financial Warranty,            including consent and approval requirements;*and provided            further,*that the Warranty Provider provides the Trust with            all information reasonably requested by the Trust in order to meet its disclosure            obligations under the Registration Statement.

(c)    The Adviser may assign its obligations under the Investment Management            Agreement to its Affiliate subject to the prior consent of the Warranty Provider, in            its sole discretion;*provided*, that            (A) such assignment shall not constitute an “assignment” for purposes of            the Investment Company Act; (B) such Affiliate assignee is registered as an investment            adviser under the Investment Advisers Act; and (C) such Affiliate assignee agrees to            assume the obligations of the Adviser under this Agreement and all other Transaction            Documents to which the Adviser is a party.

Section            8.3   Fund Liability.The            Warranty Provider agrees that it shall look only to the assets of the Fund, and not the            assets of any other series of the Trust, for payment of any fees, expenses or other            liabilities or obligations owed by the Fund to the Warranty Provider under the            Transaction Documents. The Warranty Provider understands that the Transaction Documents            are executed on behalf of the Fund by authorized officers of the Trust acting in such            capacity and not individually, and the obligations of the Fund under the Transaction            Documents are not binding upon any of the Trustees, officers, agents, or shareholders            of the Fund, but are binding only upon the assets and property of the Fund.

 

|   | Section 8.4 | Limitation of Liability of the Warranty Provider.   |
|--------|-------------|----------------------------------------------------------|

            (a)   The Adviser and the Trust, on behalf of the Fund,            agree that neither the Warranty Provider, its Affiliates, nor any of their respective            officers, trustees/directors or employees shall be liable or responsible for            (i) the use which may be made of the Financial Warranty by any Person or for any            acts or omissions of another Person in connection therewith or (ii) the validity,            sufficiency, accuracy or genuineness of any documents delivered to the Warranty            Provider, or of any endorsement(s) thereon, even if such documents should in fact prove            to be in any or all respects invalid, insufficient, fraudulent or forged. In            furtherance and not in limitation of the foregoing, the Warranty Provider may accept            documents that appear on their face to be in order, without responsibility for further            investigation.

            (b)   The parties hereby acknowledge and agree that in            no event shall the Warranty Provider’s liability under this Agreement or any of            the other Transaction Documents, including without limitation any liability under            Section 5.2(c) and the Financial Warranty, exceed the Financial Warranty Amount            Limit.

Section            8.5   Adviser Liability for            Actions of Subadviser.For the avoidance of doubt, the parties hereby agree that            (a) the Adviser shall be solely responsible for the management of the Fund            Portfolio regardless of whether the Adviser delegates any of its management            responsibilities under the Investment Management Agreement to a subadviser,            (b) the Adviser shall be liable under this Agreement and the other Transaction            Documents to which it is a party for any actions taken by any subadviser with regard to            the Fund Portfolio, and (c) for purposes of this Agreement and any other            Transaction Document to which it is a party, any action or omission by a subadviser            with respect to the Fund Portfolio shall be deemed to be the action or omission of the            Adviser.

Section            8.6   Calculation Agent as            Agent; Alternative Delivery.The Warranty Provider hereby notifies the Adviser and the            Fund that the Calculation Agent is authorized on behalf of the Warranty Provider as its            agent to take any action required or permitted to be taken by the Warranty Provider            under this Agreement. Upon written notice from the Warranty Provider to the Adviser or            the Trust on behalf of the Fund, the Warranty Provider may request the Adviser and the            Trust on behalf of the Fund to provide, and the Adviser or the Trust on behalf of the            Fund to cause the Custodian to provide, all information and reports to be delivered to            the Warranty Provider under any Transaction Document to the Calculation Agent on behalf            of the Warranty Provider. The Adviser and the Trust on behalf of the Fund hereby agree            that any information or instruction required or permitted to be provided by the            Warranty Provider under this Agreement or any other Transaction Document may be            provided by an Affiliate of the Warranty Provider, including, without limitation, the            Calculation Agent, as an agent of the Warranty Provider.

Section            8.7                 Calculation Agent Determinations Final and Binding.(a)All determinations or            calculations of any Maximum Equity Component, Adjusted Discount Factor, Shortfall            Amount, Aggregate Shortfall Amount, Accelerated Shortfall Amount, Accelerated Aggregate            Shortfall Amount, Floor Shortfall and Additional Floor Shortfall and any other            determination or calculations the Calculation Agent is permitted or required to make            under this Agreement shall for purposes of this Agreement be final and binding absent            manifest error. The Calculation Agent shall provide the Adviser and the Trust with            copies of, or access to, all supporting documentation reasonably requested by such            parties for the purpose of verifying the Shortfall Amount or Accelerated Shortfall            Amount.

 

            (b)   Upon request of the Fund or Adviser, the Warranty            Provider shall provide, or shall cause the Calculation Agent to provide, copies of the            information used in, and the calculation supporting, its determination of the Shortfall            Amount or Accelerated Shortfall Amount, as applicable.

|   | Section 8.8 | Eligibility of Underlying Funds and Eligible Money Market                            Funds. |
|--------|-------------|---------------------------------------------------------------------------------------------|

            (a)   An Underlying Fund listed on Schedule F hereto,            as such Schedule F may be amended from time to time, shall cease to be eligible as an            Underlying Fund following a determination by the Warranty Provider, in its reasonable            discretion, that a material change in the investment objective, fundamental policies,            fundamental investment restrictions or principal investment strategies of an Underlying            Fund would have an Adverse Effect on the Fund, the Adviser or the Warranty Provider.            The Warranty Provider shall notify the Fund and the Adviser promptly upon making such a            determination and the Underlying Fund that is the subject of such determination shall            be removed from Schedule F and shall cease to be an Underlying Fund as of the date such            notice is given; *provided* that such removed Underlying Fund shall not be            considered an Ineligible Investment for purposes of compliance with Article III            and Section 4.1(a) hereof until the second Exchange Business Day following the            day such notice is given by the Warranty Provider if the Adviser has taken affirmative            steps to eliminate its holdings of shares of such Underlying Fund.

            (b)   An Eligible Money Market Fund listed on Schedule            C hereto, as such Schedule C may be amended from time to time, shall cease to be            eligible as an Eligible Money Market Fund following a determination by the Warranty            Provider, in its reasonable discretion, that any of the following is true: (A) the            Warranty Provider does not have access to the portfolio holdings of such Eligible Money            Market Fund through the State Street System or similar custodial system for more than 5            Exchange Business Days; (B) the Eligible Money Market Fund holds (including as            collateral under a repurchase agreement) any “Asset Backed Securities”(as            such term is defined in Rule 2a-7 under the Investment Company Act) regardless of their            credit rating or any commercial paper that is not issued or guaranteed by an operating            company and not a “Special Purpose Entity” (as such term is defined in Rule            2a-7 under the Investment Company Act); (C) the Eligible Money Market Fund is redeeming            its shares at less than $1 per share; (D) the Eligible Money Market Fund is using fair            value or other special accounting procedure(s) to value any of the portfolio holdings            of the Eligible Money Market Fund; or (E) a material change in the investment            objective, fundamental policies, fundamental investment restrictions or principal            investment strategies of the Eligible Money Market Fund would have an Adverse Effect on            the Fund, the Adviser or the Warranty Provider. The Warranty Provider shall notify the            Fund and the Adviser promptly upon making such a determination and such Eligible Money            Market Fund that is the subject of such determination shall be removed from Schedule C            and shall cease to be an Eligible Money Market Fund as of the date such notice is            given; *provided* that such removed Eligible Money Market Fund shall not be            considered an Ineligible Investment for purposes of compliance with Article III            and Section 4.1(a) hereof until the second Exchange Business Day following the            day such notice is given by the Warranty Provider if the Adviser has taken affirmative            steps to eliminate its holdings of shares of such Eligible Money Market Fund.

**ARTICLE IX**

**CONFIDENTIALITY**

Section 9.1   Confidentiality Obligations of the Warranty Provider.Subject toSection 9.2, the Warranty Provider            agrees from the commencement of the Effective Date through and including one year after            the Maturity Date, or in the case of an Early Termination Event, the Early Termination            Date, on behalf of itself and its agents (including the Calculation Agent), not to            disclose or use for any purpose other than the approval or administration of this            Agreement, the exercise of its rights

 

and            obligations hereunder or legitimate corporate purposes relating to this Agreement            (including any corporate purposes relating to the characterization or treatment of the            rights and obligations hereunder for accounting, insurance, rating agency or other            similar purposes) (x) any information regarding the specific investments, assets            or liabilities of the Fund, the Underlying Fund or the Eligible Money Market Fund            whether provided to the Warranty Provider by the Adviser, the Fund or the Custodian            (“Holdings Information”)            or (y) other confidential information (including without limitation information            provided by the Adviser pursuant toSection 7.1(b)hereof or proprietary information as to systems, software and trading            methods) (collectively, “Other            Information” and, together with Holdings Information,            “Fund Confidential            Information”) provided by the Adviser or the Fund to            the Warranty Provider hereunder unless (i) such information was or becomes            generally available to the public other than as a result of the Warranty            Provider’s breach of thisArticle IX; (ii) such information is            already in the Warranty Provider’s possession (other than Fund Confidential            Information provided to the Warranty Provider by the Fund, the Adviser or their            representatives),*provided*that such            information is not known by the Warranty Provider to be subject to another            confidentiality agreement with, or obligation of secrecy to, the Fund, the Adviser or            their representatives; (iii) such information was or becomes available to the            Warranty Provider on a non-confidential basis from a source other than the Fund, the            Adviser or their representatives,*provided*, that such source is not known by            the Warranty Provider to be bound by a confidentiality agreement with, or other            obligation of secrecy to, the Fund, the Adviser or their representatives; or            (iv) such information is required to be disclosed pursuant to applicable law or in            connection with any legal proceedings or to the extent required by a subpoena, order of            any court or Government Authority having jurisdiction over the Warranty Provider, in            the Warranty Provider’s reasonable belief. The Warranty Provider shall promptly            provide the Fund and the Adviser with prior written notice of any request or            requirement for Fund Confidential Information to the extent permissible and practicable            under the circumstances, so the Fund or the Adviser may seek a protective order or            other appropriate remedy prior to the release of such information by the Warranty            Provider.

|   | Section 9.2 | Holdings Information and Other Information.   |
|--------|-------------|----------------------------------------------------|

            (a)   Except as otherwise provided in Section            7.1(n), notwithstanding Section 9.1, the Warranty Provider or the            Calculation Agent may to the extent necessary in the Warranty Provider’s or            Calculation Agent’s sole discretion disclose Fund Confidential Information in            connection with the Warranty Provider’s or Calculation Agent’s hedging            arrangements to hedging counterparties (“Permitted Recipients”) so            long as such persons agree in writing to keep such information confidential on the            terms contained in Section 9.1. Permitted Recipients shall agree to keep such            information confidential and shall memorialize such arrangement by entering into a            confidentiality agreement in substantially the form of Annex C hereto. The Warranty            Provider and Calculation Agent agree to provide information concerning its disclosure            of Fund Confidential Information to Permitted Recipients as requested by, and as            reasonably necessary for, the Trust to monitor its compliance with Requirements of            Law.

            (b)   Except as otherwise provided in Section            7.1(n), notwithstanding Section 9.1, the Warranty Provider and the            Calculation Agent may disclose Fund Confidential Information to those of its officers,            employees, directors, representatives, agents, outside counsel, and independent            auditors (collectively, “Warranty Provider Representatives”) who            need (in the Warranty Provider’s or Calculation Agent’s sole discretion) to            see such information in connection with administration of the Agreement, the exercise            of the Warranty Provider’s rights or obligations hereunder, or legitimate            corporate purposes so long as such persons agree to keep such information confidential            on the terms contained in Section 9.1 and, other than with respect to Warranty            Provider Representatives serving as legal counsel or independent registered public            accountants for the Warranty Provider or its Affiliates, memorialize such arrangement            by entering into a confidentiality agreement in substantially the form of Annex C            hereto.

 

|   | Section 9.3 | Confidentiality Obligations of the Adviser and the Fund.                              |
|--------|-------------|--------------------------------------------------------------------------------------------|

            (a)   Subject to subsection (b) below, the            Adviser and the Fund each agrees from the commencement of the Effective Date through            and including one year after the Maturity Date, or in the case of an Early Termination            Event, the Early Termination Date, on behalf of itself and its agents, not to disclose            or use for any purpose other than the approval or administration of this Agreement and            the exercise of its rights and obligations hereunder any confidential information            (including, without limitation, proprietary information as to systems, software and            trading methods) (collectively, “Warranty Provider Confidential            Information”) provided by the Warranty Provider or the Calculation Agent to            the Adviser or the Fund hereunder unless (i) such information was or becomes            generally available to the public other than as a result of the Adviser’s or the            Fund’s breach of this Article IX; (ii) such information is already in            the Adviser’s or the Fund’s possession (other than Warranty Provider            Confidential Information provided to the Adviser or the Fund by the Warranty Provider            or its representatives), *provided* that such information is not known by the            Adviser or the Fund to be subject to another confidentiality agreement with, or            obligation of secrecy to, the Warranty Provider or its representatives; (iii) such            information was or becomes available to the Adviser or the Fund on a non-confidential            basis from a source other than the Warranty Provider or its representatives;            *provided* that the source is not known by the Adviser or the Fund to be bound by            a confidentiality agreement with, or other obligation of secrecy to, the Warranty            Provider or its representatives; or (iv) such information is required to be            disclosed pursuant to applicable law or in connection with any legal proceedings or to            the extent required by a subpoena, order of any court or Government Authority. The Fund            and the Adviser shall promptly provide the Warranty Provider with prior written notice            of any request or requirement for Warranty Provider Confidential Information to the            extent permissible and practicable under the circumstances, so the Warranty Provider            may seek a protective order or other appropriate remedy prior to the release of such            information by the Fund and/or the Adviser.

            (b)   Notwithstanding subsection (a) above, each            of the Adviser and the Fund may disclose Warranty Provider Confidential Information to            those of its respective officers, employees, directors, trustees, representatives,            agents, outside counsel, and independent auditors (collectively “Fund/Adviser            Representatives”) who need (in the Adviser’s or the Fund’s, as            applicable, reasonable discretion) to see such information in connection with            administration of the Agreement or the exercise of the Adviser’s and Fund’s            rights or obligations hereunder or thereunder, so long as such persons agree to keep            such information confidential on the terms contained in this            Section 9.3.

|   | Section 9.5 | Copies of Confidential Information. |
|--------|-------------|-------------------------------------|

            (a)   Upon the request of the Fund or the Adviser, all            copies of Fund Confidential Information, except for that portion of the Fund            Confidential Information that consists of notes, analyses, compilations, studies,            interpretations or other documents prepared by the Warranty Provider, the Warranty            Provider Representatives and Permitted Recipients, will be promptly returned to the            Fund or the Adviser or destroyed; *provided*, *however*, that any Fund            Confidential Information retained by the Warranty Provider, the Warranty Provider            Representatives and Permitted Recipients, shall be maintained by the Warranty Provider,            the Warranty Provider Representatives and Permitted Recipients, subject to the            confidentiality terms of this Agreement until one year after the termination of this            Agreement.

            (b)   Upon the request of the Warranty Provider, all            copies of Warranty Provider Confidential Information, except for that portion of the            Warranty Provider Confidential Information that consists of notes, analyses,            compilations, studies, interpretations or other documents prepared by the Fund or the            Adviser, or the Fund/Adviser Representatives, will be promptly returned to the Warranty            Provider or destroyed; *provided*, *however*, that any Warranty Provider            Confidential

             

            Information retained by the Fund, the Adviser, or the Fund/Adviser Representatives,            shall be maintained by the Fund, the Adviser, and the Fund/Adviser Representatives,            subject to the confidentiality terms of this Agreement until the earlier of            (i) the termination of this Agreement or (ii) one year after receipt by the Fund            or the Adviser of a written request from the Warranty Provider to return the Warranty            Provider Confidential Information; *provided* that the Fund and the Adviser may            retain a single copy of any Warranty Provider Confidential Information, subject to the            confidentiality provisions above, that it is required to retain under Requirements of            Law, but for only so long as such Warranty Provider Confidential Information is            required to be so maintained under Requirements of Law.

**ARTICLE X**

**TERMINATION**

|   | Section 10.1 | Termination; Financial Warranty Acceleration.   |
|--------|--------------|------------------------------------------------------|

            (a)   Unless this Agreement and the Financial Warranty            are sooner terminated pursuant to Section 10.1(b), this Agreement and the            Financial Warranty shall terminate (i) effective as of the earlier of (A) the            Early Termination Date and (B) the Maturity Date, if no amounts are payable under the            Financial Warranty, or (ii) thereafter, upon payment by the Warranty Provider of            all amounts due by the Warranty Provider under the Financial Warranty to the Fund (any            such date of termination pursuant to this Article X, including a termination in            accordance with Section 10.1(c), is referred to in this Agreement as the            “Termination Date”).

|   | (b) |
|--------|-----|

(i)    This Agreement and, if issued, the Financial Warranty may be terminated            by the Fund and the Adviser by written notice to the Warranty Provider at any time upon            the occurrence of (A) an Act of Insolvency with respect to the Warranty Provider; (B)            in the event that the Warranty Provider ceases to be “well capitalized”            (based on its most recent Call Report filed with its primary Federal banking regulator)            within the meaning of the capital maintenance regulations of the FDIC, 12 C.F.R. Part            325 (or any successor provision); or (C) a failure by the Warranty Provider to maintain            a long term financial strength and claims paying ability rating of at least ___ by            Moody’s or ___ by S&P or ___ by Fitch;*provided*, that the Warranty Provider shall            be required to be rated by no more than one of such three ratings agencies and*provided further*that if the Warranty            Provider continues to perform its obligations under this Agreement, and within 30            calendar days of its failure to maintain the relevant ratings delivers to the Fund an            unconditional written guarantee of its obligations under this Agreement and the            Financial Warranty from ML & Co., or an Affiliate thereof, that in either case is            rated at least ___ by Moody’s or ___ by S&P or Fitch (one such rating being            sufficient) and in the reasonable discretion of the Fund such affiliate guarantee would            not have an Adverse Effect on the registration of the Fund under the Acts, neither the            Fund nor the Adviser shall have a right to terminate this Agreement under this            subsection (b)(i)(C) ofSection            10.1.

(ii)    This Agreement and the Financial Warranty may be terminated by the            Warranty Provider in its sole discretion by written notice to the Fund and the Adviser            prior to the Maturity Date if (1) (a) the Adviser resigns, (b) the Fund            elects to terminate the Investment Management Agreement with the Adviser, (c) the Fund            appoints a successor adviser (including a subadviser) without the prior written consent            of the Warranty Provider in its sole discretion, (d) the Investment Management            Agreement terminates in accordance with its terms or (e) the Adviser becomes unable to            serve as an investment adviser to the Fund pursuant to Section 9 of the Investment            Company Act and in each case any successor adviser (including the Adviser) that agrees            to be bound by the terms of this Agreement is appointed by the

 

Board of the Trust or the Shareholders, in each case without the prior            written consent of the Warranty Provider in its sole discretion, and the successor            adviser (A) fails to agree to all of the terms of the Transaction Documents to which            the Adviser is a party, (B) fails to meet the credit approval procedures then in place            for business transactions with the Warranty Provider, (C) is subject to any litigation,            regulatory action or other proceeding that may affect its ability to perform any of the            Transaction Documents; or (D) is not reasonably believed by the Warranty Provider to be            capable of managing the Fund; (2) the Fund terminates the Custodian Agreement with            State Street Bank and Trust Company and fails to engage a successor custodian or            engages a successor custodian that does not agree to be bound by the Custodian            Instruction Agreement and to provide the Warranty Provider with the substantial            equivalent (in the Warranty Provider’s reasonable discretion) of the State Street            System, or the Fund amends the Custodian Agreement so that the Custodian is no longer            bound by such provisions, or the successor custodian is not a nationally recognized            custodian holding in custody at least $___ billion of assets of U.S. registered            investment companies; (3) the Fund’s assets are not, for any reason, within a            reasonable time (such time not to exceed one Exchange Business Day) invested in            compliance with the Warranty Provider’s instructions after the Warranty Provider            exercises its rights underSection            4.1(c)(i); (4) the Adviser does not pay, in full, the            amounts payable underSection 4.1(d)within ten Business Days; (5) a determination of negligence,            recklessness, bad faith, willful misconduct or fraud on the part of the Adviser or the            Fund under any of the Transaction Documents by any (a) court of competent jurisdiction            or (b) board of arbitration; (6) the Adviser does not deliver to the Warranty Provider            the information required bySections 7.1 (m)and(n)within two            Exchange Business Days of the Warranty Provider’s request for such information;            (7) the Adviser fails to manage the assets of the Fund in accordance with the            investment objective, policies and strategies as set forth in the Prospectus and the            Registration Statement if such failure would have an Adverse Effect on the Warranty            Provider; (8) the Adviser fails to comply withSection            7.1(p); (9) the Fund is no longer registered, or permitted to            be registered, as an investment company; or (10) the Fund becomes subject to            registration as a commodity pool under the Commodity Exchange Act;*provided*that the Warranty Provider shall            not have the authority to terminate this Agreement under this Section 10(b)(ii)(10) if            (i) by meeting the criteria of an asset coverage test the Fund could avoid becoming            subject to registration under the Commodity Exchange Act, and the Adviser immediately            takes action such that the Fund meets the requirements of such asset coverage test            without creating any Floor Shortfall, or (ii) the Adviser voluntarily invests the            Fund’s assets in the Defeasance Portfolio.

(iii)   If            this Agreement is terminated in accordance withSection 10.1(b), the Fund shall notify            its Shareholders of such termination and such notice shall state that the Fund has            released the Warranty Provider from all liability under the Financial Warranty. The            Fund shall provide a copy of such notice to the Warranty Provider. From and after the            effective date of such termination, the Fund shall have no obligation to pay the            Financial Warranty Fee or Reduced Financial Warranty Fee (except as to amounts thereof            accrued on a daily interpolated basis prior to such termination), and the Warranty            Provider shall have no liability under the Financial Warranty.

            (c)   The Trust’s Board may determine to            liquidate the Fund for one of the following reasons (each, an “Early            Termination Event”): (i) the Fund’s asset size is not economically            viable, (ii) the Fund’s assets become irreversibly allocated to the Fixed Income            Portfolio, (iii) the Adviser resigns or is terminated and the Board determines that a            replacement investment adviser will not be appointed, or (iv) the Board determines that            it is otherwise in the best interest of the Shareholders to terminate the Fund. Within            10 days of the Board’s determination that an Early Termination Event has            occurred, the Board shall set the Early Termination Date. Following the earlier of (A)            the payment of any Accelerated Aggregate Shortfall Amount and (B) the expiration of the            Financial Warranty in accordance with its terms, this Agreement shall terminate. For            the avoidance of doubt, it is acknowledged and agreed that nothing in this Section            10.1(c) shall be understood to relieve the Fund of

             

            its obligation to pay the Accelerated Financial Warranty Fee (or any other Financial            Warranty Fee accrued and unpaid) following an Early Termination Event.

**ARTICLE XI**

**MISCELLANEOUS**

Section 11.1   Amendments and Waivers.No amendment or waiver of any provision of this            Agreement nor consent to any departure therefrom, shall in any event be effective            unless in writing and signed by all of the parties hereto;*provided*that any waiver so granted shall            extend only to the specific event or occurrence so waived and not to any other similar            event or occurrence which occurs subsequent to the date of such waiver;*and provided further,*that Schedules A            through F hereto may be amended by the Warranty Provider upon written notice to the            Fund and the Adviser.

Section            11.2   Notices.All notices,            communications, requests and demands to or upon the respective parties hereto to be            effective shall be in writing (and if sent by mail, sent via certified or registered            mail, return receipt requested) or be by confirmed facsimile transmission or email with            confirmed delivery status notification. All notices shall be deemed to have been duly            given or made when delivered by hand, or three Business Days (seven Business Days in            the case of notices sent to the Calculation Agent) after being deposited in the mail,            postage prepaid, or, in the case of facsimile transmission or email transmission, when            sent, addressed as follows or at such other address as such party may designate in            writing:

If to the Adviser:

to the persons listed on Schedule 4 hereto.

             

If to the Fund:

             

             

If to the Warranty Provider:

Merrill Lynch Bank USA

4 World Financial Center

9th Floor

250 Vesey Street

New York, New York 10080

Attention:

Telephone:

Facsimile:

Email:

             

with a copy to:

Merrill Lynch Bank USA

800 Scudders Mill Road

             

Plainsboro, NJ 08536

Attention: Office of General Counsel

Telephone:

Facsimile:

Email:

with a copy to (except in the case of the Daily Report underSection 3.4):

             

Willkie Farr & Gallagher LLP

787 Seventh Avenue

New York, New York 10019

Attention: Margery K. Neale, Esq.

Telephone: (212) 728-8297

Facsimile: (212) 728-9297

Email: mneale@willkie.com

If to the Calculation Agent:

             

Merrill Lynch International

4 World Financial Center

6th Floor

250 Vesey Street

New York, New York 10080

Attention: Armando Rico

Telephone: 212-449-7682

Facsimile: 212-449-7909

Email: arico@exchange.ml.com

             

with a copy to:

             

Merrill Lynch International

4 World Financial Center

12th Floor

250 Vesey Street

New York, New York 10080

Attention: Chris Haas, Esq.

Telephone: 212-449-2010

Facsimile: 212-212-449-6993

Email: chris_haas@ml.com

             

or            such other address and/or addresses or other contact information (and with copies to            such persons) as shall be specified in writing by any such party to the            others.

Section            11.3  No Waiver, Remedies and            Severability.No failure on the part of any party to exercise, and no delay in            exercising, any right hereunder shall operate as a waiver thereof, nor shall any single            or partial exercise of any such right preclude any other or further exercise thereof or            the exercise of any other right. Except as otherwise provided inSections 4.1(e), the remedies herein            provided are cumulative and not exclusive of any remedies provided by law. The parties            further agree that the holding by any court of competent jurisdiction that any remedy            pursued by any party hereunder is

 

unavailable or unenforceable shall not affect in any way the ability of            such party to pursue any other remedy available to it. In the event any provision of            this Agreement shall be held invalid or unenforceable by any court of competent            jurisdiction, the parties hereto agree that such holding shall not invalidate or render            unenforceable any other provision hereof.

Section            11.4  Payments.All payments to            the Warranty Provider hereunder shall be made in lawful currency of the United States            in immediately available funds and shall be made prior to 2:00 p.m. (New York City            time) on the date such payment is due by wire transfer to the account designated by the            Warranty Provider by notice to the Fund and the Adviser. Any payments to the Fund under            the Financial Warranty shall be made in accordance with the terms thereof in lawful            currency of the United States in immediately available funds by wire transfer to the            account designated by the Fund by notice to the Warranty Provider.

Whenever any payment under this Agreement shall be stated to be due on a            day which is not a Business Day, such payment shall be made on the next succeeding            Business Day, and such extension of time shall in such cases be included in computing            interest or fees, if any, in connection with such payment.

Section            11.5   Governing Law.This            Agreement shall be governed by and construed in accordance with the laws of the State            of New York without giving effect to the principles of conflicts of law            rules.

Section            11.6   Submission to            Jurisdiction, Waiver of Jury Trial.THE ADVISER AND THE TRUST ON BEHALF OF THE FUND            HEREBY IRREVOCABLY SUBMIT TO THE NON-EXCLUSIVE JURISDICTION OF ANY NEW YORK STATE OR            FEDERAL COURT SITTING IN THE BOROUGH OF MANHATTAN IN THE CITY OF NEW YORK IN ANY ACTION            OR PROCEEDING ARISING OUT OF OR RELATING TO THIS AGREEMENT AND THE WARRANTY PROVIDER,            THE ADVISER AND THE TRUST ON BEHALF OF THE FUND HEREBY IRREVOCABLY AGREE THAT ALL            CLAIMS IN RESPECT OF SUCH ACTION OR PROCEEDING MAY BE HEARD AND DETERMINED IN SUCH NEW            YORK STATE OR FEDERAL COURT. THE WARRANTY PROVIDER, THE ADVISER AND THE TRUST ON BEHALF            OF THE FUND HEREBY IRREVOCABLY WAIVE, TO THE FULLEST EXTENT THAT THEY MAY LEGALLY DO            SO, THE DEFENSE OF AN INCONVENIENT FORUM TO THE MAINTENANCE OF SUCH ACTION OR            PROCEEDING. THE WARRANTY PROVIDER, THE ADVISER AND THE TRUST ON BEHALF OF THE FUND            AGREE THAT A FINAL JUDGMENT IN ANY SUCH ACTION OR PROCEEDING SHALL BE CONCLUSIVE AND            MAY BE ENFORCED IN OTHER JURISDICTIONS BY SUIT ON THE JUDGMENT OR IN ANY OTHER MANNER            PROVIDED BY LAW.

THE WARRANTY PROVIDER, THE ADVISER AND THE TRUST ON BEHALF OF THE FUND            HEREBY KNOWINGLY, VOLUNTARILY AND INTENTIONALLY WAIVE ANY RIGHTS THEY MAY HAVE TO A            TRIAL BY JURY IN RESPECT OF ANY LITIGATION BASED HEREON, OR ARISING OUT OF, UNDER, OR            IN CONNECTION WITH, THIS AGREEMENT OR ANY COURSE OF CONDUCT, COURSE OF DEALING,            STATEMENTS (WHETHER ORAL OR WRITTEN) OR ACTIONS OF THE PARTIES HERETO. EACH OF THE            WARRANTY PROVIDER, THE ADVISER AND THE TRUST ON BEHALF OF THE FUND ACKNOWLEDGES AND            AGREES THAT IT HAS RECEIVED FULL AND SUFFICIENT CONSIDERATION FOR THIS PROVISION AND            THAT THIS PROVISION IS A MATERIAL INDUCEMENT FOR SUCH PARTIES ENTERING INTO THIS            AGREEMENT.

Section            11.7  Counterparts.This            Agreement may be executed in counterparts of the parties hereto, and each such            counterpart shall be considered an original and all such counterparts shall constitute            one and the same instrument.

Section            11.8   Paragraph            Headings.The headings of paragraphs contained in this Agreement are provided for            convenience only. They form no part of this Agreement and shall not affect its            construction or interpretation.

Section            11.9   Reliance on            Information.In making a determination as to whether a Trigger Event has occurred, the            Warranty Provider shall be entitled to rely on reports published or broadcast by media            sources believed by the Warranty Provider to be generally reliable and on information            provided to the Warranty Provider by any other source believed by the Warranty Provider            to be generally reliable.

|   | Section 11.10 | Time of the Essence.Time is of the essence under this                            Agreement. |
|--------|---------------|---------------------------------------------------------------------------------------------|

Section            11.11  No Third-Party            Rights.Nothing in this Agreement, express or implied, shall or is intended to confer            any rights upon any Person other than the parties hereto or their respective successors            or assigns, including, without limitation, any Shareholder.

Section            11.12   Further            Assurances.The parties hereto shall, upon the request of the Warranty Provider, the            Adviser or the Fund, from time to time, execute, acknowledge and deliver, or cause to            be executed, acknowledged and delivered, within a reasonable period following such            request, such amendments or supplements hereto and such further instruments and take            such further action as may be reasonably necessary to effectuate the intention,            performance and provisions of the Transaction Documents.

Section            11.13   Entire            Agreement.This Agreement (including the Transaction Documents (other than the            Investment Management Agreement, the Custodian Agreement, the Declaration of Trust, the            Prospectus and the Registration Statement)) constitutes the entire agreement and            understanding of the parties with respect to its subject matter and supersedes all            prior discussions and agreements among the parties with respect to the subject matter            hereof.

IN WITNESS WHEREOF, the parties hereto have executed this Financial            Warranty Agreement, all as of the day and year first above mentioned.

DEUTSCHE INVESTMENT MANAGEMENT AMERICAS INC., as Adviser

|   | By: | ____________________________________ |
|--------|-----|--------------------------------------|

Name:

|   | Title: |  

                              |
|--------|--------|--------------------------------------------|

|   | By: | ____________________________________ |
|--------|-----|--------------------------------------|

Name:

|   | Title: |  

                              |
|--------|--------|--------------------------------------------|

DWS TARGET FUND, on behalf of itself and its series, DWS LIFECOMPASS            PROTECT FUND

|   | By: | ____________________________________ |
|--------|-----|--------------------------------------|

Name:

|   | Title: |  

                              |
|--------|--------|--------------------------------------------|

MERRILL LYNCH BANK USA, as Warranty Provider

|   | By: | ____________________________________ |
|--------|-----|--------------------------------------|

Name:

|   | Title: |  

                              |
|--------|--------|--------------------------------------------|