STOCK PURCHASE AGREEMENT

Exhibit 10.288

STOCK PURCHASE AGREEMENT

By and Between

THE CHARLES SCHWAB CORPORATION

and

BANK OF AMERICA CORPORATION

Dated as of November 19, 2006

TABLE OF CONTENTS

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TABLE OF CONTENTS

(continued)

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STOCK PURCHASE AGREEMENT

Stock Purchase Agreement (" Agreement "), dated as of November 19, 2006, by and between The Charles Schwab Corporation, a Delaware corporation (" Seller ") and Bank of America Corporation, a Delaware corporation (" Purchaser "). Certain capitalized terms have the meanings given to such terms in Article I.

RECITALS

A. W HEREAS , Seller is the sole owner of all of the outstanding common stock of U.S. Trust Corporation, a New York corporation (" Company "), $0.01 par value per share (the " Company Common Stock "); and

B. W HEREAS , Purchaser wishes to purchase from Seller, and Seller wishes to sell to Purchaser, the Company Common Stock in accordance with the provisions set forth herein.

N OW , T HEREFORE , in consideration of the foregoing and the representations, warranties, covenants and agreements set forth herein, and for other good and valuable consideration, and intending to be legally bound, the parties hereto agree as follows:

ARTICLE I

DEFINITIONS

1.1 Certain Defined Terms . Unless the context otherwise requires, the following terms, when used in this Agreement, shall have the respective meanings specified below (such meanings to be equally applicable to the singular and plural forms of the terms defined):

" 1940 Act " shall mean the Investment Company Act of 1940, as amended.

" Advisers Act " shall mean the Investment Advisers Act of 1940, as amended.

" Affiliate " of a Person shall mean any Person that directly, or indirectly through one or more intermediaries, controls, or is controlled by, or is under common control with, such Person.

" Agreed Claims " shall have the meaning stated in Section 9.5(c).

" Agreement " shall have the meaning stated in the preamble to this document.

" Balance Sheet " shall have the meaning stated in Section 3.6(a).

" BHCA " shall mean the Bank Holding Company Act of 1956, as amended.

" Business Day " shall mean any day other than a Saturday, Sunday or day on which banking institutions in New York, New York are authorized or obligated pursuant to legal requirements or executive order to be closed.

" CERCLA " shall mean the Comprehensive Environmental Response, Compensation, and Liability Act of 1980, as amended.

" Certificate of Incorporation " shall mean the Restated Certificate of Incorporation of Company, as filed with the New York State Department on June 1, 2000 and currently in effect.

" Claim Certificate " shall have the meaning stated in Section 9.5(a).

" Client " means any Person to which Company or any Company Subsidiary provides investment management or investment advisory services, including any sub-advisory services, pursuant to an Investment Advisory Agreement.

" Closing " shall have the meaning stated in Section 2.3(a).

" Closing Balance Sheet " shall have the meaning stated in Exhibit B.

" Closing Date " shall mean the date on which the Closing actually occurs.

" Closing Stockholders’ Equity " shall have the meaning stated in Exhibit B.

" Code " shall mean the Internal Revenue Code of 1986, as amended.

" Company " shall have the meaning stated in the first Recital.

" Company Benefit Plans " shall have the meaning stated in Section 3.11(a).

" Company Confidential Information " shall mean information concerning the Company’s customers and prospects, products and services, employees, intellectual property (including trade secrets), technology, financial or business plans and operations, and unpublished financial information.

" Company Common Stock " shall have the meaning stated in the first Recital.

" Company Financial Statements " shall have the meaning stated in Section 3.6(a).

" Company Indemnified Party " shall have the meaning stated in Section 6.7(a).

" Company Intellectual Property " shall have the meaning stated in Section 3.21(a).

" Company Multiemployer Plan " shall have the meaning stated in Section 3.11(b).

" Company-Only Plans " shall have the meaning stated in Section 3.11(a).

" Company Regulatory Agreement " shall have the meaning stated in Section 3.15.

" Company Subsidiary " and " Company Subsidiaries " shall have the meaning stated in Section 3.1(b).

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" Confidentiality Agreement " shall mean the Confidentiality Agreement dated as of November 7, 2006 by and between Seller and Purchaser (as it may be amended from time to time).

" Controlled Group Liability " means any and all liabilities (i) under Title IV of ERISA, (ii) under Section 302 of ERISA, (iii) under Sections 412 and 4971 of the Code, (iv) as a result of a failure to comply with the continuation coverage requirements of Section 601 et seq. of ERISA and Section 4980B of the Code, and (v) under corresponding or similar provisions of foreign laws or regulations, other than such liabilities that arise solely out of, or relate solely to, the Company-Only Plans identified as such in Section 3.11(a) of the Disclosure Schedule.

" Corporate Entity " shall mean a bank, corporation, partnership, limited liability company or other organization, whether an incorporated or unincorporated organization.

" CRA " shall mean the Community Reinvestment Act of 1997.

" Damages " shall mean all costs, damages, liabilities, awards, judgments, losses or costs and expenses, interest, awards, judgments and penalties (including reasonable attorneys’ fees and consultants’ fees and expenses) actually suffered or incurred; provided, however, that Damages shall not include lost profits or opportunity costs or consequential, incidental, special, indirect, exemplary or punitive damages other than (x) such Damages (other than punitive damages) to the extent reasonably foreseeable and (y) such Damages to the extent included as part of an award, settlement, judgment or otherwise in connection with a Third Party Claim.

" Designated Purchaser Representations " shall have the meaning stated in Section 9.1.

" Designated Seller Representations " shall have the meaning stated in Section 9.1.

" Disclosure Schedule " shall mean the document dated the date of the Agreement delivered by Seller to Purchaser prior to the execution and delivery of the Agreement and referring to the representations and warranties of Seller in the Agreement.

" Dispute " shall mean any dispute regarding one or more claims for money damages based upon, arising out of or in any way connected with this Agreement or the transactions contemplated in this Agreement.

" ERISA " shall have the meaning stated in Section 3.11(a).

" Estimated Stockholders’ Equity " shall have the meaning stated in Exhibit B.

" Federal Reserve Board " shall mean the Board of Governors of the Federal Reserve System.

" Filings " shall have the meaning stated in Section 3.24(a).

" Final Determination " shall have the meaning stated in Section 10.7(c).

" Final Stockholders’ Equity " shall have the meaning stated in Exhibit B.

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" Fund " shall mean any pooled investment vehicle (including each portfolio or series thereof, if any) for which Company or any Company Subsidiary acts as investment adviser, investment sub-adviser, manager, general partner or sponsor, whether or not registered or qualified for offer and sale to members of the public generally with any Governmental Entity.

" GAAP " means United States generally accepted accounting principles.

" Governmental Entity " shall mean any court, administrative agency, arbitrator or commission or other governmental, prosecutorial or regulatory authority or instrumentality, or any SRO.

" HSR Act " shall mean the Hart-Scott-Rodino Antitrust Improvements Act of 1976, as amended.

" Indemnified Party " shall have the meaning stated in Section 9.5(a).

" Indemnifying Party " shall have the meaning stated in Section 9.5(a).

" Intellectual Property " shall mean any or all of the following and all rights in, arising out of or associated with: all patents, trademarks, trade names, service marks, domain names, database rights, copyrights and any applications therefore, mask works, net lists, technology, web sites, know-how, trade secrets, inventory, ideas, algorithms, processes, computer software programs or applications (in both source code and object code form), and tangible or intangible proprietary information or material of a Person.

" Interim Period " shall mean any taxable year or period commencing on or prior to the Closing Date and ending after the Closing Date.

" Investment Advisory Agreement " means an agreement under which Company or a Company Subsidiary acts as an investment adviser or sub-adviser to, or manages any investment or trading account of, any Client.

" IRS " shall mean the Internal Revenue Service.

" Knowledge " with respect to Seller shall mean actual knowledge of those individuals set forth on Exhibit A, without any implication of verification or investigation concerning such knowledge.

" Lien " shall mean any lien, claim, charge, option, encumbrance, mortgage, pledge or security interest or other restriction of any kind.

" Material Adverse Effect " shall mean, with respect to Seller, any effect that (i) is, or would be reasonably likely to be, material and adverse to the business, operations, financial condition or results of operations of Company and its Subsidiaries taken as a whole or (ii) prevents, or would be reasonably likely to prevent, Seller from consummating the transactions contemplated hereby, other than (in the case of clause (i) above) (A) any effect resulting from changes after the date hereof relating to the economy in general, including market fluctuations and changes in interest rates, or to Company’s industry in general, (B) any effect

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resulting from changes after the date hereof in laws, rules or regulations, or interpretations thereof by Governmental Entities or from changes in GAAP or regulatory accounting principles that affect in general the businesses in which Company and its Subsidiaries are engaged, (C) any effect resulting from the occurrence of a natural disaster or from changes after the date hereof in global or national political conditions, including the outbreak of war or acts of terrorism, or (D) any effect resulting from the announcement or consummation of this Agreement or the transactions contemplated hereby, except, in case of clauses (A), (B) or (C), to the extent that such events, facts, circumstances, changes, disaster or conditions have a disproportionate effect on Company and its Subsidiaries, taken as a whole, relative to Persons in Company’s industry generally.

" Material Contracts " shall have the meaning stated in Section 3.14(a).

" Multiple Employer Plan " shall have the meaning stated in Section 3.11(b).

" Non-Sponsored Fund " shall have the meaning stated in Section 3.24(a).

" Notice of Arbitration " shall have the meaning stated in Section 10.7(b).

" OCC " shall mean the Office of the Comptroller of the Currency.

" Pension Plan " shall have the meaning stated in Section 3.11(e).

" Person " shall mean any individual, Corporate Entity or Governmental Entity.

" Post-Closing Period " shall mean any taxable year or period that begins after the Closing Date (but, for this purpose, expressly including any separate taxable year related to the filing of a deemed sale return in accordance with Treasury Regulation Section 1.338-10(a)(2) or (4)), and, with respect to any Interim Period, the portion of such Interim Period commencing just after the Closing Date.

" Pre-Closing Period " shall mean any taxable year or period that ends on or before the Closing Date (but, for this purpose, expressly excluding any separate taxable year related to the filing of a deemed sale return in accordance with Treasury Regulation Section 1.338-10(a)(2) or (4)), and, with respect to any Interim Period, the portion of such Interim Period ending on and including the Closing Date.

" Public Fund Board " shall have the meaning stated in Section 6.10(a).

" Purchase Price " shall have the meaning stated in Section 2.2.

" Purchaser " shall mean Bank of America Corporation, a Delaware corporation.

" Purchaser Benefit Plans " shall have the meaning stated in Section 6.5(b).

" Purchaser Indemnitees " shall have the meaning stated in Section 9.2.

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" Purchaser Material Adverse Effect " shall mean, with respect to Purchaser, any effect that prevents, or would be reasonably likely to prevent, Purchaser from consummating the transactions contemplated hereby.

" Purchaser Representatives " shall have the meaning stated in Section 6.2(a).

" Regulatory Agencies " shall have the meaning stated in Section 3.5.

" Requisite Regulatory Approvals " shall have the meaning stated in Section 3.4.

" Seller " shall mean The Charles Schwab Corporation, a Delaware corporation.

" Seller Confidential Information " shall mean information received as a result of Purchaser’s acquisition of Company concerning Seller’s customers and prospects, products and services, employees, intellectual property (including trade secrets), technology, financial or business plans and operations, and unpublished financial information, other than information pertaining to the Company.

" Seller Indemnitees " shall have the meaning stated in Section 9.3.

" SRO " shall mean any domestic or foreign securities, broker-dealer, investment adviser and insurance industry self-regulatory organization.

" Swaps " shall have the meaning stated in Section 5.2(b).

" Subsidiary " shall mean, when used with respect to any party, any Corporate Entity which is consolidated with such party for financial reporting purposes or which otherwise would be deemed to be a subsidiary of such party within the meaning of the BHCA.

" Target Stockholders’ Equity " shall have the meaning stated in Exhibit B.

" Tax " or " Taxes " shall mean all federal, state, local, and foreign income, excise, gross receipts, gross income, ad valorem, profits, gains, property, capital, sales, transfer, use, value-added, stamp, documentation, payroll, employment, severance, withholding, duties, license, intangibles, franchise, backup withholding, environmental, occupation, alternative or add-on minimum taxes, imposed by any Governmental Entity, and other taxes, charges, levies or like assessments, and including all penalties and additions to tax and interest thereon.

" Tax Data " shall have the meaning stated in Section 6.11(h).

" Tax Documentation " shall have the meaning stated in Section 6.11(h).

" Tax Return " shall mean any return, declaration, report, statement, information statement and other document filed or required to be filed with respect to Taxes, including any schedule or attachment thereto, and including any amendment thereof, supplied to a Governmental Entity.

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" Transition Services Agreement " shall mean the Transition Services Agreement by and between Company and Seller referred to in Section 6.9.

" Trust Preferred " shall have the meaning stated in Section 5.2(a).

ARTICLE II

SALE AND PURCHASE OF THE COMPANY COMMON STOCK

2.1 Sale and Purchase of the Company Common Stock . Subject to the terms and conditions of this Agreement, at the Closing, Seller agrees to sell, assign and transfer to Purchaser, and Purchaser agrees to purchase from Seller, the Company Common Stock, free and clear of any Liens or rights or claims of others.

2.2 Purchase Price . The purchase price payable by Purchaser for the Company Common Stock shall be $3,300,000,000 subject to adjustment as set forth in Exhibit B (the " Purchase Price ").

2.3 The Closing .

(a) Subject to the terms and conditions of this Agreement, the closing of the sale of the Company Common Stock to the Purchaser (the " Closing ") shall take place as soon as practicable, and in any event no later than three Business Days after the satisfaction or waiver (subject to applicable law) of the latest to occur of the conditions set forth in Article VII hereof, unless extended by mutual agreement of the parties. The Closing shall take place at the offices of Howard Rice Nemerovski Canady Falk & Rabkin, A Professional Corporation, 3 Embarcadero Center, 7th Floor, San Francisco, California 94111, or at such other location as the parties hereto may agree.

(b) At the Closing:

(i) Purchaser shall deliver the Purchase Price to Seller, by wire transfer of immediately available funds;

(ii) Seller shall deliver to Purchaser the stock certificate representing the Company Common Stock, duly endorsed (or accompanied by duly executed stock powers);

(iii) Seller and Company shall enter into the Transition Services Agreement; and

(iv) Those individuals listed on Section 2.3(b)(iv) of the Disclosure Schedule shall submit their resignations as directors and officers of Company and its Subsidiaries (and Seller to the extent relevant), effective as of immediately prior to the Closing.

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ARTICLE III

REPRESENTATIONS AND WARRANTIES OF SELLER

Except as disclosed in the Disclosure Schedule, Seller represents and warrants to Purchaser that the following is true and correct. The Disclosure Schedule shall be organized to correspond to the Sections in this Article III. Each exception set forth in the Disclosure Schedule shall be deemed to qualify (i) the corresponding representation and warranty set forth in this Agreement that is specifically identified (by cross-reference or otherwise) in the Disclosure Schedule and (ii) any other representation and warranty to the extent the relevance of such exception to such other representation and warranty is reasonably clear.

3.1 Corporate Organization .

(a) Company is a corporation duly organized, validly existing and in good standing under the laws of its jurisdiction of organization. Company has the corporate power and authority to own or lease all of its properties and assets and to carry on its business as it is now being conducted, and is duly licensed or qualified to do business in each jurisdiction in which the nature of the business conducted by it or the character or location of the properties and assets owned or leased by it makes such licensing or qualification necessary, except where the failure to be so licensed or qualified would not have a Material Adverse Effect. Company is duly registered as a bank holding company under the BHCA and is a financial holding company pursuant to Section 4(l) of the BHCA and meets the applicable requirements for qualification as such. True and complete copies of the Certificate of Incorporation and bylaws of Company, as in effect as of the date of this Agreement, have previously been furnished or made available to Purchaser. Company is not in violation of any of the provisions of its certificate of incorporation or bylaws, each as amended.

(b) Section 3.1(b) of the Disclosure Schedule sets forth a complete and correct list of all the Subsidiaries of Company (each a " Company Subsidiary " and collectively the " Company Subsidiaries "); such list identifies those Company Subsidiaries that have as their primary Federal bank regulatory agency the OCC or the Federal Reserve Board and those Company Subsidiaries that are not so regulated. Section 3.1(b) of the Disclosure Schedule also sets forth a list identifying the number (other than wholly-owned Subsidiaries) and owner of all outstanding capital stock or other equity securities of each such Subsidiary, options, warrants, stock appreciation rights, scrip, rights to subscribe to, calls or commitments of any character whatsoever relating to, or securities or rights convertible into, shares of any capital stock or other equity securities of such Subsidiary, or contracts, commitments, understandings or arrangements by which such Subsidiary may become bound to issue additional shares of its capital stock or other equity securities, or options, warrants, scrip, rights to subscribe, calls or commitments for any shares of its capital stock or other equity securities and the identity of the parties to any such agreements or arrangements. All of the outstanding shares of capital stock or other securities evidencing ownership of the Company Subsidiaries are validly issued, fully paid and nonassessable and such shares or other securities are owned by Company or another of its Subsidiaries free and clear of any Lien with respect thereto. Each Company Subsidiary (i) is a duly organized and validly existing corporation, partnership or limited liability company or other legal entity under the laws of its jurisdiction of organization, (ii) is duly qualified to do business and is in good standing in all jurisdictions (whether federal, state, local or foreign) where its

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ownership or leasing of property or the conduct of its business requires it to be so qualified (except for jurisdictions in which the failure to be so qualified would not have a Material Adverse Effect) and (iii) has all requisite corporate power and authority to own or lease its properties and assets and to carry on its business as now conducted. Except for its interests in the Company Subsidiaries, Company does not as of the date of this Agreement own, directly or indirectly, any capital stock, membership interest, partnership interest, joint venture interest or other equity interest with a fair market value as of the date of this Agreement in excess of $10 million in any Person.

3.2 Capitalization . The authorized capital stock of Company consists of 10,000 shares of Company Common Stock, 1,010 of which are issued and outstanding and have been duly authorized and validly issued, are fully paid, non-assessable and free of preemptive rights. All of the Company Common Stock is owned by Seller free and clear of any Liens. Except as set forth above, as of the date hereof, no shares of capital stock or other voting securities of Company are issued, reserved for issuance or outstanding. There are no outstanding subscriptions, options, warrants, puts, calls, rights, exchangeable or convertible securities or other commitments or agreements of any character relating to the issued or unissued capital stock or other securities of Company, or otherwise obligating Company to issue, transfer, sell, purchase, redeem or otherwise acquire any such securities.

3.3 Authority; No Violation .

(a) Seller has full corporate power and authority to execute and deliver this Agreement and to consummate the transactions contemplated hereby. The execution and delivery of this Agreement and the consummation of the transactions contemplated hereby have been duly and validly approved by the Board of Directors of Seller. No other corporate proceedings (including any approvals of Seller’s stockholders) on the part of Seller are necessary to approve this Agreement and to consummate the transactions contemplated hereby. This Agreement has been duly and validly executed and delivered by Seller. Assuming due authorization, execution and delivery by Purchaser, this Agreement constitutes a valid and binding obligation of Seller, enforceable against Seller in accordance with its terms, except as such enforcement may be limited by (i) the effect of bankruptcy, insolvency, reorganization, receivership, conservatorship, arrangement, moratorium or other laws affecting or relating to the rights of creditors generally, or (ii) the rules governing the availability of specific performance, injunctive relief or other equitable remedies and general principles of equity, regardless of whether considered in a proceeding in equity or at law.

(b) Neither the execution and delivery of this Agreement by Seller nor the consummation by Seller of the transactions contemplated hereby, nor compliance by Seller with any of the terms or provisions hereof, will (i) violate any provision of the certificates of incorporation or bylaws of Seller or (ii) assuming that the consents and approvals referred to in Section 3.4 are duly obtained, (x) violate any statute, code, ordinance, rule, regulation, judgment, order, writ, decree or injunction applicable to Seller or Company or any of their respective Subsidiaries or any of their respective properties or assets or (y) violate, conflict with, result in a breach of any provision of or the loss of any benefit under, constitute a default (or an event which, with notice or lapse of time, or both, would constitute a default) under, result in the termination of or a right of termination or cancellation under or in any payment conditioned, in

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whole or in part, on a change of control of Company or approval or consummation of transactions of the type contemplated hereby, accelerate the performance required by or rights or obligations under, or result in the creation of any Lien upon any of the respective properties or assets of Seller or Company or any of their respective Subsidiaries under, any of the terms, conditions or provisions of any note, bond, mortgage, indenture, deed of trust, license, lease, agreement, contract, or other instrument or obligation to which Seller or Company or any of their respective Subsidiaries is a party, or by which they or any of their respective properties, assets or business activities may be bound or affected, except (in the case of clause (ii) above) for such violations, conflicts, breaches, defaults or the loss of benefits which, either individually or in the aggregate, would not result in a Material Adverse Effect.

3.4 Consents and Approvals . Except for (i) the requisite filings with, notices to and approval of the Federal Reserve Board under the BHCA, (ii) the filing of any required applications or notices with the Federal Reserve Bank of Richmond, the Federal Reserve Bank of San Francisco, the OCC, the National Association of Securities Dealers and other applicable federal, state or foreign governmental agencies or authorities as set forth in Section 3.4 of the Disclosure Schedule and approval of such applications and notices, (iii) if required, any approvals or filings required by the HSR Act, and (iv) such additional consents and approvals, the failure of which to make or obtain would not be material (such consents or approvals, the " Requisite Regulatory Approvals "), no consents or approvals of or filings or registrations with any Governmental Entity are necessary in connection with (A) the execution and delivery by Seller of this Agreement and (B) the consummation of the transactions contemplated hereby. The only material third party consents necessary in connection with (A) the execution and delivery by Seller of this Agreement and (B) the consummation of the transactions contemplated hereby are set forth in Section 3.4 of the Disclosure Schedule.

3.5 Reports . Company and each of its Subsidiaries have filed all reports, registrations and statements, together with any amendments required to be made with respect thereto, that they were required to file since January 1, 2002 with (i) any SRO, (ii) the Federal Reserve Board, (iii) the Federal Deposit Insurance Corporation, (iv) the OCC and (v) any other federal, state or foreign governmental or regulatory agency or authority (the agencies and authorities identified in clauses (i) through (v), inclusive, are, collectively, the " Regulatory Agencies "), and all other reports and statements required to be filed by them since January 1, 2002, including any report or statement required to be filed pursuant to the laws, rules or regulations of the United States, any state, or any Regulatory Agency and have paid all fees and assessments due and payable in connection therewith, except where the failure to file such report, registration or statement or to pay such fees and assessments, either individually or in the aggregate, would not result in a Material Adverse Effect. Except for normal examinations conducted by a Regulatory Agency in the regular course of the business of Company and its Subsidiaries, there is no pending proceeding before, or, to the Knowledge of Seller, investigation by, any Regulatory Agency into the business or operations of Company or any of its Subsidiaries, except where any such proceedings or investigations would not, individually or in the aggregate, have a Material Adverse Effect. There are no unresolved violations, criticisms, or exceptions by any Regulatory Agency with respect to any report or statement relating to any examinations of Company or any of its Subsidiaries, except where any such violations, criticisms or exceptions are not, individually or in the aggregate, would not have a Material Adverse Effect.

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3.6 Financial Statements .

(a) Seller has previously made available to Purchaser copies of the following financial statements (the " Company Financial Statements "), copies of which are attached as Schedule 3.6(a): (a) the audited consolidated balance sheets of Company and its Subsidiaries for fiscal years 2004 and 2005, and the related consolidated statements of income for fiscal years 2004 and 2005, and (b) the unaudited consolidated balance sheet of Company and its Subsidiaries as of September 30, 2006 (the " Balance Sheet "), and the related consolidated statement of income for the nine months ended September 30, 2006. The Company Financial Statements fairly present in all material respects the consolidated financial position and results of operations of Company and its Subsidiaries as of the respective dates or for the respective periods therein set forth and have been prepared in accordance with GAAP consistently applied during the periods involved, except in the case of the September 30, 2006 statements for the absence of footnotes and subject to recurring year end adjustments normal in nature and amount. The Company Financial Statements have been prepared from, and are in accordance with, the books and records of Company and its Subsidiaries.

(b) Company maintains a system of internal accounting controls sufficient to provide reasonable assurance that transactions are executed in accordance with management’s general or specific authorization.

(c) Seller has implemented and maintains disclosure controls and procedures (as defined in Rule 13a-15(e) of the Exchange Act) to ensure that material information relating to Seller, including Company and its Subsidiaries, is made known to the chief executive officer and the chief financial officer of Seller by others within those entities. Set forth in Section 3.6(c) of the Disclosure Schedule, based on Seller’s most recent evaluation prior to the date hereof of its internal control over financial reporting (as defined in Rule 13a-15(f) of the Exchange Act), are (i) any significant deficiencies or material weaknesses in the design or operation of internal control over financial reporting relating to Company and its Subsidiaries and (ii) any events of fraud, whether or not material, that involve management or other employees who have a significant role in Company’s internal controls over financial reporting and relate to Company or its Subsidiaries.

(d) The books and records kept by Company and any of its Subsidiaries are in all material respects complete and accurate and have been maintained in the ordinary course of business and in accordance in all material respects with applicable laws.

3.7 Undisclosed Liabilities . Except for those liabilities that are reflected or reserved against on the Balance Sheet, and except for liabilities incurred since September 30, 2006, in the ordinary course of business consistent with past practice, neither Company nor any of its Subsidiaries has any liability of any nature whatsoever (whether absolute, accrued, contingent or otherwise and whether due or to become due), except for liabilities which, individually or in the aggregate, have not resulted in a Material Adverse Effect.

3.8 Absence of Certain Changes or Events . Since September 30, 2006: (i) Company and its Subsidiaries have, in all material respects, carried on their respective businesses in the ordinary course consistent with their past practices; (ii) Company has not taken any of the

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actions that Seller has agreed not to permit Company to take from the date hereof through the Closing Date pursuant to Sections 5.3(a)-(m) of this Agreement, and (iii) there have been no events, circumstances, facts or occurrences which have had a Material Adverse Effect.

3.9 Legal Proceedings . Except as set forth in Section 3.9 of the Disclosure Schedule, neither Company nor any of its Subsidiaries is a party to any, and there are no pending or, to the Knowledge of Seller, threatened, legal, administrative, arbitral or other proceedings, claims, actions or governmental or regulatory investigations of any nature against Company or any of its Subsidiaries which would have, individually or in the aggregate, a Material Adverse Effect. There is no material injunction, order, judgment or decree imposed upon Company, any of its Subsidiaries or the assets of Company or any of its Subsidiaries.

3.10 Taxes and Tax Returns .

(a) Company and each of its Subsidiaries has duly and timely filed or caused to be filed (including all applicable extensions) all federal, state, foreign and local Tax Returns required to be filed by it or with respect to it on or prior to the date of this Agreement (all such Tax Returns being accurate and complete in all material respects) and has duly and timely paid or caused to be paid on their behalf all Taxes that are due and payable other than Taxes that are being contested in good faith, which have not been finally determined, and are adequately reserved against or provided for (in accordance with GAAP) on the most recent consolidated financial statements of the Company. Through the date hereof, Company and its Subsidiaries do not have any liability for Taxes in excess of the amount reserved or provided for on their financial statements (but excluding, for this purpose only, any liability reflected thereon for deferred Taxes to reflect timing differences between Tax and financial accounting methods).

(b) No jurisdiction where the Company and its Subsidiaries do not file a Tax Return has made a claim in writing that any of the Company and its Subsidiaries is required to file a Tax Return in such jurisdiction.

(c) No Liens for Taxes exist with respect to any of the assets of the Company and its Subsidiaries, except for statutory Liens for Taxes not yet due and payable.

(d) There are no audits, examinations, disputes or proceedings pending or threatened in writing with respect to, or claims or assessments asserted or threatened in writing for, any material amount of Taxes upon Company or any of its Subsidiaries.

(e) There is no waiver or extension of the application of any statute of limitations of any jurisdiction regarding the assessment or collection of any Tax with respect to the Company and any of its Subsidiaries, which waiver or extension is in effect.

(f) All material Taxes required to be withheld, collected or deposited by or with respect to Company and each of its Subsidiaries have been timely withheld, collected or deposited, as the case may be, and to the extent required by applicable law, have been paid to the relevant Governmental Entity.

(g) Neither the Company nor any of its Subsidiaries has participated in any reportable transaction, as defined in Treasury Regulation Section 1.6011-4(b)(1).

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(h) Neither the Company nor any of its Subsidiaries is a party to, is bound by, or has any obligation under, any Tax sharing, allocation, indemnity or similar agreements or arrangement that obligates it to make any payment computed by reference to the Taxes, taxable income or taxable losses of any other Person.

(i) Neither the Company nor any of its Subsidiaries (A) has been a member of an affiliated group filing a consolidated federal income Tax Return (other than a group the common parent of which was Seller) or (B) has any liability for the Taxes of any person (other than Seller or any of its subsidiaries) under Treasury Regulation Section 1.1502-6 (or any similar provision of state, local or foreign law), as a transferee or successor, by contract or otherwise;

(j) Neither the Company nor any of its Subsidiaries has been, within the past two years or otherwise as part of a "plan (or series of related transactions)" within the meaning of Section 355(e) of the Code of which the transactions contemplated in this Agreement are also a part, a "distributing corporation" or a "controlled corporation" (within the meaning of Section 355(a)(1)(A) of the Code) in a distribution of stock intending to qualify for Tax-free treatment under Section 355 of the Code.

(k) Since January 1, 2002, neither Company nor any of its Subsidiaries has been required (or has applied) to include in income any material adjustment pursuant to Section 481 of the Code by reason of a voluntary change in accounting method initiated by Company or any of its Subsidiaries, and the IRS has not initiated or proposed any such material adjustment or change in accounting method (including any method for determining reserves for bad debts maintained by Company or any Subsidiary). !

3.11 Employee Benefit Plans .

(a) Section 3.11(a) of the Disclosure Schedule lists all "employee benefit plans," as defined in Section 3(3) of the Employee Retirement Income Security Act of 1974, as amended (" ERISA "), and all other material employee benefit or executive compensation arrangements, perquisite programs or payroll practices, whether written or unwritten, including, without limitation, any such arrangements or payroll practices providing severance pay, sick leave, vacation pay, salary continuation for disability, retirement benefits, deferred compensation, bonus pay, incentive pay, stock options (including those held by directors, employees, and consultants), hospitalization insurance, medical insurance, life insurance, scholarships or tuition reimbursements, employment agreements or offer letters, that cover any current or former directors, officers, employees or consultants of Company or its Subsidiaries, or to which contributions must be made or liabilities are outstanding thereunder for current or former directors, officers, employees or consultants of Company or its Subsidiaries (the " Company Benefit Plans "). Section 3.11(a) of the Disclosure Schedules separately identifies each of the Company Benefit Plans that is sponsored by Company or its Subsidiaries (the " Company-Only Plans "). With respect to each Company-Only Plan, there are not any current participants or liabilities to persons who are not current or former directors, officers or employees of Company or its Subsidiaries (or their beneficiaries or dependents).

(b) None of the Company Benefit Plans is a "multiemployer plan," as defined in Section 4001(a)(3) of ERISA (a " Multiemployer Plan ") or a plan that has two or more

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contributing sponsors at least two of whom are not under common control (a " Multiple Employer Plan "). None of Company or any of its Subsidiaries, Seller or their respective ERISA Affiliates has (i) contributed to or been obligated to contribute to, at any time during the past six years, a Multiemployer Plan or a Multiple Employer Plan, (ii) withdrawn in a complete or partial withdrawal from any Multiemployer Plan or Multiple Employer Plan or (iii) has any of them incurred any liability due to the termination or reorganization of a Multiemployer Plan or a Multiple Employer Plan.

(c) None of the Company Benefit Plans is a "single employer plan," as defined in Section 4001(a)(15) of ERISA, that is subject to Title IV of ERISA. No material liability has been, or is reasonably expected to be, incurred under Section 4062 of ERISA to the Pension Benefit Guaranty Corporation or to a trustee appointed under Section 4042 of ERISA. Neither Company nor its Subsidiaries provides, or is required, either currently or in the future, to provide medical, health, life or other welfare benefits to employees, former employees or retirees after their termination of employment, other than pursuant to applicable law or regulation.

(d) Each Company Benefit Plan and its administration is in material compliance with its terms and all applicable laws, including ERISA and the Code. Each Company Benefit Plan that is intended to be "qualified" under Section 401 of the Code has received a favorable determination letter from the IRS to such effect and, to the Knowledge of Seller, no fact, circumstance or event has occurred or exists since the date of such determination letter that would reasonably be expected to adversely affect the qualified status of any such Company Benefit Plan. All contributions (including all employer contributions and employee salary reduction contributions), premiums and other payments required to have been made under any of the Company Benefit Plans to any funds or trusts established thereunder or in connection therewith have been made by the due date thereof, other than a failure to make contributions that is not material, and with respect to any such contributions, premiums or other payments required that are not yet due, to the extent required by GAAP, adequate reserves are reflected on the Balance Sheet or liability therefor was incurred in the ordinary course of business consistent with past practice since the end of such fiscal quarter.

(e) With respect to the Company’s defined benefit pension plan (the " Pension Plan "), which is a single-employer plan, (i) as of the last day of the most recent fiscal plan year ended prior to the date hereof, the actuarially determined present value of all "benefit liabilities," within the meaning of Section 4001(a)(16) of ERISA (as determined on the basis of the actuarial assumptions contained in the Pension Plan’s most recent actuarial valuation and without regard to any action that may be taken by Purchaser following the Closing Date in respect of or negatively impacting the Pension Plan), did not exceed the then current value of the assets of such Pension Plan, and (ii) within the prior three years, there has not been a partial termination or "reportable event" within the meaning of Section 4043 of ERISA.

(f) None of Company, its Subsidiaries, the officers of Company or the Company Benefit Plans which are subject to ERISA, any trusts created thereunder or any trustee or administrator thereof, has engaged in a "prohibited transaction" (as such term is defined in Section 406 of ERISA or Section 4975 of the Code) or any other breach of fiduciary responsibility that could subject Company, its Subsidiaries or any officer of Company to any material Tax or penalty on prohibited transactions imposed by such Section 4975 or to any material liability under Section 502(i) or (1) of ERISA.

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(g) None of Company, its Subsidiaries or Seller is a party to any contract, agreement or other arrangement, including without limitation a Company Benefit Plan, which would reasonably be expected to result in the payment of money or any other property or rights or accelerate or provide any other rights or benefits, to any current or former employee of Company or its Subsidiaries (or other current or former service providers thereto) that would not have been required but for the transaction provided for in this Agreement (either alone or in combination with any other event) or result in any limitation on the right of Company or any of its Subsidiaries to amend, merge, terminate or receive a reversion of assets from any Company Benefit Plan or related trust.

(h) True, correct and complete copies of the following documents, with respect to each of the Company Benefit Plans, have been delivered or made available to Purchaser by Seller: (i) the written document evidencing all Company Benefit Plans and the related trust documents or other funding arrangements, and amendments, modifications or supplements thereto or, with respect to any such plan that is not in writing, a written description thereof; and (ii) the most recent Forms 5500 and schedules thereto; (iii) the summary plan description and any modifications thereto; (iv) the most recent annual report, financial statement and/or actuarial report; and (v) the most recent determination letter from the IRS. Neither the Company nor any of its Subsidiaries has made an enforceable commitment to make any new amendments to, or to adopt or approve any new, Company Benefit Plan, whether or not a Company-Only Plan.

(i) There are no pending actions, claims or lawsuits which have been asserted, instituted or, to Knowledge of Seller, threatened, against the Company Benefit Plans, the assets of any of the trusts under such plans or the plan sponsor or the plan administrator, or against any fiduciary of the Company Benefit Plans with respect to the operation of such plans (other than routine benefit claims) which could result in any material liability to Company.

3.12 Employee Matters .

(a) Neither Company nor any of its Subsidiaries is, or has over the past five years been, a party to any collective bargaining agreement or other labor union contract; nor does Seller know of any activities or proceedings of any labor union to organize any such employees.

(b) To the Knowledge of Seller, no executive officer of Company or any of its Subsidiaries is in violation in any respect of any term of any employment or services contract, patent disclosure agreement, noncompetition agreement, or any restrictive covenant to a former employer which would reasonably be expected to impede the right of any such executive officer to be employed or engaged by Company or any of its Subsidiaries because of the nature of the business conducted by Company or any of its Subsidiaries or to the use of trade secrets or proprietary information of others.

(c) Company and each of its Subsidiaries has complied in all material respects with all applicable material laws relating to the employment of employees, including, without

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limitation, those relating to wages, hours, immigration, the payment of wages, and the classification of employees as exempt or not exempt from the payment of overtime under applicable law, the prohibitions against discrimination and harassment, occupational safety and health, and leaves of absence, except for such noncompliance as would not be material to Company and its Subsidiaries, taken as a whole.

3.13 Compliance with Applicable Law .

(a) Company and each of its Subsidiaries and each of their employees hold all licenses, registrations, franchises, permits and authorizations necessary for the lawful conduct of their respective businesses and are in compliance with, and are not in violation of, under any applicable law, statute, order, rule, regulation, policy and/or guideline of any Governmental Entity relating to Company or any of its Subsidiaries, except in each case where the failure to hold such license, registration, franchise, permit or authorization or such noncompliance or violation would not have, individually or in the aggregate, a Material Adverse Effect, and neither Company nor any of its Subsidiaries knows of, or has received notice of, any violations of any of the above, except for such violations which would not have, individually or in the aggregate, a Material Adverse Effect.

(b) Except as would not be material to Company and its Subsidiaries, taken as a whole, Company and each of its Subsidiaries have properly administered all accounts for which Company or any of its Subsidiaries acts as a fiduciary, including accounts for which Company or any of its Subsidiaries serves as a trustee, agent, custodian, personal representative, guardian, conservator or investment adviser, in accordance with the terms of the governing documents, applicable state and federal law and regulation and common law in all material respects. None of Company or any of its Subsidiaries, or any director, officer or employee of Company or any of its Subsidiaries, has committed any breach of trust with respect to any such fiduciary account that would be material to Company and its Subsidiaries, taken as a whole, and the accountings for each such fiduciary account are true and correct in all material respects and accurately reflect in all material respects the assets of such fiduciary account.

(c) Each insured depository institution Subsidiary of Company is "well-capitalized" (as that term is defined at 12 C.F.R. 6.4(b)(1) or the relevant regulation of the institution’s primary federal bank regulator), and "well managed" (as that term is defined at 12 C.F.R. 225.2(s)), and the institution’s CRA rating is no less than "satisfactory." Neither Company nor any Company Subsidiary has been informed that its status as "well-capitalized," "well managed" or "satisfactory" for CRA purposes will change within one year. All deposit liabilities of Company and its Subsidiaries are insured by the Federal Deposit Insurance Corporation to the fullest extent under the law. Company and its Subsidiaries have met all conditions of such insurance, including timely payment of its premiums.

3.14 Material Contracts .

(a) Except for the contracts set forth in Section 3.14(a) of the Disclosure Schedule (collectively, the " Material Contracts "), contracts involving less than $100,000 or contracts which can be terminated by Company or its Subsidiaries without material payment, penalty or continuing potential liability on not more than 90 days prior notice, neither Company nor any of its Subsidiaries is a party to or bound by any of the following:

(i) any contract or agreement entered into since January 1, 2002 (and any contract or agreement entered into at any time to the extent that material obligations remain as of the date hereof), other than in the ordinary course of business consistent with past practice, for the acquisition of the securities of or any material portion of the assets of any other Person or entity;

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(ii) any trust indenture, mortgage, promissory note, loan agreement or other contract, agreement or instrument for the borrowing of money, any currency exchange, commodities or other hedging arrangement or any leasing transaction of the type required to be capitalized in accordance with GAAP, in each case, where Company or any of its Subsidiaries is a lender, borrower or guarantor other than those entered into in the ordinary course of business;

(iii) any contract or agreement limiting the freedom of Company or any of its Subsidiaries to engage in any line of business to compete with any other Person or prohibiting Company from soliciting customers, clients or employees, in each case whether in any specified geographic region or business or generally;

(iv) any material contract or agreement with any Affiliate of Company or its Subsidiaries;

(v) any agreement of guarantee, support or indemnification by Company or its Subsidiaries, assumption or endorsement by Company or its Subsidiaries of, or any similar commitment by Company or its Subsidiaries with respect to, the obligations, liabilities (whether accrued, absolute, contingent or otherwise) or indebtedness of any other Person other than those entered into in the ordinary course of business;

(vi) any material agreement which would be terminable other than by Company or its Subsidiaries or any agreement under which a material payment obligation would arise or be accelerated, in each case as a result of the announcement or consummation of the transactions contemplated by this Agreement (either alone or upon the occurrence of any additional acts or events);

(vii) any alliance, cooperation, joint venture, stockholders’ partnership or similar agreement;

(viii) any employment agreement with any employee or officer of Company or any of its Subsidiaries;

(ix) any broker, distributor, dealer, agency, sales promotion, customer or client referral, underwriter, administrative services, market research, market consulting or advertising agreement providing for annual payments by Company or its Subsidiaries of more than $500,000;

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(x) any agreement, option or commitment or right with, or held by, any third party to acquire, use or have access to any assets or properties, or any interest therein, of Company or its Subsidiaries;

(xi) any contract or agreement that contains any (w) exclusive dealing obligation, (x) "clawback" or similar undertaking requiring the reimbursement or refund of any fees, (y) "most favored nation" or similar provision or (z) provision that grants any right of first refusal or right of first offer or similar right or that limits or purports to limit the ability of the Company or any of its Subsidiaries to own, operate, sell, transfer, pledge or otherwise dispose of any assets or business;

(xii) any material contract or agreement which would require any consent or approval of a counterparty as a result of the consummation of the transactions contemplated by this Agreement;

(xiii) any contract or agreement for the use or purchase of materials, supplies, goods, services, equipment or other assets providing for aggregate payments by the Company or its Subsidiaries of $1,000,000 or more if entered into on or before December 31, 2005 or $3,000,000 or more if entered into thereafter; and

(xiv) any other contract the loss of which would have a Material Adverse Effect.

(b) Company and its Subsidiaries have performed in all material respects all of the obligations required to be performed by them and are entitled to all accrued benefits under, and are not alleged (or otherwise known by Seller) to be in default in respect of, each Material Contract to which Company or its Subsidiaries are a party or by which Company or its Subsidiaries are bound, except as would not, individually or in the aggregate, be material to Company and its Subsidiaries. Each of the Material Contracts is in full force and effect, without amendment (other than as disclosed in Section 3.14(b) of the Disclosure Schedule), and there exists no default or event of default or event, occurrence, condition or act, with respect to Company or its Subsidiaries or, to Knowledge of Seller, with respect to any other contracting party, which, with the giving of notice, the lapse of the time or the happening of any other event or condition, would become a default or event of default under any Material Contract, except, as would not, individually or in the aggregate, be material to Company and its Subsidiaries. True, correct and complete copies of all Material Contracts have been furnished or made available to Purchaser.

3.15 Agreements with Regulatory Agencies . Neither Company nor any of its Subsidiaries is subject to any cease-and-desist or other order or enforcement action issued by, or is a party to any written agreement, consent agreement or memorandum of understanding with, or is a party to any commitment letter or similar undertaking to, or is subject to any order or directive by, or has been ordered to pay any civil penalty by, or is a recipient of any supervisory letter from, or has adopted any board resolutions at the request or suggestion of any Regulatory Agency or other Governmental Entity that restricts the conduct of its business or that relates to its capital adequacy, its ability to pay dividends, its credit or risk management policies, its management or its business (each, whether or not set forth in the Disclosure Schedule, a

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" Company Regulatory Agreement "), nor does Seller have Knowledge of any pending or threatened regulatory investigation. Neither Company nor any of its affiliated persons, as defined in Section 2(a)(3) of the 1940 Act, has been convicted within the past 10 years of any felony or misdemeanor described in Section 9(a)(1) of the 1940 Act, or is, by reason of any misconduct, permanently or temporarily enjoined from acting in the capacities, or engaging in the activities, described in Section 9(a)(2) of the 1940 Act.

3.16 Investment Securities . Each of Company and its Subsidiaries has good and marketable title to all securities held by it (except securities sold under repurchase agreements or held in any fiduciary or agency capacity) free and clear of any Lien, except to the extent such securities are pledged in the ordinary course of business consistent with prudent business practices to secure obligations of Company or any of its Subsidiaries and except for such defects in title or Liens that would not be material to Company and its Subsidiaries. Such securities are valued on the books of Company and its Subsidiaries in accordance with GAAP.

3.17 Derivative Instruments . Any and all material swaps, caps, floors, futures, forward contracts, option agreements (other than employee stock options) and other derivative financial instruments, contracts or arrangements, whether entered into for the account of Company or one of its Subsidiaries or for the account of a customer of Company or one of its Subsidiaries, were entered into in the ordinary course of business and, to Seller’s Knowledge, in accordance with prudent business practice and applicable laws, rules, regulations and policies of all applicable Regulatory Agencies and with counterparties believed to be financially responsible at the time. Company and each of its Subsidiaries have duly performed in all material respects all of their obligations thereunder to the extent that such obligations to perform have accrued, and, to Seller’s Knowledge, there are no breaches, violations or defaults or allegations or assertions of such by any party thereunder.

3.18 Environmental Liability . There are no legal, administrative, arbitral or other proceedings, claims or actions or any private environmental investigations or remediation activities or governmental investigations of any nature that would be reasonably likely to result in the imposition, on Company or any of its Subsidiaries, of any liability or obligation arising under any local, state or federal environmental statute, regulation or ordinance, including the Comprehensive Environmental Response, Compensation, and Liability Act of 1980, as amended (" CERCLA "), pending or, to the Knowledge of Seller, threatened against Company or any of its Subsidiaries, which liability or obligation would result in a Material Adverse Effect. Company is not subject to any agreement, order, judgment or decree by or with any court, governmental authority, regulatory agency or third party imposing any liability or obligation with respect to the foregoing. There has been no written third party environmental site assessment conducted since January 1, 2002 assessing the presence of hazardous materials located on any property owned or leased by Company or any Company Subsidiary that is within the possession or control of Seller and its Affiliates as of the date of this Agreement that has not been delivered to Purchaser prior to the date of this Agreement.

3.19 Insurance . Company has in full force and effect the insurance coverage with respect to its business set forth in Section 3.19 of the Disclosure Schedule.

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3.20 Title to Properties .

(a) Each of Company and its Subsidiaries has good and marketable title to, or valid leasehold interests in, all its properties and assets except for such as are no longer used or useful in the conduct of its businesses or as have been disposed of in the ordinary course of business and except for defects in title, easements, restrictive covenants and similar encumbrances that individually or in the aggregate would not be material. All such assets and properties, other than assets and properties in which Company or any of its Subsidiaries has a leasehold interest, are free and clear of all Liens (other than Liens for current Taxes not yet due and payable), except for Liens that individually or in the aggregate would not be material.

(b) Each of Company and its Subsidiaries has complied in all material respects with the terms of all leases to which it is a party, and all such leases are in full force and effect. True and complete copies of all material leases have been made available to Purchaser.

3.21 Intellectual Property .

(a) Section 3.21(a) of the Disclosure Schedule lists the material Intellectual Property used or held for use by Company and its Subsidiaries as of the date hereof (collectively, the " Company Intellectual Property "). Company and its Subsidiaries own, or are licensed or otherwise possess rights to use, all Company Intellectual Property in the manner that it is currently used by Company and its Subsidiaries.

(b) Neither Company nor any of its Subsidiaries has received written notice from any third party alleging any material interference, infringement, misappropriation or violation of any Intellectual Property rights of any third party and, to the Knowledge of Seller, neither Company nor any of its Subsidiaries has interfered in any material respect with, infringed upon, misappropriated or violated any Intellectual Property rights of any third party. To the Knowledge of Seller, no third party has interfered with, infringed upon, misappropriated or violated any Company Intellectual Property. Neither Company nor any of its Subsidiaries licenses to, or has entered into any exclusive agreements relating to any Company Intellectual Property with, third parties, or permits third parties to use any Company Intellectual Property rights. Neither Company nor any of its Subsidiaries owes any material royalties or payments to any third party for using or licensing to others any Company Intellectual Property.

(c) Neither Company nor any of its Subsidiaries is a party to any agreement to indemnify any Person against a claim of infringement of or misappropriation by any Company Intellectual Property.

3.22 Broker’s Fees . Except for UBS Securities LLC, all the fees and expenses of which shall be borne entirely by Seller, neither Seller, Company nor any Company Subsidiary has employed any broker or finder or incurred any liability for any broker’s fees, commissions or finder’s fees in connection with the transactions contemplated by this Agreement.

3.23 Eligibility .

(a) With respect to Company and each Company Subsidiary that serves in a capacity described in Section 9(a) or 9(b) of the 1940 Act with respect to a Fund, (A) such

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Person is not (taking into account any applicable exemption) ineligible under such Section 9(a) or 9(b) to serve in such capacity, (B) no "affiliated person" (as defined in Section 2(a)(3) of the 1940 Act) of such Person is (taking into account any applicable exemption) ineligible under such Section 9(b) to serve as an "affiliated person" of such Person and (C) there is no proceeding or investigation pending and served on Company or any Company Subsidiary or, to the Knowledge of Seller, pending and not so served or threatened by any Governmental Entity, which would result in (1) the ineligibility of such Person to serve in such capacity under such Section 9(a) or 9(b) or (2) the ineligibility under such Section 9(b) of such "affiliated person" to serve as an "affiliated person" of such Person.

(b) With respect to Company and each Company Subsidiary that acts as an investment adviser within the meaning of the Advisers Act, (A) such Person is not (taking into account any applicable exemption) ineligible pursuant to Section 203(e) of the Advisers Act to act as an investment adviser, (B) no "person associated" (as defined in Section 202(a)(17) of the Advisers Act) with such Person is (taking into account any applicable exemption) ineligible under Section 203(f) of the Advisers Act to serve as a "person associated" with an investment adviser and (C) there is no proceeding or investigation pending and served on Company or any Company Subsidiary or, to the Knowledge of Seller, pending and not so served or threatened by any Governmental Entity, which would result in (1) the ineligibility under such Section 203(e) of such Person to act as an investment adviser or (2) the ineligibility under such Section 203(f) of such "person associated" with such Person to serve as a "person associated" with an investment adviser.

(c) With respect to Company and each Company Subsidiary that acts as a broker or dealer within the meaning of the 1934 Act, (A) such Person is not (taking into account any applicable exemption) ineligible pursuant to Section 15(b)(4) of the 1934 Act to act as a broker or dealer, (B) no "person associated" (as defined in Section 3(a)(18) of the 1934 Act) with such Person is (taking into account any applicable exemption) ineligible under Section 15(b)(6) of the 1934 Act to serve as a "person associated" with a broker or dealer and (C) there is no proceeding or investigation pending and served on Company or any Company Subsidiary or, to the Knowledge of Seller, pending and not so served or threatened by any Governmental Entity, which would result in (1) the ineligibility under such Section 15(b)(4) of such Person to act as a broker or dealer or (2) the ineligibility under such Section 15(b)(6) of such "person associated" with such Person to serve as a "person associated" with a broker or dealer.

(d) None of Company or any Company Subsidiary is (i) required to be registered, licensed or qualified as a commodity pool operator, futures commission merchant, commodity trading advisor, bank, trust company, real estate broker, insurance company, insurance broker or transfer agent under any applicable law, rule or regulation or (ii) subject to any liability or disability by reason of any failure to be so registered, licensed or qualified.

3.24 Funds and Clients .

(a) Each Fund sponsored by Company or any Subsidiary and, to the Knowledge of Seller, each other Fund (" Non-Sponsored Fund ") has filed all registrations, reports, prospectuses, proxy statements, statements of additional information, financial statements, sales literature, statements, notices and other filings required to be filed by it with

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any Governmental Entity (other than Tax Returns), including all amendments or supplements to any of the above for the past two years, in each case to the extent related to its business (the " Filings "), except as would not, individually or in the aggregate, have a Material Adverse Effect. Each Fund sponsored by Company or any Subsidiary and, to the Knowledge of Seller, each Non-Sponsored Fund, holds all legally required licenses, registrations, franchises, permits and authorizations and are in compliance with, and are not in violation of, under any applicable law, statute, order, rule, regulation, policy and/or guideline of any Governmental Entity of competent jurisdiction, except in each case where the failure to hold such license, registration, franchise, permit or authorization or such noncompliance or violation would not have, individually or in the aggregate, a Material Adverse Effect, and neither Company nor any of its Subsidiaries knows of, or has received notice of, any violations of any of the above, except for such violations which would not have, individually or in the aggregate, a Material Adverse Effect.

(b) Company and each Subsidiary has at all times since January 1, 2003 rendered investment advisory services to Clients and Funds sponsored by Company or any Subsidiary and, to the Knowledge of Seller, non-Sponsored Funds, with whom they are or were a party to an Investment Advisory Agreement, in compliance with all requirements, if any, as to investment objectives, portfolio composition and portfolio management, the terms of the applicable Investment Advisory Agreement, written instructions from such Clients and Funds, prospectuses, registration statements, offering memorandums, board of director or trustee directives, applicable law and, to the K