Common use of REPRESENTATIONS AND WARRANTIES RELATING TO THE FUND Clause in Contracts

REPRESENTATIONS AND WARRANTIES RELATING TO THE FUND. To induce the Insurer to enter into this Agreement, ING and the Fund hereby, jointly and severally, represent and warrant to the Insurer that: (a) The Fund (i) is duly organized, validly existing and in good standing under the laws of the State of Maryland; (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 have a material adverse effect on the Fund's ability to perform its obligations under the Transaction Documents; and (iv) is in compliance with all Requirements of Law except where non-compliance would not have a material adverse effect on the Fund's ability to perform its obligations under the Transaction Documents or the validity or enforceability of the Transaction Documents. (b) The Fund has the power and authority, and the legal right, to execute, deliver and perform 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. 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 a filing made under the Securities Act of 1933 and the Investment Company Act of 1940. This Agreement and each other Transaction Document to which the Fund is a party have been duly executed and delivered on behalf of the Fund. This Agreement and each other Transaction Document to which the Fund is a party constitute legal, valid and binding obligations of the Fund enforceable against the Fund in accordance with their respective 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 of the Transaction Documents to which it is a party 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 pursuant to any such Requirement of Law or Contractual Obligation except where such violation would not have a material adverse effect on the Fund's ability to perform its obligations under the Transaction Documents to which it is a party or the validity or enforceability of the Transaction Documents to which it is a party. (d) No litigation, proceeding or investigation of or before any arbitrator or Governmental Authority is pending or threatened by or against the Fund or against any of its properties or revenues (i) asserting the invalidity or unenforceability of this Agreement, (ii) seeking to prevent the consummation of any of the transactions contemplated by the Transaction Documents to which it is a party or (iii) seeking any determination or ruling that might materially and adversely affect (A) the Fund's ability to perform its obligations under this Agreement, (B) the validity or enforceability of this Agreement or (C) the Insurer. (e) The Fund is duly registered with the Commission as an open-end, diversified management investment company under the Investment Company Act and the Fund has been operated in compliance in all material respects with the Investment Company Act and the rules and regulations thereunder.

REPRESENTATIONS AND WARRANTIES RELATING TO THE FUND. To induce the Insurer to enter into this Agreement, ING Pilgrim and the Fund hereby, jointly and severally, represent and warrant to the Insurer that: (a) The Fund (i) is a business trust duly organized, validly existing and in good standing under the laws of the State The Commonwealth of MarylandMassachusetts; (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 have a material adverse effect on the Fund's ability to perform its obligations under the Transaction Documents; and (iv) is in compliance with all Requirements of Law except where non-compliance would not have a material adverse effect on the Fund's ability to perform its obligations under the Transaction Documents or the validity or enforceability of the Transaction Documents. (b) The Fund has the power and authority, and the legal right, to execute, deliver and perform 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. 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 a filing made under the Securities Act of 1933 and the Investment Company Act of 1940. This Agreement has been, and each other Transaction Document to which the Fund is a party have been will be, duly executed and delivered on behalf of the Fund. This Agreement constitutes, and each other Transaction Document to which the Fund is a party party, when executed and delivered, will constitute a legal, valid and binding obligations obligation of the Fund enforceable against the Fund in accordance with their respective 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 of the Transaction Documents to which it is a party 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 pursuant to any such Requirement of Law or Contractual Obligation except where such violation would not have a material adverse effect on the Fund's ability to perform its obligations under the Transaction Documents to which it is a party or the validity or enforceability of the Transaction Documents to which it is a party. (d) No litigation, proceeding or investigation of or before any arbitrator or Governmental Authority is pending or threatened by or against the Fund or against any of its properties or revenues (i) asserting the invalidity or unenforceability of this Agreement, (ii) seeking to prevent the consummation of any of the transactions contemplated by the Transaction Documents to which it is a party or (iii) seeking any determination or ruling that might materially and adversely affect (A) the Fund's ability to perform its obligations under this Agreement, (B) the validity or enforceability of this Agreement or (C) the Insurer. (e) The Fund is duly registered with the Commission as an open-end, diversified management investment company under the Investment Company Act and the Fund has been operated in compliance in all material respects with the Investment Company Act and the rules and regulations thereunder.

REPRESENTATIONS AND WARRANTIES RELATING TO THE FUND. To induce The Fund and Van Xxxxxx Xxxrican Capital Investment Advisory Corp. (the Insurer to enter into this Agreement, ING and the Fund hereby"ADVISER"), jointly and severally, represent and warrant to and agree with each of the Insurer Underwriters that: (a) The Registration Statement has become effective, no stop order suspending the effectiveness of the Registration Statement is in effect, and no proceedings for such purpose are pending before or, to the knowledge of the Fund or the Adviser, threatened by the Commission. (i) is The Registration Statement, when it became effective, did not contain and, as amended or supplemented, if applicable, will not contain any untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein not misleading, (ii) the Registration Statement and the Prospectus comply and, as amended or supplemented, if applicable, will comply in all material respects with the Acts and (iii) the Prospectus does not contain and, as amended or supplemented, if applicable, will not contain any untrue statement of a material fact or omit to state a material fact necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading, except that the representations and warranties set forth in this Section 1(b) do not apply to statements or omissions in the Registration Statement or the Prospectus based upon information relating to any Underwriter furnished to the Fund in writing by such Underwriter through you expressly for use therein. (c) The Fund has been duly organized, is validly existing and as an unincorporated business trust in good standing under the laws of the State Commonwealth of Maryland; (ii) Massachusetts, has the power and authority, authority to conduct its business as described in the Prospectus and the legal right, to own its assets and to transact the business in which it is engaged; (iii) is duly qualified to do transact business and is in good standing under the laws of in each jurisdiction where its ownership or lease of property or in which the conduct of its business requires such qualification qualification, except where to the extent that the failure to be so qualify qualified or be in good standing would not have a material adverse effect on the Fund's . The Fund has no subsidiaries. (d) The Fund is registered with the Commission as a non-diversified, closed-end management investment company under the Investment Company Act and no order of suspension or revocation of such registration has been issued or proceedings therefor initiated or, to the knowledge of the Fund or the Adviser, threatened by the Commission. No person is serving or acting as an officer or trustee of, or investment adviser to, the Fund except in accordance with the provisions of the Investment Company Act and the Investment Advisers Act of 1940, as amended, and the rules and regulations of the Commission thereunder (such act and rules being collectively referred to as the "ADVISERS ACT"). (e) Each of this Agreement, the Investment Advisory Agreement between the Adviser and the Fund (the "ADVISORY AGREEMENT"), the Administration Agreement between Van Xxxxxx Xxxrican Capital, Inc. (the "ADMINISTRATOR") and the Fund (the "ADMINISTRATION AGREEMENT"), the Legal Services Agreement between the Administrator and the Fund (the "LEGAL SERVICES AGREEMENT"), the Custody Agreement between State Street Bank and Trust Company (the "CUSTODIAN") and the Fund (the "CUSTODIAN AGREEMENT") and the Transfer Agency Agreement between Boston Equiserve L.P. (the "TRANSFER AGENT") and the Fund (the "TRANSFER AGENCY AND SERVICE AGREEMENT") (this Agreement, the Advisory Agreement, the Administration Agreement, the Legal Services Agreement, the Custodian Agreement and the Transfer Agency and Service Agreement are referred to herein, collectively, as the "FUNDAMENTAL AGREEMENTS") has been duly authorized, executed and delivered by the Fund. Each Fundamental Agreement, other than this Agreement, assuming due authorization, execution and delivery by the other parties thereto, constitutes the legal, valid and binding obligation of the Fund, enforceable against the Fund in accordance with its terms except as such enforceability may be limited by applicable bankruptcy, insolvency (including, without limitation, all laws relating to fraudulent transfers), reorganization, moratorium or similar laws affecting creditors' rights generally and by general principles of equity, regardless of whether considered in a proceeding in equity or at law. (f) None of (i) the execution and delivery by the Fund of, and the performance by the Fund of its obligations under, each Fundamental Agreement or the adoption by the Fund of the Dividend Reinvestment Plan (the "PLAN"), or (ii) the issue and sale by the Fund of the Shares as contemplated by this Agreement contravenes or will contravene any provision of law applicable to the Fund or the declaration of trust or by-laws of the Fund or any agreement or other instrument binding upon the Fund that is material to the Fund, or any judgment, order or decree of any governmental body, agency or court having jurisdiction over the Fund which contravention would have a material adverse effect on the Fund or its ability to perform its obligations under any such Agreement. No consent, approval, authorization, order or permit of, or qualification with, any governmental body or agency, self-regulatory organization or court or other tribunal is required for the Transaction Documents; performance by the Fund of its obligations under the Fundamental Agreements or the Plan, except such as have been obtained or as may be required by the Acts, the Securities Exchange Act of 1934 (such act and the rules and regulations of the Commission thereunder being collectively referred to as the "EXCHANGE ACT") or the securities or Blue Sky laws of the various states in connection with the offer and sale of the Shares. (ivg) The authorized shares of beneficial interest of the Fund conform in all material respects to the description thereof contained in the Prospectus, and the declaration of trust and by-laws of the Fund, the Fundamental Agreements and the Plan conform in all material respects to the descriptions thereof contained in the Prospectus (except that no representation or warranty is made as to this Agreement). (h) The declaration of trust or by-laws of the Fund, the Fundamental Agreements and the Plan comply with all applicable provisions of the Acts, and all approvals of such documents required under the Investment Company Act by the Fund's shareholders and Board of Trustees have been obtained and are in full force and effect. (i) The Fundamental Agreements (other than this Agreement) and the Plan are in full force and effect and neither the Fund nor, to the Fund's knowledge, any other party to any such agreement is in compliance default thereunder and, to the knowledge of the Fund and the Adviser, no event has occurred which with the passage of time or the giving of notice or both would constitute a default thereunder. The Fund is not currently in breach of, or in material default under, any other written agreement or instrument to which it or its property is bound or affected. (j) The common shares of beneficial interest, par value $.01 per share, of the Fund outstanding prior to the issuance of the Shares have been duly authorized and are validly issued, fully paid and non-assessable and the form of certificates used to evidence such common shares is in due and proper form and complies with all Requirements provisions of Law except where applicable law. (k) The Shares have been duly authorized and, when issued, paid for and delivered in accordance with the terms of this Agreement, will be validly issued, fully paid and non-compliance assessable, and the issuance of the Shares will not be subject to any pre-emptive or similar rights except as disclosed in the Prospectus. No person has rights to the registration of any securities because of the filing of the Registration Statement. (l) The Shares and any common shares of beneficial interest, par value $.01 per share, of the Fund outstanding prior to the issuance of the Shares have been approved for listing on the New York Stock Exchange, Inc. (the "NEW YORK STOCK EXCHANGE"), subject to official notice of issuance. The Fund's Registration Statement on Form 8-A under the Exchange Act is effective. (m) The Fund intends to direct the investment of the proceeds of the offering described in the Prospectus in such a manner as to comply with the requirements of Subchapter M of the Internal Revenue Code of 1986, as amended (the "CODE"), and the Fund is eligible to qualify as a regulated investment company under Subchapter M of the Code. (n) There has not occurred any material adverse change, or any development involving a prospective material adverse change, in the condition, financial or otherwise, of the Fund, or in the investment objectives, investment policies, liabilities, business, prospects or operations of the Fund from that set forth in the Prospectus (exclusive of any amendments or supplements thereto subsequent to the date of this Agreement) and there have been no transactions entered into by the Fund which are material to the Fund other than those in the ordinary course of its business or as described in the Prospectus. (o) There are no legal or governmental proceedings pending or, to the knowledge of the Fund and the Adviser, threatened to which the Fund is a party or is subject that are required to be described in the Registration Statement or the Prospectus and are not so described or any statutes, regulations, contracts or other documents that are required to be described in the Registration Statement or the Prospectus or to be filed as exhibits to the Registration Statement that are not described or filed as required. (p) The Fund has all necessary consents, authorizations, approvals, orders (including exemptive orders), certificates and permits of and from, and has made all declarations and filings with, all governmental authorities, self-regulatory organizations and courts and other tribunals to own and use its assets and to conduct its business in the manner described in the Prospectus, except to the extent that the failure to obtain or file the foregoing would not have a material adverse effect on the Fund's ability to perform its obligations under the Transaction Documents or the validity or enforceability of the Transaction Documents. (bq) The Fund has the power and authority, and the legal right, to execute, deliver and perform 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 Each preliminary prospectus filed as part of the Transaction Documents to which it is a party. No consent Registration Statement as originally filed or authorization of, filing withas part of any amendment thereto, 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 filed pursuant to which it is a party, other than a filing made Rule 497 under the Securities Act of 1933 and the Investment Company Act of 1940. This Agreement and each other Transaction Document to which the Fund is a party have been duly executed and delivered on behalf of the Fund. This Agreement and each other Transaction Document to which the Fund is a party constitute legalAct, valid and binding obligations of the Fund enforceable against the Fund in accordance with their respective 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 of the Transaction Documents to which it is a party 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 pursuant to any such Requirement of Law or Contractual Obligation except where such violation would not have a material adverse effect on the Fund's ability to perform its obligations under the Transaction Documents to which it is a party or the validity or enforceability of the Transaction Documents to which it is a party. (d) No litigation, proceeding or investigation of or before any arbitrator or Governmental Authority is pending or threatened by or against the Fund or against any of its properties or revenues (i) asserting the invalidity or unenforceability of this Agreement, (ii) seeking to prevent the consummation of any of the transactions contemplated by the Transaction Documents to which it is a party or (iii) seeking any determination or ruling that might materially and adversely affect (A) the Fund's ability to perform its obligations under this Agreement, (B) the validity or enforceability of this Agreement or (C) the Insurer. (e) The Fund is duly registered with the Commission as an open-end, diversified management investment company under the Investment Company Act and the Fund has been operated in compliance complied when so filed in all material respects with the Investment Company Act Acts. (r) The statement of assets and liabilities included in the Registration Statement and the rules Prospectus presents fairly the financial position of the Fund as at the date indicated and said statement has been prepared in conformity with generally accepted accounting principles. KPMG Peat Marwick LLP, whose report appears in the Prospectus, are independent public accountants with respect to the Fund as required by the Acts. (s) There are no material restrictions, limitations or regulations thereunderwith respect to the ability of the Fund to invest its assets as described in the Prospectus, other than as described therein. (t) Any advertisement used with the written consent of the Fund in the public offering of the Shares pursuant to Rule 482 under the Securities Act (an "OMITTING PROSPECTUS") complies in all material respects with the requirements of Rule 482, and does not contain an untrue statement of a material fact.