Exhibit 8(iii) under Form N-1A
Exhibit 10 under Item 601/Reg. S-K
ASSIGNMENT AGREEMENT
This ASSIGNMENT AGREEMENT ("Agreement") is made and entered into effective
for all purposes and in all respects as of the 6th day of November, 1996, by and
between Xxxxxx Guaranty Trust Company of New York, acting through its office at
00 xxxxxx xxx Xxxx, Xxxxxxxx, Xxxxxxx ("Assignor"), Bank of New York, a New York
Trust Company ("Assignee") and Wachovia Bank of North Carolina, N.A., a national
bank ("Wachovia").
WITNESSETH:
WHEREAS, Wachovia serves as custodian to the Biltmore Emerging Markets
Fund ("Fund"), a series of the Biltmore Funds, an investment company registered
under the Investment Company Act of 1940;
WHEREAS, Assignor has entered into a Global Custody Agreement with
Wachovia dated January 3, 1995 ("Custody Agreement"); WHEREAS, Assignor
serves as custodian for securities received for the account of Wachovia on
behalf of the Fund and performs related
services under the Custody Agreement;
WHEREAS, the Custody Agreement authorizes Assignor to: (i) execute orders
for Wachovia itself or through its affiliates; (ii) disclose to its affiliates
details with respect to the securities and transactions effected under the
Custody Agreement; and (iii) arrange with any affiliate to perform any act
required to be performed by Assignor under the Custody Agreement;
WHEREAS, in consideration for its services under the Custody Agreement,
the Assignor receives as compensation, a fee computed at rates determined by the
Assignor and agreed to by Wachovia in writing ("Fees"), as well as all
assessments, charges and expenses (including, without limitation, legal expenses
and attorney's fees) ("Expenses") incurred by the Assignor;
WHEREAS, Assignor has sold its global custody business to Assignee and has
received Wachovia's consent to assign all of its rights and obligations under
the Custody Agreement to Assignee;
NOW THEREFORE, in consideration of the mtuual promises hereinafter set
forth and of other good and valuable consideration, the receipt and sufficiency
of which are hereby acknowledged, the parties hereto, intending to be legally
bound, hereby consent and agree as follows:
1. Recitals. The foregoing recitals are hereby acknowledged and agreed to
be true and are incorporated into the body of this Agreement by reference to the
same extent as if herewith set forth in full.
2. Assignment. Assignee hereby agrees to serve as custodian for securities
received for the account of Wachovia on behalf of the Fund and to perform all of
Assignor's duties and services under the Custody Agreement, and Assignor hereby
assigns and transfers all of its rights and obligations, including without
limitation all right, title and interest in and to the Fees and Expenses under
the Custody Agreement to Assignee. Wachovia agrees that Assignor shall have no
further obligations of any kind to Wachovia to provide services or other
commitments pursuant to or in connection with the Custody Agreement.
3. Use of Affiliates. Wachovia hereby agrees to the assignment specified
in Section 2 hereof and further agrees that in connection with Assignee's
performance under the Custody Agreement, Assignee may: (i) execute orders for
Wachovia itself or through its affiliates; (ii) disclose to its affiliates
details with respect to the securities and transactions effected under the
Custody Agreement; and (iii) arrange with any affiliate to perform any act
required to be performed by Assignor under the Custody Agreement.
4. Successors and Assigns and Amendment. This Agreement is binding upon
Wachovia, Assignor and Assignee and each of their respective successors and
assigns. No amendment of this Agreement shall be valid without the written
consent of the parties hereto.
5. Counterparts. This Agreement may be executed in any number of
counterparts, each of which shall be an original, but such counterparts, shall
together constitute one and the same instrument.
6. Severability. In the event any of the terms or provisions of this
Agreement shall be held to be unenforceable, the remaining terms and provisions
shall be unimpaired.
IN WITNESS WHEREOF, each of the parties hereto has caused this Agreement
to be duly executed by their respective authorized representatives as of the day
and year first above written.
ASSIGNOR
Xxxxxx Guaranty Trust Company of New York
By: /s/ Xxxxxxxx X. Xxxxxxxxx
ASSIGNEE
Bank of New York
By:/s/ illegible signature
WACHOVIA
Wachovia Bank of North Carolina, N.A.
By:/s/X.X. Xxxxxxxx
