Wilshire wShares Enhanced Gold Trust POS EX


Exhibit 10.5 


 


 





FUND
ADMINISTRATION AND ACCOUNTING AGREEMENT


 


THIS
AGREEMENT is made as of November 25th, 2020 (this “Agreement”) by and between Wilshire wShares Enhanced
Gold Trust, a Delaware statutory trust (the “Trust”) and The Bank of New York Mellon, a New York corporation
authorized to do a banking business (“BNY Mellon”).


 


W 
I  T  N  E  S  S  E  T  H
:


 


WHEREAS,
the Trust desires to retain BNY Mellon to provide the services described herein, and BNY Mellon is willing to provide such services,
all as more fully set forth below;


 


NOW,
THEREFORE, in consideration of the mutual promises and agreements contained herein, the parties hereby agree as follows:


 


1.       Definitions.


 


Whenever
used in this Agreement, unless the context otherwise requires, the following words shall have the meanings set forth below:


 


“1933
Act” means the Securities Act of 1933, as amended, and the rules and regulations promulgated thereunder.


 


“1934
Act” means the Securities Exchange Act of 1934, as amended, and the rules and regulations promulgated thereunder.


 


“Authorized
Person” shall mean each person, whether or not an officer or an employee of the Trust, duly authorized to execute this
Agreement and to give Instructions on behalf of the Trust as set forth in Exhibit B hereto and each Authorized Person’s
scope of authority may be limited by setting forth such limitation in a written document signed by both parties hereto. From time
to time the Trust may deliver a new Exhibit B to add or delete any person and BNY Mellon shall be entitled to rely on the last
Exhibit B actually received by BNY Mellon.


 



     


     


    

 





“BNY
Mellon Affiliate” shall mean any office, branch, or subsidiary of The Bank of New York Mellon Corporation.


 


“Confidential
Information” shall have the meaning given in Section 21 of this Agreement.


 


“Documents”
shall mean such documents as BNY Mellon may reasonably request from time to time, in connection with its provision of services
under this Agreement.


 


“Instructions”
shall mean Oral Instructions or written communications actually received by BNY Mellon by S.W.I.F.T., tested telex, letter, facsimile
transmission, electronic mail, or other method or system specified by BNY Mellon as available for use in connection with the services
hereunder, from an Authorized Person or person believed in good faith to be an Authorized Person.


 


“Net
Asset Value” shall mean the value of the Trust, calculated in the manner described in the Trust’s Offering Materials.


 


“Offering
Materials” shall mean the Trust’s currently effective prospectus included in its recently filed registration statement
with the SEC relating to shares of the Trust.


 


“Organizational
Documents” shall mean certified copies of the Trust’s certificate of trust, declaration of trust and trust agreement,
material contracts, Offering Materials, all SEC exemptive orders issued to the Trust, required filings or similar documents of
formation or organization, as applicable, delivered to and received by BNY Mellon.


 


“Oral
Instructions” shall mean oral instructions received by BNY Mellon under permissible circumstances specified by BNY Mellon,
in its sole discretion, as being from an Authorized Person or person believed in good faith by BNY Mellon to be an Authorized
Person.


 


“SEC”
means the United States Securities and Exchange Commission. “Securities Laws” means the 1933 Act and the 1934
Act.


 



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“Shares”
means the shares issued by the Trust which represent fractional undivided beneficial interests in and ownership of the Trust.


 


“Sponsor”
means Wilshire Phoenix Funds LLC, the sponsor of the Trust.


 


2.             Appointment.


 


The
Trust hereby appoints BNY Mellon as its agent for the term of this Agreement to perform the services described herein. BNY Mellon
hereby accepts such appointment and agrees to perform the duties hereinafter set forth.


 


3.             Representations
and Warranties.


 


(a)           The
Trust hereby represents and warrants to BNY Mellon, which representations and warranties shall be deemed to be continuing, that:


 


I.           It
is duly organized and existing under the laws of the jurisdiction of its organization, with full power to carry on its business
as now conducted, to enter into this Agreement and to perform its obligations hereunder;


 


II.          This
Agreement has been duly authorized, executed and delivered by the Trust and constitutes a valid and legally binding obligation
of the Trust, enforceable in accordance with its terms, subject to the effects of bankruptcy, insolvency, fraudulent conveyance,
reorganization and other similar laws relating to or affecting creditors’ rights generally;


 


III.        The
Sponsor is in good standing and qualified to do business in each jurisdiction in which the nature or conduct of its business requires
such qualification;


 


IV.        It
is conducting its business in material compliance with all applicable laws and regulations, both state and federal, has made and
will continue to make all necessary filings including tax filings and has obtained all regulatory licenses, approvals and consents
necessary to carry on its business as now conducted; there is no statute, regulation, rule, order or judgment binding on it and
no provision of its Organizational Documents, nor of any mortgage, indenture, credit agreement or other contract binding on it
or affecting its property which would prohibit its execution or performance of this Agreement;


 



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V.             The
method of valuation of assets of the Trust and the method of computing the Net Asset Value shall be as set forth in the Offering
Materials of the Trust. To the extent the Trust becomes aware that the performance of any services described in Schedule I attached
hereto by BNY Mellon in accordance with the then effective Offering Materials for the Trust would violate any applicable laws
or regulations, the Trust shall promptly notify BNY Mellon in writing and thereafter shall either furnish BNY Mellon with the
appropriate values of the assets of the Trust, Net Asset Value or other computation, as the case may be, or, instruct BNY Mellon
in writing to value the assets of the Trust and/or compute Net Asset Value or other computations in a manner the Trust specifies
in writing, and either the furnishing of such values or the giving of such instructions shall constitute a representation by the
Trust that the same is consistent with all applicable laws and regulations and with its Offering Materials, all subject to confirmation
by BNY Mellon as to its capacity to act in accordance with the foregoing;


 


VI.            Each
person named on Exhibit B hereto is duly authorized by the Trust to be an Authorized Person hereunder;


 


VII.         
It has implemented, and is acting in accordance with, procedures reasonably designed to ensure that it will disseminate
to all market participants, other than Authorized Participants (as defined in its Offering Materials), each calculation of Net
Asset Value provided by BNY hereunder to Authorized Participants at the time BNY Mellon provides such calculation to Authorized
Participants; and


  



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(b)           Without
limiting the provisions of Section 21 herein, the Trust shall treat as confidential the terms and conditions of this Agreement
and shall not disclose nor authorize disclosure thereof to any other person, except (i) to its employees, regulators, examiners,
internal and external accountants, auditors, counsel, and other advisors, (ii) for a summary description of this Agreement in
the Offering Materials with the prior written approval of BNY Mellon, which consent shall not be unreasonably withheld, (iii)
to any other person when required by a court order or legal process, or (iv) whenever advised by its counsel that it would be
liable for a failure to make such disclosure. The Trust shall instruct its employees, regulators, examiners, internal and external
accountants, auditors, and counsel who may be afforded access to such information of the Trust’s obligations of confidentiality
hereunder; and


 


(c)           The
Trust will promptly notify BNY Mellon in writing of any and all material legal proceedings or securities investigations filed
or, to the extent it has actual knowledge thereof, commenced against the Trust.


 


(d)           BNY
Mellon hereby represents and warrants, which representations and warranties shall be deemed to be continuing, that:


 


I.              It
is duly organized and existing under the laws of the jurisdiction of its organization with full power to carry on its business
as now conducted, to enter into this Agreement, and to perform its obligations hereunder;


 


II.             This
Agreement has been duly authorized, executed and delivered by BNY Mellon and constitutes a valid and legally binding obligation
of BNY Mellon, enforceable in accordance with its terms, subject to the effects of bankruptcy, insolvency, fraudulent conveyance,
reorganization and other similar laws relating to or affecting creditors’ rights generally;


 



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III.          It
is conducting its business in material compliance with all applicable laws and requirements, both state and federal, and has obtained
all regulatory licenses, approvals and consents necessary to provide the services hereunder and there is no statute, regulation,
rule, order, or judgment binding on it and no provision of its Organizational Documents, nor of any mortgage, indenture, credit
agreement, or other contract binding on it or affecting its property which would prohibit its execution or performance of this
Agreement; and


  





IV.          It has in place and shall maintain physical, electronic and procedural safeguards reasonably designed to protect the availability,
security, confidentiality and integrity of, and to prevent unauthorized access to or use of, confidential information of the Trust.


 


4.             Delivery
of Documents.


 


The
Trust shall promptly provide, deliver, or cause to be delivered from time to time, to BNY Mellon the Trust’s Organizational
Documents, a copy of any and all SEC exemptive orders issued to the Trust, and Documents and other materials used in the distribution
of the Shares and all amendments thereto as may be necessary for BNY Mellon to perform its duties hereunder. BNY Mellon shall
not be deemed to have notice of any information (other than information supplied by BNY Mellon) contained in such Organizational
Documents, Documents or other materials until they are actually received by BNY Mellon.


 


5.             Duties
and Obligations of BNY Mellon.


 


(a)           Subject
to the direction and control of the Trust and the provisions of this Agreement, BNY Mellon shall provide to the Trust the administrative
services and the valuation and computation services listed on Schedule I attached hereto, as it may be amended by the parties
from time to time.


 



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(b)           In
performing hereunder, BNY Mellon shall provide, at its expense, office space, facilities, equipment and personnel.


 


(c)           BNY
Mellon shall not provide any services relating to the management, investment advisory or sub-advisory functions of the Trust,
distribution of the Shares of the Trust, maintenance of the Trust’s financial records or other services normally performed
by the Trust’s counsel or independent auditors and the services provided by BNY Mellon do not constitute, nor shall they
be construed as constituting, legal advice or the provision of legal services for or on behalf of the Trust or any other person,
and the Trust acknowledges that BNY Mellon does not provide public accounting or auditing services or advice and will not be making
any tax filings, or doing any tax reporting on its behalf, other than those specifically agreed to hereunder. The scope of services
provided by BNY Mellon under this Agreement shall not be increased as a result of new or revised regulatory or other requirements
that may become applicable with respect to the Trust, unless the parties hereto expressly agree in writing to any such increase
in the scope of services.


 



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(d)           The
Trust shall cause its officers, advisors, the Sponsor, distributor, independent accountants, current administrator (if any), transfer
agent, and any other service provider to cooperate with BNY Mellon and to provide BNY Mellon, upon request, with such information,
documents and advice relating to the Trust as is within the possession or knowledge of such persons, and which in the reasonable
opinion of BNY Mellon, is necessary in order to enable BNY Mellon to perform its duties hereunder. In connection with its duties
hereunder, BNY Mellon shall not be responsible for, under any duty to inquire into, or be deemed to make any assurances with respect
to the accuracy, validity or propriety of any information, documents or advice provided to BNY Mellon by any of the aforementioned
persons. BNY Mellon shall not be liable for any loss, damage or expense resulting from or arising out of the failure of the Trust
to cause any information, documents or advice to be provided to BNY Mellon as provided herein and shall be held harmless by the
Trust when acting in reliance upon such information, documents or advice relating to the Trust. All fees or costs charged by such
persons shall be borne by the Trust. In the event that any services performed by BNY Mellon hereunder rely, in whole or in part,
upon information obtained from a third party service utilized or subscribed to by BNY Mellon which BNY Mellon in its reasonable
judgment deems reliable, BNY Mellon shall not have any responsibility or liability for, under any duty to inquire into, or deemed
to make any assurances with respect to, the accuracy or completeness of such information.







 





(e)           Nothing
in this Agreement shall limit or restrict BNY Mellon, any BNY Mellon Affiliate or any officer or employee thereof from acting
for or with any third parties, and providing services similar or identical to same or all of the services provided hereunder.


 



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(f)            The
Trust shall furnish BNY Mellon with any and all instructions, explanations, information, specifications and documentation deemed
necessary by BNY Mellon in the performance of its duties hereunder, including, without limitation, the amounts or written formula
for calculating the amounts and times of accrual of Trust liabilities and expenses, and the value of any securities lending related
collateral investment account(s). BNY Mellon shall not be required to include as Trust liabilities and expenses, nor as a reduction
of Net Asset Value, any accrual for any federal, state, or foreign income taxes unless the Trust shall have specified to BNY Mellon
in Instructions the precise amount of the same to be included in liabilities and expenses or used to reduce Net Asset Value. The
Trust shall also furnish BNY Mellon with bid, offer, or market values of securities if BNY Mellon notifies the Trust that same
are not available to BNY Mellon from a security pricing or similar service utilized, or subscribed to, by BNY Mellon which the
Trust directs BNY Mellon to utilize, and which BNY Mellon in its judgment deems reliable at the time such information is required
for calculations hereunder. At any time and from time to time, the Trust also may furnish BNY Mellon with bid, offer, or market
values of securities and instruct BNY Mellon in Instructions to use such information in its calculations hereunder. BNY Mellon
shall at no time be required or obligated to commence or maintain any utilization of, or subscriptions to, any securities pricing
or similar service. In no event shall BNY Mellon be required to determine, or have any obligations with respect to, whether a
market price represents any fair or true value, nor to adjust any price to reflect any events or announcements, including, without
limitation, those with respect to the issuer thereof, it being agreed that all such determinations and considerations shall be
solely for the Trust.







 





(g)           BNY
Mellon may apply to an Authorized Person of the Trust for Instructions with respect to any matter arising in connection with BNY
Mellon’s performance hereunder for the Trust, and BNY Mellon shall not be liable for any action taken or omitted to be taken
by it in good faith without gross negligence or willful misconduct in accordance with such Instructions. Such application for
Instructions may, at the option of BNY Mellon, set forth in writing any action proposed to be taken or omitted to be taken by
BNY Mellon with respect to its duties or obligations under this Agreement and the date on and/or after which such action shall
be taken. BNY Mellon shall not be liable for any action taken or omitted to be taken in accordance with a proposal included in
any such application on or after the date specified therein unless, prior to taking or omitting to take any such action, BNY Mellon
has received Instructions from an Authorized Person in response to such application specifying the action to be taken or omitted.


 



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(h)         BNY
Mellon may consult with counsel to the Trust or its own external counsel, at the Trust’s expense, with respect to any matter
arising in connection with the services to be performed by BNY Mellon under this Agreement and shall be fully protected with respect
to anything done or omitted by it in good faith in accordance with the written advice or opinion of such counsel.







 





(i)          Notwithstanding
any other provision contained in this Agreement or Schedule I attached hereto, BNY Mellon shall have no duty or obligation with
respect to, including, without limitation, any duty or obligation to determine, or advise or notify the Trust of: (i) the taxable
nature of any distribution or amount received or deemed received by, or payable to, the Trust, (ii) the taxable nature or effect
on the Trust or its shareholders of any corporate actions, class actions, tax reclaims, tax refunds or similar events, (iii) the
taxable nature or taxable amount of any distribution or dividend paid, payable or deemed paid, by the Trust to its shareholders;
or (iv) the effect under any federal, state, or foreign income tax laws of the Trust making or not making any distribution or
dividend payment, or any election with respect thereto. Further, BNY Mellon is not responsible for the identification of securities
requiring U.S. tax treatment that differs from treatment under U.S. generally accepted accounting principles. BNY Mellon is solely
responsible for processing such securities, as identified by the Trust or its Authorized Persons, in accordance with U.S. tax
laws and regulations.


 


(j)          BNY Mellon shall have no duties or responsibilities whatsoever except such duties and responsibilities as are specifically
set forth in this Agreement and Schedule I attached hereto, and no covenant or obligation shall be implied against BNY Mellon
in connection with this Agreement.


 



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(k)           BNY Mellon, in performing the services required of it under the terms of this Agreement, shall be entitled to rely fully
on the accuracy and validity of any and all Instructions, explanations, information, specifications, Documents and documentation
furnished to it by the Trust and shall have no duty or obligation to review the accuracy, validity or propriety of such Instructions,
explanations, information, specifications, Documents or documentation, including, without limitation, evaluations of securities;
the amounts or formula for calculating the amounts and times of accrual of Trust’s liabilities and expenses; the amounts
receivable and the amounts payable on the sale or purchase of securities; and amounts receivable or amounts payable for the sale
or redemption of the Shares effected by or on behalf of the Trust. In the event BNY Mellon’s computations hereunder rely,
in whole or in part, upon information, including, without limitation, bid, offer or market values of securities or other assets,
or accruals of interest or earnings thereon, from a pricing or similar service utilized, or subscribed to, by BNY Mellon which
the Trust directs BNY Mellon to utilize, and which BNY Mellon in its judgment deems reliable, BNY Mellon shall not be responsible
for, under any duty to inquire into, or deemed to make any assurances with respect to, the accuracy or completeness of such information.
Without limiting the generality of the foregoing, BNY Mellon shall not be required to inquire into any valuation of securities
or other assets by the Trust or any third party described in this sub-section (k) even though BNY Mellon in performing services
similar to the services provided pursuant to this Agreement for others may receive different valuations of the same or different
securities of the same issuers.


  





(l)            BNY
Mellon, in performing the services required of it under the terms of this Agreement, shall not be responsible for determining
whether any interest accruable to the Trust is or will be actually paid, but will accrue such interest until otherwise instructed
by the Trust.


 



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(m)          BNY
Mellon shall not be responsible for damages (including without limitation damages caused by delays, failure, errors, interruption
or loss of data) which occurring directly or indirectly by reason of circumstances beyond its reasonable control in the performance
of its duties under this Agreement, including, without limitation, labor difficulties within or without BNY Mellon, mechanical
breakdowns, flood or catastrophe, acts of God, failures of transportation, interruptions, loss, or malfunctions of utilities,
action or inaction of civil or military authority, national emergencies, public enemy, war, terrorism, riot, sabotage, non-performance
by a third party, failure of the mails, communications, computer (hardware or software) services, or functions or malfunctions
of the internet, firewalls, encryption systems or security devices caused by any of the above. Upon the occurrence of any such
delay or failure the Bank shall use commercially reasonable efforts to resume performance as soon as practicable under the circumstances.
Nor shall BNY Mellon be responsible for delays or failures to supply the information or services specified in this Agreement where
such delays or failures are caused by the failure of any person(s) other than BNY Mellon to supply any instructions, explanations,
information, specifications or documentation deemed necessary by BNY Mellon in the performance of its duties under this Agreement.


 


(n)           BNY
Mellon will implement business continuity and disaster recovery plans designed to minimize interruptions of service and ensure
recovery of systems and applications used to provide the Services. Such plans shall cover the facilities, systems, applications
and employees that are critical to the provision of the Services, and will be tested at least annually to validate that the recovery
strategies, requirements and protocols are viable and sustainable.


 






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6.             Allocation
of Expenses.


 


Except
as otherwise provided herein, all costs and expenses arising or incurred in connection with the performance of this Agreement
shall be paid by the Trust, including but not limited to, organizational costs and costs of maintaining corporate existence, taxes,
interest, brokerage fees and commissions, insurance premiums, compensation and expenses of the Trust’s trustees, directors,
officers or employees, legal, accounting and audit expenses, management, advisory, sub-advisory, administration and shareholder
servicing fees, charges of custodians, transfer and dividend disbursing agents, expenses (including clerical expenses) incident
to the issuance, redemption or repurchase of the Shares, fees and expenses incident to the registration or qualification under
the Securities Laws, state or other applicable securities laws of the Trust or its shares or membership interests, as applicable,
costs (including printing and mailing costs) of preparing and distributing Offering Materials, reports, notices and proxy material
to the Trust’s shareholders or members, as applicable, all expenses incidental to holding meetings of the Trust’s
trustees, directors and shareholders, and extraordinary expenses as may arise, including litigation affecting the Trust and legal
obligations relating thereto for which the Trust may have to indemnify its trustees, directors, officers, managers, and/or members,
as may be applicable.


 


7.             Reserved.


 


8.             Regulatory
Administration Services.


 


(a)           If
Schedule I contains a requirement for BNY Mellon to provide the Trust with compliance support services and/or Regulatory Administration
services, such services shall be provided pursuant to the terms of this Section 8 (such services, collectively hereinafter referred
to as the “Regulatory Support Services”).


 


(b)           Notwithstanding
anything in this Agreement to the contrary, the Regulatory Support Services provided by BNY Mellon under this Agreement are administrative
in nature and do not constitute, nor shall they be construed as constituting, legal advice or the provision of legal services
for or on behalf of the Trust or any other person.


 



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(c)           All work product produced by BNY Mellon in connection with its provision of Regulatory Support Services under this Agreement
is subject to review and approval by the Trust and by the Sponsor’s legal counsel. The Regulatory Support Services performed
by BNY Mellon under this Agreement will be at the request and direction of the Trust and/or its officers or other Authorized Persons,
as applicable. BNY Mellon disclaims liability to the Trust, and the Trust is solely responsible, for the selection, qualifications
and performance of the Trust’s officers or other Authorized Persons and the adequacy and effectiveness of the Trust’s
compliance program.


  





9.             Standard
of Care; Indemnification.


 


(a)           In
performing all of its duties and obligations hereunder, BNY Mellon shall exercise the standard of care and diligence that a professional
service provider would observe in the provision of the services rendered pursuant to this Agreement. Except as otherwise provided
herein, BNY Mellon and any BNY Mellon Affiliate shall not be liable for any and all costs, expenses, losses, charges, damages,
liabilities or claims, including reasonable and documented attorneys’ and accountants’ fees and expenses (collectively,
“Losses”), incurred by or asserted against the Trust, except those Losses arising out of BNY Mellon’s
own gross negligence, bad faith or willful misconduct. In no event shall the Trust, BNY Mellon or any BNY Mellon Affiliate be
liable for any special, indirect or consequential damages, or lost profits or loss of business, arising under or in connection
with this Agreement, even if previously informed of the possibility of such damages and regardless of the form of action. BNY
Mellon and any BNY Mellon Affiliate shall not be liable for any Losses, resulting from, arising out of, or in connection with
its performance hereunder, including its actions or omissions, the incompleteness or inaccuracy of any specifications or other
information furnished by the Trust, unless such Losses arise out of the bad faith, gross negligence or willful misconduct of BNY
Mellon, nor shall BNY Mellon be liable for any Losses for delays caused by circumstances beyond the reasonable control of BNY
Mellon or any agent of BNY Mellon and which adversely affect the performance by BNY Mellon of its obligations and duties hereunder
or by any other agent of BNY Mellon, including without limitation strikes, work stoppages, acts of war or terrorism, insurrection,
revolution, nuclear or natural catastrophes or acts of God, or interruptions, loss or malfunctions of utilities, communications
or computer (software and hardware) services. Upon the occurrence of any such delay or failure the Bank shall use commercially
reasonable efforts to resume performance as soon as practicable under the circumstances.


 



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(b)              
The Trust agrees to indemnify BNY Mellon and any BNYM Affiliate (the “Indemnitees”) and agrees to hold the
Indemnitees harmless from and against any and all Losses sustained or incurred by or asserted against an Indemnitee by reason
of or as a result of any action taken or omitted to be taken by any Indemnitee or otherwise or in reliance upon (i) any law, act,
regulation or interpretation of the same even though the same may thereafter have been altered, changed, amended or repealed,
(ii) the Trust’s Offering Materials or Documents (excluding information provided by BNY Mellon), (iii) any Instructions,
or (iv) any written opinion of legal counsel for the Trust or BNY Mellon, or arising out of transactions or other activities of
the Trust which occurred prior to the commencement of this Agreement; provided however, that the Trust shall not indemnify any
Indemnitee for any Losses arising out of such Indemnitee’s own bad faith, gross negligence or willful misconduct in the
performance of this Agreement. This indemnity shall be a continuing obligation of the Trust, its successors and assigns, notwithstanding
the termination of this Agreement. Without limiting the generality of the foregoing, the Trust shall indemnify the Indemnitees
against and save the Indemnitees harmless from any loss, damage or expense, including reasonable and documented counsel fees and
other costs and expenses of a defense against any claim or liability, arising from any one or more of the following:


  



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I.              Errors
in records or instructions, explanations, information, specifications or documentation of any kind, as the case may be, supplied
to BNY Mellon by or on behalf of the Trust;


 


II.             Action
or inaction taken or omitted to be taken by BNY Mellon or any BNY Mellon Affiliate pursuant to Instructions of the Trust or otherwise
without gross negligence, bad faith or willful misconduct;


 


III.            Any
action taken or omitted to be taken by BNY Mellon in good faith in accordance with the written advice or opinion of counsel for
the Trust or its own counsel, provided that such written advice or opinion of counsel is obtained in accordance with Section 5(h);


 


IV.            Any
improper use by the Trust or its agents, distributor or Sponsor of any valuations or computations supplied by BNY Mellon pursuant
to this Agreement;


 


V.             The
method of valuation of the securities and the method of computing the Net Asset Value of the Trust and the Shares; or


 


VI.            Any
valuations of securities, other assets, or the Net Asset Value provided by the Trust.


 


(c)           Actions
taken or omitted in reliance on Instructions or upon any information, order, indenture, stock certificate, membership certificate,
power of attorney, assignment, affidavit or other instrument believed by BNY Mellon in good faith to be from an Authorized Person,
or upon the opinion of legal counsel for the Trust or its own counsel, shall be conclusively presumed to have been taken or omitted
in good faith.


 



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10.           Compensation.


 


For
the services provided hereunder, the Trust agrees to pay BNY Mellon such compensation as is mutually agreed to in writing by the
Trust and BNY Mellon from time to time and such reasonable and documented out-of-pocket expenses (e.g., telecommunication
charges, postage and delivery charges, costs of independent compliance reviews, record retention costs, reproduction charges and
transportation and lodging costs) as are incurred by BNY Mellon in performing its duties hereunder; provided however that the
prior written consent of the Trust shall be required prior to the incurrence of any individual expenses greater than $500. Except
as hereinafter set forth, compensation shall be calculated and accrued daily and paid monthly. The Trust authorizes BNY Mellon
to debit the Trust’s custody account for all amounts due and payable hereunder. BNY Mellon shall deliver to the Trust invoices
for all services rendered. Upon termination of this Agreement before the end of any month, the compensation for such part of a
month shall be prorated according to the proportion which such period bears to the full monthly period and shall be payable upon
the effective date of termination of this Agreement. For the purpose of determining compensation payable to BNY Mellon, the Trust’s
Net Asset Value shall be computed at the times and in the manner specified in the Trust’s Offering Materials. The Trust
agrees to pay the fees and reimbursable expenses set forth in this Section 10 within thirty (30) days following the receipt of
the respective billing notice accompanied by supporting documentation, as appropriate.


 



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11.           Records;
Visits.


 


(a)           The
books and records pertaining to the Trust which are in the possession or under the control of BNY Mellon shall be the property
of the Trust. The Trust and Authorized Persons shall have access to such books and records at all times during BNY Mellon’s
normal business hours. Upon the reasonable request of the Trust, copies of any such books and records shall be promptly provided
by BNY Mellon to the Trust or to an Authorized Person, at the Trust’s expense. Upon termination of this Agreement, the parties
agree to cooperate in the provision of documents and performance of other actions necessary or desirable in order to facilitate
the succession of a new service provider. BNY Mellon will promptly deliver to the Trust or to any designated third party the Trust’s
books and records created and maintained by BNY Mellon as well as any books and records of the Trust maintained but not created
by BNY Mellon together with a certification that all such books and records created and maintained by BNY Mellon are accurate
and complete. Further, BNY Mellon agrees that if this Agreement terminates or expires at the end of a calendar quarter, BNY Mellon
will prepare, review and file the Form 10-K or 10Q, as applicable, in accordance with and subject to the terms and conditions
of this Agreement.


 


(b)           BNY
Mellon shall keep all (i) books and records with respect to the Trust’s books of account, (ii) records of the Trust’s
transactions in securities and other assets, and (iii) other books and records as required pursuant to Section 31 of the Investment
Company Act of 1940, as amended, and rules thereunder as if the Trust were subject to such requirements, and will maintain those
books and records of the Trust according to such requirements.


 


12.           Term
of Agreement.


 


(a)           This
Agreement shall be effective on the date first written above and, unless terminated pursuant to its terms, shall continue until
11:59 PM on the date which is the third anniversary of such date (the “Initial Term”) and shall automatically
renew in accordance with Section 12(b) below unless otherwise terminated in accordance with this Agreement.


 



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(b)           This
Agreement shall automatically renew for successive terms of one (1) year each (each, a “Renewal Term”), unless
the Trust or BNY Mellon gives written notice to the other party of its intent not to renew and such notice is received by the
other party not less than ninety (90) days prior to the expiration of the Initial Term or the then-current Renewal Term (a “Non-Renewal
Notice”). In the event a party provides a Non-Renewal Notice, this Agreement shall terminate at 11:59 PM (Eastern Time
Zone) on the last day of the Initial Term or Renewal Term, as applicable.


 


(c)           If
a party materially breaches this Agreement (a “Defaulting Party”) the other party (the “Non-Defaulting
Party”) may give written notice thereof to the Defaulting Party (“Breach Notice”), and if such material
breach shall not have been remedied within thirty (30) days after the Breach Notice is given, then the Non Defaulting Party may
terminate this Agreement by giving written notice of termination to the Defaulting Party (“Breach Termination Notice”),
in which case this Agreement shall terminate as of 11:59 PM (Eastern Time Zone) on the thirtieth (30th) day following
the date the Breach Termination Notice is given, or such later date as may be specified in the Breach Termination Notice (but
not later than the last day of the Initial Term or then-current Renewal Term, as appropriate). In all cases, termination by the
Non-Defaulting Party shall not constitute a waiver by the Non-Defaulting Party of any other rights it might have under this Agreement
or otherwise against the Defaulting Party.


 



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(d)           Notwithstanding
any other provision of this Agreement, either party may in its sole discretion terminate this Agreement immediately by sending
notice thereof to the other party upon the happening of any of the following: (i) a party commences as debtor any case or proceeding
under any bankruptcy, insolvency or similar law, or there is commenced against such party any such case or proceeding; (ii) a
party commences as debtor any case or proceeding seeking the appointment of a receiver, conservator, trustee, custodian or similar
official for such party or any substantial part of its property or there is commenced against such party any such case or proceeding;
(iii) a party makes a general assignment for the benefit of creditors; or (iv) a party admits in any recorded medium, written,
electronic or otherwise, its inability to pay its debts as they come due. A termination right may be exercised under this Section
11(d) at any time after the occurrence of any of the foregoing events notwithstanding that such event may cease to be continuing
prior to such exercise, and any delay in exercising this right shall not be construed as a waiver or other extinguishment of that
right. Any exercise by a party of its termination right under this Section 11(d) shall be without any prejudice to any other remedies
or rights available to such party and shall not be subject to any fee or penalty, whether monetary or equitable. Notwithstanding
the provisions of Section 18, notice of termination under this Section 11(d) shall be considered given and effective when given,
not when received.


  





13.           Amendment.


 


This
Agreement may not be amended, changed or modified in any manner except by a written agreement executed by BNY Mellon and the Trust.


 


14.           Assignment;
Subcontracting.


 


(a)           This
Agreement shall extend to and shall be binding upon the parties hereto, and their respective successors and assigns; provided,
however, that this Agreement shall not be assignable or delegable by either party without the written consent of the other party.


 



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(b)              
Notwithstanding the foregoing: (i) BNY Mellon may assign or transfer this Agreement to any BNY Mellon Affiliate or transfer
this Agreement in connection with a sale of a majority or more of its assets, equity interests or voting control, provided that
BNY Mellon gives the Trust thirty (30) days’ prior written notice of such assignment or transfer and such assignment or
transfer does not impair the provision of services under this Agreement in any material respect, and the assignee or transferee
agrees to be bound by all terms of this Agreement in place of BNY Mellon; (ii) BNY Mellon may subcontract with, hire, engage or
otherwise outsource to any BNY Mellon Affiliate with respect to the performance of any one or more of the functions, services,
duties or obligations of BNY Mellon under this Agreement but any such subcontracting, hiring, engaging or outsourcing shall not
relieve BNY Mellon of any of its liabilities hereunder; (iii) BNY Mellon may subcontract with, hire, engage or otherwise outsource
to an unaffiliated third party with respect to the performance of any one or more of the functions, services, duties or obligations
of BNY Mellon under this Agreement but any such subcontracting, hiring, engaging or outsourcing shall (A) require the prior written
consent of the Trust, (B) limit BNY Mellon’s liability such that BNY Mellon shall only be liable for failure to reasonably
select such unaffiliated third party, and BNY Mellon shall have no liability for any acts or omissions to act of such unaffiliated
third party, and (C) such unaffiliated third party must agree to be liable to the Trust for any loss or expense arising out of,
or in connection with, their gross negligence, bad faith or willful misconduct; and (iv) BNY Mellon, in the course of providing
certain additional services requested by the Trust, including but not limited to, Typesetting services (“Vendor Eligible
Services”) as further described in Schedule I, may in its sole discretion, enter into an agreement or agreements with
a financial printer, or electronic services provider (“Vendor”) to provide BNY Mellon with the ability to generate
certain reports or provide certain functionality. BNY Mellon shall not be obligated to perform any of the Vendor Eligible Services
unless an agreement between BNY Mellon and the Vendor for the provision of such services is then currently in effect, and shall
only be liable for the failure to reasonably select the Vendor. Upon request, BNY Mellon will disclose the identity of the Vendor
and the status of the contractual relationship, and the Trust is free to attempt to contract directly with the Vendor for the
provision of the Vendor Eligible Services.


 



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(c)           As
compensation for the Vendor Eligible Services rendered by BNY Mellon pursuant to this Agreement, the Trust will pay to BNY Mellon
such fees as may be agreed to in writing by the Trust and BNY Mellon. In turn, BNY Mellon will be responsible for paying the Vendor’s
fees. For the avoidance of doubt, BNY Mellon anticipates that the fees it charges hereunder will be more than the fees charged
to it by the Vendor, and BNY Mellon will retain the difference between the amount paid to BNY Mellon hereunder and the fees BNY
Mellon pays to the Vendor as compensation for the additional services provided by BNY Mellon in the course of making the Vendor
Eligible Services available to the Trust.


 


15.           Governing
Law; Consent to Jurisdiction.


 


This
Agreement shall be construed in accordance with the laws of the State of New York, without regard to conflict of laws principles
thereof. The Trust hereby consents to the jurisdiction of a state or federal court situated in New York City, New York in connection
with any dispute arising hereunder, and waives to the fullest extent permitted by law its right to a trial by jury. To the extent
that in any jurisdiction the Trust may now or hereafter be entitled to claim, for itself or its assets, immunity from suit, execution,
attachment (before or after judgment) or other legal process, the Trust irrevocably agrees not to claim, and it hereby waives,
such immunity.


 


16.           Severability.


 


In
case any provision in or obligation under this Agreement shall be invalid, illegal or unenforceable in any jurisdiction, the validity,
legality and enforceability of the remaining provisions or obligations shall not in any way be affected or impaired thereby, and
if any provision is inapplicable to any person or circumstances, it shall nevertheless remain applicable to all other persons
and circumstances.


 



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17.           No
Waiver.


 


Each
and every right granted to either party hereunder or under any other document delivered hereunder or in connection herewith, or
allowed it by law or equity, shall be cumulative and may be exercised from time to time. No failure on the part of either party
to exercise, and no delay in exercising, any right will operate as a waiver thereof, nor will any single or partial exercise by
such party of any right preclude any other or future exercise thereof or the exercise of any other right.


 


18.           Notices.


 


All
notices, requests, consents and other communications pursuant to this Agreement in writing shall be sent as follows:


 


if
to the Trust, at


 


Wilshire
wShares Enhanced Gold Trust

c/o Wilshire Phoenix Funds LLC

2 Park Avenue, 20th Floor

New York, New York 10016

Attention: Will Cai

Email: funds@wilshirephoenix.com


 


if
to BNY Mellon, at


 


The
Bank of New York Mellon

240 Greenwich Street

New York, NY 10286

Attention: ETF Operations


 


with
a copy to:


 


The
Bank of New York Mellon

240 Greenwich Street

New York, New York 10286

Attention: Legal Dept. – Asset Servicing


 


or
at such other place as may from time to time be designated in writing. Notices hereunder shall be effective upon receipt.


 



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19.           Counterparts.


 


This
Agreement may be executed in any number of counterparts, each of which shall be deemed to be an original; but such counterparts
together shall constitute only one instrument.


 


20.           Reserved.


 


21.           Confidentiality.


 


(a)           Each
party shall keep confidential any information relating to the other party’s business (including, without limitation, the
business of the Sponsor) (“Confidential Information”). Confidential Information shall include this Agreement
and (a) any data or information that is competitively sensitive material, and not generally known to the public, including, but
not limited to, information about product plans, marketing strategies, finances, operations, customer relationships, customer
profiles, customer lists, sales estimates, business plans, and internal performance results relating to the past, present or future
business activities of the Trust or BNY Mellon and their respective subsidiaries and affiliated companies; (b) any scientific
or technical information, design, process, procedure, formula, index methodology, or improvement that is commercially valuable
and secret in the sense that its confidentiality affords the Trust or BNY Mellon a competitive advantage over its competitors;
(c) all confidential or proprietary concepts, documentation, reports, data, specifications, computer software, source code, object
code, flow charts, databases, inventions, know-how, and trade secrets, whether or not patentable or copyrightable; and (d) anything
designated as confidential. Notwithstanding the foregoing, information shall not be Confidential Information and shall not be
subject to such confidentiality obligations if it: (a) is already known to the receiving party at the time it is obtained; (b)
is or becomes publicly known or available through no wrongful act of the receiving party; (c) is rightfully received from a third
party who, to the best of the receiving party’s knowledge, is not under a duty of confidentiality; (d) is released by the
protected party to a third party without restriction; (e) is requested or required to be disclosed by the receiving party pursuant
to a court order, subpoena, governmental or regulatory agency request or law or regulation, provided, however, the party making
such required disclosure shall first notify the other party (to the extent permissible) and shall, if practicable, afford the
other party a reasonable opportunity to seek confidential treatment if it wishes to do so; (f) is relevant to the defense of any
claim or cause of action asserted against the receiving party; (g) is Trust information provided by BNY Mellon in connection with
an independent third party compliance or other review; (h) is released in connection with the provision of services under this
Agreement; or (i) has been or is independently developed or obtained by the receiving party. The provisions of this Section 20
shall survive termination of this Agreement for a period of one (1) year after such termination.


 



    - 24 - 


     


    

 





(b)           The
Bank of New York Mellon Corporation is a global financial organization that provides services to clients through its affiliates
and subsidiaries in multiple jurisdictions (the “BNY Mellon Group”). The BNY Mellon Group may centralize functions
including audit, accounting, risk, legal, compliance, sales, administration, product communication, relationship management, storage,
compilation and analysis of customer-related data, and other functions (the “Centralized Functions”) in one
or more affiliates, subsidiaries and third-party service providers. Solely in connection with the Centralized Functions, (i) the
Trust consents to the disclosure of and authorizes BNY Mellon to disclose information regarding the Trust (“Customer-Related
Data”) to the BNY Mellon Group and to its third-party service providers who are subject to confidentiality obligations
with respect to such information and (ii) BNY Mellon may store the names and business contact information of the Trust’s
employees and representatives on the systems or in the records of the BNY Mellon Group or its service providers. The BNY Mellon
Group may aggregate Customer-Related Data with other data collected and/or calculated by the BNY Mellon Group, and notwithstanding
anything in this Agreement to the contrary the BNY Mellon Group will own all such aggregated data, provided that the BNY Mellon
Group shall not distribute the aggregated data in a format that identifies Customer-Related Data with a particular customer. The
Trust confirms that it is authorized to consent to the foregoing.


 






    - 25 - 


     


    

 


22.           Non-Solicitation.


 


During
the term of this Agreement and for one (1) year thereafter, the Trust shall not (with the exceptions noted in the immediately
succeeding sentence) knowingly solicit or recruit for employment or hire any of BNY Mellon’s employees, and the Trust shall
cause the Trust’s sponsor and any affiliates of the Trust to not (with the exceptions noted in the immediately succeeding
sentence) knowingly solicit or recruit for employment or hire any of BNY Mellon’s employees. To “knowingly”
solicit, recruit or hire within the meaning of this provision does not include, and therefore does not prohibit, solicitation,
recruitment or hiring of a BNY Mellon employee by the Trust, the Trust’s sponsor or an affiliate of the Trust if the BNY
Mellon employee was identified by such entity solely as a result of the BNY Mellon employee’s response to a general advertisement
by such entity in a publication of trade or industry interest or other similar general solicitation by such entity.


 


23.           
Liability of Sponsor. It is expressly understood and agreed by the parties that:


 


(a)           this
Agreement is executed and delivered on behalf of the Trust by the Sponsor, not individually or personally, but solely as the Sponsor
in the exercise of the powers and authority conferred and vested in it;


 


(b)           the
representations, covenants, undertakings and agreements herein made by the Trust are made and intended not as personal representations,
undertakings and agreements by the Sponsor but are made and intended for the purpose of binding only the Trust;


 



    - 26 - 


     


    

 





(c)           nothing herein contained shall be construed as creating any liability on the Sponsor, individually or personally, to perform
any covenant of the Trust either expressed or implied contained herein, all such liability, if any, being expressly waived by
the parties hereto and by any person claiming by, through or under the parties hereto; and


 


(d)           under no circumstances shall the Sponsor be personally liable for the payment of any the Trust’s indebtedness or
expenses or be liable for the breach or failure of any obligation, duty, representation, warranty or covenant made or undertaken
by you under this Agreement or any other related document.


 


[Signature
page follows.]


 




    - 27 - 


     


    

 


IN
WITNESS WHEREOF, the parties hereto have caused the foregoing instrument to be executed by their duly authorized officers and
their seals to be hereunto affixed, all as of the latest date set forth below.


 


	 	WILSHIRE wSHARES ENHANCED
    GOLD TRUST
	 	 
	 	By: Wilshire Phoenix
    Funds LLC, not in its individual capacity but solely as Sponsor
	 	 
	 	By:	/s/
    William Herrmann
	 	Name: 	William Herrmann
	 	Title: 	Managing Partner
	 	Date: 	11/25/2020
	 	 
	 	 
	 	THE BANK OF NEW YORK
    MELLON
	 	 
	 	By:	/s/
    Elizabeth Stubenrauch
	 	Name: 	Elizabeth Stubenrauch
	 	Title: 	Relationship Manager
	 	Date: 	12/8/2020





 






    - 28 - 


     


    

 


 


EXHIBIT
A


 


I,
William Herrmann, of Wilshire wShares Enhanced Gold Trust, a Delaware Trust (the “Trust”), do hereby certify
that:


 


The
following individuals serve in the following positions with the Trust, and each has been duly elected or appointed to each such
position and qualified therefor in conformity with the Trust’s Organizational Documents, and the signatures set forth opposite
their respective names are their true and correct signatures. Each such person is designated as an Authorized Person under the
Fund Administration and Accounting Agreement, dated as of November 25, 2020, between the Trust and The Bank of New York Mellon.


 


	Name	 	Position	 	Signature
	 	 	 	 	 
	William
    Herrmann	 	Member	 	/s/
    William Herrmann
	 	 	 	 	 
	Will
    Cai	 	Member	 	/s/
    Will Cai
	 	 	 	 	 
	Alexander
    Chang	 	Member	 	/s/
    Alexander Chang



 



     


     


    

 


SCHEDULE
I


 


Schedule
of Services


 


All
services provided in this Schedule of Services are subject to the review and approval of the Trust and accountants of the Trust,
as may be applicable. The services included on this Schedule of Services may be provided by BNY Mellon or a BNY Mellon Affiliate,
collectively referred to herein as “BNY Mellon”.


 


VALUATION
AND COMPUTATION ACCOUNTING SERVICES


 


		●	BNY
                                         Mellon shall provide the following valuation and computation accounting services for
                                         the Trust:






		●	Journalize
                                         investment, capital share and income and expense activities;






		●	Maintain
                                         individual ledgers for investment securities and other assets;






		●	Maintain
                                         historical tax lots for each security;






		●	Reconcile
                                         cash and investment balances of the Trust with the Trust’s custodian and provide
                                         the Sponsor, as applicable, with the beginning cash balance available for investment
                                         purposes upon request;






		●	Calculate
                                         various contractual expenses;






		●	Calculate
                                         capital gains and losses;






		●	Calculate
                                         daily distribution rate per share;






		●	Determine
                                         net income;






		●	Obtain
                                         market quotes and currency exchange rates from pricing services approved by the Sponsor,
                                         or if such quotes are unavailable, then obtain such prices from the Sponsor, and in either
                                         case, calculate the market value of the Trust’s investments in accordance with
                                         the Trust’s valuation policies or guidelines; provided, however, that BNY Mellon
                                         shall not under any circumstances be under a duty to independently price or value any
                                         of the Trust’s investments itself or to confirm or validate any information or
                                         valuation provided by the Sponsor or any other pricing source, nor shall BNY Mellon have
                                         any liability relating to inaccuracies or otherwise with respect to such information
                                         or valuations;






		●	Compute
                                         Net Asset Value in accordance with the Trust’s Offering Materials and valuation
                                         policy and procedures;






		●	Such
                                         Net Asset Value reports and statements shall be provided to the Trust and to Authorized
                                         Participants on days when the exchange listing the Trust is operating, in each case by
                                         such means as BNY Mellon and the Trust may agree upon from time to time.






		●	Transmit
                                         or make available a copy of the daily portfolio valuation to the Sponsor;






		●	Publish
                                         basket to NSCC on for each day on which trading occurs on the NYSE, if needed;






		●	Compute
                                         yields and portfolio average dollar-weighted maturity as applicable; and






		●	Compute
                                         portfolio turnover rate for inclusion in the annual and semi-annual shareholder reports.



 



    - 3 -


     


    

 


 


FINANCIAL
REPORTING


 


BNY
Mellon shall provide the following financial reporting services for the Trust:




 





Prepare,
circulate and maintain the Trust’s financial reporting production calendar.


 


Prepare,
Review and File Quarterly Reports on Form 10-Q and Annual Reports on Form 10-K in accordance with U.S. GAAP and with deference
to Sponsor preferences in a timely fashion


 


		●	Statements
                                         of Financial Condition






		●	Schedules
                                         of Investments






		●	Statements
                                         of Operations






		●	Statements
                                         of Changes in Shareholders’ Equity






		●	Statements
                                         of Cash Flows






		●	Notes
                                         to Financial Statements






		●	Trust
                                         Combined Statements



 


Review/Prepare
other financial data included in the 10-Qs and 10-Ks.


 


Prepare
Quarterly Reports on Form 10-Q for the Trust for each of the first three fiscal quarters of the Trust, and Annual Report on Form
10-K for the Trust’s fiscal year, or as requested by the sponsor. The preparation of each Form 10-Q and 10-K includes facilitating
delivery of the filing to the printer, coordination of all printer and author edits, the review of printer drafts.


 


Upon
review and approval of each form 10-K and 10-Q by the Sponsor’s Principal Financial Officer (or such person performing such
functions), the Administrator shall coordinate the edgarization and filing, or cause to be edgarized and filed, such reports with
the SEC, including any applicable executive officer certifications or other exhibits to such reports. The Administrator shall
also coordinate with the printer a file that can be uploaded to the Sponsor’s Website.


 


TRUST
ADMINISTRATION SERVICES


 


BNY
Mellon shall provide the following Trust administration services for the Trust:


 


		●	Establish
                                         appropriate expense accruals and compute expense ratios, maintain expense files and coordinate
                                         the payment of Trust approved invoices;






 


		●	Calculate
                                         Trust approved income and per share amounts required for periodic distributions to be
                                         made by the Trust;



 





		●	Calculate
                                         total return information;



 





		●	Coordinate
                                         the Trust’s annual audit (including the services listed above under the heading
                                         “Financial Reporting”); and



 






    - 4 -


     


    

  





		●	If
                                         the chief executive officer or chief financial officer of the Trust is required to provide
                                         a certification as part of the Trust’s Forms 10-Q or 10-K filings pursuant to regulations
                                         promulgated by the SEC under Section 302 of the Sarbanes-Oxley Act of 2002, provide a
                                         sub-certification in support of certain matters set forth in the aforementioned certification.
                                         Such sub-certification is to be in such form and relating to such matters as agreed to
                                         by BNY Mellon in advance. BNY Mellon shall be required to provide the sub-certification
                                         only during the term of the Agreement and only if it receives such cooperation as it
                                         may request to perform its investigations with respect to the sub-certification. For
                                         clarity, the sub-certification is not itself a certification under the Sarbanes-Oxley
                                         Act of 2002 or under any other law, rule or regulation.



 










IRS
CIRCULAR 230 DISCLOSURE:


 


To
ensure compliance with requirements imposed by the Internal Revenue Service, BNY Mellon informs the Trust that any U.S. tax advice
contained in any communication from BNY Mellon to the Trust (including any future communications) is not intended or written to
be used, and cannot be used, for the purpose of (i) avoiding penalties under the Internal Revenue Code or (ii) promoting, marketing
or recommending to another party any transaction or matter addressed herein or therein.


 







 



    - 5 -