Wilshire wShares Enhanced Gold Trust POS EX


Exhibit 10.8


 


Execution Version


 


 








 


TRANSFER AGENCY AND SERVICE
AGREEMENT


 


THIS AGREEMENT is made
as of the 25th day of November, 2020, by and between WILSHIRE wSHARES ENHANCED GOLD TRUST (the “Trust”)
and THE BANK OF NEW YORK MELLON, a New York corporation authorized to do a banking business having its principal office and place
of business at 240 Greenwich Street, New York, New York 10286 (the “Bank”).


 


WHEREAS, the Trust
will ordinarily issue for purchase and redeem shares of the Trust (the “Shares”) only in aggregations of Shares known
as “Creation Units” (currently 10,000 shares) (each a “Creation Unit”) principally in cash;


 


WHEREAS, The Depository
Trust Company, a limited purpose trust company organized under the laws of the State of New York (“DTC”), or its nominee
(Cede & Co.), will be the registered holder (the “Shareholder”) of all Shares; and WHEREAS, the Trust desires to
appoint the Bank as its transfer agent, and agent in connection with certain other activities, and the Bank desires to accept such
appointment;


 


NOW, THEREFORE, in
consideration of the mutual covenants herein contained, the parties hereto agree as follows:


 


		1.	Terms of Appointment; Duties of the Bank



 


1.1           Subject to the terms and conditions set forth in this Agreement, the Trust hereby employs and appoints the Bank to act as,
and the Bank agrees to act as, its transfer agent for the authorized and issued Shares.


 


1.2           Pursuant to such appointment, the Bank agrees that it will perform the following services:


 


(a)           In accordance with the terms and conditions of this Agreement and Form of Authorized Participant Agreement, a copy of which
is attached hereto as Exhibit A, the Bank shall:


 


(i)             Perform and facilitate the performance of purchases and redemptions of Creation Units;


 


(ii)            Prepare and transmit by means of DTC’s book-entry system payments for distributions on or with respect to the Shares
declared by the Trust on behalf of the applicable Trust;


 


(iii)           Maintain the record of the name and address of the Shareholder and the number of Shares issued by the Trust and held by
the Shareholder;


 


(iv)           Record the issuance of Shares of the Trust and maintain a record of the total number of Shares of the Trust which are outstanding,
and, based upon data provided to it by the Trust, the total number of authorized Shares. The Bank shall have no obligation, when
recording the issuance of Shares, to monitor the issuance of such Shares or to take cognizance of any laws relating to the issue
or sale of such Shares, which functions shall be the sole responsibility of the Trust;


 



     


     


    

 





(v)            Prepare and transmit to the Trust and the Trust’s administrator and to any applicable securities exchange (as specified
to the Bank by the Trust or its administrator) information with respect to purchases and redemptions of Shares;


 


(vi)           On days that the Trust may accept orders for purchases or redemptions, calculate and transmit to the Trust’s marketing
agent (“Marketing Agent”) and the Trust’s administrator the number of outstanding Shares;


 


(vii)          On days that the Trust may accept orders for purchases or redemptions (pursuant to the Participant Agreement), transmit
to the Bank, the Trust and DTC the amount of Shares purchased on such day;


 


(viii)        
Confirm to DTC the number of Shares issued to the Shareholder, as DTC may reasonably request;


 


(ix)           Prepare and deliver other reports, information and documents to DTC as DTC may reasonably request;


 


(x)            Extend the voting rights to the Shareholder for extension by DTC to DTC participants and the beneficial owners of Shares
in accordance with policies and procedures of DTC for book-entry only securities;


 


(xi)           Distribute or maintain, as directed by the Trust, amounts related to purchases and redemptions of Creation Units and dividends
and distributions;


 


(xii)          Maintain those books and records of the Trust specified by the Trust in Schedule A attached hereto;


 


(xiii)        
Prepare a monthly report of all purchases and redemptions of Shares during such month on a gross transaction basis, and
identify on a daily basis the net number of Shares either redeemed or purchased on such Business Day (for purposes of this Agreement,
the term “Business Day” shall mean any day other than (i) a Saturday or a Sunday on which the New York Stock Exchange
is scheduled to be open for business, and, in respect of any action to be taken by the Trustee of the Trust, on which the Trustee
is scheduled to be open for business, or (ii) for purposes of the creation and redemption process, a day on which banking institutions
in the United Kingdom are authorized or permitted by law to close or a day on which the London gold market is closed; or (iii) a
day on which banking institutions in the United Kingdom are authorized or permitted to be open for less than a full day or the
London gold market is open for trading for less than a full day and transaction procedures required to be executed or completed
before the close of the day may not be so executed or completed;


 


(xiv)        
Receive from the Marketing Agent or from its agent purchase orders from Authorized Participants (as defined in the Authorized
Participant Agreement) for Creation Units received in good form and accepted by or on behalf of the Trust by the Marketing Agent,
transmit appropriate trade instructions to the National Securities Clearance Corporation, if applicable, and pursuant to such orders
issue the appropriate number of Shares of the Trust and hold such Shares in the account of the Shareholder for the Trust;


 



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(xv)          
Receive from the Authorized Participants redemption requests, deliver the appropriate documentation thereof to The Bank
of New York Mellon as custodian for the Trust, the Marketing Agent and/or other entities designated by the Trust, generate and
transmit or cause to be generated and transmitted confirmation of receipt of such redemption requests to the Authorized Participants
submitting the same; transmit appropriate trade instructions to the National Securities Clearing Corporation, if applicable, and
redeem the appropriate number of Shares held in the account of the Shareholder; and


 


(xvi)        
Confirm the name, U.S taxpayer identification number and principal place of business of each Authorized Participant.


 


(b)           The Bank may execute transactions directly with Authorized Participants to the extent necessary or appropriate to enable
the Bank to carry out any of the duties set forth in items (i) through (xvi) above.


 


(c)           Except as otherwise instructed by the Trust, the Bank shall process all transactions in the Trust in accordance with the
policies and procedures mutually agreed upon between the Trust and the Bank with respect to the proper net asset value to be applied
to purchases received in good order by the Bank or from an Authorized Participant before any cut-offs established by the Trust,
and such other matters set forth in items (i) through (xvi) above as these policies and procedures are intended to address.


 


(d)           The Bank may maintain and manage, as agent for the Trust, such accounts as the Bank shall deem necessary for the performance
of its duties under this Agreement, including, but not limited to, the processing of Creation Unit purchases and redemptions and
the payment of dividends and distributions. The Bank may maintain such accounts at financial institutions deemed appropriate by
the Bank in accordance with applicable law.


 


(e)           In addition to the services set forth in the above sub-section 1.2(a), the Bank shall: perform the customary services of
a transfer agent and dividend disbursing agent including, but not limited to, maintaining the account of the Shareholder, maintaining
the items set forth on Schedule A attached hereto, and performing such services identified in each Authorized Participant Agreement.


 


(f)            The following shall be delivered to DTC participants as identified by DTC as the Shareholder for book-entry only securities:


 


(i)             Periodic reports of the Trust required by the Securities Exchange Act of 1934, as amended, and rules thereunder;


 


(ii)            Trust proxies, proxy statements and other proxy soliciting materials;


 


(iii)           Trust prospectus and amendments and supplements thereto, including stickers;


 



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(iv)           Other communications as the Trust may from time to time identify as required by law or as the Trust may reasonably request;
and


 


(v)            The Bank shall provide additional services, if any, as may be agreed upon in writing by the Trust and the Bank.


 


		2.	Fees and Expenses



 


2.1           The Bank shall receive from the Trust such compensation for the Transfer Agent’s services provided pursuant to this
Agreement as may be agreed to from time to time in a written fee schedule approved by the parties. The fees are accrued daily and
billed monthly and shall, subject to Section 2.3 below, be due and payable upon receipt of the invoice. Upon the termination of
this Agreement before the end of any month, the fee for the part of the month before such termination shall be prorated according
to the proportion which such part bears to the full monthly period and shall be payable upon the date of termination of this Agreement.


 


2.2           In addition to the fee paid under Section 2.1 above, the Trust agrees to reimburse the Bank for reasonable and documented
out-of-pocket expenses, including but not limited to confirmation production, postage, forms, telephone, microfilm, microfiche,
tabulating proxies, records storage, or advances incurred by the Bank for the items set out in the fee schedule or relating to
dividend distributions and reports (whereas all expenses related to creations and redemptions of Trust securities shall be borne
by the relevant Authorized Participant in such creations and redemptions). In addition, any other expenses incurred by the Bank
at the request or with the consent of the Trust, will be reimbursed by the Trust. Notwithstanding the foregoing, in no event shall
the Trust be responsible for the reimbursement of any expenses that are incurred by the Bank as a result of the Bank’s negligence,
willful misconduct or breach of any of its representations.


 


2.3           The Trust agrees to pay the fees and reimbursable expenses set forth in Sections 2.1 and 2.2 above within thirty (30) days
following the receipt of the respective billing notice accompanied by supporting documentation, as appropriate. Postage for mailing
of dividends, proxies, Trust reports and other mailings to all shareholder accounts shall be advanced to the Bank by the Trust
at least seven (7) days prior to the mailing date of such materials.


 


		3.	Representations and Warranties of the Bank



 


3.1           The Bank represents and warrants to the Trust that:


 


(a)           It is a banking company duly organized and existing and in good standing under the laws of the State of New York;


 


(b)           It is duly qualified to carry on its business in the State of New York;


 


(c)           It is empowered under applicable laws and by its Charter and By-Laws to act as transfer agent and dividend disbursing agent
and to enter into, and perform its obligations under, this Agreement;


 


(d)           All requisite corporate proceedings have been taken to authorize it to enter into and perform this Agreement;


 


(e)           It has and will continue to have access to the necessary facilities, equipment and personnel to perform its duties and obligations
under this Agreement;


 



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(f)            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;


 


(g)           It possesses, and will maintain, all licenses, registrations, authorizations and approvals required by any governmental
agency, regulatory authority or other party necessary for it to engage in the provision of the services contemplated by this Agreement;
and


 


(h)           It has duly executed and delivered this Agreement and this Agreement constitutes a legal, valid and binding obligation enforceable
against it 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 and general principles of equity (whether considered
in a proceeding in equity or law).


 


		4.	Representations and Warranties of the Trust



 


4.1           The Trust represents and warrants to the Bank that:


 


(a)           It is duly organized and existing and in good standing under the laws of Delaware;


 


(b)           It is empowered under applicable laws and by its Declaration of Trust (“Declaration of Trust”) to enter into
and perform this Agreement;


 


(c)           A registration statement under the Securities Act of 1933, as amended, on behalf of the Trust has become effective (or will
become effective before services are to be provided under this Agreement), will remain effective, and appropriate state securities
law filings will have been made and will continue to be made, with respect to all Shares of the Trust being offered for sale; and


 


(d)           It has duly executed and delivered this Agreement and this Agreement constitutes a legal, valid and binding obligation enforceable
against it 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 and general principles of equity (whether considered
in a proceeding in equity or law).


 


		5.	Indemnification



 


5.1           The Bank shall not be responsible for, and the Trust shall indemnify and hold the Bank and its directors, officers, employees
and agents harmless from and against, any and all losses, damages, costs, charges, counsel fees, including, without limitation,
those incurred by the Bank in a successful defense of any claims by the Trust, payments, expenses and liability (“Losses”)
which may be sustained or incurred by or which may be asserted against the Bank in connection with or relating to this Agreement
or the Bank’s actions or omissions with respect to this Agreement, or as a result of acting upon any instructions reasonably
believed by the Bank to have been duly authorized by the Trust or upon reasonable reliance of information or records given or made
by the Trust; except for any Losses for which the Bank has accepted liability pursuant to Article 6 of this Agreement.


 



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5.2           This indemnification provision shall apply to actions taken or omissions pursuant to this Agreement or an Authorized Participant
Agreement.


 


		6.	Standard of Care and Limitation of Liability



 


6.1           The Bank shall have no responsibility and shall not be liable for any Losses, except that the Bank shall be liable to the
Trust for direct money damages caused by its own gross negligence or willful misconduct or that of its employees, or its breach
of any of its representations. The parties agree that any encoding or payment processing errors shall be governed by this standard
of care, and not Section 4-209 of the Uniform Commercial Code which shall be superseded by this Article. In no event shall the
Bank or the Trust be liable for special, indirect or consequential damages, regardless of the form of action and even if the same
were foreseeable. For purposes of this Agreement, none of the following shall be or be deemed a breach of the Bank’s standard
or care:


 


(a)           The conclusive reliance on or use by the Bank or its agents or subcontractors of information, records, documents or services
which (i) are received by the Bank or its agents or subcontractors, and (ii) have been prepared, maintained or performed by the
Trust or any other person or firm on behalf of the Trust including but not limited to any previous transfer agent or registrar;


 


(b)           The conclusive reliance on, or the carrying out by the Bank or its agents or subcontractors of, any instructions or requests
of the Trust or instructions or requests on behalf of the Trust; or


 


(c)           The offer or sale of Shares by or for the Trust in violation of any requirement under the federal securities laws or regulations,
or the securities laws or regulations of any state that such Shares be registered in such state, or any violation of any stop order
or other determination or ruling by any federal agency, or by any state with respect to the offer or sale of Shares in such state.


 


		7.	Concerning the Bank



 


7.1           The Bank may employ agents or attorneys-in-fact which are not affiliates of the Bank with the prior written consent of the
Trust, and shall not be liable for any loss or expense arising out of, or in connection with, the actions or omissions to act of
such agents or attorneys-in-fact, provided that the Bank acts in good faith and with reasonable care in the selection and retention
of such agents or attorneys-in-fact.


 


7.2           The Bank may, without the prior consent of the Trust, enter into subcontracts, agreements and understandings with any Bank
affiliate, whenever and on such terms and conditions as it deems necessary or appropriate to perform its services hereunder. No
such subcontract, agreement or understanding shall discharge Bank from its obligations hereunder.


 


7.3           The Bank shall be entitled to conclusively rely upon any written or oral instruction actually received by the Bank and reasonably
believed by the Bank to be duly authorized and delivered. The Trust agrees to forward to the Bank written instructions confirming
oral instructions by the close of business of the same day that such oral instructions are given to the Bank. The Trust agrees
that the fact that such confirming written instructions are not received or that contrary written instructions are received by
the Bank shall in no way affect the validity or enforceability of transactions authorized by such oral instructions and effected
by the Bank. If the Trust elects to transmit written instructions through an on-line communication system offered by the Bank,
Trust’s use thereof shall be subject to the terms and conditions contained in a separate written agreement between the parties.


 



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7.4           The Bank shall establish and maintain a disaster recovery plan and back-up system satisfying the requirements of its regulators
(the “Disaster Recovery Plan and Back-Up System”). The Bank shall not be responsible or liable for any failure or delay
in the performance of its obligations under this Agreement arising out of or caused, directly or indirectly, by circumstances beyond
its control which are not a result of its gross negligence or willful misconduct, including without limitation, acts of God; earthquakes;
fires; floods; wars; civil or military disturbances; sabotage; epidemics; riots; interruption, loss or malfunctions of transportation,
computer (hardware or software) or communication services; labor disputes; acts of civil or military authority; governmental actions;
or inability to obtain labor, material, equipment or transportation, provided that the Bank has established and is maintaining
the Disaster Recovery Plan and Back-Up System, or if not, that such delay or failure would have occurred even if the Bank had established
and was maintaining the Disaster Recovery Plan and Back-Up System. Upon the occurrence of any such delay or failure the Bank shall
use commercially reasonable best efforts to resume performance as soon as practicable under the circumstances.


 


7.5           The Bank shall have no duties or responsibilities whatsoever except such duties and responsibilities as are specifically
set forth in this Agreement and the Authorized Participant Agreements, and no covenant or obligation shall be implied against the
Bank in connection with this Agreement, except as set forth in this Agreement and the Authorized Participant Agreements.


 


7.6           At any time the Bank may apply to an officer of the Trust, but is not obligated to do so, for written instructions with
respect to any matter arising in connection with the Bank’s duties and obligations under this Agreement, and the Bank, its
agents, and subcontractors shall not be liable for any action taken or omitted to be taken in good faith in accordance with such
instructions. Such application by the Bank for instructions from an officer of the Trust may, at the option of the Bank, set forth
in writing any action proposed to be taken or omitted to be taken by the Bank with respect to its duties or obligations under this
Agreement and the date on and/or after which such action shall be taken, and the Bank 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, the Bank has received written or oral instructions in response to such application
specifying the action to be taken or omitted. In connection with the foregoing, the Bank may consult with legal counsel of its
own choosing, but is not obligated to do so, and advise the Trust if any instructions provided by the Trust at the request of the
Bank pursuant to this Article or otherwise would, to the Bank’s knowledge, cause the Bank to take any action or omit to take
any action contrary to any law, rule, regulation or commercially reasonable practice for similarly situated service providers.
In the event a situation or circumstance arises whereby the Bank adopts a course of conduct in reliance upon written legal advice
it has received (which need not be a formal opinion of counsel) and the course of conduct is not identical to the course of conduct
contained in the instructions received from the Trust, the Bank may rely upon and follow the written legal advice without liability
hereunder provided it otherwise acts in compliance with this Agreement and notifies the Trust of its determination.


 


7.7           The Bank, its agents and subcontractors may act upon any paper or document, reasonably believed to be genuine and to have
been signed by the proper person or persons, or upon any instruction, information, data, records or documents provided to the Bank
or its agents or subcontractors by or on behalf of the Trust by machine readable input, telex, CRT data entry or other similar
means authorized by the Trust, and shall not be held to have notice of any change of authority of any person, until receipt of
written notice thereof from the Trust.


 



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7.8           The Bank shall retain title to and ownership of any and all data bases, computer programs, screen formats, report formats,
interactive design techniques, derivative works, inventions, discoveries, patentable or copyrightable matters, concepts, expertise,
patents, copyrights, trade secrets, and other related legal rights utilized by the Bank in connection with the services provided
by the Bank hereunder. Notwithstanding the foregoing, the parties hereto acknowledge that (i) the Trust shall retain all ownership
rights in Trust data residing on the Bank’s electronic system, and (ii) Wilshire Phoenix Funds LLC, the Sponsor of the Trust
(the “Sponsor”), shall retain all ownership in any formulas and methodologies used in connection with the financial
index created by the Sponsor for use by the Trust.


 


7.9           Notwithstanding any provisions of this Agreement to the contrary, the Bank shall be under no duty or obligation to inquire
into, and shall not be liable for:


 


(a)           The legality of the issue, sale or transfer of any Shares, the sufficiency of the amount to be received in connection therewith,
or the authority of the Trust to request such issuance, sale or transfer;


 


(b)           The legality of the purchase of any Shares, the sufficiency of the amount to be paid in connection therewith, or the authority
of the Trust to request such purchase;


 


(c)           The legality of the declaration of any dividend by the Trust, or the legality of the issue of any Shares in payment of any
stock dividend; or


 


(d)           The legality of any recapitalization or readjustment of the Shares.


 


		8.	Providing of Documents by the Trust and Transfers of Shares



 


8.1           The Trust shall promptly furnish to the Bank with a copy of its Declaration of Trust and all amendments thereto.


 


8.2           In the event that DTC ceases to be the Shareholder, the Bank shall re-register the Shares in the name of the successor to
DTC as Shareholder upon receipt by the Bank of such documentation and assurances as it may reasonably require.


 


8.3           The Bank shall have no responsibility whatsoever with respect to of any beneficial interest in any of the Shares owned by
the Shareholder.


 


8.4           The Trust shall deliver to the Bank the following documents on or before the effective date of any increase, decrease or
other change in the total number of Shares authorized to be issued:


 


(a)           A certified copy of the amendment to the Trust’s Declaration of Trust with respect to such increase, decrease or change;
and


 


(b)           An opinion of counsel for the Trust, in a form reasonably satisfactory to the Bank, with respect to (i) the validity of
the Shares, the obtaining of all necessary governmental consents, whether such Shares are fully paid and non-assessable and the
status of such Shares under the Securities Act of 1933, as amended, and any other applicable federal law or regulations (i.e.,
if subject to registration, that they have been registered and that the Registration Statement has become effective or, if exempt,
the specific grounds therefor), and (ii) the due and proper listing of the Shares on all applicable securities exchanges.


 



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8.5           Prior to the issuance of any additional Shares and prior to any reduction in the number of Shares outstanding, the Trust
shall deliver to the Bank:


 


(a)           A certified copy of the order or consent of each governmental or regulatory authority required by law as a prerequisite
to the issuance or reduction of such Shares, as the case may be, and an opinion of counsel for the Trust that no other order or
consent is required; and


 


(b)           An opinion of counsel for the Trust, in a form satisfactory to the Bank, with respect to (i) the validity of the Shares,
the obtaining of all necessary governmental consents, whether such Shares are fully paid and non-assessable and the status of such
Shares under the Securities Act of 1933, as amended, and any other applicable federal law or regulations (i.e., if subject
to registration, that they have been registered and that the Registration Statement has become effective or, if exempt, the specific
grounds therefore), and (ii) the due and proper listing of the Shares on all applicable securities exchanges.


 


8.6           The Bank and the Trust agree that all books, records, confidential, non-public, or proprietary information and data pertaining
to the business of the other party which are exchanged or received pursuant to the negotiation or the carrying out of this Agreement
(including this Agreement) shall remain confidential, and shall not be voluntarily disclosed to any person other than its auditors,
accountants, regulators, employees, agents, attorneys-in-fact or counsel to the extent necessary to perform its obligations under
this Agreement and to provide the services contemplated by this Agreement, except as may be, or may become requested or required
by law, by regulatory authority, administrative or judicial order or by rule. To the extent the Bank delegates any duties and responsibilities
under this Agreement to an agent or other subcontractor, such agent or subcontractor shall be subject to confidentiality terms
consistent with the terms of this Section 8.6. The foregoing confidentiality obligation shall not apply to any information to the
extent: (i) it is already known to the receiving party at the time it is obtained; (ii) it is or becomes publicly known or available
through no wrongful act of the receiving party: (iii) it is rightfully received from a third party who, to the receiving party’s
knowledge, is not under a duty of confidentiality; (iv) it is released by the protected party to a third party without restriction;
or (v) it has been or is independently developed or obtained by the receiving party without reference to the information provided
by the protected party.


 


8.7           In case of any requests or demands for the inspection of the Shareholder records of the Trust, the Bank will promptly employ
reasonable commercial efforts to notify the Trust and secure instructions from an authorized officer of the Trust as to such inspection.
The Bank reserves the right, however, to exhibit the Shareholder records to any person whenever it is advised by its counsel that
it may be held liable for the failure to exhibit the Shareholder records to such person.


 


		9.	Termination of Agreement



 


9.1             
The term of this Agreement shall be three years commencing upon the date hereof (the “Initial Term”) and shall
automatically renew for additional one-year terms (each a “Subsequent Term”) unless either party provides written notice
of termination at least ninety (90) days prior to the end of the Initial Term or any Subsequent Term or, unless earlier terminated
as provided below:


 


(a)           Either party hereto may terminate this Agreement prior to the expiration of the Initial Term or any Subsequent Term in the
event the other party breaches any material provision of this Agreement, including, without limitation in the case of the Trust,
its obligations under Section 2.1, provided that the non-breaching party gives written notice of such breach to the breaching party
and the breaching party does not cure such violation within thirty (30) days of receipt of such notice.


 



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(b)           Either party hereto may 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 the party any such case or proceeding; (iii) a party makes a general assignment for the
benefit of creditors; or (iv) a party states in any medium, written, electronic or otherwise, any public communication or in any
other public manner its inability to pay debts as they come due. Either party hereto may exercise its termination right under this
Section 9.1(b) 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.


 


9.2           Should the Trust exercise its right to terminate this Agreement, all out-of-pocket expenses associated with the movement
of records and material will be borne by the Trust.


 


9.3           The terms of Article 2 (with respect to fees and expenses incurred prior to termination), Article 5 and Article 6 shall
survive any termination of this Agreement.


 


		10.	Reserved.



 


		11.	Assignment



 


11.1         
Neither this Agreement nor any rights or obligations hereunder may be assigned by either party without the written consent
of the other party; provided, however, either party may assign this Agreement to a party controlling, controlled by or under common
control with it.


 


11.2         
This Agreement shall inure to the benefit of and be binding upon the parties and their respective permitted successors and
assigns.


 


		12.	Severability and Beneficiaries



 


12.1         
In case any provision in or obligation under this Agreement shall be invalid, illegal or unenforceable in any jurisdiction,
the validity, the legality and enforceability of the remaining provisions shall not in any way be affected thereby provided obligation
of the Trust to pay is conditioned upon provision of services.


 


12.2         
This Agreement is solely for the benefit of the Bank and the Trust, and none of any Authorized Participant (as defined in
the Authorized Participant Agreement), the Marketing Agent, any Shareholder or beneficial owner of any Shares shall be or be deemed
a third party beneficiary of this Agreement.


 



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		13.	Amendment 



 


This Agreement may be amended or modified
by a written agreement executed by both parties.


 


		14.	New York Law to Apply



 


This Agreement shall
be construed in accordance with the substantive laws of the State of New York, without regard to conflicts of laws principles thereof.
The Trust and the Bank hereby consent to the jurisdiction of a state or federal court situated in New York City, New York in connection
with any dispute arising hereunder. The Trust hereby irrevocably waives, to the fullest extent permitted by applicable law, any
objection which it may now or hereafter have to the laying of venue of any such proceeding brought in such a court and any claim
that such proceeding brought in such a court has been brought in an inconvenient forum. The Trust and the Bank each hereby irrevocably
waives any and all rights to trial by jury in any legal proceeding arising out of or relating to this Agreement.


 


		15.	Merger of Agreement



 


This Agreement constitutes
the entire agreement between the parties hereto and supersedes any prior agreement with respect to the subject matter hereof whether
oral or written.


 


		16.	Notices



 


All notices and other
communications as required or permitted hereunder shall be in writing and sent by first class mail, postage prepaid, addressed
as follows or to such other address or addresses of which the respective party shall have notified the other.


 


If to the Bank:


 


The Bank of New York Mellon

240 Greenwich Street

New York, New York 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


 


If to the Trust:


 


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


 



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		17.	Information Sharing



 


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 the Bank 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 consistent with the
confidentiality obligations contained in this Agreement with respect to such information and (ii) the Bank 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.


 


		18.	Counterparts



 


This Agreement may
be executed by the parties hereto in any number of counterparts, and all of said counterparts taken together shall be deemed to
constitute one and the same instrument.


 


		19.	Liability of Sponsor



 


19.1         
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;


 


(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.]


 




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IN WITNESS WHEREOF,
the parties hereto have caused this Agreement to be executed in their names and on their behalf by and through their duly authorized
officers, 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





 






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SCHEDULE A


 


Books And Records To Be Maintained
By The Bank


 


Source Documents requesting Creations and Redemptions Correspondence/AP
Inquiries Reconciliations, bank statements, copies of canceled checks, cash proofs Daily/Monthly reconciliation of outstanding
Shares between the Trust and DTC Dividend Records Year-end Statements and Tax Forms


 




    14 


     


    

 


EXHIBIT A


 


Form of Authorized Participant Agreement


 




    15 


     


    

 


EXHIBIT B


 


Terms and Conditions For On-line Communications
System


 






    16