Wilshire wShares Enhanced Gold Trust POS EX


Exhibit 10.10


 





SUBLICENSE AGREEMENT


 


This Sublicense Agreement (this “Agreement”)
is made as of March 5th, 2021, by and between Wilshire wShares Enhanced Gold Trust, a Delaware statutory trust (the
“Trust”) and Wilshire Phoenix Funds LLC, a Delaware limited liability company, in its capacity as sponsor of the Trust
(the “Sponsor”).


 


RECITALS


 


WHEREAS, pursuant to that certain License
Agreement dated February 19th, 2021 (the “License Agreement”) between The Bank of New York Mellon, a New
York banking corporation (the “Licensor”), and the Sponsor attached hereto as Attachment A, the Sponsor obtained a
license from the Licensor related to certain intellectual property of the Licensor for use in connection with the operation of
the Trust (the “Licensor Patent Rights”); and


 


WHEREAS, the Sponsor has the right pursuant
to the License Agreement to sublicense its rights thereunder to the Trust; and


 


WHEREAS, the Trust wishes to have the
right to use the Licensor Patent Rights in connection with its operation as an exchanged traded fund, as described in the Registration
Statement on Form S-1 of the Trust, Registration No. 333-235913, as amended from time to time (the “Registration Statement”);
and


 


WHEREAS, the Sponsor wishes to grant a
sublicense to the Trust for the use of the Licensor Patent Rights;


 


NOW, THEREFORE, the parties agree as follows:


 


1. Certain Definitions.


 


For the purposes of this Agreement, capitalized
terms used and not defined herein shall have the meanings set forth in the License Agreement.


 


2. Grant of Sublicense. Subject
to the terms and conditions of this Agreement, the Sponsor hereby grants to the Trust a sublicense to use the Licensor Patent Rights
in the manner set forth in, and subject to the terms of, the License Agreement.


 


3. Performance of Obligations Under
the License. The Trust will be responsible for performing all of the Sponsor’s obligations under the License Agreement
(other than the payment of any license fees, except to the extent noted below), as such obligations relate to the use of the Licensor
Patent Rights.


 


4. Fees. In the event that the
Sponsor owes license fees to the Licensor pursuant to Section 4 of the License Agreement, the Trust agrees to reimburse the
Sponsor for asset-based fees charged in respect of the Trust’s assets and the Trust’s allocable share of any Minimum
Annual Royalty (as such term is defined in the License Agreement).


 


5. Termination. This Agreement
shall terminate upon the earlier to occur of (a) termination of the License Agreement, or (b) termination of the Trust.
Upon termination of this Agreement, the Trust’s right to use the Licensor Patent Rights pursuant to the License Agreement
shall terminate immediately.


 



     


     


    

 





6. Indemnification.


 


The Trust shall indemnify and hold harmless
the Sponsor, its officers, employees, agents, successors, and assigns against all judgments, damages, costs or losses of any kind
(including reasonable attorneys’ fees and experts’ fees) resulting from any claim, action or proceeding (collectively
“claims”) that arises out of or relates to any breach by the Sponsor of its covenants, other obligations, representations,
or warranties under the License Agreement caused by the actions or inactions of the Trust. The provisions of this section shall
survive termination of this Agreement.


 


7. Assignment. The Trust will not
make, or purport to make, any assignment or other transfer of this Agreement on behalf of the Trust except with the prior written
consent of the Sponsor. The Sponsor may assign its rights and obligations under this Agreement effective upon the giving of written
notice to the Trust.


 


8. Amendments; Waivers. No provision
of this Agreement may be waived, altered, or amended except by written agreement of the parties. A waiver of rights under this
Agreement will not be effective unless it is in writing and signed by an authorized representative of the party that is waiving
the rights.


 


9. Entire Agreement. This Agreement
constitutes the entire agreement between the parties hereto with respect to the subject matter hereof.


 


10. Construction. Headings used
in this Agreement are for convenience only, and shall not affect the construction or interpretation of any of its provisions. Each
of the provisions of this Agreement is severable, and the invalidity or inapplicability of one or more provisions, in whole or
in part, shall not affect any other provision.


 


11. Governing Law; Jury Trial Waiver.
This Agreement will be governed by and construed under the laws of the State of New York, without reference to any choice of law
rules (except that questions affecting the construction and effect of any patent will be determined by the law of the country in
which the patent was granted). Any action brought by either party that arises out of or relates to this Agreement will be filed
only in the state or federal courts located in New York County, New York. Each party irrevocably submits to the jurisdiction of
those courts. FURTHERMORE, EACH PARTY (I) WAIVES ANY OBJECTIONS THAT IT MAY HAVE NOW OR IN THE FUTURE TO THE JURISDICTION OF THOSE
COURTS, (II) WAIVES ANY CLAIM THAT IT MAY HAVE NOW OR IN THE FUTURE THAT LITIGATION BROUGHT IN THOSE COURTS HAS BEEN BROUGHT IN
AN INCONVENIENT FORUM AND (III) WAIVES ANY RIGHT TO A JURY TRIAL.


 


12. Counterparts; Signatures. 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. Any manual signature upon this Agreement that is faxed, scanned or photocopied,
and any electronic signature valid under the Electronic Signatures in Global and National Commerce Act, 15 U.S.C. §7001, et.
seq. shall for all purposes have the same validity, legal effect and admissibility in evidence as an original signature and
the parties hereby waive any objection to the contrary.


 


[THE REMAINDER OF THIS PAGE IS INTENTIONALLY
LEFT BLANK.]


 






     


     


    






 


IN WITNESS WHEREOF, the parties have caused
this Agreement to be executed as of the date first above written, with intent to be bound hereby.


 


	WILSHIRE PHOENIX FUNDS LLC, in its capacity as Sponsor	
        WILSHIRE WSHARES ENHANCED GOLD TRUST  

	 	 
	 	By: WILSHIRE PHOENIX FUNDS LLC, in its capacity as Sponsor of
        the Trust
	 	 
	By:	/s/ William Cai	 	By:	/s/ William Cai
	Name:	William Cai	 	Name:	William Cai
	Title:	Partner	 	Title:	Partner



 


 



     


     


    

 


ATTACHMENT A


 


LICENSE


AGREEMENT


 


THIS
LICENSE AGREEMENT (this “Agreement”) is entered into effective as of the 19th day of February, 2021 (the “Effective
Date”), by and between The Bank of New York Mellon, a New York banking corporation (“Licensor”), and Wilshire Phoenix
Funds LLC, the Sponsor to Wilshire wShares Enhanced Gold Trust, a Delaware statutory trust (“Licensee”).


 


WHEREAS,
Licensor and a gold investment product to be known as the Wilshire wShares Enhanced Gold Trust (the “Gold Trust”) have
entered into a fee letter agreement dated November 25, 2020 (the “Fee Letter Agreement”) regarding the establishment
and maintenance of the Gold Trust.


 


WHEREAS,
in connection with the Gold Trust, Licensee wishes to obtain a license under certain of Licensor’s patent rights, and Licensor
wishes to grant such license subject to the terms and conditions of this Agreement.


 


WHEREAS,
pursuant to Section 2 below, the Licensee intends to sublicense the license granted herein to the Gold Trust.


 


NOW
THEREFORE, for good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the Licensor and
Licensee agree as follows:


 


		1.	CERTAIN
DEFINITIONS.



 


For the purposes of this Agreement,
the following terms have the following meanings:


 


“Affiliate”
means any entity that directly or indirectly controls, is controlled by or is under common control with a party. In this context,
the term “control” means ownership of more than fifty percent (50%) of the voting securities of such entity (or, in the
case of a non-corporate entity, equivalent interests). The term “controlled” has a corollary meaning.


 


“Licensed
Product” means any gold investment product that is sold, sponsored or issued by Licensee in the Territory that is covered
by or encompasses a claim contained in Licensor Patent Rights, including, but not limited to the Gold Trust.


 


“Licensee Improvements”
means any improvement, enhancement, modification, derivative work or upgrade to any of Licensor Patent Rights made, conceived,
reduced to practice, affixed or otherwise developed by or on behalf of Licensee during the term of this Agreement and solely as
exercised under the License.


 


“Licensor
Patent Rights” means: (i) U.S. Patent Application No. 10/680,589, filed on October 6, 2003, entitled “Systems and
Methods for Securitizing a Commodity” (the “Patent Application”), (ii) all foreign and international counterparts
filed by or on behalf of Licensor (iii) all continuations, continuations-in-part, divisionals, substitutes and equivalents thereof
relating to any of the foregoing patent applications (iv) all letters patent that are or may be granted from any of the foregoing
patent applications, and (v) all know-how related to any of the foregoing patents and patent applications.


 



     


     


    

 





“Service Provider”
means any entity designated to act in the capacity of any or all of the following, as the context requires: trustee, custodian,
issuing agent, registrar, agent, administrator or the like for and on behalf of (i) the sponsor, issuer or other entity offering
shares in gold investment product and/or (ii) any participant of the Gold Trust.


 


“Territory” means
the United States.


 


	2.	LICENSE.



 


Subject
to the terms and conditions of this Agreement, Licensor hereby grants to Licensee a non-exclusive, personal and non-transferable
(except as provided in Article 12.1) license under Licensor Patent Rights for the term of this Agreement solely for the purpose
of establishing, operating and marketing the Licensed Products in the Territory (the “License”).


 


The License includes the
limited right of Licensee to grant sublicenses to the Licensee’s Affiliates, agents, Licensed Products and such Licensed
Products’ trustees and custodians (each a “Sublicensee”), but solely in connection with such Sublicensee’s establishment,
operation and marketing of the Licensed Product and provided that Licensee shall have previously entered into an enforceable, written
agreement with each such Sublicensee on terms no less protective of Licensor’s rights in the Licensor Patent Rights than the terms
in this Agreement and shall provide Licensor with copies of such agreements on request. For the avoidance of any doubt, the Gold
Trust is a permitted Sublicensee under this Agreement.


 


ALL RIGHTS NOT SPECIFICALLY
AND EXPRESSLY GRANTED TO LICENSEE IN THIS ARTICLE 2 ARE HEREBY RESERVED TO THE LICENSOR.


 


	3.	COVENANT TO LICENSOR.



 


Licensee hereby covenants
and agrees that it will not, directly or indirectly, initiate or participate in any action of any kind against Licensor, its successors
and Affiliates, for their use of any Licensee Improvements in connection with establishing, operating or marketing gold investment
products in the Territory based, in whole or in part, on the securitization of any commodity, including currency. This covenant
is perpetual, personal, royalty-free and non-exclusive. This covenant shall survive termination or expiration of this Agreement
for any reason except termination for Licensor’s breach of this Agreement.


 



     


     


    

 





	4.	PAYMENT.



 


The grant of the License
hereunder is in consideration for the engagement of Licensor to act as Service Provider for each Licensed Product under terms substantially
as set forth in the Fee Letter Agreement, or such other terms as Licensor, Licensee and/or a Licensed Product may mutually agree
in writing hereafter. No additional payment of royalties to Licensor shall be required as long as Licensor is so engaged.


 


In the event that Licensor
is not engaged to act as Service Provider for a Licensed Product for any reason, then, to enjoy the benefit of the License with
respect to such Licensed Product, Licensee shall thereafter pay Licensor a royalty as follows:


 


	(a)	The Licensee shall pay Licensor a running royalty that will accrue daily
at the annualized rate of 0.0500% (five basis points) of the total gross adjusted assets of such Licensed Product.



 


	(b)	The five basis point running royalties described in the preceding subparagraph
(a) shall be collectively identified hereinafter as the “Royalty Fee.” Such Royalty Fee shall be due and payable within
ten days following the end of each calendar month for which such Royalty Fee has accrued and shall be subject to the Minimum Annual
Royalty set forth the following subparagraph (c).



 


	 	(c)	Notwithstanding subparagraph (a) above:



 


(i)       beginning
on the Effective Date, for each year in which there is one Licensed Product (which year shall be measured from the date that is
six months after the launch date of the Licensed Product; each such year being defined hereinafter as an “Annual Period”),
Licensee shall pay Licensor a minimum annual royalty (the “Minimum Annual Royalty”) of not less than Two Hundred Fifty
Thousand Dollars ($250,000) per Annual Period for such Licensed Product. If the aggregate Royalty Fees payable to Licensee over
an Annual Period for such Licensed Product is less than the Minimum Annual Royalty, then Licensee shall pay Licensor the difference
between the Minimum Annual Royalty and the aggregate Royalty Fees payable to Licensee over such Annual Period for such Licensed
Product, which payment shall be due and payable within 30 days after the end of the applicable Annual Period.


 


(ii)       beginning
on January 1, 2021, for each year in which there are seven or more Licensed Products (which year shall be measured from the date
that is six months after the launch date of the final Licensed Product to be launched; each such year being defined hereinafter
as an “Annual Period”), Licensee shall pay Licensor a Minimum Annual Royalty of not less than One Million Two Hundred
Fifty Thousand Dollars ($1,250,000) per Annual Period for such Licensed Products. If the aggregate Royalty Fees payable to Licensee
over an Annual Period for such Licensed Products are less than the Minimum Annual Royalty, then Licensee shall pay Licensor the
difference between the Minimum Annual Royalty and the aggregate Royalty Fees payable to Licensee over such Annual Period for such
Licensed Products, which payment shall be due and payable within 30 days after the end of the applicable Annual Period.


 






     


     


    

  











All payments to Licensor
hereunder shall be made in United States dollars either by corporate check to Licensor at the address specified in Article 12 (or
such other address as Licensor may hereafter designate in writing) or by wire transfer to a bank account designated by Licensor
in writing. Payments to Licensor hereunder shall be deemed made as of the day on which they are received by Licensor at such address
or bank account. Late payments shall accrue interest from the date due at rate that is the lesser of 1.5% per month or the maximum
rate permitted by law.


 


Except with respect to
any taxes assessed directly upon Licensor’s income, all amounts payable by Licensee under this Agreement are exclusive of any taxes
that are or may be assessed or imposed by any governmental authority in any jurisdiction in connection with establishing, operating
and marketing such Licensed Product, including without limitation, any sales, use, excise, value-added, personal property, export,
import or withholding taxes, which taxes shall all be assumed and paid by Licensee.


 


	5.	REPORTS, RECORDS AND AUDITS.



 


During the term of this
Agreement, for so long as Licensee has a royalty obligation to Licensor under the terms hereof, Licensee shall deliver to Licensor
within ten (10) days of the end of each calendar month a report setting forth in reasonable detail the Royalty Fee due to Licensor
for such calendar month and Licensee’s calculation of the same.


 


During the term of this Agreement,
for so long as Licensee has a royalty obligation to Licensor under the terms hereof and for three (3) years thereafter, Licensee
shall keep complete and accurate books and records in sufficient detail to enable Licensor to verify the amounts due to it hereunder.


 


During the term of this
Agreement, for so long as Licensee has a royalty obligation to Licensor under the terms hereof and for three (3) years thereafter,
Licensor shall have the right, through a qualified independent auditor, to review and audit the books and records of Licensee for
the purpose of verifying the accuracy of royalty payments made by Licensee under this Agreement. Such reviews and audits shall
be conducted with reasonable prior written notice to Licensee, at Licensee’s place of business and during Licensee’s normal business
hours, and shall not be conducted more than once per calendar year. Each review and audit hereunder shall be at Licensor’s sole
cost and expense; provided, however, that Licensee shall promptly reimburse Licensor for all costs and expenses actually incurred
in connection with a review and audit if the auditor determines that Licensee has underpaid by five percent (5%) or more during
the relevant period under examination. Licensee will promptly pay Licensor the amount of any underpayment revealed by a review
and audit, plus interest at the rate that is the lesser of 1.5% per month or the maximum rate allowed by law from the dates that
any unpaid amounts were due.


 



     


     


    

 





	6.	ENFORCEMENT.



 


Licensee
shall promptly (i) notify Licensor of any potential or actual infringement by a third party of Licensor Patent Rights of which
Licensee becomes aware, and (ii) provide to Licensor all evidence of such infringement in Licensee’s possession, custody or control.
Licensor shall have the sole right, but not the obligation, to initiate any legal action at its own expense against such infringement
and to recover damages and enforce any injunction granted as a result of any judgment in Licensor’s favor. Licensor shall have
sole control over any such action including, without limitation, the sole right to settle and compromise such action. In the event
of a dispute between Licensor and any third party regarding the infringement, validity or enforceability of Licensor Patent Rights,
Licensee agrees, at Licensor’s expense, to do all things reasonably requested by Licensor to assist Licensor in connection with
such dispute.


 


	7.	TERM AND TERMINATION.



 


This Agreement shall commence
on the Effective Date and, unless earlier terminated according to the terms of this Agreement, shall expire upon the expiration
or lapse of the last-to-expire or lapse of the Licensor Patent Rights (or, if earlier, upon the entry of a final order by a court
of competent jurisdiction, which order is not appealable or regarding which appeal is not taken, effectively holding that there
is no valid claim included in the Licensor Patent Rights).


 


During the term of this
Agreement, Licensor shall diligently prosecute and/or maintain Licensor Patent Rights. If no letters patent are granted on the
applications specified in Licensor Patent Rights or if all such applications are finally rejected without appeal being taken or
are abandoned, withdrawn or otherwise lapse, then the License granted pursuant to this Agreement shall terminate immediately. Licensor
shall notify Licensee promptly in writing if the foregoing events shall occur.


 


The
License granted pursuant to this Agreement will terminate immediately, without any requirement for Licensor to provide notice,
with respect to any Licensed Product that is terminated.


 


In addition, either party
may terminate this Agreement by written notice at any time if the other party materially breaches this Agreement and fails to cure
such breach with thirty (30) days following written notice thereof from the non-breaching party. Upon any termination or expiration
of this Agreement, all rights and obligations under this Agreement (including Licensee’s rights under the License) will immediately
terminate; provided, however, that the provisions of Articles 1, 8 (the second paragraph only), 10 (solely with respect Licensee’s
Losses based on or arising from Licensee’s exercise of its rights in accordance with this Agreement while the License was in effect),
11 and 12, and any other provision that survives by its express terms, shall survive any termination or expiration of this Agreement.


 



     


     


    

 





	8.	ACKNOWLEDGMENT OF RIGHTS.



 


Licensee
hereby acknowledges and agrees that, as between Licensor and Licensee, Licensor is the exclusive owner of all right, title and
interest in and to the Licensor Patent Rights. During the term of this Agreement, Licensee will not directly or indirectly: (i)
initiate or participate in any proceeding of any kind opposing the grant of any patent, or challenging any patent application,
within the Licensor Patent Rights, (ii) dispute the validity or enforceability of any patent within the Licensor Patent Rights
or any of the claims thereof, or (iii) assist any other Person to do any of the foregoing (except if required by court order or
subpoena); provided, however, the foregoing shall in no way limit Licensee’s ability to defend against or to mitigate any
claim brought by Licensor against Licensee.


 


During the term of this
Agreement and thereafter, Licensee shall not directly or indirectly interfere improperly with Licensor’s ability to negotiate with
any potential licensee under, or any potential purchaser of, the Licensor Patent Rights, or assist any other Person to do the foregoing
(except if required by court order or subpoena). This paragraph shall survive termination or expiration of this Agreement for any
reason.


 


Any violation of this Article
8 will constitute a material breach of this Agreement.


 


	9.	REPRESENTATIONS AND WARRANTIES.



 


Each party hereby represents
and warrants that (i) it has the power and authority to enter into this Agreement and perform its obligations hereunder; (ii) the
execution and delivery of this Agreement have been duly authorized and all necessary actions have been taken to make this Agreement
a legal, valid and binding obligation of such party enforceable in accordance with its terms; and (iii) the execution and delivery
of this Agreement and the performance by such party of its obligations hereunder will not contravene or result in any breach of
the Certificate of Incorporation or Bylaws of such party or of any agreement, contract, indenture, license, instrument or understanding
or, to the best of its knowledge, result in any violation of law, rule, regulation, statute, order or decree to which such party
is bound or by which they or any of their property is subject.


 


EXCEPT
AS EXPRESSLY SET FORTH IN THE FOREGOING, LICENSOR DOES NOT MAKE AND HEREBY EXPRESSLY DISCLAIMS ALL OTHER WARRANTIES, EXPRESS OR
IMPLIED, STATUTORY OR OTHERWISE, REGARDING THE SUBJECT MATTER OF THIS AGREEMENT INCLUDING, BUT NOT LIMITED TO, ANY WARRANTIES OF
MERCHANTABILITY, TITLE, FITNESS FOR A PARTICULAR PURPOSE, ORNON-INFRINGEMENT.


 



     


     


    

 





	10.	INDEMNITY.



 


Each party shall defend,
indemnify and hold harmless the other party and such other party’s Affiliates, employees, officers, directors, and agents from
and against any liabilities, losses, damages, costs or expenses (including, without limitation, reasonable attorneys’ fees) (collectively,
“Losses”) resulting from or arising in connection with the breach by the indemnifying party of any of its representations,
warranties, covenants or obligations contained in this Agreement.


 


If any action, suit, proceeding
(including, but not limited to, any governmental investigation), claim or dispute (collectively, a “Proceeding”) is brought
or asserted against a party for which indemnification is sought under this Agreement, the party seeking indemnification (the “Indemnified
Party”) shall promptly (and in no event more than seven (7) days after receipt of notice of such Proceeding) notify the party
obligated to provide such indemnification (the “Indemnifying Party”) of such Proceeding. The failure of the Indemnified
Party to so notify the Indemnifying Party shall not impair the Indemnified Party’s ability to obtain indemnification from the Indemnifying
Party (but only for costs, expenses and liabilities incurred after such notice) unless such failure adversely affects the Indemnifying
Party’s ability to adequately oppose or defend such Proceeding. Upon receipt of such notice from the Indemnified Party, the Indemnifying
Party shall be entitled to participate in such Proceeding at its own expense. Provided no conflict of interest exists as specified
in clause (ii) below and there are no other defenses available to Indemnified Party as specified in clause (iv) below, the Indemnifying
Party, to the extent that it shall so desire, shall be entitled to assume the defense of the Proceeding with counsel reasonably
satisfactory to the Indemnified Party, in which case all attorney’s fees and expenses shall be borne by the Indemnifying Party
(except as specified below) and the Indemnifying Party shall in good faith defend the Indemnified Party. After receiving written
notice from the Indemnifying Party of its election to assume the defense of the Proceeding, the Indemnified Party shall have the
right to employ separate counsel in any such Proceeding and to participate in the defense thereof, provided that the fees and expenses
of such counsel shall be borne entirely by the Indemnified Party unless (i) the Indemnifying Party expressly agrees in writing
to pay such fees and expenses, (ii) there is such a conflict of interest between the Indemnifying Party and the Indemnified Party
as would preclude, in compliance with the ethical rules in effect in the jurisdiction in which the Proceeding was brought, one
lawyer from representing both parties simultaneously, (iii) the Indemnifying Party fails, within the earlier of (x) twenty (20)
days following receipt of notice of the Proceeding from the Indemnified Party or (y) seven (7) days prior to the date the first
response or appearance is required to be made in such Proceeding, to assume the defense of such Proceeding with counsel reasonably
satisfactory to the Indemnified Party or (iv) there are legal defenses available to the Indemnified Party that are different from
or are in addition to those available to the Indemnifying Party. In each of cases (i) through (iv), the fees and expenses of counsel
shall be borne by the Indemnifying Party. No compromise or settlement of such Proceeding may be effected by either party without
the other party’s consent unless there is no finding or admission of any violation of law and no effect on any other claims that
may be made against such other party and the sole relief provided is monetary damages that are paid in full by the party seeking
the settlement. Neither party shall have any liability with respect to any compromise or settlement effected without its consent,
which shall not be unreasonably withheld. The Indemnifying Party shall have no obligation to indemnify and hold harmless the Indemnified
Party from any loss, expense or liability incurred by the Indemnified Party as a result of a default judgment entered against the
Indemnified Party unless such judgment was entered after the Indemnifying Party agreed, in writing, to assume the defense o f s
u c h p r o c e e d i n g .


 



     


     


    

 





	11.	LIMITATION OF LIABILITY.



 


IN NO EVENT SHALL LICENSOR
BE LIABLE FOR ANY SPECIAL, INCIDENTAL, CONSEQUENTIAL, PUNITIVE, EXEMPLARY OR OTHER INDIRECT DAMAGES, HOWSOEVER CAUSED, WHETHER
ARISING IN CONTRACT, TORT OR OTHERWISE, EVEN IF IT HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.


 


	12.	MISCELLANEOUS PROVISIONS.



 


		12.1.	Assignment. Licensee may not assign or otherwise transfer (whether by
operation of law or otherwise) any right or obligation under this Agreement without the prior written consent of Licensor. Such
consent shall be deemed given with respect to an assignment or transfer (whether by operation of law or otherwise) of the entire
Agreement, including all rights and obligations hereunder, to a successor in interest or assignee of substantially all of the assets
of Licensee, provided that Licensee has given prompt written notice thereof to Licensor. This Agreement is binding on, and inures
to the benefit of, the parties and their permitted successors and assigns. Any attempted assignment or other transfer of rights
under this Agreement in violation of this Article 12.1 will be void.



 


		12.2.	Injunctive Relief. Licensee agrees and acknowledges that money damages
may not be an adequate remedy for any breach by Licensee of the provisions of this Agreement and that the Licensor may, in its
sole discretion, apply to any court of law or equity of competent jurisdiction for temporary preliminary relief (specific performance
and/or injunctive relief), without posting a bond or other security, in order to enforce or prevent any violation of the provisions
of this Agreement.



 


		12.3.	Governing Law. This Agreement will be governed by and construed under
the laws of the State of New York, without reference to any choice of law rules (except that questions affecting the construction
and effect of any patent will be determined by the law of the country in which the patent was granted).



 


		12.4.	Exclusive Jurisdiction and Venue; No Jury. Any action brought by
either party that arises out of or relates to this Agreement will be filed only in the state or federal courts located in New York
County, New York. Each party irrevocably submits to the jurisdiction of those courts. FURTHERMORE, EACH PARTY (I) WAIVES ANY OBJECTIONS
THAT IT MAY HAVE NOW OR IN THE FUTURE TO THE JURISDICTION OF THOSE COURTS, (II) WAIVES ANY CLAIM THAT IT MAY HAVE NOW OR IN THE
FUTURE THAT LITIGATION BROUGHT IN THOSE COURTS HAS BEEN BROUGHT IN AN INCONVENIENT FORUM AND (III) WAIVES ANY RIGHT TO A JURY TRIAL.



 



     


     


    

 





		12.5.	Entire Agreement. This Agreement sets forth the entire agreement of
the parties as to its subject matter and supersedes all prior agreements, negotiations, representations, and promises between them
with respect to its subject matter.



 


		12.6.	Unenforceable Provisions. If any provision of this Agreement is held unenforceable
by a court of competent jurisdiction, the other provisions will remain in full force and effect. If legally permitted, the unenforceable
provision will be replaced with an enforceable provision that as nearly as possible gives effect to the parties’ intent.



 


		12.7.	Relationship Of The Parties. Each party is an independent contractor
of the other party. Nothing in this Agreement creates a partnership, joint venture or agency relationship between the parties.



 


		12.8.	Notices. A notice under this Agreement is not sufficient unless it
is: (i) in writing; (ii) addressed using the contact information listed below for the party to which the notice is being given
(or using updated contact information which that party has specified by written notice in accordance with this Article); and (iii)
sent by hand delivery, facsimile transmission, registered or certified mail (return receipt requested), or reputable express delivery
service with tracking capabilities (such as Federal Express).



 


	Contact Information for Licensor:	Contact Information for Licensee:
	
        The Bank of New York Mellon 240
Greenwich Street 

        New York, NY 10286 

        Attn: ETF Services

         
	
        Wilshire Phoenix Funds LLC 

        2 Park Ave., 20th Floor 

        New York, NY 10016 

        Attention: Will Cai 



 


		12.9.	Amendments. This Agreement may not be amended unless the amendment
is in writing and signed by authorized representatives of both parties.



 


		12.10.	Waivers. A waiver of rights under this Agreement will not be effective
unless it is in writing and signed by an authorized representative of the party that is waiving the rights.



 


		12.11.	Counterparts and Execution. This Agreement may be executed simultaneously
in counterparts, each of which shall be deemed an original, but all of which together shall constitute one and the same instrument.
Any manual signature upon this Agreement that is faxed, scanned or photocopied, and any electronic signature valid under the Electronic
Signatures in Global and National Commerce Act, 15 U.S.C. §7001, et. seq. shall for all purposes have the same validity,
legal effect and admissibility in evidence as an original signature and the parties hereby waive any objection to the contrary.



 


(signature page follows)


 




     


     


    

 


IN
WITNESS WHEREOF, the parties have caused this Agreement to be executed by their duly authorized representatives.


 





	THE BANK OF NEW YORK MELLON	 
	 	 	 
	By: 	 /s/ Elizabeth Stubenrauch	 
	Name:	 Elizabeth Stubenrauch	 
	Title:	 Relationship Manager	 



  





	WILSHIRE PHOENIX FUNDS LLC 



	 
	 	 	 
	By: 	/s/ William Cai 	 
	Name:	William Cai	 
	Title:	Partner