Wilshire wShares Enhanced Gold Trust 8-K


Exhibit 10.1


[Certain identified information
has been excluded from the exhibit because it is both not material and would likely cause competitive harm to the Trust if publicly disclosed.]


Execution Version


WHOLESALE MARKETING AGREEMENT


THIS WHOLESALE MARKETING
AGREEMENT (the “Agreement”) is entered into effective as of the 14th day of June, 2021 (the “Effective
Date”), by and among Wilshire wShares Enhanced Gold Trust, a Delaware statutory trust (the “Trust”),
Wilshire Phoenix Funds LLC, a Delaware limited liability company (the “Sponsor”), UMB Distribution Services,
LLC (“UMB”) and Valor Consulting & Distribution, LLC, an Ohio limited liability company (“Valor”).


W I T N E S S E T H:


WHEREAS, Foreside Fund Services, LLC,
a Delaware limited liability company (the “Marketing Agent”), is registered as a broker dealer under the Securities
Exchange Act of 1934, as amended (“1934 Act”), and has entered into a marketing agent agreement (the “Marketing
Agent Agreement”) with the Trust and is a member of the Financial Industry Regulatory Authority, Inc. (“FINRA”);


WHEREAS, the Trust continuously offers
its shares pursuant to a registration statement filed under the Securities Act of 1933, as amended (“1933 Act”)
as an exchange-traded fund and its shares are listed on the NYSE Arca, Inc.;


WHEREAS, UMB is a registered as a broker
dealer under the 1934 Act and is a member of FINRA; and


WHEREAS,
the Valor has certain employees or representatives who are registered representatives of UMB (“UMB”); and


WHEREAS, the Sponsor wishes to retain
Valor and its representatives, through UMB, to market the Trust to registered representatives of broker-dealers and investment advisers
that may have customers interested in investing in the Trust (each, an “Intermediary” and collectively, “Intermediaries”).


NOW, THEREFORE, in consideration of
these premises and of the mutual covenants and agreements hereinafter contained, the sufficiency of which is hereby acknowledged by the
parties, the parties hereto agree as follows:


		1.	Services Provided by Valor.





Valor agrees, subject to the provisions of
this Agreement, through UMB, to use its reasonable best efforts to market the Trust to the Intermediaries. In connection therewith, Valor
shall: (i) engage in meetings, seminars and conferences for financial intermediaries; (ii) distribute sales literature and
other communications (including electronic media) regarding the Trust that have been reviewed and approved by the Marketing Agent; and
(iii) perform other services reasonably contemplated to result in the sale of Trust’s shares.




Valor and its UMB will at all times act in a wholesaler capacity and
shall be precluded from marketing the Trust in a manner that would cause either party to make a securities recommendation to an entity
other than those entities defined as Intermediaries or to an individual other than those individuals associated with Intermediaries.
The services furnished by the Valor and UMB hereunder are not to be deemed exclusive and the Sponsor shall be free to engage additional
third parties to furnish similar services.





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2. Services
Provided by Sponsor. 


The Sponsor will provide Valor and its representatives
with Marketing Agent-approved marketing materials for the Trust. Valor acknowledges and agrees that it is not authorized to provide any
information or make any representations regarding the Trust other than any sales literature and advertising materials specifically approved
by the Sponsor and the Marketing Agent. The Sponsor will provide meetings and conference calls and use reasonable efforts to generally
make its staff available to the UMB to educate them on the Trust.


3.       
Duration and Termination.


This Agreement shall become effective as of
the Effective Date above and shall continue in effect until terminated as provided herein. Any party may terminate this Agreement immediately
upon the breach of another party of any of the terms and conditions hereunder, which breach is not cured within fifteen (15) days after
written notice thereof. Such breaches shall be deemed to be cause for all purposes hereunder. The Sponsor or the Trust may terminate
this Agreement: (i) without cause on ten (10) days prior written notice to the Valor, (ii) immediately in the event that the Sponsor
or the Trust incurs any loss, liability or claim as a result of the Valor’s or UMB’s negligence, willful misconduct, fraud,
breach of any representation, warranty, covenant or obligation or failure to comply in all material respects with any applicable laws,
rules or regulations.


Except as otherwise provided herein, upon
termination of this Agreement, (i) no party will have any obligations hereunder unless otherwise expressly stated herein, and (ii) any
fee, expense or other compensation rights of the Valor under Section 4 below shall cease.


4.       Territory
and Compensation.


In consideration for the sales and marketing
services provided by Valor pursuant to the terms of this Agreement, Valor will have the right to market in the agreed territory and receive
the compensation from the Sponsor set forth in Schedule A attached hereto during the term of this Agreement, which schedule may be amended
from time to time by a written instrument signed by authorized representatives of the Sponsor and Valor.


The compensation under this Agreement, when
combined with fees and expenses charged by the Marketing Agent and other FINRA members and other payments that would constitute organization
and offering expenses as defined in FINRA Rule 2310, cannot exceed ten percent (10%) of the aggregate dollar amount of the Trust’s
offering of its shares under the Registration Statement (defined below). Valor and UMB agree that the payments described hereunder may
be limited to comply with FINRA Rule 2310.


5.       Representations.


(a)       Valor
hereby represents and warrants that:




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(i)       It is a limited liability company duly organized and existing and in good standing under
the laws of the State of Ohio;


(ii)       It
and all requisite personnel shall obtain and maintain all approvals and licenses necessary for the performance of the services including
proper registration and licensing with the SEC and/or FINRA, as applicable;


(iii)       It
is and will remain duly licensed or registered with the applicable state securities regulators, the SEC and FINRA, as applicable;


(iv)       It
is empowered under applicable laws and by its organizational documents to enter into and perform this Agreement;


(v)       No
consent, approval, authorization or other order of governmental authority is required in connection with the execution or delivery by
Valor of this Agreement;


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


(vii)       There
are no actions, suits or proceedings pending or to the knowledge of Valor, threatened against Valor at law or in equity or before or
by any federal or state commission, regulatory body or administrative agency or other governmental body, domestic or foreign, which would
be reasonably expected to have a material adverse effect on the business or property of Valor;


(viii)        The
execution and delivery of this Agreement, the consummation of the transactions herein contemplated and compliance with the terms of this
Agreement by Valor will not conflict with or constitute a default under any charter, bylaw, indenture, mortgage, deed of trust, lease,
rule, regulation, writ, injunction or decree of any government, governmental instrumentality or court, domestic or foreign, having jurisdiction
over the Valor, except for such conflicts or defaults that would not reasonably be expected to have a material adverse effect on the
business or property of Valor; and


(ix)       It
will make no representations concerning the Trust other than those contained in the Prospectus (defined below) for the Trust or in any
promotional materials or sales literature filed by the Trust with the SEC or approved by the Sponsor.


(b)       UMB
represents and warrants that:


(i)  it
is duly organized and validly existing as a Wisconsin limited liability company; and


(ii)  it
is registered as a broker-dealer under the 1934 Act and is a member in good standing of FINRA.




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(c)       Valor
and UMB, each on its own behalf, represent and warrant that:


(i)       Valor
and UMB will comply with all applicable U.S. federal laws, the laws of the states or other jurisdictions concerned, and the rules and
regulations promulgated thereunder, and with the FINRA By-Laws and Conduct Rules of FINRA if it is a FINRA member, to the extent the
foregoing relates to and are applicable to the Valor’s and UMB’s transactions in and activities with respect to Shares; and


(ii)        Valor
and UMB will only market the Shares in any state or jurisdiction where the Sponsor authorizes and where Valor and UMB may lawfully market
the Shares.


(d)       The
Trust represents and warrants that:


(i)       The
Trust has filed a registration statement (the “Registration Statement”) with the SEC relating to its shares
under the 1933 Act on Form S-1, including a prospectus (the “Prospectus”). To the Trust’s knowledge,
Registration Statement (including the Prospectus) conforms in all material respects to the requirements of the 1933 Act and the rules
thereunder;


(ii)       It
is statutory trust duly organized and existing and in good standing under the laws of the State of Delaware;


(iii)       It
is empowered under applicable laws and by the terms of the Amended and Restated Trust Agreement (the “Trust Agreement”)
to enter into and perform this Agreement;


(v)       No
consent, approval, authorization or other order of governmental authority is required in connection with the execution or delivery by
the Trust of this Agreement;


(v)       It
has duly executed and delivered this Agreement and this Agreement constitutes the legal, valid and binding obligation 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 and general principles of equity (whether considered in a proceeding
in equity or law); and


(vi)       the
compensation arrangements described in this Agreement are or will be described in the offering documents for any offerings covered by
this Agreement and as required by applicable FINRA Rules.


(e)       The
Sponsor represents and warrants that:


(i)       It
is limited liability company duly organized and existing and in good standing under the laws of the State of Delaware;


(ii)       It
is empowered under applicable laws and by the terms of the organizational documents to enter into and perform this Agreement;




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(iii)       No
consent, approval, authorization or other order of governmental authority is required in connection with the execution or delivery by
the Sponsor of this Agreement; and


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


6.       Indemnification.


(a)       The
Sponsor agrees to indemnify and hold harmless UMB, its employees, agents, officers, directors, shareholders, affiliates and nominees
(collectively, “Indemnified Parties”) from and against any and all claims, demands, actions and suits, and
any and all judgments, liabilities, losses, damages, costs, charges, reasonable counsel fees and other expenses of every nature and character
which may be asserted against or incurred by any Indemnified Party or for which any Indemnified Party may be held liable (a “Claim”),
arising out of or in any way relating to any of the following:


 


(i) any actions
or omissions of UMB taken or not taken in accordance with this Agreement;


 


(ii)       UMB’s
reliance on, implementation of, or use of communications, data, documents or information (without investigation or verification) received
by UMB from an officer or representative of the Sponsor;


 


(ii)       any
action taken, or omission by the Sponsor or the Trust;


 


(iii)       the
Sponsor’s refusal or failure to comply with the terms of this Agreement, or any Claim that arises out of the Sponsor’s gross
negligence or misconduct or breach of any representation or warranty of the Sponsor made herein;


 


(iv)        the
legality of the issue or sale of any Shares;


 


(v)        the
offer or sale of Shares in violation of any requirement under the securities laws or regulations of any state that such Shares be qualified
for sale in such state or in violation of any stop order or determination or ruling by any state with respect to the offer or sale of
such Interests in such state; and


 


(vi)       any
untrue statement, or alleged untrue statement, of a material fact contained in the Trust’s registration statement, prospectus,
or an annual or interim report to the Trust’s investors, or arising out of or based upon any omission, or alleged omission, to
state therein a material fact required to be stated therein or necessary to make the statements therein not misleading;


 




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provided however that, in no event shall
(i) any Indemnified Parties be indemnified for any Claim to the extent arising from or related to an Indemnified Party’s willful
misconduct, bad faith, fraud or gross negligence in the performance of its duties, from reckless disregard by it of its obligations and
duties hereunder or as a result of failure to comply in all material respects with any applicable laws, rules or regulations, and (ii) the
Sponsor be liable for any consequential, special or indirect losses or damages suffered by any Indemnified Party, whether or not the
likelihood of such losses or damages was known by it.


 


(b)       UMB
agrees to indemnify and hold harmless the Sponsor, its employees, agents, officers, directors, shareholders, affiliates and nominees
(collectively, “Sponsor Indemnified Parties”) from and against any and all Claims, arising out of or in any
way relating to UMB’s willful misconduct, bad faith, fraud or gross negligence in the performance of its duties, the reckless disregard
by it of its obligations and duties hereunder, breach of any representation or warranty of UMB made herein or as a result of UMB’s
failure to comply in all material respects with any applicable laws, rules or regulations; provided however that, in no event shall (i) any
Sponsor Indemnified Parties be indemnified for any Claim to the extent arising from or related to a Sponsor Indemnified Party’s
willful misconduct, bad faith, fraud or gross negligence in the performance of its duties, from reckless disregard by it of its obligations
and duties hereunder or as a result of failure to comply in all material respects with any applicable laws, rules or regulations, and
(ii) UMB be liable for any consequential, special or indirect losses or damages suffered by any Sponsor Indemnified Party, whether
or not the likelihood of such losses or damages was known by it.


 


(c)        UMB
will notify the Sponsor, promptly after identifying any situation which it believes presents or appears likely to present a Claim for
which the Sponsor may be required to indemnify or hold the Indemnified Parties harmless hereunder. Failure to notify the Sponsor of any
claim shall not relieve the Sponsor from any indemnification obligation that it may have to UMB on account of this Section 6, except
to the extent failure or delay to so notify the Sponsor prejudices the Sponsor’s ability to defend against such claim. In such
event, the Sponsor shall have the option to defend the Indemnified Parties against any Claim, and, in the event that the Sponsor so elects,
such defense shall be conducted by counsel chosen by the Sponsor. The Indemnified Parties shall not confess any Claim or make any compromise
in any case in which the Sponsor will be asked to provide indemnification, except with the Sponsor’s prior written consent.


 


(d)       The
obligations under this Section 6 shall survive the termination of this Agreement.


 


 


7.       Relationship
of the Parties. In carrying out the provisions of this Agreement, each of UMB and Valor is, for all purposes, an independent
contractor and none of UMB or Valor’s officers, directors, managers, employees or representatives is an employee of the Marketing
Agent, the Sponsor or the Trust. As an independent contractor, neither UMB nor Valor has authority, express or implied, to speak for,
act for or bind the Marketing Agent, the Sponsor or the Trust in any manner whatsoever.




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8.       Regulatory
Issues.


It is understood and agreed that in performing
UMB’s duties under this Agreement, UMB hereby undertakes to, and will cause each of its representatives, officers, directors, managers
or employees who perform services under this Agreement to maintain any and all federal or state registrations and/or licenses that are
required for Valor to provide the services under this Agreement.


9. Confidentiality.


During the term of this Agreement, the parties may have access to non-public
confidential information relating to matters such as any other party’s (or the Sponsor’s) business, trade secrets, systems,
procedures, manuals, products, contracts, personnel, and clients. As used in this Agreement, “Confidential Information”
means non-public or proprietary information belonging to one of the parties (or the Sponsor) that is of value to such party and the disclosure
of which could result in a competitive or other disadvantage to such party. Confidential Information includes, without limitation, non-public
or proprietary information that may be financial information, proposals and presentations, reports, forecasts, formulas, algorithms,
inventions, improvements and other intellectual property; trade secrets; know-how; designs, processes or formulae; software; market or
sales information or plans; customer lists; ownership information; and business plans, prospects and opportunities (such as possible
acquisitions or dispositions of businesses or facilities). Confidential Information includes information developed by either party in
the course of engaging in the activities provided for in this Agreement. The term “Confidential Information” does not include
information which (i) becomes generally available to the public other than as a result of the receiving party’s breach of
this Agreement, (ii) was available to the receiving party on a non-confidential basis prior to its disclosure by the disclosing
party, (iii) becomes available to the receiving party from a source other than the disclosing party not known by the receiving party
to be bound by a confidentiality agreement with the disclosing party, or (iv) is independently developed by the receiving party
without the use of Confidential Information. The parties understand and agree that all Confidential Information shall be kept confidential
by it both during and after the term of this Agreement. Each party shall maintain commercially reasonable information security policies
and procedures for protecting Confidential Information. The parties further agree that they will not, without the prior written approval
by the other party, disclose such Confidential Information, or use such Confidential Information in any way, either during the term of
this Agreement or at any time thereafter, except (i) as required in the course of this Agreement, (ii) as provided by the other
party, (iii) as required by applicable law, rule, or regulation, or (iv) in response to a request for information or as part
of an examination of the receiving party by a regulatory agency or self-regulatory organization with jurisdiction over the receiving
party; or (B) a request for information directed at the receiving party by a court or other entity or party that is not a regulatory
agency or self-regulatory organization with jurisdiction over the receiving party; provided, however, that in the case of (iv)(B), the
receiving party will, unless otherwise requested by its regulators or prohibited by applicable law, provide the disclosing party with
notice thereof as promptly as practicable under the circumstances (provided however that the receiving party shall incur no liability
for its failure to provide such notice) so that disclosing party may seek a protective order or other appropriate remedy, and the receiving
party shall provide reasonable cooperation to the disclosing party in its attempts to contest such disclosure. For the avoidance of doubt,
the Trust may disclose this Agreement or summarize the terms thereof in its Registration Statement or in correspondence with the SEC.
The terms of this Section 9 shall survive termination of this Agreement.





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10.       Miscellaneous
Provisions.


(a)       Notices.
All notices and other communications hereunder shall be in writing, shall be deemed to have been given when received or when sent by
email or by nationally recognized overnight courier, and shall be given to the following addresses (or such other addresses as to which
notice is given):


To UMB:


 


UMB Distribution Services, LLC


235 W. Galena Street


Milwaukee, WI 53212


Attn: Legal Department


 


To Valor:


 


Valor Consulting & Distribution, LLC


6481 Fredricks Road


Sunbury, OH 43074


Attn: Richard Ranck


 


To the Sponsor:


 


Wilshire Phoenix
Funds LLC


2 Park Avenue, Floor
20


New York, NY 10016


Attn: William Cai, Partner


 


To the Trust:


 


Wilshire wShares
Enhanced Gold Trust


c/o Wilshire Phoenix
Funds LLC


2 Park Avenue, Floor
20


New York, NY 10016


Attn: William Cai, Partner


 


(b) Entire
Agreement. This Agreement contains the entire agreement between the parties hereto concerning the transaction contemplated herein
and supersedes all prior agreements or understandings between the parties hereto relating to the subject matter hereof. No oral representation,
agreement or understanding made by any party hereto shall be valid or binding upon such party or any other party hereto.


(c) Amendments.
Except as otherwise provided herein, no provision of this Agreement may be amended other than by a writing signed by the parties hereto.




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(d)        Severability;
Assignment. Each provision of this Agreement is intended to be severable. If any provision of this Agreement shall be held illegal
or made invalid by court decision, statute, rule or otherwise, such illegality or invalidity shall not affect the validity or enforceability
of the remainder of this Agreement. This Agreement shall automatically terminate, without the payment of any penalty, in the event of
its assignment.


(e)       
Headings. The headings in this Agreement are inserted for convenience and identification only and are in no way intended to describe,
interpret, define or limit the size, extent or intent of this Agreement or any provision hereof.


(f)       
Counterparts. This Agreement may be executed in two or more counterparts, each of which shall be deemed an original but all of
which together shall constitute one and the same agreement. A facsimile or other reproduction of this Agreement may be executed by any
party, and an executed copy of this Agreement may be delivered by any party by facsimile or similar electronic transmission device pursuant
to which the signature(s) can be seen, and such execution and delivery shall be considered valid, binding and effective for all purposes.


(g)       Application
of Law. This Agreement and the application and interpretation hereof shall be governed exclusively by the laws of the State of Delaware,
excluding the laws on conflicts of laws. To the extent that the applicable laws of the State of Delaware, or any of the provisions herein,
conflict with the applicable provisions of the 1933 Act, the latter shall control, and nothing herein shall be construed in a manner
inconsistent with the 1933 Act or any rule or order of the SEC thereunder. The parties hereby waive their respective rights to a jury
trial in any future action or proceeding.


(h)       
Limitations on Liability.


(i)       It
is expressly agreed that the obligations of the Trust hereunder shall not be binding upon the Trust’s trustee, shareholders, nominees,
officers, agents or employees of the Trust, personally, but shall bind only the assets and property of the Trust as provided in the Trust
Agreement.


(ii)       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
Sponsor of the Trust in the exercise of the powers and authority conferred and vested in it;


(B)       the
representations, covenants, undertakings and agreements herein made on the part of 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




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


(j)       Cumulative
Rights. No failure or delay by any party in exercising any right, power or privilege hereunder shall operate as a waiver thereof,
nor shall any single or partial exercise thereof preclude any other or further exercise thereof or the exercise of any right, power or
privilege hereunder.


 


 


[This page intentionally left blank. Signature page
follows.]





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IN WITNESS WHEREOF, the parties hereto have
executed this Agreement as of the date first above written.


 


UMB Distribution Services LLC 


 


By: /s/ Scott Schulenberg_____________


Name: Scott Schulenburg


Its: President


 


Valor Consulting & Distribution, LLC


 


By: /s/ Richard W. Ranck


Name: Richard W. Ranck


Its: Founder


 


 


 


Wilshire Phoenix Funds LLC


 


 


By: /s/ William Cai


Name: William Cai


Its: Partner


 


 


 


Wilshire
wShares Enhanced Gold Trust


 


By: Wilshire Phoenix Funds LLC,
solely in its


capacity as Sponsor
of the Trust


 


 


By: /s/ William Cai


Name: William Cai


Its: Partner


 




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Schedule A


 


Territory and Compensation


Subject to the terms of this Agreement, Valor
(Valor Consulting & Distribution) shall have the right to market the exchange traded funds (“ETFs”) listed below and
receive from the Sponsor compensation under this Agreement as follows:


		1.	Exchange
Traded Funds



 


-The
Wilshire wShares Enhanced Gold Trust (WGLD)


 


		2.	Territory



 


		a.	The
Valor and Sponsor acknowledge that Valor (Valor Consulting & Distribution) will have the right to market ETFs to US-based intermediaries,
being registered investment Sponsors, institutions and financial Sponsors/registered representative at US-based broker dealers.



 


		3.	[REDACTED]



 


		4.	Compensation



 


		a.	[REDACTED]







 


		b.	[REDACTED]



 







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