This Indemnification Agreement
(the “Agreement”) is made and entered into this ___ day of December, 2021, by and between Stellus Private Credit BDC
(the “Company”), on behalf of itself and its Subsidiaries (as defined in Section 1(h) below), and ___________________________
WHEREAS, it is essential to
the Company that it be able to retain and attract as trustees the most capable persons available;
WHEREAS, increased corporate
litigation has subjected trustees to litigation risks and expenses, and the limitations on the availability of trustees and officers liability
insurance have made it increasingly difficult to attract and retain such persons;
WHEREAS, the Company’s
amended and restated agreement and declaration of trust provides that the Company may indemnify its trustees;
WHEREAS, the Company desires
to provide Indemnitee with specific contractual assurance of Indemnitee’s rights to full indemnification against litigation risks
and expenses; and
WHEREAS, Indemnitee is
relying upon the rights afforded under this Agreement in becoming or continuing as a trustee of the Company.
NOW, THEREFORE, in consideration
of the promises and the covenants contained herein, the Company and Indemnitee do hereby covenant and agree as follows:
Act” means the Investment Company Act of 1940, as amended.
Status” describes the status of a person who is serving or has served (i) as a trustee of the Company or (ii) as a
director/trustee of any other Entity at the request of the Company. For purposes of subsection (ii) of this Section 1(b), if
Indemnitee is serving or has served as a director, trustee, officer, partner, manager, managing member, fiduciary, employee or agent of
a Subsidiary (as defined below), Indemnitee shall be deemed to be serving at the request of the Company. If Indemnitee is an officer
of the Company, Corporate Status shall not include actions taken by Indemnitee in any capacity other than as a trustee (except as provided
in subsection (ii) of this definition).
shall mean any corporation, partnership, limited liability company, joint venture, trust, foundation, association, organization or other
shall mean all reasonable and out-of-pocket fees, costs and expenses incurred by Indemnitee in connection with prosecuting, defending,
preparing to prosecute or defend, investigating, being or preparing to be a witness in or otherwise participating in any Proceeding (as
defined below), including, without limitation, attorneys’ fees, disbursements and retainers (including, without limitation, any
such fees, disbursements and retainers incurred by Indemnitee pursuant to Sections 11 and 12(c)), fees and disbursements of expert
witnesses, private investigators, professional advisors (including, without limitation, accountants and investment bankers), court costs,
transcript costs, fees of experts, travel expenses, duplicating, printing and binding costs, telephone and fax transmission charges, postage,
delivery services, secretarial services, and other disbursements and expenses.
Expenses,” “Indemnifiable Liabilities” and “Indemnifiable Amounts” shall have the meanings
ascribed to those terms in Section 3(a).
“Independent Trustee” shall mean a trustee of the Company who is not an “interested person” as
that term is defined under Section 2(a)(19) of the 1940 Act.
shall mean judgments, damages, liabilities, losses, penalties, excise taxes, fines and amounts paid in settlement.
shall mean any threatened, pending or completed claim, action, suit, arbitration, alternate dispute resolution process, investigation,
administrative hearing, appeal, or any other proceeding, whether civil, criminal, administrative, arbitrative or investigative, whether
formal or informal, including a proceeding initiated by Indemnitee pursuant to Section 11 to enforce Indemnitee’s rights hereunder.
shall mean any Entity of which the Company owns (either directly or through or together with another Subsidiary of the Company) either
(i) a general partner, managing member or other similar interest or (ii) (A) 50% or more of the voting power of the voting
capital equity interests of such Entity, and/or (B) 50% or more of the outstanding voting capital stock or other voting equity interests
of such Entity.
of Indemnitee. In consideration of the Company’s covenants and commitments hereunder, Indemnitee agrees to serve or continue
to serve as a trustee of the Company. However, this Agreement shall not impose any obligation on Indemnitee or the Company to continue
Indemnitee’s service to the Company beyond any period otherwise required by law or by other agreements or commitments of the parties,
to Indemnify. The Company agrees to indemnify Indemnitee as follows:
Other Than by or in the Right of the Company. Subject to the exceptions contained in Section 4(a) and in a manner consistent
with applicable law, including the 1940 Act, if Indemnitee was or is a party or is threatened to be made a party to any Proceeding (other
than an action by or in the right of the Company) by reason of Indemnitee’s Corporate Status, Indemnitee shall be indemnified
by the Company against all Expenses and Liabilities incurred or paid by Indemnitee in connection with such Proceeding (referred to herein
as “Indemnifiable Expenses” and “Indemnifiable Liabilities,” respectively, and collectively as “Indemnifiable
Amounts”). Notwithstanding the foregoing, no Indemnitee shall be entitled to indemnification under this Section 3(a) for
liability which arose as a result of Indemnitee’s willful misfeasance, bad faith or gross negligence of the duties involved in the
conduct of his or her office.
by or in the Right of the Company. Subject to the exceptions contained in Section 4(b) and in a manner consistent with applicable
law, including the 1940 Act, if Indemnitee was or is a party or is threatened to be made a party to any Proceeding by or in the right
of the Company by reason of Indemnitee’s Corporate Status, Indemnitee shall be indemnified by the Company against all Indemnifiable
Expenses. Notwithstanding the foregoing, no Indemnitee shall be entitled to indemnification under this Section 3(b) for liability
which arose as a result of such Indemnitee’s gross negligence, bad faith or willful misfeasance.
Presumption Regarding Standard of Care. In making any determination required to be made under Delaware law with respect to entitlement
to indemnification hereunder, the person, persons or entity making such determination shall presume that Indemnitee is entitled to indemnification
under this Agreement if Indemnitee submitted a request therefor in accordance with Section 5, and the Company shall have the burden
of rebutting that presumption in connection with the making by any person, persons or entity of any determination contrary to that presumption
in a manner consistent with the 1940 Act.
to Indemnification. Subject to Section 20, Indemnitee shall be entitled to indemnification under Sections 3(a) and
3(b) above in all circumstances and with respect to each and every specific claim, issue or matter involved in the Proceeding out
of which Indemnitee’s claim for indemnification has arisen, except as follows:
Other Than by or in the Right of the Company. If indemnification is requested under Section 3(a),
it has been finally adjudicated by a court of competent jurisdiction that, in connection with such specific claim, issue or matter, Indemnitee
failed to act (i) in good faith and (ii) in a manner Indemnitee reasonably believed to be in or not opposed to the best interests
of the Company, or, with respect to any criminal Proceeding, Indemnitee had reasonable cause to believe that Indemnitee’s conduct
was unlawful, Indemnitee shall not be entitled to payment of Indemnifiable Amounts hereunder to the extent that they arise out of
such claim, issue or matter; or
Company shall not provide any indemnification of an Indemnitee for any Expenses and Liabilities arising from or out of an alleged violation
of federal or state securities laws by such Indemnitee unless one or more of the following conditions are met: (i) there has been
a successful adjudication on the merits of each count involving alleged securities law violations as to the Indemnitee, (ii) such
claims have been dismissed with prejudice on the merits by a court of competent jurisdiction as to the Indemnitee, or (iii) a court
of competent jurisdiction approves a settlement of the claims against the Indemnitee and finds that indemnification of the settlement
and the related costs should be made, and the court considering the request for indemnification has been advised of the position of the
Securities and Exchange Commission and of the published position of any state securities regulatory authority in which securities were
offered or sold as to indemnification for violations of securities laws.
by or in the Right of the Company. If indemnification is requested under Section 3(b) and
has been finally adjudicated by a court of competent jurisdiction that, in connection with such specific claim, issue or matter, Indemnitee
failed to act (A) in good faith and (B) in a manner Indemnitee reasonably believed to be in or not opposed to the best interests
of the Company, Indemnitee shall not be entitled to payment of Indemnifiable Expenses hereunder to the extent that they arise out
of such claim, issue or matter;
has been finally adjudicated by a court of competent jurisdiction that Indemnitee is liable to the Company with respect to such specific
claim, Indemnitee shall not be entitled to payment of Indemnifiable Expenses hereunder with respect to such claim, issue or matter
unless the district court or another court in which such Proceeding was brought shall determine upon application that, despite the adjudication
of liability, but in view of all the circumstances of the case, Indemnitee is fairly and reasonably entitled to indemnification for
such Indemnifiable Expenses that such court shall deem proper; or
has been finally adjudicated by a court of competent jurisdiction that Indemnitee is liable to the Company for an accounting of profits
made from the purchase or sale by Indemnitee of securities of the Company pursuant to the provisions of Section 16(b) of the
Securities Exchange Act of 1934, as amended, the rules and regulations promulgated thereunder and amendments thereto or similar provisions
of any federal, state or local statutory law, Indemnitee shall not be entitled to payment of Indemnifiable Expenses hereunder.
Proceeds. To the extent payment is actually made to Indemnitee under a valid and collectible insurance policy maintained at the expense
of the Company in respect of Indemnifiable Amounts in connection with such specific claim, issue or matter, Indemnitee shall not
be entitled to payment of Indemnifiable Amounts hereunder except in respect of any excess of such Indemnifiable Amounts beyond the amount
of payment under such insurance.
for Payment of Indemnifiable Amounts. Indemnitee shall submit to the Company a written request specifying the Indemnifiable Amounts
for which Indemnitee seeks payment under Section 3 and the basis for the claim. The Company shall pay such Indemnifiable Amounts
to Indemnitee promptly, but in no event later than ten (10) calendar days after receipt of such request. At the request of the Company, Indemnitee
shall furnish such documentation and information as are reasonably available to Indemnitee and necessary to establish that Indemnitee
is entitled to indemnification hereunder.
for Expenses of a Party Who is Wholly or Partially Successful. Notwithstanding any other provision of this Agreement, and without
limiting any such provision, to the extent that Indemnitee is, by reason of Indemnitee’s Corporate Status, a party to and is successful,
on the merits or otherwise, in any Proceeding, Indemnitee shall be indemnified against all Expenses incurred by Indemnitee or on
Indemnitee’s behalf in connection therewith. If Indemnitee is not wholly successful in such Proceeding but is successful, on the
merits or otherwise, as to one or more but less than all claims, issues or matters in such Proceeding, the Company shall indemnify Indemnitee
against all Expenses incurred by Indemnitee or on Indemnitee’s behalf in connection with each successfully resolved claim, issue
or matter. For purposes of this Agreement, the termination of any claim, issue or matter in such a Proceeding by dismissal, with or without
prejudice, by reason of settlement, judgment, order or otherwise, shall be deemed to be a successful result as to such claim, issue or
matter. For the avoidance of doubt, in the event that Indemnitee is not wholly successful and is adjudged liable, the Company shall indemnify
Indemnitee to the maximum extent not prohibited by (and not merely to the extent affirmatively permitted by) Delaware law and as permitted
by this Agreement.
of Certain Resolutions. Neither the settlement nor termination of any Proceeding nor the failure of the Company to award indemnification
or to determine that indemnification is payable shall create a presumption that Indemnitee is not entitled to indemnification hereunder.
In addition, the termination of any Proceeding by judgment, order, settlement, conviction, or upon a plea of nolo contendere or its equivalent
shall not create a presumption that Indemnitee did not meet the requisite standard of conduct described herein for indemnification.
to Advance Expenses; Undertaking. In a manner consistent with applicable law, including the 1940 Act, the Company shall advance all
Expenses incurred by or on behalf of Indemnitee in connection with any Proceeding, including a Proceeding by or in the right of the Company,
in which Indemnitee is involved by reason of such Indemnitee’s Corporate Status within ten (10) calendar days after the receipt
by the Company of a written statement from Indemnitee requesting such advance or advances from time to time, whether prior to or after
final disposition of such Proceeding. Advances shall be unsecured and interest free. Advances shall be made without regard to Indemnitee’s
ability to repay the expenses and without regard to Indemnitee’s ultimate entitlement to indemnification under the other provisions
of this Agreement. To the extent required by Delaware law and the 1940 Act, Indemnitee hereby undertakes to repay any and all of
the amount of Indemnifiable Expenses paid to Indemnitee if it is finally determined by a court of competent jurisdiction that Indemnitee
is not entitled under this Agreement to indemnification with respect to such Expenses. This undertaking is an unlimited general obligation
for Advance Payment of Expenses. Indemnitee shall submit to the Company a written request specifying the Indemnifiable Expenses for
which Indemnitee seeks an advancement under Section 8, together with documentation evidencing that Indemnitee has incurred such Indemnifiable
for Expenses of a Witness. Notwithstanding any other provision of this Agreement, to the extent that Indemnitee is, by reason of his
or her Corporate Status, a witness in any Proceeding to which Indemnitee is not a party, he or she shall be indemnified against all Expenses
actually and reasonably incurred by him or her on his or her behalf in connection therewith.
to Petition Court. In the event that Indemnitee makes a request for payment of Indemnifiable Amounts under Sections 3 and 5 or
a request for an advancement of Indemnifiable Expenses under Sections 8 and 9 and the Company fails to make such payment or advancement
in a timely manner pursuant to the terms of this Agreement, Indemnitee may petition the district court to enforce the Company’s
obligations under this Agreement.
of Proof. In any judicial proceeding brought under Section 11(a), the Company shall have the burden of proving that Indemnitee
is not entitled to payment of Indemnifiable Amounts hereunder.
In a manner consistent with applicable law, including the 1940 Act, the Company agrees to reimburse Indemnitee in full for any Expenses
incurred by Indemnitee in connection with investigating, preparing for, litigating, defending or settling any action brought by Indemnitee
under Section 11(a), or in connection with any claim or counterclaim brought by the Company in connection therewith, whether or not
Indemnitee is successful in whole or in part in connection with any such action, except to the extent that it has been finally adjudicated
by a court of competent jurisdiction that such reimbursement would be unlawful.
to Act Not a Defense. The failure of the Company (including its Board of Trustees or any committee thereof, independent legal counsel,
or shareholders) to make a determination concerning the permissibility of the payment of Indemnifiable Amounts or the advancement of Indemnifiable
Expenses under this Agreement shall not be a defense in any action brought under Section 11(a), and shall not create a presumption
that such payment or advancement is not permissible.
of the Underlying Proceeding.
by Indemnitee. Indemnitee agrees to notify the Company promptly upon being served with any summons, citation, subpoena, complaint,
indictment, information, or other document relating to any Proceeding which may result in the payment of Indemnifiable Amounts or the
advancement of Indemnifiable Expenses hereunder; provided, however, that the failure to give any such notice shall not disqualify Indemnitee
from the right, or otherwise affect in any manner any right of Indemnitee, to receive payments of Indemnifiable Amounts or advancements
of Indemnifiable Expenses unless the Company’s ability to defend in such Proceeding is materially and adversely prejudiced thereby.
by the Company. Subject to the provisions of the last sentence of this Section 12(b) and of Section 12(c), the Company
shall have the right to defend Indemnitee in any Proceeding which may give rise to the payment of Indemnifiable Amounts hereunder; provided,
however that the Company shall notify Indemnitee of any such decision to defend within ten (10) calendar days of receipt of notice
of any such Proceeding under Section 12(a). The Company shall not, without the prior written consent of Indemnitee, consent to the
entry of any judgment against Indemnitee or enter into any settlement or compromise which (i) includes an admission of fault of Indemnitee
or (ii) does not include, as an unconditional term thereof, the full release of Indemnitee from all liability in respect of such
Proceeding, which release shall be in form and substance reasonably satisfactory to Indemnitee. This Section 12(b) shall not
apply to a Proceeding brought by Indemnitee under Section 11(a) or pursuant to Section 20.
Right to Counsel. Notwithstanding the provisions of Section 12(b), if in a Proceeding to which Indemnitee is a party by reason
of Indemnitee’s Corporate Status, (i) Indemnitee reasonably concludes that he or she may have separate defenses or counterclaims
to assert with respect to any issue that may not be consistent with the position of other defendants in such Proceeding, (ii) a conflict
of interest or potential conflict of interest exists between Indemnitee and the Company, or (iii) if the Company fails to assume
the defense of such proceeding in a timely manner, Indemnitee shall be entitled to be represented by separate legal counsel of Indemnitee’s
choice at the expense of the Company. In addition, if the Company fails to comply with any of its obligations under this Agreement or
in the event that the Company or any other person takes any action to declare this Agreement void or unenforceable, or institutes any
action, suit or proceeding to deny or to recover from Indemnitee the benefits intended to be provided to Indemnitee hereunder, Indemnitee
shall have the right to retain counsel of Indemnitee’s choice, at the expense of the Company, to represent Indemnitee in connection
with any such matter and the Expenses incurred by Indemnitee in any such matter shall constitute Indemnifiable Expenses.
and Warranties of the Company. The Company hereby represents and warrants to Indemnitee as follows:
The Company has all necessary power and authority to enter into, and be bound by the terms of, this Agreement, and the execution, delivery
and performance of the undertakings contemplated by this Agreement have been duly authorized by the Company.
This Agreement, when executed and delivered by the Company in accordance with the provisions hereof, shall be a legal, valid and binding
obligation of the Company, enforceable against the Company in accordance with its terms, except as such enforceability may be limited
by applicable bankruptcy, insolvency, moratorium, reorganization or similar laws affecting the enforcement of creditors’ rights
The Company will use its reasonable best efforts to acquire trustees and officers liability insurance, on terms and conditions deemed
appropriate by the Board of Trustees, with a reputable insurance company providing Indemnitee with coverage for losses from wrongful acts.
For so long as Indemnitee shall have Corporate Status, Indemnitee shall be named as an insured in all policies of trustee and officer
liability insurance in such a manner as to provide Indemnitee the same rights and benefits as are accorded to the most favorably insured
of the Company’s officers and trustees. If, at the time of the receipt of a notice of a claim pursuant to the terms of this Agreement,
the Company has trustee and officer liability insurance in effect, the Company shall give prompt notice of the commencement of such proceeding
to the insurers in accordance with the procedures set forth in the respective policies. The Company shall thereafter take all necessary
or desirable action to cause such insurers to pay, on behalf of Indemnitee, all amounts payable as a result of such proceeding in accordance
with the terms of such policies.
Rights Not Exclusive. The rights to payment of Indemnifiable Amounts and advancement of Indemnifiable Expenses provided by this Agreement
shall be in addition to, but not exclusive of, any other rights which Indemnitee may have at any time under applicable law, any governing
documents of the Company or any other agreement, vote of shareholders or trustees (or a committee of trustees), or otherwise, both as
to action in Indemnitee’s official capacity and as to action in any other capacity as a result of Indemnitee’s serving as
a trustee of the Company.
This Agreement shall be (a) binding upon all successors and assigns of the Company (including any transferee of all or a substantial
portion of the business, shares and/or assets of the Company and any direct or indirect successor by merger or consolidation or otherwise
by operation of law) and (b) binding on and shall inure to the benefit of the heirs, personal representatives, executors and administrators
of Indemnitee. This Agreement shall continue for the benefit of Indemnitee and such heirs, personal representatives, executors and administrators
after Indemnitee has ceased to have Corporate Status.
In the event of any payment of Indemnifiable Amounts under this Agreement, the Company shall be subrogated to the extent of such payment
to all of the rights of contribution or recovery of Indemnitee against other persons, and Indemnitee shall take, at the request of the
Company, all reasonable action necessary to secure such rights, including the execution of such documents as are necessary to enable the
Company to bring suit to enforce such rights.
in Law. To the extent that a change in Delaware law or the 1940 Act (whether by statute or judicial decision) shall permit broader
indemnification or advancement of expenses than is provided under the terms of this Agreement, Indemnitee shall be entitled to such
broader indemnification and advancements, and this Agreement shall be deemed to be amended to such extent.
Whenever possible, each provision of this Agreement shall be interpreted in such a manner as to be effective and valid under applicable
law, but if any provision of this Agreement, or any clause thereof, shall be determined by a court of competent jurisdiction to be illegal,
invalid or unenforceable, in whole or in part, such provision or clause shall be limited or modified in its application to the minimum
extent necessary to make such provision or clause valid, legal and enforceable, and the remaining provisions and clauses of this Agreement
shall remain fully enforceable and binding on the parties.
as Plaintiff. Except as provided in Section 11(b), Indemnitee shall not be entitled to payment of Indemnifiable Amounts
or advancement of Indemnifiable Expenses with respect to any Proceeding brought by Indemnitee against the Company, any Entity which it
controls, any trustee or officer thereof, or any third party, unless the Board of Trustees of the Company has consented to the initiation
of such Proceeding or the Company provides indemnification, in its sole discretion, pursuant to the powers vested in the Company.
This Agreement shall continue until and terminate on the later of (i) the date that Indemnitee shall have ceased to serve as a
trustee of the Company or as a trustee of the Company and as a director, trustee, officer, partner, manager, managing member,
fiduciary, employee or agent of any other Entity that such person is or was serving in such capacity at the request of the Company and
(ii) the date that Indemnitee is no longer subject to any actual or possible Proceeding (including any rights of appeal thereto and
any Proceeding commenced by Indemnitee pursuant to this Agreement).
and Waivers; Counterparts. Except as provided in Section 18 with respect to changes in Delaware law which broaden the right of
Indemnitee to be indemnified by the Company or to receive advancements, no supplement, modification or amendment of this Agreement shall
be binding unless executed in writing by each of the parties hereto. No waiver of any of the provisions of this Agreement shall be deemed
or shall constitute a waiver of any other provisions of this Agreement (whether or not similar), nor shall such waiver constitute a continuing
waiver. 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. This Agreement may also be executed and delivered by facsimile signature and in two or more
counterparts, each of which shall be deemed an original, but all of which together shall constitute one and the same instrument.
Notices. All notices, requests, demands and other communications hereunder shall be in writing and shall be deemed to have been duly
given (a) when delivered by hand, (b) when transmitted by facsimile and receipt is acknowledged during normal business hours,
and if not, the next business day after transmission, or (c) if mailed by certified or registered mail with postage prepaid, on the
third business day after the date on which it is so mailed:
to Indemnitee, to:
to the Company, to:
Stellus Private Credit BDC
Attention: W. Xxxx Xxxxxxxxx
0000 Xxxx Xxx Xxxxxxx
Xxxxxxx, XX 00000
0000 X Xxxxxx, XX
Xxxxxxxxxx, XX 00000-0000
Attention: Xxxxx X. Xxxxxx
or to such other address as may have been furnished
in the same manner by any party to the others.
Law; Consent to Jurisdiction; Service of Process. This Agreement shall be governed by and construed in accordance with the laws of
the State of Delaware without regard to its rules of conflict of laws. Each of the Company and Indemnitee hereby irrevocably and
unconditionally consents to submit to the exclusive jurisdiction of the courts of the State of Delaware and the courts of the United States
of America located in the State of Delaware (the “Delaware Courts”) for any litigation arising out of or relating to
this Agreement and the transactions contemplated hereby (and agrees not to commence any litigation relating thereto except in such courts),
waives any objection to the laying of venue of any such litigation in the Delaware Courts and agrees not to plead or claim in any Delaware
Court that such litigation brought therein has been brought in an inconvenient forum. Each of the parties hereto agrees, (a) to the
extent such party is not otherwise subject to service of process in the State of Delaware, to appoint and maintain an agent in the State
of Delaware as such party’s agent for acceptance of legal process, and (b) that service of process may also be made on such
party by prepaid certified mail with a proof of mailing receipt validated by the United States Postal Service constituting evidence of
valid service. Service made pursuant to (a) or (b) above shall have the same legal force and effect as if served upon such party
personally within the State of Delaware. For purposes of implementing the parties’ agreement to appoint and maintain an agent for
service of process in the State of Delaware, each such party does hereby appoint Wilmington Trust, National Association, as such agent
and each such party hereby agrees to complete all actions necessary for such appointment. If and to the extent that any provision of the
laws of the State of Delaware or any provision of this Agreement shall conflict with any provision of the 1940 Act or The Employee Retirement
Income Security Act of 1974 (“ERISA”), the applicable provision of the 1940 Act or ERISA shall control.
Subsidiaries of the Company may from time to time join this Agreement by signing a joinder to this Agreement. The Company and all Subsidiaries
that have joined this Agreement shall be jointly and severally liable for all obligations of the Company under this Agreement.
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IN WITNESS WHEREOF, the parties
hereto have executed this Agreement as of the date first written above.
[Signature Page to