Exhibit 10.1




 





INVESTMENT ADVISORY


AND MANAGEMENT SERVICES AGREEMENT


 


This Investment Advisory and
Management Services Agreement (the “Agreement”) is made as of the 21st day of August, 2014, by and between BUSINESS
DEVELOPMENT CORPORATION OF AMERICA II, a Maryland corporation (the “Company”), and BDCA ADVISER II, LLC, a Delaware
limited liability company (the “Adviser”).


 


WHEREAS, the Company is a newly
organized, non-diversified, closed-end management investment company that intends to elect to be regulated as a business development
company (“BDC”) under the Investment Company Act of 1940, as amended (the “Investment Company Act”);


 


WHEREAS, the Adviser is an investment
adviser register under the Investment Advisers Act of 1940 (the “Advisers Act”); and


 


WHEREAS, the Company desires
to retain the Adviser to furnish investment advisory services to the Company and to provide for the administrative services necessary
for the operation of the Company on the terms and conditions hereinafter set forth, and the Adviser wishes to be retained to provide
such services.


 


NOW, THEREFORE, in consideration of the
premises and for other good and valuable consideration, the sufficiency of which is hereby acknowledged by both parties, the parties
hereby agree as follows:


 


1.Duties of the Adviser.


 


(a)Retention of Adviser. The Company
hereby employs the Adviser to act as the investment adviser to the Company, to manage the activities of the Company and to
make investment decisions with respect to the Company’s portfolio, subject to the supervision of the Board of Directors
of the Company (the “Board”), for the period and upon the terms set forth herein:


 


(i)in accordance with
the investment objectives, policies and restrictions that are set forth in the Company’s Registration Statement on Form
N-2 (File No. 333-197447) filed with the Securities and Exchange Commission (the “SEC”), as amended from time to
time (the “Registration Statement”), for the registration of up to $3,000,000,000 in shares of the
Company’s common stock (the “Shares”) in the Company’s public offering (the “Offering”);
and


 


(ii)during the term of
this Agreement in accordance with all other applicable federal and state laws, rules and regulations, and the Company’s charter
and bylaws, in each case as amended from time to time.


 


(b)Responsibilities of Adviser.
Without limiting the generality of the foregoing, the Adviser shall, during the term and subject to the provisions of this
Agreement:


 


(i)determine the composition
and allocation of the portfolio of the Company, the nature and timing of the changes therein and the manner of implementing such
changes;


 


(ii)identify, evaluate
and negotiate the structure of the investments made by the Company;


 


(iii)execute, monitor and
service the Company’s investments;


 


(iv)determine the securities
and other assets that the Company shall purchase, retain, or sell;


 






    	 



    	 



    

 


(v)perform due diligence on prospective portfolio companies; and


 


(vi)provide the Company
with such other investment advisory, research and related services as the Company may, from time to time, reasonably require for
the investment of its funds.


 


(c)Power and Authority. To
facilitate the Adviser’s performance of these responsibilities, but subject to the restrictions contained herein, the
Company hereby delegates to the Adviser, and the Adviser hereby accepts, the power and authority on behalf of the Company to
effectuate investment decisions for the Company, including the execution and delivery of all documents relating to the
Company’s investments and the placing of orders for other purchase or sale transactions on behalf of the Company. In
the event that the Company determines to obtain debt financing, the Adviser shall arrange for such financing on the
Company’s behalf, subject to the oversight and approval of the Board.


 


(d)Acceptance of Engagement. The
Adviser hereby accepts such engagement and agrees during the term of this Agreement to render the services described herein
for the compensation provided herein, subject to the limitations contained herein.


 


(e)Sub-Advisers. The Adviser is
hereby authorized to enter into one or more sub-advisory agreements with other investment advisers (each, a “Sub-Adviser”) pursuant
to which the Adviser may obtain the services of the Sub-Adviser(s) to assist the Adviser in fulfilling its
responsibilities hereunder. Specifically, the Adviser may retain a Sub-Adviser to recommend specific securities or other
investments based upon the Company’s investment objectives, policies and restrictions, and work, along with the
Adviser, in sourcing, structuring, negotiating, arranging or effecting the acquisition or disposition of such investments and
monitoring investments on behalf of the Company, subject to the oversight of the Adviser and the Company.


 


(i)The Adviser and not
the Company shall be responsible for any compensation payable to any Sub-Adviser.


 


(ii)Any sub-advisory
agreement entered into by the Adviser shall be in accordance with the requirements of the Investment Company Act including without
limitation the requirements relating to Board and Company stockholder approval thereunder, and other applicable federal and state
law.


 


(iii)Any Sub-Adviser
shall be subject to the same fiduciary duties imposed on the Adviser pursuant to this Agreement, the Investment Company Act and
the Advisers Act, as well as other applicable federal and state law.


 


(f)Independent Contractor Status.
The Adviser shall, for all purposes herein provided, be deemed to be an independent contractor and, except as expressly
provided or authorized herein, shall have no authority to act on behalf of or represent the Company in any way or otherwise
be deemed an agent of the Company.


 


(g)Retention. Subject to
review by and the overall control of the Board, the Adviser shall keep and preserve for the period required by the Investment
Company Act any books and records relevant to the provision of its investment advisory services to the Company and shall
specifically maintain all books and records with respect to the Company’s portfolio transactions and shall render to
the Board such periodic and special reports as the Board may reasonably request or as may be required under applicable
federal and state law, and shall make such records available for inspection by the Board and its authorized agents, at any
time and from time to time during normal business hours. The Adviser agrees that all records that it maintains for the
Company are the property of the Company and shall surrender promptly to the Company any such records upon the Company’s
request and upon termination of this Agreement pursuant to Section 9, provided that the Adviser may retain a copy of such
records.


 






    	2



    	 



    

 





The following provisions in this Section 1 shall
apply for only so long as the Shares are not listed on a national securities exchange.


 


(h)State Administrator.
The Adviser shall, upon request by an official or agency administering the securities laws of a state (an “State Administrator”),
submit to such State Administrator the reports and statements required to be distributed to Company stockholders pursuant to this
Agreement, the Registration Statement and applicable federal and state law.


 


(i)Fiduciary Duty.
It is acknowledged that the Adviser shall have a fiduciary responsibility for the safekeeping and use of all funds and assets of
the Company, whether or not in the Adviser’s immediate possession or control. The Adviser shall not employ, or permit another
to employ, such funds or assets in any manner except for the exclusive benefit of the Company. The Adviser shall not, by entry
into an agreement with any stockholder of the Company or otherwise, contract away the fiduciary obligation owed to the Company
and the Company stockholders.


 


2.Expenses.


 


(a)Costs. Subject to the limitations
on reimbursement of the Adviser as set forth in Section 2(b) below, the Company, either directly or through reimbursement to
the Adviser, shall bear all other costs and expenses of its operations and transactions, including (without limitation) fees
and expenses relating to: expenses deemed to be “organization and offering expenses” of the Company for purposes
of Conduct Rule 2310(a)(12) of the Financial Industry Regulatory Authority, Inc. (for purposes of this Agreement, such
expenses, exclusive of selling commissions, the dealer manager fee and any discounts, are hereinafter referred to as “Organization
and Offering Expenses”); amounts paid to third parties for administrative services; the investigation and
monitoring of the Company’s investments; the cost of calculating the Company’s net asset value; the cost of
effecting sales and repurchases of shares of the Company’s common stock and other securities; management and incentive
fees payable pursuant to this Agreement; fees payable to third parties relating to, or associated with, making investments
and valuing investments (including third-party valuation firms), transfer agent and custodial fees; fees and expenses
associated with marketing efforts (including attendance at investment conferences and similar events); federal and state
registration fees; any exchange listing fees; federal, state and local taxes; independent directors’ fees and expenses;
brokerage commissions; costs of proxy statements; stockholders’ reports and notices; costs of preparing government
filings, including periodic and current reports with the SEC; fidelity bond, liability insurance and other insurance
premiums; and printing, mailing, independent accountants and outside legal costs.


 


Notwithstanding the foregoing,
the Company shall not be liable for Organization and Offering Expenses to the extent that Organization and Offering Expenses, together
with all prior Organization Offering Expenses, exceeds the greater of $125,000 and 1.5% of the aggregate gross proceeds from the
Offering (the “Offering Proceeds”). More specifically, the Company shall be obligated to reimburse the Adviser
for all current and past Organization and Offering Expenses paid by the Adviser and not already reimbursed by the Company (the
“Reimbursable O&O Expenses”) as follows:


 


(i)if the Offering Proceeds are $12,500,000
or less, the Company shall reimburse the Adviser for such Reimbursable O&O Expenses to the extent that the Reimbursable
O&O Expenses, together with all past Organization Offering Expenses for which the Adviser has received reimbursement,
does not exceed $125,000; or


 






    	3



    	 



    

 


(ii)if the Offering Proceeds exceed
$12,500,000, the Company shall reimburse the Adviser for such Reimbursable O&O Expenses to the extent that the
Reimbursable O&O Expenses, together with all past Organization and Offering Expenses for which the Adviser has received
reimbursement, does not exceed an amount equal to 1.5% of the Offering Proceeds or a maximum reimbursement of $45,000,000,
assuming the maximum offering size is $3,000,000,000.


 


The following provisions in this Section 2(b) shall apply
for only so long as the Shares are not listed on a national securities exchange.


 


(b)Limitations on Reimbursement of
Expenses. In addition to the compensation paid to the Adviser pursuant to Section 3, the Company shall reimburse the
Adviser for all expenses of the Company incurred by the Adviser as well as the actual cost of goods and services used for or
by the Company and obtained from entities not affiliated with the Adviser. The Adviser may be reimbursed for the
administrative services performed by it on behalf of the Company; provided, however, the reimbursement shall be an amount
equal to the lower of the Adviser’s actual cost or the amount the Company would be required to pay third parties for
the provision of comparable administrative services in the same geographic location; and provided, further, that such costs
are reasonably allocated to the Company on the basis of assets, revenues, time records or other method conforming with
generally accepted accounting principles. No reimbursement shall be permitted for services for which the Adviser is entitled
to compensation by way of a separate fee. Excluded from the allowable reimbursement shall be:


 


(i)rent or depreciation, utilities,
capital equipment, and other administrative items of the Adviser; and


 


(ii)salaries, fringe
benefits, travel expenses and other administrative items incurred by or allocated to any executive officer or board member of the
Adviser (or any individual performing such services) or a holder of 10.0% or greater equity interest in the Adviser (or any person
having the power to direct or cause the direction of the Adviser, whether by ownership of voting securities, by contract or otherwise).


 


(c)Periodic Reimbursement. Expenses
incurred by the Adviser on behalf of the Company and payable pursuant to this Section 2 shall be reimbursed no less than
monthly to the Adviser. The Adviser shall prepare a statement documenting the expenses of the Company and the calculation of
the reimbursement and shall deliver such statement to the Company prior to full reimbursement.


 


3.Compensation of the Adviser.
The Company agrees to pay, and the Adviser agrees to accept, as compensation for the services provided by the Adviser
hereunder, a management fee (“Management Fee”) and an incentive fee (“Incentive Fee”)
as hereinafter set forth. The Adviser may agree to temporarily or permanently waive, in whole or in part, the Management Fee
and/or the Incentive Fee.


 


(a)Management Fee.
The Management Fee shall be calculated at an annual rate of 1.0% of the Company’s average gross assets, whether held directly
by the Company or through a wholly-owned subsidiary. The Management Fee shall be payable quarterly in arrears, and shall be calculated
based on the average value of the Company’s gross assets at the end of the two most recently completed calendar quarters.
All or any part of the Management Fee not taken as to any quarter shall be deferred without interest and may be taken in such other
quarter as the Adviser shall determine. The Management Fee for any partial month or quarter shall be appropriately pro rated.


 


(b)Incentive Fee. The Incentive
Fee shall consist of two parts, as follows:


 






    	4



    	 



    

 


(i)The first
part, referred to as the “Subordinated Incentive Fee on Income,” shall be calculated and payable quarterly
in arrears based on the Company’s Pre-Incentive Fee Net Investment Income (as defined in this Section 3(b)) for the
immediately preceding quarter. The payment of the Subordinated Incentive Fee on Income shall be subject to payment of a
preferred return to investors each quarter, expressed as a quarterly rate of return on Adjusted Capital (as defined in this
Section 3(b)) at the beginning of the most recently completed calendar quarter, of 1.6875% (6.75% annualized), subject to a
“catch up” feature (as described below). The calculation of the Subordinated Incentive Fee on Income for each
quarter is as follows:


 


(A)The Subordinated Incentive
Fee on Income shall not be payable to the Adviser in any calendar quarter in which the Company’s Pre-Incentive Fee Net Investment
Income does not exceed the preferred return rate of 1.6875%, or 6.75% annualized (the “Preferred Return”), on
Adjusted Capital;


 


(B)100% of the Company’s
Pre-Incentive Fee Net Investment Income, if any, that exceeds the preferred return but is less than or equal to 1.9853% in any
calendar quarter (7.94% annualized) shall be payable to the Adviser. This portion of the company’s Subordinated Incentive
Fee on Income is referred to as the “catch up” and is intended to provide the Adviser with an incentive fee of 15.0%
on all of the Company’s Pre-Incentive Fee Net Investment Income when the Company’s Pre-Incentive Fee Net Investment
Income reaches 1.9853% (7.94% annualized) in any calendar quarter; and


 


(C)For any quarter in
which the Company’s Pre-Incentive Fee Net Investment Income exceeds 1.9853%, or 7.94% annualized, the Subordinated Incentive
Fee on Income shall equal 15.0% of the amount of the Company’s Pre-Incentive Fee Net Investment Income, as the Preferred
Return and catch-up will have been achieved;


 


(ii)The second part of the incentive fee,
referred to as the “Incentive Fee on Capital Gains During Operations,” shall be an incentive fee on capital gains
earned on liquidated investments from the portfolio during operations prior to the liquidation of the Company and shall be
determined and payable in arrears as of the end of each calendar year (or upon termination of the investment advisory
agreement). This fee shall equal 15.0% of the Company’s incentive fee capital gains, which shall equal the
Company’s realized capital gains on a cumulative basis from inception, calculated as of the end of each calendar year,
computed net of all realized capital losses and unrealized capital depreciation on a cumulative basis, less the aggregate
amount of any previously paid capital gain incentive fees.


 


(iii)For purposes of this Section 3(b):


 


(A)“Pre-Incentive Fee Net Investment
Income” means interest income, dividend income and any other income (including any other fees, other than fees for
providing managerial assistance, such as commitment, origination, structuring, diligence and consulting fees or other fees
that the Company receives from portfolio companies) accrued during the calendar quarter, minus the Company’s operating
expenses for the quarter (including the base management fee, expenses payable under the administration agreement and any
interest expense and dividends paid on any issued and outstanding preferred stock, but excluding the incentive fee).
Pre-Incentive Fee Net Investment Income includes, in the case of investments with a deferred interest feature (such as
original issue discount debt instruments with payment-in-kind interest and zero coupon securities), accrued income that the
Company has not yet received in cash. Pre-Incentive Fee Net Investment Income does not include any realized capital gains,
realized capital losses or unrealized capital appreciation or depreciation.


 






    	5



    	 



    

 





(B)“Adjusted Capital”
shall mean cumulative gross proceeds generated from sales of the Company’s common stock (including proceeds from the Company’s
distribution reinvestment plan) reduced for distributions from non-liquidating dispositions of the Company’s investments
paid to stockholders and amounts paid for share repurchases pursuant to the Company’s share repurchase program.


 


(C)“Cumulative Net Increase
in Net Assets Resulting from Operations” is the amount, if positive, of the sum of Pre-Incentive Fee Net Investment Income,
Base Management Fees, realized gains and losses and unrealized appreciation and depreciation of the Company for the quarter for
which such fees are being calculated and the 11 preceding quarters.


 


4.Covenants of the Adviser.


 


(a)Adviser Status. The Adviser
covenants that it is duly registered as an investment adviser under the Advisers Act and will maintain such registration. The Adviser
agrees that its activities will at all times be in compliance in all material respects with all applicable federal and state laws
governing its operations and investments.


 


The following provisions
in this Section 4 shall apply for only so long as the Shares are not listed on a national securities exchange.


 


(b)Reports to Stockholders.
The Adviser shall prepare or shall cause to be prepared and distributed to stockholders during each year the following reports
of the Company (either included in a periodic report filed with the SEC or distributed in a separate report):


 


(i)Quarterly Reports. Within 60 days
of the end of each quarter, a report containing the same financial information contained in the Company’s Quarterly
Report on Form 10-Q filed with the SEC under the Securities Exchange Act of 1934, as amended.


 


(ii)Annual
Report. Within 120 days after the end of
the Company’s fiscal year, an annual report containing:


 


(A)A balance sheet as of
the end of each fiscal year and statements of income, equity, and cash flow, for the year then ended, all of which shall be prepared
in accordance with generally accepted accounting principles and accompanied by an auditor’s report containing an opinion
of an independent certified public accountant;


 


(B)A report of the activities
of the Company during the period covered by the report;


 


(C)Where forecasts have
been provided to the Company’s stockholders, a table comparing the forecasts previously provided with the actual results
during the period covered by the report; and


 


(D)A report setting forth
distributions by the Company for the period covered thereby and separately identifying distributions from (i) cash flow from operations
during the period; (ii) cash flow from operations during a prior period which have been held as reserves; and (iii) proceeds from
disposition of Company assets.


 


(iii)Previous Reimbursement Reports.
The Adviser shall prepare or shall cause to be prepared a report, prepared in accordance with the American Institute of
Certified Public Accountants United States Auditing Standards relating
to special reports, and distributed to stockholders not less than annually, containing an itemized list of the costs reimbursed
to the Adviser pursuant to Section 2(b) for the previous fiscal year. The special report shall at a minimum provide:


 






    	6



    	 



    

 





 


(A)A review of the time
records of individual employees, the costs of whose services were reimbursed; and


 


(B)A review of the specific
nature of the work performed by each such employee.


 


(iv)Proposed Reimbursement
Reports. The Adviser shall prepare or shall cause to be prepared a report containing an itemized estimate of all proposed expenses
for which it shall receive reimbursements pursuant to Section 2(b) of this Agreement for the next fiscal year, together with a
breakdown by year of such expenses reimbursed in each of the last five public programs formed by the Adviser.


 


(v)Proposed Federal
Income Tax Returns. Within 75 days after the end of the Company’s fiscal year, all information necessary for Stockholders’
to prepare their federal income tax returns.


 


(c)Reports to State Administrators.
The Adviser shall, upon written request of any State Administrator, submit any of the reports and statements to be prepared and
distributed by it pursuant to this Section 4 to such State Administrator.


 


(d)Reserves. In performing
its duties hereunder, the Adviser shall cause the Company to provide for adequate reserves for normal replacements and contingencies
(but not for the payment of fees payable to the Adviser described in Section 3) by causing the Company to retain a reasonable percentage
of proceeds from offerings and revenues.


 


(e)Recommendations Regarding
Reviews. From time to time and not less than quarterly, the Adviser must review the Company’s accounts to determine whether
cash distributions are appropriate. The Company may, subject to authorization by the Board, distribute pro rata to the stockholders
funds received by the Company which the Adviser deems unnecessary to retain in the Company.


 


(f)Temporary Investments.
The Adviser shall, in its sole discretion, temporarily place proceeds from offerings by the Company of its equity securities into
short-term, highly liquid investments which, in its reasonable judgment, afford appropriate safety of principal during such time
as it is determining the composition and allocation of the portfolio of the Company and the nature, timing and implementation of
any changes thereto pursuant to Section 1(b); provided however, that the Adviser shall be under no fiduciary obligation to select
any such short-term, highly liquid investment based solely on any yield or return of such investment. The Adviser shall cause any
proceeds of the offering of Company securities not committed for investment within the later of two years from the date of effectiveness
of the Registration Statement or one year from termination of the offering, unless a longer period is permitted by the applicable
State Administrator, to be paid as a distribution to the stockholders of the Company as a return of capital without deduction of
Front End Fees (as defined below in Section 5(b)).


 






    	7



    	 



    

 


 


5.Payment of and Limitations
on Brokerage Commissions.


 


(a)Brokerage Commissions. The
Adviser is hereby authorized, to the fullest extent now or hereafter permitted by law, to cause the Company to pay a member of
a national securities exchange, broker or dealer an amount of commission for effecting a securities transaction in excess of the
amount of commission another member of such exchange, broker or dealer would have charged for effecting that transaction, if the
Adviser determines in good faith, taking into account such factors as price (including the applicable brokerage commission or dealer
spread), size of order, difficulty of execution, and operational facilities of the firm and the firm’s risk and skill in
positioning blocks of securities, that such amount of commission is reasonable in relation to the value of the brokerage and/or
research services provided by such member, broker or dealer, viewed in terms of either that particular transaction or its overall
responsibilities with respect to the Company’s portfolio, and constitutes the best net results for the Company.


 


The following provisions in this Section 5
shall apply for only so long as the Shares are not listed on a national securities exchange.


 


(b)Limitations. Notwithstanding
anything herein to the contrary:


 


(i)All fees and expenses paid
by any party for any services rendered to organize the Company and to acquire assets for the Company (“Front End Fees”)
shall be reasonable and shall not exceed 18% of the Offering Proceeds, regardless of the source of payment. Any reimbursement to
the Adviser or any other person for deferred Organizational and Offering Expenses, including any interest thereon, if any, will
be included within this 18% limitation.


 


(ii)The Adviser shall
commit at least 82% of the Offering Proceeds towards the investment or reinvestment of assets and reserves as set forth in Section
4(d) above on behalf of the Company. The remaining proceeds may be used to pay Front End Fees.


 


6.Other Activities of the Adviser. The
services of the Adviser to the Company are not exclusive, and the Adviser may engage in any other business or render similar
or different services to others including, without limitation, the direct or indirect sponsorship or management of other
investment-based accounts or commingled pools of capital, however structured, having investment objectives similar to those
of the Company, so long as its services to the Company hereunder are not impaired thereby, and nothing in this Agreement
shall limit or restrict the right of any manager, partner, member (including its members and the owners of its members),
officer or employee of the Adviser to engage in any other business or to devote his or her time and attention in part to any
other business, whether of a similar or dissimilar nature, or to receive any fees or compensation in connection therewith
(including fees for serving as a director of, or providing consulting services to, one or more of the Company’s
portfolio companies, subject to applicable law). The Adviser assumes no responsibility under this Agreement other than to
render the services called for hereunder. It is understood that directors, officers, employees and stockholders of the
Company are or may become interested in the Adviser and its affiliates, as directors, officers, employees, partners,
stockholders, members, managers or otherwise, and that the Adviser and directors, officers, employees, partners,
stockholders, members and managers of the Adviser and its affiliates are or may become similarly interested in the Company as
stockholders or otherwise.


 


7.Responsibility of Dual Directors, Officers
and/or Employees. If any person who is a manager, partner, member, officer or employee of the Adviser is or
becomes a director, officer and/or employee of the Company and acts as such in any business of the Company, then such
manager, partner, member, officer and/or employee of the Adviser shall be deemed to be acting in such capacity solely for the
Company, and not as a manager, partner, member, officer or employee of the Adviser or under the control or direction of the
Adviser, even if paid by the Adviser.


 






    	8



    	 



    

 


8.Indemnification.


 


(a)Indemnification.
The Adviser (and its officers, managers, partners, members (and their members, including the owners of their members), agents,
employees, controlling persons and any other person or entity affiliated with the Adviser) shall not be liable to the Company for
any action taken or omitted to be taken by the Adviser in connection with the performance of any of its duties or obligations under
this Agreement or otherwise as an investment advisor of the Company (except to the extent specified in Section 36(b) of the Investment
Company Act concerning loss resulting from a breach of fiduciary duty (as the same is finally determined by judicial proceedings)
with respect to the receipt of compensation for services, and the Company shall indemnify, defend and protect the Adviser (and
its officers, managers, partners, members (and their members, including the owners of their members), agents, employees, controlling
persons and any other person or entity affiliated with the Adviser, each of whom shall be deemed a third party beneficiary hereof)
(collectively, the “Indemnified Parties”) and hold them harmless from and against all damages, liabilities,
costs and expenses (including reasonable attorneys’ fees and amounts reasonably paid in settlement) incurred by the Indemnified
Parties in or by reason of any pending, threatened or completed action, suit, investigation or other proceeding (including an action
or suit by or in the right of the Company or its security holders) arising out of or otherwise based upon the performance of any
of the Adviser’s duties or obligations under this Agreement or otherwise as an investment adviser of the Company, to the
extent such damages, liabilities, costs and expenses are not fully reimbursed by insurance, and to the extent that such indemnification
would not be inconsistent with the laws of the State of Maryland, the charter of the Company or the provisions of Section II.G
of the Omnibus Guidelines published by the North American Securities Administrators Association on March 29, 1992, as it may be
amended from time to time.


 


The following provisions in this Section 8
shall apply for only so long as the Shares are not listed on a national securities exchange.


 


(b)Limitations on Indemnification.
Notwithstanding Section 8(a) to the contrary, the Company shall not provide for indemnification of the Indemnified Parties for
any liability or loss suffered by the Indemnified Parties, nor shall the Company provide that any of the Indemnified Parties be
held harmless for any loss or liability suffered by the Company, unless all of the following conditions are met:


 


(i)the Indemnified Party
has determined, in good faith, that the course of conduct which caused the loss or liability was in the best interests of the Company;


 


(ii)the Indemnified Party
was acting on behalf of or performing services for the Company;


 


(iii)such liability or
loss was not the result of negligence or misconduct by the Indemnified Party; and


 


(iv)such indemnification or
agreement to hold harmless is recoverable only out of the Company’s net assets and not from stockholders.


 


Furthermore, the Indemnified
Party shall not be indemnified for any losses, liabilities or expenses arising from or out of an alleged violation of federal or
state securities laws 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 particular indemnitee;


 






    	9



    	 



    

 


(ii)such claims have been
dismissed with prejudice on the merits by a court of competent jurisdiction as to the particular indemnitee; or


 


(iii)a court of competent
jurisdiction approves a settlement of the claims against a particular indemnitee and finds that indemnification of the settlement
and related costs should be made, and the court of law considering the request for indemnification has been advised of the position
of the SEC and the published position of any state securities regulatory authority in which securities of the Company were offered
or sold as to indemnification for violations of securities laws.


 


(c)Advancement of Funds. The Company
shall be permitted to advance funds to the Indemnified Party for legal expenses and other costs incurred as a result of any
legal action for which indemnification is being sought only if all of the following conditions are met:


 


(i)The legal action relates
to acts or omissions with respect to the performance of duties or services on behalf of the Company;


 


(ii)The legal action
is initiated by a third party who is not a Company stockholder, or the legal action is initiated by a Company stockholder and a
court of competent jurisdiction specifically approves such advancement; and


 


(iii)The Indemnified
Party undertakes to repay the advanced funds to the Company, together with the applicable legal rate of interest thereon, in cases
in which the Indemnified Party is not found to be entitled to indemnification.


 


9.Effectiveness, Duration and Termination of Agreement.


 


(a)Term and Effectiveness. This
Agreement shall become effective as of the date that the Company meets the minimum offering requirement, as such term is defined
in the prospectus contained in the Registration Statement. This Agreement shall remain in effect for two years, and thereafter
shall continue automatically for successive annual periods, provided that such continuance is specifically approved at least annually
by (i) the vote of the Board, or by the vote of a majority of the outstanding voting securities of the Company and (ii) the vote
of a majority of the Company’s directors who are not “interested persons” (as such term is defined in Section
2(a)(19) of the Investment Company Act) of any such party, in accordance with the requirements of the Investment Company Act.


 


(b)Termination. This Agreement
may be terminated at any time, without the payment of any penalty, (a) by the Company upon 60 days’prior written notice to
the Adviser, (i) upon the vote of a majority of the outstanding voting securities of the Company, or (ii) by the vote of the Company’s
independent directors, or (b) by the Adviser upon 60 days’ prior written notice to the Company. This Agreement shall automatically
terminate in the event of its “assignment” (as such term is defined for purposes of Section 15(a)(4) of the Investment
Company Act). The provisions of Section 8 of this Agreement shall remain in full force and effect, and the Adviser shall remain
entitled to the benefits thereof, notwithstanding any termination of this Agreement.


 


(c)Payments to and Duties of the
Adviser Upon Termination.


 


(i)After the termination of this Agreement,
the Adviser shall not be entitled to compensation for further services provided hereunder except that it shall be entitled to
receive from the Company within 30 days after the effective date of such termination all unpaid reimbursements and all earned
but unpaid fees payable to the Adviser prior to termination of this Agreement. If the Company and the Adviser cannot
agree on the amount of such reimbursements and fees, the parties will submit to binding arbitration.


 






    	10



    	 



    

 





 


(ii)The Adviser shall promptly upon termination:


 


(A)Deliver to the Board
a full accounting, including a statement showing all payments collected by it and a statement of all money held by it, covering
the period following the date of the last accounting furnished to the Board;


 


(B)Deliver to the Board
all assets and documents of the Company then in custody of the Adviser; and


 


(C)Cooperate with the
Company to provide an orderly management transition.


 


The following provisions in this Section 9 shall
apply for only so long as the Shares are not listed on a national securities exchange.


 


(d)Other Matters.
Without the approval of holders of a majority of the shares entitled to vote on the matter, the Adviser shall not: (i) amend this
Agreement except for amendments that do not adversely affect the interests of the stockholders; (ii) voluntarily withdraw as the
Adviser unless such withdrawal would not affect the tax status of the Company and would not materially adversely affect the stockholders;
(iii) appoint a new Adviser; (iv) sell all or substantially all of the Company’s assets other than in the ordinary course
of the Company’s business; or (v) cause the merger or other reorganization of the Company. In the event that the Adviser
should withdraw pursuant to (ii) above, the withdrawing Adviser shall pay all expenses incurred as a result of its withdrawal.
The Company may terminate the Adviser’s interest in the Company’s revenues, expenses, income, losses, distributions
and capital by payment of an amount equal to the then present fair market value of the terminated Adviser’s interest, determined
by agreement of the terminated Adviser and the Company. If the Company and the Adviser cannot agree upon such amount, then such
amount will be determined in accordance with the then current rules of the American Arbitration Association. The expenses of such
arbitration shall be borne equally by the terminated Adviser and the Company. The method of payment to the terminated Adviser must
be fair and must protect the solvency and liquidity of the Company.


 


(e)With respect to any shares
owned by the Adviser, the Adviser may not vote or consent on matters submitted to the stockholders of the Company regarding the
removal of the Adviser or regarding any transaction between the Company and the Adviser. In determining the existence of the requisite
percentage of shares necessary to approve a matter on which the Adviser may not vote or consent, any shares owned by the Adviser
shall not be included.


 


10.Conflicts of Interests and Prohibited Activities.


 


The following provisions in this Section 10 shall apply
for only so long as the Shares are not listed on a national securities exchange.


 


(a)No Exclusive Agreement.
The Adviser is not hereby granted or entitled to an exclusive right to sell or exclusive employment to sell assets for the Company.


 


(b)Rebates, Kickbacks and Reciprocal
Arrangements.


 


(i)The Adviser agrees that it shall not
(A) receive or accept any rebate, give-up or similar arrangement that is prohibited under applicable federal or state
securities laws, (B) participate in any reciprocal business arrangement
that would circumvent provisions of applicable federal or state securities laws governing conflicts of interest or investment restrictions,
or (C) enter into any agreement, arrangement or understanding that would circumvent the restrictions against dealing with affiliates
or promoters under applicable federal or state securities laws.


 






    	11



    	 



    

 





 


(ii)The Adviser agrees that it shall not
directly or indirectly pay or award any fees or commissions or other compensation to any person or entity engaged to sell the
Company’s stock or give investment advice to a potential stockholder; provided, however, that this subsection shall not
prohibit the payment of a registered broker-dealer or other properly licensed agent from sales commissions for selling or
distributing the Company’s common stock.


 


(c)Commingling. The Adviser
covenants that it shall not permit or cause to be permitted the Company’s funds from being commingled with the funds of
any other entity. Nothing in this Section 10(c) shall prohibit the Adviser from establishing a master fiduciary account
pursuant to which separate sub-trust accounts are established for the benefit of affiliated programs, provided that the
Company’s funds are protected from the claims of other programs and creditors of such programs.


 


11.Notices. Any notice under this
Agreement shall be given in writing, addressed and delivered or mailed, postage prepaid, to the other party at its principal
office.


 


	If to the Company:	Business Development Corporation of America II
	 	405 Park Avenue
	 	3rd Floor
	 	New York, NY 10022
	 	Facsimile No: (212) 421-5799 Attention: General Counsel
	 	 
	 	with a copy to (which shall not constitute a Notice):
	 	 
	 	Alston & Bird LLP
	 	1201 West Peachtree Street
	 	Atlanta, GA 30309
	 	Facsimile No: (404) 253-8447
	 	Attention: Rosemarie A. Thurston
	 	 
	If to the Adviser:	BDCA Adviser II, LLC
	 	405 Park Avenue
	 	3rd Floor
	 	New York, NY 10022
	 	Facsimile No: (212) 421-5799 

Attention: General Counsel
	 	 
	 	with a copy to (which shall not constitute a Notice):
	 	 
	 	Alston & Bird LLP
	 	1201 West Peachtree Street
	 	Atlanta, GA 30309
	 	Facsimile No: (404) 253-8447
	 	Attention: Rosemarie A. Thurston


 






    	12



    	 



    

 


 


12.Amendments. This Agreement may
be amended only by written mutual consent of the Adviser and the Company.


 


13.Entire Agreement. This Agreement
contains the entire agreement of the parties and supersedes all prior agreements, understandings and arrangements with respect
to the subject matter hereof.


 


14.Governing Law. Notwithstanding the place
where this Agreement may be executed by any of the parties hereto, this Agreement shall be construed in accordance with the laws
of the State of New York. For so long as the Company is regulated as a business development company under the Investment Company
Act, this Agreement shall also be construed in accordance with the applicable provisions of the Investment Company Act. In such
case, to the extent the applicable laws of the State of New York, or any of the provisions herein, conflict with the provisions
of the Investment Company Act, the latter shall control.


 


[Signatures on following page.]


 






    	13



    	 



    

 


IN WITNESS
WHEREOF, the parties hereto have caused this Investment Advisory and Management Services Agreement to be duly executed on the date
above written.


 


 


BUSINESS DEVELOPMENT CORPORATION
OF AMERICA II


 


 


By:/s/
Nicholas S. Schorsch 


Name: Nicholas S. Schorsch


Title: Chairman and Chief Executive Officer


 


 


BDCA ADVISER II, LLC


 


By:/s/
Peter M. Budko 


Name: Peter M. Budko


Title: Chief Executive Officer