AGENCY ASSIGNMENT AGREEMENT
Exhibit 10.34
AGENCY ASSIGNMENT AGREEMENT
This AGENCY ASSIGNMENT AGREEMENT (this “Agreement”), dated as of May 12, 2025, by and among HERCULES CAPITAL, INC. (“Hercules”), the Lenders party hereto, which collectively constitute the Required Lenders (the “Required Lenders”), SD MF 4 LLC (“SDMF”), and Eloxx Pharmaceuticals, Inc., a Delaware corporation (“Eloxx”), Zikani Therapeutics, Inc., a Delaware corporation (together with Eloxx, the “Borrower”), and is acknowledged and agreed to by Eloxx Pharmaceutical Ltd., a private company incorporated under the laws of the State of Israel, reg. no. ▇▇-▇▇▇▇▇▇-▇, a Delaware corporation (the “Guarantor”).
WITNESSETH:
WHEREAS, reference is made to that certain Loan and Security Agreement, dated as of September 30, 2021, as amended as amended by that certain First Amendment to Loan and Security Agreement dated as of March 7, 2023, as amended by that certain Second Amendment to Loan and Security Agreement dated May 19, 2023, as amended by that certain Third Amendment to Loan and Security Agreement dated November 10, 2023, as amended by that certain Fourth Amendment to Loan and Security Agreement dated December 15, 2023, as amended by that certain Fifth Amendment to Loan and Security Agreement dated January 9, 2024, and as further amended by that certain sixth Amendment to Loan and Security Agreement dated July 10, 2024 (and as further amended, restated, supplemented or otherwise modified from time to time, the “Loan Agreement”), among the Borrower, the Lenders from time to time party thereto and ▇▇▇▇▇▇▇▇, as administrative agent and collateral agent (“Agent”);
WHEREAS, (a) ▇▇▇▇▇▇▇▇ desires to resign as Agent under the Loan Agreement and each of the other Loan Documents, including those set forth on Schedule 1 hereto, (b) SDMF desires to succeed ▇▇▇▇▇▇▇▇ as Agent under the Loan Agreement and each of the other Loan Documents and (c) ▇▇▇▇▇▇▇▇ desires to assign all of its rights, responsibilities, powers, privileges, duties and obligations in its capacity as Agent, to SDMF, in each case on the terms and conditions set forth herein;
WHEREAS, the Required Lenders (a) acknowledge and accept ▇▇▇▇▇▇▇▇’s resignation as Agent under the Loan Agreement and each of the other Loan Documents, (b) appoint SDMF as Agent under the Loan Agreement and each of the other Loan Documents and (c) acknowledge and accept the assignment by ▇▇▇▇▇▇▇▇ of all of its rights, responsibilities, powers, privileges, duties and obligations in its capacity as Agent, to SDMF, in each case on the terms and conditions set forth herein;
WHEREAS, the Loan Parties (a) acknowledge and accept ▇▇▇▇▇▇▇▇’s resignation as Agent under the Loan Agreement and each of the other Loan Documents, (b) acknowledge and accept (and in the case of the Borrower, approve) of SDMF’s appointment as Agent under the Loan Agreement and each of the other Loan Documents and (c) acknowledge the assignment by ▇▇▇▇▇▇▇▇ of all of its rights, responsibilities, powers, privileges, duties and obligations in its capacity as Agent, to SDMF, in each case on the terms and conditions forth herein; and
NOW THEREFORE, in consideration of the premises contained herein, the parties hereto agree as follows:
SECTION 1. Defined Terms. Unless otherwise defined herein, capitalized terms which are defined in the Loan Agreement are used herein as defined therein.
SECTION 2. Effectiveness of Resignation of Agent. Pursuant to Section 11.7 and Section
11.14 of the Loan Agreement, on the Effective Date, ▇▇▇▇▇▇▇▇ hereby resigns as Agent under the Loan Agreement and each of the other Loan Documents and shall have no further duties or obligations under the
Loan Documents in such capacity, and the parties hereto acknowledge, accept and approve such resignation (it being understood that any provisions of the Loan Agreement or any other Loan Document regarding payment of costs and expenses and indemnification of the Agent, together with any provision of any Loan Document that expressly accrue to the benefit of any retiring or resigning Agent, shall continue in effect for the benefit of ▇▇▇▇▇▇▇▇ in respect of any actions taken or omitted to be taken by it as Agent under the Loan Agreement on or prior to the Effective Date).
SECTION 3. Appointment of Successor Agent; Assignment of Agency Rights; Certain Collateral Matters.
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such Liens, constitute a reference to Hercules as collateral representative of SDMF for purposes of perfection (provided, that the parties hereto agree that ▇▇▇▇▇▇▇▇’s role as such collateral representative shall impose no duties, obligations or liabilities on Hercules (including, without limitation, any requirement that Hercules take direction from any Lender or the Required Lenders),
(ii) any Collateral in the possession or control of Hercules, as Agent for the benefit of the Lenders, shall be deemed to be held or controlled, as applicable, by ▇▇▇▇▇▇▇▇, as sub-collateral agent and bailee for the Successor Agent, for the benefit of the Lenders, until such time as such Collateral has been delivered to the Successor Agent or control of such Collateral has been assigned to the Successor Agent, as applicable, and (iii) on and after the Effective Date, any reference to Hercules as an additional insured and/or loss payee under any insurance required to be maintained pursuant to the Loan Documents shall, until the Successor Agent is substituted as additional insured and/or loss payee thereunder, constitute a reference to Hercules as sub-agent of the Successor Agent (provided, that the parties hereto agree that Hercules’s role as such sub-agent shall impose no duties, obligations or liabilities on Hercules (including, without limitation, any requirement that Hercules take direction from any Lender or the Required Lenders)).
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(ii) has made no determination as to (x) the validity, enforceability, effectiveness or priority of any Liens granted or purported to be granted pursuant to the Loan Documents or (y) the accuracy or sufficiency of the documents, filings, recordings and other actions taken to create, perfect or maintain the existence, perfection or priority of the Liens granted or purported to be granted pursuant to the Loan Documents. SDMF shall be entitled to assume that, as of the date hereof, all Liens purported to be granted and perfected pursuant to the Loan Documents are valid and perfected Liens having the priority intended by the Lenders and the Loan Documents, it being understood that certain of the Loan Documents (A) permit the Agent to elect not to perfect its security interest in certain Collateral in certain circumstances, and (B) only require certain perfection steps to be taken upon the request of the Agent or when the value or stated amount of certain Collateral exceeds a specified individual or aggregate threshold.
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Documents (and Liens granted to ▇▇▇▇▇▇▇▇ pursuant to such Loan Documents) are being transferred
“as-is” without any representation or warranty by ▇▇▇▇▇▇▇▇).
SECTION 4. Certification. Hercules hereby certifies to SDMF, to its knowledge as Agent, the following as of the Effective Date:
SECTION 5. Acknowledgements of Hercules. Subject to Section 7 below, upon the effectiveness of this Agreement, ▇▇▇▇▇▇▇▇ acknowledges and agrees that none of the Loan Parties have any further obligations to Hercules in its capacity as Agent under the Loan Agreement or any Loan Document (it being understood that any provisions of the Loan Agreement or any other Loan Document regarding payment of costs and expenses and indemnification of Agent, together with any provision of any Loan Document that expressly accrue to the benefit of any retiring or resigning Agent, shall continue in effect for the benefit of ▇▇▇▇▇▇▇▇ in respect of any actions taken or omitted to be taken by it as Agent under the Loan Agreement on or prior to the Effective Date). ▇▇▇▇▇▇▇▇ agrees that, with respect to any items of payment, proceeds of Collateral or other collections it may receive from and after the Effective Date in its capacity as Agent in connection with the Loan Documents other than any amounts due it hereunder (collectively, the “Collections”), ▇▇▇▇▇▇▇▇ disclaims any interest in such Collections and agrees to promptly notify the Successor Agent of its receipt thereof and to promptly deliver to the Successor Agent in the same form as received, any such Collections to such account as the Successor Agent shall specify at such time.
SECTION 6. Register. From and after the Effective Date, the Successor Agent (or its agent or sub-agent appointed by it) shall maintain at one of its offices a copy of the Register. From and after the Effective Date, the Borrower hereby designates the Successor Agent to serve as the Borrower’s agent solely for purposes of maintaining the Register as provided in Section 11.7 of the Loan Agreement. Each Lender party hereto agrees that ▇▇▇▇▇▇▇▇ and Successor Agent may conclusively rely upon (and shall be fully protected in relying upon) the Register in confirming that the Lenders party hereto constitute the Required Lenders as of the Effective Date.
SECTION 7. Effectiveness. This Agreement shall become effective on and as of the date (such date, the “Effective Date”) when Successor Agent shall have received counterparts of this Agreement, duly executed and delivered by a duly authorized officer of each of the Loan Parties, Hercules, in its capacity as the existing Agent, the Successor Agent and the Required Lenders; and
SECTION 8. References, Payments, Notices and Amendments to Loan Documents. From and after the Effective Date and until such time, if any, that the Successor Agent effectuates a resignation as Agent, all references in the Loan Documents to “Agent” shall, in each case, mean and be a reference to the Successor Agent, acting in such capacity. All notices and payments delivered to the “Agent” pursuant to any Loan Document shall be delivered to SDMF at the following address and otherwise in accordance with the provision set forth in such Loan Document:
Agent
SD MF 4 LLC
P.O. Box 49422
Charlotte, NC 28277
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Attn: ▇▇▇▇▇ ▇▇▇▇▇
E-mail: [***]
SECTION 9. Fees and Expenses.
SECTION 10. Representations and Warranties.
SECTION 11. Indemnification, etc. Notwithstanding anything in this Agreement or in the Loan Documents to the contrary, all parties hereto expressly acknowledge and agree that the provisions of the Loan Documents regarding payment of costs and expenses and indemnification of Agent, together with any provision of any Loan Document that expressly accrue to the benefit of any retiring or resigning Agent, in each case as existing before the Effective Date, shall continue in effect for the benefit of ▇▇▇▇▇▇▇▇, its sub agents and their respective related parties in respect of any actions taken or omitted to be taken by any of them, whether taken before, on or after the date of this Agreement, while it or they were acting in such capacities or any actions taken or omitted to be taken by any of them in connection with or as a result of the execution or delivery of this Agreement, any other Loan Document, or any amendment, amendment and restatement, modification or waiver of the provisions hereof or thereof, or any agreement or instrument
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contemplated hereby or thereby, the performance by the parties hereto of their respective obligations hereunder or thereunder (including without limitation for any actions taken or omitted to be taken by any of them in connection with any of the foregoing while ▇▇▇▇▇▇▇▇ was acting as Agent and while ▇▇▇▇▇▇▇▇ was acting as bailee or sub-agent pursuant to Section 3(e) hereof) or the consummation of the transactions contemplated hereby or thereby and in respect of all liabilities, losses, damages, costs or expenses arising from or relating to the Loan Documents (whether now existing or hereinafter arising) with any reference in such provisions to the Agent to include ▇▇▇▇▇▇▇▇.
SECTION 12. Reaffirmation of Loan Documents. Each of the undersigned Loan Parties hereby expressly acknowledges and confirms, both before and after giving effect to this Agreement, that it is bound by each of the Loan Documents to which it is a party by virtue of it having been an original signatory thereto. Each of the Loan Documents are and shall continue to be in full force and effect and are hereby in all respects ratified and confirmed (including with respect to the Liens on the Collateral granted in favor of the Successor Agent pursuant hereto, which Liens shall in all respects be continuing and in effect). This Agreement shall not, except as expressly provided herein, operate as an amendment or waiver of any right, power or remedy of any Lender or the Successor Agent under any of the Loan Documents, nor constitute an amendment or waiver of any provision of any of the Loan Documents. Nothing herein contained shall be construed as a substitution or novation of the Obligations outstanding under the Loan Agreement or any Loan Document or instruments securing the same, which shall remain in full force and effect, except to any extent modified hereby or by instruments executed concurrently herewith.
SECTION 13. Miscellaneous. Sections 11.6 (Counterparts), 11.1 (Severability), 11.9 (Governing Law) Section 11.10 (Consent to Jurisdiction and Venue), and Section 11.11 (Mutual Waiver of Jury Trial) of the Loan Agreement are incorporated by reference herein mutatis mutandis. The provisions of this Agreement shall be binding upon and inure to the benefit of the parties hereto and their respective successors and permitted assigns.
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IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be executed and delivered by their respective duly authorized officers as of the date first written above.
HERCULES CAPITAL, INC., as Agent and
Lender
By: /s/▇▇▇▇▇▇▇▇ ▇▇▇▇
Name: ▇▇▇▇▇▇▇▇ ▇▇▇▇
Title: Associate General Counsel
DOMICILIUM FUND III LP,
as a Lender
By: /s/▇▇▇▇▇ ▇▇▇▇▇
Name: ▇▇▇▇▇ ▇▇▇▇▇ Title: Managing Member
SD MF 4 LLC, as Successor Agent and Lender
By: /s/▇▇▇▇▇ ▇▇▇▇▇
Name: ▇▇▇▇▇ ▇▇▇▇▇ Title: Managing Member
ELOXX PHARMACEUTICAS, INC., as Borrower
By: /s/▇▇▇▇▇ ▇▇▇▇▇▇▇▇
Name: ▇▇▇▇▇ ▇▇▇▇▇▇▇▇
Title: President and Chief Executive Officer
ZIKANI THERAPEUTICS, INC., as Borrower
By: /s/▇▇▇▇▇ ▇▇▇▇▇▇▇▇
Name: ▇▇▇▇▇ ▇▇▇▇▇▇▇▇
Title: President and Chief Executive Officer
ACKNOWLEDGED AND AGREED, as of the date first written above:
ELOXX PHARMACEUTICALS LTD.
By: /s/▇▇▇▇▇ ▇▇▇▇▇▇▇▇ Name: ▇▇▇▇▇ ▇▇▇▇▇▇▇▇
Title: President and Chief Executive Officer
Schedule 1
Loan Documents
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Schedule 2
Control Agreements
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Schedule 3
UCC Financing Statements
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Schedule 4
Possessory Collateral
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