Exhibit 10.1


 







THIRD AMENDMENT TO


CREDIT AGREEMENT 


 


THIS THIRD AMENDMENT
TO CREDIT AGREEMENT (this “Amendment”), dated as of June 25, 2015, is entered into by and among Response
Genetics, Inc., a Delaware corporation (“Borrower”), each of the undersigned financial institutions party
hereto as lenders (individually each a “Lender” and collectively “Lenders”), and SWK FUNDING
LLC, a Delaware limited liability company (“SWK”), in its capacity as administrative agent for itself as a Lender
and the other Lenders (in such capacity, “Agent”).


 


RECITALS


 


WHEREAS, Borrower,
Agent and Lenders entered into that certain Credit Agreement, dated as of July 30, 2014 (as the same may be amended, restated,
supplemented, or otherwise modified from time to time, being hereinafter referred to as the “Credit Agreement”);
and


 


WHEREAS, Borrower,
Agent and Lenders desire to amend the Credit Agreement as set forth herein.


 


AGREEMENT


 


NOW, THEREFORE, in
consideration of the premises herein contained and other good and valuable consideration, the receipt and sufficiency of which
are hereby acknowledged, the parties, intending to be legally bound, agree as follows:


 


Article
I


 


Definitions


 


Capitalized terms used
in this Amendment are defined in the Credit Agreement unless otherwise stated.


 


ARTICLE II


 


Amendments to Credit
Agreement 


 


2.1Amendments
to Section 1.1 of the Credit Agreement.


 


		a.	Effective as of the date hereof, the definition of “Term Loan Commitment” in Section
1.1 of the Credit Agreement is amended to replace $12,000,000” with “$12,750,000.”



 


		b.	Effective as of the date hereof, Section 1.1 of the Credit Agreement is amended by adding
the following definition thereto in its appropriate alphabetical order:



 


“‘Third
Amendment Effective Date’ means June 25, 2015.”


 






    	 



    	 



    

 


2.2Amendment
to Section 2.2 of the Credit Agreement. Effective as of the date hereof, Section 2.2 of the Credit Agreement is
amended and restated in its entirety to read as follows:


 


“2.2Loan
Procedures.


 


(a)Lenders
have advanced to Borrower (x) on the Closing Date, an amount equal to Eight Million Five-hundred Thousand and No/100 Dollars
($8,500,000), (y) on the First Amendment Effective Date, an amount equal to One Million Five Hundred Thousand and No/100
Dollars ($1,500,000), and (z) and on the Second Amendment Effecitve Date, an amount equal to Two Million and No/100 Dollars
($2,000,000). Borrower, Agent and Lenders hereby agree and acknowledge that, as of the Third Amendment Effective Date (and immediately
prior to the subsequent advance of the Term Loan described in clause (b) below), the outstanding principal balance of the
Term Loan is Twelve Million and No/100 Dollars ($12,000,000).


 


(b)Upon
satisfaction by Borrower of the conditions to closing described in that certain Third Amendment to Credit Agreement, dated as of
the Third Amendment Effective Date, Lenders shall advance to Borrower an Advance in the aggregate amount of Seven Hundred Fifty
Thousand and No/100 Dollars ($750,000), resulting in an aggregate, outstanding principal balance of the Term Loan of Twelve Million
Seven Hundred Fifity Thousand and No/100 Dollars ($12,750,000).”


 


2.3Amendment
to Annex I to Credit Agreement. Effective as of the date hereof, Annex I to the Credit Agreement is hereby deleted and
restated in its entirety to read as follows:


 


	Lender	Term Loan 

Commitment	Pro Rata 

Term Loan Share
	SWK Funding LLC	$11,750,000	92.157%
	Swiftcurrent Partners LP	$449,000	3.521%
	Swiftcurrent Offshore Master Ltd.	$551,000	4.322%


 


 


ARTICLE III


 


Use of Proceeds


 


Borrower, Agent and
Lenders hereby agree that, unless otherwise agreed to by Agent (in writing in and in its sole discretion), all proceeds of the
additional advance to Borrower made by Lenders on or about the Third Amendment Effective Date shall be used solely in accordance
with that certain budget delivered to Agent on or about the Third Amendment Effective Date by Borrower as acknowledged in writing
(which for the avoidance of doubt may be via electronic mail) by Agent.


 






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ARTICLE IV


 


Conditions Precedent



 


The effectiveness of
this Amendment is subject to the satisfaction of the following conditions precedent in a manner satisfactory to Agent and Lenders,
unless specifically waived in writing by Agent and Lenders:


 


A.Agent
shall have received this Amendment duly executed by Borrower and each Lender.


 


B.Agent
shall have received an Amended and Restated Promissory Note in the amount of $12,750,000, payable to Agent for the benefit of Lenders
and otherwise in form and substance acceptable to Agent.


 


C. Except
as otherwise previously disclosed to Agent in writing, the representations and warranties contained herein and in the Credit Agreement
and the other Loan Documents, as each is amended hereby, shall be true and correct in all material respects as of the date hereof,
except to the extent such representations and warranties expressly relate to an earlier date, in which case they are true and correct
in all material respects as of such date.


 


D.Borrower
shall provide to Agent a secretary’s certificate with resolutions in form and substance acceptable to Agent. 


 


E.Borrower
shall have delivered a written budget, in form and substance acceptable to Agent, in relation to the use of the proceeds of the
advance to be made to Borrower on or about the Third Amendment Effective Date.


 


ARTICLE
V


 


Ratifications, Representations
and Warranties


 


5.1Ratifications.
The terms and provisions set forth in this Amendment shall modify and supersede all inconsistent terms and provisions set forth
in the Credit Agreement and the other Loan Documents, and, except as expressly modified and superseded by this Amendment, the terms
and provisions of the Credit Agreement and the other Loan Documents are ratified and confirmed and shall continue in full force
and effect. Borrower, Agent, and each Lender agree that the Credit Agreement and the other Loan Documents, as amended hereby, shall
continue to be legal, valid, binding and enforceable in accordance with their respective terms. Borrower agrees that this Amendment
is not intended to and shall not cause a novation with respect to any or all of the Obligations.


 






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5.2Representations
and Warranties. Borrower hereby represents and warrants to Agent and each Lender that (a) the execution, delivery and performance
of this Amendment and any and all other Loan Documents executed and/or delivered in connection herewith have been authorized by
all requisite action (as applicable) on the part of Borrower and will not violate the organizational documents of Borrower; (b)
Borrower’ directors have authorized the execution, delivery and performance of this Amendment and any and all other Loan
Documents executed and/or delivered in connection herewith; and (c) except as otherwise previously disclosed in writing to Agent,
the representations and warranties contained in the Credit Agreement and the other Loan Documents, as each is amended hereby, are
true and correct in all material respects on and as of the date hereof (except to the extent such representations and warranties
expressly relate to an earlier date, in which case they are true and correct in all material respects as of such date).


 


ARTICLE
VI


 


Miscellaneous Provisions


 


6.1Survival
of Representations and Warranties. All representations and warranties made in the Credit Agreement or any other Loan Document,
including, without limitation, any document furnished in connection with this Amendment, shall survive the execution and delivery
of this Amendment and the other Loan Documents, and no investigation by Agent or any Lender or any closing shall affect the representations
and warranties or the right of Agent and each Lender to rely upon them.


 


6.2Reference
to Credit Agreement. Each of the Credit Agreement and the other Loan Documents, and any and all other Loan Documents, documents
or instruments now or hereafter executed and delivered pursuant to the terms hereof or pursuant to the terms of the Credit Agreement,
as amended hereby, are hereby amended so that any reference in the Credit Agreement and such other Loan Documents to the Credit
Agreement shall mean a reference to the Credit Agreement, as amended hereby.


 


6.3Expenses
of Agent and Lenders. As provided in the Credit Agreement, Borrower agrees to pay all costs and expenses incurred by Agent
and each Lender (or their respective Affiliates) in connection with the preparation, negotiation, and execution of this Amendment
and the other Loan Documents executed pursuant hereto and any and all amendments, modifications, and supplements thereto, including,
without limitation, the reasonable costs and fees of legal counsel, and all costs and expenses incurred by Agent and each Lender
in connection with the enforcement or preservation of any rights under the Credit Agreement, as amended hereby, or any other Loan
Documents, including, without, limitation, the reasonable costs and fees of legal counsel.


 


6.4Severability.
Any provision of this Amendment held by a court of competent jurisdiction to be invalid or unenforceable shall not impair or invalidate
the remainder of this Amendment and the effect thereof shall be confined to the provision so held to be invalid or unenforceable.


 






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6.5Successors
and Assigns. This Amendment is binding upon and shall inure to the benefit of Agent and each Lender and Borrower and their
respective successors and assigns, except that Borrower may not assign or transfer any of its rights or obligations hereunder except
in accordance with the terms and provisions of the Credit Agreement.


 


6.6Counterparts.
This Amendment may be executed in one or more counterparts, each of which when so executed shall be deemed to be an original, but
all of which when taken together shall constitute one and the same instrument. This Amendment may be executed by facsimile or electronic
(.pdf) transmission, which facsimile or electronic (.pdf) signatures shall be considered original executed counterparts for purposes
of this Section 6.6, and each party to this Amendment agrees that it will be bound by its own facsimile or electronic (.pdf)
signature and that it accepts the facsimile or electronic (.pdf) signature of each other party to this Amendment.


 


6.7No Forbearance
or Waiver.


 


(a) Borrower
acknowledges and agrees that Agent and Lenders are not forbearing from any of their respective rights and remedies under this Amendment,
the Credit Agreement and/or the Loan Documents, and that Agent and Lenders are entitled to exercise any and all of their respective
rights and remedies under this Amendment, the Credit Agreement and/or the Loan Documents without further notice, including, but
not limited to (i) initiating actions for the collection of the Obligations, (ii) initiating any action for the repossession and
sale of the Collateral; or (iii) filing or joining in any filing of any involuntary petition under the Bankruptcy Code. Borrower
is further notified that Agent may in its sole discretion increase the rate at which the indebtedness bears interest to the Default
Rate upon the initial occurrence of an Event of Default and continue at that rate as long as an Event of Default continues.


 


(b) Nothing
contained in this Amendment shall be construed as a waiver by Agent or Lenders of any covenant or provision of the Credit Agreement,
the Loan Documents, this Amendment, or of any other contract or instrument between any Borrower and Agent or Lenders, and the failure
of Agent or Lenders at any time or times prior to or hereafter to require strict performance by Borrower of any provision thereof
shall not waive, affect or diminish any right of Agent to thereafter demand strict compliance therewith. Agent and Lenders hereby
reserve all rights granted under the Credit Agreement, the Loan Documents, this Amendment and any other contract or instrument
between any of them. This Amendment does not directly or indirectly in any way whatsoever either: (i) impair, prejudice or
otherwise adversely affect Agent or any Lender’s rights at any time to exercise any right, privilege or remedy in connection
with the Credit Agreement or any other Loan Document, or any other contract or instrument, (ii) except as specifically set forth
herein, amend or alter any provision of the Credit Agreement or any other Loan Document or any other contract or instrument, (iii) constitute
any agreement of Agent or any Lender to forbear from exercising any of its rights and remedies, or (iv) constitute any course of
dealing or other basis for altering any obligation of Borrower or Guarantor or any right, privilege or remedy of Agent or any Lender
under the Credit Agreement or any other Loan Document, or any other contract or instrument or constitute any consent by Agent or
any Lender to any prior, existing or future violations of the Credit Agreement or any other contract or instrument. Borrower may
not rely upon any verbal statements made, or purported to be made, by or on behalf of Agent or any Lender in connection with any
alleged agreement of Agent or such Lender to refrain from exercising any of its rights under the Loan Documents or any other contract
or instrument or under law or equity.


 






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6.8Headings.
The headings, captions, and arrangements used in this Amendment are for convenience only and shall not affect the interpretation
of this Amendment.


 


6.9Opportunity
for Review of Counsel. This Amendment was reviewed by Borrower which acknowledges and agrees that Borrower (i) understands
fully the terms of this Amendment and the consequences of the issuance hereof; (ii) has been afforded an opportunity to have this
Amendment reviewed by, and to discuss this Amendment with, such attorneys and other persons as Borrower may wish; and (iii) has
entered into this Amendment of its own free will and accord and without threat or duress. This Amendment and all information furnished
to Agent and the Lenders is made and furnished in good faith, for value and valuable consideration. This Amendment has not been
made or induced by any fraud, duress or undue influence exercised by Agent, any Lender nor any other person.


 


6.10Applicable
Law. THE TERMS AND PROVISIONS OF SECTIONS 10.17 (GOVERNING LAW) AND 10.18 (FORUM SELECTION; CONSENT TO JURISDICTION)
OF THE CREDIT AGREEMENT ARE HEREBY INCORPORATED HEREIN BY REFERENCE, AND SHALL APPLY TO THIS AMENDMENT MUTATIS MUTANDIS
AS IF FULLY SET FORTH HEREIN.


 


6.11Final
Agreement. THE CREDIT AGREEMENT AND THE OTHER LOAN DOCUMENTS, EACH AS AMENDED HEREBY, REPRESENT THE ENTIRE EXPRESSION OF
THE PARTIES WITH RESPECT TO THE SUBJECT MATTER HEREOF ON THE DATE THIS AMENDMENT IS EXECUTED. THE CREDIT AGREEMENT AND THE OTHER
LOAN DOCUMENTS, AS AMENDED HEREBY, MAY NOT BE CONTRADICTED BY EVIDENCE OF PRIOR, CONTEMPORANEOUS OR SUBSEQUENT ORAL AGREEMENTS
OF THE PARTIES. THERE ARE NO UNWRITTEN ORAL AGREEMENTS BETWEEN THE PARTIES. NO MODIFICATION, RESCISSION, WAIVER, RELEASE OR AMENDMENT
OF ANY PROVISION OF THIS AMENDMENT SHALL BE MADE, EXCEPT BY A WRITTEN AGREEMENT SIGNED BY Borrower
AND AGENT.


 






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6.12NO COUNTERCLAIMS;
RELEASE OF CLAIMS; WAIVER; HOLD HARMLESS. BORROWER REPRESENTS AND WARRANTS THAT BORROWER HAS NO SET-OFF, RECOUPMENT, COUNTERCLAIM,
DEFENSE, CROSS-COMPLAINT, CLAIM, DEMAND OR OTHER CAUSE OF ACTION OF ANY NATURE WHATSOEVER (TOGETHER, THE “COUNTERCLAIMS”)
AGAINST AGENT OR ANY LENDER WHICH ARISE OUT OF THE TRANSACTIONS EVIDENCED BY THE CREDIT AGREEMENT OR THE OTHER LOAN DOCUMENTS,
ANY TRANSACTIONS THAT WERE RENEWED OR EXTENDED BY THE CREDIT AGREEMENT OR THE OTHER LOAN DOCUMENTS, ANY OTHER TRANSACTION WITH
AGENT OR ANY LENDER, OR WHICH COULD BE ASSERTED TO REDUCE OR ELIMINATE ALL OR ANY PART OF BORROWER’S LIABILITY TO REPAY THE
OBLIGATIONS OR TO SEEK AFFIRMATIVE RELIEF OR DAMAGES OF ANY KIND OR NATURE FROM AGENT OR ANY LENDER, IRRESPECTIVE OF WHETHER ANY
SUCH CLAIMS ARISE OUT OF CONTRACT, TORT, VIOLATION OF LAW OR REGULATIONS, OR OTHERWISE, INCLUDING, WITHOUT LIMITATION, ANY CONTRACTING
FOR, CHANGING, TAKING, RESERVING, COLLECTING OR RECEIVING INTEREST IN EXCESS OF THE HIGHEST LAWFUL RATE APPLICABLE, THE EXERCISE
OF ANY RIGHTS AND REMEDIES UNDER THE CREDIT AGREEMENT OR THE OTHER LOAN DOCUMENTS, THE NEGOTIATION FOR AND EXECUTION OF THIS AMENDMENT
AND ANY SETTLEMENT NEGOTIATIONS. TO THE EXTENT THAT ANY COUNTERCLAIMS MAY EXIST, WHETHER KNOWN OR UNKNOWN, SUCH ARE WAIVED AND
HEREBY RELEASED BY BORROWER. FURTHERMORE, BORROWER, ON BEHALF OF BORROWER, ITS SUCCESSORS, AGENTS, ATTORNEYS, OFFICERS, DIRECTORS,
ASSIGNS AND PERSONNEL AND LEGAL REPRESENTATIVES, DOES HEREBY RELEASE, REMISE, ACQUIT AND FOREVER DISCHARGE AGENT’S AND LENDERS’
AND AGENT’S AND LENDERS’ EMPLOYEES, AGENTS, REPRESENTATIVES, CONSULTANTS, ATTORNEYS, FIDUCIARIES, SERVANTS, OFFICERS,
DIRECTORS, PARTNERS, PREDECESSORS, SUCCESSORS AND ASSIGNS, SUBSIDIARY CORPORATIONS, PARENT CORPORATIONS, AND RELATED CORPORATE
DIVISIONS (ALL OF THE FOREGOING HEREINAFTER CALLED THE “RELEASED PARTIES”), FROM ANY AND ALL ACTIONS AND CAUSES OF
ACTION, JUDGMENTS, EXECUTIONS, SUITS, DEBTS, CLAIMS, DEMANDS, LIABILITIES, OBLIGATIONS, DAMAGES AND EXPENSES OF ANY AND EVERY CHARACTER,
KNOWN OR UNKNOWN, DIRECT AND/OR INDIRECT, AT LAW OR IN EQUITY, OF WHATSOEVER KIND OR NATURE, WHETHER HERETOFORE OR HEREAFTER ARISING,
FOR OR BECAUSE OF ANY MATTER OR THINGS DONE, OMITTED OR SUFFERED TO BE DONE BY ANY OF THE RELEASED PARTIES PRIOR TO AND INCLUDING
THE DATE OF EXECUTION HEREOF, AND IN ANY WAY DIRECTLY OR INDIRECTLY ARISING OUT OF OR IN ANY WAY CONNECTED TO THIS AMENDMENT, THE
GUARANTEE AND COLLATERAL AGREEMENT OR THE OTHER LOAN DOCUMENTS, IRRESPECTIVE OF WHETHER ANY SUCH CLAIMS ARISE OUT OF CONTRACT,
TORT, VIOLATION OF LAW OR REGULATIONS OR OTHERWISE, INCLUDING BUT NOT LIMITED TO, ANY CONTRACTING FOR, CHARGING, TAKING, RESERVING,
COLLECTING OR RECEIVING INTEREST IN EXCESS OF THE HIGHEST LAWFUL RATE APPLICABLE, THE EXERCISE OF ANY RIGHTS AND REMEDIES UNDER
THE CREDIT DOCUMENTS OR ANY OF THE OTHER LOAN DOCUMENTS, THE NEGOTIATION FOR AND EXECUTION OF THIS AMENDMENT, OR ANY SETTLEMENT
NEGOTIATIONS (ALL OF THE FOREGOING HEREINAFTER CALLED THE “RELEASED MATTERS”); AND BORROWER HEREBY COVENANTS
AND AGREES NEVER TO INSTITUTE ANY ACTION OR SUIT AT LAW OR IN EQUITY, NOR INSTITUTE, PROSECUTE, OR IN ANY WAY AID IN THE INSTITUTION
OR PROSECUTION OF, ANY CLAIM, ACTION OR CAUSE OF ACTION, RIGHTS TO RECOVER DEBTS OR DEMANDS OF ANY NATURE AGAINST ANY OF THE RELEASED
PARTIES ARISING OUT OF OR RELATED TO AGENT’S OR ANY LENDERS’ ACTIONS, OMISSIONS, STATEMENTS, REQUESTS OR DEMANDS IN
ADMINISTERING, ENFORCING, MONITORING, COLLECTING OR ATTEMPTING TO COLLECT, THE OBLIGATIONS, INDEBTEDNESS AND OTHER OBLIGATIONS
OF BORROWER TO AGENT AND LENDERS. BORROWER AGREES TO INDEMNIFY AND HOLD AGENT AND LENDERS HARMLESS FROM ANY AND ALL COUNTERCLAIMS
THAT BORROWER OR ANY OTHER PERSON OR ENTITY CLAIMING BY, THROUGH, OR UNDER BORROWER MAY AT ANY TIME ASSERT AGAINST AGENT OR LENDERS.
BORROWER ACKNOWLEDGES THAT THE AGREEMENTS IN THIS PARAGRAPH ARE INTENDED TO BE IN FULL SATISFACTION OF ALL OR ANY ALLEGED INJURIES
OR DAMAGES TO BORROWER, ITS SUCCESSORS, AGENTS, ATTORNEYS, OFFICERS, DIRECTORS, ASSIGNS AND PERSONAL AND LEGAL REPRESENTATIVES
ARISING IN CONNECTION WITH THE RELEASED MATTERS. BORROWER REPRESENTS AND WARRANTS TO AGENT AND LENDERS THAT IT HAS NOT PURPORTED
TO TRANSFER, ASSIGN OR OTHERWISE CONVEY ANY RIGHT, TITLE OR INTEREST OF BORROWER IN ANY RELEASED MATTER TO ANY OTHER PERSON AND
THAT THE FOREGOING CONSTITUTES A FULL AND COMPLETE RELEASE OF BORROWER’S CLAIMS WITH RESPECT TO ALL RELEASED MATTERS. THE
PROVISIONS OF THIS SECTION 6.12 AND THE REPRESENTATIONS, WARRANTIES, RELEASES, WAIVERS, REMISES, ACQUITTANCES, DISCHARGES,
COVENANTS, AGREEMENTS AND INDEMNIFICATIONS CONTAINED HEREIN (A) CONSTITUTE A MATERIAL CONSIDERATION FOR AND INDUCEMENT TO AGENT
AND LENDERS ENTERING INTO THIS AGREEMENT, (B) DO NOT CONSTITUTE AN ADMISSION OF OR BASIS FOR ESTABLISHING ANY DUTY, OBLIGATION
OR LIABILITY OF AGENT OR ANY LENDER TO BORROWER OR ANY OTHER PERSON, (C) DO NOT CONSTITUTE AN ADMISSION OF OR BASIS FOR ESTABLISHING
ANY LIABILITY, WRONGDOING, OR VIOLATION OF ANY OBLIGATION, DUTY OR AGREEMENT OF AGENT OR ANY LENDER TO BORROWER OR ANY OTHER PERSON,
AND (D) SHALL NOT BE USED AS EVIDENCE AGAINST AGENT OR ANY LENDER BY BORROWER OR ANY OTHER PERSON FOR ANY PURPOSE.


 


 


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IN WITNESS WHEREOF,
this Amendment has been executed and is effective as of the date first above-written.


 





	 	BORROWER:
	 	 
	 	Response Genetics, Inc.,
	 	a Delaware corporation
	 	 
	 	By:	/s/ Thomas A. Bologna
	 	Name:	Thomas A. Bologna
	 	Title:	Chief Executive Officer
	 	 	 


 


	 	AGENT:
	 	 
	 	SWK FUNDING LLC,
	 	as Agent
	 	 
	 	By:	SWK Holdings Corporation,
	 	 	its sole Manager


 


 


	 	By:	/s/ Brett Pope
	 	Name:	Brett Pope




	 	Title:	CEO


 


 



    	 



    	 



    




 


 


	 	LENDERS:
	 	 
	 	SWK FUNDING LLC,
	 	as a Lender
	 	 
	 	By:	SWK Holdings Corporation,
	 	 	its sole Manager









	 	By:	/s/ Brett Pope
	 	Name:	Brett Pope




	 	Title:	CEO


 


 


	 	Swiftcurrent Partners LP,
	 	as a Lender
	 	 
	 	By:	Bridger Capital, LLC,
	 	 	its general partner


 


	 	By:	/s/ Lucas Warford
	 	Name:	Lucas Warford
	 	Title:	Chief Operating Officer


 


 


	 	Swiftcurrent Offshore Master Ltd.,
	 	as a Lender
	 	 
	 	By:	Bridger Management, LLC,
	 	 	its investment manager









	 	By:	/s/ Lucas Warford
	 	Name:	Lucas Warford
	 	Title:	Chief Operating Officer