EX-10.13



 Exhibit 10.13 

FIRST AMENDMENT TO AMENDED AND RESTATED CREDIT AGREEMENT 

THIS FIRST AMENDMENT TO AMENDED AND RESTATED CREDIT AGREEMENT (the “Agreement”) dated as of September 15, 2014 (the
“First Amendment Effective Date”) is entered into among SynCardia Systems, Inc., a Delaware corporation (the “Borrower”), the Lenders party hereto and Cantor Fitzgerald Securities, as Administrative Agent. All
capitalized terms used herein and not otherwise defined herein shall have the meanings given to such terms in the Credit Agreement (as defined below). 

RECITALS 
 WHEREAS, the
Borrower, the Lenders and the Administrative Agent entered into that certain Amended and Restated Credit Agreement dated as of December 13, 2013 (as amended or modified from time to time, the “Credit Agreement”); 

WHEREAS, certain defaults and events of default have occurred by reason of the Borrower’s failure to comply with:
(a) Section 9.01(d) of the Credit Agreement by reason of Borrower’s breach of Sections 6.05(d) and 6.15 of the Credit Agreement, and Section 9.01(p) of the Credit Agreement, by reason of the ATS heart valve failure and
resulting supply chain disruption; (b) Sections 9.01(b) of the Credit Agreement by reason of the Borrower’s failure to deliver a report and opinion of an independent certified public accountant that is not subject to a “going
concern” or like qualification or exception as required by Section 7.01(a) of the Credit Agreement; (c) Section 9.01(m) of the Credit Agreement by reason of the Borrower’s failure to pay off all amounts
outstanding under all University Medical Center contracts on or before March 31, 2014; (d) Section 9.01(b) of the Credit Agreement by reason of Borrower’s failure to report the above Defaults in accordance with
Section 7.03(a) and 7.03(b) of the Credit Agreement; and (e) Section 9.01(q) of the Credit Agreement by reason of the cross-default to the Second Lien Loan Documents arising from the above Defaults (collectively, the “Existing
Events of Default”); 
 WHEREAS, the Borrower has requested that the Lenders waive the Existing Events of Default, and Lenders have
agreed to waive the Existing Events of Default subject to an amendment to the Credit Agreement as more fully set forth herein; and 
 NOW,
THEREFORE, in consideration of the premises and the mutual covenants contained herein, and for other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the parties hereto agree as follows: 

1. Reaffirmation. The Borrower acknowledges and reaffirms (a) that it is bound by all of the terms of the Investment Documents to
which it is a party and (b) that it is responsible for the observance and full performance of all Obligations, including without limitation, the repayment of the Loans and interest and prepayment premiums thereon and fees with respect thereto.
Furthermore, the Borrower acknowledges and confirms (x) that the Administrative Agent and the Lenders have performed fully all of their respective obligations under the Credit Agreement and the other Investment Documents and (y) that by
entering into this Agreement, the Administrative Agent and the Lenders do not waive or release any term or condition of the Credit Agreement or any of the other Investment Documents or any of their rights or remedies under such Investment Documents
or any applicable law or any of the obligations of the Loan Parties thereunder. 
 2. Amendments. The Credit Agreement is hereby
amended as follows: 







 (a) The following definitions are hereby added to Section 1.01 of the
Credit Agreement in appropriate alphabetical order to read as follows: 
 “First Amendment Effective Date”
means September 15, 2014. 
 “Qualifying Equity Raise” means an issuance by the Borrower of its Equity
Interests (other than any Disqualified Stock) on or after the First Amendment Effective Date, on terms and conditions satisfactory to the Administrative Agent and the Required Lenders, including authorization for the issuance to be held open by the
Borrower for subscription until the earlier of the receipt of no less than $15,000,000 of gross cash proceeds by Borrower or February 28, 2015. 

“Series F Purchase Agreement” means that certain Series F Convertible Preferred Stock Purchase Agreement dated
as of September 15, 2014 by and among the Borrower, the Lenders party thereto and certain other existing and prospective equity holders of the Borrower party thereto. 

“Series F Preferred Stock” means those certain shares of Series F Preferred Stock issued pursuant to the
Certificate of Incorporation in effect on the First Amendment Effective Date, which do not by their terms (or by the terms of any security into which they are convertible or for which they are exchangeable), or upon the happening of any event,
(a) mature or be mandatorily redeemable, pursuant to a sinking fund obligation or otherwise, or be redeemable at the option of the holder thereof, in whole or in part, or otherwise have any distributions or other payments which are mandatory or
otherwise required at any time on or prior to the date that is one hundred eighty-one (181) days after the Maturity Date, other than pursuant to Section II.8 of Article Fourth of the Certificate of Incorporation as in effect on the First
Amendment Effective Date, (b) convert into or be exchangeable (unless at the sole option of the issuer thereof) for (x) debt securities or (y) any Equity Interest referred to in clause (a) above, in each case at any time prior to
the date that is one hundred eighty-one (181) days after the Maturity Date or (c) require that dividends be paid at any time that such payment would be prohibited by the terms of this Agreement or any other agreement of such Person. 

“Stockholders’ Agreement” means that certain Ninth Amended and Restated Stockholders’ Agreement
dated as of September 15, 2014. 
 (b) The definition of “Funded Indebtedness” is hereby amended to
delete the clause “(other than the Series A Preferred Stock)” and to substitute therefor the clause “(other than the Series F Preferred Stock)”. 

(c) The definition of “Investment Documents” is hereby deleted in its entirety and amended to read as follows: 

“Investment Documents” means, collectively, the Loan Documents, the Registration Rights Agreement, the Series
F Purchase Agreement, the Stockholders’ Agreement and the Warrants. 
 (d) The last sentence of
“Obligations” is amended and restated in its entirety to read as follows: 
 “For the avoidance of
doubt, the term “Obligations” shall not include the obligations of the Borrower under the Warrants, the Restatement Date Common Stock Purchase Agreement, the 







 
Registration Rights Agreement, the Stockholders’ Agreement or the Series F Purchase Agreement.” 

(e) The definitions of “Series A Preferred Stock”, “Series A Preferred Stock Condition”,
“Series A Preferred Stock Redemption Event” in Section 1.01 of the Credit Agreement are hereby deleted in their entirety. 

(f) Section 2.03(d) of the Credit Agreement is deleted in its entirety and amended to read as follows: 

“(d) [Reserved]. 

(g) Section 6.13(b) of the Credit Agreement is deleted in its entirety and amended to read as follows: 

“Set forth on Schedule 6.13(b) is a true and complete table showing the authorized and issued capitalization of the
Borrower as of the First Amendment Effective Date on a fully diluted basis, together with the Redemption Maturity Date for each class of Equity Interests of the Borrower. As of the First Amendment Effective Date, except as described on Schedule
6.13(b), there are no outstanding commitments or other obligations of the Borrower or any Subsidiary to issue, and no rights of any Person to acquire, any shares of any Equity Interests of the Borrower or any of its Subsidiaries. Except as set
forth on Schedule 6.13(b) and as contained in the Warrants, the Registration Rights Agreement and the Borrower’s Organization Documents, there are no statutory or contractual preemptive rights, rights of first refusal, anti-dilution
rights or any similar rights held by equity holders or option holders of the Borrower with respect to the issuance of the Warrants or the Restatement Date Common Stock and all such rights have been effectively waived with regard to the issuance of
the Warrants and the Restatement Date Common Stock. There are no agreements (voting or otherwise) among the Borrower’s equity holders with respect to any other aspect of the Borrower’s affairs, except as set forth on Schedule
6.13(b).” 
 (h) Section 7.03(f) of the Credit Agreement is hereby deleted in its entirety and amended
to read as follows: 
 “(f) [Reserved].” 

(i) Section 7.17 of the Credit Agreement is amended to delete the “.” at the end of the existing
Section 7.17, and replace it with the following text: 
 “, and at all times maintain aggregate cash
balances in all deposit accounts (based on the Borrower’s book balance) of no less than $2,000,000.” 
 (j) A new
Section 7.20 is added to the Credit Agreement and shall read as follows: 
 “Section 7.20 Minimum
50cc Total Artificial Heart Revenue. 
 On or before February 28, 2015, the Borrower shall have received no less than $7,000,000 of
cash payments in respect of purchase orders, sales contracts or study deposits related to the Borrower’s 50cc Total Artificial Heart.” 

(k) A new Section 7.21 is added to the Credit Agreement and shall read as follows: 







 “Section 7.21 Additional Equity Issuance Proceeds. 

On or before October 31, 2014, the Borrower shall have received no less than $9,000,000 of gross cash proceeds in the aggregate from the
issuance of Equity Interests pursuant to the Qualifying Equity Raise (inclusive of gross cash proceeds from the issuance of Equity Interests pursuant to the Qualifying Equity Raise that are received by the Borrower after September 1, 2014 and
on or prior to the First Amendment Effective Date, including proceeds from the purchase of shares by the lenders under the Second Lien Credit Agreement with the proceeds of the Revenue Based Payment).” 

(l) Section 8.06(c) is amended and restated in its entirety to read as follows: 

“(c) the Borrower may purchase the Warrants pursuant to Section 5 thereof” 

(m) Section 8.06(d) is hereby deleted in its entirety and amended to read as follows: 

“(d) the Borrower may incur the obligation to redeem the Series F Preferred Stock pursuant to Section II.8 of Article
Fourth of the Certificate of Incorporation as in effect on the First Amendment Effective Date; provided, that, except as provided by Section 8.06(b), the Borrower may not declare or make any Restricted Payment on or with
respect to the Series F Preferred Stock.” 
 (n) Section 8.13 of the Credit Agreement is hereby amended to
remove the clause “(other than the Series A Preferred Stock)”. 
 (o) Section 9.01(m) of the Credit
Agreement is amended and restated in its entirety read as follows: 
 “(m) University Medical Center Contracts. An “Event of
Default” or any comparable term occurs under, or the Borrower fails to make any required payment under, any University Medical Center Contract; or” 

(p) Section 9.01(n) of the Credit Agreement is hereby deleted in its entirety and amended to read as follows: 

“(n) [Reserved].” 

(q) Schedule 5.01(d) of the Credit Agreement is hereby deleted in its entirety and replaced with the Schedule
5.01(d) attached to this Agreement as Exhibit 1. 
 (r) Schedule 6.13(b) of the Credit Agreement is hereby
deleted in its entirety and replaced with the Schedule 6.13(b) attached to this Agreement as Exhibit 2. 
 3. Waiver.
The Borrower acknowledges and agrees that the Existing Events of Default exist under the Credit Agreement. Subject to the terms and conditions set forth herein, the Administrative Agent (acting at the direction of the undersigned Lenders), and the
Required Lenders signatory hereto, constituting 100% of Lenders, agree that upon satisfaction of all conditions precedent to the effectiveness of this Agreement, the Existing Events of Default are and shall be deemed waived; provided that,
nothing herein shall modify or affect the obligations of the Borrower to comply with each and every other duty, term, condition or covenant contained in the Credit Agreement, this Amendment and the other Investment Documents from and after the date
hereof. 







 4. Release. As a material part of the consideration for Administrative Agent and the
Lenders entering into this Agreement, the Borrower agrees as follows (the “Release Provision”): 
 (a) By
its signature below, the Borrower hereby agrees that the Administrative Agent, the Lenders, each of their respective Affiliates and each of the foregoing Persons’ respective officers, managers, members, directors, partners, agents and
employees, and their respective successors and assigns (hereinafter all of the above collectively referred to as the “Lender Group”), are irrevocably and unconditionally released, discharged and acquitted from any and all actions,
causes of action, claims, demands, damages and liabilities of whatever kind or nature, in law or in equity, now known or unknown, suspected or unsuspected to the extent that any of the foregoing arises from any action or failure to act under or
otherwise arising in connection with the Investment Documents on or prior to the date hereof. 
 (b) The Borrower hereby
acknowledges, represents and warrants to the Lender Group that: 
 (i) it has read and understands the effect of the Release
Provision. The Borrower has had the assistance of independent counsel of its own choice, or has had the opportunity to retain such independent counsel, in reviewing, discussing, and considering all the terms of the Release Provision; and if counsel
was retained, counsel for the Borrower has read and considered the Release Provision and advised the Borrower with respect to the same. Before execution of this Agreement, the Borrower has had adequate opportunity to make whatever investigation or
inquiry it may deem necessary or desirable in connection with the subject matter of the Release Provision. 
 (ii) the
Borrower is not acting in reliance on any representation, understanding, or agreement not expressly set forth herein. The Borrower acknowledges that the Lender Group has not made any representation with respect to the Release Provision except as
expressly set forth herein. 
 (iii) the Borrower has executed this Agreement and the Release Provision thereof as its free
and voluntary act, without any duress, coercion, or undue influence exerted by or on behalf of any person. 
 (iv) the
Borrower is the sole owner of the claims released by the Release Provision, and the Borrower has not heretofore conveyed or assigned any interest in any such claims to any other Person. 

(c) The Borrower understands that the Release Provision was a material consideration in the agreement of the Administrative
Agent and the Lenders to enter into this Agreement. The Release Provision shall be in addition to any rights, privileges and immunities granted to the Administrative Agent and the Lenders under the Investment Documents. 

5. Conditions Precedent. This Agreement shall be effective upon satisfaction of the following conditions precedent: 

(a) the receipt by the Administrative Agent of counterparts of this Agreement duly executed by the Borrower and the Lenders and
acknowledged by the Administrative Agent; 
 (b) the receipt, by the Borrower, of no less than $6,000,000 of gross cash
proceeds from the issuance of Equity Interests pursuant to the Qualifying Equity Raise (including the 







 
proceeds of shares purchased by the lenders under the Second Lien Credit Agreement with the proceeds of the Revenue Based Payment); 

(c) the conversion of all outstanding classes of preferred Equity Interests (existing prior to the issuance of a newly
designated Series F Preferred Stock) into common Equity Interests in the Borrower; 
 (d) payment, by the Borrower, of all
outstanding fees, costs and expenses of counsel to the Lenders and the Administrative Agent incurred in drafting, negotiating and consummating the transactions contemplated by this Agreement or currently outstanding under the Investment Documents;

 (e) receipt, by the Borrower, of all necessary approvals, authorizations and consents required to consummate the
Qualifying Equity Raise; 
 (f) the Borrower shall have entered into an amendment of the Second Lien Credit Agreement (in
form and substance satisfactory to the Administrative Agent and each of the Lenders (as such term is defined in the Second Lien Credit Agreement)) waiving all outstanding defaults and events of default existing through the date of the First
Amendment Effective Date and agreeing to use the Revenue Based Payment due on September 15, 2014 to purchase 275,622 shares of Series F Preferred Stock allocated ratably to the holders of Second Lien Loans based on their holdings of the
principal amount of Second Lien Loans; and 
 (g) the Administrative Agent shall have received a certificate of a Responsible
Officer of the Borrower, in form and substance reasonably satisfactory to the Required Lenders, (i) certifying that the Organization Documents of the Borrower delivered on the First Amendment Effective Date have not been amended, supplemented
or otherwise modified and remain in full force and effect as of the First Amendment Effective Date and (ii) attaching resolutions of the Borrower approving and adopting this Agreement, the transactions contemplated herein and authorizing the
execution and delivery of this Agreement and any documents, agreements or certificates related thereto and certifying that such resolutions have not been amended, supplemented or otherwise modified and remain in full force and effect as of the First
Amendment Effective Date. 
 6. Miscellaneous. 

(a) The Credit Agreement, as modified hereby, and the obligations of the Loan Parties thereunder and under the other Investment
Documents, are hereby ratified and confirmed and shall remain in full force and effect according to their terms. This Agreement shall constitute a Loan Document. 

(b) The Borrower hereby represents and warrant as follows: 

(i) it has taken all necessary action to authorize the execution, delivery and performance of this Agreement. 

(ii) this Agreement has been duly executed and delivered by the Borrower and constitutes the Borrower’s legal, valid and
binding obligation, enforceable in accordance with its terms, except as such enforceability may be subject to (A) bankruptcy, insolvency, reorganization, fraudulent conveyance or transfer, moratorium or similar laws affecting creditors’
rights generally and (B) general principles of equity 







 
(regardless of whether such enforceability is considered in a proceeding at law or in equity). 

(iii) no consent, approval, authorization or order of, or filing, registration or qualification with, any court or governmental
authority or third party is required in connection with the execution, delivery or performance by the Borrower of this Agreement. 

(c) The Borrower represents and warrants to the Administrative Agent and the Lenders that (i) the representations and
warranties of the Loan Parties set forth in Article VI of the Credit Agreement and in each other Investment Document are true and correct in all material respects (or, if any such representation or warranty is qualified by materiality or
Material Adverse Effect, it shall be true and correct in all respects) as of the date hereof with the same effect as if made on and as of the date hereof, except to the extent such representations and warranties expressly relate solely to an earlier
date and (ii) no event has occurred and is continuing (other than the Existing Events of Default) which constitutes (A) a Default or an Event of Default or (B) an Event of Non-Compliance under the Warrants. 

(d) This Agreement may be executed in any number of counterparts, each of which when so executed and delivered shall be an
original, but all of which shall constitute one and the same instrument. Delivery of an executed counterpart of this Agreement by telecopy shall be effective as an original and shall constitute a representation that an executed original shall be
delivered. 
 (e) THIS AGREEMENT AND THE RIGHTS AND OBLIGATIONS OF THE PARTIES HEREUNDER SHALL BE GOVERNED BY AND
CONSTRUED AND INTERPRETED IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK. 
 (f) Consent by Holders of
Warrants. Each of Athyrium Opportunities Fund (A) LP and Athyrium Opportunities Fund (B) LP, as holders of the Warrants (the “Warrant Holders”), consents to, and waives any notice requirements under the Warrants with
respect to (i) the Borrower amending and restating its Certificate of Incorporation (the “Amended Certificate”) in the form set forth as Exhibit 3 to this Agreement, (ii) the issuance of shares of Series F Preferred
Stock created under the Amended Certificate, (iii) the conversion of all previously-existing classes of Borrower’s preferred stock to common stock as described in the Amended Certificate, and (iv) the payment of accrued dividends on
the previously-existing classes of Borrower’s preferred stock, in shares of Borrower’s Common Stock as described in the Amended Certificate (collectively, the “Financing Actions”). Each of the Warrant Holders further
waives the provisions of Section 9(d) of the Warrants, as and to the extent the Financing Actions would be precluded by Section 9(d) of the Warrants (it being understood that neither the Borrower nor the Warrant Holders make any
representation or agreement with respect to the applicability of Section 9(d) of the Warrants to the Financing Actions). 

(g) Direction. The Lenders party hereto hereby direct and authorize the Administrative Agent, pursuant to
Section 10.03 of the Credit Agreement, to execute and deliver the Agreement (the foregoing, the “Direction”). The Lenders party hereto acknowledge and affirm their obligations under Section 10.03 of the Credit Agreement to
hold harmless and indemnify the Administrative Agent in connection with the Direction. 







 [Signature pages follow] 







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

							
	BORROWER:				SYNCARDIA SYSTEMS, INC.,
					a Delaware corporation
				
					By:		 /s/ Michael Garippa

					Name:		Michael Garippa
					Title:		Chief Executive Officer









													
	LENDERS:	 		 	ATHYRIUM OPPORTUNITIES FUND (A) LP,
		 		 	a Delaware limited partnership
				
		 		 		 	By: ATHYRIUM OPPORTUNITIES ASSOCIATES LP, its General Partner
					
		 		 		 		 	By: ATHYRIUM OPPORTUNITIES ASSOCIATES GP LLC, the General Partner of Athyrium Opportunities Associates LP
							
		 		 		 		 		 	By:	 	 /s/ Andrew Hyman

		 		 		 		 		 	Title:	 	 SVP

		 		 		 		 		 	Date:	 	 September 15, 2014

			
		 		 	 ATHYRIUM OPPORTUNITIES FUND (B) LP,

a Delaware limited partnership

				
		 		 		 	By: ATHYRIUM OPPORTUNITIES ASSOCIATES LP, its General Partner
					
		 		 		 		 	By: ATHYRIUM OPPORTUNITIES ASSOCIATES GP LLC, the General Partner of Athyrium Opportunities Associates LP
							
		 		 		 		 		 	By:	 	 /s/ Andrew Hyman

		 		 		 		 		 	Title:	 	 SVP

		 		 		 		 		 	Date:	 	 September 15, 2014

			
		 		 	 SWK FUNDING LLC,
 a Delaware Limited
Liability company

				
		 		 	By:	 	 /s/ Brett Pope

		 		 	Title:	 	 CEO

		 		 	Date:	 	 September 15, 2014










											
	ACKNOWLEDGED AND AGREED:								
			
	ADMINISTRATIVE AGENT:				CANTOR FITZGERALD SECURITIES
						
									By:		 /s/ James Bond

									Title:		 Chief Operating Officer

									Date:		 September 15, 2014









 EXHIBIT 1 

Schedule 5.01(d) 
 See Schedule 5.01(d)
delivered by the Borrower with that certain Amended and Restated Credit Agreement dated as of December 13, 2013. In addition, the Existing Events of Default have occurred, and the facts and circumstances and other events giving rise to the
Existing Events of Default have occurred. 







 EXHIBIT 2 

Schedule 6.13(b) 







 Schedule 6.13(b)-Capitalization 

as of 9/15/2014 
  

									
	 Stock Options
	  	Underlying Shares	 	  	Weighted Average Exercise Price	 
	 Outstanding as of 9/15/2014
	  	 	1,366,121	  	  	$	0.37	  
			
	Stock Type	  	# of Shares Authorized	 	  	# of Shares Outstanding/Issuable	 
			
	 Common Stock
	  	 	40,000,000	  	  	 	19,278,946	  
			
	 New Series F Preferred (1)
	  	 	10,791,366	  	  	 	4,616,563	  
			
	 Common Stock Warrants
	  				  	 	3,030,480	  
			
	 Common Stock Options
	  				  	 	2,881,405	  
		  	  
	  
	 	  	  
	  
	 
			
	 Athyrium Fund A Common Warrants
						 	133,250	  
		  	  
	  
	 	  	  
	  
	 
			
	 Athyrium Fund B Common Warrants
						 	73,682	  
		  	  
	  
	 	  	  
	  
	 
			
	 Fully Diluted Shares
						 	30,014,326	  
		  	  
	  
	 	  	  
	  
	 

  

	(1)	Reflects shares to be issued in the Initial Closing under the Series F Preferred Stock Purchase Agreement, including 275,622 shares to be issued to the Lenders 








 EXHIBIT 3 

Amended Certificate