exv10w71



 





EXHIBIT
10.71




PROMISSORY NOTE




December 31, 2007

(Date)



FOR VALUE RECEIVED, La Jolla Pharmaceutical Company a corporation located at the address stated
below (“Maker”) promises, jointly and severally if more than one, to pay to the order of General
Electric Capital Corporation or any subsequent holder hereof
(each, a “Payee”) at its office
located at 83 Wooster Heights Road, Danbury, CT or at such other place as Payee or the holder
hereof may designate, the principal sum of Two Hundred Thirty Six Thousand Four Hundred Fifty One
and 29/00 Dollars ($236,451.29), with interest on the unpaid principal balance, from the date
hereof through and including the dates of payment, at a fixed interest rate of Ten and Fifty
Five Hundredths percent (10.55%) per annum, to be paid in lawful money of the United States, in
Forty-Eight (48) consecutive monthly installments of principal and interest as follows:




	 	 	 	 	 
	         Periodic	 	 	 
	       Installment	 	Amount	 
	 
	Thirty-Six (36)
	 	$	6,119.60	 
	Eleven (11)
	 	$	5,586.12	 





each (“Periodic Installment”) and a final installment which shall be in the amount of the
total outstanding principal and interest. The first Periodic Installment shall be due and
payable on January 1, 2008 and the following Periodic Installments and the final installment
shall be due and payable on the same day of each succeeding month (each, a “Payment Date”).
Such installments have been calculated on the basis of a 360 day year of twelve 30-day
months. Each payment may, at the option of the Payee, be calculated and applied on an
assumption that such payment would be made on its due date.



The acceptance by Payee of any payment which is less than payment in full of all amounts due
and owing at such time shall not constitute a waiver of Payee’s right to receive payment in
full at such time or at any prior or subsequent time.



The Maker hereby expressly authorizes the Payee to insert the date value is actually given in the
blank space on the face hereof and on all related documents pertaining hereto.



This Note may be secured by a security agreement, chattel mortgage, pledge agreement or like
instrument (each of which is hereinafter called a “Security
Agreement”).



Time is of the essence hereof. If any installment or any other sum due under this Note or any
Security Agreement is not received within ten (10) days after its due date, the Maker agrees to
pay, in addition to the amount of each such installment or other sum, a late payment charge of
five percent (5%) of the amount of said installment or other sum, but not exceeding any lawful
maximum. If (i) Maker fails to make payment of any amount due hereunder within ten (10) days
after the same becomes due and payable; or (ii) Maker is in default under, or fails to perform
under any term or condition contained in any Security Agreement, then the entire principal sum
remaining unpaid, together with all accrued interest thereon and any other sum payable under this
Note or any Security Agreement, at the election of Payee, shall immediately become due and
payable, with interest thereon at the lesser of eighteen percent (18%) per annum or the highest
rate not prohibited by applicable law from the date of such accelerated maturity until paid (both
before and after any judgment).



Notwithstanding anything to the contrary contained herein or in the Security Agreement, Maker may
not prepay in full or in part any indebtedness hereunder without the express written consent of
Payee in its sole discretion.



It is the intention of the parties hereto to comply with the applicable usury laws; accordingly,
it is agreed that, notwithstanding any provision to the contrary in this Note or any Security
Agreement, in no event shall this Note or any Security Agreement require the payment or permit
the collection of interest in excess of the maximum amount permitted by applicable law. If any
such excess interest is contracted for, charged or received under this Note or any Security
Agreement, or if all of the principal balance shall be prepaid, so that under any of such
circumstances the amount of interest contracted for, charged or received under this Note or any
Security Agreement on the principal balance shall exceed the maximum amount of interest permitted
by applicable law, then in such event (a) the provisions of this paragraph shall govern and
control, (b) neither Maker nor any other person or entity now or hereafter liable for the
payment hereof shall be obligated to pay the amount of such interest to the extent that it is in
excess of the maximum amount of interest permitted by applicable law, (c) any such excess



 









 






which may have been collected shall be either applied as a credit against the then unpaid
principal balance or refunded to Maker, at the option of the Payee, and (d) the effective rate
of interest shall be automatically reduced to the maximum lawful contract rate allowed under
applicable law as now or hereafter construed by the courts having jurisdiction thereof. It is
further agreed that without limitation of the foregoing, all calculations of the rate of interest
contracted for, charged or received under this Note or any Security Agreement which are made for
the purpose of determining whether such rate exceeds the maximum lawful contract rate, shall be
made, to the extent permitted by applicable law, by amortizing, prorating, allocating and
spreading in equal parts during the period of the full stated term of the indebtedness evidenced
hereby, all interest at any time contracted for, charged or received from Maker or otherwise by
Payee in connection with such indebtedness; provided, however, that if any applicable state law
is amended or the law of the United States of America preempts any applicable state law, so that
it becomes lawful for the Payee to receive a greater interest per annum rate than is presently
allowed, the Maker agrees that, on the effective date of such amendment or preemption, as the
case may be, the lawful maximum hereunder shall be increased to the maximum interest per annum
rate allowed by the amended state law or the law of the United States of America.



The Maker and all sureties, endorsers, guarantors or any others (each such person, other than the
Maker, an “Obligor”) who may at any time become liable for the payment hereof jointly and
severally consent hereby to any and all extensions of time, renewals, waivers or modifications
of, and all substitutions or releases of, security or of any party primarily or secondarily
liable on this Note or any Security Agreement or any term and provision of either, which may be
made, granted or consented to by Payee, and agree that suit may be brought and maintained against
any one or more of them, at the election of Payee without joinder of any other as a party
thereto, and that Payee shall not be required first to foreclose, proceed against, or exhaust any
security hereof in order to enforce payment of this Note. The Maker and each Obligor hereby
waives presentment, demand for payment, notice of nonpayment, protest, notice of protest, notice
of dishonor, and all other notices in connection herewith, as well as filing of suit (if
permitted by law) and diligence in collecting this Note or enforcing any of the security hereof,
and agrees to pay (if permitted by law) all expenses incurred in collection, including Payee’s
actual attorneys’ fees. Maker and each Obligor agrees that fees not in excess of twenty percent
(20%) of the amount then due shall be deemed reasonable.



THE MAKER HEREBY UNCONDITIONALLY WAIVES ITS RIGHTS TO A JURY TRIAL OF ANY CLAIM OR CAUSE OF
ACTION BASED UPON OR ARISING OUT OF, DIRECTLY OR INDIRECTLY, THIS NOTE, ANY OF THE RELATED
DOCUMENTS, ANY DEALINGS BETWEEN MAKER AND PAYEE RELATING TO THE SUBJECT MATTER OF THIS
TRANSACTION OR ANY RELATED TRANSACTIONS, AND/OR THE RELATIONSHIP THAT IS BEING ESTABLISHED
BETWEEN MAKER AND PAYEE. THE SCOPE OF THIS WAIVER IS INTENDED TO BE ALL ENCOMPASSING OF ANY AND
ALL DISPUTES THAT MAY BE FILED IN ANY COURT (INCLUDING, WITHOUT LIMITATION, CONTRACT CLAIMS, TORT
CLAIMS, BREACH OF DUTY CLAIMS, AND ALL OTHER COMMON LAW AND STATUTORY CLAIMS.) THIS WAIVER IS
IRREVOCABLE MEANING THAT IT MAY NOT BE MODIFIED EITHER ORALLY OR IN WRITING, AND THE WAIVER SHALL
APPLY TO ANY SUBSEQUENT AMENDMENTS, RENEWALS, SUPPLEMENTS OR MODIFICATIONS TO THIS NOTE, ANY
RELATED DOCUMENTS, OR TO ANY OTHER DOCUMENTS OR AGREEMENTS RELATING TO THIS TRANSACTION OR ANY
RELATED TRANSACTION. IN THE EVENT OF LITIGATION, THIS NOTE MAY BE FILED AS A WRITTEN CONSENT TO
A TRIAL BY THE COURT.



This Note and any Security Agreement constitute the entire agreement of the Maker and Payee with
respect to the subject matter hereof and supercedes all prior understandings, agreements and
representations, express or implied.



No variation or modification of this Note, or any waiver of any of its provisions or conditions,
shall be valid unless in writing and signed by an authorized representative of Maker and Payee.
Any such waiver, consent, modification or change shall be effective only in the specific instance
and for the specific purpose given.




 









 







Any provision in this Note or any Security Agreement which is in conflict with any statute, law
or applicable rule shall be deemed omitted, modified or altered to conform thereto.




	 	 	 	 	 	 	 	 	 
	 	 	 	 	La Jolla Pharmaceutical Company	 	 
	 
	 	 	 	 	 	 	 	 
	/s/ Lisa Peraza
 


	 	 	 	By:
	 	/s/ Deirdre Gillespie
 

	 	 
	(Witness)
	 	 	 	 	 	 	 	 
	Lisa Peraza
 


	 	 	 	Name: 
	 	Deirdre Gillespie	 	 
	(Print name)
	 	 	 	 	 	 	 	 
	6455 Nancy Ridge Drive

	 	 	 	Title:
	 	President & CEO	 	 
	San Diego, CA 92121
	 	 	 	 	 	 	 	 
	(Address)
	 	 	 	 	 	 	 	 






	 	 	 	 	 	 	 	 	 
	 	 	 	 	Federal Tax ID #: 330361285	 	 
	 
	 	 	 	 	 	 	 	 
	 	 	 	 	Address: 6455 Nancy Ridge Drive, San Diego, San Diego County, CA 92121
	 
	 	 	 	 	 	 	 	 
	 

	 	 	 	By:
	 	/s/ Gail A. Sloan	 	 
	 

	 	 	 	 	 	 	 	 
	 
	 	 	 	 	 	 	 	 
	 

	 	 	 	Name:
	 	Gail A. Sloan	 	 
	 
	 	 	 	 	 	 	 	 
	 

	 	 	 	Title:
	 	VP Finance