exv10w21



 


Exhibit 10.21


PROMISSORY NOTE














	 	 	 	 	 	 	 
	Borrower:
	 	Portfolio Recovery Associates, Inc.

120 Corporate Boulevard, Suite 100

Norfolk, VA 23502
	 	Lender:
	 	RBC CENTURA BANK

Twin Oaks

Lending Service Center

5700 Lake Wright Dr. Ste#400

Norfolk, VA 23502



















	 	 	 	 	 	 
	 	Principal Amount: $750,000.00	 	Interest Rate: 4.450%
	 	Date of Note: January 8, 2004








PROMISE TO PAY. Portfolio Recovery Associates, Inc. (“Borrower”) promises to
pay to RBC CENTURA BANK (“Lender”), or order, in lawful money of the United
States of America, the principal amount of Seven Hundred Fifty Thousand &
00/100 Dollars ($750,000.00), together with interest at the rate of 4.450%
per annum on the unpaid principal balance from January 8, 2004, until paid
in full.




PAYMENT. Borrower will pay this loan in 59 regular payments of $13,974.84
each and one irregular last payment estimated at $13,974.92. Borrower’s
first payment is dun February 1, 2004, and all subsequent payments are due
on the same day of each month after that. Borrower’s final payment will be
due on January 1, 2009, and will be for all principal, accrued interest, and
all other applicable fees, costs and charges, if any, not yet paid. Payments
include principal and interest. Unless otherwise agreed or required by
applicable law, payments will be applied first to any accrued unpaid
interest; then to principal; then to any unpaid collection costs; and then
to any late charges. The annual interest rate for this Note is computed on a
365/360 basis; that is, by applying the ratio of the annual interest rate
over a year of 360 days, multiplied by the outstanding principal balance,
multiplied by the actual number of days the principal balance is
outstanding. Borrower will pay Lender at Lender’s address shown above or at
such other place as Lender may designate in writing.




PREPAYMENT PENALTY. Upon prepayment of this Note, Lender is entitled to the
following prepayment penalty: Prepayment Yield Maintenance Fee: Cost of
Funds




If, during the term of the Loan, the Borrower prepays the Loan in whole or
in part, the Borrower shall pay to Bank, at the time of prepayment, a yield
maintenance fee. The yield maintenance fee shall be equal to the aggregate
daily lost cash flow to Bank as a result of the prepayment. The aggregate
daily lost cash flow to Bank shall be the difference between (i) the present
value, as of the date of prepayment of the Loan, of the remaining scheduled
payments of principal and interest from the prepayment date to the scheduled
maturity date of the Loan (including any final balloon payment on such date)
at the contract rate of interest on the Loan, assuming all payments are made
as and when required, and (ii) the present value, as of the date of
prepayment of the Loan, of payments of principal and interest (including any
final balloon payment) that the Bank would receive from the prepayment date
to the scheduled maturity date of the Loan, assuming all payments are made
as and when required, from a new loan of a similar amount as the principal
balance outstanding on the Loan as of the date of prepayment, with the same
remaining maturity, to a similar borrower, at the contract rate of interest
being offered by Bank as of the prepayment date on new loans of similar
amount with the same remaining maturity to similar borrowers. The discount
rate for calculating the present value of the daily lost cash flow to Bank
shall be the contract rate of interest being offered by Bank as of the date
of prepayment of the Loan for a new loan of a similar amount with the same
remaining maturity to a similar borrower, all of which shall be determined
by Bank in its reasonable discretion, which discretion shall be conclusive
absent a showing of bad faith or manifest error. Notwithstanding the
foregoing, any prepayment of the Loan, whether in whole or in part, shall be
subject to a minimum prepayment fee of one-half percent (.5%) of the amount
being prepaid, which minimum prepayment fee shall be paid by Borrower to
Bank at the time of prepayment of the Loan. Except for the foregoing,
Borrower may pay all or a portion of the amount owed earlier than it
is due. Early payments will not, unless agreed to by Lender in writing, relieve
Borrower of Borrower’s obligation to continue to make payments under the
payment schedule. Rather, early payments will reduce the principal balance
due and may result in Borrower’s making fewer payments. Borrower agrees not
to send Lender payments marked “paid in full”, “without recourse”, or
similar language. If Borrower sends such a payment, Lender may accept it
without losing any of Lender’s rights under this Note, and Borrower will
remain obligated to pay any further amount owed to Lender. All written
communications concerning disputed amounts, including any check or other payment
instrument that indicates that the payment constitutes “payment
in full” of the amount owed or that is tendered with other conditions or limitations or
as full satisfaction of a disputed amount must be mailed or delivered to:
RBC CENTURA BANK, Twin Oaks, Lending Service Center, 5700 Lake Wright Dr,
Ste#400, Norfolk, VA 23502.




LATE CHARGE. If a payment is 15 days or more late, Borrower will be charged
5.000% of the unpaid portion of the regularly scheduled payment.




INTEREST AFTER DEFAULT. Upon default, including failure to pay upon final
maturity, Lender, at its option, may, if permitted under applicable law,
increase the interest rate on this Note to 18.000% per annum. The interest
rate will not exceed the maximum rate permitted by applicable law.




DEFAULT. Each of the following shall constitute an event of default (“Event of Default”) under this Note:




Payment Default. Borrower fails to make any payment when due under this Note.




Other Defaults. Borrower fails to comply with or to perform any other
term, obligation, covenant or condition contained in this Note or in any
of the related documents or to comply with or to perform any term,
obligation, covenant or condition contained in any other agreement
between Lender and Borrower.




Default in Favor of Third Parties. Borrower or any Grantor defaults under
any loan, extension of credit, security agreement, purchase or sales
agreement, or any other agreement, in favor of any other creditor or
person that may materially affect any of Borrower’s property or
Borrower’s ability to repay this Note or perform Borrower’s obligations
under this Note or any of the related documents.




False Statements. Any warranty, representation or statement made or
furnished to Lender by Borrower or on Borrower’s behalf under this Note
or the related documents is false or misleading in any material respect,
either now or at the time made or furnished or becomes false or
misleading at any time thereafter.




Insolvency. The dissolution or termination of Borrower’s existence as a
going business, or a trustee or receiver is appointed for Borrower or for
all or a substantial portion of the assets of Borrower, or Borrower makes
a general assignment for the benefit of Borrower’s creditors, or Borrower
files for bankruptcy, or an involuntary bankruptcy petition is filed
against Borrower and such involuntary petition remains undismissed for
sixty (60) days.




Creditor or Forfeiture Proceedings. Commencement of foreclosure or
forfeiture proceedings, whether by judicial proceeding, self-help,
repossession or any other method, by any creditor of Borrower or by any
governmental agency against any collateral securing the loan. This
includes a garnishment of any of Borrower’s accounts, including deposit
accounts, with Lender. However, this Event of Default shall not apply if
there is a good faith dispute by Borrower as to the validity or
reasonableness of the claim which is the basis of the creditor or
forfeiture proceeding and if Borrower gives Lender written notice of the
creditor or forfeiture proceeding and deposits with Lender monies or a
surety bond for the creditor or forfeiture proceeding, in an amount
determined by Lender, in its sole discretion, as being an adequate
reserve or bond for the dispute.




Events Affecting Guarantor. Any of the preceding events occurs with
respect to any Guarantor of any of the indebtedness or any Guarantor dies
or becomes incompetent, or revokes or disputes the validity of, or
liability under, any guaranty of the indebtedness evidenced by this Note.
In the event of a death, Lender, at its option, may, but shall not be
required to, permit the Guarantor’s estate to assume unconditionally the
obligations arising under the guaranty in a manner satisfactory to
Lender, and, in doing so, cure any Event of Default.



Change In
Ownership. Any change in ownership of twenty-five percent (25%)
or more of the common stock of Borrower.




Adverse
Change. A material adverse change occurs in Borrower’s financial
condition, or Lender believes the prospect of payment or performance of
this Note is impaired.



Insecurity. Lender in good faith believes itself insecure.




Cure Provisions. If any default, other than a default in payment is
curable and if Borrower has not been given a notice of a breach of the
same provision of this Note within the preceding twelve (12) months, it
may be cured (and no event of default will have occurred) if Borrower,
after receiving written notice from Lender demanding cure of such
default: (1) cures the default within fifteen (15) days; or (2) if the
cure requires more than fifteen (15) days, immediately initiates steps
which Lender deems in Lender’s sole discretion to be sufficient to cure
the default and thereafter continues and completes all reasonable and
necessary steps sufficient to produce compliance as soon as reasonably
practical.




LENDER’S RIGHTS. Upon default, Lender may declare the entire unpaid
principal balance on this Note and ell accrued unpaid interest, together
with all other applicable fees, costs and charges, if any, immediately due
and payable, and then Borrower will pay that amount.




ATTORNEYS’ FEES; EXPENSES. Subject to any limits under applicable law, upon
default, Borrower agrees to pay Lender’s attorneys’ fees and all of Lender’s
other collection expenses, whether or not there is a lawsuit, including
without limitation legal expenses for bankruptcy proceedings.




GOVERNING LAW. This Note will be governed by, construed and enforced in
accordance with federal law and the laws of the Commonwealth








 



PROMISSORY NOTE

(Continued)




Page 2















	 	 	of Virginia. This Note has been accepted by Lender in the Commonwealth of
Virginia.





	 	 	CHOICE OF VENUE. II there is a lawsuit, Borrower agrees upon Lender’s
request to submit to the jurisdiction of the applicable courts for the City
of Norfolk, Commonwealth of Virginia.





	 	 	DISHONORED ITEM FEE. Borrower will pay a fee to Lender of $25.00 if Borrower
makes a payment on Borrower’s loan and the check or preauthorized charge
with which Borrower pays is later dishonored.





	 	 	RIGHT OF SETOFF. To the extent permitted by applicable law, Lender reserves
a right of setoff in all borrower’s accounts with Lender (whether checking,
savings, or some other account). This includes all accounts Borrower holds
jointly with someone else and all accounts Borrower may open in the future.
However, this dues not include any IRA or Keogh accounts, or any trust
accounts for which setoff would be prohibited by law. Borrower authorizes
Lender, to the extent permitted by applicable law, to charge or setoff all
sums owing on the indebtedness against any and all such accounts, and, at
Lender’s option, to administratively freeze all such accounts to allow
Lender to protect Lender’s charge and setoff rights provided in this
paragraph.





	 	 	COLLATERAL. Borrower acknowledges this Note is secured by Commercial
Security Agreement dated of even date.





	 	 	ADDITIONAL DEFAULT PROVISION. Loan shall be in default upon the death,
dissolution, merger, consolidation or termination of existence of any party.





	 	 	SUCCESSOR INTERESTS. The terms of this Note shall be binding upon Borrower,
and upon Borrower’s heirs, personal representatives, successors and assigns,
and shall inure to the benefit of Lender and its successors and assigns.





	 	 	GENERAL PROVISIONS. Lender may delay or forgo enforcing any of its rights or
remedies under this Note without losing them. Borrower and any other person
who signs, guarantees or endorses this Note, to the extent allowed by law,
waive presentment, demand for payment, and notice of dishonor. Upon any
change in the terms of this Note, and unless otherwise expressly stated in
writing, no party who signs this Note, whether as maker, guarantor,
accommodation maker or endorser, shall be released from liability. All such
parties agree that Lender may renew or extend (repeatedly and for any length
of time) this loan or release any party or guarantor or collateral; or
impair, fail to realize upon or perfect Lender’s security interest in the
collateral; and take any other action deemed necessary by Lender without the
consent of or notice to anyone. All such parties also agree that Lender may
modify this loan without the consent of or notice to anyone other than the
party with whom the modification is made.





	 	 	PRIOR TO SIGNING THIS NOTE, BORROWER READ AND UNDERSTOOD ALL THE PROVISIONS
OF THIS NOTE. BORROWER AGREES TO THE TERMS OF THE NOTE.




	 	 	BORROWER ACKNOWLEDGES RECEIPT OF A COMPLETED COPY OF THIS PROMISSORY NOTE.








	 	 	THIS NOTE IS GIVEN UNDER SEAL AND IT IS INTENDED THAT THIS NOTE IS AND SHALL
CONSTITUTE AND HAVE THE EFFECT OF A SEALED INSTRUMENT ACCORDING TO LAW.

 

 

BORROWER:





	 	 	 	 	 	 
	 
	 	PORTFOLIO RECOVERY ASSOCIATES, INC.	 	 
	 
	 	By:
	 	 	 	(Seal)
	 	 
	 	 	 	 
	 	 
	 	Kevin P. Stevenson, Executive Vice Pres./CFO of

Portfolio Recovery Associates, Inc.