exv10w48



 





Exhibit 10.48




PURCHASE AND SALE AGREEMENT




between




SPIEGEL ACCEPTANCE CORPORATION,




as Seller




– and –




MIDLAND FUNDING LLC,




as Buyer




Dated and Effective as of




December 4, 2007




 









 





PURCHASE AND SALE AGREEMENT



THIS PURCHASE AND SALE AGREEMENT (this “Agreement”) is entered into this 4th day of December, 2007
(the “Closing Date”), by and between SPIEGEL ACCEPTANCE CORPORATION, a Delaware corporation with an
office and principal place of business c/o Eddie Bauer Holdings, Inc. at 15010 NE 36th Street,
Redmond, Washington 98052 (“Seller”), and MIDLAND FUNDING LLC, a Delaware limited liability company
with an office and principal place of business c/o Encore Capital Group, Inc. at 8875 Aero Drive,
Suite 200, San Diego, California 92123 (“Buyer”).




W I T N E S S E T H:



WHEREAS, Seller desires to sell certain Accounts (as defined herein);



WHEREAS, Buyer has reviewed and evaluated, to Buyer’s full satisfaction, the Accounts, and the
documents and records relating to the Accounts made available by Seller;



WHEREAS, Buyer was the successful bidder for purchase of the Accounts for the consideration and
under the express terms, provisions, conditions and limitations as set forth herein; and



WHEREAS, Seller is willing, subject to the express terms, provisions, conditions, limitations,
waivers and disclaimers as may be expressly set forth herein, to sell, transfer, assign and convey
to Buyer all of Seller’s right, title and interest, in, to and under the Accounts.



NOW, THEREFORE, in consideration of the mutual promises herein set forth and other valuable
consideration, the receipt and sufficiency of which is hereby acknowledged, Seller and Buyer agree
as follows:




ARTICLE I

DEFINITIONS



For purposes of this Agreement, the following terms shall have the meanings indicated:



“Account” means each and any of the charged-off private-label credit card accounts identified on
Exhibit A attached hereto and made a part hereof and to be sold by Seller to Buyer under
the terms, conditions and provisions of this Agreement and includes for each of the Accounts
identified on Exhibit A, all obligations owed to Seller from each Obligor with respect to
each Account, and the interest of Seller in any litigation to which Seller is a party or claimant
relating to any of the Accounts.



“Account Balance” means the unpaid balance owed on any individual Account as of the Cutoff Date and
reflected on the Account Schedule, excluding any post-charge-off interest or fees. It is possible
that (i) payments or other consideration may have been made or distributed by or on behalf of any
Obligor on or prior to the Cutoff Date that are not reflected in the Account Balance, or (ii) the
Account Balance may reflect payments or other consideration made or distributed by or on behalf of
an Obligor which have been deposited and credited to the balance of the Account, but which may
subsequently be dishonored and thus returned to Seller. Any such payment is hereinafter
individually referred to as an “Obligor Payment” and all such payments are hereinafter referred to
collectively as the “Obligor Payments.” In either case, the Account Balance shall be adjusted
post-closing to the extent discrepancies are later discovered, and Buyer shall be entitled to a
partial refund of the Allocated Account Price as set forth in Section 2.5.




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“Account Documents” means, to the extent available, the original or any copy (including any
microfilm, microfiche, photocopy or machine-readable format) of the account statements, payment
histories, collection notes and correspondence from Obligors.



“Account Schedule” means the schedule, in electronic form, attached hereto as Exhibit A and
made a part hereof, listing all of the Accounts sold to Buyer under this Agreement and setting
forth the following information for each such Account: the Account number, the name of primary
Obligor, and the Account Balance.



“Agreement” means this Purchase and Sale Agreement, including the cover page and all Addenda,
Exhibits and Schedules hereto.



“Allocated Account Price” means the individual price of any Account sold hereby which is calculated
as the product of the Purchase Price Percentage and the Account Balance for such Account sold
hereby.



“Business Day” means any day on which banks in the State of Washington are open for business other
than a Saturday, a Sunday or a federal holiday.



“Buyer Claims” has the meaning set forth in Section 9.2 of this Agreement.



“Claim” or “Claims” means a Buyer Claim or a Seller Claim, individually or collectively.



“Closing” means the consummation of the transaction under this Agreement pursuant to which Buyer
pays the Purchase Price to Seller and Seller delivers the Transfer Documents to Buyer.



“Computer File” means the computer file or files to be sent by e-mail or Federal Express priority
delivery by Servicer (as defined herein) to Buyer no later than the fifth Business Days from the
date of this Agreement. The file(s) shall be in a mutually acceptable electronic format, and shall
contain Account-specific information for each of the Accounts sold hereby. Seller will use its
best efforts to ensure the accuracy and completeness of the data. The Computer File shall include,
but shall not be limited to, the following fields to the extent applicable and available as of the
Cutoff Date for each Account: (i) Account Balance, (ii) account number, (iii) name, last known
address and last known phone number of the Obligor, (iv) social security number of the Obligor, (v)
date of last payment, (vi) last payment amount, (vii) interest rate, (viii) charge-off date, (ix)
open date and (x) last 12-month payment history by month. Buyer acknowledges that Servicer’s
records reflect payments by Obligors returned for insufficient funds (“NSFs”) in the manner
described in Exhibit D attached hereto.



“Cutoff Date” means midnight Eastern Standard Time on October 31, 2007 on which date the Account
Balances shall be determined for purposes of calculating the Purchase Price and Allocated Account
Prices.



“Embedded Settlement” means a written arrangement whereby Seller, Servicer, or any servicing agent
engaged by Servicer has agreed to forgive a portion of the Account Balance if the Obligor makes an
agreed-to number of payments within an agreed-to period of time.



“Escrow Agent” means The Bank of New York Trust Co., N.A, a national banking association.



“Escrow Agreement” means an escrow agreement of even date herewith between Seller and Escrow Agent
pursuant to which the Holdback will be held and disbursed which shall be substantially in the form
attached hereto as Exhibit E.




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“Holdback” means a specified percentage of the Purchase Price (herein, “Holdback Funds”) which
shall be withheld from the Purchase Price and deposited by Seller in an escrow account (the “Escrow
Account”) with Escrow Agent for a specified number of days following the Closing Date (as further
described below). The Holdback shall be used for meeting Seller’s obligations pursuant to
Articles VI, VIII, and IX of this Agreement (herein, collectively, “Holdback Obligations”).
At Closing, Seller shall deposit in the Escrow Account an amount equal to 30% of the Purchase
Price (herein, “Primary Holdback”). On the 61st day following the Closing Date (herein,
“Primary Holdback Termination Date”), Seller shall retain in the Escrow Account for an additional
120 days an amount equal to 15% of the Purchase Price (herein, “Secondary Holdback”), except to the
extent that more than half of the Primary Holdback has been used to fulfill the Holdback
Obligations, Seller shall only be obligated to retain in the Escrow Account the remaining portion
of the Primary Holdback for such 120-day period. On the Primary Holdback Termination Date, if more
than half of the Primary Holdback has not been paid out to fulfill the Holdback Obligations, Seller
shall retain the Secondary Holdback in the Escrow Account for such 120-day period, and all
remaining Holdback Funds over and above the amount of the Secondary Holdback shall belong to Seller
free of any restrictions imposed under this Agreement. On the 181st day following the
Closing Date (herein, “Holdback Termination Date”), all remaining Holdback Funds shall be disbursed
from the Escrow Account and belong to Seller free of any restrictions imposed under this Agreement
except for the amount of any Holdback Obligations that are pending on the Primary Holdback
Termination Date (herein, the “Pending Claims”). Any Pending Claims that have not been finally
resolved by agreement of Buyer and Seller on the Holdback Termination Date shall be resolved by
expedited binding arbitration conducted pursuant to the rules and under the jurisdiction of the
American Arbitration Association in the State of New York. Upon the occurrence of the first to
occur of (i) the Holdback Termination Date, or, if there are Pending Claims on the Holdback
Termination Date, the date that all Pending Claims are resolved by expedited binding arbitration,
or (ii) the date on which all Holdback Funds required to be held by Seller have been depleted
through Seller’s fulfillment of the Holdback Obligations, Seller shall have no further Holdback
Obligations under this Agreement and shall be released therefrom.



“Indemnitee” has the meaning set forth in Section 9.3 of this Agreement.



“Indemnitor” has the meaning set forth in Section 9.3 of this Agreement.



“Loan Sale Advisor” means Garnet Capital Advisors, LLC.



“Obligor” means the current and unreleased obligor on an Account.



“Purchase Price” means the amount, in dollars, to purchase the Accounts as stated in Section
2.4, calculated by multiplying the aggregate Account Balances as shown on the Account Schedule
by the Purchase Price Percentage.



“Purchase Price Percentage” means 4.31%.



“Repricing Notice” has the meaning set forth in Section 6.1 of this Agreement.



“Resale Notice” has the meaning set forth in Section 10.1 of this Agreement.



“Seller Claims” has the meaning set forth in Section 9.2 of this Agreement.



“Seller Survey” has the meaning set forth in Section 8.11 of this Agreement.



“Servicer” means CardWorks Servicing, LLC, formerly known as Cardholder Management Services,
L.L.C., and its permitted successors and assigns.




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“Servicing Agreement” means that certain Servicing Agreement dated as of December 15, 2006 between
the Servicer and Deutsche Bank Trust Company Americas, as Owner Trustee of Spiegel Credit Card
Master Note Trust, the predecessor in interest to Seller, which was assigned to and assumed by
Seller as of September 26, 2007, as amended.



“Transfer Documents” means the Bill of Sale and Assignment and such other documents as Seller and
Buyer reasonably agree are necessary, proper or appropriate for the legal transfer of Seller’s
right, title and interest in and to the Accounts purchased pursuant to this Agreement.




ARTICLE II

PURCHASE AND SALE OF THE ACCOUNTS





			
	Section 2.1	 	Agreement to Sell and Purchase Accounts. Seller agrees to
sell, and Buyer agrees to purchase, the Accounts described in
the Account Schedule, subject to the terms, provisions,
conditions, limitations, waivers and disclaimers set forth in
this Agreement.






			
	Section 2.2	 	Agreement to Assign. At Closing, Seller shall deliver to
Buyer a Bill of Sale and Assignment, in the form of
Exhibit B
hereto, executed by an authorized representative of Seller,
which Bill of Sale and Assignment together shall sell,
transfer, assign, set over, quitclaim and convey to Buyer all
right, title and interest of Seller in and to each of the
Accounts sold and the proceeds of the Accounts received by
Seller, if any, from and after the Cutoff Date.






			
	Section 2.3	 	Account Schedule. Seller has provided as
Exhibit A hereto the
Account Schedule setting forth all of the Accounts which
Buyer has agreed to purchase and Buyer acknowledges that the
same has been reviewed to its full satisfaction.






			
	Section 2.4	 	Purchase Price/Payment. The Purchase Price for the Accounts
is $30,046,447.00 which Buyer shall pay to Seller on or
before 4:00 p.m. Eastern Standard Time on the Closing Date.
The Purchase Price shall be paid to Seller in United States
Dollars by wire transfer of immediately available funds to an
account specified by Seller.






			
	Section 2.5	 	Payments Received/Adjustments to Purchase Price. To the
extent that Seller has received any Obligor Payments prior to
the Cutoff Date, Seller has reduced the Account Balances of
the applicable Accounts for purposes of calculating the
Purchase Price. Buyer shall be entitled to a refund of the
Purchase Price within 180 days after the Closing Date in an
amount equal to the product of (i) the Purchase Price
Percentage, and (ii) amount of such Obligor Payments to the
extent that the Account Balances were not reduced by such
Obligor Payments. If there are Embedded Settlements not
reflected in the Account Balances, within 90 days after the
Closing Date, Buyer shall also be entitled to receive a
refund of the Purchase Price in an amount equal to the
product of (x) the Purchase Price Percentage, and (y) the
Account Balances that Seller or its agents agreed, prior to
the Closing Date, to forgive if such Account Balances were
not reduced prior to the Closing Date to reflect such
forgiven portion. Buyer shall not be entitled to a refund
with respect to any Account Balance for which there is an
Embedded Settlement if the applicable Obligor does not make
the agreed-to payment(s) within the agreed-to period(s) of
time such that the full Account Balance is again due and
owing. Seller’s liability for refunds obligations under this
Section 2.5 shall be made from and limited to the Holdback by
submission of a claim to Escrow Agent.






			
	Section 2.6.	 	Delivery of Post-Cutoff-Date Payments. If Seller or Servicer
shall receive any Obligor Payments after the Cutoff Date,
Seller shall pay over and/or deliver the same to Buyer




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(less any commissions, fees, and expenses due to any third-party collection agencies
or attorneys for payments received between the Cutoff Date and the Closing Date) on
or within 30 days of receipt of such Obligor Payments and, if deemed necessary or
appropriate by Seller or Servicer, with an endorsement in the form substantially as
follows: “Pay to the order of Midland Funding LLC without representations or
warranties and without recourse.” Seller shall indicate on the records related to
any of the Accounts transmitted to Buyer with any remittances made pursuant to this
Section 2.6 the account number, the date of receipt of each Obligor Payment,
the amount of each Obligor Payment, the commissions, fees, and expenses paid thereon
to any third-party collection agencies or attorneys, and any other detail reasonably
required to allow Buyer to properly post the payments to its servicing system. If
Seller has deposited any Obligor Payments received from any Obligor and issued a
check or payment to Buyer with respect thereto, Buyer shall retain the risk that any
such payment so deposited by Seller shall be returned due to insufficient funds.
Seller shall have a period of 30 days after the date Seller delivers to Buyer any
Obligor Payment pursuant to this Section 2.6, to notify Buyer in writing
that any such Obligor Payment was returned due to insufficient funds and specifying
the amount thereof, whereupon Buyer shall immediately, and not later than 30 days
following receipt of such notice, pay to Seller the amount of such payment by
cashier’s or certified check and identify thereon that the payment is being made
pursuant to this Section 2.6.





ARTICLE III

TRANSFER OF ACCOUNTS AND DOCUMENTS





			
	Section 3.1	 	Assignment of Accounts. On the Closing Date, after
confirmation by Seller of receipt of the payment of the
Purchase Price, Seller shall execute and deliver or make
available to Buyer the Transfer Documents. The Bill of Sale
and Assignment shall have the same effect as an individual and
separate bill of sale for and assignment of each and every
Account referenced therein. Buyer shall be responsible at its
own expense for the recording and/or filing of the originals
of any such assignments as it deems necessary or appropriate
in its sole discretion.






			
	Section 3.2	 	Requests for Account Documents. At Buyer’s request, from the
Closing Date through the one-year anniversary of the Closing
Date, Seller will cause Servicer to provide available Account
Documents to Buyer. The charge will be $10 per request with a
standard 6-business day turn-around time. If a faster
4-business day turn-around is requested, the charge will be
$15 per request. After the one-year anniversary of the
Closing Date, Servicer may, in its sole discretion, negotiate
new arrangements and pricing with Buyer for Buyer to purchase
from Seller additional Account Documents. Seller, acting
through Servicer, shall not be obligated to provide
documentation for more than 1,488 Accounts per week. To the
extent that Account Documents are not available, Seller shall
cause Servicer to execute and deliver to Buyer affidavits of
debt in a form mutually agreeable to the parties, subject to
the aforementioned limitations on quantity and charge per
request. Servicer shall invoice Buyer directly on a monthly
basis for all charges related to the delivery of Account
Documents. Buyer shall be obligated to pay Servicer in full
within 30 days of receipt of such invoice.






			
	Section 3.3	 	Pending Legal Proceedings. No Account sold hereunder is
subject to any legal proceeding initiated by an Obligor as of
the Closing Date.





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	Section 3.4	 	Collection/Contingency Fees. No Account sold hereunder is
subject to third-party collection or contingency fees as of
the Closing Date.






			
	Section 3.5	 	Apportionment of Costs. Except as otherwise specifically
provided in this Agreement, each party will be responsible for
all fees, costs and expenses which it incurs in connection
with the negotiation, execution, delivery and performance of
this Agreement and the transactions contemplated hereby.





ARTICLE IV

SERVICING/COLLECTION





			
	Section 4.1	 	Servicing/Collection after Closing Date. Unless Buyer, in
its sole discretion, elects to assume Seller’s obligations
under the Servicing Agreement, Seller shall terminate such
Servicing Agreement prior to Closing and sell the Accounts to
Buyer on a servicing-released basis. As of the Closing Date,
all rights, obligations, liabilities and responsibilities
with respect to the servicing of the Accounts shall pass to
Buyer, and Seller shall be discharged from all responsibility
for servicing the same.






			
	Section 4.2.	 	Notification to Obligors. Buyer shall give written
notification to Obligors of the transfer of the Accounts to
Buyer within 45 days of the Closing Date and direct all
future payments to be made to the address of Buyer or its
designee.






			
	Section 4.3	 	Debt Collection of Accounts. If Buyer collects or attempts
to collect on an Account, Buyer and/or its agent shall at all
time:






	 	(a)	 	comply with all state and federal laws applicable to
debt collection including without limitation, the Consumer Credit
Protection Act, the Fair Credit Reporting Act and the Fair Debt Collection
Practices Act;
	 
	 	(b)	 	for any Account where the statute of limitations has
run, not falsely represent that a lawsuit will be filed if the Obligor does
not pay; and
	 
	 	(c)	 	not charge any Obligor any charges which are
unauthorized.






			
	Section 4.4	 	Use of Seller’s Name. Buyer shall not use or refer to the
name of Seller, any affiliate of Seller, or First Consumers
National Bank and will not represent itself to be the agent,
partner, or joint venturer of Seller, any affiliate of Seller,
or First Consumers National Bank with respect to the Accounts.
However, Buyer may use the name of Seller or an affiliate of
Seller for purposes of identifying an Account in
communications with the Obligors or in the caption of any
litigation against Obligor (so long as it is apparent that
name of Seller or its affiliate is not set forth in such
caption as the party plaintiff) in order to collect amounts
outstanding on the Accounts. In contacting or filing suit
against an Obligor, or selling Accounts, Buyer shall not state
or represent in any way that Buyer is contacting the Obligor,
filing suit or selling accounts for or on behalf of Seller,
any affiliate of Seller, or First Consumers National Bank or
that any of the foregoing will take any action with regard to
the Account or the Obligor.






			
	Section 4.5	 	Reporting to Credit Bureaus. Promptly following Closing,
Seller shall cause Servicer to report the Accounts to the
appropriate credit reporting agencies as having been
sold/transferred. Except as required by law, Seller shall
have no further obligation with respect to credit reporting
with respect to the Accounts after Closing is consummated
hereunder.





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ARTICLE V

RESERVED

ARTICLE VI

SELLER’S OBLIGATION TO REPRICE ACCOUNTS





			
	Section 6.1	 	Accounts Affected. Upon written notice (a “Repricing Notice”) from Buyer to
Escrow Agent (with a copy to Seller) received no later than 180 days from the Closing Date,
Seller will reprice any Account to which any of the following conditions applies:






	 	(a)	 	death of all Obligors on or prior to the Cutoff Date;
	 
	 	(b)	 	the filing of bankruptcy proceedings by all Obligors on
or prior to the Cutoff Date without subsequent dismissal;
	 
	 	(c)	 	the Account was created as a result of fraud or forgery
such that no Obligor has liability for such Account;
	 
	 	(d)	 	on or prior to the Cutoff Date, Seller received payment
in full settlement of the Account (including but not limited to issuance by
Seller of Form 1099C), but such Account was not deleted from the Account
Schedule by Seller;
	 
	 	(e)	 	the Account is a duplicate record of any other Account
sold hereby;
	 
	 	(f)	 	the Account is subject to any dispute, offset,
counterclaim, billing error or defense asserted to Seller in writing; or
	 
	 	(g)	 	an Obligor with respect to such Account has initiated
litigation against Seller.






			
	Section 6.2	 	Procedure for Repricing. For any Account that satisfies a
condition set forth in Section 6.1, Buyer is entitled to an
Allocated Account Price adjustment (herein, “Adjustment”)
equal to the Allocated Account Price less any amounts
collected by Buyer after the Cutoff Date and prior to Buyer’s
notification to Seller that the Account is subject to this
Article VI. Buyer shall submit a claim to Escrow Agent with a
copy to Seller for each Account for which Buyer seeks an
Adjustment. The Adjustment shall be paid to Buyer within 14
days after Seller’s receipt of the documents and instruments
required pursuant to Section 6.3 (d), provided that Escrow
Agent shall not be required to make more than one payment to
Buyer for all Adjustments and other Holdback Obligations in
any calendar month.






			
	Section 6.3	 	Limitation of Buyer’s Right to Require an
Adjustment.
Seller’s liability for obligations under this Article VI shall
be limited to the Holdback. Notwithstanding the foregoing,
Seller is not and shall not be obligated to reprice any
Account as to which:






	 	(a)	 	the terms have been modified in any material respect by
a written or oral agreement between Buyer and any Obligor, guarantor, or
surety therefor;
	 
	 	(b)	 	Buyer has obtained full payment on the Account from any
Obligor or any guarantor or surety therefor, or otherwise accepted partial
payment thereof in full satisfaction of the debt evidenced thereby;
	 
	 	(c)	 	any of the Obligors has been released by Buyer; or




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	 	(d)	 	Buyer has not provided evidence or proof reasonably
satisfactory to Seller that any of the conditions set forth in Section
6.1 is satisfied.





ARTICLE VII

REPRESENTATIONS, WARRANTIES AND COVENANTS OF BUYER



Buyer hereby represents, warrants and covenants, as of the date of this Agreement and as of the
Closing Date as follows:





			
	Section 7.1	 	Independent Evaluation. Buyer is a sophisticated investor,
has knowledge and experience in financial and business
matters that enable it to evaluate the merits and risks of
the transaction contemplated by this Agreement, and its bid
for and decision to purchase the Accounts pursuant to this
Agreement is and was based upon Buyer’s own independent
evaluation of information deemed relevant to Buyer, and of
the information made available to Buyer or its agents by
Seller or Seller’s personnel, agents, representatives or
independent contractors, which information Buyer acknowledges
and agrees was in fact made available to it and which it was
given the opportunity to inspect to its complete
satisfaction. Buyer has relied solely on its own
investigation and has not relied upon any oral or written
information provided by Seller or its personnel, agents,
representatives or independent contractors other than those
representations and warranties contained in this Agreement.
Buyer acknowledges and agrees that no employee, agent,
representative or independent contractor of Seller has been
authorized to make, and Buyer has not relied upon, any
statements made by Seller or its employees, agents,
representatives or independent contractors relating to the
Accounts other than those expressly contained in this
Agreement. Buyer acknowledges that Seller has attempted to
provide accurate information to all prospective bidders but
that Seller does not represent, warrant or insure the
accuracy or completeness of any information or its sources of
information contained in the materials submitted to Buyer.
Buyer has made such independent investigations as it deems to
be warranted into the nature, validity, enforceability,
collectability, and value of the Accounts, and all other
facts Buyer deems material to its purchase and is entering
into this transaction solely on the basis of that
investigation and Buyer’s own judgment.






			
	Section 7.2	 	Authorization. Buyer is duly and legally authorized to enter
into this Agreement and has complied with all laws, rules,
regulations, charter provisions and bylaws to which it may be
subject in connection with this Agreement and the undersigned
representative is authorized to act on behalf of and bind
Buyer to the terms of this Agreement.






			
	Section 7.3	 	Binding Obligations. This Agreement and all of the
obligations of Buyer hereunder are the legal, valid and
binding obligations of Buyer, enforceable in accordance with
the terms of this Agreement, except as such enforcement may
be limited by bankruptcy, insolvency, reorganization or other
similar laws affecting the enforcement of creditors’ rights
generally and by general equity principles (regardless of
whether such enforcement is considered in a proceeding in
equity or at law).






			
	Section 7.4	 	No Breach or Default. The execution and delivery of this
Agreement and the performance of its obligations hereunder by
Buyer will not conflict with any provision of any law or
regulation to which Buyer is subject or conflict with or
result in a breach of or constitute a default under any of
the terms, conditions or provisions of any agreement or
instrument to which Buyer is a party or by which it is bound
or any order or decree applicable to Buyer, or result in the
violation of any law, rule, regulation, order, judgment or
decree to which Buyer or its property is subject.





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	Section 7.5	 	Accounts Sold As Is. BUYER ACKNOWLEDGES AND AGREES THAT ALL
ACCOUNTS, ALL DOCUMENTATION, INFORMATION, ANALYSIS AND/OR
CORRESPONDENCE, IF ANY, ARE SOLD, TRANSFERRED, ASSIGNED AND
CONVEYED TO BUYER ON AN “AS IS, WHERE IS” BASIS, WITH ALL
FAULTS, EXCEPT AS OTHERWISE EXPRESSLY PROVIDED HEREIN. BUYER
ACKNOWLEDGES AND AGREES THAT SELLER HAS NOT AND DOES NOT
REPRESENT, WARRANT OR COVENANT THE NATURE, ACCURACY,
COMPLETENESS, ENFORCEABILITY OR VALIDITY OF ANY OF THE
ACCOUNTS, AND/OR THE ACCOUNT DOCUMENTS, EXCEPT AS EXPRESSLY
PROVIDED HEREIN.






			
	Section 7.6	 	Pending Litigation. There is no proceeding, action,
investigation or litigation pending or, to the best of
Buyer’s knowledge, threatened against Buyer which,
individually or in the aggregate, may have a material adverse
effect on this Agreement or any action taken or to be taken
in connection with Buyer’s obligations contemplated herein,
or which would be likely to impair materially its ability to
perform under the terms of this Agreement.






			
	Section 7.7	 	Approvals and Notices. No consent, approval, authorization,
or order of, registration or filing with, or notice to, any
governmental authority or court is required under federal
laws, or the laws of any jurisdiction, for the execution,
delivery, and performance of or compliance by Buyer with this
Agreement or the consummation of any other transaction
contemplated hereby.






			
	Section 7.8	 	Economic Risk. The transactions contemplated by this
Agreement do not involve, nor are they intended in any way to
constitute, the sale of a “security” or “securities” within
the meaning of any applicable securities laws, and none of
the representations, warranties or agreements of Buyer shall
create any inference that the transactions involve any
“security” or “securities”. Buyer acknowledges, understands
and agrees that the acquisition of these Accounts involve a
high degree of risk and are suitable only for persons or
entities of substantial financial means who have no need for
liquidity and who can hold the Accounts indefinitely or bear
the partial or entire loss of their value.






			
	Section 7.9	 	Nondisclosure. Buyer is in full compliance with its
obligations under the terms of any confidentiality agreement
executed by Buyer as a condition of reviewing the information
made available by Seller or its personnel, agents,
representatives or independent contractors to all potential
bidders for the Accounts. Furthermore, Buyer shall keep the
terms of the Agreement confidential, including the that fact
that it has purchased the Accounts from Seller, except for
any notification to Obligors required pursuant to Section 4.2
of this Agreement.






			
	Section 7.10	 	Identity. Buyer is a “United States person” within the
meaning of Paragraph 7701(a)(30) of the Internal Revenue Code
of 1986, as amended.






			
	Section 7.11	 	Enforcement/Legal Actions. Buyer shall not institute any
enforcement or legal action or proceeding in the name of
Seller, any affiliate of Seller, or any predecessor in
interest of Seller. Buyer shall not make reference to any of
the foregoing entities in any correspondence to or discussion
with any particular Obligor regarding enforcement or
collection of the Accounts, except to identify the subject
debt as set forth in Section 4.4. Buyer shall comply in all
respects with all applicable laws in connection with the
Accounts including, but not limited to, those relating to
debt collection practices, not taking any enforcement action
against any Obligor that would be commercially





Page 9 of 27









 







			
		 	unreasonable, and not misrepresenting, misleading, deceiving, or otherwise
failing to adequately disclose to any particular Obligor the identity of Buyer
as the owner of the Accounts. Buyer agrees, acknowledges, confirms and
understands that there may be no adequate remedy at law for a violation of the
terms, provisions, conditions and limitations set forth in this Section 7.12
and, accordingly, Seller shall have the right to seek the entry of an order by
a court of competent jurisdiction enjoining any violation hereof by Buyer or
Buyer’s agent.







			
	Section 7.12	 	Status of Buyer. Buyer is a sophisticated purchaser
that (i) is in the business of buying or originating
or collecting Accounts of the type being purchased,
or (ii) otherwise deals in such Accounts in the
ordinary course of Buyer’s business.






			
	Section 7.13	 	DTPA Waiver. Buyer has sufficient knowledge and
experience in financial and business matters to
evaluate the merits and risks of the transactions
contemplated hereby. Further, Buyer is not in a
disparate bargaining position relative to Seller.
Buyer hereby waives, to the maximum extent permitted
by law, any and all rights, benefits and remedies
under any state deceptive or unfair trade
practices/consumer protection act, with respect to
any matters pertaining to this Agreement and the
transactions contemplated hereby.






			
	Section 7.14	 	No Collusion. Neither Buyer, its affiliates, nor any
of their respective officers, partners, agents,
representatives, employees or parties in interest has
(i) in any way colluded, conspired, connived or
agreed directly or indirectly with any other bidder,
firm or person to submit a collusive or sham bid, or
any bid other than a bona fide bid, in connection
with the sale resulting in Buyer being the highest
bidder for the Accounts subject to this Agreement, or
(ii) in any manner, directly or indirectly, sought by
agreement or collusion or communication or conference
with any other bidder, firm or person to fix the
price or prices, or to fix any overhead, profit or
cost element of the bid price or the bid price of any
other bidder at the sale resulting in Buyer being the
highest bidder for the Accounts subject to this
Agreement, or to secure any advantages against
Seller.






			
	Section 7.15	 	Broker. Buyer has not engaged any broker or agent in
connection with this Agreement or the transactions
contemplated by this Agreement or to which this
Agreement relates and Buyer covenants to defend with
counsel approved by Seller and hold harmless and
indemnify Seller from and against any and all costs,
expense or liability for any compensation,
commissions and charges claimed against Seller by any
broker or agent based upon a written agreement with
Buyer relating to this Agreement or the transactions
contemplated herein.






			
	Section 7.16	 	Survival. The representations and warranties set
forth in this Article VII shall survive the closing
of the transactions herein contemplated.





ARTICLE VIII

REPRESENTATIONS, WARRANTIES AND COVENANTS OF SELLER



Seller hereby represents, warrants and covenants, as of the date of this Agreement and as of the
Closing Date as follows:





			
	Section 8.1	 	Authorization. Seller is duly and legally authorized to enter
into this Agreement and has complied with all laws, rules,
regulations, charter provisions and bylaws to which it may be
subject in connection with this Agreement and the undersigned
representative is authorized to act on behalf of and bind
Seller to the terms of this Agreement.





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	Section 8.2	 	Binding Obligations. This Agreement and all of the obligations
of Seller hereunder are the legal, valid and binding
obligations of Seller, enforceable in accordance with the
terms of this Agreement, except as such enforcement may be
limited by bankruptcy, insolvency, reorganization or other
similar laws affecting the enforcement of creditors’ rights
generally and by general equity principles (regardless of
whether such enforcement is considered in a proceeding in
equity or at law).






			
	Section 8.3	 	No Breach or Default. The execution and delivery of this
Agreement and the performance of its obligations hereunder by
Seller will not conflict with any provision of any law or
regulation to which Seller is subject or conflict with or
result in a breach of or constitute a default under any of the
terms, conditions or provisions of any agreement or instrument
to which Seller is a party or by which it is bound or any
order or decree applicable to Seller, or result in the
violation of any law, rule, regulation, order, judgment or
decree to which Seller or its property is subject.






			
	Section 8.4	 	Title to Accounts. Seller is the sole and lawful holder of
the Accounts, having received title to the credit card
accounts from CCA Assets LLC pursuant to that certain Bill of
Sale a copy of which is attached hereto as Exhibit C-1 (CCA
Assets LLC having received title to such credit card accounts
from First Consumers National Bank pursuant to that certain
Bill of Sale a copy of which is attached hereto as Exhibit
C-2) and to the receivables from Spiegel Credit Card Master
Note Trust pursuant to that certain Bill of Sale a copy of
which attached hereto as Exhibit C-3. Seller is duly and
legally authorized to sell, transfer, convey and assign its
rights therein. Since having acquired title to such accounts
and receivables from Spiegel Credit Card Master Note Trust and
CCA Assets LLC, Seller has not made any assignment,
conveyance, transfer or sale of, or otherwise encumbered, any
of its rights, title or interests in the Accounts.






			
	Section 8.5	 	Compliance with Law. To the best of Seller’s knowledge, but
without independent investigation, the Accounts have been
originated, serviced and collected in accordance with all
applicable laws, and the Accounts are valid, legally
enforceable debts, due and owing from each Obligor.






			
	Section 8.6	 	Broker. Seller has not engaged any broker or agent in
connection with this Agreement or the transactions
contemplated by this Agreement or to which this Agreement
relates except Loan Sale Advisor for whose fees Seller shall
be solely responsible in accordance with its agreement with
Loan Sale Advisor and Seller covenants to defend with counsel
approved by Buyer in its reasonable discretion and hold
harmless and indemnify Buyer from and against any and all
costs, expense or liability for any compensation, commissions
and charges claimed against Buyer by any broker or agent based
upon a written agreement with Seller relating to this
Agreement or the transactions contemplated herein.






			
	Section 8.7	 	Holdback. Seller shall cause Escrow Agent to maintain the
Holdback in the amounts and periods stated in the definition
thereof.






			
	Section 8.8	 	Survival. The representations and warranties set forth in
this Article VIII shall survive the Closing Date for 180 days.






			
	Section 8.9	 	Pending Litigation. There is no proceeding, action,
investigation or litigation pending or, to the best of
Seller’s knowledge, threatened against Seller which,
individually or in the aggregate, may have a material adverse
effect on this Agreement or any action taken




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or to be taken in connection with Seller’s obligations contemplated herein, or
would be likely to impair materially Seller’s ability to perform under the
terms of this Agreement.






			
	Section 8.10	 	Mass Settlements. Neither Seller nor Servicer has
instituted a mass settlement offer program or other
policy with respect to the Accounts. Servicer
permits, but does not require, third party collection
agencies engaged by Servicer to institute, in their
sole discretion, mass settlement offer programs with
respect to the Accounts.






			
	Section 8.11	 	Account Information. To the best of its knowledge,
the information provided to Buyer by Seller and/or
its agents or affiliates relating to the Accounts,
including without limitation, the information set
forth in the seller survey, offering memorandum or
related due diligence documents(s) provided to Buyer
in connection with the transactions contemplated by
this Agreement (collectively, the “Seller Survey”),
the Account Schedule, and the Computer File is
materially complete and accurate. Seller has
disclosed to Buyer all criteria used in its selection
of the Accounts for sale under this Agreement.






			
	Section 8.12	 	No Material Changes.
The information in the Account Schedule and Computer
File related to the Accounts has not been materially
altered or changed from the preliminary data file
reviewed by Buyer in connection with the transactions
contemplated by this Agreement, other than to reduce
Account Balances to reflect payments made by Obligors
prior to the Closing Date or to remove Accounts that
qualify for repurchase pursuant to Article VI of this
Agreement.






			
	Section 8.13	 	Disclosure. Seller has not intentionally omitted any
material information related to the Accounts of which
Seller has actual knowledge that would adversely
affect Buyer’s ability to collect on the Accounts in
the normal course of business.




EXCEPT FOR THOSE EXPRESSED IN THIS ARTICLE VIII AND SECTIONS 3.3 AND 3.4 OF THIS AGREEMENT, NO
WARRANTIES OR REPRESENTATIONS, EXPRESS OR IMPLIED, HAVE BEEN MADE BY SELLER OR BY ANYONE ACTING ON
ITS BEHALF. WITHOUT IN ANY WAY LIMITING THE GENERALITY OF THE FOREGOING, NO WARRANTIES OR
REPRESENTATIONS HAVE BEEN MADE OR ARE MADE REGARDING (i) THE COLLECTIBILITY OR ENFORCEABILITY OF
ANY THE ACCOUNTS OR (ii) THE CREDITWORTHINESS OF ANY OBLIGOR, GUARANTOR, OR SURETY WITH RESPECT TO
ANY OF THE ACCOUNTS.




ARTICLE IX

INDEMNIFICATION





			
	Section 9.1	 	Buyer’s Indemnification. From and after the date of this Agreement, Buyer
shall indemnify and hold Seller, CCA Assets LLC and their respective affiliates, and their
respective directors, officers, employees, agents and advisors (each a “Seller Indemnified
Party”) harmless against and from any and all liability for, and from and against any and all
losses or damages a Seller Indemnified Party may suffer as a result of, any claim, demand,
cost, expense, or judgment of any type, kind, character or nature asserted by any third party
(herein, “Seller Claims”) including, without limitation, all reasonable expenses incurred by a
Seller Indemnified Party in investigating, preparing or defending against any such Seller
Claims and reasonable attorneys’ fees both for such defense and all costs and expenses
incurred by a Seller Indemnified Party to enforce this indemnification, which a Seller
Indemnified Party shall incur or suffer as a result of:





Page 12 of 27









 









	 	(i)	 	the material inaccuracy of any of Buyer’s
representations or warranties made in this Agreement,
	 
	 	(ii)	 	the material breach of any of Buyer’s covenants made in
this Agreement,
	 
	 	(iii)	 	any claim by any Obligor regarding assignment,
subsequent enforcement, servicing or administration of the Accounts by
Buyer or Buyer’s agents, or
	 
	 	(iv)	 	any claim arising under the Escrow Agreement resulting
from any act or omission of Buyer.






The obligations of Buyer under this Article IX shall survive
the closing of the transactions herein contemplated for a
period of three (3) years.




			
	Section 9.2	 	Seller’s Indemnification. From and after the date of this
Agreement, Seller shall indemnify and hold Buyer and its
affiliates, and their respective directors, officers,
employees, agents and advisors (each a “Buyer Indemnified
Party”) harmless against and from any and all liability for,
and from and against any and all losses or damages a Buyer
Indemnified Party may suffer as a result of, any claim,
demand, cost, expense, or judgment of any type, kind,
character or nature asserted by any third party (herein,
“Buyer Claims”) including, without limitation, all reasonable
expenses incurred by a Buyer Indemnified Party in
investigating, preparing or defending against any such Buyer
Claims and reasonable attorneys’ fees both for such defense
and all costs and expenses incurred by Buyer to enforce this
indemnification, which a Buyer Indemnified Party shall incur
or suffer as a result of:






	 	(i)	 	the material inaccuracy of any of Seller’s
representations or warranties made in this Agreement,
	 
	 	(ii)	 	the material breach of any of Seller’s covenants made
in this Agreement,
	 
	 	(iii)	 	any claim by any Obligor regarding the origination,
servicing, collection or administration of the Accounts by Seller or
Seller’s agents (including, without limitation, Servicer), or
	 
	 	(iv)	 	any claim arising under the Escrow Agreement resulting
from any act or omission of Seller.






The
obligations of Seller under this Article IX shall survive
the closing of the transactions herein contemplated for one
hundred and eighty days (180) days and, recourse against
Seller shall be limited to the Holdback.




			
	Section 9.3	 	Procedure for Indemnification. Any party seeking
indemnification (“Indemnitee”) with respect to a Claim shall
give prompt written notice thereof to the party against whom
indemnification is sought (“Indemnitor”). Indemnitor shall
have the right to assume the defense of any and all Claims for
which indemnification is sought hereunder, and Indemnitee
agrees to cooperate with Indemnitor in any such defense. If
the amount of any Claim shall, at any time subsequent to
payment pursuant to this Agreement, be reduced by recovery,
settlement or otherwise, the amount of such reduction, less
any expenses incurred in connection therewith, shall promptly
be repaid by Indemnitee to Indemnitor.





Page 13 of 27









 








ARTICLE X

RESALE OF ACCOUNTS



Except as otherwise set forth in this Article X, Buyer may not assign any rights under this
Agreement to any person or entity without the express prior written consent of Seller.





			
	Section 10.1	 	Notice. If Buyer wishes to resell or transfer any of the Accounts to a third
party (including, without limitation, any of Buyer’s affiliated companies, except as a result
of or in connection with a restructuring, reorganization or similar transaction or series of
transactions), Buyer must give Seller at least 10 days’ prior written notice (each, a “Resale
Notice”) of Buyer’s desire to sell or transfer. The Resale Notice shall:






	 	(a)	 	identify the Account(s) that Buyer wishes to resell or
transfer; and
	 
	 	(b)	 	identify by name and address each third party that
potentially would purchase or otherwise receive the Account(s) from Buyer.






Notwithstanding the above, Buyer may, without sending a Resale Notice, resell or
transfer the Accounts to one or more of its directly or indirectly affiliated
entities, or to one or more trusts established by such entities or pledge or create
a security interest in the Accounts to or for a lender as collateral for a loan.




			
	Section 10.2	 	Approval. Seller shall have the right to approve of any
resale or transfer proposed by Buyer as provided in Section
10.1 hereof within the 10-day period following receipt of a
Resale Notice, which approval shall not be unreasonably
withheld, conditioned or delayed. If Seller fails to approve
or disapprove such resale or transfer within such 10-day
period, then Seller shall be deemed to have approved such
resale or transfer.






			
	Section 10.3	 	Assignment. If Buyer sells or transfers an Account to a
third party in accordance with this Article X, Buyer shall
assign to that third party all of Buyer’s obligations under
this Agreement relating to such Account, and Buyer’s
purchaser or transferee shall accept the assignment, and
expressly assume such Accounts in a writing that specifically
indicates that Seller is an intended beneficiary thereof.
Seller shall not be obligated in any way to a third party who
acquires or purports to have acquired any of the Accounts.
Any resale or assignment of Accounts without concurrent
assignment of Buyer’s obligations under this Agreement shall
be void.






			
	Section 10.4	 	Communication with Seller. Any approved third party to whom
Buyer transfers Accounts shall not have the right to contact
Seller directly and any communications between any such
approved third-party transferees and Seller shall go through
Buyer as the intermediary. Seller shall have the right, but
not the obligation, to contact any third-party transferee
directly if it receives collection complaints from any
Obligor. In such case, Seller shall notify Buyer of its
direct communication with such third-party transferee.






			
	Section 10.5	 	Liability. No sale or transfer of any Account by Buyer to
any person or entity will relieve Buyer of any of its
obligations or liabilities under this Agreement.





Page 14 of 27









 








ARTICLE XI

FILES AND RECORDS





			
	Section 11.1	 	Conformity to Law. Buyer agrees, at its sole cost and
expense, to abide by all applicable state and federal laws,
rules and regulations regarding the handling and maintenance
of all Accounts and all documents and records relating to the
Accounts purchased hereunder including, but not limited to,
the length of time such documents and records are to be
retained and making any disclosures to Obligors as may be
required by law.






			
	Section 11.2	 	Inspection by Seller. After the transfer of Account
Documents to Buyer pursuant to the terms of this Agreement,
Buyer agrees that, subject to compliance with all applicable
laws and regulations, Seller shall have the continuing right
to use, inspect, and make extracts from, or copies of, any
such Account Documents upon Seller’s reasonable notice to
Buyer.





ARTICLE XII

NOTICES



Unless otherwise provided for herein, notices and other communications required or permitted
hereunder shall be in writing and shall be deemed to have been duly given (a) when delivered but no
later than the second Business Day following mailing sent by overnight mail or overnight courier,
(b) when delivered, if sent by facsimile and receipt is confirmed by telephone, or (c) when
received, if sent by e-mail and an e-mail confirming receipt is sent by the recipient, in each case
to the parties at the following addresses (or at such other addresses as shall be specified by like
notice):




	 	 	 	 	 
	 

	 	If to Seller:
	 	Spiegel Acceptance Corporation
	 

	 	 	 	c/o Eddie Bauer Holdings, Inc.
	 

	 	 	 	10401 NE 8th Street, Suite 500
	 

	 	 	 	Bellevue, WA 98004
	 

	 	 	 	Attn: Vivian Gysler
	 

	 	 	 	Tel: (425) 755- 6167
	 

	 	 	 	Fax: (425) 755-7671
	 

	 	 	 	E-Mail: vivian.gysler@eddiebauer.com
	 
	 	 	 	 
	 

	 	If to Buyer:
	 	Midland Funding LLC
	 

	 	 	 	c/o Encore Capital Group, Inc.
	 

	 	 	 	8875 Aero Drive
	 

	 	 	 	Suite 200
	 

	 	 	 	San Diego, California 92123
	 

	 	 	 	Attn: General Counsel
	 

	 	 	 	Tel: (858) 560-2600
	 

	 	 	 	Fax: (858) 309-6995






ARTICLE XIII

MISCELLANEOUS PROVISIONS





			
	Section 13.1	 	Severability. If any term, covenant, condition or provision hereof is
unlawful, invalid, or unenforceable for any reason whatsoever, and such illegality,
invalidity, or unenforceability does not affect the remaining parts of this Agreement, then
all such




Page 15 of 27









 






			
	 	 	
remaining parts hereof shall be valid and enforceable and have full force and
effect as if the invalid or unenforceable part had not been included.






			
	Section 13.2	 	Rights Cumulative; Waivers. The rights of each of the
parties under this Agreement are cumulative and may
be exercised as often as any party considers
appropriate under the terms and conditions
specifically set forth. The rights of each of the
parties hereunder shall not be capable of being
waived or varied otherwise than by an express waiver
or variation in writing. Any failure to exercise or
any delay in exercising any of such rights shall not
operate as a waiver or variation of that or any other
such right. Any defective or partial exercise of any
of such rights shall not preclude any other or
further exercise of that or any other such right. No
act or course of conduct or negotiation on the part
of any party shall in any way preclude such party
from exercising any such right or constitute a
suspension or any variation of any such right.






			
	Section 13.3	 	Headings. The headings of the Articles and Sections
contained in this Agreement are inserted for
convenience only and shall not affect the meaning or
interpretation of this Agreement or any provision
hereof.






			
	Section 13.4	 	Construction. Unless the context otherwise requires,
singular nouns and pronouns, when used herein, shall
be deemed to include the plural of such noun or
pronoun and pronouns of one gender shall be deemed to
include the equivalent pronoun of the other gender.






			
	Section 13.5	 	Binding Effect. Subject to Article X, this Agreement
and the terms, covenants, conditions, provisions,
obligations, undertakings, rights and benefits
hereof, including the Addenda, Exhibits and Schedules
hereto, shall be binding upon, and shall inure to the
benefit of, the undersigned parties and their
respective heirs, executors, administrators,
representatives, successors, and assigns.






			
	Section 13.6	 	Prior Understandings. This Agreement supersedes any
and all prior discussions and agreements between
Seller and Buyer with respect to the purchase of the
Accounts and other matters contained herein, and this
Agreement and the Addenda, Exhibits and Schedules
hereto contains the sole and entire understanding
between the parties hereto with respect to the
transactions contemplated herein and therein.






			
	Section 13.7	 	Integrated Agreement. This Agreement and all Addenda,
Exhibits and Schedules hereto constitute the final
complete expression of the intent and understanding
of Buyer and Seller. This Agreement shall not be
altered or modified except by a subsequent writing,
signed by Buyer and Seller.






			
	Section 13.8	 	Counterparts. This Agreement may be executed in any
number of counterparts, each of which shall
constitute one and the same instrument, and either
party hereto may execute this Agreement by signing
any such counterpart.






			
	Section 13.9	 	Non-Merger/Survival. Each and every covenant
hereinabove made by Buyer or Seller shall survive the
delivery of the Transfer Documents for the time
period specified herein and shall not merge into the
Transfer Documents, but instead shall be
independently enforceable.






			
	Section 13.10	 	Governing Law. This Agreement shall be construed,
and the rights and obligations of Seller and Buyer
hereunder determined, in accordance with the law of
the State of New York, without giving effect to any
choice of law principles. In the event of litigation




Page 16 of 27









 






			
	 	 	
under this Agreement, the prevailing party shall be entitled to an award of attorneys’ fees and costs.






			
	Section 13.11	 	No Third-Party Beneficiaries. This Agreement is for the sole and exclusive benefit of the parties hereto, and none of
the provisions of this Agreement shall be deemed to be for the benefit of any other person or entity.






			
	Section 13.12	 	UCC Filings by Buyer. Immediately upon the sale of the Accounts to Buyer from Seller on the applicable Closing Date and
at any time thereafter, Buyer may file, in each appropriate office any Uniform Commercial Code financing statement, and any amendments
or any continuation statements thereto, required to perfect the sale of Accounts by Seller to Buyer.





Page 17 of 27









 




IN WITNESS WHEREOF, the parties hereto have executed this Agreement.




	 	 	 	 	 	 	 	 	 	 	 
	SPIEGEL ACCEPTANCE CORPORATION	 	 	 	MIDLAND FUNDING LLC	 	 
	 
	 	 	 	 	 	 	 	 	 	 
	By: 

Its

	 	/s/ Marvin E. Toland
 

President
	 	 	 	By:

Its
	 	/s/ J. Brandon Black
 

President
	 	 







Page 18 of 27