NORTH CAROLINA SECOND AMENDMENT TO
SECOND DEED OF TRUST,
XXXXX COUNTY ASSIGNMENT OF RENTS AND
SECURITY AGREEMENT
THIS SECOND AMENDMENT TO SECOND DEED OF TRUST, ASSIGNMENT
OF RENTS AND SECURITY AGREEMENT (this "Second Amendment"), dated
as of April 29, 1997, is by and among ROSE'S STORES, INC., a
Delaware corporation whose address is 000 Xxxxx Xxxxxxx Xxxxxx,
Xxxxxxxxx, Xxxxx Xxxxxxxx 00000 (the "Mortgagor"), XXXX X.
XXXXXXXX, Substitute Trustee, whose address is Two Hanover Square,
000 Xxxxxxxxxxxx Xxxxxx Xxxx, Xxxxxxx, Xxxxx Xxxxxxxx 00000 (the
"Trustee"),and X.X. XXXXXXX & ASSOCIATES, INC., a New York
corporation, as trustee, whose address is 000 Xxxx 00xx Xxxxxx, Xxx
Xxxx, Xxx Xxxx 00000 (the "Mortgagee" or the "Beneficiary").
W I T N E S S E T H:
WHEREAS, the Mortgagor executed a Second Deed of Trust,
Assignment of Rents and Security Agreement, dated as of May 8,
1995, on the Mortgaged Property (as defined therein) in favor of
the Beneficiary which was recorded in the records of the Xxxxx
County, North Carolina, Register of Deeds on May 10, 1995 in Book
749, at Page 499 (the "Mortgage" or "Deed of Trust") to secure
obligations then and thereafter owing by the Mortgagor to its
merchandise vendors for the unpaid invoiced cost of goods
theretofore and thereafter delivered by them to the Mortgagor in
accordance with the terms of the Letter of Credit and Mortgage
Trust Agreement, dated as of May 8, 1995, between the Mortgagor and
the Beneficiary (as amended, the "Letter of Credit and Mortgage
Trust Agreement"); and
WHEREAS, the Deed of Trust was amended by the First
Amendment to Second Deed of Trust, Assignment of Rents and Security
Agreement dated as of April 29, 1996 which was recorded in the
records of the Xxxxx County, North Carolina, Registry of Deeds on
May 24, 1996 in Book 771 at Page 53;
WHEREAS, pursuant to a Revolving Credit Agreement dated
as of April 28, 1995 (as from time to time amended, the "Original
Loan Agreement") among the Mortgagor, The First National Bank of
Boston ("FNBB") and CIT Group/Business Credit, Inc. ("CIT"; FNBB
and CIT and any other lending institution party to the Original
Loan Agreement being referred to herein collectively as the
"Original Banks"), the Mortgagor executed and delivered to the
Original Banks as beneficiary, as security for the "Obligations"
of the Mortgagor to the Original Banks, a First Deed of Trust,
Assignment of Rents and Security Agreement dated as of April 27,
1995 (as from time to time amended, the "Original First Mortgage")
constituting a first lien and security interest on the Mortgaged
Property;
WHEREAS, on May 21, 1997, the Company, as Borrower,
entered into a Loan and Security Agreement with Foothill Capital
Corporation ("Foothill"), as Agent, PPM Financing, Inc. as Co-
Agent, and the financial institutions named therein, as Lenders and
referred to herein as the "Banks" (as amended, amended and
restated, supplemented or otherwise modified from time to time the
"Loan Agreement") pursuant to which all indebtedness of the Company
to the Original Banks under the Original Credit Agreement was paid
in full and the Original First Mortgage was released;
WHEREAS, as security for the "Obligations" of the
Mortgagor to the Banks under and as defined in the Loan Agreement,
the Mortgagor executed and delivered (a) that certain Future
Advance Deed of Trust, Assignment of Rents and Security Agreement
(the "Senior Headquarters Mortgage") dated as of May 21, 1996 to
Xxxxx X. Xxxxxxxxxxx, as trustee (the "First Mortgage Trustee") for
the benefit of the Banks, as beneficiary, recorded on May 24, 1996
in Book 771, at Page 93 in the records of the Xxxxx County, North
Carolina Registry of Deeds encumbering a portion of the Mortgaged
Property identified as Parcels 1 through 12 on Exhibit "A", and
(b) that certain Future Advance Deed of Trust, Assignment of Rents
and Security Agreement (the "First Warehouse Mortgage") dated as
of May 21, 1996 executed by Mortgagor, as grantor to the First
Mortgage Trustee for the benefit of the Banks, as beneficiary,
recorded in the records of the Xxxxx County, North Carolina
Registry of Deeds on May 24, 1996 in Book 771, at Page 132
encumbering a portion of the Mortgaged Property identified Parcel
13 on Exhibit "A" (the First Warehouse Mortgage and the First
Headquarters Mortgage being hereinafter collectively referred to
as the "First Mortgage");
WHEREAS, the Mortgage is subordinate, junior, and subject
to the First Mortgage as a result of that certain Subordination
Agreement (the "Subordination Agreement") dated as of May 21, 1996,
executed by the Beneficiary, the Trustee and Foothill, recorded on
May 24, 1996 in Book 771, at Page 159 in the records of the Xxxxx
County, North Carolina Registry of Deeds and encumbering the
Mortgaged Property;
WHEREAS, the Letter of Credit and Mortgage Trust
Agreement was amended and restated in its entirety by the
Collateral Trust Agreement, dated as of April 29, 1997, between the
Mortgagor and the Beneficiary (as from time to time amended,
amended and restated, supplemented or otherwise modified, the
"Trade Credit Trust Agreement");
WHEREAS, the Mortgagor has requested the Beneficiary to
amend the Deed of Trust to, among other things, extend the date on
or before which future obligations of the Beneficiary to its
merchandise vendors must be incurred if such obligations are to be
secured by the Deed of Trust;
WHEREAS, the Beneficiary is willing to make such
amendment to the Deed of Trust upon the terms and subject to the
conditions set forth in this Second Amendment;
NOW, THEREFORE, for good and valuable consideration, the
receipt and sufficiency of which is hereby acknowledged, the
parties hereto agree as follows:
Section 1. Definitions. Capitalized terms used herein
shall have the meanings ascribed to such terms in this Second
Amendment. Capitalized terms that are not otherwise defined herein
shall have the meanings ascribed to such terms in the Deed of
Trust.
Section 2. Amendments to Deed of Trust.
1 Amendment to Definition of Trade Credit Trust
Agreement. The definition of Trade Credit Trust Agreement in the
recitals to the Deed of Trust is hereby amended and restated in its
entirety so that "Trade Credit Trust Agreement" means the
Collateral Agreement, dated as of April 29, 1997, between the
Mortgagor and the Beneficiary, as amended, amended and restated,
supplemented, or otherwise modified, from time to time.
2 Amendment to Definition of Loan Agreement. The
definition of "Loan Agreement" in the recitals to the Deed of Trust
is hereby amended and restated in its entirety so that Loan
Agreement means the Loan and Security Agreement, dated May 21,
1996, by and among Foothill Capital Corporation ("Foothill"), as
Agent, PPM Financing, Inc., as Co-Agent, and the financial
institutions named therein as Lenders, and referred to herein as
the "Banks", as amended, amended and restated, supplemented,
renewed, extended, replaced or otherwise modified, from time to
time.
3 Amendment to Definition of Banks. The definition
of "Banks" in the Deed of Trust is amended and restated in its
entirety so that "Banks" means the financial institutions named as
Lenders in the Loan Agreement.
4 Amendment to Definition of First Mortgage. The
definition of "First Mortgage" is amended and restated in its
entirety so that "First Mortgage" means, collectively, (a) that
certain Future Advance Deed of Trust, Assignment of Rents and
Security Agreement (the "Senior Headquarters Mortgage") dated as
of May 21, 1996 to Xxxxx X. Xxxxxxxxxxx, as trustee (the "First
Mortgage Trustee") for the benefit of the Banks, as beneficiary,
recorded on May 24, 1996 in Book 771, at Page 93 in the records of
the Xxxxx County, North Carolina Registry of Deeds encumbering a
portion of the Mortgaged Property identified as Parcels 1
through 12 on Exhibit "A", and (b) that certain Future Advance Deed
of Trust, Assignment of Rents and Security Agreement (the "First
Warehouse Mortgage") dated as of May 21, 1996 executed by
Mortgagor, as grantor to the First Mortgage Trustee for the benefit
of the Banks, as beneficiary, recorded in the records of the Xxxxx
County, North Carolina Registry of Deeds on May 24, 1996 in
Book 771, at Page 132 encumbering a portion of the Mortgaged
Property identified Parcel 13 on Exhibit "A", as the Senior
Headquarters Mortgage and the Senior Warehouse Mortgage may be
amended, amended and restated, supplemented or otherwise modified,
from time to time.
5 Amendment to Definition of Subordination Agreement.
The definition of Subordination Agreement in the recitals to the
Deed of Trust is hereby amended and restated in its entirety so
that "Subordination Agreement" means the Subordination Agreement,
dated as of May 21, 1996, among Foothill, as Agent for itself and
the other Banks, and the Beneficiary, recorded in the records of
the Xxxxx County North Carolina Registry of Deeds on May 24, 1996
in Book 771, at Page 159, and encumbering the Mortgaged Property,
as amended, amended and restated, or otherwise modified from time
to time.
6 Amendment to Section 1.1 of Deed of Trust.
Section 1.1 of the Deed of Trust is hereby amended and restated in
its entirety to read as follows:
1.1 The Obligations. This Deed of Trust
is executed to secure the payment and
performance of the "Trade Obligations" and
other "Obligations" under and as defined in
STATE OF NORTH CAROLINA
COUNTY OF XXXXX
I, a Notary Public for said County and State aforesaid,
do hereby certify that _Jeanette Peters_ personally appeared
before me this day, who, being by me duly sworn, says she is
Chief Financial Officer, Senior Vice President and Treasurer of
ROSE'S STORE, INC., a corporation, that the seal affixed to the
foregoing instrument in writing is the corporate seal of said
corporation, that said writing was signed and sealed by her on
behalf of said corporation by its authority duly given, and that
the said _Jeanette Peters_ acknowledged the said writing to be the
act and deed of the corporation.
Witness my hand and official stamp or seal, this _28th_ day
of April, 1997.
_/s/ Xxxxxx X. Oakes______________
Notary Public
My Commission Expires
Oct. 16, 2000________
(SEAL)
PAGE
STATE OF NEW YORK
COUNTY OF NEW YORK
I, a Notary Public for said County and State aforesaid,
do hereby certify that Xxxxxxx X. Xxxxxxx personally appeared
before me this day, who, being by me duly sworn, says he is CEO and
President of X.X. XXXXXXX & ASSOCIATES, INC., a corporation, that
the seal affixed to the foregoing instrument in writing is the seal
of said corporation, that said writing was signed and sealed by him
on behalf of said corporation by its authority duly given, and that
the said Xxxxxxx X. Xxxxxxx acknowledged the said writing to be the
act and deed of the corporation.
Witness my hand and official stamp or seal, this _24th_ day
of April, 1997.
_/s/ Xxxxxxxx X. Pellegrino______
Notary Public
My Commission Expires
November 30, 1998__
(SEAL)
PAGE
STATE OF NORTH CAROLINA
COUNTY OF _Wake _____
I, a Notary Public for said County and State aforesaid,
do hereby certify that on this day before me came Xxxx X. Xxxxxxxx
to me known to be the individual described in, and who executed,
the foregoing instrument as Substitute Trustee, and acknowledged
that he executed the same as Substitute Trustee.
Witness my hand and official stamp or seal, this _28th_ day
of April, 1997.
_/s/ Xxxxxxx X. Rosendale_________
Notary Public
My Commission Expires
10-23-2001____________
(SEAL)
