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THIS MASTER ADVANCE NOTE IS ISSUED FOR PURPOSES OF RENEWING BORROWER'S OCTOBER
13, 1999 MASTER ADVANCE NOTE IN THE PRINCIPAL AMOUNT OF $15,000,000.00 MATURING
OCTOBER 11, 2000.
SUMMIT BANK
MASTER ADVANCE NOTE
RENEWAL
$15,000,000.00
As of October 11, 2000
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LOAN
FOR VALUE RECEIVED, the Undersigned, ("BORROWER"), unconditionally (and jointly
and severally, if more than one) promise(s) to pay to SUMMIT BANK ("BANK"), or
order, at its offices at 210 Main Street, Hackensack, New Jersey 07601, or at
such other place as may be designated in writing by Bank, the principal
aggregate sum of Fifteen Million Dollars and No Cents ($15,000,000.00) or such
lesser amount of advances as may have been borrowed, repaid and reborrowed (or
for such other financial accommodations as may have been made) together with
interest from the date hereof on the unpaid principal balance hereunder,
computed daily, at the RATE per annum indicated below, payable in accordance
with the particular PAYMENT SCHEDULE indicated below. Any advance(s) shall be
conclusively presumed to have been made to and for the benefit and at the
request of Borrower when (1) deposited or credited to an account of Borrower
with Bank, notwithstanding that such advance was requested, orally or in
writing, by someone other than Borrower or that someone other than Borrower is
authorized to draw on such account and may or does withdraw the whole or any
part of such advance, or (2) made in accordance with the oral or written
instructions of Borrower, or of any one of them if more than one, or of any one
signing below for or on behalf of Borrower.
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RATE
The RATE shall be a rate of interest agreed to by Bank and Borrower at the time
of funding of any disbursement of loan proceeds under this Master Advance Note.
If there is more than one disbursement of loan proceeds under this Master
Advance Note outstanding at any particular time, it is possible that a different
RATE will apply to each corresponding outstanding principal balance.
Interest will be calculated on the basis of the actual number of days elapsed
over a year of 360 days, unless otherwise prohibited by law.
To the extent permitted by law, whenever there is any Event of Default under
this Note, or non-payment upon demand, the RATE of interest on the unpaid
principal balance shall, at the option of Bank, be 2% over the RATE otherwise
provided herein. Borrower acknowledges that (i) such additional rate is a
material inducement to Bank to make the loan, (ii) Bank would not have made the
loan in the absence of the agreement of the Obligors (as defined in Section 1
of the Additional Terms and Conditions hereto) to pay such additional rate;
(iii) such additional rate represents compensation for increased risk to Bank
that the loan will not be repaid; and (iv) such rate is not a penalty and
represents a reasonable estimate of (a) the cost to Bank in allocating its
resources (both personnel and financial) to the on-going review, monitoring,
administration and collection of the loan and (b) compensation to Bank for
losses that are difficult to ascertain.
Notwithstanding any other limitations contained in this Note, Bank does not
intend to charge and Borrower shall not be required to pay any interest or other
fees or charges in excess of the maximum permitted by applicable law. Any
payments in excess of such maximum shall be refunded to Borrower or credited
against principal.
Interest shall accrue on the unpaid principal balance of this
Note at the Rate until the entire principal balance of this Note has been paid
in full notwithstanding any demand for payment, acceleration and/or the entry of
any judgment against Borrower, any Guarantor or Endorser.
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PAYMENT SCHEDULE
In the event that any payment due under the loan shall not be received by Bank
within TEN (10) days of the due date, Borrower shall, to the extent permitted by
law, pay Bank a late charge of 5% of the overdue payment (but in no event to be
less than 2$25.00 nor more than $2,500.00) as compensation to Bank. Any such
late charge shall be in addition to all other rights and remedies to which Bank
may be entitled and shall be immediately due and payable. Borrower acknowledges
that (i) such late charge is a material inducement to Bank to make the loan;
(ii) Bank would not have made the loan in the absence of the agreement of the
Borrower to pay such late charge, and (iii) such late charge is not a penalty
and represents a reasonable estimate of the cost to Bank in allocating its
resources (both personnel and financial) to the additional review, monitoring,
administration and collection of the loan.
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All payments received hereunder may be applied first to the payment of any
expenses or charges payable hereunder and accrued interest, and the balance only
applied to principal.
Principal shall be paid in a single payment on October 11, 2001.
Interest shall be paid monthly commencing on November 1, 2000 and continuing on
the same day of each successive month thereafter with a final payment of all
unpaid interest at the time of the final payment of the unpaid principal.
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SECURITY
As security for this Note, or any modifications, extensions and/or renewals,
Borrower grants to Bank a lien on, a continuing security interest in, and a
right to set-off at any time, without notice, all property and deposit accounts
at, under the control of or in transit to Bank which belong to Borrower, any
Guarantor or Endorser hereof.
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WAIVER OF JURY TRIAL
BORROWER WAIVES TRIAL BY JURY AND CONSENTS TO AND CONFERS PERSONAL JURISDICTION
ON COURTS OF THE STATE OF NEW JERSEY OR OF THE FEDERAL GOVERNMENT, AND EXPRESSLY
WAIVES ANY OBJECTIONS AS TO VENUE IN ANY OF SUCH COURTS, AND AGREES THAT SERVICE
OF PROCESS MAY BE MADE ON BORROWER BY MAILING A COPY OF THE SUMMONS TO BORROWER
AT BORROWER'S ADDRESS. BANK LIKEWISE WAIVES TRIAL BY JURY.
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THE ADDITIONAL TERMS AND CONDITIONS SET FORTH IN THIS NOTE ARE A
PART OF THIS NOTE.
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ATTEST: BORROWER New Jersey Resources Corporation
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____________________________, Secretary _____________________, President
(Name) (Name)
with its place of business or chief executive office (if it has more than one
place of business) at 1415 Wyckoff Road, Wall, New Jersey 07719.
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ADDITIONAL TERMS AND CONDITIONS
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1. Waivers; Consents; Costs and Expenses. Borrower and any Co-Borrowers, or Guarantor, or any Endorser hereof
(collectively "Obligors") and each of them: (i) waive(s) presentment, dishonor, demand, notice of demand, protest,
notice of protest and notice of nonpayment and any other notice required to be given under law to any Obligors in
connection with the delivery, acceptance, performance, default or enforcement of this Note, or any endorsement
or guaranty of this Note or any document or instrument evidencing any security for payment of this Note; (ii)
consent(s) to any and all delays, extensions, renewals or other modifications of this Note or waivers of any term
hereof or release or discharge by Bank of any Obligors or release, substitution or exchange of any security for the
payment hereof or the failure to act on the part of Bank or any indulgence shown by Bank from time to time and in one
or more instances, (without notice to or further assent from any Obligors) and agree(s) that no such action, failure
to act or failure to exercise any right or remedy on the part of Bank shall in any way affect or impair the obligations
of any Obligors or be construed as a waiver by Bank of, or otherwise affect, any of Bank's rights under this Note,
under any endorsement or guaranty of this Note or under any document or instrument evidencing any security for payment
of this Note; and (iii) (jointly and severally, if more than one) agree(s) to pay, on demand, all costs and expenses
of collection of this Note or of any endorsement or any guaranty hereof and/or the enforcement of Bank's rights
with respect to, or the administration, supervision, preservation, protection of, or realization upon, any property
securing payment hereof, (including any costs and expenses incurred in any bankruptcy or other insolvency
proceedings of any Obligors), 3including reasonable attorney's fees (whether or not such attorney is a regularly salaried
employee of Bank, any parent corporation or any subsidiary or affiliate thereof, whether now existing or hereafter
created), not to exceed 20% of all liabilities hereunder, which shall be deemed reasonable.
2. Governing Law. This Note is delivered in and shall be construed under the laws of the State of New Jersey and in
any litigation in connection with, or enforcement of, this Note or of any endorsement or guaranty of this Note or any
security given for payment hereof. The term "Bank" as used in this Note shall include Bank's successors, endorsers
and assigns.
3. Events of Default. The occurrence of any one or more of the following events shall constitute an Event of Default
hereunder: (i) failure to pay any principal, interest or any of the Obligations as and when due; (ii) failure to pay or
perform any Obligation of any of the Obligors to Bank, whether by maturity or acceleration, set forth in this Note or
in
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any Loan Document; (iii) any change in ownership in any Obligor or the death of any of the principals or key employees
of any Obligor; (iv) a proceeding being filed or commenced against any Obligor for dissolution or liquidation;
or any of the Obligors voluntarily or involuntarily terminating or dissolving or being terminated or dissolved; (v)
insolvency of any Obligor, or any Obligor fails to pay its debts as they become due in the ordinary course of
business; or a creditor's committee is appointed for the business of any Obligor, or any Obligor makes an assignment
for the benefit of creditors, or a petition in bankruptcy or for reorganization or to effect a plan of arrangement
with creditors is filed by any Obligor; or any Obligor applies for or permits the appointment of a receiver or
trustee for any or all of its property, assets or rights or any such receiver or trustee shall have been appointed for
any or all of its property, assets or rights or any of the above actions or proceedings whatsoever are commenced by
or against any Obligor; (vi) any attachments, liens or additional security interests being placed upon any of the
Collateral; (vii) acquisition at any time or from time to time of title to the whole or any part of the Collateral by
any person, partnership, limited liability company or corporation other than any of the Obligors; (viii) any final
judgment, order or decree rendered against any Obligor exceeding $25,000.00 and remaining undischarged,
unstayed, or outstanding against any Obligor for a period of thirty (30) days; (ix) any investigation undertaken by
any governmental entity or if any indictment, charge or proceeding is filed or commenced, whether criminal or civil
pursuant to Federal or state law against any Obligor for which forfeiture of any of the property or assets of such
Obligor is a penalty; (x) any Reportable Event occurs or if any Employee Benefit Plan is terminated or Bank
reasonably believes such plan may be terminated pursuant to and as defined in the Employee Retirement Income
Security Act of 1974, as amended; (xi) Bank reasonably deems itself insecure; the occurrence of a material adverse
change in the business, properties, prospects, operation or condition (financial or otherwise) of any Obligor; or a
material adverse occurrence; (xii) [Intentionally omitted].
4. Acceleration. If any Event of Default shall occur, then or any time thereafter, while such Event of Default
shall continue, Bank may declare all Obligations to be due and payable, without notice, protest, presentment, dishonor
or demand, all of which are hereby expressly waived by Obligors. Failure of Bank to declare all Obligations due and
payable upon the occurrence of an Event of Default shall not be deemed a waiver, and no rights of Bank hereunder
shall be deemed to have been waived by an act or knowledge of Bank, its agents, officers or employees, unless such
waiver is contained in an instrument in writing signed by an officer of Bank and directed to Borrower specifying such
waiver. No waiver by Bank of any of its rights shall operate as a waiver of any other of its rights or any of its
rights on a future occasion.
5. Severability. In the event any one or more of the provisions of this Note shall for any reason be held to be invalid,
illegal or unenforceable, in whole or in part or in any respect, or in the event that any one or more of the provisions of
this Note operate or would prospectively operate to invalidate this Note, then and in either of those events, such
provision or provisions only shall be deemed null and void and shall not affect any other provision of this Note and the
remaining provisions of this Note shall remain operative and in full force and effect and shall in no way be affected,
prejudiced or discharged thereby.
Section Headings. The section headings herein are included for convenience and shall not be deemed to be
part of this Note or any other Loan Documents.
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