EURODOLLAR REVOLVING NOTE
TAX I.D. NO. 59-3479359
$33,000,000 Detroit, Michigan
December 15, 1997
On or before January 31, 1999 FOR VALUE RECEIVED, the undersigned,
IPG HOLDINGS LP, a Delaware limited partnership (herein called "Borrower"),
promises to pay to the order of COMERICA BANK, a Michigan banking corporation
(herein called "Bank"), in lawful currency of the United States of America at
the main office of Bank, THIRTY THREE MILLION DOLLARS ($33,000,000), or so
much of said sum as has been advanced and is then outstanding under this
Note, together with interest thereon as hereinafter set forth.
This Note is a note under which Advances, repayments and re-Advances
may be made from time to time, subject to the terms and conditions of this
Note; provided however, in no event shall Bank be obligated to make any
Advances or re-Advances hereunder (or refunds or conversions of existing
Advances) in the event that and so long as any Event of Default, or any
condition or event which, with the giving of notice or the running of time,
or both, would constitute an Event of Default, shall have occurred and be
continuing hereunder.
Each of the Advances made hereunder shall bear interest at the
Eurodollar-based Rate or the Prime-based Rate, as elected by Borrower, or as
otherwise determined under this Note.
Interest on the unpaid balance of each outstanding Prime-based Advance
shall be payable monthly, commencing on January 1, 1998, and on the first
Business Day of each succeeding month thereafter. Interest accruing at the
Prime-based Rate shall be computed on the basis of a year of 360 days, and
shall be assessed for the actual number of days elapsed, and in such
computation, effect shall be given to any change in the Prime-based Rate as a
result of any change in the Prime-based Rate on the date of each such change.
Interest on each Eurodollar-based Advance shall be payable on the last
day of the Interest Period applicable thereto; provided, however, in the
event that the Interest Period applicable to any such Eurodollar-based
Advance is more than three (3) months, interest on such Eurodollar-based
Advance shall also be payable at intervals of three (3) months from the date
of such Advance. Interest accruing at the Eurodollar-based Rate shall be
computed on the basis of a 360 day year and shall be assessed for the actual
number of days elapsed from the first day of the Interest Period applicable
thereto but not including the last day thereof.
From and after the occurrence of any Event of Default hereunder, or any
condition or event which, with the giving of notice or the running of time,
or both, would constitute an Event of Default, and so long as any such Event
of Default or such condition or event remains unremedied or uncured
thereafter, the indebtedness outstanding under this Note shall bear interest
at a per annum rate of three percent (3%) above the otherwise Applicable
Interest Rate, which interest shall be payable upon demand.
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The amount and date of each Advance, its Applicable Interest Rate, its
Interest Period, if any, and the amount and date of any repayment shall be
noted on Bank's records, which records shall be conclusive evidence thereof,
absent manifest error; provided, however, any failure by Bank to make any
such notation, or any error in any such notation, shall not relieve Borrower
of its obligations to repay Bank the amount of any Advances, all accrued and
unpaid interest thereon, and all other amounts payable by Borrower to Bank
under or pursuant to this Note.
The Borrower may request an Advance hereunder, including the refunding
or conversion of an outstanding Advance, upon the delivery to Bank of a
Request for Advance executed by an authorized representative of Borrower,
subject to the following:
(a) no Event of Default, and no condition or event which, with the
giving of notice or the running of time, or both, would constitute
an Event of Default, shall have occurred and be continuing under
this Note;
(b) each such Request for Advance shall set forth the information
required on the Request for Advance form annexed hereto as Exhibit
"A";
(c) each such Request for Advance shall be delivered to Bank by 11:00
a.m. (Detroit, Michigan time) three (3) Business Days prior to the
proposed date of Advance in the case of Eurodollar-based Advances,
and by 11:00 a.m. (Detroit, Michigan time) on the proposed date of
Advance in the case of Prime-based Advances;
(d) the principal amount of each Eurodollar-based Advance, plus the
amount of any outstanding indebtedness to be then combined
therewith having the same Applicable Interest Rate and Interest
Period shall be at least Five Hundred Thousand Dollars ($500,000),
and if greater, in integral multiples of One Hundred Thousand
Dollars ($100,000);
(e) the proposed date of any refunding or conversion of any outstanding
Eurodollar-based Advance shall only be on the last day of the
Interest Period applicable thereto;
(f) a Request for Advance, once delivered to Bank, shall not be
revocable by Borrower.
If, as to any outstanding Eurodollar-based Advance, Bank shall not
receive a timely Request for Advance in accordance with the foregoing
requesting the refunding of such Advance as a Eurodollar-based Advance, the
principal amount of such Advance which is not then repaid shall be
automatically converted to a Prime-based Advance on the last day of the
Interest Period applicable thereto, subject in all respects to the terms and
conditions of this Note. The foregoing shall not in any way whatsoever limit
or otherwise affect any of Bank's rights or remedies under this Note upon the
occurrence of any Event of Default hereunder, or any condition or event
which, with the giving of notice or the running of time, or both, would
constitute an Event of Default.
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Borrower may prepay all or part of the outstanding balance of any
Prime-based Advance under this Note at any time. Borrower may prepay all or
part of any Eurodollar-based Advance on the last day of the Interest Period
applicable thereto, provided that the amount of any such partial prepayment
shall be at least One Hundred Thousand Dollars ($100,000), or, if greater, in
integral multiples thereof, the aggregate balance of Eurodollar-based
Advances outstanding after such prepayment shall be at least One Hundred
Thousand Dollars ($100,000), and the unpaid portion of such Eurodollar-based
Advance which is refunded or converted shall be subject to the limitations
set forth in this Note. Any prepayment made in accordance with this paragraph
shall be without premium or penalty. Any other prepayment shall be otherwise
restricted by and subject to the terms of this Note.
Subject to the definition of an "Interest Period" hereunder, in the
event that any payment under this Note becomes due and payable on any day
which is not a Business Day, the due date thereof shall be extended to the
next succeeding Business Day, and, to the extent applicable, interest shall
continue to accrue and be payable thereon during such extension at the rates
set forth in this Note.
All payments to be made by Borrower to Bank under or pursuant to this
Note shall be in immediately available funds, without setoff or counterclaim,
and in the event that any payments submitted hereunder are in funds not
available until collected, said payments shall continue to bear interest
until collected. Borrower hereby authorizes Bank to charge any account of
Borrower with Bank for all sums due hereunder when due in accordance with the
terms hereof.
If Borrower makes any payment of principal with respect to any
Eurodollar-based Advance on any day other than the last day of the Interest
Period applicable thereto (whether voluntarily, by acceleration, or
otherwise), or if Borrower fails to borrow any Eurodollar-based Advance after
notice has been given by Borrower to Bank in accordance with the terms of
this Note requesting such Advance, or if Borrower fails to make any payment
of principal or interest in respect of a Eurodollar-based Advance when due,
Borrower shall reimburse Bank on demand for any resulting loss, cost or
expense incurred by Bank as a result thereof, including, without limitation,
any such loss, cost or expense incurred in obtaining, liquidating, employing
or redeploying deposits from third parties, whether or not Bank shall have
funded or committed to fund such Advance. Such amount payable by Borrower to
Bank may include, without limitation, an amount equal to the excess, if any,
of (a) the amount of interest which would have accrued on the amount so
prepaid, or not so borrowed, refunded or converted, for the period from the
date of such prepayment or of such failure to borrow, refund or convert,
through the last day of the relevant Interest Period, at the applicable rate
of interest for said Advance(s) provided under this Note, over (b) the amount
of interest (as reasonably determined by Bank) which would have accrued to
Bank on such amount by placing such amount on deposit for a comparable period
with leading banks in the interbank eurodollar market. Calculation of any
amounts payable to Bank under this paragraph shall be made as though Bank
shall have actually funded or committed to fund the relevant Eurodollar-based
Advance through the purchase of an underlying deposit in an amount equal to
the amount of such Advance and having a maturity comparable to the relevant
Interest Period; provided, however, that Bank may fund any Eurodollar-based
Advance in any manner it deems fit and the foregoing assumptions shall be
utilized only for the purpose of the calculation of amounts payable under
this paragraph. Upon
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the written request of Borrower, Bank shall deliver to Borrower a certificate
setting forth the basis for determining such losses, costs and expenses,
which certificate shall be conclusively presumed correct, absent manifest
error.
For any Interest Period for which the Applicable Interest Rate is the
Eurodollar-based Rate, if Bank shall designate a Eurodollar Lending Office
which maintains books separate from those of the rest of Bank, Bank shall
have the option of maintaining and carrying the relevant Eurodollar-based
Advance on the books of such Eurodollar Lending Office.
If, with respect to any Interest Period, Bank determines that, (a) by
reason of circumstances affecting the foreign exchange and interbank markets
generally, deposits in Eurodollars in the applicable amounts or for the
relative maturities are not being offered to Bank for such Interest Period,
or (b) if the rate of interest referred to in the definition of
"Eurodollar-based Rate" upon the basis of which the rate of interest for a
Eurodollar-based Advance is to be determined does not accurately or fairly
cover or reflect the cost to Bank of making or maintaining a Eurodollar-
based Advance hereunder, then Bank shall forthwith give notice thereof to the
Borrower. Thereafter, until Bank notifies Borrower that such circumstances no
longer exist, the right of Borrower to request a Eurodollar-based Advance and
to convert an Advance to or refund an Advance as a Eurodollar-based Advance
shall be suspended.
If, after the date hereof, the introduction of, or any change in, any
applicable law, rule or regulation or in the interpretation or administration
thereof by any governmental authority charged with the interpretation or
administration thereof, or compliance by Bank (or its Eurodollar Lending
Office) with any request or directive (whether or not having the force of
law) of any such authority, shall make it unlawful or impossible for the Bank
(or its Eurodollar Lending Office) to make or maintain any Advance with
interest at the Eurodollar-based Rate, Bank shall forthwith give notice
thereof to Borrower. Thereafter, (a) the right of Borrower to request a
Eurodollar-based Advance and to convert an Advance to or refund an Advance as
a Eurodollar-based Advance shall be suspended, and thereafter, Borrower may
select only the Prime-based Rate as the Applicable Interest Rate hereunder,
and (b) if Bank may not lawfully continue to maintain an outstanding Advance
to the end of the then current Interest Period applicable thereto, the Prime-
based Rate shall be the Applicable Interest Rate for the remainder of such
Interest Period with respect to such outstanding Advance.
If the adoption after the date hereof, or any change after the date
hereof in, any applicable law, rule or regulation of any governmental
authority, central bank or comparable agency charged with the interpretation
or administration thereof, or compliance by Bank (or its Eurodollar Lending
Office) with any request or directive (whether or not having the force of
law) made by any such authority, central bank or comparable agency after the
date hereof:
(a) shall subject Bank (or its Eurodollar Lending Office) to any tax,
duty or other charge with respect to this Note or any Advance
hereunder or shall change the basis of taxation of payments to Bank
(or its Eurodollar Lending Office) of the principal of or interest
on any Advance or any other amounts due under this Note in respect
thereof (except for changes in the rate of tax on the overall net
income of Bank or its Eurodollar Lending Office imposed by the
jurisdiction in which Bank's principal executive office or
Eurodollar Lending Office is located); or
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(b) shall impose, modify or deem applicable any reserve (including,
without limitation, any imposed by the Board of Governors of the
Federal Reserve System), special deposit or similar requirement
against assets of, deposits with or for the account of, or credit
extended by Bank (or its Eurodollar Lending Office) or shall impose
on Bank (or its Eurodollar Lending Office) or the foreign exchange
and interbank markets any other condition affecting any Advance
under this Note;
and the result of any of the foregoing is to increase the cost to Bank of
maintaining any part of the indebtedness hereunder or to reduce the amount of
any sum received or receivable by Bank under this Note by an amount deemed by
the Bank to be material, then Borrower shall pay to Bank, within fifteen (15)
days of Borrower's receipt of written notice from Bank demanding such
compensation, such additional amount or amounts as will compensate Bank for
such increased cost or reduction. The Bank shall use reasonable efforts to
advise Borrower of any event described in this paragraph within a reasonable
time. A certificate of Bank, prepared in good faith and in reasonable detail
by Bank and submitted by the Bank to the Borrower, setting forth the basis
for determining such additional amount or amounts necessary to compensate
Bank shall be conclusive and binding for all purposes, absent manifest error
in computation.
In the event that any applicable law, treaty, rule or regulation
(whether domestic or foreign) now or hereafter in effect and whether or not
presently applicable to the Bank, or any interpretation or administration
thereof by any governmental authority charged with the interpretation or
administration thereof, or compliance by the Bank with any guideline, request
or directive of any such authority (whether or not having the force of law),
including any risk-based capital guidelines, affects or would affect the
amount of capital required or expected to be maintained by the Bank (or any
corporation controlling the Bank), and the Bank determines that the amount of
such capital or any reserve requirements (including any marginal, special,
supplemental or emergency reserve requirements imposed with respect to any
category of extensions of credit or assets which include "Eurocurrency
Liabilities" as defined in Regulation D of the Federal Reserve System) to
which Bank or its Eurodollar Lending Office is increased by or based upon the
existence of any obligations of the Bank hereunder or the making or
maintaining any Advances hereunder and such increase has the effect of
reducing the rate of return on the Bank's (or such controlling corporation's)
capital as a consequence of such obligations or the making or maintaining
such Advances hereunder to a level below that which the Bank (or such
controlling corporation) could have achieved but for such circumstances
(taking into consideration its policies with respect to capital adequacy) by
an amount deemed by the Bank to be material, then the Borrower shall pay to
the Bank, within fifteen (15) days of Borrower's receipt of written notice
from Bank demanding such compensation, additional amounts sufficient to
compensate the Bank (or such controlling corporation) for any increase in the
amount of capital and reduced rate of return which the Bank reasonably
determines to be allocable to the existence of any obligations of the Bank
hereunder or to the making or maintaining any Advances hereunder. A
certificate of Bank as to the amount of such compensation, prepared in good
faith and in reasonable detail by the Bank and submitted by the Bank to the
Company, shall be conclusive and binding for all purposes absent manifest
error in computation.
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Upon the occurrence and during the continuance of any Event of Default,
Bank may at any time and from time to time, without notice to the Borrower
(any requirement for such notice being expressly waived by the Borrower), set
off and apply against any and all of the indebtedness of Borrower to Bank any
and all deposits (general or special, time or demand, provisional or final)
at any time held and other indebtedness at any time owing by Bank to or for
the credit or the account of the Borrower and any property of the Borrower
from time to time in possession of Bank, irrespective of whether or not Bank
shall have made any demand hereunder and although such obligations may be
contingent and unmatured. The rights of Bank under this paragraph are in
addition to other rights and remedies (including, without limitation, other
rights of setoff) which Bank may otherwise have.
Upon the occurrence of any Event of Default, Bank may declare this Note
due forthwith and collect, deal with and dispose of all or any part of any
security in any manner permitted or authorized by the Indiana Uniform
Commercial Code or other applicable law (including public or private sale)
and after deducting expenses (including reasonable attorneys' fees and
expenses), Bank may apply the proceeds and any deposits or credits in part or
full payment of any of said liabilities, whether due or not, in any manner or
order Bank elects.
For the purposes of this Note, the following terms have the following
meanings:
"Advance" means a borrowing requested by Borrower and made by Bank
under this Note, including any refunding or conversions of such borrowing,
and shall include a Eurodollar-based Advance and a Prime-based Advance.
"Applicable Interest Rate" means the Eurodollar-based Rate or the
Prime-based Rate, as selected by Borrower from time to time subject to the
terms and conditions of this Note.
"Business Day" means any day, other than a Saturday, Sunday or holiday,
on which Bank is open for all or substantially all of its domestic and
international business (including dealings in foreign exchange) in Detroit,
Michigan.
"Eurodollar-based Advance" means an Advance which bears interest at the
Eurodollar-based Rate.
"Eurodollar-based Rate" means a per annum interest rate which is equal
to the sum of one and one-quarter percent (1-1/4%), plus the the per annum
interest rate at which Bank's Eurodollar Lending Office offers deposits to
prime banks in the eurodollar market in an amount comparable to the relevant
Eurodollar-based Advance and for a period equal to the relevant Interest
Period at or about 11:00 a.m. (Detroit, Michigan time) (or as soon thereafter
as practical) two (2) Business Days prior to the first day of such Interest
Period.
"Eurodollar Lending Office" means Bank's office located in the Grand
Cayman Islands, British West Indies, or such other branch of Bank, domestic
or foreign, as it may hereafter designate as its Eurodollar Lending Office by
notice to Borrower.
"Event of Default" means the occurrence of any one of the following:
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(a) Borrower shall fail to pay the principal or interest under any
Advance or shall fail to pay any other amount owing by Borrower to
Bank, whether under this Note or otherwise, when due in accordance
with the terms hereof or thereof;
(b) any representation, warranty, certification or statement made or
deemed to have been made by Borrower herein or in any certificate,
financial statement or other document or agreement delivered to
Bank pursuant hereto shall prove to be untrue in any material
respect;
(c) Borrower shall fail to observe or perform any condition, covenant
or agreement of Borrower set forth in the Loan Agreement or any
other loan or security agreement or other agreement with Bank,
other than as provided in subparagraph (a) above, and Borrower
shall fail to cure such failure within any grace or cure period
provided with respect thereto;
(d) Borrower shall make any assignment for the benefit of creditors, or
there shall be commenced any bankruptcy, receivership, insolvency,
reorganization, dissolution or liquidation proceedings by or
against Borrower, or the entry of any judgment, levy, attachment,
garnishment or other process, or the filing of any lien against the
Borrower, which proceeding, if involuntary, judgment, levy,
attachment, garnishment or other process shall not be discharged,
dismissed, vacated or otherwise stayed by the Borrower within
forty-five (45) days after the commencement or filing thereof, as
applicable;
(e) Borrower shall have defaulted in the payment when due and payable
(whether at maturity, by reason of acceleration or otherwise),
after the expiration of any applicable cure period, of the
principal of or interest on any indebtedness of Borrower for
borrowed money in excess of Five Million Dollars ($5,000,000) or the
maturity of any such indebtedness shall have been accelerated in
accordance with the provisions of any indenture, contract, agreement
or instrument providing for the creation of or concerning or
otherwise governing or evidencing such indebtedness, or any event or
condition shall have occurred and be continuing which, with the
giving of notice or the passage of time, or both, would permit any
holder or holders of such indebtedness, any trustee or agent acting
on behalf of such holder or holders, or any other person, to
accelerate the maturity of such indebtedness.
"Interest Period" means a period of 1, 2, 3 or 6 months; as selected by
Borrower pursuant to the terms of this Note, commencing on the day a
Eurodollar-based Advance is made, provided that:
(a) any Interest Period which would otherwise end on a day which is not
a Business Day shall be extended to the next succeeding Business
Day, except that if the next succeeding Business Day falls in
another calendar month, the Interest Period shall end on the next
preceding Business Day, and when an Interest Period begins on a day
which has no numerically corresponding day in the calendar month
during
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which such Interest Period is to end, it shall end on the last
Business Day of such calendar month, and
(b) no Interest Period shall extend beyond the maturity date of this
Note.
"Loan Agreement" shall mean that certain Revolving Credit Agreement of
even date herewith among Borrower and Bank.
"Prime-based Advance" shall mean an Advance which bears interest at the
Prime-based Rate.
"Prime Rate" means the per annum interest rate established by Bank as
its prime rate for its borrowers, as such rate may vary from time to time,
which rate is not necessarily the lowest rate on loans made by Bank at any
such time.
"Prime-based Rate" shall mean a per annum interest rate which is equal
to the greater of (i) the Prime Rate; or (ii) the rate of interest equal to
the sum of (a) one percent (1%) and (b) the rate of interest equal to the
average of the rates on overnight Federal funds transactions with members of
the Federal Reserve System arranged by Federal funds brokers (the "Overnight
Rates"), as published by the Federal Reserve Bank of New York, or, if the
overnight Rates are not so published for any day, the average of the
quotations for the Overnight Rates received by Bank from three (3) Federal
funds brokers of recognized standing selected by Bank, as the same may be
changed from time to time. Effect shall be given to any change in the
Prime-based Rate as a result of any change in the Prime Rate or Overnight
Rates on the date of any such change in the Prime Rate or Overnight Rates, as
applicable.
"Request for Advance" means a Request for Advance issued by Borrower
under this Note in the form annexed to this Note as Exhibit "A".
Borrower agrees to make all payments to Bank of any and all amounts due
and owing by Borrower to Bank hereunder, including, without limitation, the
payment of principal and interest on any Advance, on the date provided for
such payment, in United States Dollars in immediately available funds at any
the office of Bank located in the State of Michigan, or such other address as
Bank may notify Borrower in writing.
No delay or failure of Bank in exercising any right, power or privilege
hereunder shall affect such right, power or privilege, nor shall any single
or partial exercise thereof preclude any further exercise thereof, or the
exercise of any other power, right or privilege. The rights of Bank under
this Agreement are cumulative and not exclusive of any right or remedies
which Bank would otherwise have, whether by other instruments or by law.
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This Note has been deemed to have been delivered at Detroit, Michigan,
and shall be governed by and construed and enforced in accordance with the
laws of the State of Michigan. Whenever possible each provision of this Note
shall be interpreted in such manner as to be effective and valid under
applicable law, but if any provision of this Note shall be prohibited by or
invalid under applicable law, such provision shall be ineffective to the
extent of such prohibition or invalidity, without invalidating the remainder
of such provision or the remaining provisions of this Note.
BORROWER AND THE BANK ACKNOWLEDGE THAT THE RIGHT TO TRIAL BY JURY IS A
CONSTITUTIONAL ONE, BUT THAT IT MAY BE WAIVED. EACH PARTY, AFTER CONSULTING
(OR HAVING HAD THE OPPORTUNITY TO CONSULT) WITH COUNSEL OF THEIR CHOICE,
KNOWINGLY AND VOLUNTARILY, AND FOR THEIR MUTUAL BENEFIT, WAIVES ANY RIGHT TO
TRIAL BY JURY IN THE EVENT OF LITIGATION REGARDING THE PERFORMANCE OR
ENFORCEMENT OF, OR IN ANY WAY RELATED TO, THIS NOTE OR THE INDEBTEDNESS
HEREUNDER.
THE BORROWER ACKNOWLEDGES THAT ANY APPROVAL OR EXTENSION OF CREDIT
PURSUANT TO THIS NOTE IS EXTENDED BY THE BANK FROM ITS PRINCIPAL OFFICE IN
DETROIT, MICHIGAN.
IPG HOLDINGS LP
By Intertape Polymer, Inc.
By: [signature]
________________________________________
Its: [illegible]
________________________________________
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EXHIBIT "A"
REQUEST FOR ADVANCE
The undersigned hereby requests COMERICA BANK ("Bank") to make a(an)
____________________________ * Advance to the undersigned on
________________, _____, in the amount of ________________________ Dollars
($__________) under the Promissory Note dated as of December 15, 1997, issued
by the undersigned to said Bank in the face amount of Thirty Three Million
Dollars ($33,000,000) (herein called "Note"). The Interest Period for the
requested Advance, if applicable, shall be ____________________ **. The last
day of the Interest Period for the amounts being converted or refunded
hereunder, if applicable, is ____________________, 19_____.
The undersigned certifies that no Event of Default, or any condition or
event which, with the giving of notice or the running of time, or both, would
constitute an Event of Default, has occurred and is continuing under the
Note, and none will exist upon the making of the Advance requested hereunder.
The undersigned further certifies that upon advancing the sum requested
hereunder, the aggregate principal amount outstanding under the Note will not
exceed the face amount thereof. If the amount advanced to the undersigned
under the Note shall at any time exceed the face amount thereof, the
undersigned will pay such excess amount on demand.
The undersigned hereby authorizes said Bank to disburse the proceeds of
this Request for Advance by crediting the account of the undersigned with
Bank separately designated by the undersigned or as the undersigned may
otherwise direct, unless this Request for Advance is being submitted for a
conversion or refunding, in which case it shall refund or convert that
portion stated above of the existing outstandings under the Note.
Dated this _____ day of ________________________, _____.
IPG HOLDINGS LP
By Intertape Polymer, Inc.
Its General Partner
By:________________________________________
Its:________________________________________
_________________________
* Insert Eurodollar-based or Prime-based Advance.
** Insert one 1, 2, 3 or 6 months.
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