EXHIBIT 6
AUD $56,332,894 October 10, 2000
PROMISSORY NOTE
FOR VALUE RECEIVED, the undersigned, Trefoil International III, SPRL,
a Belgian corporation (the "Borrower"), hereby promises to pay to Shamrock
Holdings of California, Inc., a California corporation ("SHOC"), the
principal amount of Fifty-Six Million, Three Hundred Thirty-Two Thousand,
Eight Hundred Ninety-Four Australian Dollars and No Cents $56,332,894 AUD.
Payment of the principal amount of this Note shall be made at the principal
executive office of SHOC in Burbank, California, or at such other location
as shall be designated by SHOC in writing to the Borrower. Such payment
shall be made in lawful money of the United States of America or such other
currency as shall be designated by SHOC in writing to the Borrower. This
Note is being issued on the date hereof in connection with the Borrower's
purchase from SHOC of 61,078,260 Ordinary Shares of Pacific Dunlop Limited
(the "Shares"), and all of SHOC's right, title and interest in the
Agreement, dated July 27, 2000, among SHOC, Futuris Corporation Limited and
CP Ventures Limited (the "Option").
1. Interest. No interest shall accrue or be payable on this Note.
2. Full Recourse. This Note shall be the obligation of the Borrower.
SHOC shall be entitled to full recourse against the Borrower for
performance and satisfaction of all obligations of the Borrower hereunder.
3. Optional Prepayment. The Borrower may, at its option, prepay at any
time all or any portion of the principal amount of this Note then
outstanding, without premium or penalty.
4. Mandatory Prepayment.
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(a) Principal shall be due and payable upon the consummation of a
sale of the Shares and the Option (including, in the case of the Option,
the consummation of a sale of the shares issued upon exercise of the
Option). If only a portion of the Shares or the Option (including the
shares issued upon exercise of the Option) is sold, a proportionate amount
of the principal shall be due and payable upon the consummation of such
sale.
(b) If at any time any Event of Default (as hereinafter defined)
occurs and is continuing, the entire principal amount of this Note then
outstanding, shall become due and payable without further notice or demand.
5. Events of Default. An event of default (an "Event of Default")
shall mean any one of the following events (whatever the reason for such
Event of Default and whether it shall be effected voluntarily or
involuntarily, by operation of law or pursuant to any judgment, decree or
order of any court or any order, rule or regulation of any governmental
body):
(a) a default by the Borrower in the performance of any covenant
or other agreement contained in this Note; or
(b) the Borrower shall (i) apply for or consent to the
appointment of a receiver, trustee, custodian or liquidator of any of its
property, (ii) admit in writing its inability to pay its debts as they
mature, (iii) make a general assignment for the benefit of creditors, (iv)
be adjudicated a bankrupt or insolvent or be the subject of an order for
relief under applicable bankruptcy law, or (v) file a voluntary petition in
bankruptcy, or a petition or an answer seeking an arrangement with
creditors or to take advantage of any bankruptcy, insolvency, readjustment
of debt or liquidation law or statute, or an answer admitting the material
allegations of a petition filed against it in any proceeding under any such
law; or
(c) an order, judgment or decree shall be entered, without the
application, approval or consent of the Borrower, by any court of competent
jurisdiction, approving a petition appointing a receiver, trustee,
custodian or liquidator of all or a substantial part of the assets of the
Borrower, and such order, judgment or decree shall continue unstayed and in
effect for a period of thirty (30) days.
Upon the occurrence of an Event of Default, SHOC may declare the then
outstanding principal amount of this Note, to be forthwith due and payable,
whereupon such amounts shall become and be forthwith due and payable,
without presentment, demand, protest or further notice of any kind, all of
which are hereby expressly waived by the Borrower.
No right or remedy herein conferred upon or reserved to SHOC is
intended to be exclusive of any other right or remedy, and every right and
remedy shall, to the extent permitted by law, be cumulative and in addition
to every other right and remedy given hereunder or now or hereafter
existing at law or in equity or otherwise. The assertion or employment of
any right or remedy hereunder, or otherwise, shall not prevent the
concurrent assertion or employment of any other appropriate right or
remedy.
6. Notices. All notices and other communications required or permitted
to be given hereunder shall be in writing and shall be deemed to have been
duly given if delivered personally or sent by certified mail, return
receipt requested, first-class postage prepaid to the below listed parties
at the following address:
if to SHOC:
Shamrock Holdings of California, Inc.
4444 Lakeside Drive
Burbank, California 91505
if to the Borrower:
Trefoil International III, SPRL
Avenne de Cortenbergh 75
1000 Brussels, Belgium
or to such other address as either party shall have last designated by
notice to the other party. All such notices and communications shall be
deemed to have been received on the date of receipt thereof.
7. Restrictions on Transfer. This Note may not be transferred or
assigned by the Borrower but shall be freely transferable by SHOC and its
assigns.
8. Amendments. No amendment of this Note shall be effective unless in
writing and signed by the Borrower and SHOC.
9. Waiver. The Borrower, for itself and its legal representatives and
successors, hereby expressly waives presentment, demand, notice, protest,
and all other demands or notices in connection with the delivery,
acceptance, endorsement, performance, default, or enforcement of this Note.
10. Effect of Delay or Omission. No delay or omission of SHOC in
exercising any right or remedy hereunder shall constitute a waiver of any
such right or remedy.
11. Costs of Collection. The Borrower will pay all costs and expenses
of collection, including reasonable attorneys' fees, incurred or paid by
SHOC in enforcing this Note or the obligations hereby evidenced, to the
extent permitted by law.
12. Choice of Law. This Note shall be construed and enforced in
accordance with the laws of the State of California without regard to the
conflicts of law rules thereof.
13. Headings. The section headings hereof are for convenience of
reference only, and shall not be deemed to construe or affect the meaning
of any of the provisions hereof.
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IN WITNESS WHEREOF, the Borrower has executed this Note as of the date
first above written.
TREFOIL INTERNATIONAL III, SPRL
By: /s/ Robert G. Moskowitz
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Name: Robert G. Moskowitz
Title: Director
