THIS NOTE HAS NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED,
NOR UNDER ANY STATE SECURITIES LAW AND MAY NOT BE PLEDGED, SOLD, ASSIGNED OR
OTHERWISE TRANSFERRED UNLESS (I) A REGISTRATION STATEMENT WITH RESPECT THERETO
IS EFFECTIVE UNDER THE SECURITIES ACT OF 1933, AS AMENDED, AND ANY APPLICABLE
STATE SECURITIES LAW REQUIREMENTS HAVE BEEN MET OR (II) AN EXEMPTION FROM THE
REGISTRATION REQUIREMENTS UNDER THE SECURITIES ACT OF 1933, AS AMENDED, AND THE
REGISTRATION OR QUALIFICATION REQUIREMENTS OF APPLICABLE STATE SECURITIES LAWS
IS AVAILABLE.
$5,000,000
PLAYBOY.COM, INC. PROMISSORY NOTE
September 26, 2001
FOR VALUE RECEIVED, Playboy.com, Inc., a Delaware corporation (the
"Company"), whose principal place of business is located at 730 Fifth Avenue,
New York, NY 10019, promises to pay to the order of Hugh M. Hefner, an
individual, whose principal place of business is located at Playboy Mansion
West, 10236 Charing Cross Road, Holmby Hills, CA 90024 (the "Holder"), the
principal amount of FIVE MILLION Dollars ($5,000,000), together with interest
incurred thereon, all as hereinafter provided. Any payments of amounts due
hereunder shall be in such currency of the United States at the time of payment
as shall be legal tender for the payment public or private debts.
1. INTEREST. Prior to the date upon which this Note becomes due and payable as
described herein, the unpaid balance of the principal amount shall accrue
interest at a rate equal to eight percent (8.0%) per annum. Interest shall be
compounded annually and shall be computed on the basis of a 360-day year. All
payments received by the Holder hereunder will be applied first to costs of
collection and fees, if any, then to interest, and the balance to principal.
2. REPAYMENT. Except as otherwise provided herein, all principal and interest
accrued and unpaid hereunder shall become due on July 1, 2002 (the "Maturity
Date"), and shall be payable by the Company to the Holder in full on the
Maturity Date; provided that, this Note may be repaid in whole or in part by the
Company without penalty or premium at any time and from time to time prior to
the Maturity Date. This Note shall be paid without deduction by reason of any
set-off, defense or counterclaim of the Company. If any payment due hereunder
shall become due on a Saturday, Sunday or legal holiday under the laws of the
State of New York, such payment shall be made on the next succeeding business
day in New York.
3. EVENTS OF DEFAULT. If any of the following conditions, events or acts shall
occur: (a) the dissolution of the Company or any vote in favor thereof by the
Board of Directors and
stockholders of the Company; or (b) the Company's insolvency, assignment for the
benefit of creditors, application for or appointment of a receiver, filing of a
voluntary or involuntary petition under any provision of the United States
Bankruptcy Code or any other United States federal or state statute affording
relief to debtors; or there shall be commenced against the Company any such
proceeding or filed against the Company any such application or petition which
proceeding, application or petition is not dismissed or withdrawn within sixty
(60) days of commencement or filing as the case may be; or (c) the failure of
the Company to pay the amount of principal on and interest accrued under this
Note in accordance with the terms hereof, when the same shall become due and
payable; or (d) the default in the due observance or performance of any material
covenant, condition or agreement on the part of the Company to be observed or
performed pursuant to the terms hereof and such default shall continue uncured
for fifteen (15) days after written notice thereof, specifying such default,
shall have been given to the Company by the Holder of this Note; then, in any
such event and at any time thereafter while such event is continuing, the Holder
shall have the right to declare an event of default hereunder ("Event of
Default"); provided that upon the occurrence of an event described in subsection
(a) or (b) above such event shall be deemed an Event of Default hereunder
whether or not the Holder makes such a declaration (an "Automatic Event of
Default"), and the indebtedness evidenced by this Note shall immediately upon
such declaration or Automatic Event of Default become due and payable, both as
to principal and interest, without presentment, demand, protest or other notice
of any kind, all of which are hereby expressly waived (pursuant to Section 8
hereof), notwithstanding anything contained herein to the contrary.
No course of dealing or delay or failure on the part of the Holder to exercise
any rights under this Section 3 shall operate as a waiver of such rights or
otherwise prejudice such Holder's rights, powers and remedies. The Company will
pay or reimburse the Holder, to the extent permitted by law, for all costs and
expenses, including, but not limited to reasonable attorneys' fees, incurred by
it in collecting any sums due on this Note or in otherwise enforcing any of its
rights.
4. ASSIGNMENT. This Note may not be assigned, transferred or otherwise
negotiated by the Holder without the prior written consent of the Company.
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 any such event, such provision(s) 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 in no way shall be affected, prejudiced or disturbed thereby.
6. SUCCESSORS AND ASSIGNS. All covenants, agreements and undertakings in this
Note by or on behalf of any of the parties shall bind and inure to the benefit
of the respective successors and permitted assigns of the parties whether so
expressed or not.
7. NOTICES. Any and all notices, requests, consents and demands required or
permitted to be given hereunder shall be in writing, delivered to the addresses
stated above. Either party may change by notice the address to which notices to
it are to be addressed.
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8. WAIVER OF PRESENTMENT. The Company and all endorsers and guarantors of this
Note herein, if any, waive presentment for payment, demand, protest, notice of
protest for nonpayment and notice of dishonor of this Note; waive all other
demands and notices in connection with the delivery, acceptance, performance and
enforcement of this Note; and consent to any extension or postponement of the
time of payment or any other indulgence.
9. GOVERNING LAW. This Note shall be construed and enforced in accordance with,
and the rights of the parties shall be governed by, the laws of the State of New
York, without regard to principles of conflicts of law.
10. EXPENSES. The Company hereby agrees to pay to the Holder all expenses
incurred by the Holder, including reasonable attorneys' fees, in enforcing and
collecting amounts due hereunder.
11. ENTIRE AGREEMENT. This Note contains the entire agreement between the
Company and the Holder with respect to the subject matter hereof, and supersedes
every course of dealing, other conduct or oral agreement or representation
previously made by the Holder. No change in this Note shall be effective unless
made in a writing duly executed by the Holder and the Company.
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IN WITNESS WHEREOF, the Company has caused this Note to be signed on
the date first set forth above.
PLAYBOY.COM, INC.
By: /s/ Lawrence R. Lux
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Lawrence R. Lux, President