EXHIBIT 10.73
AMENDMENT NUMBER FIVE TO
SECURED CONVERTIBLE PROMISSORY NOTE
THIS AMENDMENT NUMBER FIVE TO SECURED CONVERTIBLE PROMISSORY NOTE (this
"AMENDMENT") is made and entered into as of the 26th day of September, 2004, by
and between BRILLIANT DIGITAL ENTERTAINMENT, INC., a Delaware corporation (the
"BORROWER"), and __________ ("HOLDER").
RECITALS
A. The Company has issued in favor of Holder a Secured
Convertible Promissory Note, dated as of May 23, 2001, in the original principal
amount of $_________, which note has been amended by that certain Amendment No.
One to Secured Convertible Promissory Note, dated as of December 19, 2001, by
that certain Amendment No. Two to Secured Convertible Promissory Note, dated as
of October 4, 2002, by that certain Amendment Number Three to Secured Promissory
Note dated as of December 31, 2003, and that certain Amendment No. Four to
Secured Convertible Promissory Note, dated as of March 30, 2004 (as amended, the
"CONVERTIBLE NOTE").
B. The Parties are delivering this Amendment pursuant to that
certain Letter Agreement, dated as of September 26, 2004.
C. The Company and Borrower each desire to further amend the
Convertible Note to change the Maturity Date and the definition of Purchase
Agreement as provided herein.
AGREEMENT
NOW, THEREFORE, in consideration of the foregoing and for good and
valuable consideration, the receipt and sufficiency of which are hereby
acknowledged, Borrower and Holder hereby agree as follows:
1. DEFINITIONS. Capitalized terms used herein and not defined
herein shall have the meanings given such terms in the Convertible Note.
"Purchase Agreement" as used in the Convertible Note shall mean that certain
Note and Warrant Purchase Agreement dated as of April 19, 2001 (together with
all schedules and exhibits thereto, the "Original Purchase Agreement"), as
amended, that certain Letter Agreement dated as of March 30, 2004 by and between
Borrower and each Holder, providing for, among other things, an extension of the
Maturity Date, that certain Letter Agreement dated as of September 26, 2004 by
and between the Borrower and each Holder, providing for, among other things, an
additional extension of the Maturity Date, including, in all cases, the
Transaction Documents related thereto, as amended, all of which agreements,
including the Transaction Documents, as amended are deemed to be amendments and
supplements to the Original Purchase Agreement and thus, a part of the "Purchase
Agreement" as defined herein.
2. MATURITY DATE. The Convertible Note is hereby amended to
change the definition of "Maturity Date" therein to mean September 26, 2005.
3. MISCELLANEOUS. Except as expressly set forth in this
Amendment, all of the terms of the Convertible Note shall remain in full force
and effect. All references in the Convertible Note to "Convertible Note",
"hereunder", "hereof", or words of like import referring to the Convertible Note
shall mean and be a reference to the Convertible Note as and to the extent it is
amended by this Amendment and any amendments to the Purchase Agreement. All
references to the Convertible Note in the Note and Warrant Purchase Agreement,
the Security and Pledge Agreement and the Guaranty executed as of May 23, 2001
in connection with the Convertible Note, and in the Investors Rights Agreement
executed as of December 19, 2001, shall mean and be a reference to the
Convertible Note as and to the extent it is amended by this Amendment and by any
amendments to the Purchase Agreement.
IN WITNESS WHEREOF, the parties hereto have executed this Amendment, or
have caused this Amendment to be executed by their duly authorized officers, as
of the day and year first above written.
BRILLIANT DIGITAL ENTERTAINMENT, INC.,
a Delaware corporation
By:
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Xxxxx Xxxx
Title: Chief Financial Officer
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