THIS
NOTE HAS NOT BEEN REGISTERED UNDER THE U.S. SECURITIES ACT OF
1933, AS AMENDED (THE “
SECURITIES ACT ”),
OR THE SECURITIES LAWS OF ANY STATE OR OTHER JURISDICTION OF THE
UNITED STATES AND MAY NOT BE SOLD OR OTHERWISE DISPOSED OF EXCEPT
PURSUANT TO AN EFFECTIVE REGISTRATION STATEMENT UNDER SUCH ACT AND
APPLICABLE STATE SECURITIES LAWS OR PURSUANT TO AN APPLICABLE
EXEMPTION FROM THE REGISTRATION REQUIREMENTS OF SUCH ACT AND SUCH
LAWS
BERMAN
CENTER, INC.
AMENDMENT
NO. 4 TO SECURED CONVERTIBLE PROMISSORY NOTE
This
Amendment No. 4 (this “
Amendment ”),
dated November __, 2007, amends that certain Secured Convertible
Promissory Note pursuant to which Berman Center, Inc. (the
“
Company ”)
borrowed from Hunter Fund LTD (the “
Holder ”)
the aggregate principal amount of $225,000 dated as of March 7,
2007 (the “
Note ”).
All capitalized terms used herein and not defined shall have the
meanings given to them in the Note.
RECITALS:
WHEREAS ,
the Company entered into the Note issued to the Holder pursuant to
which the Company borrowed from the Holder and promised to pay the
Holder the principal sum of Two Hundred Twenty-Five Thousand
Dollars ($225,000.00), with interest at the rate of fifteen percent
(15%) per annum;
WHEREAS ,
the
Company entered into Amendment No. 1 to the Note dated May 24, 2007
issued to the Holder pursuant to which the Company borrowed from
the Holder and promised to pay the Holder the principal sum of
Sixty Thousand Dollars ($60,000.00), with interest at the rate of
fifteen percent (15%) per annum;
WHEREAS ,
the
Company entered into Amendment No. 2 to the Note dated July 9, 2007
issued to the Holder pursuant to which the Company borrowed from
the Holder and promised to pay the Holder the principal sum of
Twenty-Five Thousand Dollars ($25,000.00), with interest at the
rate of fifteen percent (15%) per annum;
WHEREAS ,
the
Company entered into Amendment No. 3 to the Note dated August 16,
2007 issued to the Holder pursuant to which the Company borrowed
from the Holder and promised to pay the Holder the principal sum of
Three Hundred Thousand Dollars ($300,000.00), with interest at the
rate of fifteen percent (15%) per annum; and
WHEREAS ,
Section 16 of the Note states that the Note may be modified or
amended by an agreement in writing signed by the
parties;
WHEREAS ,
the Holder wishes to loan to the Company, and the Company wishes to
borrow, an additional Eighty Thousand Dollars ($80,000.00)
(“
Additional Loan Amount ”)
under the same terms and conditions of the Note for payment of the
Company’s payroll.
NOW THEREFORE ,
for good and valuable consideration, the receipt and sufficiency of
which are hereby acknowledged, the parties hereto agree as
follows:
1.
The Company promises to pay to the Holder the principal sum of the
Additional Loan Amount with interest from the date hereof at the
rate of fifteen percent (15%) per annum on the unpaid balance
hereof until paid.
2.
If not earlier converted pursuant to Section 4(a) of the Note, the
Additional Loan Amount and the all loan amounts due in connection
with the October 6, 2006 Note, the March 7, 2007 Note, Amendment
No. 1 to the March 7, 2007 Note, Amendment No. 2 to the March 2007
Note and Amendment No. 3 to the March 2007 Note shall be payable in
one installment on May 1, 2008 (“
Due Date ”).
This Additional Loan Amount is subject to conversion at the option
of the Holder, as described in Section 4(a) of the
Note.
3.
The Company promises to pay, within five business days after the
end of each calendar month, the Additional Loan Amount and the
amounts due under the Note and each of the Amendments to the Note
from one hundred percent (100%) of the funds available from the
Company’s monthly net profits for such calendar month. The
term net profits shall mean the net profits of the Company and its
affiliated entities after taxes, as shown on the Company’s
internal monthly financial statements (the “Net
Profits”). Net Profits of the Company shall be calculated by
the Company’s Chief Financial Officer in accordance with US
GAAP accounting as used by the Company to prepare its financial
statements for its periodic reports filed with the Securities and
Exchange Commission. The Company agrees to keep accurate books and
records in connection with the calculation of Net Profits,
including sales figures, the computation of net sales, the
accumulation of all related costs and expenses, and payments made
to Holder hereunder. During any time that the Company owes money to
the Holder and for one (1) year thereafter, the Company shall
permit Holder and/or its authorized representatives to inspect (and
make copies) and conduct a
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