Unassociated Document


    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:

     

    
      
        
        

      

      
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    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 an examination during
      the Company’s business hours of all or any such books and records pertaining to
      the calculation of Net Profits relating to this Amendment. The Company shall
      also provide copies of relevant documents and calculations to the Holder upon
      request. In the event that Holder believes that such examination shows an
      understatement of the net profits, the parties shall work in good faith to
      resolve any such dispute. 

    


    4.  The
      Company promises to not effect any significant increases in operating costs
      without the consent of the Holder. In the event that operating costs decrease,
      the Company promises to alert the Holder of the change in operating costs.
      A
      copy of the Company’s average monthly operating costs is attached hereto as
Exhibit
      A,
      which
      is the average operating costs for the Company for the first nine months of
      2007.

    


    5.  The
      Company and Holder agree that the Additional Loan Amount shall be subject to
      the
      same terms and conditions of the Note and all Amendments to the Note, copies
      of
      which are attached hereto as Exhibit
      B,
      including, but not limited to, the Default Rate, Conversion, registration
      rights, the first priority security interest in all assets of the Subsidiary,
      indemnification rights, and all other terms and conditions of the Note;
provided
      that, however,
      the
      Company, pursuant to the last sentence of Section 11 to the Note, shall only
      be
      obligated to (i) make a one-time payment of an aggregate fee amount equal to
      $5,600 to the placement agent, Hunter World Markets, Inc., (ii) issue an
      aggregate of 248,889 shares of the Company’s common stock to Hunter World
      Markets, Inc. and/or its designees in connection with the execution of this
      Amendment, and (iii) pay reasonable legal fees incurred by the Holder in
      connection with the processing of this Amendment.

    


    
      
        
        

      

      
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    6.  The
      Company shall use reasonable best efforts to prepare and file a registration
      statement (the “November Note Registration Statement”) on Form SB-2 or other
      appropriate registration document under the Securities Act of 1933, as amended
      (the “Act”) for resale of the securities issued or issuable to the Holder in
      connection with this Amendment No. 4 to the Note (the “November Amendment
      Shares”) and shall use its reasonable best efforts to maintain the November Note
      Registration Statement effective for a period of twenty-four (24) months at
      the
      Company’s expense (the “Effectiveness Period”). The Company shall file such
      November Note Registration Statement no later than 10 days after the effective
      date of the registration statement filed on Form SB-2 with the SEC on September
      24, 2007 and the registration statement on Form SB-2 filed with the SEC on
      June
      19, 2007 and amended on October 4, 2007 (the “Required Filing Date”). The
      Company shall use reasonable best efforts to cause such November Note
      Registration Statement to become effective within 45 days after the Required
      Filing Date or the actual filing date, whichever is earlier, or 60 days after
      the Required Filing Date or the actual filing date, whichever is earlier, if
      the
      November Note Registration Statement is subject to a full review by the SEC
      (the
“Required Effectiveness Date”). Subject to the conditions and limitations
      hereof, the Company’s failure to satisfy the obligations specified in the
      immediately preceding sentence shall require the Company to issue, as liquidated
      damages, shares (the “November Note Additional Shares”) to the Holder equal to a
      total of 0.0333% of the shares listed in the Subsequent Registration Statement
      for each business day that the November Note Registration Statement has not
      been
      declared effective by the SEC (and until the November Note Registration
      Statement is declared effective by the SEC); provided
      however
      that no
      penalty shall be payable if the primary and direct cause of such failure to
      satisfy said obligations is as result of comments from the SEC regarding the
      ability of the Company to utilize and rely upon Rule 415 of the Securities
      Act
      of 1933, as amended, or the SEC’s refusal to permit the registration of
      securities issued after the filing of the November Note Registration Statement.
      For the avoidance of doubt, any right to receive such November Note Additional
      Shares shall be Holder’s sole and exclusive remedy for the failure of the
      Company to satisfy the obligations under this Section 6. In the event the SEC
      does not permit the Company to register all of the November Amendment Shares,
      the Company shall use its best efforts to register the securities, subject
      to
      the foregoing sentence, that were not registered in the November Note
      Registration Statement as promptly as possible and in a manner permitted by
      the
      SEC.

    


    7.  Holder
      shall have the rights of a secured party under the Uniform Commercial Code
      for
      the Additional Loan Amount, and to effect the foregoing, each of the Company
      and
      the Subsidiary agrees to execute promptly such additional security documentation
      as Holder may request and hereby authorizes Holder to file financing and other
      statements as Holder deems advisable to perfect the first priority security
      interest granted herein.

    


    8.  The
      Company and Holder make the same representations and warranties as contained
      in
      the Note as of the date of this Amendment No. 4.

    


    9.  Except
      as
      amended herein, the Note shall remain in full force and effect.

    


    10.  This
      Amendment may be executed in any number of facsimile counterparts, each of
      which
      shall be an original, but which together constitute one and the same instrument.
      This Amendment may be executed and delivered by facsimile.

     

    [SIGNATURE
      PAGE TO FOLLOW]

     

    
      
        
        

      

      
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    IN
      WITNESS WHEREOF, the Company and Holder have executed this Amendment No. 4
      to
      the Secured Convertible Promissory Note as of the date first written
      above.

     

    
      	 	 	 
	 	BERMAN
              CENTER, INC., 
	 	 	 
	 	By:  	/s/ Laura
              A.C. Berman, LCSW, Ph.D
	 	
              Its:

            	
              Chief
                Executive Officer and President 

            
	 	
              Address: 
                

            	
              211
                East Ontario, Suite 800 

            
	 	
              Chicago,
                Illinois 60611

            
	 	 


    

     

    
      
        	 	 	 
	 	
                
                  BERMAN HEALTH & MEDIA, INC.,

                

              
	 	 	 
	 	
                By:
                  

              	
                /s/
                  Laura A.C. Berman, LCSW, Ph.D

              
	 	
                Its:

              	
                Chief
                  Executive Officer and President 

              
	 	
                Address:
                  

              	
                211
                  East Ontario, Suite 800 

              
	 	 	
                Chicago,
                  Illinois 60611

              
	 	 	 


      

       

    

    
      	
            	 
	 	
              HUNTER
                FUND LTD.,

            
	 	 	 
	 	
              By:
                

            	
              Todd
                Ficeto      

            
	 	
              Its:

            	
              President                                                    
                

            
	 	
              Address:
                

            	
              Hunter
                Fund Ltd.

            
	 	 	
              9300
                Wilshire Blvd.  

            
	 	 	Penthouse
              Suite 
	 	 	Beverly
              Hills, CA 90212  


    

     

    
      
        
        

      

      
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    EXHIBIT
      A

    


    BERMAN
      CENTER, INC.’S OPERATING COSTS

     

    
      
        
        

      

      
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    EXHIBIT
      B

    


    BERMAN
      CENTER, INC. SECURED CONVERTIBLE PROMISSORY

     NOTE
      DATED MARCH 7, 2007 FOR $225,000.00 AND ALL 

    AMENDMENTS

     

    
      
        
        

      

      
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