exhibit10-13.htm


    
      
         


      

      
         


        
          

        

      

      
         


      

    

    Exhibit
10.13

    
 

    PROMISSORY
NOTE

    


     

    
      	 $4,342,927.00 	  May 7, 2009


    

     

     

    FOR VALUE
RECEIVED, BARRY HERTZ, TRACK
DATA CORPORATION, a
Delaware corporation, SILVER POLISH, LLC, a New Jersey limited liability
company, and ISAAC GENUTH, for purposes of this Agreement having an
address  c/o Steven Pfeffer, Esq., 2105 West County Line Road,
Jackson, New Jersey 08527 (jointly and severally, (singly by name, and
collectively, jointly and severally, the “Borrowers”), hereby promises to pay
without defalcation or offset to the order of SOVEREIGN BANK, having an
office at 619 Alexander Road, Princeton, New Jersey 08540, and its successors
and assigns (“Lender”), in lawful money of the United States of America in
immediately available funds, the principal sum of FOUR MILLION, THREE HUNDRED FORTY TWO
THOUSAND, NINE HUNDRED TWENTY SEVEN AND 00/100 ($4,342,927.00) DOLLARS,
together with interest according to the following terms and
conditions.

    


    
      	
              1.  

            	
              Payments. This
      Promissory Note (“Note”) shall be paid as
  follows:

            


    

    


    (A)           The
sum of $542,927.00 shall be paid to Lender on or before June 15, 2009 unless
within ten (10 days from the date hereof, the Borrowers demonstrate to the
Lender that Borrowers have delivered to the Township of Lakewood, ocean county,
New Jersey as beneficiary (“Beneficiary”), an irrevocable standby letter of
credit issued by a commercial bank having capital and surplus of not less that
$100,000,000 in substantially the same form annexed hereto as Exhibit “A” in the
face amount of $542,927 (the ”Replacement LC”) coupled with a written request to
the Beneficiary to accept the Replacement LC in substitution of the Lender’s
existing Amendment #1 to Irrevocable Standby Letter of Credit No. 3844 dated
July 8, 2008 (the “Amended LC”), a copy of which is annexed hereto as Exhibit “B” and made
a part hereof, in which case, and only in which case, the payment of the
$542,927.00 shall be deferred until July 17, 2009, TIME BEING OF THE ESSENCE AS TO ALL
DATES HEREIN. Even if the Beneficiary fails or refuses to accept the
Replacement LC in substitution of the Amended LC, for any reason or no reason,
Borrowers shall nevertheless pay the sum  of $542,927.00 to lender no
later that 3:00 P.M. prevailing time on July 17, 2009.

    


    (B)           The
balance due Lender under this Note shall be due and payable, if not sooner paid,
on November 7, 2009, TIME BEING
OF THE ESSENCE, (the “Maturity Date”) at which time all remaining
principal and accrued interest, if any, and all other sums owing under this Note
shall be due and payable in full.

    


    2.           Interest.  The
rate of interest on the principal balance due on this Note shall be ten percent
(10.0%) per annum. Provided Borrowers are free from default hereunder and under
the “Yomah Agreement” (hereinafter defined), Lender agrees to waive any interest
payable on said amounts. However, in the event Borrowers default under the
“Yomah Agreement” (hereinafter defined) or fail to make any principal payment
required hereunder when due, then interest at the aforementioned rate shall
accrue on all unpaid amounts from the date of this Note until all sums due
Lender hereunder are paid in full. Interest shall be computed on the basis of a
360 day year but shall be charged for the actual number of days
elapsed.

    


    3.           Application of
payments.  Payments received under this Note (including
prepayments) shall be applied first to principal and then to interest. The
making of any prepayment shall not change the Maturity Date or the date payments
referenced in Section 1(A) are due.

    


    4.           Prepayments.  Prepayment of
the sums due lender under this Note are permitted at any time without penalty or
premium.

    


    5.           Place and manner of
Payment.  Payments under this Note are to be made in
immediately available funds at the offices of Lender listed in this Note or at
such other location designated by lender.

    


    6.           Credits for Unit Release
Fees.  Borrowers have been afforded the right to secure “Unit
Releases” pursuant to Section 3 of that certain Agreement between Lender,
Borrowers, Yomah, Inc., Sheila Rottenberg, Aharon Rottenberg and Kedma, Inc.
dated even date herewith (the “Yoham Agreement”), a copy of which Section 3 of
the Yomah Agreement is incorporated herein by reference and made apart hereof.
Provided Borrowers are free from default under the Yomah Agreement and under
this Note, Lender agrees to apply each “Unit Release Fee” (as defined in Section
3) it receives, dollar for dollar, as a credit against the principal sum due
from time to time under Section 1(B) of this Note.

    


    7.           Defaults and
Remedies. A default by Borrowers in the payment of any sum due lender
pursuant to this Note, or a default by Borrowers (or any of the parties
comprising Borrowers) under the Yoman Agreement shall automatically constitute
an Event of Default hereunder, and Event of Default by Borrowers under the Yomah
Agreement. In any such event, all sums outstanding under this Note, Together
with accrued interest thereon from the dates hereof, may at lender’s sole
option, become, or exercise any of its other rights and remedies as set forth in
the Yomah Agreement. Lender’s delay or failure to accelerate this Note or to
exercise any other available right or remedy shall not impair any such right or
remedy, nor shall it be construed to be a forbearance or waiver.

    


    8.         New Jersey Law. 
This Note shall be governed by, and construed in accordance with, the laws of
the State of New Jersey. Borrowers hereby consent to personal jurisdiction in
the state of New Jersey with respect to any and all matters arising under or
relating to this Note.

    


    9         Partial
Invalidity.  If any term or provision of this Note is at any
time held to be invalid by any court of competent jurisdiction, the remaining
terms and provisions of this Note shall not be affected and shall remain in full
force and effect.

    


    10.           Waiver to Jury Trial. No
implied Waivers.  Borrowers hereby irrevocably waive
presentment, demand, protest, notice of protest, diligence and all other demands
and notices in connection with the payment and enforcement of this
Note.  BORROWERS HEREBY IRREVOCABLY WAIVE ANY RIGHT TO REQUEST A TRIAL
BY JURY IN ANY LITIGATION WITH RESPECT TO THIS NOTE AND REPRESENTS THAT COUNSEL
HAS BEEN CONSULTED SPECIFICALLY AS TO THIS WAIVER.   By accepting
this Note, Lender also waives its right to request a trial by
jury.  Additionally, the failure by Lender to enforce against the
Borrower any term or provision of this Agreement shall not be deemed to be a
waiver of Lender’s right to enforce against Borrower such term or provision in
the future.

    


    11.           Interest
Limits.   If any provision of this Note relating to the
rate of interest violates any applicable law in effect at the time payment is
due, the interest rate then in effect shall be automatically reduced to the
maximum rate then permitted by law. If for any reason Lender should receive as
interest an amount that would exceed the highest applicable lawful rate of
interest, the amount that would exceed that highest lawful rate shall be deemed
to be credited against principal and not to the payment of
interest.

    


    12.           Successors and
Assigns.   This Note shall be binding on Borrowers and
their respective heirs, successors and assigns, and shall inure to the benefit
of Lender and its successors and assigns. The term “Lender” in this Note shall
refer to Sovereign Bank or to any other future holder of this Note.

    


    13.           Collections and
Post-Judgment Interest.  If this Note is placed in the hands of
an attorney for collection, by suit or otherwise, or to enforce its collection,
or to protect the security for its payment, the Borrowers immediately and
without demand shall pay all costs of collection and litigation, together with
reasonable attorney’s fees.  In the event of a judgment on this note,
the Borrowers agree to pay to the Lender on demand all costs and expenses
incurred by the Lender in satisfying such judgment, including with limitation,
all of Lender’s reasonable expenses and fees including (a) all reasonable fees
and disbursements of Lender’s counsel and (b) all expenses of, or in
anticipation of, litigation including fees and expenses of witnesses, experts,
stenographers, title and lien searches, appraisals, taxes, insurance premiums
and post-judgment interest (“Post-Judgment Expenses”).  It is
expressly understood that such agreement by the Borrowers to pay the
Post-Judgment Expenses of the Lender is absolute and unconditional and (i) shall
survive (and not merge into) the entry of a judgment for amounts owing hereunder
and (ii) shall not be limited regardless of whether this Note or other
obligation of Borrowers or a Guarantor, as applicable, is secured or unsecured,
and regardless of whether lender exercises any available rights or remedies
against any collateral pledge as security for this note. Moreover, any such
agreement by Borrowers shall not be limited or extinguished by merger of the
Note, Mortgage or other loan documents into a judgment of foreclosure or other
judgment of a court or competent jurisdiction and shall remain in full force and
effect post judgment and shall continue tin full force and effect with regard to
any subsequent proceedings in a court of competent jurisdiction including, but
not limited to bankruptcy court proceedings and shall remain in full force and
effect until such fees and costs are paid in full.  Such fees or costs
shall be added to the Lender’s lien and shall survive the entry of a judgment of
foreclosure or other judgment entered by a court of competent
jurisdiction.

    


    14         No oral modifications. This note may
be amended, modified, waived or supplemented only by an instrument in writing
executed by the Borrower and the Lender. Any other purported amendment,
modification, waiver or supplement shall be deemed nullity.

    


    


    
      	
              ATTEST:

            	 
      	 
      	 
      	 
	 
      	 
      	 
      	
              Track
      Data Corporation

            	 
	 
      	 
      	 
      	 
      	 
	
              /s/
      Laurel Louison

            	 
      	
              By:

            	
               
      /s/ Martin Kaye

            	 
	
              Laurel
      Louison

            	 
      	 
      	
              Martin
      Kaye, Chief Executive Officer

            	 
	 
      	 
      	 
      	 
      	 
	
              ATTEST

            	 
      	 
      	 
      	 
	 
      	 
      	 
      	
              Silver
      Polish, LLC

            	 
	 
      	 
      	 
      	 
      	 
	
              /s/
      Laurel Louison

            	 
      	
              By:
      

            	
               
      /s/ Barry Hertz

            	 
	
              Laurel
      Louison

            	 
      	 
      	
              Barry
      Hertz, Individually

            	 
	 
      	 
      	 
      	 
      	 
	 
      	 
      	
               
      By:

            	
               
      /s/Isaac Genuth,

            	 
	 
      	 
      	 
      	
              Isaac
      Genuth, Individually