Unassociated Document


    Exhibit
4.2

     

     

     

    PROMISSORY
NOTE

    


    
    

     

    
      	$3,250,000.00 	 	 	
              Grand Forks, North
      Dakota

            
	 	 	 	
              October 1,
      2008

            


    

     

    
 

    1. FOR VALUE
RECEIVED, the undersigned, HEARTLAND, INC., a Maryland
corporation (“Borrower”) whose address is 1005 North 19th Street, Middlesboro,
Kentucky 40965, promises to pay to the order of CHOICE FINANCIAL GROUP, a
North Dakota state bank (“Lender”) whose address is 1697 South 42nd Street,
Grand Forks, North Dakota 58201, the principal sum of Three Million Two Hundred
Fifty Thousand and 00/100 Dollars ($3,250,000.00), in lawful money of the United
States of America, together with interest on the unpaid principal balance at the
rate of interest hereinafter specified in installments as follows:

    


    (i)           Commencing
on ___________, 2008, and continuing on the ____ day of each month thereafter,
Borrower shall pay a monthly installment of accrued interest and principal;
and

    


    (ii)           On
_____________, 2011 (“Maturity Date”), the entire remaining principal balance
together with any unpaid accrued interest shall be due and payable.

    


    2. The
interest due hereunder on the outstanding principal amount shall accrue at a
fixed rate equal to Seven and Three Quarters Percent
(7.75%).  Interest shall be calculated on the balance outstanding at
the end of each day and on the basis of a three hundred sixty (360) day year,
but shall accrue and be payable on the actual number of days in the
month.  Payment of the unpaid principal balance of this Note shall be
amortized over a 15 year period.

    


    3. All
payments shall be applied first to the costs of collection of this Note
(including attorneys’ fees), then to late fees due hereunder, if any, then to
interest and then to principal, except that if any advance made by Lender for
expenses which are the responsibility of Borrower is not promptly repaid to
Lender, any monies received, at the option of Lender, may first be applied to
repay such advances, plus interest thereon, at the rates provided
herein.

    


    4. All
payments shall be made at the office of Lender set forth above, or at such other
place as Lender hereof may from time to time designate in writing.

    


    5. This Note
is secured.

    


    6. It is
hereby expressly agreed that should (a) default be made in the payment of any
principal, interest or other sums when due hereunder and such default continues
for ten (10) days after written notice thereof to Borrower; or (b) a
non-monetary default shall occur under the terms of any other documents executed
in connection with this Note (collectively, the “Loan Documents”) each dated of
even date herewith and such non-monetary default shall continue for a period of
fifteen (15) days after notice of such non-monetary default is given to Borrower
by Lender or for such longer period of time as is required to cure the default
if the same cannot reasonably be cured within said 15 day period and Borrower is
using all reasonable efforts to cure the same but in no event more than 45 days,
then (i) the whole sum of principal, accrued interest and other sums outstanding
hereunder shall, at the option of Lender hereof, be fully accelerated and become
immediately due and payable, anything contained herein or in any instrument now
or hereafter securing this Note to the contrary notwithstanding, time being of
the essence hereof and (ii) the interest rate on this Note shall increase an
additional five percent (5%) per annum in excess of the interest rate in effect
at said time (“Default Rate”).  Said acceleration option and Default
Rate shall continue until all such defaults have been cured.  In the
event of such acceleration, the term “Maturity Date” shall be deemed to mean the
date on which this Note is due and payable as a result of such
acceleration.

     

    
      
         

      

      
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    7. If any
payment of principal, interest or other sum due to Lender in connection with
this Note or the other Loan Documents is not paid when due, Borrower agrees to
pay a late charge equal to five percent (5%) of the amount of each such amount
to defray the costs of Lender incident to collecting such late
payment.  This provision shall not be deemed to excuse a late payment
or be deemed a waiver of any other rights Lender may have, including the right
to declare the entire unpaid principal and interest immediately due and
payable.

    


    8. The
principal balance of this Note may be prepaid at any time upon not less than
three (3) business days prior written notice to Lender; provided, however, there
shall be paid therewith, as consideration for the privilege of making such
prepayment, a premium (the “Premium”) as follows: (i) from the date hereof until
the day prior to the first anniversary of the date hereof, a Premium equal to
four percent (4.0%) of the then unpaid principal balance of this Note, (ii) from
the date of the first anniversary of the date hereof until the day prior to the
second anniversary of the date hereof, a Premium equal to two percent (2.0%) of
the then unpaid principal balance of this Note, and (iii) from the date of the
second anniversary of the date hereof until the day prior to the third
anniversary of the date hereof, a Premium equal to one percent (1.0%) of the
then unpaid principal balance of this Note; provided that no Premium shall be
payable for prepayments made within ten (10) days prior to the Maturity
Date.  No partial prepayment shall be allowed.

    


    9. No delay
or omission on the part of Lender in exercising any right hereunder shall
operate as a waiver of such right or of any other remedy under this
Note.  A waiver on any one occasion shall not be construed as a waiver
of any such right or remedy on a future occasion.

    


    10. Borrower
hereby (i) waives presentment for payment, protest and demand, notice of
protest, demand, dishonor and nonpayment of this Note; (ii) consents that Lender
may extend the time of payment or otherwise modify the terms of payment of any
part or the whole of the debt evidenced by this Note, or modify any of the Loan
Documents, or partially release or satisfy any security furnished thereby, and
such extension, modification, release or satisfaction shall not alter nor
diminish the liability of any person liable or to become liable for the
indebtedness evidenced hereby or any portion of such indebtedness; (iii)
consents that no act, omission or thing, except full payment of this Note, which
but for this provision could act as a release or impairment of their liability,
shall in any way release, impair or affect the liability of Borrower; (iv)
consents to the exclusive personal jurisdiction of the state and federal courts
located in the State of North Dakota in connection with any controversy related
in any way to this Note or any security or guaranty for this Note, (v) waives
any argument that venue in such forums is not convenient, (vi) agrees that this
Note shall be governed, enforced and construed in accordance with North Dakota
law, and (vii) agrees that any litigation initiated by Borrower against Lender
or any other holder of this Note relating in any way to this Note or any
security or guaranty for this Note shall be venued in either the state or
federal courts located in North Dakota.

     

    
      
         

      

      
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    11. Borrower
agrees to pay all costs of collection, including pre-judgment and post judgment
attorneys’ fees, if the principal of this Note or any payment on the principal,
interest, or other sum due hereunder, or under any of the Loan Documents is not
paid when due, and to pay all costs including pre-judgment and post judgment
attorneys’ fees if it becomes necessary to protect the security hereof, whether
suit is brought or not.

    


    12. Notwithstanding
any provision herein or in any instrument now or hereafter securing this Note,
the total liability for payments in the nature of interest shall not exceed the
limits now imposed by the usury laws of North Dakota.

    


    13. The
rights or remedies of Lender as provided in this Note and the Loan Documents
shall be cumulative and concurrent, and may be pursued singly, successively, or
together against any other funds, property or security held by Lender for the
payment hereof or otherwise at the sole discretion of Lender.  The
failure to exercise any such right or remedy shall in no event be construed as a
waiver or release of such rights or remedies or the right to exercise them at
any later time.  This Note contains the entire agreement of the
parties with respect to the subject matter hereof and supersedes all prior
agreements, discussions and understandings.

    


    14. (a)           BORROWER
ACKNOWLEDGES THAT THE RIGHT TO TRIAL BY JURY IS A CONSTITUTIONAL ONE, BUT THAT
IT MAY BE WAIVED AND THAT THE TIME AND EXPENSE REQUIRED FOR TRIAL BY A JURY MAY
EXCEED THE TIME AND EXPENSE REQUIRED FOR TRIAL WITHOUT A
JURY.  BORROWER, AFTER CONSULTING (OR HAVING HAD THE OPPORTUNITY TO
CONSULT) WITH COUNSEL OF BORROWER’S CHOICE, KNOWINGLY AND VOLUNTARILY, AND FOR
THE MUTUAL BENEFIT OF LENDER AND BORROWER, WAIVES ANY RIGHT TO TRIAL BY JURY IN
THE EVENT OF LITIGATION REGARDING THE PERFORMANCE OR ENFORCEMENT OF, OR IN ANY
WAY RELATED TO, THIS NOTE, ANY RELATED AGREEMENTS OR OBLIGATIONS
THEREUNDER.  BORROWER HAS READ ALL OF THIS NOTE AND UNDERSTANDS ALL OF
THE PROVISIONS OF THIS NOTE.  BORROWER ALSO AGREES THAT COMPLIANCE BY
LENDER WITH THE EXPRESS PROVISIONS OF THIS NOTE SHALL CONSTITUTE GOOD FAITH AND
SHALL BE CONSIDERED REASONABLE FOR ALL PURPOSES.

    


    (b)           BORROWER
KNOWINGLY AND VOLUNTARILY IRREVOCABLY WAIVES ANY RIGHT IT MAY HAVE TO SEEK
PUNITIVE, CONSEQUENTIAL, SPECIAL AND INDIRECT DAMAGES FROM LENDER AND ANY OF ITS
AFFILIATES, SHAREHOLDERS, DIRECTORS, OFFICERS, EMPLOYEES,  ATTORNEYS,
AGENTS AND ANY OF THEIR SUCCESSORS WITH RESPECT TO ANY AND ALL ISSUES PRESENTED
IN ANY ACTION, PROCEEDING, CLAIM OR COUNTERCLAIM BROUGHT BY LENDER AGAINST
BORROWER OR BY BORROWER AGAINST LENDER ARISING IN ANY WAY IN CONNECTION WITH
THIS NOTE OR UNDER ANY AGREEMENT, INSTRUMENT, DOCUMENT, EXECUTED IN CONNECTION
WITH THIS NOTE OR ARISING FROM ANY RELATIONSHIP EXISTING IN CONNECTION THEREWITH
OR ANY STATEMENTS OR ACTIONS OF BORROWER OR LENDER.

    


    (c)           BORROWER
WAIVES EVERY PRESENT AND FUTURE DEFENSE (OTHER THAN THE DEFENSE OF PAYMENT IN
FULL), CAUSE OF ACTION, COUNTERCLAIM OR SETOFF WHICH BORROWER MAY NOW HAVE OR
HEREAFTER MAY CLAIM TO HAVE AGAINST ANY ACTION BY LENDER IN CONNECTION WITH THIS
NOTE.

    


    (d)           BORROWER
ACKNOWLEDGES THAT THE FOREGOING WAIVERS HAVE BEEN READ AND FULLY UNDERSTOOD BY
BORROWER AND ARE A MATERIAL INDUCEMENT FOR LENDER TO MAKE THE LOAN.

     

    
      
         

      

      
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    IN
WITNESS WHEREOF, this Promissory Note has been executed as of the day and year
first above written.

     

     

    
      
        	 	HEARTLAND,
      INC.	 
	 	 	 	 
	
                 

              	
                By:
      

              	/s/ Tom
      Miller	 
	 	Its 	 	 
	 	 	 	 


      



    
      	STATE
      OF     	 	)	 
	 	 	) ss	 
	COUNTY
      OF  	 	)	 


    

     

    
 

    The
foregoing instrument was acknowledged before me this ___ day of ____________,
2008, by __________________, the ________________ of Heartland, Inc., a Maryland
corporation, on behalf of the corporation.

    


    
      
        	
                 

              	
                 

              	 	 
	 	 	Notary
      Public	 
	 	 	 	 
	 	 	 	 


      

    

     

     

     

     

     

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