TRUST AGREEMENT
OF
FIB CAPITAL TRUST
THIS TRUST AGREEMENT is made as of October 1, 1997 (this "Trust
Agreement"), by and among First Interstate Bancsystem, Inc., as Depositor
(the "Depositor"), and Wilmington Trust Company, as trustee (the "Delaware
Trustee"), and Xxxxxxx X. Xxxxx, as trustee (the "Administrative Trustee" and
jointly with the Delaware Trustee, the "Trustees"). The Depositor and the
Trustees hereby agree as follows:
1. The trust created hereby shall be known as "FIB Capital Trust" (the
"Trust"), in which name the Trustees or the Depositor, to the extent provided
herein, may conduct the business of the Trust, make and execute contracts,
and xxx and be sued.
2. The Depositor hereby assigns, transfers, conveys and sets over to
the Trust the sum of $10. It is the intention of the parties hereto that the
Trust created hereby constitute a business trust under Chapter 38 of Title 12
of the Delaware Code, 12 DEL.C SECTION 3801, ET SEQ. (the "Business Trust
Act"), and that this document constitute the governing instrument of the
Trust. The Trustees are hereby authorized and directed to execute and file a
certificate of trust with the Delaware Secretary of State in such form as the
Trustees may approve.
3. An amended and restated Trust Agreement satisfactory to each party
to it and substantially in the form to be included as an exhibit to the 1933
Registration Statement (as herein defined), or in such other form as the
parties thereto may approve, will be entered into to provide for the
contemplated operation of the Trust created hereby and the issuance of the
Preferred or Capital Securities and Common Securities referred to therein.
Prior to the execution and delivery of such amended and restated Trust
Agreement, the Trustees shall not have any duty or obligation hereunder or
with respect of the trust estate, except as otherwise required by applicable
law or as may be necessary to obtain prior to such execution and delivery any
licenses, consents or approvals required by applicable law or otherwise.
Notwithstanding the foregoing, the Trustees may take all actions deemed
proper as are necessary to effect the transactions contemplated herein.
4. The Depositor, as the depositor of the Trust, is hereby authorized
(i) to file with the Securities and Exchange Commission (the "Commission")
and to execute, in the case of the 1933 Act Registration Statement and 1934
Act Registration Statement (as herein defined), on behalf of the Trust, (a) a
Registration Statement (the "1933 Act Registration Statement"), including
pre-effective or post-effective amendments to such Registration Statement,
relating to the registration under the Securities Act of 1933, as amended
(the "1933 Act"), of the Preferred or Capital Securities of the Trust, (b)
any preliminary prospectus or prospectus or supplement thereto relating to
the Capital or Preferred Securities required to be filed pursuant to the 1933
Act, and (c) a Registration Statement on Form 8-A or other appropriate form
(the "1934 Act Registration Statement") (including all pre-effective and
post-effective amendments thereto) relating to the registration of
the Preferred or Capital Securities of the Trust under the Securities
Exchange Act of 1934, as amended; (ii) to file with the New York Stock
Exchange or other exchange, or the National Association of Securities Dealers
("NASD"), and execute on behalf of the Trust a listing application and all
other applications, statements, certificates, agreements and other
instruments as shall be necessary or desirable to cause the Preferred or
Capital Securities to be listed on the New York Stock Exchange or such other
exchange, or the NASD's Nasdaq National Market; (iii) to file and execute on
behalf of the Trust such applications, reports, surety bonds, irrevocable
consents, appointments of attorney for service of process and other papers
and documents as shall be necessary or desirable to register the Preferred or
Capital Securities under the securities or "Blue Sky" laws of such
jurisdictions as the Depositor, on behalf of the Trust, may deem necessary or
desirable, and (iv) to execute, deliver and perform on behalf of the Trust an
underwriting agreement with the Depositor and the underwriter or underwriters
of the Preferred or Capital Securities of the Trust. In the event that any
filing referred to in clauses (i)-(iii) above is required by the rules and
regulations of the Commission, the New York Stock Exchange or other exchange,
NASD, or state securities or Blue Sky laws to be executed on behalf of the
Trust by the Trustees, the Trustees, in their capacities as trustees of the
Trust, are hereby authorized and directed to join in any such filing and to
execute on behalf of the Trust any and all of the foregoing, it being
understood that the Trustees, in their capacities as trustees of the Trust,
shall not be required to join in any such filing or execute on behalf of the
Trust any such document unless required by the rules and regulations of the
Commission, the New York Stock Exchange or other exchange, NASD, or state
securities or Blue Sky laws. In connection with all of the foregoing, the
Trustees, solely in their capacities as trustees of the Trust, and the
Depositor hereby constitute and appoint Xxxxxxx X. Xxxxx as his, her or its,
as the case may be, true and lawful attorney-in-fact and agent with full
power of substitution and resubstitution for the Depositor or in the
Depositor's name, place and stead, in any and all capacities, to sign any and
all amendments (including all pre-effective and post-effective amendments) to
the 1933 Act Registration Statement and the 1934 Act Registration Statement
and to file the same, with all exhibits thereto, and any other documents in
connection therewith, with the Commission, granting unto said
attorney-in-fact and agent full power and authority to do and perform each
and every act and thing requisite and necessary to be done in connection
therewith, as fully to all intents and purposes as the Depositor might or
could do in person, hereby ratifying and confirming all that said
attorney-in-fact and agent or his respective substitute or substitutes, shall
do or cause to be done by virtue hereof.
5. This Trust Agreement may be executed in one or more counterparts.
6. The number of trustees of the Trust initially shall be two and
thereafter the number of trustees of the Trust shall be such number as shall
be fixed from time to time by a written instrument signed by the Depositor
which may increase or decrease the number of trustees of the Trust; provided,
however, that to the extent required by the Business Trust Act, one trustee
of the Trust shall either be a natural person who is a resident of the State
of Delaware or, if not a natural person, an entity which has its principal
place of business in the State of Delaware. Subject to the foregoing, the
Depositor is entitled to appoint or remove without cause any trustee of the
Trust at any time. Any trustee of the Trust may resign upon thirty days'
prior notice to the Depositor.
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7. This Trust Agreement shall be governed by, and construed in
accordance with, the laws of the State of Delaware (with regard to conflict
of laws principles).
IN WITNESS WHEREOF, the parties hereto have caused this Trust Agreement
to be duly executed as of the day and year first above written.
FIRST INTERSTATE BANCSYSTEM, INC.,
as Depositor
By /s/ Xxxxxxx X. Xxxxx
---------------------------------
Name: Xxxxxxx X. Xxxxx
Title: Senior Vice President and
Chief Financial Officer
WILMINGTON TRUST COMPANY,
as Delaware Trustee
By /s/ Xxxxxxxx X. Xxxxx
---------------------------------
Name: Xxxxxxxx X. Xxxxx
Title: Financial Services Officer
XXXXXXX X. XXXXX,
as Administrative Trustee
/s/ Xxxxxxx X. Xxxxx
---------------------------------
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