exv10w22



 





Exhibit 10.22




CREDIT AGREEMENT




among




FIRST INTERSTATE BANCSYSTEM, INC.,




as Borrower;




VARIOUS LENDERS;




and




WELLS FARGO BANK, NATIONAL ASSOCIATION,




as Administrative Agent




Closing Date: January 10, 2008




 






$50,000,000 Term Credit Facility




$25,000,000 Revolving Credit Facility




 






 









 





TABLE OF CONTENTS




	 	 	 	 	 
	ARTICLE I DEFINITIONS
	 	 	1	 
	Section 1.1 Definitions
	 	 	1	 
	Section 1.2 Times
	 	 	16	 
	 
	 	 	 	 
	ARTICLE II CREDIT FACILITIES
	 	 	16	 
	Section 2.1 Commitments as to Facilities
	 	 	16	 
	Section 2.2 Procedures for Revolving Borrowings
	 	 	17	 
	Section 2.3 Converting Floating Rate Loans to LIBOR Loans; Procedures
	 	 	17	 
	Section 2.4 Procedures at End of an Interest Period
	 	 	18	 
	Section 2.5 Setting and Notice of Rates
	 	 	18	 
	Section 2.6 Interest on Loans
	 	 	18	 
	Section 2.7 Obligation to Repay Advances; Representations
	 	 	19	 
	Section 2.8 Notes; Principal Amortization
	 	 	20	 
	Section 2.9 Computation of Interest and Fees
	 	 	20	 
	Section 2.10 Fees
	 	 	20	 
	Section 2.11 Use of Proceeds
	 	 	21	 
	Section 2.12 Voluntary Reduction or Termination of the Commitments
	 	 	21	 
	Section 2.13 Prepayments
	 	 	21	 
	Section 2.14 Payments
	 	 	22	 
	Section 2.15 Increased Costs
	 	 	23	 
	Section 2.16 Taxes
	 	 	24	 
	Section 2.17 Illegality
	 	 	26	 
	Section 2.18 Loan Losses
	 	 	26	 
	Section 2.19 Right of Lenders to Fund through Other Offices
	 	 	26	 
	Section 2.20 Discretion of Lenders as to Manner of Loan
	 	 	27	 
	Section 2.21 Conclusiveness of Statements; Survival of Provisions
	 	 	27	 
	 
	 	 	 	 
	ARTICLE III CONDITIONS TO CREDIT EXTENSIONS
	 	 	27	 
	Section 3.1 Conditions Precedent to the Initial Credit Extension
	 	 	27	 
	Section 3.2 Conditions Precedent to All Credit Extensions
	 	 	29	 
	 
	 	 	 	 
	ARTICLE IV REPRESENTATIONS AND WARRANTIES
	 	 	29	 
	Section 4.1 Legal Existence and Power; Name; Chief Executive Office
	 	 	29	 
	Section 4.2 Authorization for Borrowings; No Conflict as to Law or Agreements
	 	 	29	 
	Section 4.3 Legal Agreements
	 	 	30	 
	Section 4.4 Capitalization
	 	 	30	 
	Section 4.5 Financial Condition
	 	 	30	 
	Section 4.6 Adverse Change
	 	 	30	 
	Section 4.7 Projections
	 	 	31	 
	Section 4.8 Litigation
	 	 	31	 
	Section 4.9 Regulation U
	 	 	31	 
	Section 4.10 Taxes
	 	 	31	 
	Section 4.11 Titles and Liens
	 	 	32	 






 









 






	 	 	 	 	 
	Section 4.12 Plans
	 	 	32	 
	Section 4.13 Environmental Compliance
	 	 	32	 
	Section 4.14 Submissions to Lenders
	 	 	33	 
	Section 4.15 Financial Solvency
	 	 	33	 
	Section 4.16 Conflicts of Interest
	 	 	34	 
	Section 4.17 Other Relationships
	 	 	34	 
	Section 4.18 Licenses; Compliance with Laws, Other Agreements, etc.
	 	 	34	 
	Section 4.19 Investment Company Act
	 	 	35	 
	 
	 	 	 	 
	ARTICLE V AFFIRMATIVE COVENANTS
	 	 	35	 
	Section 5.1 Reporting Requirements
	 	 	35	 
	Section 5.2 Books and Records; Inspection and Examination
	 	 	38	 
	Section 5.3 Compliance with Laws
	 	 	38	 
	Section 5.4 Payment of Taxes and Other Claims
	 	 	38	 
	Section 5.5 Maintenance of Properties
	 	 	39	 
	Section 5.6 Insurance
	 	 	39	 
	Section 5.7 Preservation of Legal Existence
	 	 	39	 
	Section 5.8 Double Leverage Ratio
	 	 	39	 
	Section 5.9 Total Risk-Based Capital Ratio
	 	 	39	 
	Section 5.10 Tier 1 Risk-Based Capital Ratio
	 	 	40	 
	Section 5.11 Tier 1 Leverage Ratio
	 	 	40	 
	Section 5.12 Allowance for Loan and Lease Losses
	 	 	40	 
	Section 5.13 Minimum Return on Assets
	 	 	40	 
	Section 5.14 Maximum Non-Performing Assets
	 	 	40	 
	Section 5.15 Material Subsidiaries
	 	 	40	 
	 
	 	 	 	 
	ARTICLE VI NEGATIVE COVENANTS
	 	 	40	 
	Section 6.1 Liens
	 	 	40	 
	Section 6.2 Debt
	 	 	42	 
	Section 6.3 Guaranties
	 	 	42	 
	Section 6.4 Restricted Payments
	 	 	43	 
	Section 6.5 Fundamental Changes
	 	 	43	 
	Section 6.6 Transactions With Affiliates
	 	 	44	 
	Section 6.7 Restrictions on Nature of Business
	 	 	45	 
	Section 6.8 Accounting
	 	 	45	 
	Section 6.9 Hazardous Substances
	 	 	45	 
	Section 6.10 Subordinated Debt
	 	 	45	 
	Section 6.11 Modification of Certain Agreements
	 	 	45	 
	Section 6.12 Tax Consolidation
	 	 	46	 
	Section 6.13 Negative Pledges, Restrictive Agreements, etc.
	 	 	46	 
	 
	 	 	 	 
	ARTICLE VII EVENTS OF DEFAULT; RIGHTS AND REMEDIES
	 	 	46	 
	Section 7.1 Events of Default
	 	 	46	 
	Section 7.2 Rights and Remedies
	 	 	49	 
	Section 7.3 Right of Setoff
	 	 	50	 
	 
	 	 	 	 
	ARTICLE VIII AGREEMENT AMONG LENDERS AND ADMINISTRATIVE AGENT
	 	 	50	 
	Section 8.1 Authorization; Powers; Administrative Agent for Collateral Purposes
	 	 	50	 






-ii-









 






	 	 	 	 	 
	Section 8.2 Application of Proceeds
	 	 	51	 
	Section 8.3 Exculpation
	 	 	51	 
	Section 8.4 Use of the Term “Administrative Agent”
	 	 	52	 
	Section 8.5 Reimbursement for Costs and Expenses
	 	 	52	 
	Section 8.6 Administrative Agent and Affiliates
	 	 	52	 
	Section 8.7 Credit Investigation
	 	 	52	 
	Section 8.8 Defaults
	 	 	53	 
	Section 8.9 Obligations Several
	 	 	53	 
	Section 8.10 Resignation and Assignment of Administrative Agent
	 	 	53	 
	Section 8.11 Borrower not a Beneficiary or Party
	 	 	54	 
	 
	 	 	 	 
	ARTICLE IX MISCELLANEOUS
	 	 	54	 
	Section 9.1 No Waiver; Cumulative Remedies
	 	 	54	 
	Section 9.2 Amendments, Requested Waivers, Etc.
	 	 	54	 
	Section 9.3 Successors and Assigns; Register
	 	 	55	 
	Section 9.4 Sharing of Payments by Lenders
	 	 	58	 
	Section 9.5 Notices; Distribution of Information Via Electronic Means
	 	 	59	 
	Section 9.6 Expenses; Indemnity; Damage Waiver
	 	 	60	 
	Section 9.7 Replacement of Non-Consenting Lender
	 	 	61	 
	Section 9.8 Governing Law; Jurisdiction; Waiver of Jury Trial
	 	 	62	 
	Section 9.9 Integration; Inconsistency
	 	 	63	 
	Section 9.10 Agreement Effectiveness
	 	 	63	 
	Section 9.11 Advice from Independent Counsel
	 	 	63	 
	Section 9.12 Judicial Interpretation
	 	 	63	 
	Section 9.13 Binding Effect; No Assignment by Borrower
	 	 	63	 
	Section 9.14 Severability of Provisions
	 	 	63	 
	Section 9.15 Headings
	 	 	63	 
	Section 9.16 Counterparts
	 	 	63	 
	Section 9.17 Customer Identification – USA Patriot Act Notice
	 	 	64	 






-iii-









 





CREDIT AGREEMENT




          This Agreement is entered into as of January 10, 2008, by and among First Interstate
BancSystem, Inc., a Montana corporation (the “Borrower”), the several banks and other financial
institutions from time to time party hereto as lenders (the “Lenders”), and Wells Fargo Bank,
National Association, a national banking association (“Wells Fargo”), in its capacity as
administrative agent for the Lenders (in such capacity, together with any successor thereto in such
capacity, the “Administrative Agent”).




          The Borrower has requested that the Lenders extend certain revolving and term credit
facilities to the Borrower.




          The Lenders are willing to extend the requested credit facilities to the Borrower on the terms
and subject to the conditions set forth in this Agreement.




          ACCORDINGLY, in consideration of the premises and for other good and valuable consideration,
the receipt and sufficiency of which are hereby acknowledged, the parties hereto hereby agree as
follows:




ARTICLE I

DEFINITIONS




Section 1.1 Definitions.



For all purposes of this Agreement, except as otherwise expressly provided or unless the context
otherwise requires:





     (a) The terms defined in the preamble have the meanings therein assigned to
them.




     (b) The terms defined in this Article have the meanings assigned to them in
this Article, and include the plural as well as the singular.




     (c) All accounting terms not otherwise defined herein have the meanings
assigned to them in accordance with GAAP or, to the extent that they differ from
GAAP, applicable banking regulations.




     “Adjusted Base Rate” means, at any time, the higher of (a) the Federal Funds Rate
plus 50 basis points (0.50% per annum) and (b) the Base Rate.




     “Administrative Agent” has the meaning specified in the preamble.




     “Administrative Questionnaire” means an Administrative Questionnaire in a form supplied
by the Administrative Agent.




     “Advance” means a loan of funds by a Lender to the Borrower under a Facility.



 









 






     “Affiliate” means, with respect to a Person, (a) any officer of such Person or member
of the Governing Board of such Person, (b) any Person who, individually or with his
immediate family owns or holds more than 10% of the voting interest in the subject Person,
and (c) any Person controlled by, controlling or under common control with such Person,
including (but not limited to) any Subsidiary of such Person. For purposes of this
definition, “control,” when used with respect to a Person, means the power to direct the
management and policies of such Person, directly or indirectly, whether through the
ownership of voting securities, by contract or otherwise; provided, however, that for
purposes of this Agreement no Administrative Agent nor any Lender shall be deemed to be an
Affiliate of the Borrower or any Subsidiary. Unless otherwise specified, “Affiliate” means
an Affiliate of the Borrower. For purposes of this definition, “immediate family” means,
with respect to any natural Person, that Person’s spouse and children.




     “Aggregate Revolving Commitment Amount” means $25,000,000, constituting the sum of the
Revolving Commitments of all Lenders, subject to adjustment in accordance with Section 2.12.




     “Agreement” means this Credit Agreement and all exhibits, schedules, amendments and
supplements hereto and modifications hereof.




     “Approved Fund” means any Person (other than a natural Person) that is (or will be)
engaged in making, purchasing, holding or otherwise investing in commercial loans and
similar extensions of credit in the ordinary course of its business and that is administered
or managed by (i) a Lender, (ii) an Affiliate of a Lender or (iii) an entity or an Affiliate
of an entity that administers or manages a Lender.




     “Assignment and Assumption” means an assignment and assumption entered into by a Lender
and an assignee of that Lender’s interest, in substantially the form of Exhibit I or any
other form approved by the Administrative Agent.




     “Bank Subsidiary” means any direct or indirect Subsidiary of the Borrower that is a
bank or thrift institution.




     “Banking Services Obligations” means each and every debt, liability and other
obligation (whether direct or indirect, absolute or contingent, due or to become due, now
existing or hereafter arising) of every type and description owing by the Borrower or any
Subsidiary to any Person that was a Lender or an Affiliate of a Lender when such obligation,
liability, fee or expense arose, with respect to (a) credit cards, (b) credit card
processing services, (c) debit cards, (d) purchase cards, (e) treasury and cash management
or related services (including but not limited to controlled disbursement, automated
clearinghouse transactions, return items, overdrafts and interstate depository network
services), and (f) any agreement that provides for an interest rate, credit, commodity or
equity swap, cap, floor, collar, forward foreign exchange transaction, currency swap, cross
currency rate swap, currency option, or any combination of, or option with respect to, these
or similar transactions.




     “Base Rate” means, for any day, the rate of interest in effect for such day as publicly
announced from time to time by the Administrative Agent as its “prime” or



-2-









 






“base” rate (whether or not such rate is actually charged by the Administrative Agent),
or if the Administrative Agent ceases to announce such a rate so designated, any similar
successor rate designated by the Administrative Agent in its reasonable discretion. Any
change in the Base Rate announced by the Administrative Agent shall take effect at the
opening of business on the day specified in the public announcement of such change. Such
rate is a reference rate and does not necessarily represent the lowest or best rate actually
charged to any customer. Wells Fargo or any other Lender may make commercial loans or other
loans at rates of interest at, above or below the Base Rate.




     “BHCA” means the Bank Holding Company Act, as amended.




     “Borrower” has the meaning specified in the preamble.




     “Borrowing” means a borrowing by the Borrower under a Facility, consisting of the
aggregate of all Advances made by the Lenders to the Borrower pursuant to a request under
Section 2.2.




     “Business Day” means any day other than a Saturday or Sunday on which national banks
are required to be open for business in Minneapolis, Minnesota and, in addition, if such day
relates to a LIBOR Loan or fixing of a LIBO Rate, a day on which dealings in U.S. dollar
deposits are carried on in the London interbank eurodollar market.




     “Capital Stock” means, with respect to any Person, any and all shares, interests,
participations or other equivalents (however designated) of such Person’s capital stock or
equity, whether now outstanding or issued after the date hereof, including all common stock,
preferred stock, partnership interests and limited liability company member interests.




     “Change in Law” means the occurrence, after the date of this Agreement, of any of the
following: (a) the adoption or taking effect of any law, rule, regulation or treaty, (b) any
change in any law, rule, regulation or treaty or in the administration, interpretation or
application thereof by any Governmental Authority or (c) the making or issuance of any
request, guideline or directive (whether or not having the force of law) by any Governmental
Authority.




     “Change of Control” means any event, circumstance or occurrence that results in (a) the
Borrower’s failure to own, directly or indirectly, 100% of the issued and outstanding voting
Capital Stock of FIB or, following consummation of the First Western Acquisition, FWBS and
FWBW (provided, however, that the merger of FWBS or FWBW into each other or into FIB shall
not be deemed a Change of Control so long as such merger does not breach Section 6.5),
(b) the failure of the Scott Family to own, directly or indirectly, more than 50% of the
issued and outstanding voting Capital Stock of the Borrower, (c) the acquisition by any
“person” or “group” (as those terms are used in Sections 13(d) and 14(d) of the Exchange
Act), other than the Scott Family or members of the Scott Family, of beneficial ownership
(as defined in Rules 13d-3 and 13d-5 of the SEC, except that a Person shall be deemed to
have beneficial ownership of all securities that such Person has the right to acquire,
whether such right is exercisable immediately or only after the passage of time), directly
or indirectly, of 30% or more of



-3-









 






the then-outstanding voting capital stock of the Borrower; or (d) a change in the
composition of the Governing Board of the Borrower such that continuing directors cease to
constitute more than 50% of such Governing Board. As used in this definition, “continuing
directors” means, as of any date, (i) those Directors of the Borrower who assumed office
prior to the date hereof, and (ii) those Directors of the Borrower who assumed office after
the date hereof and whose appointment or nomination for election by the Borrower’s
shareholders was approved by a vote of at least 50% of the Directors of the Borrower in
office immediately prior to such appointment or nomination.




     “Code” means the Internal Revenue Code of 1986, as amended.




     “Collateral” means all real and personal property in which the Administrative Agent, on
behalf of the Lenders, has been granted a Lien pursuant to the Security Agreement or any
other present or future agreement, together with all substitutions and replacements for and
products and proceeds of any of the foregoing.




     “Commitment” means, with respect to any Lender, such Lender’s Revolving Commitment or
Term Commitment, as the context requires.




     “Commitment Fee” has the meaning specified in Section 2.10(a).




     “Communications” has the meaning specified in Section 9.5(a).




     “Covenant Compliance Date” means the last day of each fiscal quarter of the Borrower.




     “Credit Exposure” means, with respect to any Facility and any Lender at any time, such
Lender’s Revolving Credit Exposure or Term Credit Exposure, or the aggregate of both, as the
case may be.




     “Credit Extension” means the making of any Advance or the conversion to or continuation
of any LIBOR Loan.




     “Default” means an event that, with giving of notice or passage of time or both, would
constitute an Event of Default.




     “Default Rate” has the meaning specified in Section 2.6(d).




     “Defaulting Lender” means at any time, any Lender that, at such time (a) has failed to
make an Advance required pursuant to the terms of this Agreement, (b) has failed to pay to
any Lender Party an amount owed by such Lender pursuant to the terms hereof, (c) has been
deemed insolvent or has become subject to a bankruptcy or insolvency proceeding or to a
receiver, trustee or similar official or (d) has notified the Administrative Agent or the
Borrower that such Lender does not intend to comply with its obligation to make further
Advances or other payments as required under this Agreement.




     “Director” means, with respect to any Person, (a) if such Person is a corporation, a
member of the board of directors of such Person, (b) if such Person is a limited liability



-4-









 






company, a governor, manager or managing member of such Person and (c) if such Person
is a partnership, a general partner of such Person.




     “Double Leverage Ratio” means the ratio of (i) the sum of the aggregate investment of
the Borrower in capital stock of its Subsidiaries and the aggregate principal amount of all
outstanding loans and advances made by the Borrower to its Subsidiaries, to (ii) Net Worth.




     “Eligible Lender” means (a) a financial institution organized under the laws of the
United States, or any state thereof, and having a combined capital and surplus of at least
$100,000,000; (b) a commercial bank organized under the laws of any other country which is a
member of the Organization for Economic Cooperation and Development, or a political
subdivision of any such country, and having a combined capital and surplus of at least
$100,000,000, provided that such bank is acting through a branch or agency located in the
United States; (c) a Person controlled by, controlling, or under common control with any
entity identified in clause (a) or (b) above; or (d) an Approved Fund.




     “Environmental Laws” has the meaning specified in Section 4.13.




     “Equity Capital” means, as to Borrower or any Bank Subsidiary, the aggregate of its
perpetual preferred stock (and related surplus), common stock, surplus (excluding all
surplus related to perpetual preferred stock), undivided profits and capital reserves, plus
its net unrealized holding gains (or minus its net unrealized holding losses) on
available-for-sale securities.




     “ERISA” means the Employee Retirement Income Security Act of 1974, as amended.




     “ERISA Affiliate” means any trade or business (whether or not incorporated) that is,
along with the Borrower or any Subsidiary, a member of a controlled group of corporations or
a controlled group of trades or businesses, as described in sections 414(b) and 414(c),
respectively, of the Code.




     “Event of Default” has the meaning specified in Section 7.1.




     “Excluded Taxes” means, with respect to any Lender Party or any other recipient of any
payment to be made by or on account of any obligation of the Borrower hereunder, (a) taxes
imposed on or measured by its overall net income (however denominated), and franchise taxes
imposed on it (in lieu of net income taxes), by the jurisdiction (or any political
subdivision thereof) under the laws of which such recipient is organized, in which its
principal office is located or in which the Borrower or a Subsidiary conducts business, or,
in the case of any Lender, in which such Lender’s applicable lending office is located, (b)
any branch profits taxes imposed by the United States of America or any similar tax imposed
by any other jurisdiction in which the Borrower is located and (c) in the case of a Foreign
Lender, any withholding tax that is imposed on amounts payable to such Foreign Lender at the
time such Foreign Lender becomes a party hereto (or designates a new lending office) or is
attributable to such Foreign Lender’s failure or inability (other than as a result of a
Change in Law) to comply with Section 2.16(e), except to the extent that such Foreign Lender
(or its



-5-









 






assignor, if any) was entitled, at the time of designation of a new lending office (or
assignment), to receive additional amounts from the Borrower with respect to such
withholding tax pursuant to Section 2.16(a).




     “Existing Wells Fargo Credit Agreement” means the Credit Agreement dated June 30, 2005
between the Borrower and Wells Fargo, together with all amendments, modifications and
restatements thereof.




     “Facility” means the Revolving Facility or Term Facility.




     “FDIA” means the Federal Deposit Insurance Act, as amended.




     “Federal Funds Rate” means, for any day, the rate set forth in the weekly statistical
release designated as H.15(519), or any successor publication, published by the Federal
Reserve Bank of New York (including any such successor publication, “H.15(519)”) on the
preceding Business Day opposite the caption “Federal Funds (Effective)”; or, if for any
relevant day such rate is not so published on any such preceding Business Day, the rate for
such day will be the arithmetic mean as determined by the Administrative Agent of the rates
for the last transaction in overnight federal funds arranged prior to 9:00 a.m. (New York
City time) on that day by each of the three leading brokers of federal funds transactions in
New York City, as selected by the Administrative Agent in its discretion.




     “Fee Letters” means one or more separate agreements between the Borrower and the
Administrative Agent, setting forth certain fees to be paid by the Borrower to the
Administrative Agent for the Administrative Agent’s own account or for the account of the
Lenders, as more fully set forth therein, including but not limited to the letter agreement
dated November 28, 2007 between the Borrower and the Administrative Agent regarding such
fees.




     “FIB” means First Interstate Bank, a Montana state bank.




     “Financial Covenants” means the covenants contained in Sections 5.8, 5.9, 5.10, 5.11,
5.12, 5.13 and 5.14.




     “First Western Acquisition” means the acquisition by the Borrower of all of the Capital
Stock of FWBS, FWBW and FWD pursuant to a Stock Purchase Agreement dated September 18, 2007
between the Borrower and First Western Bancorp.




     “First Western Bancorp” means First Western Bancorp., Inc., a South Dakota corporation.




     “Floating Rate” means an annual rate at all times equal to the sum of (a) the Adjusted
Base Rate and (b) the applicable Margin, which Floating Rate shall change when and as the
Adjusted Base Rate or the applicable Margin changes.




     “Floating Rate Advance” means any Advance which bears interest at a rate determined by
reference to the Floating Rate.



-6-









 






     “Floating Rate Loan” means any Loan which bears interest at a rate determined by
reference to the Floating Rate, including Floating Rate Advances.




     “Foreign Lender” means any Lender that is organized under the laws of a jurisdiction
other than the United States of America, any state thereof or the District of Columbia.




     “Funded Debt” means (without duplication) (a) all indebtedness of the Borrower for
borrowed money; (b) indebtedness of the Borrower evidenced by bonds, notes or similar
written debt instruments; (c) all obligations of the Borrower to pay the deferred purchase
price of property or services, except trade accounts payable arising in the ordinary course
of business, (d) all obligations of the Borrower as lessee under capital leases which have
been or should be recorded as liabilities on a balance sheet of the Borrower in accordance
with GAAP, (e) all indebtedness and other obligations of others guaranteed by the Borrower,
and (f) the face amount of all letters of credit and bankers’ acceptances issued for the
account of the Borrower, and, without duplication, all drafts drawn thereunder; provided,
however, that in no event shall any calculation of Funded Debt include Subordinated Debt or
debt of the type referred to in Section 6.2(e).




     “Funded Debt Ratio” means, as of any date, the ratio of (i) Funded Debt, to (ii) Net
Income of the Borrower (on an unconsolidated basis) during the most recent period of four
fiscal quarters.




     “FWBS” means The First Western Bank Sturgis, a South Dakota state bank.




     “FWBW” means the First Western Bank, Wall, a South Dakota state bank.




     “FWD” means First Western Data, Inc., a South Dakota corporation.




     “GAAP” means generally accepted accounting principles as in effect on the date hereof
and applied on a basis consistent with the accounting practices applied in the financial
statements of the Borrower referred to in Section 4.5, except for any change in accounting
practices to the extent that, due to a promulgation of the Financial Accounting Standards
Board changing or implementing any new accounting standard, the Borrower either (a) is
required to implement such change, or (b) for future periods will be required to and for the
current period may in accordance with generally accepted accounting principles implement
such change, for its financial statements to be in conformity with generally accepted
accounting principles (any such change is hereinafter referred to as a “Required GAAP
Change”), provided that (i) the Borrower shall fully disclose in such financial statements
any such Required GAAP Change and the effects of the Required GAAP Change on the Borrower’s
income, retained earnings or other accounts, as applicable, and (ii) the Financial Covenants
shall be adjusted as necessary to reflect the effects of such Required GAAP Change, provided
that if the Required Lenders and the Borrower cannot agree on such adjustments, the
Financial Covenants will be calculated without giving effect to the Required GAAP Change.




     “Governing Board” means, with respect to any corporation, limited liability company or
similar Person, the board of directors, board of governors or other body or entity that sets
overall institutional direction for such Person.



-7-









 






     “Governmental Authority” means the government of the United States of America or any
other nation, or of any political subdivision thereof, whether state or local, and any
agency, authority, instrumentality, regulatory body, court, central bank or other entity
exercising executive, legislative, judicial, taxing, regulatory or administrative powers or
functions of or pertaining to government (including any supra-national bodies such as the
European Union or the European Central Bank).




     “Hazardous Substance” means any asbestos, urea-formaldehyde, polychlorinated biphenyls,
nuclear fuel or material, chemical waste, radioactive material, explosives, known
carcinogens, petroleum products and by-products and other dangerous, toxic or hazardous
pollutants, contaminants, chemicals, materials or substances listed or identified in, or
regulated by, any Environmental Laws.




     “Indemnified Taxes” means Taxes other than Excluded Taxes.




     “Indemnitees” has the meaning specified in Section 9.6(b).




     “Intellectual Property Rights” means all actual or prospective rights arising in
connection with any intellectual property or other proprietary rights, including all rights
arising in connection with copyrights, patents, service marks, trade dress, trade secrets,
trademarks, trade names or mask works.




     “Interest Payment Date” means (i) with respect to each Floating Rate Loan, the last day
of each calendar quarter, (ii) with respect to each LIBOR Loan, the last day of the Interest
Period applicable thereto (and, if such Interest Period is longer than 3 months, each day
prior to the last day of such Interest Period that occurs at intervals of three months’
duration after the first day of such Interest Period), and (iii) with respect to each Loan,
the Maturity Date.




     “Interest Period” means, relative to any LIBOR Loan, the period beginning on (and
including) the date on which such LIBOR Loan is made, or continued as, or converted into, a
LIBOR Loan pursuant to Section 2.2, 2.3 or 2.4 and shall end on (but exclude) the day which
numerically corresponds to such date 1, 2, 3 or 6 months thereafter (or, if such month has
no numerically corresponding day, on the last Business Day of such month), as the Borrower
may select in its relevant notice pursuant to Section 2.2, 2.3 or 2.4; provided, however,
that:




     (a) No more than 6 different Interest Periods may be outstanding at any one
time with respect to the Facilities.




     (b) If an Interest Period would otherwise end on a day which is not a Business
Day, such Interest Period shall end on the next following Business Day (unless such
next following Business Day is the first Business Day of a month, in which case such
Interest Period shall end on the next preceding Business Day).




     (c) No Interest Period applicable to a Loan for a Facility may end later than
the applicable Maturity Date for such Facility.



-8-









 






     (d) In no event shall the Borrower select Interest Periods with respect to
Loans under the Term Facility which, in the aggregate, would require payment of
funding losses under Section 2.18 in order to make payments of regularly scheduled
installments of principal thereunder.




     “Investment” means any stock or other securities or evidence of indebtedness of, loans
or advances to, or other interest in, any Person.




     “Lender” has the meaning specified in the preamble.




     “Lender Group” means a Lender, together with each other Lender that is (i) an Affiliate
of such Lender or (ii) an Approved Fund in relation to (A) such Lender or (B) any Affiliate
of such Lender.




     “Lender Parties” means, collectively, the Administrative Agent, the Lenders and each
Affiliate of any Lender to whom any Banking Services Obligations are owed.




     “Level I,” “Level II” and “Level III” each mean a Status, as determined in accordance
with the definition of “Margin.”




     “LIBO Base Rate” means, with respect to an Interest Period, (i) the rate per annum
determined by the Administrative Agent as of approximately 11:00 a.m. London time on the
date 2 Business Days before the commencement of such Interest Period by reference to the
British Bankers’ Association Interest Settlement Rates for deposits in dollars offered on
the London interbank dollar market for a period corresponding to the term of such Interest
Period and in an amount comparable to the aggregate amount of the relevant Loan (as
displayed in the Bloomberg Financial Market System or any successor thereto or any other
service selected by the Administrative Agent that has been nominated by the British Bankers’
Association as an authorized information vendor for the purpose of displaying such rates),
or (ii) if such rate cannot be determined, the rate per annum equal to the rate determined
by the Administrative Agent in accordance with Section 2.5 to be a rate at which U.S. dollar
deposits are offered to major banks in the London interbank eurodollar market for funds to
be made available on the first day of such Interest Period and maturing at the end of such
Interest Period, in each case rounded upwards, if necessary, to the nearest 1/16 of 1%.




     “LIBO Rate” means, with respect to an Interest Period, the rate obtained by adding (a)
the applicable Margin to (b) the rate obtained by dividing (i) the applicable LIBO Base Rate
by (ii) a percentage equal to 1.00 minus the applicable percentage (expressed as a
decimal) prescribed by the Board of Governors of the Federal Reserve System (or any
successor thereto) for determining the maximum reserve requirements applicable to eurodollar
fundings (currently referred to as “Eurocurrency Liabilities” in Regulation D) or any other
maximum reserve requirements applicable to a member bank of the Federal Reserve System with
respect to such eurodollar fundings.




     “LIBOR Advance” means any Advance which bears interest at a rate determined by
reference to a LIBO Rate.



-9-









 






     “LIBOR Loan” means any Loan which bears interest at a rate determined by reference to a
LIBO Rate, including LIBOR Advances.




     “License” has the meaning specified in Section 4.18.




     “Lien” means any mortgage, deed of trust, lien, pledge, security interest or other
charge or encumbrance, of any kind whatsoever, including but not limited to the interest of
the lessor or titleholder under any capital lease, title retention contract or similar
agreement.




     “Loan” means a designated portion of outstanding principal indebtedness under one or
more Facilities which bears interest at a rate determined by reference to a particular LIBO
Rate or Floating Rate, as the case may be.




     “Loan Documents” means this Agreement, the Notes and the Security Agreement.




     “Margin” means, with respect to computation of the applicable interest rate on Loans or
the Commitment Fee, the applicable increment set forth and described in the Pricing Grid,
established as of the last day of each fiscal quarter according to the then-applicable
Status. Any adjustment in the applicable Margin shall become effective 5 Business Days
following receipt by the Administrative Agent of financial statements relating to the last
day of such fiscal quarter pursuant to Section 5.1. If financial statements necessary to
establish the appropriate Margin hereunder are not received by the Administrative Agent on
or prior to the date required pursuant to Section 5.1, the applicable Margin shall be
determined as if Level III Status were in effect and such Level III Status shall remain in
effect until such time as the required financial statements are so received. For the period
commencing on the date hereof and continuing to the date the Administrative Agent receives
the financial statements and related officer’s certificates specified in Section 5.1(b)
demonstrating the financial performance of the Borrower and its Subsidiaries for the fiscal
quarter ending December 31, 2007, the applicable Margins shall be determined as if Level I
Status were in effect.




     “Material Adverse Effect” means, with respect to any event or circumstance, a material
adverse effect on:




     (a) the business, financial condition, operations or prospects of (i) the
Borrower alone, (ii) FIB alone, or (iii) the Borrower and its Subsidiaries, taken as
a whole;




     (b) the ability of the Borrower or any Affiliate to perform its obligations
under any Loan Document to which it is a party;




     (c) the validity, enforceability or collectibility of any Loan Document; or




     (d) the status, existence, perfection, priority or enforceability of any Lien
securing any Obligations (including but not limited to the Lien granted pursuant to
the Security Agreement).



-10-









 






     “Material Subsidiaries” means (i) each Bank Subsidiary, (iii) each other Subsidiary
whose assets equal or exceed 10% of the consolidated assets of the Borrower and its
Subsidiaries, and (iv) each other Subsidiary so designated pursuant to Section 5.15.




     “Maturity Date” means (a) with respect to the Revolving Facility, January 10, 2011, and
(b) with respect to the Term Facility, January 10, 2013.




     “Multi-employer Plan” means a multi-employer plan (as defined in section 4001(a)(3) of
ERISA) to which the Borrower or any Subsidiary or ERISA Affiliate contributes or is
obligated to contribute.




     “Net Income” means a Person’s net income as determined in accordance with GAAP, without
reference to extraordinary or non-recurring items.




     “Net Worth” means, as of any date, the sum of (i) shareholders’ equity of the Borrower,
and (ii) the aggregate principal amount of all Trust Preferred Securities with more than
five years until maturity as of such date (but only to the extent that the amount determined
under this clause (ii) does not exceed 25% of the sum of the amounts determined under
clauses (i) and (ii)).




     “Non-Consenting Lender” has the meaning specified in Section 9.7.




     “Non-Performing Assets” means, with respect to any Person, the sum (without
duplication) of (i) all Non-Performing Loans, (ii) all real property acquired in
repossession or foreclosure and real property acquired pursuant to in-substance foreclosure;
and (iii) if such Person is a Bank Subsidiary, all other “Non-Performing Assets,” as
required to be reported in the then most recent call report of such Bank Subsidiary.




     “Non-Performing Loans” means, with respect to any Person, the sum of (i) all loans and
leases classified as past due 90 days or more and still accruing interest; and (ii) all
loans and leases classified as “non-accrual” and no longer accruing interest.




     “Note” means a Revolving Note or a Term Note.




     “Notice” has the meaning specified in Section 9.5(b).




     “Obligations” means (i) each and every debt, liability and other obligation of every
type and description arising under or in connection with any of the Loan Documents which the
Borrower may now or at any time hereafter owe to any Lender Party, whether such debt,
liability or obligation now exists or is hereafter created or incurred, whether it is direct
or indirect, due or to become due, absolute or contingent, primary or secondary, liquidated
or unliquidated, or sole, joint, several or joint and several, and including specifically,
but not limited to, due and owing to a Lender from the Borrower and all indebtedness,
liabilities and obligations of the Borrower arising under or evidenced by the Notes, and
(ii) Banking Services Obligations.



-11-









 






     “Organizational Documents” means, (a) with respect to any corporation, the articles of
incorporation and bylaws of such corporation, (b) with respect to any partnership, the
partnership agreement of such partnership, (c) with respect to any limited liability
company, the articles of organization and operating agreement of such company, and (d) with
respect to any entity, any and all other shareholder, partner or member control agreements
and similar organizational documents relating to such entity.




     “Other Taxes” means all present or future stamp or documentary taxes or any other
excise or property taxes, charges or similar levies arising from any payment made hereunder
or under any other Loan Document or from the execution, delivery or enforcement of, or
otherwise with respect to, this Agreement or any other Loan Document. “Other Taxes” shall
not include any Excluded Taxes.




     “Pension Plan” means a pension plan (as defined in section 3(2) of ERISA) maintained
for employees of the Borrower or any Subsidiary or ERISA Affiliate and covered by Title IV
of ERISA.




     “Percentage” means, with respect to any Lender, the ratio of that Lender’s Credit
Exposure to the aggregate Credit Exposure of all Lenders. Where the context refers to a
particular Facility, “Percentage” shall be determined with respect to that Facility only.




     “Permitted Liens” has the meaning specified in Section 4.11.




     “Person” means any individual, corporation, partnership, limited liability company,
joint venture, association, joint-stock company, trust, unincorporated organization or
Governmental Authority.




     “Plan” means an employee benefit plan (as defined in Section 3(3) of ERISA) maintained
for employees of the Borrower or any Subsidiary or ERISA Affiliate.




     “Platform” has the meaning specified in Section 9.5(a).




     “Pricing Grid” means the pricing grid attached as Exhibit B.




     “Primary Equity Capital” means, with respect to any Person, the sum of (i) the Equity
Capital of such Person, plus (ii) such Person’s allowance for loan and lease losses, as
determined in accordance with GAAP.




     “Register” has the meaning specified in Section 9.3(c).




     “Related Parties” means, with respect to any Person, such Person’s Affiliates and the
partners, directors, officers, employees, agents and advisors of such Person and of such
Person’s Affiliates.




     “Reportable Event” means a reportable event (as defined in section 4043 of ERISA),
other than an event for which the 30-day notice requirement under ERISA has been waived in
regulations issued by the Pension Benefit Guaranty Corporation.




     “Required Lenders” means any two or more Lender Groups having an aggregate Percentage
equal to or greater than 66-2/3%; provided, however, that if any Lender is a



-12-









 






Defaulting Lender at such time of determination, the Percentages of such Defaulting
Lender’s Lender Group shall be excluded from the determination of Required Lenders;
provided, further, that at any time during which only one Lender Group exists, “Required
Lenders” means that Lender Group.




     “Required Payment” has the meaning specified in Section 2.14(c).




     “Restricted Payment” means any payment on account of any Capital Stock of the Borrower
or any Subsidiary, including but not limited to any dividend or distribution and any payment
in purchase, redemption, retirement or other acquisition thereof.




     “Return on Assets” means, as of any Covenant Compliance Date, the ratio (expressed as a
percentage) of (i) Net Income of the Borrower and its Subsidiaries, determined on a
consolidated basis, during the period of four successive fiscal quarters ending on that
Covenant Compliance Date, to (ii) (A) the sum of the total average assets of the Borrower
and its Subsidiaries during each quarter in such period (determined separately for each such
quarter), divided by (B) 4.




     “Revolving Advance” means a loan of funds by a Lender to the Borrower under the
Revolving Facility, including both Floating Rate Loans and LIBOR Loans made thereunder.




     “Revolving Borrowing” means a Borrowing consisting of a Revolving Advance by each of
the Lenders.




     “Revolving Commitment” means, with respect to each Lender, (i) the amount so designated
opposite such Lender’s name on Exhibit A, plus or minus any such amount assumed or assigned
pursuant to any Assignment and Assumption, or (ii)  as the context may require, the
obligation of such Lender to make Revolving Advances under Section 2.1(a).




     “Revolving Commitment Termination Date” means the earlier of (a) the Maturity Date and
(b) the date on which the Revolving Commitments are terminated pursuant to Section 2.12 or
7.2 or reduced to zero pursuant to Section 2.12.




     “Revolving Credit Exposure” means, with respect to any Lender, (a) at all times prior
to termination of the Revolving Commitments, such Lender’s Revolving Commitment and
(b) thereafter, such Lender’s Revolving Facility Outstanding Amount.




     “Revolving Facility” means the revolving credit facility being made available to the
Borrower by the Lenders pursuant to Section 2.1.




     “Revolving Facility Outstanding Amount” means, as of the date of determination, the sum
of the aggregate principal amount of all outstanding Revolving Advances.




     “Revolving Lender” means any Lender with a Revolving Commitment.




     “Revolving Note” means a promissory note of the Borrower payable to a Lender in the
amount of such Lender’s Revolving Commitment, in substantially the form of



-13-









 






Exhibit C, as such promissory note may be amended, extended or otherwise modified from
time to time, and including each other promissory note accepted from time to time in
substitution therefor or in renewal thereof.




     “Revolving Percentage” means, with respect to a Revolving Lender, such Revolving
Lender’s Percentage of the Revolving Facility.




     “Scott Descendants” means (a) the lineal descendants of Homer A. Scott and (b) any
spouse or former spouse of a lineal descendant.




     “Scott Family” means (a) the Scott Descendants, (b) each trust that is for the sole
benefit of or under the sole control of a Scott Descendant, and (c) each other entity
controlled by one or more Scott Descendants.




     “Security Agreement” means the Borrower’s Security Agreement of even date herewith,
granting the Administrative Agent, for the benefit of the Lender Parties, a security
interest in all of the Capital Stock of FIB, and all amendments and supplements thereto and
modifications thereof.




     “Shareholder” means, with respect to any Person, the holder of any legal or beneficial
interest in any Capital Stock of that Person.




     “Status” means the financial condition of the Borrower and its Subsidiaries expressed
as Level I, Level II or Level III, each as determined in accordance with the definition of
“Margin” herein.




     “Subordinated Debt” means all debt that has been subordinated to payment of the
Obligations on terms and conditions satisfactory to the Required Lenders, in their sole
discretion, as to the right and time of payment and as to any other rights and remedies
thereunder.




     “Subsidiary” means, with respect to a Person, any corporation, partnership, limited
liability company or other entity of which more than 50% of the outstanding Capital Stock
having general voting power under ordinary circumstances to elect a majority of the
Governing Board of such entity (irrespective of whether or not at the time stock or
membership interests of any other class or classes shall have or might have voting power by
reason of the happening of any contingency) is at the time directly or indirectly owned by
such Person. Unless otherwise specified, “Subsidiary” means a Subsidiary of the Borrower.




     “Taxes” means all present or future taxes, levies, imposts, duties, deductions,
withholdings, assessments, fees or other charges imposed by any Governmental Authority,
including any interest, additions to tax or penalties applicable thereto.




     “Term Advance” means a loan of funds by a Lender to the Borrower under the Term
Facility, including both Floating Rate Loans and LIBOR Loans thereunder.




     “Term Commitment” means, with respect to any Lender, (a) the amount so designated
opposite such Lender’s name on Exhibit A, plus or minus any such amount



-14-









 






assumed or assigned pursuant to any Assignment and Assumption, or (b) as the context
may require, the obligation of such Lender to make Term Advances to the Borrower under
Section 2.1(b).




     “Term Credit Exposure” means, with respect to any Lender, the aggregate principal
amount of all outstanding Term Advances made by such Lender.




     “Term Facility” means the term loan facility being made available to the Borrower by
the Lenders pursuant to Section 2.1(b).




     “Term Lender” means any Lender with a Term Commitment.




     “Term Note” means a promissory note of the Borrower payable to a Lender in the amount
of such Lender’s Term Commitment, in substantially the form of Exhibit D, as such promissory
note may be amended, extended or otherwise modified from time to time, and including each
other promissory note accepted from time to time in substitution therefor or in renewal
thereof.




     “Tier 1 Leverage Ratio” shall be defined and calculated in accordance with Appendix D
of 12 CFR Part 225 in the case of the Borrower and in accordance with the prompt corrective
action and minimum capital ratio rules prescribed by the applicable federal banking agency
in the case of a Bank Subsidiary.




     “Tier 1 Risk-Based Capital Ratio” means the ratio of tier 1 capital to weighted-risk
assets calculated in accordance with Appendix A of 12 CFR Part 225 in the case of the
Borrower and calculated in accordance with the prompt corrective action and minimum capital
ratio rules prescribed by the applicable federal banking agency in the case of a Bank
Subsidiary.




     “Total Risk-Based Capital Ratio” means the ratio of qualifying total capital to
weighted-risk assets calculated in accordance with Appendix A of 12 CFR Part 225 in the case
of the Borrower and calculated in accordance with the prompt corrective action and minimum
capital ratio rules prescribed by the applicable federal banking agency in the case of a
Bank Subsidiary.




     “Trust Preferred Securities” means any preferred securities issued by a Trust Preferred
Securities Subsidiary, where such preferred securities have the following characteristics:




	 	(i)	 	such Trust Preferred Securities Subsidiary lends substantially
all of the proceeds from the issuance of such preferred securities to the
Borrower or a wholly-owned Subsidiary of the Borrower in exchange for
subordinated debt issued by the Borrower or such wholly-owned Subsidiary, as
the case may be;
	 
	 	(ii)	 	such preferred securities contain terms providing for the
deferral of interest payments corresponding to provisions providing for the
deferral of interest payments on the subordinated debt; and




-15-









 






	 	(iii)	 	the Borrower or a wholly-owned Subsidiary of the Borrower (as
the case may be) makes periodic interest payments on the subordinated debt,
which interest payments are in turn used by the Trust Preferred Securities
Subsidiary to make corresponding payments to the holders of such preferred
securities.






     “Trust Preferred Securities Subsidiary” means any business trust (or similar entity)
(i) all of the common equity interest of which is owned (either directly or indirectly
through one or more wholly-owned Subsidiaries of the Borrower) at all times by the Borrower,
(ii) that has been formed for the purpose of issuing Trust Preferred Securities and (iii)
substantially all of the assets of which consist at all times solely of subordinated debt
issued by the Borrower or a wholly-owned Subsidiary of the Borrower and payments made from
time to time on such subordinated debt.




     “UCC” means the Uniform Commercial Code as in effect from time to time in any
applicable jurisdiction.




     “Wells Fargo” has the meaning specified in the preamble.



Section 1.2 Times.



All references to times of day in this Agreement shall be references to Billings, Montana time
unless otherwise specifically provided.




ARTICLE II

CREDIT FACILITIES




Section 2.1 Commitments as to Facilities.





     (a) Revolving Facility. Each Revolving Lender hereby agrees, on the terms and subject
to the conditions herein set forth, including specifically satisfaction of all conditions
set forth in Section 3.2, to make Revolving Advances to the Borrower from time to time
during the period from the date hereof to and including the Revolving Commitment Termination
Date, in an aggregate amount at any time outstanding not to exceed such Revolving Lender’s
Revolving Percentage of each Borrowing from time to time requested by the Borrower under the
Revolving Facility; provided, however, that (i) the Revolving Facility Outstanding Amount
shall at no time exceed the Aggregate Revolving Commitment Amount, and (ii) no Revolving
Lender’s Revolving Percentage of the Revolving Facility Outstanding Amount shall at any time
exceed such Revolving Lender’s Revolving Commitment. Within the above limits, the Borrower
may obtain Revolving Advances, prepay Revolving Advances in accordance with the terms hereof
and reborrow Revolving Advances in accordance with the applicable terms and conditions of
this Article II.




     (b) Term Facility. Each Term Lender hereby agrees, on the terms and subject to the
conditions herein set forth, to make a single Term Advance to the Borrower in an amount for
such Term Lender equal to such Term Lender’s Term Commitment. Initially, the Term Advances
shall be funded as Floating Rate Loans, subject to conversion pursuant to Section 2.3. The
Term Facility is not a revolving facility; once the initial



-16-









 






Term Advance is made by a Term Lender, such Term Lender shall have no further
obligation to make any additional Term Advances to the Borrower under the Term Facility,
whether or not any amounts are repaid thereunder.



Section 2.2 Procedures for Revolving Borrowings.



Each Revolving Borrowing shall be funded by the Revolving Lenders as either Floating Rate Advances
or LIBOR Advances, as the Borrower shall specify in the related notice of proposed Borrowing.
Floating Rate Loans and LIBOR Loans may be outstanding at the same time. The principal amount of
any Revolving Borrowing shall be in an amount equal to (a) $1,000,000 or a higher integral multiple
of $500,000 if such Borrowing is funded as a Floating Rate Loan and (b) $2,000,000 or a higher
integral multiple of $1,000,000 if such Borrowing is funded as a LIBOR Loan. The Borrower shall
give notice to the Administrative Agent of each proposed Revolving Borrowing not later than 12:00
noon on a Business Day which, in the case of a Borrowing that is to bear interest initially at a
Floating Rate, is at least 1 Business Day prior to the proposed date of such Borrowing or, in the
case of a Borrowing that is to bear interest initially at a LIBO Rate, is at least 3 Business Days
prior to the proposed date of such Borrowing. Each such notice shall be effective upon receipt by
the Administrative Agent, shall be in writing or by telephone or telecopy transmission, to be
confirmed in writing by the Borrower if so requested by the Administrative Agent (in the form of
Exhibit E), and shall specify whether the Borrowing is to bear interest initially at a Floating
Rate or a LIBO Rate and, in the case of a Borrowing that is to bear interest initially at a LIBO
Rate, shall specify the Interest Period to be applicable thereto. Promptly upon receipt of such
notice (but in no event later than 1:00 p.m. with respect to a Floating Rate Advance, and the close
of business, with respect to a LIBOR Advance, in each case on the Business Day of receipt of such
notice), the Administrative Agent shall advise each Lender of the proposed Borrowing. Subject to
satisfaction of the conditions precedent set forth in Article III with respect to such Borrowing,
at or before 1:00 p.m. on the date of the requested Borrowing, each Revolving Lender shall provide
the Administrative Agent at the principal office of the Administrative Agent in Minneapolis,
Minnesota (or such other office as the Administrative Agent may designate), with immediately
available funds covering such Revolving Lender’s Revolving Percentage of such Borrowing. The
Administrative Agent shall pay over proceeds of such Borrowing to the Borrower, in immediately
available funds, prior to the close of business on the date of the requested Borrowing.




Section 2.3 Converting Floating Rate Loans to LIBOR Loans; Procedures.



So long as no Default or Event of Default shall exist, the Borrower may convert all or any part of
any outstanding Floating Rate Loan under the Revolving Facility or the Term Facility into a LIBOR
Loan by giving notice to the Administrative Agent of such conversion not later than 12:00 noon on a
Business Day which is at least 3 Business Days prior to the date of the requested conversion. Each
such notice shall be irrevocable, shall be effective upon receipt by the Administrative Agent,
shall be in writing or by telephone or telecopy transmission, to be confirmed in writing by the
Borrower if so requested by the Administrative Agent (in the form of Exhibit F), shall specify the
date and amount of such conversion, the total amount of the Loan to be so converted and the
Interest Period therefor. Each conversion of a Loan shall be on a Business Day, and the aggregate
amount of each such conversion of a Floating Rate Loan to a


-17-









 






LIBOR Loan shall be in an amount equal to $2,000,000 or a higher integral multiple of $1,000,000.




Section 2.4 Procedures at End of an Interest Period.



Unless the Borrower requests a new LIBOR Loan in accordance with the procedures set forth below, or
prepays the principal of an outstanding LIBOR Loan at the expiration of an Interest Period, each
Lender shall automatically and without request of the Borrower convert each LIBOR Loan to a
Floating Rate Loan on the last day of the relevant Interest Period. So long as no Default or Event
of Default shall exist, the Borrower may cause all or any part of any outstanding LIBOR Loan to
continue to bear interest at a LIBO Rate after the end of the then applicable Interest Period by
notifying the Administrative Agent not later than 12:00 noon on a Business Day which is at least 3
Business Days prior to the first day of the new Interest Period. Each such notice shall be
irrevocable, effective when received by the Administrative Agent, shall be in writing or by
telephone or telecopy transmission, to be confirmed in writing by the Borrower if so requested by
the Administrative Agent (in the form of Exhibit G), and shall specify the first day of the
applicable Interest Period, the amount of the expiring LIBOR Loan to be continued and the Interest
Period therefor. Each new Interest Period shall begin on a Business Day and the amount of each Loan
bearing a new LIBO Rate shall be in an amount equal to $2,000,000 or a higher integral multiple of
$1,000,000.




Section 2.5 Setting and Notice of Rates.



The applicable LIBO Rate for each Interest Period shall be determined by the Administrative Agent
on the second Business Day prior to the beginning of such Interest Period, whereupon notice thereof
(which may be by telephone) shall be given by the Administrative Agent to the Borrower and each
Lender. Each such determination of the applicable LIBO Rate shall be conclusive and binding upon
the parties hereto, in the absence of manifest error. The Administrative Agent, upon written
request of the Borrower or any Lender, shall deliver to the Borrower or such requesting Lender a
statement showing the computations used by the Administrative Agent in determining the applicable
LIBO Rate hereunder.




Section 2.6 Interest on Loans.



The Borrower will pay interest on the unpaid principal amount of each Loan for the period
commencing on the date of this Agreement until the unpaid principal amount thereof is paid in full,
in accordance with the following:





     (a) Interest Payments. The Borrower shall pay accrued interest on each Loan on each
Interest Payment Date applicable thereto.




     (b) Floating Rate Loans. Subject to subsection (d) below, while any outstanding
principal of a Loan constitutes a Floating Rate Loan, the outstanding principal balance
thereof shall bear interest at an annual rate at all times equal to the Floating Rate
applicable to such Floating Rate Loan.




     (c) LIBOR Loans. Subject to subsection (d) below, while any outstanding principal of a
Loan constitutes a LIBOR Loan, the outstanding principal balance thereof shall bear interest
for the applicable Interest Period at an annual rate equal to the LIBO



-18-









 






Rate established with respect such LIBOR Loan in accordance with Section 2.2, 2.3 or
2.4.




     (d) Default Rate. From and after written notice from the Administrative Agent to the
Borrower following the occurrence of an Event of Default and continuing thereafter until
such Event of Default shall be remedied to the written satisfaction of the Required Lenders,
the outstanding principal balance of each Loan shall bear interest, until paid in full, at
an annual rate equal to the sum of (i) the interest rate otherwise in effect with respect to
such outstanding principal and (ii) 250 basis points (2.50% per annum). In addition, all
fees, indemnification obligations and other Obligations not paid when due hereunder shall
bear interest, until paid in full, at an annual rate equal to the sum of (x) the Floating
Rate (with the Margin then applicable to the Revolving Facility) and (y) 250 basis points
(2.50% per annum) (each rate described in this subsection (d) herein, a “Default Rate”).




     (e) Savings Clause. Notwithstanding anything in this Section 2.6 to the contrary, at no
time shall the Borrower be obligated or required to pay interest on any Obligation at a rate
which could subject any Lender to either civil or criminal liability as a result of being in
excess of the maximum interest rate which the Borrower is permitted by applicable law. If,
under the terms of this Agreement or any other Loan Document, the Borrower is at any time
required or obligated to pay interest on any Obligation at a rate in excess of such maximum
rate, the Floating Rate, LIBO Rate or Default Rate, as the case may be, shall be deemed to
be immediately reduced to such maximum rate and all previous payments in excess of the
maximum rate shall be deemed to have been payments in reduction of principal and not on
account of any interest thereon due hereunder. All sums paid or agreed to be paid to a
Lender for the use, forbearance or retention of any Obligation, shall, to the extent
permitted by applicable law, be amortized, prorated, allocated and spread throughout the
full stated term of the Obligation to which such payment applies until payment in full so
that the rate or amount of interest on account of any such Obligation does not exceed the
maximum lawful rate of interest from time to time in effect and applicable to such
Obligation for so long as the Obligation is outstanding.



Section 2.7 Obligation to Repay Advances; Representations.



The Borrower shall be obligated to repay all Advances under this Article II notwithstanding the
failure of the Administrative Agent to receive any written request therefor or written confirmation
thereof and notwithstanding the fact that the Person requesting the same was not in fact authorized
to do so. Any request for a Credit Extension, whether written, telephonic, telecopy or otherwise,
shall be deemed to be a representation by the Borrower that (i) the statements set forth in
Section 3.2 are correct as of the time of the request and (ii) if such Credit Extension is a
Revolving Borrowing, the amount of the requested Borrowing, when added to the Revolving Facility
Outstanding Amount would not cause the sum of the Revolving Facility Outstanding Amount to exceed
the Aggregate Revolving Commitment Amount.




-19-









 








Section 2.8 Notes; Principal Amortization.





     (a) Promissory Notes Optional. The Borrower’s obligation to repay the principal of and
interest on the Advances made by each Lender shall be evidenced in the Register and shall,
if requested by such Lender, also be evidenced (i) by a Revolving Note, duly executed and
delivered by the Borrower, with blanks appropriately completed, with respect to Revolving
Advances made by such Lender, and (ii) by a Term Note, duly executed and delivered by the
Borrower, with blanks appropriately completed, with respect to Term Advances made by such
Lender.




     (b) Revolving Facility Principal. The aggregate unpaid principal amount of all
Revolving Advances shall be payable on the Maturity Date.




     (c) Term Facility Principal. The Borrower will pay the Term Facility in equal
consecutive quarterly installments of $1,785,714.29 each, due on the last day of each March,
June, September and December, commencing March 31, 2008, and in one final installment on the
Maturity Date, when all unpaid principal thereof shall be finally due and payable.



Section 2.9 Computation of Interest and Fees.



Interest accruing on the Loans, and Commitment Fees and other fees described in Section 2.10, shall
be computed on the basis of the actual number of days elapsed in a year of 360 days; provided,
however, that interest accruing from time to time on Floating Rate Loans shall be computed on the
basis of the actual number of days elapsed in a year of 365 or 366 days, as the case may be.




Section 2.10 Fees.



The Borrower will pay fees to the Lender Parties in accordance with the following:





     (a) Commitment Fee. The Borrower will pay to the Administrative Agent, for the pro rata
account of the Revolving Lenders, an ongoing fee (the “Commitment Fee”) computed as the
product of an annual rate equal to (i) the applicable Margin relating to the Commitment Fee
and (ii) the daily average amount by which (A) the sum of the Aggregate Revolving Commitment
Amount exceeds (B) the Revolving Facility Outstanding Amount, from the date hereof to and
including the Revolving Commitment Termination Date, payable quarterly in arrears on the
last Business Day of each calendar quarter. Any Commitment Fee remaining unpaid on the
Revolving Commitment Termination Date shall be due and payable on such date. The Commitment
Fee shall be shared by the Revolving Lenders on the basis of their respective Revolving
Percentages.




     (b) Administrative Agency Fee. On the date hereof and on each anniversary of the date
hereof, the Borrower will pay to the Administrative Agent, for the sole account of the
Administrative Agent, an administrative agency fee in an amount equal to $5,000, times the
number of Lenders existing when such fee is due (including the Administrative Agent in its
capacity as a Lender). Such fee shall be deemed fully earned when due hereunder.



-20-









 






     (c) Fee Letters. The Borrower shall pay to the Administrative Agent all fees required
to be paid pursuant to any Fee Letters.



Section 2.11 Use of Proceeds.



Proceeds of the Term Facility and the initial Revolving Borrowing will be used (i) to finance the
First Western Acquisition and related fees and expenses, (ii) to pay in full all indebtedness, if
any, outstanding under the Existing Wells Fargo Credit Agreement, (iii) to pay fees and expenses in
connection with the negotiation, execution and delivery of this Agreement and all other matters
related thereto, and (iv) to provide for the Borrower’s working capital requirements and for
general corporate purposes. Proceeds of each subsequent Revolving Borrowing will be used to provide
for the Borrower’s working capital requirements and for general corporate purposes.




Section 2.12 Voluntary Reduction or Termination of the Commitments.



The Borrower, from time to time upon not less than 3 Business Days’ prior written notice to the
Administrative Agent, may permanently reduce the Aggregate Revolving Commitment Amount; provided,
however, that no such reduction shall reduce the Aggregate Revolving Commitment Amount to an amount
less than the Revolving Facility Outstanding Amount. Any such voluntary reduction shall be pro rata
as to all Revolving Commitments according to each Revolving Lender’s Revolving Percentage and shall
be in an aggregate amount equal to (x) $5,000,000 or (y) the sum of $5,000,000 and an integral
multiple of $2,000,000. The Borrower at any time prior to the Revolving Commitment Termination Date
may terminate the Revolving Commitments by (i) providing to the Administrative Agent not less than
30 Business Days’ prior written notice of its intention to so terminate the Revolving Commitments
and (ii) making payment in full of all Revolving Advances and all other monetary Obligations.




Section 2.13 Prepayments.



The Borrower from time to time may voluntarily prepay the Loans in whole or in part, provided that
(i) any prepayment of a Facility shall be applied against outstanding Loans of each Lender under
that Facility pro rata according to each Lender’s Percentage of that Facility, (ii) each prepayment
of the Loans shall be made to the Administrative Agent not later than 12:00 noon on a Business Day,
and funds received after that hour shall be deemed to have been received by the Administrative
Agent on the next following Business Day, (iii) each partial prepayment of any LIBOR Loan shall be
accompanied by accrued interest on such partial prepayment through the date of prepayment and
additional compensation (if any) calculated in accordance with Section 2.18, (iv) each partial
prepayment of LIBOR Loans shall be in an aggregate amount equal to the applicable minimum Loan
amount specified in Section 2.4 for the applicable Facility and, after application of any such
prepayment, shall not result in a LIBOR Loan remaining outstanding in an amount less than such
minimum Loan amount, (v) each partial prepayment of Floating Rate Loans shall be in an aggregate
amount equal to (A) $1,000,000 or (B) the sum of $1,000,000 and an integral multiple of $500,000,
unless (in either case) the aggregate outstanding balance of all Loans under the Facility being
prepaid is less than such minimum Loan amount, in which event any such prepayment may be in such
lesser amount, (vi) unless notified by the Borrower in writing to the contrary, the Administrative
Agent shall apply all partial prepayments first, to Revolving Advances and second,
to Term Advances, and (vii) each partial prepayment of the Term Facility shall be applied to the
remaining principal installments due thereunder on a pro


-21-









 






rata basis. Unless otherwise provided in this Agreement or the other Loan Documents, prepayments
from the Borrower of principal within any Facility above shall be applied first to the principal of
Floating Rate Loans and then to the principal of LIBOR Loans (and, among such LIBOR Loans, first to
those with the earliest expiring Interest Periods).




Section 2.14 Payments.





     (a) Making of Payments. All payments of principal of and interest due with respect to a
Facility shall be made to the Administrative Agent for the account of the applicable Lenders
pro rata according to their respective Percentages of such Facility. All payments of fees
pursuant to Section 2.10 shall be made to the Administrative Agent for the account of the
Administrative Agent or the Lenders, as specified in Section 2.10. All payments hereunder
shall be made to the Administrative Agent at its office in San Francisco, California (or at
such other location as the Administrative Agent may direct by notice to the Borrower) not
later than 12:00 noon on the date due, in immediately available funds, without set-off or
counterclaim, and funds received after that hour shall be deemed to have been received on
the next following Business Day. The Borrower hereby authorizes the Administrative Agent to
charge the Borrower’s demand deposit account maintained with the Administrative Agent (or
with any other Lender) for the amount of any Obligation on its due date, but the
Administrative Agent’s failure to so charge any such account shall in no way affect the
obligation of the Borrower to make any such payment. The Administrative Agent shall remit to
each Lender in immediately available funds on the same Business Day as received by the
Administrative Agent its share of all such payments received by the Administrative Agent for
the account of such Lender. All payments under Sections 2.15, 2.16 or 2.18 shall be made by
the Borrower directly to the Lender entitled thereto.




     (b) Effect of Payments. Each payment by the Borrower to the Administrative Agent for
the account of any Lender pursuant to Section 2.14(a) shall be deemed to constitute payment
by the Borrower directly to such Lender, provided, however, that in the event any such
payment by the Borrower to the Administrative Agent is required to be returned to the
Borrower for any reason whatsoever, then the Borrower’s obligation to such Lender with
respect to such payment shall be deemed to be automatically reinstated.




     (c) Distributions by Administrative Agent. Unless the Administrative Agent shall have
been notified by a Lender or the Borrower prior to the date on which such Lender or the
Borrower is scheduled to make payment to the Administrative Agent of (in the case of a
Lender) the proceeds of an Advance to be made by it hereunder or (in the case of the
Borrower) a payment to the Administrative Agent for the account of one or more of the
Lenders hereunder (such payment by a Lender or the Borrower (as the case may be) being
herein called a “Required Payment”), which notice shall be effective upon receipt, that it
does not intend to make the Required Payment to the Administrative Agent, the Administrative
Agent may assume that the Required Payment has been made and may, in reliance upon such
assumption (but shall not be required to), make the amount thereof available to the intended
recipient(s) on such date and, if such Lender or the Borrower (as the case may be) has not
in fact made the Required Payment to the Administrative Agent, the recipient(s) of such
payment shall, on demand, repay to the Administrative Agent the amount so made available
together with interest thereon for



-22-









 






each day during the period commencing on the date such amount was so made available by
the Administrative Agent until the date the Administrative Agent recovers such amount at an
annual rate (i) equal to the Federal Funds Rate for such day, in the case of a Required
Payment owing by a Lender, or (ii) equal to the applicable rate of interest as provided in
this Agreement, in the case of a Required Payment owing by the Borrower. Nothing in this
paragraph (c) shall be deemed to excuse, or to limit the rights of the Administrative Agent
or any Lender against the Borrower on account of, any delinquent Required Payment.




     (d) Due Date Extension. Subject to subsection (b) of the definition of “Interest
Period” with respect to LIBOR Loans, if any payment of principal of or interest on any Loan
or any fees payable hereunder falls due on a day which is not a Business Day, then such due
date shall be extended to the next following Business Day, and (in the case of principal)
additional interest shall accrue and be payable for the period of such extension.




     (e) Application of Payments. Except as otherwise provided herein, so long as no Default
or Event of Default has occurred and is continuing hereunder, each payment received from the
Borrower shall be applied to such Obligation as the Borrower shall specify by notice to be
received by the Administrative Agent on or before the date of such payment. In the absence
of such notice and in any event during the continuance of any Default or Event of Default,
payments received from the Borrower shall be applied, first, to the payment of the
Obligations, other than Banking Services Obligations, in such order as the Administrative
Agent shall determine in its discretion, and, second, to the payment of any Banking Services
Obligations. Concurrently with each remittance to any Lender of its appropriate share of any
such payment (based upon such Lender’s Percentage of the Facility to which such payment
relates), the Administrative Agent shall advise such Lender as to the application of such
payment.



Section 2.15 Increased Costs.





     (a) Increased Costs Generally. If any Change in Law shall:




     (i) impose, modify or deem applicable any reserve, special deposit, compulsory
loan, insurance charge or similar requirement against assets of, deposits with or
for the account of, or credit extended or participated in by, any Lender (except any
reserve requirement reflected in the LIBO Rate);




     (ii) subject any Lender to any tax of any kind whatsoever with respect to this
Agreement or any LIBOR Loan made by it, or change the basis of taxation of payments
to such Lender in respect thereof (except for Indemnified Taxes or Other Taxes
covered by Section 2.16 and the imposition of, or any change in the rate of, any
Excluded Tax payable by such Lender); or




     (iii) impose on any Lender or the London interbank market any other condition,
cost or expense affecting this Agreement or LIBOR Loans made by such Lender;




and the result of any of the foregoing shall be to increase the cost to such Lender of
making or maintaining any LIBOR Loan (or of maintaining its obligation to make any



-23-









 






such Loan), or to reduce the amount of any sum received or receivable by such Lender
hereunder (whether of principal, interest or any other amount) then, upon request of such
Lender, the Borrower will pay to such Lender such additional amount or amounts as will
compensate such Lender for such additional costs incurred or reduction suffered.




     (b) Capital Requirements. If any Lender determines that any Change in Law affecting
such Lender or any lending office of such Lender or such Lender’s holding company, if any,
regarding capital requirements has or would have the effect of reducing the rate of return
on such Lender’s capital or on the capital of such Lender’s holding company, if any, as a
consequence of this Agreement, the Commitments of such Lender or the Loans made by such
Lender, to a level below that which such Lender or such Lender’s holding company could have
achieved but for such Change in Law (taking into consideration such Lender’s policies and
the policies of such Lender’s holding company with respect to capital adequacy), then from
time to time the Borrower will pay to such Lender such additional amount or amounts as will
compensate such Lender or such Lender’s holding company for any such reduction suffered (but
only to the extent that such reduction arises as a consequence of this Agreement, the
Commitments of such Lender or the Loans made by such Lender)).




     (c) Certificates for Reimbursement. A certificate of a Lender setting forth the amount
or amounts necessary to compensate such Lender or its holding company, as the case may be,
as specified in paragraph (a) or (b) of this Section and delivered to the Borrower shall be
conclusive absent manifest error. The Borrower shall pay such Lender the amount shown as due
on any such certificate within 10 days after receipt thereof.




     (d) Delay in Requests. Failure or delay on the part of any Lender to demand
compensation pursuant to this Section shall not constitute a waiver of such Lender’s right
to demand such compensation, provided that the Borrower shall not be required to compensate
a Lender pursuant to this Section for any increased costs incurred or reductions suffered
more than nine months prior to the date that such Lender notifies the Borrower of the Change
in Law giving rise to such increased costs or reductions and of such Lender’s intention to
claim compensation therefor (except that, if the Change in Law giving rise to such increased
costs or reductions is retroactive, then the nine-month period referred to above shall be
extended to include the period of retroactive effect thereof).



Section 2.16 Taxes.





     (a) Payments Free of Taxes. Any and all payments by or on account of any obligation of
the Borrower hereunder or under any other Loan Document shall be made free and clear of and
without reduction or withholding for any Indemnified Taxes or Other Taxes, provided that if
the Borrower shall be required by applicable law to deduct any Indemnified Taxes (including
any Other Taxes) from such payments, then (i) the sum payable shall be increased as
necessary so that after making all required deductions (including deductions applicable to
additional sums payable under this Section) the Lender Party entitled thereto receives an
amount equal to the sum it would have received had no such deductions been made, (ii) the
Borrower shall make such deductions, and



-24-









 






(iii) the Borrower shall timely pay the full amount deducted to the relevant
Governmental Authority in accordance with applicable law.




     (b) Payment of Other Taxes by the Borrower. Without limiting the provisions of
paragraph (a) above, the Borrower shall timely pay any Other Taxes to the relevant
Governmental Authority in accordance with applicable law.




     (c) Indemnification by the Borrower. The Borrower shall indemnify each Lender Party
within 10 Business Days after demand therefor, for the full amount of any Indemnified Taxes
or Other Taxes (including Indemnified Taxes or Other Taxes imposed or asserted on or
attributable to amounts payable under this Section) paid by such Lender Party, and any
penalties, interest and reasonable expenses arising therefrom or with respect thereto,
whether or not such Indemnified Taxes or Other Taxes were correctly or legally imposed or
asserted by the relevant Governmental Authority. A certificate as to the amount of such
payment or liability delivered to the Borrower by a Lender Party (with a copy to the
Administrative Agent) shall be conclusive absent manifest error.




     (d) Evidence of Payments. As soon as practicable after any payment of Indemnified Taxes
or Other Taxes by the Borrower to a Governmental Authority, the Borrower shall deliver to
the Administrative Agent the original or a certified copy of a receipt issued by such
Governmental Authority evidencing such payment, a copy of the return reporting such payment
or other evidence of such payment reasonably satisfactory to the Administrative Agent.




     (e) Status of Lenders. Any Foreign Lender that is entitled to an exemption from or
reduction of withholding tax under the law of the jurisdiction in which the Borrower is
resident for tax purposes, or any treaty to which such jurisdiction is a party, with respect
to payments hereunder or under any other Loan Document shall deliver to the Borrower (with a
copy to the Administrative Agent), at the time or times prescribed by applicable law or
reasonably requested by the Borrower or the Administrative Agent, such properly completed
and executed documentation prescribed by applicable law as will permit such payments to be
made without withholding or at a reduced rate of withholding. In addition, any Lender, if
requested by the Borrower or the Administrative Agent, shall deliver such other
documentation prescribed by applicable law or reasonably requested by the Borrower or the
Administrative Agent as will enable the Borrower or the Administrative Agent to determine
whether or not such Lender is subject to backup withholding or information reporting
requirements.




     (f) Treatment of Certain Refunds. If any Lender Party determines, in its sole
discretion, that it has received a refund of any Taxes or Other Taxes as to which it has
been indemnified by the Borrower or with respect to which the Borrower has paid additional
amounts pursuant to this Section, it shall pay to the Borrower an amount equal to such
refund (but only to the extent of indemnity payments made, or additional amounts paid, by
the Borrower under this Section with respect to the Taxes or Other Taxes giving rise to such
refund), net of all out-of-pocket expenses of such Lender Party and without interest (other
than any interest paid by the relevant Governmental Authority with respect to such refund),
provided that the Borrower, upon the request of a Lender Party will repay the amount paid
over to the Borrower (plus any penalties, interest or other charges



-25-









 






imposed by the relevant Governmental Authority) to such Lender Party in the event such
Lender Party is required to repay such refund to such Governmental Authority. This paragraph
shall not be construed to require any Lender Party to make available its tax returns (or any
other information relating to its taxes that it deems confidential) to the Borrower or any
other Person.



Section 2.17 Illegality.



If any change in (including the adoption of any new) applicable laws or regulations, or any change
in the interpretation of applicable laws or regulations by any governmental authority, central
bank, comparable agency or any other regulatory body charged with the interpretation,
implementation or administration thereof, or compliance by a Lender with any request or directive
(whether or not having the force of law) of any such authority, central bank, comparable agency or
other regulatory body, should make it or, in the good faith judgment of the affected Lender, shall
raise a substantial question as to whether it is unlawful for such Lender to make, maintain or fund
LIBOR Loans, then (i) the affected Lender shall promptly notify the Borrower and the Administrative
Agent, (ii) the obligation of the affected Lender to make, maintain or convert into LIBOR Loans
shall, upon the effectiveness of such event, be suspended for the duration of such unlawfulness,
and (iii) for the duration of such unlawfulness, any notice by the Borrower pursuant to Section
2.2, 2.3 or 2.4 requesting the affected Lender to make or convert into LIBOR Loans shall be
construed as a request to make or to continue making Floating Rate Loans.




Section 2.18 Loan Losses.



The Borrower hereby agrees that upon demand by any Lender (which demand shall be accompanied by a
statement setting forth the basis for the calculations of the amount being claimed) the Borrower
will indemnify such Lender against any loss or expense which such Lender may have sustained or
incurred (including but not limited to any net loss or expense incurred by reason of the
liquidation or reemployment of deposits or other funds acquired by such Lender to fund or maintain
LIBOR Loans) or which such Lender may be deemed to have sustained or incurred, as reasonably
determined by such Lender, (i) as a consequence of any failure by the Borrower to make any payment
when due of any amount due hereunder in connection with any LIBOR Loans, (ii) due to any failure of
the Borrower to borrow or convert any LIBOR Loans on a date specified therefor in a notice thereof
or (iii) due to any payment or prepayment of any LIBOR Loan on a date other than the last day of
the applicable Interest Period for such LIBOR Loan. For this purpose, all notices under Sections
2.2, 2.3 and 2.4 shall be deemed to be irrevocable.




Section 2.19 Right of Lenders to Fund through Other Offices.



Each Lender, if it so elects, may fulfill its agreements hereunder with respect to any LIBOR Loan
by causing a foreign branch or affiliate of such Lender to make such LIBOR Loan; provided, that in
such event the obligation of the Borrower to repay such LIBOR Loan shall nevertheless be to such
Lender and such LIBOR Loan shall be deemed held by such Lender for the account of such branch or
affiliate.




-26-









 








Section 2.20 Discretion of Lenders as to Manner of Loan.



Notwithstanding any provision of this Agreement to the contrary, each Lender shall be entitled to
fund and maintain all or any part of its LIBOR Loans in any manner it deems fit, it being
understood, however, that for the purposes of this Agreement (specifically including but not
limited to Section 2.18 hereof) all determinations hereunder shall be made as if each Lender had
actually funded and maintained each LIBOR Loan during each Interest Period for such LIBOR Loan
through the purchase of deposits having a maturity corresponding to such Interest Period and
bearing an interest rate equal to the appropriate LIBO Rate for such Interest Period.




Section 2.21 Conclusiveness of Statements; Survival of Provisions.



Determinations and statements of a Lender pursuant to Sections 2.15, 2.16 or 2.18 shall be
conclusive absent manifest error. Each Lender may use reasonable averaging and attribution methods
in determining compensation pursuant to such Sections 2.15, 2.16 and 2.18 and the provisions of
Sections 2.15, 2.16 and 2.18 shall survive termination of this Agreement.




ARTICLE III

CONDITIONS TO CREDIT EXTENSIONS




Section 3.1 Conditions Precedent to the Initial Credit Extension.



The obligation of the Lenders to effect any Credit Extension is subject to the condition precedent
that, on or before the day of the first Credit Extension, and in any event on or before March 10,
2008, the Administrative Agent shall have received the following, each in form and substance
satisfactory to the Required Lenders:





     (a) Such Notes as shall be requested by any Lenders, each properly executed on behalf
of the Borrower.




     (b) The Security Agreement, properly executed on behalf of the Borrower, together with:




     (i) Original stock certificates (or other applicable evidence of ownership)
evidencing all issued and outstanding Capital Stock of FIB, together with stock
powers executed in blank by the Borrower.




     (ii) Financing statements with respect to the Borrower to be filed with the
Secretary of State of Montana to perfect the Liens created by the Security
Agreement, to the extent such Liens can be perfected by filing.




     (iii)  Current searches of the UCC records of the Secretary of State of Montana
and any other applicable records showing that no state or federal tax liens have
been filed and remain in effect against the Borrower, and that no financing
statements or other notifications or filings have been filed and remain in effect
against the Borrower, other than those for which the Administrative Agent has
received an appropriate release, termination or satisfaction or those permitted in
accordance with Section 6.1.



-27-









 






     (c) A certificate of the secretary or other appropriate officer of the Borrower
(i) certifying that the execution, delivery and performance of the Loan Documents and other
documents contemplated hereunder have been duly approved by all necessary action of the
Governing Board of the Borrower, and attaching true and correct copies of the applicable
resolutions granting such approval, (ii) certifying that attached to such certificate are
true and correct copies of the Organizational Documents of the Borrower, together with such
copies, and (iii) certifying the names of the officers of the Borrower that are authorized
to sign the Loan Documents and other documents contemplated hereunder, together with the
true signatures of such officers. The Lender Parties may conclusively rely on such
certificate until the Administrative Agent receives a further certificate of the Secretary
or Assistant Secretary of the Borrower canceling or amending the prior certificate and
submitting the signatures of the officers named in such further certificate.




     (d) Certificates of good standing for the Borrower from the Secretaries of State (or
other appropriate officials) of Montana and South Dakota, dated not more than 30 days prior
to the date hereof.




     (e) A certificate of the secretary or other appropriate officer of FIB (i) certifying
that attached to such certificate are true and correct copies of the Organizational
Documents of FIB, together with such copies, and (ii) certifying that the execution,
delivery and performance of the Security Agreement by the Borrower will not violate any law
or agreement applicable to FIB.




     (f) The projections and balance sheet described in Section 4.7 .




     (g) A signed copy of an opinion of counsel for the Borrower and FIB, addressed to the
Administrative Agent and the other Lender Parties, with respect to the matters contemplated
by the Loan Documents.




     (h) Evidence that, concurrent with the making of the Term Advances and the initial
Revolving Borrowing, (i) all indebtedness, if any, outstanding under the Existing Wells
Fargo Credit Agreement, will be paid in full, and Wells Fargo’s obligation to make advances
or grant other financial accommodations under the Existing Wells Fargo Credit Agreement will
be terminated, (ii) the Borrower will have received not less than $90,000,000 in proceeds of
Subordinated Debt and Trust Preferred Securities (of which not more than $20,000,000 shall
be proceeds of Subordinated Debt other than Trust Preferred Securities), (iii) First Western
Bancorp will accept the issuance of perpetual preferred stock of the Borrower having a
liquidation preference of not less than $50,000,000 in partial payment of the purchase price
with respect to the First Western Acquisition, (iv) all requisite approvals of any
applicable Governmental Authority and the Directors and Shareholders of First Western
Bancorp with respect to the First Western Acquisition have been obtained, and (v) the First
Western Acquisition will be fully consummated.




     (i) Evidence that the Borrower has expended not less than $45,000,000 of cash on hand
to consummate the First Western Acquisition. In making such determination, the Borrower may
include up to $20,000,000 of proceeds of the initial



-28-









 






Revolving Borrowing but shall not include any other proceeds of the indebtedness
arising hereunder or any proceeds of Subordinated Debt, Trust Preferred Securities or
perpetual preferred stock.




     (j) Payment of all fees and expenses then due and payable pursuant to Sections 2.10 and
9.6(a) hereof.



Section 3.2 Conditions Precedent to All Credit Extensions.



The obligation of the Lenders to effect any Credit Extension shall be subject to the further
conditions precedent that on the date of such Credit Extension:





     (a) The representations and warranties contained in Article IV and in each other Loan
Document are correct in all material respects on and as of the date of such Credit Extension
as though made on and as of such date.




     (b) No event has occurred and is continuing, or would result from such Credit
Extension, which constitutes a Default or an Event of Default.



ARTICLE IV

REPRESENTATIONS AND WARRANTIES





     The Borrower represents and warrants to the Lender Parties as follows:



Section 4.1 Legal Existence and Power; Name; Chief Executive Office.



Each of the Borrower and its Subsidiaries is a legal entity duly organized, validly existing and in
good standing under the laws of its respective state of organization, and is duly licensed or
qualified to transact business in all jurisdictions where the character of the property owned or
leased or the nature of the business transacted by it makes such licensing or qualification
necessary and where failure to obtain such licensing or qualification would have a Material Adverse
Effect. Each of the Borrower and its Subsidiaries has all requisite corporate (or comparable) power
and authority to conduct its business, to own its properties and to execute and deliver, and to
perform all of its obligations under, the Loan Documents to which it is a party. Within the last 12
months, the Borrower has done business solely under the names set forth in Schedule 4.1.




Section 4.2 Authorization for Borrowings; No Conflict as to Law or Agreements.



The execution, delivery and performance by the Borrower of the Loan Documents, and the Advances
from time to time obtained hereunder, have been duly authorized by all necessary corporate action
and do not and will not (a) require any consent or approval which has not been obtained prior to
the date hereof, (b) require any authorization, consent or approval by, or registration,
declaration or filing (other than filing of financing statements and recording of mortgages as
contemplated hereunder) with, or notice to, any governmental department, commission, board, bureau,
agency or instrumentality, domestic or foreign, or any third party, except such authorization,
consent, approval, registration, declaration, filing or notice as has been obtained, accomplished
or given prior to the date hereof, (c) violate any provision of any law, rule or regulation
(including but not limited to Regulations T, U or X of the Board of


-29-









 






Governors of the Federal Reserve System) or of any order, writ, injunction or decree presently in
effect having applicability to the Borrower or any Subsidiary or of the Organizational Documents of
the Borrower or any Subsidiary, (d) result in a breach of or constitute a default under any
indenture or loan or credit agreement or any other material agreement, lease or instrument to which
the Borrower or any Subsidiary is a party or by which it or its properties may be bound or
affected, or (e) result in, or require, the creation or imposition of any Lien of any nature upon
or with respect to any of the properties now owned or hereafter acquired by the Borrower or any
Subsidiary (other than as required hereunder in favor of the Administrative Agent or the Lender
Parties or as otherwise permitted by this Agreement).




Section 4.3 Legal Agreements.



Each of the Loan Documents constitutes the legal, valid and binding obligations and agreements of
the Borrower, enforceable against the Borrower in accordance its terms, except to the extent that
enforcement thereof may be limited by an applicable bankruptcy, insolvency or similar laws now or
hereafter in effect affecting creditors’ rights generally and by general principles of equity.




Section 4.4 Capitalization.



The holder, class and percentage interests of the ownership of all Subsidiaries of the Borrower
(both direct and indirect) are set forth and described in Schedule 4.4. All of the issued and
outstanding Capital Stock of the Borrower and its Subsidiaries is duly authorized, validly issued,
fully paid and nonassessable, except to the extent such Capital Stock of a Subsidiary may be
subject to assessment under the FDIA or the laws governing banks organized under the laws of the
state of Montana or South Dakota. No violation of any preemptive rights will be triggered by virtue
of the transactions contemplated by the Loan Documents.




Section 4.5 Financial Condition.



The Borrower has heretofore furnished to the Administrative Agent (i) the audited financial
statements of the Borrower and its Subsidiaries for the fiscal year ended December 31, 2006,
(ii) the unaudited financial statements of the Borrower and its Subsidiaries for the fiscal quarter
ended September 30, 2007, (iii) the *[audited]* financial statements of First Western Bancorp for
the fiscal year ended December 31, 2006, and (iv) the unaudited financial statements of FWBS, FWBW
and FWD for the fiscal quarter ended September 30, 2007. Those financial statements fairly present
the financial condition of the Borrower and its Subsidiaries and (to the best knowledge of the
Borrower) FWBS, FWBW and FWD on the dates thereof and the results of operations and cash flows for
the periods then ended (subject to year-end audit adjustments) and were prepared in accordance with
GAAP.




Section 4.6 Adverse Change.



There has been no material adverse change in the business, properties or condition (financial or
otherwise) of the Borrower and its Subsidiaries since the date of the last financial statement
referred to in Section 4.5.




-30-









 








Section 4.7 Projections.



The Borrower has heretofore furnished to the Administrative Agent (i) pro forma financial
statements reflecting the projected performance of the Borrower and its Subsidiaries, and (ii) a
pro forma balance sheet of the Borrower and its Subsidiaries as of the date hereof after giving
effect to the Advances hereunder and the First Western Acquisition. The Borrower has prepared such
financial statements and balance sheet in good faith based upon reasonable assumptions stated in
such pro forma financial statements.




Section 4.8 Litigation.



Except as set forth and described in Schedule 4.8, there are no actions, suits, investigations,
claims or proceedings pending or, to the knowledge of the Borrower, threatened against or affecting
the Borrower or any Subsidiary or the properties or business of the Borrower or any Subsidiary
before any court or governmental department, commission, board, bureau, agency or instrumentality,
domestic or foreign, which if determined adversely to such Person, (i) could reasonably be expected
to have a Material Adverse Effect, or (ii) would be required to be disclosed by the Borrower
pursuant to any applicable provision of the Securities Act of 1933, the Securities Exchange Act of
1934, or any applicable regulation thereunder.




Section 4.9 Regulation U.



No part of the proceeds of any Advance will be used to purchase or carry any margin stock or to
extend credit to others for the purpose of purchasing or carrying any margin stock, if such use
would violate, or cause the Loans or the Commitments to be in violation of, the provisions of the
Regulations of the Board of Governors of the Federal Reserve System.




Section 4.10 Taxes.



Each of the Borrower and its Subsidiaries has paid or caused to be paid to the proper authorities
when due all federal, state, foreign and local taxes required to be withheld by it. Each of the
Borrower and its Subsidiaries has filed all federal, state and local tax returns which are required
to be filed, and each of the Borrower and its Subsidiaries has paid or caused to be paid to the
respective taxing authorities all taxes as shown on said returns or on any assessment received by
it to the extent such taxes have become due, except for any such tax, assessment, charge or claim
whose amount, applicability or validity is being contested by the Borrower or such Subsidiary in
good faith and by proper proceedings and for which the Borrower and its Subsidiaries shall have set
aside adequate reserves in accordance with GAAP. Proper and accurate amounts have been withheld by
each of the Borrower and its Subsidiaries from its respective employees for all periods in
compliance with the tax, social security and any employment withholding provisions of applicable
federal and state law, and proper and accurate federal and state returns have been filed by each of
the Borrower and its Subsidiaries for all periods for which returns were due with respect to
employee income tax withholding, social security and unemployment taxes, and the amounts shown
thereon to be due and payable have been paid in full or provision therefor included on the books of
the Borrower and its Subsidiaries in accordance with and to the extent required by GAAP. The
Borrower is unaware of any pending investigation of the Borrower or any Subsidiary by any taxing
authority.




-31-









 








Section 4.11 Titles and Liens.



The Borrower or a Subsidiary has good and absolute fee or leasehold title, as the case may be, to
all properties and assets reflected in the latest consolidated balance sheets referred to in
Section 4.5, free and clear of all Liens, except for the following Liens (“Permitted Liens”): (a)
Liens permitted by Section 6.1, and (b) covenants, restrictions, rights, easements and minor
irregularities in title which do not (i) materially interfere with the business or operations of
the Borrower or any Subsidiary as presently conducted or (ii) materially impair the value of the
property to which they attach. In addition, no financing statement naming the Borrower or any
Subsidiary as debtor is on file in any office except to perfect only Liens permitted by Section
6.1.




Section 4.12 Plans.



Neither the Borrower nor any Subsidiary or ERISA Affiliate has received any notice or has any
knowledge to the effect that it is not in substantial compliance with any of the requirements of
ERISA, the Code or applicable state law with respect to any Plan. No Reportable Event exists in
connection with any Pension Plan. Each Plan which is intended to qualify under the Code is so
qualified, and no fact or circumstance exists which may have an adverse effect on the Plan’s
tax-qualified status that is not correctable under available government correction programs.
Neither the Borrower nor any Subsidiary or ERISA Affiliate has (i) any accumulated funding
deficiency (as defined in Section 302 of ERISA and Section 412 of the Code) under any Plan, whether
or not waived, (ii) any material liability under Section 4201 or 4243 of ERISA for any withdrawal,
partial withdrawal, reorganization or other event under any Multi-employer Plan or (iii) any
liability or knowledge of any facts or circumstances which could result in any liability to the
Pension Benefit Guaranty Corporation, the Internal Revenue Service, the Department of Labor or any
participant in connection with any Plan (other than routine claims for benefits under the Plan).
Other than claims for benefits in the ordinary course of business, there are no actions, suits,
disputes, arbitrations or other material claims pending or, to the Borrower’s knowledge, threatened
with respect to any Plan.




Section 4.13 Environmental Compliance.



Each of the Borrower and its Subsidiaries has obtained all permits, licenses and other
authorizations which are required under federal, state and local laws and regulations relating to
emissions, discharges, releases of pollutants, contaminants, hazardous or toxic materials, or
wastes into ambient air, surface water, ground water or land, or otherwise relating to the
manufacture, processing, distribution, use, treatment, storage, disposal, transport or handling of
pollutants, contaminants or hazardous or toxic materials or wastes (“Environmental Laws”) at its
facilities or in connection with the operation of its facilities. Each of the Borrower and its
Subsidiaries, and all activities of each of the Borrower and its Subsidiaries at its facilities,
comply with all material Environmental Laws and with all terms and conditions of any required
permits, licenses and authorizations applicable to such Person with respect thereto. Each of the
Borrower and its Subsidiaries is in compliance with all limitations, restrictions, conditions,
standards, prohibitions, requirements, obligations, schedules and timetables contained in
Environmental Laws or contained in any plan, order, decree, judgment or notice of which the
Borrower or any Subsidiary is aware and with respect to which noncompliance would have a Material
Adverse Effect. Neither the Borrower nor any Subsidiary is aware of, nor has the Borrower or any
Subsidiary received notice of, any events, conditions, circumstances, activities,


-32-









 






practices, incidents, actions or plans which may interfere with or prevent continued compliance
with, or which may give rise to any liability under, any Environmental Laws.




Section 4.14 Submissions to Lenders.



This Agreement, together with each other Loan Document and the exhibits, schedules, attachments,
written statements, documents, certificates and other items prepared or supplied to any Lender
Party by or on behalf of the Borrower or any Subsidiary with respect to the transactions
contemplated hereby or thereby, does not contain any untrue statement of a material fact or omit a
material fact necessary to make each statement contained herein or therein not misleading (and, as
to projections, valuations or pro forma financial statements, all of such information presented a
good faith belief based on reasonable assumptions as of the date made). There is no fact which the
Borrower has not disclosed to the Lender Parties in writing and of which any of its executive
officers, Directors or executive employees has actual knowledge and which has had or could
reasonably be expected to have a Material Adverse Effect. Notwithstanding the foregoing, the Lender
Parties acknowledge that the financial projections and pro forma information as to future periods
contained therein are subject to general business conditions and economic factors which may be
beyond the Borrower’s control or other unanticipated future events which could have an unforeseen
impact on the performance or condition of the Borrower and its Subsidiaries, it being understood
that all such financial projections will be subject to uncertainties and contingencies and that no
representation is given that any particular financial projection will ultimately be realized.




Section 4.15 Financial Solvency.



Both before and after giving effect to all of the loans, guaranties and other financial
accommodations contemplated herein, each of the Borrower and its Subsidiaries:





     (a) was not and will not be insolvent, as that term is used and defined in Section
101(32) of the United States Bankruptcy Code and Section 2 of the Uniform Fraudulent
Transfer Act;




     (b) does not have unreasonably small capital and is not engaged or about to engage in a
business or a transaction for which any remaining assets of such Person are unreasonably
small;




     (c) does not, by executing, delivering or performing its obligations under the Loan
Documents or by taking any action with respect thereto, intend to, nor believe that it will,
incur debts beyond its ability to pay them as they mature;




     (d) does not, by executing, delivering or performing its obligations under the Loan
Documents to which it is a party or by taking any action with respect thereto, intend to
hinder, delay or defraud either its present or future creditors; and




     (e) does not contemplate filing a petition in bankruptcy or for an arrangement or
reorganization or similar proceeding under any law any jurisdiction or country, and, to the
best knowledge of the Borrower, is not the subject of any bankruptcy or insolvency
proceedings or similar proceedings under any law of any jurisdiction or country threatened
or pending against such Person.



-33-









 





Section 4.16 Conflicts of Interest.



Neither the Borrower nor any Subsidiary nor, to the knowledge of the Borrower, any officer,
employee, agent or any other Person acting on behalf of any of the foregoing has, directly or
indirectly, given or agreed to give any money, gift or similar benefit (other than legal price
concessions to customers in the ordinary course of business) to any customer, supplier, employee or
agent of a customer or supplier, or official or employee of any governmental agency or
instrumentality of any government (domestic or foreign) or other Person who was, is, or may be in a
position to help or hinder the business of the Borrower or any Subsidiary (or assist in connection
with any actual or proposed transaction) which (a) might subject the Borrower or any Subsidiary to
any damage or penalty in any civil, criminal or governmental litigation or proceeding, (b) if not
given in the past, could have had a Material Adverse Effect or (c) if not continued in the future,
could reasonably be expected to have a Material Adverse Effect.




Section 4.17 Other Relationships.



To the best knowledge of the Borrower, except as set forth in Schedule 4.17 and except for
transactions on an arm’s-length basis for fair value and entered into in accordance with applicable
law:





     (a) Neither the Borrower or any Subsidiary nor any current Director or executive
officer of any of the foregoing has any interest (other than as non-controlling holders of
securities of a publicly-traded company), either directly or indirectly, in any Person
(whether as an employee, officer, director, shareholder, agent, independent contractor,
security holder, creditor, consultant or otherwise) that presently (i)  provides any
services or designs, produces or sells any products or product lines, or engages in any
activity which is the same, similar to or competitive with any activity or business in which
the Borrower or any Subsidiary is now engaged, (ii) is a supplier, customer or creditor of,
or has an existing contractual relationship with the Borrower or any Subsidiary, or
(iii) has any direct or indirect interest in any asset or property used by the Borrower or
any Subsidiary or any property, real or personal, tangible or intangible, that is necessary
or desirable for the conduct of the business of the Borrower or any Subsidiary.




     (b) No current or former Shareholder, Director or executive officer of the Borrower or
any Affiliate is, directly or indirectly through his or its affiliation with any other
Person, a party to any transaction (other than as an employee or for reasonable director
fees) with the Borrower or any Subsidiary providing for the furnishing of services by, or
rental of real or personal property from, or otherwise requiring cash payments to any such
Person.



Section 4.18 Licenses; Compliance with Laws, Other Agreements, etc.



Each of the Borrower and its Subsidiaries holds all material franchises, permits, licenses and
other rights, including all governmental approvals, authorizations, consents, licenses and permits,
which are necessary or required for the conduct of the businesses currently conducted by the
Borrower or such Subsidiary, as the case may be (collectively, the “Licenses”). The Borrower knows
of no basis upon which the renewal of any License would be denied in the future. Each


-34-









 






such License has been validly issued to the applicable Borrower or Subsidiary and is in full force
and effect, and no neither the Borrower nor any Subsidiary is in violation of any such License.
Neither the Borrower nor any Subsidiary is in violation of any term of its Organizational Documents
or any other contract, agreement, judgment or decree, and the Borrower and its Subsidiaries are in
full compliance with all applicable laws, regulations and rules the non-compliance with which would
have a Material Adverse Effect.




Section 4.19 Investment Company Act.



Neither the Borrower nor any company controlling the Borrower is required to be registered as an
“investment company” within the meaning of the Investment Company Act of 1940, as amended.




ARTICLE V

AFFIRMATIVE COVENANTS




          So long as any Obligations (other than contingent indemnity obligations) remain unpaid or any
Facility remains outstanding, the Borrower will comply with the following requirements, unless the
Required Lenders (or the Administrative Agent, with the consent of the Required Lenders) shall
otherwise consent in writing:




Section 5.1 Reporting Requirements.



The Borrower will deliver, or cause to be delivered, to each Lender each of the following, which
shall be in form and detail reasonably acceptable to the Required Lenders:





     (a) As soon as available, and in any event within 90 days after the end of each fiscal
year of the Borrower, audited annual financial statements of the Borrower and its
Subsidiaries with the unqualified opinion of McGladrey & Pullen, LLP or other independent
certified public accountants of nationally recognized standing selected by the Borrower and
acceptable to the Administrative Agent, which annual financial statements shall include the
balance sheets of the Borrower and its Subsidiaries as at the end of such fiscal year and
the related statements of income, retained earnings and cash flows of the Borrower and its
Subsidiaries for the fiscal year then ended, prepared on a consolidated basis, all in
reasonable detail and prepared in accordance with GAAP (it being understood that, in filing
the Borrower’s annual report on Form 10-K with the Securities and Exchange Commission within
the time and with the inclusion of the information specified herein, the Borrower shall
satisfy the foregoing requirements), together with (i) a report signed by such accountants
stating that in making the investigations necessary for said opinion they obtained no
knowledge, except as specifically stated, of any Default or Event of Default hereunder and
all relevant facts in reasonable detail to evidence, and the computations as to, whether or
not the Borrower is in compliance with the Financial Covenants; and (ii) a certificate of
the chief financial officer of the Borrower and one other officer of the Borrower,
substantially in the form of Exhibit H, stating that such financial statements have been
prepared in accordance with GAAP and whether or not such officer has knowledge of the
occurrence of any Default or Event of Default hereunder and, if so, stating in reasonable
detail the facts with respect thereto.



-35-









 






     (b) As soon as available and in any event within 45 days after the end of each fiscal
quarter of the Borrower, an unaudited interim balance sheet and statement of income, cash
flow and retained earnings of the Borrower and its Subsidiaries as at the end of and for
such fiscal quarter and for the year-to-date period then ended, prepared on a consolidated
basis, in reasonable detail and stating in comparative form the budget of the Borrower and
its Subsidiaries for such fiscal quarter and for the year-to-date period then ended and the
figures for the corresponding date and periods in the previous year, all prepared in
accordance with GAAP, subject to year-end audit adjustments (it being understood that, in
filing the Borrower’s quarterly report on Form 10-Q with the Securities and Exchange
Commission within the time and with the inclusion of the information specified herein, the
Borrower shall satisfy the foregoing requirements); and accompanied by a certificate of the
chief financial officer of the Borrower and one other officer of the Borrower, substantially
in the form of Exhibit H, stating (i) that such financial statements have been prepared in
accordance with GAAP, subject to year-end audit adjustments, (ii) whether or not such
officer has knowledge of the occurrence of any Default or Event of Default hereunder not
theretofore reported and remedied and, if so, stating in reasonable detail the facts with
respect thereto and (iii) all relevant facts in reasonable detail to evidence, and the
computations as to (A) the applicable Status for purposes of establishing the appropriate
margins hereunder and (B) whether or not the Borrower is in compliance with the Financial
Covenants.




     (c) As soon as available, and in any event within 90 days after the end of each fiscal
year of the Borrower, the Complete Annual Report of Domestic Holding Companies (FR Y-6
Report) required by the Federal Reserve Bank of Minneapolis.




     (d) As soon as available, and in any event no later than 45 days after the end of each
calendar quarter, the complete FR Y-9LP and FR Y-9C reports required to be filed by the
Borrower and its Subsidiaries quarterly with the Federal Reserve Banks of the districts
where they report.




     (e) As soon as available, and in any event within 45 days after the end of each
calendar quarter, the complete call report prepared by each Bank Subsidiary at the end of
such calendar quarter in compliance with the requirements of any federal or state regulatory
agency which has authority to examine such Bank Subsidiary, prepared in accordance with the
requirements imposed by the applicable regulatory authorities and applied on a basis
consistent with the accounting practices reflected in any previous call reports and similar
statements delivered to the Administrative Agent prior to the date of this Agreement.




     (f) Within 15 calendar days following service of the initial pleadings upon the
Borrower or any Subsidiary, notice of all litigation and of all proceedings before any
governmental or regulatory agency affecting the Borrower or any Subsidiary of the type
described in Section 4.8 (it being understood that the Borrower’s filing of a report with
respect thereto on Form 8-K with the Securities and Exchange Commission shall satisfy the
requirement of this paragraph).




     (g) As promptly as practicable (but in any event not later than 5 Business Days) after
an executive officer of the Borrower obtains knowledge of the



-36-









 






commencement of any regulatory action involving safety or soundness issues with respect
to the Borrower or any Subsidiary, notice of such action; and, unless prohibited by
applicable law or regulation, not less than 5 Business Days before entering into any
agreement or understanding involving any such issues, notice in writing thereof.




     (h) As promptly as practicable (but in any event not later than 5 Business Days) after
an executive officer of the Borrower obtains knowledge of the occurrence of a Default or
Event of Default hereunder, notice of such occurrence, together with a detailed statement by
a responsible officer of the Borrower setting forth the steps being taken by the Borrower to
cure the effect of such Default or Event of Default.




     (i) As promptly as practicable, and in any event within 30 days after the Borrower
knows or has reason to know that any Reportable Event with respect to any Pension Plan has
occurred, the Borrower will deliver to the Administrative Agent a statement of the
Borrower’s chief financial officer setting forth details as to such Reportable Event and the
action which the Borrower proposes to take with respect thereto, together with a copy of the
notice of such Reportable Event to the Pension Benefit Guaranty Corporation.




     (j) As promptly as practicable, and in any event within 10 days after the Borrower or
any Subsidiary fails to make any quarterly contribution required with respect to any Pension
Plan under Section 412(m) of the Code, the Borrower will deliver to the Administrative Agent
a statement of the Borrower’s chief financial officer setting forth details as to such
failure and the action which the Borrower proposes to take with respect thereto, together
with a copy of any notice of such failure required to be provided to the Pension Benefit
Guaranty Corporation.




     (k) As promptly as practicable, and in any event within 10 days after the Borrower
knows or has reason to know that the Borrower or any Subsidiary has or is reasonably
expected to have any liability under Section 4201 or 4243 of ERISA for any withdrawal,
partial withdrawal, reorganization or other event under any Multi-employer Plan, the
Borrower will deliver to the Administrative Agent a statement of the Borrower’s chief
financial officer setting forth details as to such liability and the action which Borrower
proposes to take with respect thereto.




     (l) Promptly upon obtaining knowledge thereof, notice of the violation by the Borrower
or any Subsidiary of any law, rule or regulation, the non-compliance with which could
reasonably be expected to have a Material Adverse Effect.




     (m) Promptly upon their distribution, copies of all proxy statements which the Borrower
shall have sent to its stockholders.




     (n) Promptly after the sending or filing thereof, copies of all regular and periodic
financial reports which the Borrower shall file with the Securities and Exchange Commission
or any national securities exchange.




     (o) Promptly, such additional information concerning the Borrower and its Subsidiaries
as the Administrative Agent may reasonably request.



-37-









 




All required deliveries pursuant to this Section 5.1 shall be made, to the extent possible, by
electronic means (e-mail transmission), followed by actual, originally executed (if required
hereunder) paper copies thereof.




Section 5.2 Books and Records; Inspection and Examination.



The Borrower will keep, and will cause each Subsidiary to keep, accurate books of record and
account for itself pertaining to its business and financial condition and such other matters as the
Administrative Agent may from time to time request in which true and complete entries will be made
in accordance with GAAP consistently applied and, upon request of and reasonable notice by any
Lender Party, will permit any officer, employee, attorney or accountant for any Lender Party (at
the applicable Lender Party’s sole cost and expense, unless a Default or Event of Default then
exists, in which case it shall be at the Borrower’s sole cost and expense) to audit, review, make
extracts from or copy any and all corporate and financial books and records of the Borrower and its
Subsidiaries at all reasonable times during ordinary business hours, to send and discuss with
account debtors and other obligors requests for verification of amounts owed to the Borrower or any
Subsidiary, and to discuss the affairs of the Borrower and its Subsidiaries with any of its
directors, officers, employees or agents. The Borrower will permit any Lender Party or its
employees, accountants, attorneys or agents, to examine and inspect any property of the Borrower
and its Subsidiaries at any time during ordinary business hours; provided, that each Lender Party
will use reasonable efforts to conduct (or have conducted) any such examination or inspection so as
to minimize disruptions to the operations of the Borrower and its Subsidiaries.




Section 5.3 Compliance with Laws.



The Borrower will, and will cause each Subsidiary to, (a) comply with the requirements of all
applicable laws and regulations including (but not limited to) all Environmental Laws and (b) use
and keep its assets, and will require that others use and keep its assets, only for lawful
purposes, without violation of any federal, state or local law, statute or ordinance. In addition,
and without limiting the foregoing sentence, the Borrower shall (i) ensure, and cause each
Subsidiary to ensure, that no Person who owns a controlling interest in or otherwise controls the
Borrower or any Subsidiary is or shall be listed on the Specially Designated Nationals and Blocked
Person List or other similar lists maintained by the Office of Foreign Assets Control (“OFAC”), the
Department of the Treasury or included in any Executive Orders, (ii) not use or permit the use of
the proceeds of any Advance to violate any of the foreign asset control regulations of OFAC or any
enabling statute or Executive Order relating thereto, and (iii) comply, and cause each Subsidiary
to comply, with all applicable Bank Secrecy Act (“BSA”) laws and regulations, as amended.




Section 5.4 Payment of Taxes and Other Claims.



The Borrower will pay or discharge, and will cause each Subsidiary to pay or discharge, when due,
(a) all taxes, assessments and governmental charges levied or imposed upon it or upon its income or
profits, or upon any properties belonging to it prior in each case to the date on which penalties
attach thereto, (b) all federal, state and local taxes required to be withheld by it, and (c) all
lawful claims for labor, materials and supplies which, if unpaid, might by law become a Lien or
charge upon any properties of the Borrower or any Subsidiary; provided, that neither the Borrower
nor any Subsidiary shall be required to pay any such tax, assessment, charge or claim


-38-









 






whose amount, applicability or validity is being contested in good faith by appropriate proceedings
and for which the Borrower and its Subsidiaries have set aside adequate reserves in accordance with
GAAP.




Section 5.5 Maintenance of Properties.



The Borrower will keep and maintain, and will cause each Subsidiary to keep and maintain, all of
its properties necessary or useful in its business in good condition, repair and working order
(normal wear and tear excepted); provided, however, that nothing in this Section 5.5 shall prevent
the Borrower or any Subsidiary from discontinuing the operation and maintenance of any of its
properties if such discontinuance is, in the reasonable judgment of the Borrower, desirable in the
conduct of such Person’s business and not disadvantageous in any material respect to the Lender
Parties. The Borrower will, and will cause each Subsidiary to, take all commercially reasonable
steps necessary to protect and maintain its Intellectual Property Rights. The Borrower will, and
will cause each Subsidiary to, take all commercially reasonable steps necessary to prosecute any
Person infringing its Intellectual Property Rights and to defend itself against any Person accusing
it of infringing any Person’s Intellectual Property Rights.




Section 5.6 Insurance.



The Borrower will obtain and at all times maintain, and will cause each Subsidiary to obtain and at
all times maintain, insurance with insurers believed by it to be responsible and reputable in such
amounts and against such risks as is usually carried by companies engaged in similar business and
owning similar properties in the same general areas in which it operates. Without limiting the
foregoing, the Borrower will or will cause its Bank Subsidiaries to maintain blanket bond coverage,
property and casualty coverage, and errors and omissions coverage as customary for banks.




Section 5.7 Preservation of Legal Existence.



The Borrower will preserve and maintain, and will cause each Subsidiary to preserve and maintain,
its legal existence and all of its rights, privileges and franchises necessary or desirable in the
normal conduct of its business and shall conduct its business in an orderly, efficient and regular
manner; provided, however, that nothing in the foregoing shall prohibit any merger or consolidation
not prohibited by Section 6.5.




Section 5.8 Double Leverage Ratio.



The Borrower will maintain its Double Leverage Ratio as of each Covenant Compliance Date at not
more than 1.25 to 1.




Section 5.9 Total Risk-Based Capital Ratio.



The Borrower will maintain Total Risk-Based Capital Ratio of the Borrower and its Subsidiaries
(determined on a consolidated basis) at not less than 10% as of each Covenant Compliance Date, and
will cause each Bank Subsidiary to maintain Total Risk-Based Capital Ratio at not less than 10% as
of each Covenant Compliance Date.




-39-









 








Section 5.10 Tier 1 Risk-Based Capital Ratio.



The Borrower will maintain Tier 1 Risk-Based Capital Ratio of the Borrower and its Subsidiaries
(determined on a consolidated basis) at not less than 6% as of each Covenant Compliance Date, and
will cause each Bank Subsidiary to maintain Tier 1 Risk-Based Capital Ratio at not less than 6% as
of each Covenant Compliance Date.




Section 5.11 Tier 1 Leverage Ratio.



The Borrower will maintain the Tier 1 Leverage Ratio of the Borrower and its Subsidiaries
(determined on a consolidated basis) at not less than 5% as of each Covenant Compliance Date, and
will cause each Bank Subsidiary to maintain its Tier 1 Leverage Ratio at not less than 5% as of
each Covenant Compliance Date.




Section 5.12 Allowance for Loan and Lease Losses.



The Borrower will maintain the allowance for loan and lease losses at not less than 100% of
Non-Performing Loans, determined for the Borrower and its Subsidiaries on a consolidated basis.




Section 5.13 Minimum Return on Assets.



The Borrower will maintain its Return on Assets, determined as of each Covenant Compliance Date, at
not less than 1.00%.




Section 5.14 Maximum Non-Performing Assets.



The Borrower will maintain Non-Performing Assets at an amount not more than 15% of Primary Equity
Capital, determined with respect to the Borrower and its Subsidiaries on a consolidated basis as of
the end of each calendar quarter.




Section 5.15 Material Subsidiaries.



The Borrower shall designate one or more Subsidiaries as Material Subsidiaries if, in the absence
of such designation, the aggregate assets of all Subsidiaries that are not Material Subsidiaries
would exceed 10% of the consolidated assets of the Borrower and its Subsidiaries.




ARTICLE VI

NEGATIVE COVENANTS




          So long as any Obligations (other than contingent indemnity obligations) remain unpaid or any
Facility remains outstanding, the Borrower will comply with the following requirements, unless the
Required Lenders (or the Administrative Agent, with the consent of the Required Lenders) shall
otherwise consent in writing:




Section 6.1 Liens.



The Borrower will not, and will not permit any Subsidiary to, create, incur or suffer to exist any
Lien or other charge or encumbrance of any nature on any of its assets, now owned or hereafter
acquired, or assign or otherwise convey any right to receive income or give its consent to the


-40-









 






subordination of any right or claim of the Borrower or any Subsidiary to any right or claim of any
other Person; excluding from the operation of the foregoing:





     (a) Liens in existence on the date hereof and listed in Schedule 6.1.




     (b) Liens for taxes or assessments or other governmental charges to the extent not
required to be paid by Section 5.4.




     (c) Materialmen’s, merchants’, carriers’, worker’s, repairer’s, landlord’s,
warehouseman’s or other like liens arising in the ordinary course of business to the extent
not required to be paid by Section 5.4.




     (d) Pledges or deposits to secure obligations under worker’s compensation laws,
unemployment insurance and social security laws, or to secure the performance of bids,
tenders, contracts (other than for the repayment of borrowed money) or leases or to secure
statutory obligations or surety or appeal bonds, or to secure indemnity, performance or
other similar bonds in the ordinary course of business.




     (e) Zoning restrictions, easements, licenses, restrictions on the use of real property
or minor irregularities in title thereto, which do not materially impair the use of such
property in the operation of the business of the Borrower or any Subsidiary or the value of
such property for the purpose of such business.




     (f) Liens granted to the Administrative Agent or the Lenders pursuant to the Security
Agreement.




     (g) Purchase money liens, including conditional sale agreements, capital lease
liabilities or other title retention agreements and leases which are in the nature of title
retention agreements, upon or in property acquired after the date hereof by the Borrower or
any Subsidiary, or Liens existing in such property at the time of the acquisition thereof,
provided that:




     (i) no such Lien extends or shall extend to or cover any property of the
Borrower or any Subsidiary other than the property then being acquired; and




     (ii) the aggregate principal amount of the debt secured by any such Lien shall
not exceed the cost of such property so acquired in connection therewith.




     (h) Liens granted by the Borrower’s Bank Subsidiaries in the ordinary course of their
banking business.




     (i) Bankers’ liens, rights of set off or similar rights as to accounts maintained with
a financial institution.




     (j) Liens not otherwise described in this Section 6.1, so long as the aggregate amount
of indebtedness secured by all such Liens does not at any time exceed $5,000,000.



-41-









 





Section 6.2 Debt.



The Borrower will not, and will not permit any Subsidiary to, incur, create, assume, permit or
suffer to exist, any debt, liability or obligation except:





     (a) Obligations arising hereunder.




     (b) Indebtedness in existence on the date hereof and listed in Schedule 6.2; together
with any extension, renewal or replacement thereof (so long as such indebtedness is not
increased above the amount outstanding immediately prior to giving effect to any such
extension, renewal or replacement).




     (c) Indebtedness incurred by the Borrower’s Bank Subsidiaries in the ordinary course of
their banking business.




     (d) Subordinated Debt.




     (e) Indebtedness of the Borrower or any of its Subsidiaries that may be treated as
regulatory capital of the Borrower or such Subsidiary.




     (f) Other indebtedness, so long as the aggregate principal balance of such indebtedness
outstanding does not at any time exceed $5,000,000.



Section 6.3 Guaranties.



The Borrower will not, and will not permit any Material Subsidiary to, assume, guarantee, endorse
or otherwise become directly or contingently liable in connection with any obligations of any other
Person, except:





     (a) The endorsement of negotiable instruments for deposit or collection or similar
transactions in the ordinary course of business.




     (b) Guaranties, endorsements and other direct or contingent liabilities in connection
with the obligations of other Persons in existence on the date hereof and listed in Schedule
6.3; together with any extension, renewal or replacement thereof (so long as such
indebtedness is not increased above the amount outstanding immediately prior to giving
effect to any such extension, renewal or replacement).




     (c) Guaranties of indebtedness of the Borrower or its Subsidiaries described in Section
6.2(e).




     (d) Guaranties issued by the Borrower’s Bank Subsidiaries in the ordinary course of
their banking business.




     (e) Other guaranties, so long as the aggregate principal balance of the indebtedness
guarantied thereby does not at any time exceed $5,000,000.



-42-









 





Section 6.4 Restricted Payments.



The Borrower will not, and will not permit any Subsidiary to, declare or make any Restricted
Payments, except that, so long as no Default or Event of Default then exists or would be caused
thereby:





     (a) The Borrower may declare and pay cash dividends to its Shareholders so long as the
aggregate amount of all such cash dividends paid in any fiscal year of the Borrower does not
exceed 37.5% of the Net Income of the Borrower and its Subsidiaries (determined on a
consolidated basis) during the immediately preceding fiscal year.




     (b) The Borrower may repurchase or redeem shares of its Capital Stock, so long as the
aggregate amount paid by the Borrower and its Subsidiaries for all such Capital Stock so
repurchased or redeemed in any single fiscal year of the Borrower, less the amount of any
cash proceeds received by the Borrower from the sale of Capital Stock during such fiscal
year, does not exceed 5% of the consolidated book net worth of the Borrower and its
Subsidiaries as of the end of the immediately preceding fiscal year.




     (c) A Trust Preferred Securities Subsidiary may make cash distributions on its Trust
Preferred Securities in accordance with the terms thereof.




     (d)Any Subsidiary may declare and pay dividends to the Borrower.



Section 6.5 Fundamental Changes.



The Borrower will not, and will not permit any Material Subsidiary to, liquidate, dissolve,
terminate or suspend its business operations or otherwise fail to operate its business in the
ordinary course, or merge into or consolidate with any other Person, or permit any other Person to
merge into or consolidate with it, or sell, lease, assign, transfer or otherwise dispose of assets,
or acquire all or substantially all of the assets of any other Person or any existing business
(whether existing as a separate entity, subsidiary, division, unit or otherwise) of any Person, or
agree to do any of the foregoing at any future time, except that the foregoing shall not prohibit:





     (a) The merger or consolidation of any wholly-owned Subsidiary other than FIB into any
other wholly-owned Subsidiary (including but not limited to (i) the merger of FWBS or FWBW
with and into each other, and (ii) so long as FIB is the surviving entity and all of the
Capital Stock of FIB remains subject to a first priority, perfected security interest in
favor of the Administrative Agent, the merger of FWBS or FWBW into FIB).




     (b) The merger or consolidation of any wholly-owned Subsidiary into the Borrower, so
long as the Borrower is the surviving entity.




     (c) The sale, lease or transfer by any wholly-owned Subsidiary other than FIB of all or
a substantial part of its assets to the Borrower or FIB, and the acquisition by the Borrower
or FIB of such assets.




     (d) Any other acquisition of assets, and any merger or consolidation with any other
Person, so long as



-43-









 






     (i) no Default or Event of Default exists at the time of such acquisition or
would be caused thereby;




     (ii) all authorizations of Governmental Authorities necessary to approve the
acquisition have been obtained and are in full force and effect, or will be obtained
contemporaneously with the making of any Advance for such purpose, and no further
approval, consent, order or authorization of or designation, registration,
declaration or filing with any Governmental Authority is required in connection
therewith;




     (iii) in the case of any consolidation or merger to which the Borrower is a
party, the Borrower is the surviving entity; and in the case of any consolidation or
merger to which FIB is a party, FIB is the surviving entity; and




     (iv) if the aggregate book value of the assets so acquired, or of the entity to
be merged or consolidated with the Borrower or a Subsidiary, is equal to or greater
than $250,000,000, the Borrower has notified the Administrative Agent of such
transaction not more than 5 Business Days after entering into a definitive agreement
with respect thereto, and has concurrently delivered to the Administrative Agent
(A) financial statements of the subject of such acquisition (or, in the case of
assets constituting less than all of the assets of a Person, the equivalent of
financial statements with respect to such assets) to the extent available, but in no
event for less than the immediately preceding twelve months, and (B) pro forma
financial statements reflecting the combined projected performance of the Borrower
and its Subsidiaries during the 12 months immediately following consummation of such
transaction, certified to the Administrative Agent and the Lenders as being the good
faith projections of the Borrower, in form and detail reasonably acceptable to the
Administrative Agent, which projections shall show that such acquisition will not
result in any Default or Event of Default hereunder;




     (e) The sale or other disposition of inventory, equipment and real property in the
ordinary course of business consistent with past practice.




     (f) Licenses of technology in the ordinary course of business.




     (g) The sale, lease, assignment, transfer or other disposition of assets outside the
ordinary course of business so long as the aggregate book value of all such assets so sold,
assigned, transferred or otherwise disposed of after the date hereof does not exceed 5% of
the consolidated book value of all assets of the Borrower and its Subsidiaries as of the
date hereof.



Section 6.6 Transactions With Affiliates.



The Borrower will not, and will not permit any Subsidiary to, enter into or be a party to any
transaction with any Affiliate except in the ordinary course of and pursuant to the reasonable
requirements of business of the Borrower and its Subsidiaries and upon fair and reasonable terms
that are no less favorable to the Borrower and its Subsidiaries than would be obtained in a
comparable arms-length transaction with a Person not an Affiliate.




-44-









 








Section 6.7 Restrictions on Nature of Business.



The Borrower will not, and will not permit any Subsidiary to, engage in any line of business
materially different from that presently engaged in by the Borrower or any Subsidiary and will not,
and will not permit any Subsidiary to, purchase, lease or otherwise acquire assets not related to
its business.




Section 6.8 Accounting.



The Borrower will not, and will not permit any Subsidiary to, adopt any material change in
accounting principles, other than as required by GAAP, and will not, and will not permit any
Subsidiary to, adopt, permit or consent to any change in its fiscal year.




Section 6.9 Hazardous Substances.



The Borrower will not cause or permit, and will not permit any Subsidiary to cause or permit, any
Hazardous Substances to be disposed of in any manner which might result in any material liability
to the Borrower or any Subsidiary on, under or at any real property which is operated by the
Borrower or any Subsidiary or in which the Borrower or any Subsidiary has any interest.




Section 6.10 Subordinated Debt.



The Borrower will not, and will not permit any Subsidiary to, issue any Subordinated Debt without
first obtaining the prior written consent of the Required Lenders (it being understood that the
Subordinated Debt set forth and described in Schedule 6.2 is hereby approved) and, if obtained,
will not, and will not permit any Subsidiary to, (a) make any payment of any principal, interest or
fees due under or acquire any Subordinated Debt in violation of the subordination provisions
related thereto or prepay, purchase or otherwise acquire any Subordinated Debt, (b) give security
for all or any part of any Subordinated Debt unless such security is expressly permitted and
contemplated under the relevant subordination provisions, (c) take any action whereby the
subordination of any Subordinated Debt or any part thereof to the Obligations might be terminated,
impaired or adversely affected, (d) omit to give the Administrative Agent prompt written notice of
any default under any Subordinated Debt by reason whereof any Subordinated Debt might become or be
declared to be immediately due and payable, (e) amend, supplement or otherwise modify any terms or
provisions of any documents evidencing or securing any Subordinated Debt without first obtaining
the prior written consent of the Required Lenders.




Section 6.11 Modification of Certain Agreements.



The Borrower will not, and will not permit any Subsidiary to, consent to any amendment, supplement
or other modification of any of the terms or provisions contained in, or applicable to, any note or
other agreement evidencing, giving rise to or otherwise related to any Subordinated Debt or any
indebtedness listed in Schedule 6.2, other than any amendment, supplement or other modification
which does not accelerate the timing or increase the amount of any payment due thereunder or
otherwise adversely affect the rights of the Lender Parties.




-45-









 








Section 6.12 Tax Consolidation.



The Borrower will not, and will not permit the Borrower or any Subsidiary to, file or consent to
the filing of, any consolidated income tax return with any Person other than the Borrower and its
Subsidiaries.




Section 6.13 Negative Pledges, Restrictive Agreements, etc.



The Borrower will not, and will not permit any Subsidiary to, enter into any agreement (excluding
this Agreement) prohibiting (a) the creation or assumption of any Lien upon its properties,
revenues or assets, whether now owned or hereafter acquired, or the ability of the Borrower or any
Subsidiary to amend or otherwise modify any Loan Document or (b) the ability of any Subsidiary to
make any payments directly or indirectly to the Borrower, by way of dividends, advances, repayments
of loans or advances, reimbursements of management and any other intercompany charges, expenses and
accruals or other returns on investments, or any other agreement or arrangement which restricts the
ability of any such Subsidiary to make any payment, directly or indirectly, to the Borrower.




ARTICLE VII

EVENTS OF DEFAULT; RIGHTS AND REMEDIES




Section 7.1 Events of Default.



“Event of Default”, wherever used herein, means any one of the following events:





     (a) Default in the payment of any principal of any Loan when it becomes due and
payable.




     (b) Default in the payment of any Obligations (other than principal of a Loan) when the
same becomes due and payable, and the continuation of such default for more than 3 Business
Days.




     (c) Default in the performance, or breach, of any Financial Covenant.




     (d) Default in the performance, or breach, of any covenant or agreement of the Borrower
in this Agreement (other than a covenant or agreement a default in whose performance or
whose breach is specifically dealt with elsewhere in this Section 7.1) or default in the
performance, or breach, of any covenant or agreement of the Borrower or any Subsidiary in
any other Loan Document (other than a covenant or agreement a default in whose performance
or whose breach is specifically dealt with elsewhere in this Section 7.1) and the
continuance of such default or breach for a period of 30 calendar days after the Borrower or
any Subsidiary has or should reasonably have had notice thereof.




     (e) Any Loan Document or any provision thereof ceases to be in full force and effect or
to give the Lender Parties the Liens and other rights purported to be created thereby; or
the Borrower shall attempt to reject, terminate or rescind its obligations under any Loan
Document, shall contest in any manner the validity, binding nature or



-46-









 






enforceability upon it of any Loan Document, or shall assert the invalidity, lack of
perfection or priority of any Lien purported to be created under any Loan Document.




     (f) (i) The Borrower or any Subsidiary shall be or become insolvent, however defined;
or admit in writing its inability to pay debts as they mature; or make a general assignment
for the benefit of its creditors; or cease to do business in the ordinary course; or
(ii) the Borrower or any Subsidiary shall institute any bankruptcy, insolvency,
reorganization, dissolution, liquidation or similar proceeding relating to itself under the
laws of any jurisdiction; or the Borrower or any Subsidiary shall take any action to
authorize any such proceeding; or any such proceeding shall be instituted against the
Borrower or any Subsidiary and shall not be dismissed or discharged within 60 days after its
commencement; or the Borrower or any Subsidiary shall admit all of the material allegations
with respect to any such proceeding; or an order for relief or similar order shall be
entered in any such proceeding; or (iii) the Borrower or any Subsidiary shall apply for the
appointment of any receiver, trustee or similar officer for itself or for all or
substantially all of its property; or the Borrower or any Subsidiary shall take any action
to authorize any such appointment; or an action for any such appointment shall be commenced
by any other Person and such action shall not be dismissed or discharged within 60 days
after its commencement; or the Borrower or any Subsidiary shall admit all of the material
allegations with respect to any such action; or any such appointment shall be made, with or
without the consent of the Borrower or such Subsidiary, as the case may be; or (iv) a
warrant, writ of attachment, execution or similar process shall be issued or levied against
any substantial part of the property of the Borrower or any Subsidiary and shall not be
fully released, stayed, vacated or bonded within 60 days after such issuance or levy.




     (g) A petition shall be filed by the Borrower or any Subsidiary under the United States
Bankruptcy Code naming the Borrower or any Subsidiary as debtor; or an involuntary petition
shall be filed against the Borrower or any Subsidiary under the United States Bankruptcy
Code, and such petition shall not have been dismissed within 60 days after such filing; or
an order for relief shall be entered in any case under the United States Bankruptcy Code
naming the Borrower or any Subsidiary as debtor.




     (h) Any representation or warranty made by the Borrower or any Subsidiary in any Loan
Document or by the Borrower (or any of its officers) in any request for a Credit Extension,
or in any other certificate, instrument, or statement contemplated by or made or delivered
pursuant to or in connection with any Loan Document, shall prove to have been incorrect in
any material respect when made.




     (i) The rendering against the Borrower or any Subsidiary of a final judgment, decree or
order for the payment of money in excess of $500,000 (unless the payment of such judgment is
fully insured) and the continuance of such judgment, decree or order unsatisfied and in
effect for any period of 30 consecutive calendar days without a stay of execution.




     (j) A writ of attachment, garnishment, levy or similar process seeking a recovery of
$500,000 or more shall be issued against or served on any Lender Party with respect to
(i) any property of the Borrower or any Subsidiary in the possession of such



-47-









 






Lender Party, or (ii) any indebtedness of any Lender Party to the Borrower or any
Subsidiary.




     (k) A default shall occur under any evidence of indebtedness, loan agreement, credit
agreement, security agreement, mortgage or deed of trust, bond, debenture, note,
securitization agreement or other evidence of indebtedness or similar obligation of the
Borrower or any Subsidiary or under any indenture or other instrument under which any such
evidence of indebtedness or similar obligation has been issued or by which it is governed
and the expiration of the applicable period of grace, if any, specified in such evidence of
indebtedness, indenture or other instrument.




     (l) Any guarantor of any Obligations shall attempt to reject, terminate or rescind its
applicable guaranty or shall contest in any manner the validity, binding nature or
enforceability of such guaranty.




     (m) The Borrower shall cease to be registered as a bank holding company under the BHCA,
or FIB, FWBS or FWBW shall cease to be an insured depository institution as defined in the
FDIA, or the deposits of FIB, FWBS or FWBW shall for any reason cease to be insured by the
Deposit Insurance Fund of the Federal Deposit Insurance Corporation to the maximum extent
permitted under the FDIA (provided, however, that no Event of Default shall be deemed to
occur under this paragraph (m) on account of any failure of FWBS or FWBW or their deposits
to be insured to the extent that such failure arises solely from the fact that FWBS or FWBW
no longer exists by reason of the merger of FWBS or FWBW into each other or into FIB in a
transaction not prohibited by Section 6.5).




     (n) There shall be issued against the Borrower or any Subsidiary any formal
administrative action, temporary or permanent, by any federal or state regulatory agency
having jurisdiction or control over the Borrower or such Subsidiary, such action taking the
form of (without limitation) (i) any directive citing conditions or activities deemed to be
unsafe or unsound or breaches of fiduciary duty or law or regulation; (ii) a cease and
desist order; (iii) the termination of insurance coverage of customer deposits by the
Federal Deposit Insurance Corporation; (iv) the suspension or removal of an executive
officer or director, or the prohibition of participation by any others in the business
affairs of the Borrower or such Subsidiary; (v) a capital maintenance agreement; or (vi) any
other regulatory action, agreement or understanding involving safety or soundness issues
with respect to the Borrower or any Subsidiary that the Required Lenders reasonably believe
may have a Material Adverse Effect.




     (o) Any Reportable Event, which the Administrative Agent or the Required Lenders
determine in good faith may constitute grounds for the termination of any Pension Plan or
for the appointment by the appropriate United States District Court of a trustee to
administer any Pension Plan, shall have occurred and be continuing 30 days after written
notice to such effect shall have been given to the Borrower by the Administrative Agent; or
a trustee shall have been appointed by an appropriate United States District Court to
administer any Pension Plan; or the Pension Benefit Guaranty Corporation shall have
instituted proceedings to terminate any Pension Plan or to appoint a trustee to administer
any Pension Plan; or the Borrower or any Subsidiary or any of its



-48-









 






ERISA Affiliates shall have filed for a distress termination of any Pension Plan under
Title IV of ERISA; or the Borrower or any Subsidiary or any of its ERISA Affiliates shall
have failed to make any quarterly contribution required with respect to any Pension Plan
under Section 412(m) of the Code, which the Administrative Agent or the Required Lenders
determine in good faith may by itself, or in combination with any such failures that the
Administrative Agent or the Required Lenders may determine are likely to occur in the
future, result in the imposition of a Lien on the Borrower or any Subsidiary’s assets in
favor of the Pension Plan; or any withdrawal, partial withdrawal, reorganization or other
event occurs with respect to a Multi-employer Plan which results or could reasonably be
expected to result in a material liability of the Borrower or any Subsidiary to the
Multi-employer Plan under Title IV of ERISA.




     (p)Any Change of Control shall occur.



Section 7.2 Rights and Remedies.



Upon the occurrence of an Event of Default or at any time thereafter until such Event of Default is
cured or waived to the written satisfaction of the Required Lenders, the Administrative Agent may,
with the consent of the Required Lenders, and shall, upon written request of the Required Lenders,
exercise any or all of the following rights and remedies:





     (a) By notice to the Borrower, declare the Commitments to be terminated, whereupon the
same shall forthwith terminate.




     (b) By notice to the Borrower, declare the entire unpaid principal amount of the Loans,
all interest accrued and unpaid thereon, and all other amounts payable under this Agreement
to be forthwith due and payable, whereupon the Loans, all such accrued interest and all such
amounts shall become and be forthwith due and payable, without presentment, demand, protest
or further notice of any kind, all of which are hereby expressly waived by the Borrower.




     (c) Without notice to the Borrower and without further action, apply any and all monies
owing by any Lender Party to the Borrower to the payment of the Loans, including interest
accrued thereon, and of all other Obligations then owing by the Borrower hereunder.




     (d) Apply for the employment of, or taking possession by, a trustee, receiver,
liquidator or other similar official of the Borrower to hold or liquidate all or any
substantial part of the properties or assets of the Borrower. The Borrower hereby consents
to such appointment and agrees to execute and deliver any and all documents requested by the
Administrative Agent relating to the appointment of such trustee, receiver, liquidator or
other similar official (whether by joining in a petition for the appointment of such an
official, by entering no contest to a petition for the appointment of such an official, or
otherwise, as appropriate under applicable law).




     (e) Exercise and enforce the rights and remedies available to any Lender Party under
any Loan Document.



-49-









 






     (f) Exercise any other rights and remedies available to any Lender Party by law or
agreement.


Notwithstanding the foregoing, upon the occurrence of an Event of Default described in
Section 7.1(f), (g) or (j), the entire unpaid principal amount of the Loans, all interest accrued
and unpaid thereon, and all other amounts payable under this Agreement shall be immediately due and
payable without presentment, demand, protest or notice of any kind. Notwithstanding any other
provision of the Loan Documents, no Lender Party (other than the Administrative Agent) may
individually exercise any rights under or with respect to the Loan Documents that arise after an
Event of Default without the consent of the Required Lenders.




Section 7.3 Right of Setoff.



If an Event of Default shall have occurred and shall be continuing, each Lender Party and each of
their Affiliates is hereby authorized at any time and from time to time, to the fullest extent
permitted by applicable law, to set off and apply any and all deposits (general or special, time or
demand, provisional or final, in whatever currency) at any time held and other obligations (in
whatever currency) at any time owing by such Lender Party or any such Affiliate to or for the
credit or the account of the Borrower against any and all of the obligations of such Borrower now
or hereafter existing under this Agreement or any other Loan Document to such Lender Party or any
such Affiliate, irrespective of whether or not such Lender Party shall have made any demand under
this Agreement or any other Loan Document and although such obligations of the Borrower may be
contingent or unmatured or are owed to a branch or office of such Lender Party different from the
branch or office holding such deposit or obligated on such indebtedness. The rights of each Lender
Party and its Affiliates under this Section are in addition to other rights and remedies (including
other rights of setoff) that such Lender Party or its Affiliates may have. Each Lender Party agrees
to notify the Borrower and the Administrative Agent promptly after any such setoff and application
by that Lender Party or its Affiliates, but the failure to give such notice shall not affect the
validity of such setoff and application.




ARTICLE VIII

AGREEMENT AMONG LENDERS AND ADMINISTRATIVE AGENT




Section 8.1 Authorization; Powers; Administrative Agent for Collateral Purposes.



Each Lender irrevocably appoints and authorizes the Administrative Agent to act as administrative
agent for and on behalf of such Lender to the extent provided herein, in any Loan Documents or in
any other document or instrument delivered hereunder or in connection herewith, and to take such
other actions as may be reasonably incidental thereto. The Administrative Agent agrees to act as
administrative agent for each Lender upon the express conditions contained in this Article VIII,
but in no event shall the Administrative Agent constitute a fiduciary of any Lender, nor shall the
Administrative Agent have any fiduciary responsibilities in respect of any Lender. In furtherance
of the foregoing, and not in limitation thereof, each Lender irrevocably (a) authorizes the
Administrative Agent to execute and deliver and perform those obligations under each of the Loan
Documents to which the Administrative Agent is a party as are specifically delegated to the
Administrative Agent, and to exercise all rights, powers and remedies as may be specifically
delegated hereunder or thereunder, together with such additional powers as may be reasonably
incidental thereto, (b) appoints the




-50-









 







Administrative Agent as nominal beneficiary or nominal secured party, as the case may be, under the
Loan Documents and all related UCC financing statements, and (c) authorizes the Administrative
Agent to act as collateral agent of and for such Lender for purposes of holding, perfecting and
disposing of Collateral under the Loan Documents. As to any matters not expressly provided for by
the Loan Documents, the Administrative Agent shall not be required to exercise any discretion or
take any action, but shall be required to act or to refrain from acting (and shall be fully
protected in so acting or refraining from acting) upon the instructions of the Required Lenders or,
if so required pursuant to Section 9.2, upon the instructions of all Lenders; provided, however,
that except for action expressly required of the Administrative Agent hereunder, the Administrative
Agent shall in all cases be fully justified in failing or refusing to act hereunder unless it shall
be indemnified to its satisfaction by the Lenders against any and all liability and expense which
may be incurred by it by reason of taking or continuing to take any such action, and the
Administrative Agent shall not in any event be required to take any action which is contrary to the
Loan Documents or applicable law.




Section 8.2 Application of Proceeds.



The Administrative Agent, after deduction of any costs of collection, as provided in Section 8.5,
shall remit to each Lender (to the extent a Lender is to share therein) such Lender’s pro rata
share of all payments of principal, interest and fees payable hereunder in accordance with such
Lender’s Percentage of the Facility under which such payments are received. Each Lender’s interest
under the Loan Documents shall be payable solely from payments, collections and proceeds actually
received by the Administrative Agent under the Loan Documents; and the Administrative Agent’s only
liability to a Lender with respect to any such payments, collections and proceeds shall be to
account for such Lender’s Percentage of such payments, collections and proceeds in accordance with
this Agreement. If the Administrative Agent is required for any reason to refund any such payments,
collections or proceeds, each Lender will refund to the Administrative Agent, upon demand, its
Percentage of such payments, collections or proceeds, together with its Percentage of interest or
penalties, if any, payable by the Administrative Agent in connection with such refund. If any
Lender becomes a Defaulting Lender, the Administrative Agent may remit payments received by it to
the other Lenders until such payments have reduced the aggregate amounts owed by the Borrower to
the extent that the aggregate amount of the Advances owing to such Defaulting Lender hereunder are
equal to its Percentage of the aggregate amounts of the Advances owing under the applicable
Facility to all of the Lenders hereunder. The foregoing provision is intended only to set forth
certain rules for the application of payments, proceeds and collections in the event that a Lender
has breached its obligations hereunder and shall not be deemed to excuse any Lender from such
obligations.




Section 8.3 Exculpation.



The Administrative Agent shall not be liable for any action taken or omitted to be taken by the
Administrative Agent in connection with the Loan Documents, except for its own gross negligence or
willful misconduct. The Administrative Agent shall be entitled to rely upon advice of counsel
concerning legal matters, the advice of independent public accountants with respect to accounting
matters and advice of other experts as to any other matters and upon any Loan Document and any
schedule, certificate, statement, report, notice or other writing which it reasonably believes to
be genuine or to have been presented by a proper Person. Neither the Administrative Agent nor any
of its directors, officers, employees or agents shall be responsible


-51-









 






or in any way liable for (a) any recitals, representations or warranties contained in, or for the
execution, validity, genuineness, effectiveness or enforceability of any Loan Document, or any
other instrument or document delivered hereunder or in connection herewith, or (b) the validity,
genuineness, perfection, effectiveness, enforceability, existence, value or enforcement of any
Collateral. The designation of Wells Fargo as administrative agent hereunder shall in no way impair
or affect any of the rights and powers of, or impose any duties or obligations upon, Wells Fargo in
its individual capacity as a Lender hereunder.




Section 8.4 Use of the Term “Administrative Agent”.



The term “Administrative Agent” is used herein in reference to the Administrative Agent merely as a
matter of custom. It is intended to reflect only an administrative relationship between the
Administrative Agent and the Lenders as an independent contracting party. However, the obligations
of the Administrative Agent shall be limited to those expressly set forth herein and in no event
shall the use of such term create or imply any fiduciary relationship or any other obligation
arising under the general law of agency.




Section 8.5 Reimbursement for Costs and Expenses.



All payments, collections and proceeds received or effected by the Administrative Agent may be
applied first to pay or reimburse the Administrative Agent for all reasonable costs and expenses at
any time incurred by or imposed upon the Administrative Agent in connection with this Agreement or
any other Loan Document (including but not limited to all reasonable attorney’s fees, foreclosure
expenses and advances made to protect the security of any Collateral, but excluding any costs,
expenses, damages or liabilities arising from the gross negligence or willful misconduct of the
Administrative Agent).




Section 8.6 Administrative Agent and Affiliates.



Wells Fargo shall have the same rights and powers in its capacity as a Lender hereunder as any
other Lender, and may exercise or refrain from exercising the same as though it were not the
Administrative Agent hereunder, and Wells Fargo and its affiliates may accept deposits from and
generally engage in any kind of business with the Borrower and its Affiliates as fully as if Wells
Fargo were not the Administrative Agent hereunder.




Section 8.7 Credit Investigation.



Each Lender acknowledges that it has made such inquiries and taken such care on its own behalf as
would have been the case had its Commitments been granted and its Advances made directly by such
Lender to the Borrower without the intervention of the Administrative Agent or any other Lender.
Each Lender agrees and acknowledges that no Lender Party makes any representation or warranty about
the creditworthiness of the Borrower or any Subsidiary or any other party to this Agreement or with
respect to the legality, validity, sufficiency or enforceability of this Agreement, any Loan
Document, any Collateral or any other instrument or document delivered hereunder or in connection
herewith.




-52-









 








Section 8.8 Defaults.



The Administrative Agent shall have no duty to inquire into any performance or failure to perform
by the Borrower and shall not be deemed to have knowledge of the occurrence of a Default or an
Event of Default (other than under Section 7.1(a) or 7.1(b)) hereof unless the Administrative Agent
has received notice from a Lender Party or the Borrower specifying the occurrence of such Default
or Event of Default. If the Administrative Agent receives such a notice of the occurrence of a
Default or an Event of Default, the Administrative Agent shall give prompt notice thereof to the
Lenders. In the event of any Default or Event of Default, the Administrative Agent (subject to
Section 8.1) shall take such actions with respect to such Default or Event of Default as shall be
directed by the Required Lenders; provided that, (a) the Administrative Agent shall not need the
consent or direction of the Required Lenders to provide such notices as may be required as a
prerequisite to a Default becoming an Event of Default and (b) unless and until the Administrative
Agent shall have received directions as contemplated herein, the Administrative Agent may take any
action, or refrain from taking any action, with respect to such Default of Event of Default as it
shall deem advisable.




Section 8.9 Obligations Several.



The obligations of each Lender Party hereunder are the several obligations of such Lender Party,
and no Lender Party shall be responsible for the obligations of any other Lender Party hereunder,
nor will the failure by any Lender Party to perform any of its obligations hereunder relieve any
other Lender Party from the performance of its obligations hereunder. Nothing contained in this
Agreement, and no action taken by any Lender Party pursuant hereto or in connection herewith or
pursuant to or in connection with the Loan Documents shall be deemed to constitute the Lender
Parties as a partnership, association, joint venture, or other entity.




Section 8.10 Resignation and Assignment of Administrative Agent.





     (a) The Administrative Agent may resign as such at any time upon at least 30 days’
prior notice to the Borrower and the Lender Parties. In the event of any resignation of the
Administrative Agent, the Required Lenders shall as promptly as practicable appoint a
successor Administrative Agent from among the Lenders (provided that if no Event of Default
then exists, the Borrower shall have the right to approve such successor agent, such
approval not to be unreasonably withheld). If no such successor Administrative Agent shall
have been so appointed by the Required Lenders and shall have accepted such appointment
within 30 days after the resigning Administrative Agent’s giving of notice of resignation,
then the resigning Administrative Agent may, on behalf of the Lenders, appoint a successor
Administrative Agent, which shall be a commercial bank organized under the laws of the
United States of America or of any State thereof (provided that if no Event of Default then
exists the Borrower shall have the right to approve such successor agent, such approval not
to be unreasonably withheld).




     (b) The Administrative Agent may, without the consent of the Borrower or the other
Lender Parties, assign its rights and obligations as Administrative Agent hereunder and
under the other Loan Documents to its parent or to any wholly owned subsidiary of its
parent, and upon such assignment, the former Administrative Agent shall be deemed



-53-









 






to have retired, and such parent or wholly owned subsidiary shall be deemed to be a
successor Administrative Agent.




     (c) Upon the acceptance of any appointment as Administrative Agent hereunder by a
successor Administrative Agent, such successor Administrative Agent shall thereupon be
entitled to receive from the prior Administrative Agent such documents of transfer and
assignment as such successor Administrative Agent may reasonably request and the resigning
or assigning Administrative Agent shall be discharged from its duties and obligations under
this Agreement to be performed after the time of transfer. After any resignation or
assignment pursuant to this Section 8.10, the provisions of this Section 8.10 shall inure to
the benefit of the retiring Administrative Agent as to any actions taken or omitted to be
taken by it while it was acting as Administrative Agent hereunder.



Section 8.11 Borrower not a Beneficiary or Party.



Except with respect to the limitation of liability applicable to the Lenders under Section 8.9, the
provisions and agreements in this Article VIII are solely among the Lender Parties, and the
Borrower shall not be considered a party thereto or a beneficiary thereof.




ARTICLE IX

MISCELLANEOUS




Section 9.1 No Waiver; Cumulative Remedies.



No failure or delay on the part of any Lender Party in exercising any right, power or remedy under
the Loan Documents shall operate as a waiver thereof; nor shall any single or partial exercise of
any such right, power or remedy preclude any other or further exercise thereof or the exercise of
any other right, power or remedy under the Loan Documents. The remedies provided in the Loan
Documents are cumulative and not exclusive of any remedies provided by law.




Section 9.2 Amendments, Requested Waivers, Etc.



No amendment, modification, termination or waiver of any provision of any Loan Document or consent
to any departure by the Borrower therefrom shall be effective unless the same shall be in writing
and signed by the Required Lenders and, if the rights or duties of the Administrative Agent are
affected thereby, by the Administrative Agent; provided, however, that no amendment, modification,
termination, waiver or consent shall do any of the following unless the same shall be in writing
and signed by the Administrative Agent and each Lender affected thereby (and, as to clauses (e),
(f), (g), (h) and (i) hereof, all Lenders shall be deemed affected): (a) change the amount of any
Commitment (except as permitted in accordance with Section 9.3(b)), (b) increase any Commitment,
(c) reduce the amount of any principal of or interest due on any Advances, the Commitment Fees
payable to a Lender hereunder, (d) postpone any date fixed for any payment of principal of or
interest on any outstanding Advances or the Commitment Fees payable to a Lender hereunder, or
postpone the scheduled date of expiration of any Commitment, (e) change the definition of “Required
Lenders,” (f) amend this Section 9.2 or any other provision of this Agreement requiring the consent
or other action of the Required Lenders or any particular Lender, (g) change the pro rata treatment
of the Lenders under Section 2.14, (h) release any guaranty of the Obligations, or (i) release,
subordinate or terminate any Lien in any material




-54-









 







portion of the Collateral. Any waiver or consent given hereunder shall be effective only in the
specific instance and for the specific purpose for which given. No notice to or demand on the
Borrower in any case shall entitle the Borrower to any other or further notice or demand in similar
or other circumstances.




Section 9.3 Successors and Assigns; Register.





     (a) Successors and Assigns Generally. The provisions of this Agreement shall be binding
upon and inure to the benefit of the parties hereto and their respective successors and
assigns permitted hereby, except that the Borrower may not assign or otherwise transfer any
of its rights or obligations hereunder without the prior written consent of the
Administrative Agent and each Lender, and no Lender may assign or otherwise transfer any of
its rights or obligations hereunder, except (i) to an assignee in accordance with the
provisions of paragraph (b) of this Section, (ii) by way of participation in accordance with
the provisions of paragraph (d) of this Section or (iii) by way of pledge or assignment of a
Lien subject to the restrictions of paragraph (f) of this Section (and any other attempted
assignment or transfer by any party hereto shall be null and void). Nothing in this
Agreement, express or implied, shall be construed to confer upon any Person (other than the
parties hereto, their respective successors and assigns permitted hereby, Participants to
the extent provided in paragraph (d) of this Section and, to the extent expressly
contemplated hereby, the Affiliates of each of the Administrative Agent and the Lenders) any
legal or equitable right, remedy or claim under or by reason of this Agreement.




     (b) Assignments by Lenders. Any Lender may at any time assign to one or more Eligible
Lenders all or a portion of its rights and obligations under this Agreement (including all
or a portion of its Commitments and the Loans at the time owing to it); provided that any
such assignment shall be subject to the following conditions:




     (i) Minimum Amounts.




     (A) In the case of an assignment of the entire remaining amount of the
assigning Lender’s Commitment and the Loans at the time owing to it or in
the case of an assignment to a Lender, no minimum amount need be assigned.




     (B) In any case not described in paragraph (b)(i)(A) of this Section,
the aggregate amount of the Commitment (which for this purpose includes
Loans outstanding thereunder) or, if the applicable Commitment is not then
in effect, the principal outstanding balance of the Loans of the assigning
Lender subject to each such assignment (determined as of the date the
Assignment and Assumption with respect to such assignment is delivered to
the Administrative Agent or, if “Trade Date” is specified in the Assignment
and Assumption, as of such Trade Date) shall not be less than $5,000,000.




     (ii) Proportionate Amounts. Each partial assignment shall be made as an
assignment of a proportionate part of all the assigning Lender’s rights and



-55-









 






obligations under this Agreement with respect to the Loans and the Commitment
assigned.




     (iii) Required Consents. No consent shall be required for any assignment except
as follows:




     (A) The consent of the Borrower (such consent not to be unreasonably
withheld or delayed) shall be required unless (x) a Default or Event of
Default has occurred and is continuing at the time of such assignment or (y)
such assignment is to a Lender, an Affiliate of a Lender or an Approved
Fund.




     (B) The consent of the Administrative Agent (such consent not to be
unreasonably withheld or delayed) shall be required for assignments in
respect of a Facility if such assignment is to a Person that is not a Lender
with a Commitment in respect of such Facility, an Affiliate of such a Lender
or an Approved Fund with respect to such a Lender.




     (iv) Assignment and Assumption. The parties to each assignment shall execute
and deliver to the Administrative Agent an Assignment and Assumption, together with
a processing and recordation fee of $5,000, and the assignee, if it is not a Lender,
shall deliver to the Administrative Agent an Administrative Questionnaire.




     (v) No Assignment to Borrower. No such assignment shall be made to the Borrower
or any of the Borrower’s Affiliates.




     (vi) No Assignment to Natural Persons. No such assignment shall be made to a
natural person.




Subject to acceptance and recording thereof by the Administrative Agent pursuant to
paragraph (c) of this Section, from and after the effective date specified in each
Assignment and Assumption, the assignee thereunder shall be a party to this Agreement and,
to the extent of the interest assigned by such Assignment and Assumption, have the rights
and obligations of a Lender under this Agreement, and the assigning Lender thereunder shall,
to the extent of the interest assigned by such Assignment and Assumption, be released from
its obligations under this Agreement (and, in the case of an Assignment and Assumption
covering all of the assigning Lender’s rights and obligations under this Agreement, such
Lender shall cease to be a party hereto) but shall continue to be entitled to the benefits
of Sections 2.15, (a) and 9.6 with respect to facts and circumstances occurring prior to the
effective date of such assignment. Any assignment or transfer by a Lender of rights or
obligations under this Agreement that does not comply with this paragraph shall be treated
for purposes of this Agreement as a sale by such Lender of a participation in such rights
and obligations in accordance with paragraph (d) of this Section.




     (c) Register. The Borrower hereby designates the Administrative Agent to serve as the
Borrower’s agent, solely for purposes of this Section 9.3(c), to maintain a register (the
“Register”) on which it will record the Commitments from time to time of



-56-









 






each of the Lenders, the Loans made by each of the Lenders and each repayment in
respect of the principal amount of the Loans of each Lender. Failure to make any such
recordation, or any error in such recordation, shall not affect the Borrower’s obligations
in respect of such Loans. With respect to any Lender, the transfer of any Commitment of such
Lender and the rights to the principal of, and interest on, any Loan shall not be effective
until such transfer is recorded on the Register maintained by the Administrative Agent with
respect to ownership of such Commitment and Loans and prior to such recordation all amounts
owing to the transferor with respect to such Commitment and Loans shall remain owing to the
transferor. The registration of assignment or transfer of all or part of any Commitment or
Loan shall be recorded by the Administrative Agent on the Register only upon the acceptance
by the Administrative Agent of a properly executed and delivered Assignment and Assumption
Agreement pursuant to Section 9.3(b). Coincident with the delivery of such an Assignment and
Assumption Agreement to the Administrative Agent for acceptance and registration of
assignment or transfer of all or part of a Loan, or as soon thereafter as practicable, the
assigning or transferor Lender shall surrender the Note (if any) evidencing such Commitment,
and thereupon one or more new Notes in the same aggregate principal amount shall be issued
to the assigning or transferor Lender and/or the new Lender at the request of any such
Lender.




     (d) Participations. Any Lender may at any time, without the consent of, or notice to,
the Borrower or the Administrative Agent, sell participations to any Person (other than a
natural person or the Borrower or any of the Borrower’s Affiliates or Subsidiaries) (each, a
“Participant”) in all or a portion of such Lender’s rights and/or obligations under this
Agreement (including all or a portion of its Commitment and/or the Loans owing to it);
provided that (i) such Lender’s obligations under this Agreement shall remain unchanged,
(ii) such Lender shall remain solely responsible to the other parties hereto for the
performance of such obligations and (iii) the Borrower, the Administrative Agent, the
Lenders shall continue to deal solely and directly with such Lender in connection with such
Lender’s rights and obligations under this Agreement. Any agreement or instrument pursuant
to which a Lender sells such a participation shall provide that such Lender shall retain the
sole right to enforce this Agreement and to approve any amendment, modification or waiver of
any provision of this Agreement; provided that such agreement or instrument may provide
that such Lender will not, without the consent of the Participant, agree to any amendment,
modification or waiver that would (i) forgive any indebtedness of the Borrower under this
Agreement or the Notes, (ii) agree to reduce the rate of interest charged under this
Agreement, or (iii) agree to extend the final maturity of any indebtedness evidenced by the
Notes, except as expressly provided by the terms of the Loan Documents, in each case to the
extent that such amendment, modification or waiver would affect such Participant. Subject to
paragraph (e) of this Section, the Borrower agrees that each Participant shall be entitled
to the benefits of Sections 2.15 and 2.16 to the same extent as if it were a Lender and had
acquired its interest by assignment pursuant to paragraph (b) of this Section. To the extent
permitted by law, each Participant also shall be entitled to the benefits of Section 7.3 as
though it were a Lender, provided such Participant agrees to be subject to Section 9.4 as
though it were a Lender.



-57-









 






     (e) Limitations upon Participant Rights. A Participant shall not be entitled to receive
any greater payment under Sections 2.15 and 2.16 than the applicable Lender would have been
entitled to receive with respect to the participation sold to such Participant, unless the
sale of the participation to such Participant is made with the Borrower’s prior written
consent. A Participant that would be a Foreign Lender if it were a Lender shall not be
entitled to the benefits of Section 2.16 unless the Borrower is notified of the
participation sold to such Participant and such Participant agrees, for the benefit of the
Borrower, to comply with Section 2.16(e) as though it were a Lender.




     (f) Certain Pledges. Any Lender may at any time pledge or assign a Lien in all or any
portion of its rights under this Agreement to secure obligations of such Lender, including
any pledge or assignment to secure obligations to a Federal Reserve Bank; provided that no
such pledge or assignment shall release such Lender from any of its obligations hereunder or
substitute any such pledgee or assignee for such Lender as a party hereto.



Section 9.4 Sharing of Payments by Lenders.



If any Lender shall, by exercising any right of setoff or counterclaim or otherwise, obtain payment
in respect of any principal of or interest on any of its Loans or other obligations hereunder
resulting in such Lender’s receiving payment of a proportion of the aggregate amount of its Loans
and accrued interest thereon or other such obligations greater than its pro rata share thereof as
provided herein, then the Lender receiving such greater proportion shall (a) notify the
Administrative Agent of such fact, and (b) purchase (for cash at face value) participations in the
Loans and such other obligations of the other Lenders, or make such other adjustments as shall be
equitable, so that the benefit of all such payments shall be shared by the Lenders ratably in
accordance with the aggregate amount of principal of and accrued interest on their respective Loans
and other amounts owing them, provided that:





     (a) if any such participations are purchased and all or any portion of the payment
giving rise thereto is recovered, such participations shall be rescinded and the purchase
price restored to the extent of such recovery, without interest; and




     (b) the provisions of this paragraph shall not be construed to apply to (x) any payment
made by the Borrower pursuant to and in accordance with the express terms of this Agreement
or (y) any payment obtained by a Lender as consideration for the assignment of or sale of a
participation in any of its Loans to any assignee or participant, other than to the Borrower
or any Subsidiary thereof (as to which the provisions of this paragraph shall apply).


The Borrower consents to the foregoing and agrees, to the extent it may effectively do so under
applicable law, that any Lender acquiring a participation pursuant to the foregoing arrangements
may exercise against the Borrower rights of setoff and counterclaim with respect to such
participation as fully as if such Lender were a direct creditor of the Borrower in the amount of
such participation.




-58-









 








Section 9.5 Notices; Distribution of Information Via Electronic Means.





     (a) Use of Platform to Distribute Communications. The Administrative Agent may make any
material delivered by the Borrower to the Administrative Agent, as well as any amendments,
waivers, consents, and other written information, documents, instruments and other materials
relating to the Borrower, or any of its Subsidiaries, or any other materials or matters
relating to any Loan Documents, or any of the transactions contemplated hereby or thereby
(collectively, the “Communications”) available to the Lender Parties by posting such notices
on an electronic delivery system such as IntraLinks or a substantially similar electronic
system (the “Platform”). The Borrower acknowledges that (i) the distribution of material
through an electronic medium is not necessarily secure and that there are confidentiality
and other risks associated with such distribution, (ii) the Platform is provided “as is” and
“as available” and (iii) neither the Administrative Agent nor any of its Affiliates warrants
the accuracy, completeness, timeliness, sufficiency, or sequencing of the Communications
posted on the Platform. The Administrative Agent and its Affiliates expressly disclaim with
respect to the Platform any liability for errors in transmission, incorrect or incomplete
downloading, delays in posting or delivery, or problems accessing the Communications posted
on the Platform and any liability for any losses, costs, expenses or liabilities that may be
suffered or incurred in connection with the Platform. No warranty of any kind, express,
implied or statutory, including any warranty of merchantability, fitness for a particular
purpose, non-infringement of third party rights or freedom from viruses or other code
defects, is made by the Administrative Agent or any of its Affiliates in connection with the
Platform.




     (b) Notice by Electronic Means. Each Lender agrees (i) on or before the date it becomes
a party to this Agreement, to notify the Administrative Agent in writing of the e-mail
address(es) to which a notice under this Agreement (a “Notice”) may be sent to it and from
time to time thereafter to ensure that the Administrative Agent has on record an effective
e-mail address for it and (ii) that any Notice may be sent to such e-mail address(es). Each
Lender agrees that an e-mail message notice to it (as provided in the previous sentence)
specifying that any Communication has been posted to the Platform shall for purposes of this
Agreement constitute effective delivery to such Lender of such information, documents or
other materials comprising such Communication.




     (c) Notices By Other Means. Except as otherwise expressly provided herein, all notices,
requests, demands and other communications provided for under the Loan Documents shall be in
writing (including facsimile transmission or e-mail) and shall be sent to the applicable
party at its address, e-mail address or facsimile number set forth on Exhibit A or on any
Administrative Questionnaire, or as to each party, at such other address, e-mail address or
facsimile number as shall be designated by such party in a written notice to the other party
complying as to delivery with the terms of this Section 9.5. All such notices, requests,
demands and other communications shall be effective (i) when received, if sent by facsimile,
e-mail, hand delivery or overnight courier, or (ii) three Business Days after the date when
sent by registered or certified mail, postage prepaid; provided, however, that notices or
requests to any Lender Party pursuant to any of the provisions of Article II shall not be
effective until received by such Lender Party.



-59-









 





Section 9.6 Expenses; Indemnity; Damage Waiver





     (a) Costs and Expenses. The Borrower shall pay (i) all reasonable out-of-pocket
expenses incurred by the Administrative Agent and its Affiliates (including the reasonable
fees, charges and disbursements of counsel for the Administrative Agent), in connection with
the syndication of the credit facility provided for herein and the preparation, negotiation,
execution, delivery and administration of this Agreement and the other Loan Documents or any
amendments, modifications or waivers of the provisions hereof or thereof (whether or not the
transactions contemplated hereby or thereby shall be consummated) (provided, however, that
the Borrower’s obligation to reimburse the Administrative Agent under this paragraph (a) for
fees of counsel through the date hereof shall not exceed $50,000, plus related expenses
(including but not limited to UCC search fees and photocopying and similar charges)), and
(ii) all out-of-pocket expenses incurred by the Administrative Agent or any Lender
(including the fees, charges and disbursements of any counsel for the Administrative Agent
or any Lender) in connection with the enforcement or protection of its rights (A) in
connection with this Agreement and the other Loan Documents, including its rights under this
Section 9.6, or (B) in connection with the Obligations, including all such out-of-pocket
expenses incurred during any workout, restructuring or negotiations in respect of the
Obligations.




     (b) Indemnification by the Borrower. The Borrower shall indemnify each Lender Party
and each Related Party of any Lender Party (each such Person being called an “Indemnitee”)
against, and hold each Indemnitee harmless from, any and all losses, claims, damages,
liabilities and related expenses (including the fees, charges and disbursements of any
counsel for any Indemnitee) incurred by any Indemnitee or asserted against any Indemnitee by
any third party or by the Borrower or any Subsidiary arising out of, in connection with, or
as a result of (i) the execution or delivery of this Agreement, any other Loan Document or
any agreement or instrument contemplated hereby or thereby, the performance by the parties
hereto of their respective obligations hereunder or thereunder or the consummation of the
transactions contemplated hereby or thereby, (ii) the Loans or the use or proposed use of
the proceeds therefrom, (iii) any actual or alleged presence or release of Hazardous
Substances on or from any property owned or operated by the Borrower or any Subsidiary, or
any liability arising from any alleged breach of Environmental Laws related in any way to
the Borrower or any Subsidiary, or (iv) any actual or prospective claim, litigation,
investigation or proceeding relating to any of the foregoing, whether based on contract,
tort or any other theory, whether brought by a third party or by the Borrower or any
Subsidiary, and regardless of whether any Indemnitee is a party thereto, provided
that such indemnity shall not, as to any Indemnitee, be available to the extent that such
losses, claims, damages, liabilities or related expenses (x) are determined by a court of
competent jurisdiction by final and nonappealable judgment to have resulted from the gross
negligence or willful misconduct of such Indemnitee or (y) result from a claim brought by
the Borrower or any Subsidiary against an Indemnitee for breach in bad faith of such
Indemnitee’s obligations hereunder or under any other Loan Document, if the Borrower or a
Subsidiary, as the case may be, has obtained a final and nonappealable judgment in its favor
on such claim as determined by a court of competent jurisdiction.



-60-









 






     (c) Reimbursement by Lenders. To the extent that the Borrower for any reason fails to
indefeasibly pay any amount required under paragraph (a) or (b) of this Section 9.6 to be
paid by it to the Administrative Agent (or any sub-agent thereof), or any Related Party of
any of the foregoing, each Lender severally agrees to pay to the Administrative Agent (or
any such sub-agent) or such Related Party, as the case may be, such Lender’s Percentage
(determined as of the time that the applicable unreimbursed expense or indemnity payment is
sought) of such unpaid amount, provided that the unreimbursed expense or indemnified
loss, claim, damage, liability or related expense, as the case may be, was incurred by or
asserted against the Administrative Agent (or any such sub-agent) in its capacity as such,
or against any Related Party of any of the foregoing acting for the Administrative Agent (or
any such sub-agent) in connection with such capacity. The obligations of the Lenders under
this paragraph (c) are subject to the provisions of Section 8.9.




     (d) Waiver of Consequential Damages, Etc. To the fullest extent permitted by
applicable law, the Borrower shall not assert, and hereby waives, any claim against any
Indemnitee, on any theory of liability, for special, indirect, consequential or punitive
damages (as opposed to direct or actual damages) arising out of, in connection with, or as a
result of, this Agreement, any other Loan Document or any agreement or instrument
contemplated hereby, the transactions contemplated hereby or thereby, the Loans or the use
of the proceeds thereof. No Indemnitee referred to in paragraph (b) above shall be liable
for any damages arising from the use by unintended recipients of any information or other
materials distributed by it through telecommunications, electronic or other information
transmission systems in connection with this Agreement or the other Loan Documents or the
transactions contemplated hereby or thereby.




     (e) Payments. All amounts due under this Section 9.6 shall be payable promptly after
demand therefor.




     (f) Survival. The agreements in this Section 9.6 shall survive the resignation of the
Administrative Agent, the replacement of any Lender, the termination in full of all of the
Commitments and the payment, satisfaction or discharge in full of all the other Obligations.



Section 9.7 Replacement of Non-Consenting Lender.



If any Lender (a “Non-Consenting Lender”) refuses to consent to an amendment to or waiver of any
Loan Document or provision thereof, which amendment or waiver requires unanimous consent of all the
Lenders, or all the Lenders with a Commitment for a particular Facility, in order to be effective,
then the Administrative Agent may or the Borrower may (but neither shall be obligated to), upon
notice to the Non-Consenting Lender (and the Administrative Agent, if applicable), require the
Non-Consenting Lender to assign and delegate, without recourse (in accordance with and subject to
the restrictions contained in Section 9.3) all of its interests, rights, duties and obligations
under this Agreement and the Loan Documents to an Eligible Lender that shall assume such
obligations (which assignee may be a Lender, if a Lender accepts such assignment); provided that:




-61-









 









     (a) if it is an assignment at the request of the Borrower, the Borrower shall have
received the prior written consent of the Administrative Agent, which consent shall not
unreasonably be withheld,




     (b) if it is an assignment at the request of the Administrative Agent and there is no
Event of Default, the Borrower shall have consented to such assignment, which consents shall
not be unreasonably withheld,




     (c) the interests, rights, duties and obligations of all Non-Consenting Lenders are
similarly assigned to Eligible Lenders, and




     (d) the Non-Consenting Lender shall have received payment of an amount equal to the
outstanding principal of its Loans, accrued interest thereon, accrued fees and all other
amounts payable to it hereunder and under the other Loan Documents, from the Eligible Lender
(to the extent of such outstanding principal, accrued interest and accrued fees) or the
Borrower (in the case of all other amounts).



Section 9.8 Governing Law; Jurisdiction; Waiver of Jury Trial.





     (a) Governing Law. The Loan Documents shall be governed by, and construed in accordance
with, the laws of the State of Minnesota (other than its conflicts of laws rules), except to
the extent the law of any other jurisdiction applies as to the perfection or enforcement of
the Lenders’ Lien in any Collateral and except to the extent expressly provided to the
contrary in any Loan Document.




     (b) Jurisdiction. The Borrower hereby irrevocably submits to the jurisdiction of any
state or federal court sitting in Hennepin County, Minnesota in any action or proceeding
arising out of or relating to this Agreement or any of the other Loan Documents, and the
Borrower hereby irrevocably agrees that all claims in respect of such action or proceeding
may be heard and determined in such state or federal court. The Borrower hereby irrevocably
waives, to the fullest extent it may effectively do so, the defense of an inconvenient forum
to the maintenance of such action or proceeding. The Borrower irrevocably consents to the
service of copies of the summons and complaint and any other process which may be served in
any such action or proceeding by the mailing of copies of such process to the Borrower at
its addresses specified in Section 9.5 above. The Borrower agrees that a final judgment in
any such action or proceeding may be enforced in other jurisdictions by suit on the judgment
or in any other manner provided by law. Nothing in this Section 9.8(b) shall affect the
right of the Administrative Agent or any Lender Party to serve legal process in any other
manner permitted by law or affect the right of the Administrative Agent or any Lender Party
to bring any action or proceeding against the Borrower or its property in the courts of
other jurisdictions.




     (c) WAIVER OF JURY TRIAL. THE BORROWER AND THE LENDER PARTIES HEREBY IRREVOCABLY WAIVE
ALL RIGHT TO TRIAL BY JURY IN ANY ACTION, PROCEEDING OR COUNTERCLAIM ARISING OUT OF OR
RELATING TO ANY LOAN DOCUMENT OR ANY INSTRUMENT OR DOCUMENT DELIVERED THEREUNDER.



-62-









 





Section 9.9 Integration; Inconsistency.



This Agreement, together with the Loan Documents, comprise the final and complete integration of
all prior expressions by the parties hereto with respect to the subject matter hereof and shall
constitute the entire agreement among the parties hereto with respect to such subject matter,
superseding all prior oral or written understandings. If any provision of a Loan Document is
inconsistent with or conflicts with a comparable or similar provision appearing in this Agreement,
the comparable or similar provision in this Agreement shall govern.




Section 9.10 Agreement Effectiveness.



This Agreement shall become effective upon delivery of fully executed counterparts hereof to each
of the parties hereto.




Section 9.11 Advice from Independent Counsel.



The parties hereto understand that this Agreement is a legally binding agreement that may affect
such party’s rights. Each party hereto represents to the others that it has received legal advice
from counsel of its choice regarding the meaning and legal significance of this Agreement and that
it is satisfied with its legal counsel and the advice received from it.




Section 9.12 Judicial Interpretation.



Should any provision of this Agreement require judicial interpretation, it is agreed that a court
interpreting or construing the same shall not apply a presumption that the terms hereof shall be
more strictly construed against any Person by reason of the rule of construction that a document is
to be construed more strictly against the Person who itself through its agent prepared the same, it
being agreed that all parties hereto have participated in the preparation of this Agreement.




Section 9.13 Binding Effect; No Assignment by Borrower.



This Agreement shall be binding upon and inure to the benefit of the Borrower, the Lender Parties
and their respective successors and assigns; provided, except that the Borrower may not assign any
or all of its rights or obligations hereunder or any of its interest herein without the prior
written consent of the Required Lenders.




Section 9.14 Severability of Provisions.



Any provision of this Agreement which is prohibited or unenforceable shall be ineffective to the
extent of such prohibition or unenforceability without invalidating the remaining provisions
hereof.




Section 9.15 Headings.



Article and Section headings in this Agreement are included herein for convenience of reference
only and shall not constitute a part of this Agreement for any other purpose.




Section 9.16 Counterparts.



This Agreement and the other Loan Documents may be executed in any number of counterparts, each of
which when so executed and delivered shall be deemed to be an original and all of which


-63-









 






counterparts of this Agreement or such other Loan Document, as the case may be, taken together,
shall constitute but one and the same instrument.




Section 9.17 Customer Identification – USA Patriot Act Notice.



The Administrative Agent hereby notifies the Borrower that pursuant to the requirements of the USA
Patriot Act (Title III of Pub. L. 107-56, signed into law October 26, 2001) (the “Act”), and the
Administrative Agent’s policies and practices, each Lender is required to obtain, verify and record
certain information and documentation that identifies the Borrower and each Subsidiary, which
information includes the name and address of the Borrower and each Subsidiary and such other
information that will allow each Lender to identify the Borrower and each Subsidiary in accordance
with the Act.




Signature Pages Follow




-64-









 








          IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be executed by their
respective officers thereunto duly authorized, as of the date first above written.




	 	 	 	 	 
	 	FIRST INTERSTATE BANCSYSTEM, INC.

 	 
	 	By:  	/s/ TERRILL R. MOORE
 	 
	 	 	Name:  	Terrill R. Moore 	 
	 	 	Title:  	Executive Vice President and Chief Financial Officer 
	 
	 



Signature Page to Credit Agreement





 









 





	 	 	 	 	 
	 	WELLS FARGO BANK, NATIONAL ASSOCIATION,

     as Administrative Agent and Lender

 	 
	 	By:  	/s/ CYNTHIA M. SPAGNOLA
 	 
	 	 	Name:  	Cynthia M. Spagnola 	 
	 	 	Title:  	Vice President 	 
	 



Signature Page to Credit Agreement





 









 





	 	 	 	 	 	 
	 	U.S. BANK NATIONAL ASSOCIATION

 	 
	 	By 	/s/ STEPHEN J. MOORE
 	 
	 	 	 	 
	 	 	Name:  	Stephen J. Moore 	 
	 	 	Title:  	Senior Vice President 	 



Signature Page to Credit Agreement





 









 





	 	 	 	 	 	 
	 	FIRST TENNESSEE BANK, NATIONAL ASSOCIATION

 	 
	 	By	/s/ DAVID S. WORK
 	 
	 	 	 	 
	 	 	Name:  	David S. Work 	 
	 	 	Title:  	Executive Vice President 	 



Signature Page to Credit Agreement




 









 








	 	 	 	 	 	 
	 	JPMORGAN CHASE BANK, NATIONAL ASSOCIATION

 	 
	 	By	/s/ MATTHEW ROAN
 	 
	 	 	 	 
	 	 	Name:  	Matthew Roan 	 
	 	 	Title:  	Vice President 	 



Signature Page to Credit Agreement




 









 








EXHIBITS AND SCHEDULES




			
	Exhibit A
	 	Commitments and Addresses
	Exhibit B
	 	Pricing Grid
	Exhibit C
	 	Revolving Note
	Exhibit D
	 	Term Note
	Exhibit E
	 	Revolving Facility Borrowing Request
	Exhibit F
	 	Notice of Conversion to LIBO Rate
	Exhibit G
	 	Notice of Rollover of LIBO Rate
	Exhibit H
	 	Certificate of Officer as to Financial Statements
	Exhibit I
	 	Assignment and Assumption
	 	 	 
	Schedule 4.1
	 	Doing Business Names
	Schedule 4.4
	 	Subsidiaries
	Schedule 4.8
	 	Litigation
	Schedule 4.17
	 	Other Relationships
	Schedule 6.1
	 	Outstanding Liens
	Schedule 6.2
	 	Outstanding Indebtedness
	Schedule 6.3
	 	Outstanding Guaranties






 









 





Exhibit A




COMMITMENTS AND ADDRESSES




	 	 	 	 	 
	Name	 	Commitment Amounts	 	Notice Address
	First Interstate BancSystem, Inc.

	 	N/A
	 	First Interstate BancSystem, Inc.

401 N. 31st Street

Suite 1800

Billings, MT 59101

Attention: Terrill R. Moore

Facsimile: 406-255-5350

E-mail: tmoore@fib.com
	 
	 	 	 	 
	Wells Fargo Bank, National 

Association, as 

Administrative Agent

	 	N/A
	 	Wells Fargo Bank, National
Association

MAC C7301-02E

2nd Floor

1740 Broadway

Denver, CO 80274-0001

Attention: Cynthia M Spagnola

Facsimile: 303-863-4909

E-mail: spagnoc@wellsfargo.com
	 
	 	 	 	 
	Wells Fargo Bank, National 

Association, as a Lender

	 	Revolving
Commitment:

$9,210,526.32


Term Commitment:


$18,421,052.63
	 	Wells Fargo Bank, National
Association

MAC C7301-02E

2nd Floor

1740 Broadway

Denver, CO 80274-0001

Attention: Cynthia M Spagnola

Facsimile: 303-863-4909

E-mail: spagnoc@wellsfargo.com
	 
	 	 	 	 
	U.S. Bank National Association

	 	Revolving
Commitment:


$5,263,157.89


Term Commitment:


$10,526,315.79
	 	U.S. Bank National Association

EP-MN-S9CB

101 E. 5th Street

St. Paul, MN 55101

Attention: Steve Moore

Facsimile: 651-466-8270

E-mail: steve.moore@usbank.com
	 
	 	 	 	 
	First Tennessee Bank, 

National Association

	 	Revolving
Commitment:

$5,263,157.89


Term Commitment:


$10,526,315.79
	 	First Tennessee Bank, National

   Association

845 Crossover Lane, Suite 150

Memphis, TN 38117

Attention: Wade Rhea

Facsimile: 901-435-7983

E-mail: wade.rhea@ftnfinancial.com






 









 






	 	 	 	 	 
	Name	 	Commitment Amounts	 	Notice Address
	JPMorgan Chase Bank, National 

Association

	 	Revolving
Commitment:


$5,263,157.89


Term Commitment:


$10,526,315.79
	 	JPMorgan Chase Bank, National
Association

10 S. Dearborn

Chicago IL

Attention: Donnell Cole

Facsimile: 312-732-7002

E-mail: donnell.x.cole@chase.com






 









 





Exhibit B




Pricing Grid




	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	 	 	Summary Criteria	 	 	 	 	 	 
	Level	 	(Funded Debt Ratio)	 	LIBO Rate Margin	 	Floating Rate Margin	 	Commitment Fee
	I
	 	 	< 1.00	 	 	 	1.125	%	 	 	0	%	 	 	0.125	%
	II
	 	> 1.00 but < 2.00	 	 	1.250	%	 	 	0	%	 	 	0.150	%
	III
	 	 	> 2.00	 	 	 	1.375	%	 	 	0	%	 	 	0.175	%






          “Level I Status” exists if, as of the date of determination, the Funded Debt Ratio of the
Borrower and its Subsidiaries is less than 1.00 to 1.




          “Level II Status” exists if, as of the date of determination, the Funded Debt Ratio of the
Borrower and its Subsidiaries is 1.00 to 1 or greater, but less than 2.00 to 1.




          “Level III Status” exists if, as of the date of determination, the Funded Debt Ratio of the
Borrower and its Subsidiaries is 2.00 to 1 or greater.




 









 








Exhibit C




Revolving Note




			
	$                    
	 	                                        ,                     






                    , 200     




          For value received, First Interstate BancSystem, Inc., a Montana corporation (the “Borrower”),
promises to pay to the order of
                                                             (the “Lender”), at such place as
the Administrative Agent under the Credit Agreement defined below may from time to time designate
in writing, in lawful money of the United States of America and in immediately available funds, the
principal sum
of                                         Dollars ($                    ) or, if less, the aggregate unpaid
principal amount of all Revolving Advances (as defined in the Credit Agreement) made by the Lender
to the Borrower under the Credit Agreement dated January 10, 2008 by and among the Borrower, the
Lender, certain other Lenders from time to time party thereto and Wells Fargo Bank, National
Association, as Administrative Agent (as the same may be amended, supplemented or otherwise
modified from time to time, the “Credit Agreement”), together with interest on the unpaid principal
balance hereof at such interest rates and payable at such times as are specified in the Credit
Agreement.




          This Note is a Revolving Note as defined in the Credit Agreement, and is issued subject, and
pursuant, to the Credit Agreement, which among other things, provides for the amount and date of
payments of principal and interest required hereunder, acceleration of the maturity hereof upon the
occurrence of an Event of Default (as defined in the Credit Agreement), and prepayment hereof upon
the occurrence of certain events.




          The Borrower shall pay all costs of collection, including reasonable attorneys’ fees and legal
expenses, if this Note is not paid when due, whether or not legal proceedings are commenced.




          Presentment or other demand for payment, notice of dishonor and protest are expressly waived.




	 	 	 	 	 	 	 	 	 
	 	 	FIRST INTERSTATE BANCSYSTEM, INC.	 	 
	 
	 	 	 	 	 	 	 	 
	 

	 	By:	 	 	 	 	 	 
	 	 	 	 	 	 	 
	 

	 	 	 	Name:	 	 	 	 
	 

	 	 	 	 	 	 	 	 
	 

	 	 	 	Title:	 	 	 	 
	 

	 	 	 	 	 	 	 	 





 









 





Exhibit D




Term Note




			
	$                    
	 	                                        ,                     






                    , 200      




          For value received, First Interstate BancSystem, Inc., a Montana corporation (the “Borrower”),
hereby promises to pay to the order of
                                                             (the “Lender”), at such place
as the Administrative Agent under the Credit Agreement defined below may from time to time
designate in writing, in lawful money of the United States of America and in immediately available
funds, the principal sum of                                          Dollars ($                      ), together with interest on
the unpaid principal balance hereof outstanding from time to time at such interest rates and
payable at such times as are specified in the Credit Agreement dated January 10, 2008 by and among
the Borrower, the Lender, certain other Lenders from time to time party thereto and Wells Fargo
Bank, National Association, as Administrative Agent (as the same may be amended, supplemented or
otherwise modified from time to time, the “Credit Agreement”).




          This Note is a Term Note as defined in the Credit Agreement, and is issued subject, and
pursuant, to the Credit Agreement, which among other things, provides for the amount and date of
payments of principal and interest required hereunder, acceleration of the maturity hereof upon the
occurrence of an Event of Default (as defined in the Credit Agreement), and prepayment hereof upon
the occurrence of certain events.




          The Borrower shall pay all costs of collection, including reasonable attorneys’ fees and legal
expenses, if this Note is not paid when due, whether or not legal proceedings are commenced.




          Presentment or other demand for payment, notice of dishonor and protest are expressly waived.




	 	 	 	 	 	 	 	 	 
	 	 	FIRST INTERSTATE BANCSYSTEM, INC.	 	 
	 
	 	 	 	 	 	 	 	 
	 

	 	By:	 	 	 	 	 	 
	 	 	 	 	 	 	 
	 

	 	 	 	Name:	 	 	 	 
	 

	 	 	 	 	 	 	 	 
	 

	 	 	 	Title:	 	 	 	 
	 

	 	 	 	 	 	 	 	 





 









 





Exhibit E




Revolving Facility Borrowing Request




                    ,
     



	 	 	 
	TO:

	 	                                                                                , as Administrative Agent
	 

	 	                                                                                
	 

	 	                                                                                
	 

	 	Attention:                                                             






          We refer to that certain Credit Agreement dated January 10, 2008 (as amended, supplemented or
otherwise modified to date, the “Credit Agreement”) among First Interstate BancSystem, Inc.,
certain Lenders from time to time party thereto (the “Lenders”) and Wells Fargo Bank, National
Association, as Administrative Agent for the Lenders. Capitalized terms used herein but not
otherwise defined shall have the same meanings assigned to them in the Credit Agreement.




          Pursuant to Section 2.2 of the Credit Agreement, we hereby request or confirm our request for
a Borrowing under the Revolving Facility on the date, of the type(s) and in the amount(s) specified
in Annex I attached hereto and request or confirm our request that each Lender make Revolving
Advance(s) in such Lender’s Percentage of the requested Borrowing (the “Requested Advances”).




          To induce the Lenders to make the Requested Advances, we hereby represent and warrant to the
Lenders that:





     (a) As of the date hereof and before giving effect to the Requested Advances, the
Revolving Facility Outstanding Amount was $                                        . After giving effect to the
Requested Advances, the Revolving Facility Outstanding Amount will be $                                        .




     (b) No Default or Event of Default exists, or will result from the making of the
Requested Advances.




     (c) The conditions precedent set forth in Section 3.2 of the Credit Agreement are fully
satisfied as of the date of the Requested Advances.



	 	 	 	 	 	 	 	 	 
	 	 	FIRST INTERSTATE BANCSYSTEM, INC.	 	 
	 
	 	 	 	 	 	 	 	 
	 

	 	By:	 	 	 	 	 	 
	 	 	 	 	 	 	 
	 

	 	 	 	Title:	 	 	 	 
	 

	 	 	 	 	 	 	 	 





 









 





ANNEX I

to Notice of Revolving Advance

dated                                  ,      




	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	Expiry Date	 	 
	Amount of	 	Type of Advance	 	 	 	 	 	Interest	 	of Interest	 	Quoted
	Borrowing	 	(Floating Rate,	 	Date of	 	Period (LIBO	 	Period	 	Interest
	Request	 	LIBO Rate)	 	Borrowing	 	Rate)	 	(LIBO Rate)	 	Rate*







 




			
	*	 	To be completed by Administrative Agent





 









 





Exhibit F




Notice of Conversion to LIBO Rate




                    ,      




	 	 	 
	TO:

	 	Wells Fargo Bank, National Association, as Administrative Agent
	 

	 	MAC C7301-02E
	 

	 	2nd Floor
	 

	 	1740 Broadway
	 

	 	Denver, CO 80274-0001
	 

	 	Attention: Cynthia M Spagnola






            We refer to that certain Credit Agreement dated January 10, 2008 (as amended, supplemented or
otherwise modified to date, the “Credit Agreement”) among First Interstate BancSystem, Inc.,
certain Lenders from time to time party thereto (the “Lenders”) and Wells Fargo Bank, National
Association, as Administrative Agent for the Lenders. Capitalized terms used herein but not
otherwise defined shall have the same meanings assigned to them in the Credit Agreement.



            Pursuant to Section 2.3 of the Credit Agreement, we hereby request or confirm our request that
Floating Rate Loans in the aggregate amount(s) specified in Annex I attached hereto be converted
into LIBOR Loans (the “Requested Conversion(s)”) on the date(s) and for the Interest Period(s)
specified in Annex I attached hereto and that each Lender make such conversion(s) in such Lender’s
Percentage of the Requested Conversion(s).



            To induce the Lenders to make the Requested Conversion(s), we hereby represent and warrant to
the Lenders that no Default or Event of Default exists or will result from the making of any
Requested Conversion(s).



	 	 	 	 	 	 	 	 	 
	 	 	FIRST INTERSTATE BANCSYSTEM, INC.	 	 
	 
	 	 	 	 	 	 	 	 
	 

	 	By:	 	 	 	 	 	 
	 	 	 	 	 	 	 
	 

	 	 	 	Title:	 	 	 	 
	 

	 	 	 	 	 	 	 	 





 









 





ANNEX I

to Notice of Conversion to LIBO Rate

dated                     ,      




	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	Facility under which	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	Loans to be	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	Quoted
	Converted are	 	Amount to be	 	 	 	 	 	 	 	 	 	Expiry Date of	 	Interest
	Outstanding	 	Converted	 	Date of Conversion	 	Interest Period	 	Interest Period	 	Rate*







 




			
	*	 	To be completed by Administrative Agent





 









 





Exhibit G




Notice of Rollover of LIBO Rate




                    ,
     




	 	 	 
	TO:

	 	Wells Fargo Bank, National Association, as Administrative Agent
	 

	 	MAC C7301-02E
	 

	 	2nd Floor
	 

	 	1740 Broadway
	 

	 	Denver, CO 80274-0001
	 

	 	Attention: Cynthia M Spagnola






            We refer to that certain Credit Agreement dated January 10, 2008 (as amended, supplemented or
otherwise modified to date, the “Credit Agreement”) among First Interstate BancSystem, Inc.,
certain Lenders from time to time party thereto (the “Lenders”) and Wells Fargo Bank, National
Association, as Administrative Agent for the Lenders. Capitalized terms used herein but not
otherwise defined shall have the same meanings assigned to them in the Credit Agreement.



            Pursuant to Section 2.4 of the Credit Agreement, we hereby request or confirm our request that
LIBOR Loans in the aggregate amount(s) specified in Annex I attached hereto be renewed (the
“Requested Renewal(s)”) on the date(s) and for the Interest Period(s) specified in Annex I attached
hereto and that each Lender make such renewal(s) in such Lender’s Percentage of the Requested
Renewal(s).



            To induce the Lenders to make the Requested Renewal(s), we hereby represent and warrant to the
Lenders that no Default or Event of Default exists or will result from the making of any such
Requested Renewal(s).



	 	 	 	 	 	 	 	 	 
	 	 	FIRST INTERSTATE BANCSYSTEM, INC.	 	 
	 
	 	 	 	 	 	 	 	 
	 

	 	By:	 	 	 	 	 	 
	 	 	 	 	 	 	 
	 

	 	 	 	Title:	 	 	 	 
	 

	 	 	 	 	 	 	 	 





 









 





ANNEX I

to Notice of Rollover of LIBO Rate

dated                     ,      




	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	Facility under	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	which Loans to be	 	Amount of	 	 	 	 	 	New	 	 	 	 	 	Quoted
	Renewed are	 	LIBOR Loans	 	Expiring Interest	 	Interest	 	Expiry Date of	 	Interest
	Outstanding	 	to be Renewed	 	Period	 	Period	 	Interest Period	 	Rate*







 




			
	*	 	To be completed by Administrative Agent





 









 





Exhibit H




Certificate of Officer as to Financial Statements




                         ,
     



	 	 	 
	TO:

	 	Wells Fargo Bank, National Association, as Administrative Agent
	 

	 	MAC C7301-02E
	 

	 	2nd Floor
	 

	 	1740 Broadway
	 

	 	Denver, CO 80274-0001
	 

	 	Attention: Cynthia M Spagnola






          RE: Financial Statements – First Interstate BancSystem, Inc. (the “Borrower”)




            We refer to that certain Credit Agreement dated January 10, 2008 (as amended, supplemented or
otherwise modified to date, the “Credit Agreement”) among First Interstate BancSystem, Inc.,
certain Lenders from time to time party thereto (the “Lenders”) and Wells Fargo Bank, National
Association, as Administrative Agent for the Lenders. Capitalized terms used herein but not
otherwise defined shall have the same meanings assigned to them in the Credit Agreement.



            I hereby certify on behalf of the Borrower as follows:




	 	1.	 	We are the duly qualified and acting chief financial officer
and
                                         of the Borrower. We are familiar with the
financial statements and financial affairs of the Borrower and its Subsidiaries
and are authorized to execute this Certificate on behalf of the Borrower.






	 	2.	 	Pursuant to Section 5.1 of the Credit Agreement, attached are
the required [audited financial statements of the Borrower and its Subsidiaries
prepared by
                                         as of and for the fiscal year ended                     
     , 20     /unaudited financial statements of the Borrower and its Subsidiaries as
of and for the fiscal quarter ended                     ,      ]1 (the
“Applicable Covenant Computation Date”). Such financial statements have been
prepared in accordance with GAAP, fairly present the financial condition of the
Borrower and its Subsidiaries as of such date and the results of the operations
of the Borrower and its Subsidiaries for the period then ended, prepared on a
consolidated basis, [subject to year-end adjustments and
footnotes,]2 and conform to the applicable requirements of Section
5.1 of the Credit Agreement.







 




			
	1	 	Include appropriate alternative text.
	 
	2	 	Include bracketed text with respect to unaudited
interim statements.





 









 






	 	3.	 	The Borrower has obtained no knowledge of any Default or Event
of Default, except as specifically stated on an attachment hereto (if any).
	 
	 	4.	 	The computations attached hereto in Annex I set forth the
Borrower’s compliance or non-compliance with the requirements set forth in the
Financial Covenants as of the Applicable Covenant Computation Date. Such
computations have been prepared from, and on a basis consistent with, the
financial statements attached hereto.
	 
	 	5.	 	As of the Applicable Covenant Computation Date, the Status of
the Borrower was Level       as a result of the Funded Debt Ratio of the
Borrower as of the Applicable Covenant Computation Date being       to 1.00.





	 	 	 	 	 	 	 	 	 
	 	 	FIRST INTERSTATE BANCSYSTEM, INC.	 	 
	 
	 	 	 	 	 	 	 	 
	 

	 	By:	 	 	 	 	 	 
	 	 	 	 	 	 	 
	 

	 	 	 	Name:	 	 	 	 
	 

	 	 	 	 	 	 	 	 
	 

	 	 	 	Title:	 	 	 	 
	 

	 	 	 	 	 	 	 	 





 









 





Annex I

to Exhibit H




Financial Covenant Calculations




	 	 	 	 	 	 	 	 	 
	Section	 	Covenant	 	Actual	 	Required
	5.8

	 	Double Leverage Ratio
	 	                    
	 	(Borrower)
	 	Not more than 1.25
	 
	5.9

	 	Total Risk Based
	 	                    
	 	(Consolidated
	 	Not less than 10%
	 

	 	Capital Ratio
	 	 	 	Borrower)	 	 
	 

	 	 	 	                    
	 	(FIB)
	 	Not less than 10%
	 

	 	 	 	                    
	 	(FWB)
	 	Not less than 10%
	 

	 	 	 	                    
	 	(FWBS)
	 	Not less than 10%
	5.10

	 	Tier 1 Risk Based
	 	                    
	 	(Consolidated
	 	Not less than 6%
	 

	 	Capital Ratio
	 	 	 	Borrower)	 	 
	 

	 	 	 	                    
	 	(FIB)
	 	Not less than 6%
	 

	 	 	 	                    
	 	(FWB)
	 	Not less than 6%
	 

	 	 	 	                    
	 	(FWBS)
	 	Not less than 6%
	 
	 	 	 	 	 	 	 	 
	5.11

	 	Tier 1 Leverage Ratio
	 	                    
	 	(Consolidated
	 	Not less than 5%
	 

	 	 	 	 	 	Borrower)	 	 
	 

	 	 	 	                    
	 	(FIB)
	 	Not less than 5%
	 

	 	 	 	                    
	 	(FWB)
	 	Not less than 5%
	 

	 	 	 	                    
	 	(FWBS)
	 	Not less than 5%
	5.12

	 	Allowance for Loan
	 	                    
	 	(Consolidated
	 	Not less than 100% of
	 

	 	and Lease Losses
	 	 	 	Borrower)
	 	Non-Performing Loans
	 
	 	 	 	 	 	 	 	 
	5.13

	 	Return on Assets
	 	                    
	 	(Consolidated

Borrower)
	 	Not less than 1.00%
	 
	 	 	 	 	 	 	 	 
	5.14

	 	Non-Performing Assets
	 	                    
	 	(Consolidated
	 	Not more than 15% of
	 

	 	 	 	 	 	Borrower)
	 	Primary Equity Capital






 









 





Exhibit I




Assignment and Assumption




          This Assignment and Assumption (the “Assignment and Assumption”) is dated as of the Effective
Date set forth below and is entered into by and between [the][each]3 Assignor identified
in item 1 below ([the][each, an] “Assignor”) and [the][each]4 Assignee identified in
item 2 below ([the][each, an] “Assignee”). [It is understood and agreed that the rights and
obligations of [the Assignors][the Assignees]5 hereunder are several and not
joint.]6 Capitalized terms used but not defined herein shall have the meanings given to
them in the Credit Agreement identified below (as amended, the “Credit Agreement”), receipt of a
copy of which is hereby acknowledged by [the][each] Assignee. The Standard Terms and Conditions set
forth in Annex 1 attached hereto are hereby agreed to and incorporated herein by reference and made
a part of this Assignment and Assumption as if set forth herein in full.




          For an agreed consideration, [the][each] Assignor hereby irrevocably sells and assigns to [the
Assignee][the respective Assignees], and [the][each] Assignee hereby irrevocably purchases and
assumes from [the Assignor][the respective Assignors], subject to and in accordance with the
Standard Terms and Conditions and the Credit Agreement, as of the Effective Date inserted by the
Administrative Agent as contemplated below (i) all of [the Assignor’s][the respective Assignors’]
rights and obligations in [its capacity as a Lender][their respective capacities as Lenders] under
the Credit Agreement and any other documents or instruments delivered pursuant thereto to the
extent related to the amount and percentage interest identified below of all of such outstanding
rights and obligations of [the Assignor][the respective Assignors] under the respective facilities
identified below (including without limitation any letters of credit, guarantees, and swingline
loans included in such facilities) and (ii) to the extent permitted to be assigned under applicable
law, all claims, suits, causes of action and any other right of [the Assignor (in its capacity as a
Lender)][the respective Assignors (in their respective capacities as Lenders)] against any Person,
whether known or unknown, arising under or in connection with the Credit Agreement, any other
documents or instruments delivered pursuant thereto or the loan transactions governed thereby or in
any way based on or related to any of the foregoing, including, but not limited to, contract
claims, tort claims, malpractice claims, statutory claims and all other claims at law or in equity
related to the rights and obligations sold and assigned pursuant to clause (i) above (the rights
and obligations sold and assigned by [the][any] Assignor to [the][any] Assignee pursuant to clauses
(i) and (ii) above being referred to herein collectively as [the][an] “Assigned Interest”). Each
such sale and assignment is without recourse to [the][any] Assignor and, except as expressly
provided in this Assignment and Assumption, without representation or warranty by [the][any]
Assignor.






 




			
	3	 	For bracketed language here and elsewhere in this form
relating to the Assignor(s), if the assignment is from a single Assignor,
choose the first bracketed language. If the assignment is from multiple
Assignors, choose the second bracketed language.
	 
	4	 	For bracketed language here and elsewhere in this form
relating to the Assignee(s), if the assignment is to a single Assignee, choose
the first bracketed language. If the assignment is to multiple Assignees,
choose the second bracketed language.
	 
	5	 	Select as appropriate.
	 
	6	 	Include bracketed language if there are either multiple
Assignors or multiple Assignees.





 









 






	 	 	 	 	 
	1.

	 	Assignor[s]:
	 	                                                            
	 
	 	 	 	 
	 

	 	 	 	                                                            
	 
	 	 	 	 
	2.

	 	Assignee[s]:
	 	                                                            
	 
	 	 	 	 
	 

	 	 	 	                                                            
	 
	 	 	 	 
	3.

	 	Borrower(s):
	 	                                                            
	 
	 	 	 	 
	4.	 	Administrative Agent:                                                            , as the administrative agent under the Credit Agreement
	 
	 	 	 	 
	5.	 	Credit Agreement: Credit Agreement dated as of January 10, 2008 among First Interstate
BancSystem, Inc., the Lenders parties thereto, Wells Fargo Bank, National Association, as
Administrative Agent, and the other agents parties thereto
	 
	 	 	 	 
	6.	 	Assigned Interest[s]:






	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	 	 	 	 	 	 	Aggregate Amount	 	Amount of	 	 
	 	 	 	 	 	 	of Commitment/	 	Commitment/	 	 
	 	 	 	 	Facility	 	Loans for all	 	Loans	 	CUSIP
	Assignor[s]7	 	Assignee[s]8	 	Assigned9	 	Lenders10	 	Assigned8	 	Number
	 

	 	 	 	 	 	 	$	 	 	 	$	 	 	 
	 
	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	 

	 	 	 	 	 	 	$	 	 	 	$	 	 	 
	 
	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	 

	 	 	 	 	 	 	$	 	 	 	$	 	 	 






[7.      Trade Date:                                                   ]11






 




			
	7	 	List each Assignor, as appropriate.
	 
	8	 	List each Assignee, as appropriate.
	 
	9	 	Fill in the appropriate terminology for the types of
facilities under the Credit Agreement that are being assigned under this
Assignment (e.g. “Revolving Credit Commitment,” “Term Loan Commitment,” etc.)
	 
	10	 	Amount to be adjusted by the counterparties to take
into account any payments or prepayments made between the Trade Date and the
Effective Date.
	 
	11	 	To be completed if the Assignor(s) and the Assignee(s)
intend that the minimum assignment amount is to be determined as of the Trade
Date.





 









 





          Effective Date:                           , 20       [TO BE INSERTED BY ADMINISTRATIVE AGENT AND WHICH
SHALL BE THE EFFECTIVE DATE OF RECORDATION OF TRANSFER IN THE REGISTER THEREFOR.]




          The terms set forth in this Assignment and Assumption are hereby agreed to:




	 	 	 	 	 	 	 
	 	 	ASSIGNOR[S]12	 	 
	 
	 	 	 	 	 	 
	 	 	[NAME OF ASSIGNOR]	 	 
	 
	 	 	 	 	 	 
	 

	 	By:	 	 	 	 
	 

	 	 	 	 	 	 
	 

	 	 	 	Title:	 	 
	 
	 	 	 	 	 	 
	 	 	[NAME OF ASSIGNOR]	 	 
	 
	 	 	 	 	 	 
	 

	 	By:	 	 	 	 
	 

	 	 	 	 	 	 
	 

	 	 	 	Title:	 	 
	 
	 	 	 	 	 	 
	 	 	ASSIGNEE[S]13	 	 
	 
	 	 	 	 	 	 
	 	 	[NAME OF ASSIGNEE]	 	 
	 
	 	 	 	 	 	 
	 

	 	By:	 	 	 	 
	 

	 	 	 	 	 	 
	 

	 	 	 	Title:	 	 
	 
	 	 	 	 	 	 
	 	 	[NAME OF ASSIGNEE]	 	 
	 
	 	 	 	 	 	 
	 

	 	By:	 	 	 	 
	 

	 	 	 	 	 	 
	 

	 	 	 	Title:	 	 






[Consented to and]14 Accepted:




[NAME OF ADMINISTRATIVE AGENT], as

Administrative Agent




By                                                                        
                             

     Title:






 




			
	12	 	Add additional signature blocks as needed.
	 
	13	 	Add additional signature blocks as needed.
	 
	14	 	To be added only if the consent of the Administrative Agent is required by the terms of the Credit Agreement.





 









 





[Consented to:]15




[NAME OF RELEVANT PARTY]




By                                                                        
         

     Title:






 




			
	15	 	To be added only if the consent of the Borrower and/or
other parties (e.g. Swingline Lender, Letter of Credit Issuer) is required by
the terms of the Credit Agreement.





 









 





ANNEX 1




STANDARD TERMS AND CONDITIONS FOR

ASSIGNMENT AND ASSUMPTION




          1. Representations and Warranties.




          1.1 Assignor[s]. [The][Each] Assignor (a) represents and warrants that (i) it is the
legal and beneficial owner of [the][the relevant] Assigned Interest, (ii) [the][such] Assigned
Interest is free and clear of any lien, encumbrance or other adverse claim and (iii) it has full
power and authority, and has taken all action necessary, to execute and deliver this Assignment and
Assumption and to consummate the transactions contemplated hereby; and (b) assumes no
responsibility with respect to (i) any statements, warranties or representations made in or in
connection with the Credit Agreement or any other Loan Document, (ii) the execution, legality,
validity, enforceability, genuineness, sufficiency or value of the Loan Documents or any collateral
thereunder, (iii) the financial condition of the Borrower, any of its Subsidiaries or Affiliates or
any other Person obligated in respect of any Loan Document or (iv) the performance or observance by
the Borrower, any of its Subsidiaries or Affiliates or any other Person of any of their respective
obligations under any Loan Document.




          1.2. Assignee[s]. [The][Each] Assignee (a) represents and warrants that (i) it has
full power and authority, and has taken all action necessary, to execute and deliver this
Assignment and Assumption and to consummate the transactions contemplated hereby and to become a
Lender under the Credit Agreement, (ii) it meets all the requirements to be an assignee under
Section ___(b)(iii), (v) and (vi) of the Credit Agreement (subject to such consents, if any, as may
be required under Section ___(b)(iii) of the Credit Agreement), (iii) from and after the Effective
Date, it shall be bound by the provisions of the Credit Agreement as a Lender thereunder and, to
the extent of [the][the relevant] Assigned Interest, shall have the obligations of a Lender
thereunder, (iv) it is sophisticated with respect to decisions to acquire assets of the type
represented by the Assigned Interest and either it, or the person exercising discretion in making
its decision to acquire the Assigned Interest, is experienced in acquiring assets of such type, (v)
it has received a copy of the Credit Agreement, and has received or has been accorded the
opportunity to receive copies of the most recent financial statements delivered pursuant to Section
      thereof, as applicable, and such other documents and information as it deems appropriate to
make its own credit analysis and decision to enter into this Assignment and Assumption and to
purchase [the][such] Assigned Interest, (vi) it has, independently and without reliance upon the
Administrative Agent or any other Lender and based on such documents and information as it has
deemed appropriate, made its own credit analysis and decision to enter into this Assignment and
Assumption and to purchase [the][such] Assigned Interest, and (vii) if it is a Foreign Lender,
attached to the Assignment and Assumption is any documentation required to be delivered by it
pursuant to the terms of the Credit Agreement, duly completed and executed by [the][such] Assignee;
and (b) agrees that (i) it will, independently and without reliance on the Administrative Agent,
[the][any] Assignor or any other Lender, and based on such documents and information as it shall
deem appropriate at the time, continue to make its own credit decisions in taking or not taking
action under the Loan Documents, and (ii) it will perform in accordance with their terms all of the
obligations which by the terms of the Loan Documents are required to be performed by it as a
Lender.




 









 








          2. Payments. From and after the Effective Date, the Administrative Agent shall make
all payments in respect of [the][each] Assigned Interest (including payments of principal,
interest, fees and other amounts) to [the][the relevant] Assignor for amounts which have accrued to
but excluding the Effective Date and to [the][the relevant] Assignee for amounts which have accrued
from and after the Effective Date.




          3. General Provisions. This Assignment and Assumption shall be binding upon, and inure
to the benefit of, the parties hereto and their respective successors and assigns. This Assignment
and Assumption may be executed in any number of counterparts, which together shall constitute one
instrument. Delivery of an executed counterpart of a signature page of this Assignment and
Assumption by telecopy shall be effective as delivery of a manually executed counterpart of this
Assignment and Assumption. This Assignment and Assumption shall be governed by, and construed in
accordance with, the law of the State of Minnesota.




 









 





Schedule 4.1




Doing Business Names




First Interstate BancSystem, Inc.




 









 





Schedule 4.4




Subsidiaries




	 	 	 	 	 	 	 	 	 
	 	 	 	 	 	 	Percentage
	Subsidiary	 	Holder	 	Class	 	Interest
	First Interstate Bank

	 	First Interstate BancSystem, Inc.
	 	Common Stock
	 	 	100	%
	i_TECH Corporation

	 	First Interstate BancSystem, Inc.
	 	Common Stock
	 	 	100	%
	FIBCT, LLC

	 	First Interstate BancSystem, Inc.
	 	Member Interest
	 	 	100	%
	First Interstate Insurance
Agency, Inc.

	 	First Interstate BancSystem, Inc.
	 	Common Stock
	 	 	100	%
	FI Reinsurance, Ltd.

	 	First Interstate BancSystem, Inc.
	 	Common Stock
	 	 	100	%
	Commerce Financial, Inc.

	 	First Interstate BancSystem, Inc.
	 	Common Stock
	 	 	100	%
	FIB, LLC

	 	First Interstate BancSystem, Inc.
	 	Member Interest
	 	 	100	%
	First Interstate Statutory Trust I

	 	First Interstate BancSystem, Inc.
	 	Common Securities
	 	 	100	%
	FI Statutory Trust I

	 	First Interstate BancSystem, Inc.
	 	Common Securities
	 	 	100	%
	FI Capital Trust II

	 	First Interstate BancSystem, Inc.
	 	Common Securities
	 	 	100	%
	FI Statutory Trust III

	 	First Interstate BancSystem, Inc.
	 	Common Securities
	 	 	100	%
	FI Capital Trust IV

	 	First Interstate BancSystem, Inc.
	 	Common Securities
	 	 	100	%
	FI Statutory Trust V

	 	First Interstate BancSystem, Inc.
	 	Common Securities
	 	 	100	%
	FI Statutory Trust VI

	 	First Interstate BancSystem, Inc.
	 	Common Securities
	 	 	100	%






 









 





Schedule 4.8




Litigation




None




 









 





Schedule 4.17




Other Relationships





	 	1.	 	Director Elouise C. Cobell is Co-Chairperson of the Board of Native American Bank, N.A.
headquartered in Denver, CO, with its principal branch in Browning, MT.
	 
	 	2.	 	Director William B. Ebzery is owner of Cypress Capital Management, LLC, a wealth
management firm.
	 
	 	3.	 	Director Terry W. Payne is part owner and Chairman of the Board of Payne Financial
Group, Inc. which owns and manages insurance agencies in Montana, Idaho and Washington
	 
	 	4.	 	Various directors, through their respective business entities, provide services or
rental of properties to First Interstate BancSystem, Inc. and / or Subsidiaries; however,
all such transactions are at arms length for fair value.





 









 





Schedule 6.1




Liens




None




 









 





Schedule 6.2




Indebtedness




	 	 	 	 	 	 	 	 	 
	Obligor	 	Amount	 	Notes
	First Interstate BancSystem, Inc.
	 	 	 	 	 	 	 	 
	Subordinated debentures held by subsidiary
trusts:
	 	 	 	 	 	 	\1	 
	 
	 	 	 	 	 	 	 	 
	First Interstate Statutory Trust I
	 	$	41,238,000	 	 	 	 	 
	FI Statutory Trust I
	 	 	15,464,000	 	 	 	 	 
	FI Capital Trust II
	 	 	10,310,000	 	 	 	 	 
	FI Statutory Trust III
	 	 	20,619,000	 	 	 	 	 
	FI Capital Trust IV
	 	 	15,464,000	 	 	 	 	 
	FI Statutory Trust V
	 	 	10,310,000	 	 	 	 	 
	FI Statutory Trust VI
	 	 	10,310,000	 	 	 	 	 
	 
	 	 	 	 	 	 	 	 
	First Midwest Bank subordinated term loan
	 	 	20,000,000	 	 	 	\2	 
	 
	 	 	 	 	 	 	 	 
	 
	 	 	 	 	 	 	 	 
	First Interstate Bank
	 	 	 	 	 	 	 	 
	Federal Home Loan Bank notes payable
	 	 	3,118,279	 	 	 	\3	 
	 
	 	 	 	 	 	 	 	 
	Capital lease obligation
	 	 	1,905,431	 	 	 	\3	 
	 
	 	 	 	 	 	 	 	 
	Treasury Tax and Loan account
	 	 	2,209,349	 	 	 	\3	 
	 
	 	 	 	 	 	 	 	 
	 
	 	 	 	 	 	 	 	 
	US Bank subordinated term loan (to fund post
closing), unsecured, interest payable
quarterly at a fixed rate of the 10 year
U.S. Treasury rate plus 295 basis points
with final maturity 10 years from the
effective date of the Credit Agreement.
Borrower will not guaranty this
indebtedness
	 	 	15,000,000	 	 	 	 	 
	 
	 	 	 	 	 	 	 	 
	\1 Provided for informational purposes only
	 	 	 	 	 	 	 	 
	Permitted under Sections 6.2(d) and 6.2(e)
	 	 	 	 	 	 	 	 
	\2 Provided for informational purposes only
	 	 	 	 	 	 	 	 
	Permitted under Section 6.2(d)
	 	 	 	 	 	 	 	 
	\3 Balance as of January 7, 2008
	 	 	 	 	 	 	 	 






 









 





Schedule 6.3




Guaranties




Guaranties with respect to the trust preferred issuances listed on Schedule 6.2