<PAGE>
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SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
FORM 10-Q
QUARTERLY REPORT PURSUANT TO SECTION 13 OR 15(D) OF THE
SECURITIES EXCHANGE ACT OF 1934
FOR THE QUARTERLY PERIOD ENDED JUNE 30, 1994 COMMISSION FILE NUMBER 1-7476
AMSOUTH BANCORPORATION
(EXACT NAME OF REGISTRANT AS SPECIFIED IN ITS CHARTER)
DELAWARE 63-0591257
(STATE OR OTHER JURISDICTION OF (I.R.S. EMPLOYER
INCORPORATION OR ORGANIZATION) IDENTIFICATION NO.)
1400 AMSOUTH--SONAT TOWER
BIRMINGHAM, ALABAMA 35203
(ADDRESS OF PRINCIPAL EXECUTIVE OFFICES) (ZIP CODE)
(205) 320-7151
(REGISTRANT'S TELEPHONE NUMBER, INCLUDING AREA CODE)
Indicate by check mark whether the registrant (1) has filed all reports
required to be filed by Section 13 or 15(d) of the Securities Exchange Act of
1934 during the preceding 12 months (or for such shorter periods that the
registrant was required to file such reports), and (2) has been subject to such
filing requirements for the past 90 days.
Yes X No
----- ----
As of August 8, 1994 AmSouth Bancorporation had 58,953,921 shares of common
stock outstanding.
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<PAGE>
AMSOUTH BANCORPORATION
FORM 10-Q
INDEX
PAGE
----
Part I. Financial Information
Item 1. Financial Statements (Unaudited)
Consolidated statement of condition--June 30, 1994 and December 31,
1993.................................................................. 1
Consolidated statement of earnings--Six months and three months ended
June 30, 1994 and 1993................................................ 2
Consolidated statement of shareholders' equity--Six months ended June
30, 1994.............................................................. 3
Consolidated statement of cash flows--Six months ended June 30, 1994
and 1993.............................................................. 4
Review Report of Independent Accountants............................... 7
Item 2. Management's Discussion and Analysis of Financial Condition and
Results of Operations................................................... 8
Part II. Other Information
Item 5. Other Information................................................ 18
Item 6. Exhibits and Reports on Form 8-K................................. 18
Signatures................................................................. 20
Exhibit Index.............................................................. 21
<PAGE>
PART I
FINANCIAL INFORMATION
ITEM 1. FINANCIAL STATEMENTS (UNAUDITED)
AMSOUTH BANCORPORATION AND SUBSIDIARIES
CONSOLIDATED STATEMENT OF CONDITION
(UNAUDITED)
<TABLE>
<CAPTION>
JUNE 30 DECEMBER 31
1994 1993
----------- -----------
(IN THOUSANDS)
<S> <C> <C>
ASSETS
Cash and due from banks............................. $ 860,654 $ 614,698
Federal funds sold and securities purchased under
agreements to resell............................... 36,504 171,952
Trading securities.................................. 13,202 94,844
Available-for-sale securities....................... 1,030,512 1,293,989
Held-to-maturity securities (market value of
$3,419,795 and $1,874,587 respectively)............ 3,478,115 1,823,317
Mortgage loans held for sale........................ 181,506 335,435
Loans............................................... 10,659,374 8,611,708
Less: Allowance for loan losses..................... 164,746 131,510
Unearned income................................... 79,010 71,296
----------- -----------
Net loans......................................... 10,415,618 8,408,902
Premises and equipment, net......................... 267,060 234,155
Customers' acceptance liability..................... 3,846 6,264
Accrued interest receivable and other assets........ 1,050,388 486,065
----------- -----------
$17,337,405 $13,469,621
=========== ===========
LIABILITIES AND SHAREHOLDERS' EQUITY
Deposits and interest-bearing liabilities:
Deposits:
Noninterest-bearing demand......................... $ 1,891,539 $ 1,747,694
Interest-bearing demand............................ 4,002,525 3,484,812
Savings............................................ 968,994 866,977
Time............................................... 4,585,741 3,520,768
Certificates of deposit of $100,000 or more........ 770,156 742,738
----------- -----------
Total deposits.................................... 12,218,955 10,362,989
Federal funds purchased and securities sold under
agreements to repurchase.......................... 2,010,966 793,177
Other borrowed funds............................... 964,950 667,318
Long-term debt..................................... 521,677 173,142
----------- -----------
Total deposits and interest-bearing liabilities... 15,716,548 11,996,626
Acceptances outstanding............................. 3,846 6,264
Accrued expenses and other liabilities.............. 289,675 324,006
----------- -----------
Total liabilities................................. 16,010,069 12,326,896
----------- -----------
Shareholders' equity:
Preferred stock--no par value:
Authorized--2,000,000 shares;
Issued and outstanding--none....................... -0- -0-
Common stock--par value $1 a share:
Authorized--200,000,000 shares
Issued--60,423,571 shares and 54,534,691 shares,
respectively...................................... 60,424 54,535
Capital surplus.................................... 605,829 469,842
Retained earnings.................................. 699,898 645,465
Cost of common stock in treasury--1,500,000 shares. (24,173) (24,173)
Deferred compensation on restricted stock.......... (4,087) (2,944)
Unrealized losses on available-for-sale securities. (10,555) -0-
----------- -----------
Total shareholders' equity........................ 1,327,336 1,142,725
----------- -----------
$17,337,405 $13,469,621
=========== ===========
</TABLE>
See notes to consolidated financial statements.
1
<PAGE>
AMSOUTH BANCORPORATION AND SUBSIDIARIES
CONSOLIDATED STATEMENT OF EARNINGS
(UNAUDITED)
<TABLE>
<CAPTION>
SIX MONTHS THREE MONTHS
ENDED JUNE 30 ENDED JUNE 30
----------------- ------------------
1994 1993 1994 1993
-------- -------- -------- --------
(IN THOUSANDS EXCEPT PER SHARE
DATA)
<S> <C> <C> <C> <C>
REVENUE FROM EARNING ASSETS
Loans................................... $347,484 $298,994 $179,330 $153,144
Securities:
Trading securities..................... 1,511 778 601 423
Available-for-sale securities.......... 25,918 13,918 11,333 6,048
Held-to-maturity securities............ 73,903 91,509 42,030 46,308
-------- -------- -------- --------
Total securities..................... 101,332 106,205 53,964 52,779
Mortgage loans held for sale............ 7,098 6,207 3,484 3,319
Federal funds sold and securities pur-
chased under agreements to resell...... 1,437 3,349 533 1,627
-------- -------- -------- --------
Total revenue from earning assets.... 457,351 414,755 237,311 210,869
INTEREST EXPENSE
Interest-bearing demand deposits........ 49,185 42,672 26,505 21,320
Savings deposits........................ 11,246 10,303 5,647 5,334
Time deposits........................... 74,967 71,246 38,133 36,624
Certificates of deposit of $100,000 or
more................................... 14,226 15,522 7,220 8,093
Federal funds purchased and securities
sold under agreements to repurchase.... 20,578 15,778 13,210 7,869
Other borrowed funds.................... 8,670 6,606 5,591 3,716
Long-term debt.......................... 7,855 5,814 4,645 2,768
-------- -------- -------- --------
Total interest expense............... 186,727 167,941 100,951 85,724
-------- -------- -------- --------
GROSS INTEREST MARGIN................... 270,624 246,814 136,360 125,145
Provision for loan losses............... 5,181 15,519 2,974 8,035
-------- -------- -------- --------
NET INTEREST MARGIN..................... 265,443 231,295 133,386 117,110
NONINTEREST REVENUES
Service charges on deposit accounts..... 32,564 29,125 16,420 14,858
Trust income............................ 23,434 20,820 12,041 10,453
Investment services income.............. 7,375 11,143 3,207 5,435
Mortgage administration fees............ 9,960 8,735 5,137 4,226
Investment securities gains............. 228 1,164 189 184
Other operating revenues................ 22,211 25,345 10,347 11,818
-------- -------- -------- --------
Total noninterest revenues........... 95,772 96,332 47,341 46,974
NONINTEREST EXPENSES
Salaries and employee benefits.......... 110,393 101,849 54,630 51,443
Net occupancy expense................... 21,653 17,952 10,985 8,508
Equipment expense....................... 19,719 18,329 9,428 9,306
FDIC premiums........................... 11,230 10,642 5,624 5,389
Foreclosed properties expense........... 211 (145) (15) (1,083)
Other operating expenses................ 73,755 63,813 35,661 31,318
-------- -------- -------- --------
Total noninterest expenses........... 236,961 212,440 116,313 104,881
-------- -------- -------- --------
INCOME BEFORE INCOME TAXES.............. 124,254 115,187 64,414 59,203
Income taxes............................ 42,380 37,413 21,514 19,504
-------- -------- -------- --------
NET INCOME........................... $ 81,874 $ 77,774 $ 42,900 $ 39,699
======== ======== ======== ========
Average common shares outstanding....... 54,558 50,345 54,782 50,965
Earnings per common share............... $ 1.50 $ 1.54 $ 0.78 $ 0.78
</TABLE>
See notes to consolidated financial statements.
2
<PAGE>
AMSOUTH BANCORPORATION AND SUBSIDIARIES
CONSOLIDATED STATEMENT OF SHAREHOLDERS' EQUITY
(UNAUDITED)
<TABLE>
<CAPTION>
UNREALIZED
COMMON CAPITAL RETAINED TREASURY DEFERRED LOSSES ON
STOCK SURPLUS EARNINGS STOCK COMPENSATION SECURITIES TOTAL
------- -------- -------- -------- ------------ ---------- ----------
(IN THOUSANDS)
<S> <C> <C> <C> <C> <C> <C> <C>
Balance at January 1,
1994................... $54,535 $469,842 $645,465 $(24,173) $(2,944) $ -0- $1,142,725
Balance at beginning of
period for immaterial
pooling-of-interests
entities............... 1,070 9,192 11,231 -0- -0- -0- 21,493
Net income.............. -0- -0- 81,874 -0- -0- -0- 81,874
Cash dividends declared. -0- -0- (38,672) -0- -0- -0- (38,672)
Common stock transac-
tions:
Employee stock plans... 345 5,432 -0- -0- (1,143) -0- 4,634
Acquisition of Fortune
Bancorp, Inc. ........ 4,474 121,363 -0- -0- -0- -0- 125,837
Unrealized losses on
available-for-sale
securities............. -0- -0- -0- -0- -0- (10,555) (10,555)
------- -------- -------- -------- ------- -------- ----------
Balance at June 30,
1994................... $60,424 $605,829 $699,898 $(24,173) $(4,087) $(10,555) $1,327,336
======= ======== ======== ======== ======= ======== ==========
</TABLE>
See notes to consolidated financial statements.
3
<PAGE>
AMSOUTH BANCORPORATION AND SUBSIDIARIES
CONSOLIDATED STATEMENT OF CASH FLOWS
(UNAUDITED)
<TABLE>
<CAPTION>
SIX MONTHS
ENDED JUNE 30
----------------------
1994 1993
----------- ---------
(IN THOUSANDS)
<S> <C> <C>
OPERATING ACTIVITIES
Net income............................................. $ 81,874 $ 77,774
Adjustments to reconcile net income to net cash pro-
vided by operating activities:
Provision for loan losses............................ 5,181 15,519
Provision for foreclosed property losses............. (1,077) 97
Depreciation and amortization of premises and equip-
ment................................................ 11,883 11,340
Amortization of premiums and discounts on held-to-ma-
turity securities and available-for-sale securities. 208 1,221
Net decrease (increase) in mortgage loans held for
sale................................................ 170,548 (14,694)
Net decrease in trading securities................... 82,490 11,752
Proceeds from maturities and prepayments of avail-
able-for-sale securities............................ 145,441 94,578
Proceeds from sales of available-for-sale securities. 569,189 164,028
Purchases of available-for-sale securities........... (256,251) (270,693)
Net gains on sales of available-for-sale securities.. (3,812) (1,893)
Net gains on calls and sales of held-to-maturity se-
curities............................................ (228) (1,164)
Net decrease in accrued interest receivable and other
assets.............................................. 51,521 320,717
Net decrease in accrued expenses and other liabili-
ties................................................ (147,687) (17,844)
Net decrease (increase) in deferred income tax bene-
fits................................................ 2,362 (5,731)
Amortization of intangible assets.................... 8,253 7,112
Other................................................ (10,018) 685
----------- ---------
Net cash provided by operating activities.......... 709,877 392,804
INVESTING ACTIVITIES
Proceeds from maturities, prepayments and calls of
held-to-maturity securities........................... 199,556 353,459
Proceeds from sales of held-to-maturity securities..... -0- 78,843
Purchases of held-to-maturity securities............... (1,425,977) (511,865)
Net decrease (increase) in federal funds sold and
securities purchased under agreements to resell....... 148,266 (180,021)
Net increase in loans.................................. (465,232) (325,638)
Net purchases of premises and equipment................ (12,050) (33,450)
Net cash (used) provided by acquisitions............... (109,351) 9,661
----------- ---------
Net cash used by investing activities.............. (1,664,788) (609,011)
FINANCING ACTIVITIES
Net increase (decrease) in demand deposits and savings
accounts.............................................. 79,565 (509,300)
Net (decrease) increase in time deposits............... (69,081) 513,830
Net increase (decrease) in federal funds purchased and
securities sold under agreements to repurchase........ 738,640 (399,867)
Net increase in other borrowed funds................... 332,148 496,969
Issuance of long-term debt............................. 149,084 21,500
Payments for maturing long-term debt................... (2,659) (4,649)
Cash dividends paid.................................... (38,712) (26,648)
Proceeds from employee stock plans..................... 3,657 2,844
----------- ---------
Net cash provided by financing activities.......... 1,192,642 94,679
----------- ---------
Increase (decrease) in cash and cash equivalents....... 237,731 (121,528)
Cash and cash equivalents at beginning of period....... 614,698 589,084
Beginning consolidated cash balances of immaterial
pooling-of-interests entities......................... 8,225 4,221
----------- ---------
Cash and cash equivalents at end of period............. $ 860,654 $ 471,777
=========== =========
</TABLE>
See notes to consolidated financial statements.
4
<PAGE>
AMSOUTH BANCORPORATION AND SUBSIDIARIES
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS
(UNAUDITED)
SIX MONTHS ENDED JUNE 30, 1994 AND 1993
General--The consolidated financial statements conform to generally accepted
accounting principles and to general industry practices. The accompanying
interim financial statements are unaudited; however, in the opinion of
management, all adjustments necessary for the fair presentation of the
consolidated financial statements have been included. All such adjustments are
of a normal recurring nature. The notes included herein should be read in
conjunction with the notes to consolidated financial statements included in
AmSouth Bancorporation's (AmSouth) 1993 annual report to shareholders on Form
10-K.
The consolidated financial statements include the accounts of AmSouth and its
subsidiaries. All significant intercompany balances and transactions have been
eliminated. Prior year financial statements have been restated to include the
accounts of business combinations accounted for as poolings-of-interests unless
immaterial. Results of operations of companies purchased are included from the
dates of acquisitions.
Effective January 1, 1994, AmSouth adopted Statement of Financial Accounting
Standards No. 115, "Accounting for Certain Investments in Debt and Equity
Securities" (Statement 115). The Statement generally requires that debt and
equity securities that have readily determinable fair values be carried at fair
value unless they are intended to be held to maturity. Securities are
classified as held-to-maturity and carried at amortized cost only if AmSouth
has the positive intent and ability to hold those securities to maturity. If
not classified as held-to-maturity, such securities are classified as trading
securities or securities available for sale. Net unrealized holding gains or
losses for securities available for sale are excluded from earnings and
reported as a separate component of shareholders' equity. The adoption of
Statement 115 resulted in no material impact on AmSouth's financial condition.
The Financial Accounting Standards Board has issued Statement of Financial
Accounting Standards No. 114, "Accounting by Creditors for Impairment of a
Loan." The statement requires that certain impaired loans be measured based on
the present value of the collateral if the loan is collateral dependent.
AmSouth anticipates adoption of Statement 114 by January 1, 1995 as required,
and the effect on AmSouth's financial condition or results of operations has
not been determined.
Business Combinations--During the second quarter of 1994, AmSouth completed
business combinations with Citizens National Corporation (Citizens),
headquartered in Naples, Florida, Parkway Bancorp, Inc. (Parkway),
headquartered in Fort Myers, Florida, and First Federal Savings Bank, Calhoun,
Georgia (Calhoun), all of which were accounted for using the pooling-of-
interests method of accounting. AmSouth issued approximately 1,604,000,
629,000, and 442,000 shares of common stock for all of the outstanding shares
of common stock of Citizens, Parkway, and Calhoun, respectively. At March 31,
1994, Citizens, Parkway, and Calhoun had total assets of approximately $313
million, $130 million, and $72 million, respectively.
In the aggregate, when the three month period ended March 31, 1994 is
restated for these three poolings-of-interests, AmSouth's gross interest margin
will be $134.3 million, net income will be $39.0 million and earnings per
common share will be $0.72.
On June 23, 1994, AmSouth completed the acquisition of Fortune Bancorp, Inc.
(Fortune), which was accounted for using the purchase method of accounting,
through the issuance of approximately 4,474,000 shares of common stock and
payment of approximately $144.6 million in cash. At June 23, 1994, Fortune had
total consolidated assets of approximately $2.7 billion including loans net of
unearned income of approximately $1.5 billion and securities of approximately
$906.7 million. Fortune's total deposits at June 23, 1994 were approximately
$1.7 billion. Approximately $167.0 million of goodwill resulting from the
acquisition will be amortized on a straight line basis over 20 years.
The operating results of the Fortune acquisition are included in AmSouth's
consolidated statement of earnings since the date of acquisition. The following
unaudited pro forma summary presents the consolidated
5
<PAGE>
AMSOUTH BANCORPORATION AND SUBSIDIARIES
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS--(CONTINUED)
(UNAUDITED)
statement of earnings as if the acquisition occurred at the beginning of 1993,
after giving effect to certain adjustments, including amortization of goodwill
and related income tax effects. These pro forma results have been prepared for
comparison purposes only and do not purport to be indications of what would
have occurred had the acquisition been made as of the beginning of 1993 or of
results which may occur in the future.
<TABLE>
<CAPTION>
SIX MONTHS
ENDED JUNE 30
---------------------
1994 1993
---------- ----------
(IN THOUSANDS EXCEPT
PER SHARE DATA)
<S> <C> <C>
Gross interest margin.................................. $304,234 $284,055
Net income............................................. 69,280 78,971
Earnings per common share.............................. 1.17 1.44
</TABLE>
On March 9, 1994, AmSouth signed an agreement to enter into a business
combination with The Tampa Banking Company (Tampa), headquartered in Tampa,
Florida, and its subsidiary, The Bank of Tampa. At June 30, 1994, Tampa had
total consolidated assets of approximately $218.9 million and total
consolidated deposits of approximately $203.7 million. Under the terms of the
agreement, AmSouth will issue 1.5592 shares of AmSouth common stock for each of
the outstanding shares of Tampa common stock, subject to adjustment. At June
30, 1994, Tampa, had approximately 629,000 shares of common stock outstanding.
The transaction will be accounted for using the pooling-of-interests method of
accounting.
On March 31, 1994, AmSouth signed an agreement to acquire Community Federal
Savings Bank (Community), headquartered in Fort Oglethorpe, Georgia. At June
30, 1994, Community had total assets of approximately $102.8 million and total
deposits of approximately $88.4 million. Under the terms of the agreement,
AmSouth will pay $65.50 for each of the outstanding shares of Community common
stock for a total purchase price of approximately $17.2 million. The
transaction will be accounted for using the purchase method of accounting.
Cash Flows--For the six months ended June 30, 1994 and 1993, AmSouth paid
interest of $179,286,000 and $164,731,000, respectively, and income taxes of
$54,608,000 and $43,593,000, respectively. Noncash transfers from loans to
foreclosed properties for the six months ended June 30, 1994 and 1993 were
$19,233,000 and $4,288,000, respectively. For the six months ended June 30,
1994 and 1993, noncash transfers from foreclosed properties to loans were
$2,607,000 and none, respectively. Noncash transfers from available-for-sale
securities to held-to-maturity securities for the six months ended June 30,
1994 and 1993, were $327,886,000 and none, respectively.
Long-Term Debt--On May 19, 1994, AmSouth issued $150.0 million in 7 3/4%
Subordinated Notes Due 2004 at a discounted price of 99.389%. The net proceeds
to AmSouth after commissions totaled $148.1 million for an effective rate to
maturity of 7.94%. The notes will mature on May 15, 2004 and are not redeemable
prior to maturity. Substantially all of the proceeds from the notes were used
for the Fortune acquisition.
6
<PAGE>
(LETTERHEAD OF ERNST & YOUNG)
INDEPENDENT ACCOUNTANTS' REVIEW REPORT
The Board of Directors
AmSouth Bancorporation
We have reviewed the accompanying consolidated statement of condition of
AmSouth Bancorporation and subsidiaries as of June 30, 1994 and 1993, and the
related consolidated statement of earnings for the three-month and six-month
periods ended June 30, 1994 and 1993, and the consolidated statement of cash
flows for the six-month periods ended June 30, 1994 and 1993. These financial
statements are the responsibility of the Company's management.
We conducted our reviews in accordance with standards established by the
American Institute of Certified Public Accountants. A review of interim
financial information consists principally of applying analytical procedures to
financial data, and making inquiries of persons responsible for financial and
accounting matters. It is substantially less in scope than an audit conducted
in accordance with generally accepted auditing standards, which will be
performed for the full year with the objective of expressing an opinion
regarding the financial statements taken as a whole. Accordingly, we do not
express such an opinion.
Based on our reviews, we are not aware of any material modifications that
should be made to the accompanying consolidated financial statements referred
to above for them to be in conformity with generally accepted accounting
principles.
We have previously audited, in accordance with generally accepted auditing
standards, the consolidated statement of condition of AmSouth Bancorporation
and subsidiaries as of December 31, 1993, and the related consolidated
statements of earnings, shareholders' equity, and cash flows for the year then
ended (not presented herein) and in our report dated January 31, 1994, we
expressed an unqualified opinion on those consolidated financial statements. In
our opinion, the information set forth in the accompanying consolidated
statement of conditions as of December 31, 1993, is fairly stated, in all
material respects, in relation to the consolidated statement of condition from
which it has been derived.
/s/ Ernst & Young
August 10, 1994
7
<PAGE>
ITEM 2. MANAGEMENT'S DISCUSSION AND ANALYSIS OF FINANCIAL CONDITION AND RESULTS
OF OPERATIONS
For the six months ended June 30, 1994, AmSouth reported net income of $81.9
million compared to $77.8 million for the same period of 1993. On a per common
share basis, AmSouth earned $1.50 compared to $1.54 for the first six months of
1993. AmSouth's net income for the second quarter of 1994 was $42.9 million,
compared to $39.7 million for the second quarter of 1993. Earnings per common
share was the same for both quarters at $0.78.
For the six months ended June 30, 1994 and 1993, the annualized return on
average assets (ROA) was 1.20% and 1.30%, respectively. The annualized return
on average equity (ROE) for the same periods was 13.85% and 15.79%. For the
second quarter, ROA and ROE were 1.22% and 14.31%, respectively, compared to
1.29% and 15.55% for the second quarter of 1993.
Net Interest Margin
The net interest margin for the six months ended June 30, 1994 totaled $265.4
million compared to $231.3 million for the same period of 1993. An increase in
revenue from earning assets and a decrease in provision for loan losses were
partially offset by an increase in interest expense. For the second quarter of
1994 and 1993, the net interest margin was $133.4 million and $117.1 million,
respectively. The gross interest spread declined 20 basis points for the six
months and 22 basis points for the quarter compared to the prior year. The
provision for loan losses for the six months and three months ended June 30,
1994 totaled $5.2 million and $3.0 million, respectively, the result of
continued good asset quality and an increase in recoveries of loans previously
charged off.
A 13.8% increase in year-to-date average earning assets combined with a 26
basis point decline in the six month annualized yield resulted in a $42.6
million increase in revenue from earning assets. The primary reason for the
increase in average earning assets was a 20.5% increase in average loans net of
unearned income. Exclusive of the acquisition of Mid-State Federal Savings Bank
(Mid-State) in December 1993 and Fortune in June 1994, which were accounted for
as purchases, AmSouth experienced loan growth of approximately 13%. Residential
first mortgages represented approximately 36% of this growth. At June 30, 1994,
the majority of AmSouth's residential loan portfolio consisted of adjustable
rate mortgages; therefore the declining rates on residential first mortgages
over the past twelve months contributed to the decrease in average earning
asset yields.
The year-to-date average balance of total securities increased 3.6% with the
six month annualized yield falling from 6.99% to 6.43%. The decline in yields
on securities was partially due to the overall decline in the market. Maturing
securities and securities sold were partially replaced with lower yielding
instruments.
Year-to-date average interest-bearing liabilities increased $1.2 billion,
funding approximately 79% of the increase in average earning assets. Another
14% of the increase was funded by a $209.3 million increase in average
noninterest bearing demand deposits. In general the rates paid on interest-
bearing liabilities are declining slower than the decline of yields on earning
assets. This slower decline resulted in a 20 basis point decline in both the
incremental and gross interest spread for the six months ended June 30, 1994.
For the quarter ended June 30, 1994, the incremental and gross interest spreads
decreased 25 and 22 basis points, respectively, compared to the same period of
the prior year.
AmSouth maintains an asset and liability process to control interest rate
risk and assist management in maintaining stability in the gross interest
margin. In addition, AmSouth utilizes various off-balance sheet instruments
such as interest rate swaps, caps and floors to manage interest rate risk.
Tables 4 and 5 summarize recent use of interest rate contracts and the maturity
of current contracts outstanding. The contracts
8
<PAGE>
outstanding at June 30, 1994, are being used to hedge the following balance
sheet items for the notional amounts shown:
<TABLE>
<CAPTION>
NOTIONAL
AMOUNT
-------------
(IN MILLIONS)
<S> <C>
Securities.................................................... $ 285
Loans......................................................... 650
Federal funds purchased and securities sold under agreements
to repurchase................................................ 705
Deposits...................................................... 900
------
$2,540
======
</TABLE>
In addition, AmSouth had interest rate contracts on behalf of its customers
in the amount of $83.2 million at June 30, 1994. For the six months ended June
30, 1994 and 1993, interest rate contracts increased the gross interest margin
$1.3 million and $4.6 million, respectively. For the quarter ended June 30,
1994, interest rate contracts had no material impact on the gross interest
margin. The impact on the gross interest margin for the second quarter of 1993
was an increase of $2.1 million.
Credit Quality
AmSouth maintains an allowance for loan losses to absorb potential future
losses. AmSouth's management continuously evaluates the adequacy of the
allowance for loan losses. As changes in the mix of the loan portfolio occur,
including the current increase in residential first mortgage loans which
inherently have less risk, management will monitor not only the absolute level
of the allowance but also the coverage ratio of nonperforming loans. Table 6
shows a comparison of the types of loans outstanding, nonperforming loans by
type, and net charge-offs by type for June 30, 1994 and 1993. The coverage
ratio of the allowance for loan losses to nonperforming loans decreased to
161.95% compared to 188.11% at June 30, 1993. A five quarter comparison of the
components of nonperforming assets is shown in Table 7. Nonperforming assets as
a percentage of loans net of unearned income, foreclosed properties and
repossessions increased from 1.22% at June 30, 1993 to 1.30% at June 30, 1994.
Without the effect of the Fortune purchase, the level of nonperforming assets
remained essentially flat.
Table 8 presents a five quarter analysis of the allowance for loan losses. At
June 30, 1994, the ratio of allowance for loan losses to loans net of unearned
income was 1.56% compared to 1.50% for the prior year. The purchase of Fortune
added $35.0 million to the allowance for loan losses. Annualized net charge-
offs to average loans net of unearned income for the three months ended June
30, 1994 was 16 basis points compared to 47 basis points for the same period of
1993.
Noninterest Revenues and Noninterest Expenses
Noninterest revenues remained level for both the six months and quarter ended
June 30, 1994 compared to the same periods of 1993. Within the components of
noninterest revenues, year-to-date increases occurred in service charges on
deposit accounts of $3.4 million, trust income of $2.6 million and gains on
securities available-for-sale of $1.9 million. For the second quarter, the
largest increases occurred in service changes on deposit accounts and trust
income with each increasing $1.6 million over the prior year. The increase in
service charges on deposit accounts for both periods was primarily due to an
increased volume of analysis fees on corporate accounts and overdraft fees.
Portfolio income decreased $3.9 million for the six months and $1.1 million for
the quarter primarily due to declines in the securities market in 1994. Year-
to-date and second quarter investment services income decreased $3.8 million
and $2.2 million, respectively, primarily due to continued interest rate
instability in the bond market.
Noninterest expenses increased $24.5 million for the six months and $11.4
million for the second quarter compared to 1993. Exclusive of Mid-State,
noninterest expenses increased during the same periods, $17.1 million and $7.7
million, respectively. Year-to-date and quarterly salaries and employee
benefits increased
9
<PAGE>
$8.5 million and $3.2 million, respectively, with $2.7 million and $1.4 million
attributable to Mid-State. Net occupancy expense increased $3.7 million for the
six months and $2.5 million for the quarter. Other operating expenses increased
$9.9 million year-to-date and $4.3 million for the quarter primarily due to
investment expenses and general overhead costs.
Capital Adequacy
At June 30, 1994, shareholders' equity totaled $1.3 billion, or 7.66% of
total assets. Since December 31, 1993, shareholders' equity increased $184.6
million primarily due to the equity issued for the Fortune purchase of $125.8
million and to net income less dividends of $43.2 million. In May 1994, AmSouth
issued $150.0 million in long-term subordinated debt which qualifies as Tier 2
capital. At June 30, 1994, AmSouth remains well above the regulatory minimum
required risk-adjusted Tier 1 capital ratio of 4.00% and the regulatory minimum
required risk-adjusted total capital ratio of 8.00%. Table 12 presents the
calculation of the risk-adjusted capital ratios for AmSouth at June 30, 1994
and 1993. In addition, the risk-adjusted capital ratios for AmSouth's banking
subsidiaries were well above the regulatory minimum and each subsidiary was
well-capitalized at June 30, 1994. The total risk-adjusted capital ratio for
each of AmSouth's major subsidiaries was:
<TABLE>
<S> <C>
AmSouth Bank of Alabama............................................... 11.05%
AmSouth Bank of Florida............................................... 11.26%
AmSouth Bank of Tennessee............................................. 17.75%
</TABLE>
10
<PAGE>
TABLE 1--FINANCIAL SUMMARY
<TABLE>
<CAPTION>
JUNE 30
------------------------ %
1994 1993 CHANGE
----------- ----------- ------
(IN THOUSANDS
EXCEPT PER SHARE DATA)
<S> <C> <C> <C>
BALANCE SHEET SUMMARY
End of period balances:
Loans net of unearned income.................. $10,580,364 $ 7,648,448 38.3%
Total securities.............................. 4,538,682* 3,345,691 35.7
Total assets.................................. 17,337,405 12,518,689 38.5
Total deposits................................ 12,218,955 9,543,028 28.0
Shareholders' equity.......................... 1,327,336 1,038,198 27.8
Year to date average balances:
Loans net of unearned income.................. $ 8,889,208 $ 7,379,073 20.5%
Total securities.............................. 3,369,102* 3,251,435 3.6
Total assets.................................. 13,707,897 12,050,504 13.8
Total deposits................................ 10,510,403 9,301,828 13.0
Shareholders' equity.......................... 1,192,222 993,320 20.0
</TABLE>
<TABLE>
<CAPTION>
SIX MONTHS THREE MONTHS
ENDED JUNE 30 ENDED JUNE 30
-------------------- % -------------------- %
1994 1993 CHANGE 1994 1993 CHANGE
-------- -------- ------ -------- -------- ------
<S> <C> <C> <C> <C> <C> <C>
EARNINGS SUMMARY
Net income.............. $ 81,874 $ 77,774 5.3% $ 42,900 $ 39,699 8.1%
Per common share........ 1.50 1.54 (2.6) 0.78 0.78 0.0
SELECTED RATIOS
Return on average assets
(annualized)........... 1.20% 1.30% 1.22% 1.29%
Return on average equity
(annualized)........... 13.85 15.79 14.31 15.55
Average equity to aver-
age assets............. 8.70 8.24 8.55 8.30
Allowance for loan
losses to
loans net of unearned
income................. 1.56 1.50 1.56 1.50
Efficiency ratio........ 63.35 60.41 62.06 59.52
COMMON STOCK DATA
Cash dividends declared. $ 0.70 $ 0.58 $ 0.35 $ 0.29
Book value at end of pe-
riod................... 22.53 20.36 22.53 20.36
Market value at end of
period................. 31 3/8 32 3/4 31 3/8 32 3/4
Average common shares
outstanding............ 54,558 50,345 54,782 50,965
</TABLE>
- --------
* Excludes market valuation on available-for-sale securities of $(16,853) for
end of period and $(2,806) for year to date average balances.
11
<PAGE>
TABLE 2 - YEAR-TO-DATE YIELDS ON AVERAGE EARNING ASSETS AND RATES ON AVERAGE
INTEREST-BEARING LIABILITIES
<TABLE>
<CAPTION>
1994 1993
---------------------------- ----------------------------
SIX MONTHS ENDED JUNE 30 SIX MONTHS ENDED JUNE 30
---------------------------- ----------------------------
AVERAGE REVENUE/ YIELD/ AVERAGE REVENUE/ YIELD/
BALANCE EXPENSE RATE BALANCE EXPENSE RATE
----------- -------- ------ ----------- -------- ------
(TAXABLE EQUIVALENT BASIS-DOLLARS IN THOUSANDS)
<S> <C> <C> <C> <C> <C> <C>
ASSETS
Earning assets:
Loans net of unearned
income................ $ 8,889,208 $348,998 7.92% $ 7,379,073 $300,927 8.22%
Trading securities..... 56,739 1,526 5.42 31,057 804 5.22
Available-for-sale se-
curities.............. 1,059,859 25,918 4.93 481,027 13,918 5.83
Held-to-maturity secu-
rities
Taxable................ 1,920,466 61,632 6.47 2,346,175 77,321 6.65
Tax-free............... 332,038 18,374 11.16 393,176 20,722 10.63
----------- -------- ----------- --------
Total held-to-matu-
rity securities...... 2,252,504 80,006 7.16 2,739,351 98,043 7.22
----------- -------- ----------- --------
Total securities..... 3,369,102 107,450 6.43 3,251,435 112,765 6.99
Other earning assets... 352,070 8,535 4.89 446,884 9,556 4.31
----------- -------- ----------- --------
Total earning assets. 12,610,380 464,983 7.44 11,077,392 423,248 7.70
Cash and other assets... 1,233,405 1,085,711
Allowance for loan loss-
es..................... (133,082) (112,599)
Market valuation on
available-for-sale se-
curities............... (2,806) -0-
----------- -----------
$13,707,897 $12,050,504
----------- -----------
LIABILITIES AND SHARE-
HOLDERS' EQUITY
Interest-bearing liabil-
ities:
Interest-bearing demand
deposits.............. $ 3,574,434 49,185 2.77 $ 3,205,853 42,672 2.68
Savings deposits....... 899,529 11,246 2.52 758,095 10,303 2.74
Time deposits.......... 3,568,887 74,967 4.24 3,065,268 71,246 4.69
Certificates of deposit
of $100,000 or more... 712,345 14,226 4.03 726,699 15,522 4.31
Federal funds purchased
and securities sold
under agreements to
repurchase............ 1,123,527 20,578 3.69 1,027,162 15,778 3.10
Other interest-bearing
liabilities........... 695,716 16,525 4.79 574,249 12,420 4.36
----------- -------- ----------- --------
Total interest-bearing
liabilities........... 10,574,438 186,727 3.56 9,357,326 167,941 3.62
-------- ----- -------- -----
Incremental interest
spread............... 3.88% 4.08%
===== =====
Noninterest-bearing de-
mand deposits.......... 1,755,208 1,545,913
Other liabilities....... 186,029 153,945
Shareholders' equity.... 1,192,222 993,320
----------- -----------
$13,707,897 $12,050,504
=========== ===========
Gross interest
margin/spread on a
taxable equivalent
basis.................. 278,256 4.45% 255,307 4.65%
===== =====
Taxable equivalent ad-
justment:
Loans.................. 1,514 1,935
Securities............. 6,118 6,558
-------- --------
Total taxable equiva-
lent adjustment...... 7,632 8,493
-------- --------
Gross interest mar-
gin................. $270,624 $246,814
======== ========
</TABLE>
- --------
NOTE: The taxable equivalent adjustment has been computed based on a 35%
federal income tax rate for the six months ended June 30, 1994 and using
a 34% federal income tax rate for the six months ended June 30, 1993.
12
<PAGE>
TABLE 3--QUARTERLY YIELDS ON AVERAGE EARNING ASSETS AND RATES ON AVERAGE
INTEREST-BEARING LIABILITIES
<TABLE>
<CAPTION>
1994
---------------------------------------------------------- ----------------------------
SECOND QUARTER FIRST QUARTER FOURTH QUARTER
---------------------------- ---------------------------- ----------------------------
AVERAGE REVENUE/ YIELD/ AVERAGE REVENUE/ YIELD/ AVERAGE REVENUE/ YIELD/
BALANCE EXPENSE RATE BALANCE EXPENSE RATE BALANCE EXPENSE RATE
----------- -------- ------ ----------- -------- ------ ----------- -------- ------
ASSETS (TAXABLE EQUIVALENT BASIS-DOLLARS IN THOUSANDS)
<S> <C> <C> <C> <C> <C> <C> <C> <C> <C>
Earning assets:
Loans net of
unearned income.... $ 9,058,853 $180,089 7.97% $ 8,717,679 $168,909 7.86% $ 8,035,879 $160,270 7.91%
Trading
securities......... 37,597 598 6.38 76,094 928 4.95 74,248 867 4.63
Available-for-sale
securities......... 919,733 11,333 4.94 1,201,542 14,585 4.92 798,382 10,981 5.46
Held-to-maturity
securities
Taxable........... 2,326,573 36,068 6.22 1,509,848 25,564 6.87 1,947,448 29,224 5.95
Tax-free.......... 321,311 8,934 11.15 342,884 9,440 11.17 357,236 9,832 10.92
----------- -------- ----------- -------- ----------- --------
Total held-to-
maturity
securities....... 2,647,884 45,002 6.83 1,852,732 35,004 7.66 2,304,684 39,056 6.72
----------- -------- ----------- -------- ----------- --------
Total
securities...... 3,605,214 56,933 6.33 3,130,368 50,517 6.54 3,177,314 50,904 6.36
Other earning
assets............. 289,617 4,017 5.56 415,216 4,518 4.41 554,087 5,058 3.62
----------- -------- ----------- -------- ----------- --------
Total earning
assets.......... 12,953,684 241,039 7.46 12,263,263 223,944 7.41 11,767,280 216,232 7.29
Cash and other
assets............. 1,251,509 1,215,098 1,160,143
Allowance for loan
losses............. (133,344) (132,818) (118,338)
Market valuation on
available-for-sale
securities......... (13,826) 8,337 -0-
----------- ----------- -----------
$14,058,023 $13,353,880 $12,809,085
=========== =========== ===========
LIABILITIES AND
SHAREHOLDERS'
EQUITY
Interest-bearing
liabilities:
Interest-bearing
demand deposits.... $ 3,618,893 26,506 2.94 $ 3,529,482 22,679 2.61 $ 3,374,388 21,785 2.56
Savings deposits... 921,136 5,647 2.46 877,682 5,599 2.59 796,633 5,153 2.57
Time deposits...... 3,574,761 38,133 4.28 3,562,947 36,834 4.19 3,291,675 35,761 4.31
Certificates of
deposit of
$100,000 or more... 695,062 7,220 4.17 729,820 7,006 3.89 718,244 7,347 4.06
Federal funds
purchased and
securities sold
under agreements
to repurchase...... 1,302,683 13,210 4.07 942,380 7,368 3.17 1,110,841 8,099 2.89
Other interest-
bearing
liabilities........ 815,117 10,235 5.04 574,989 6,290 4.44 549,993 6,350 4.58
----------- -------- ----------- -------- ----------- --------
Total interest-
bearing
liabilities...... 10,927,652 100,951 3.71 10,217,300 85,776 3.40 9,841,774 84,495 3.41
-------- ----- -------- ----- -------- -----
Incremental
interest spread.... 3.75% 4.01% 3.88%
===== ===== =====
Noninterest-bearing
demand deposits.... 1,761,226 1,749,126 1,704,833
Other liabilities.. 166,657 205,341 176,541
Shareholders'
equity............. 1,202,491 1,182,113 1,085,937
----------- ----------- -----------
$14,058,023 $13,353,880 $12,809,085
=========== =========== ===========
Gross interest
margin/spread on a
taxable equivalent
basis.............. 140,088 4.34% 138,168 4.57% 131,737 4.44%
===== ===== =====
Taxable equivalent
adjustment:
Loans.............. 759 755 811
Securities......... 2969 3,149 3,278
-------- -------- --------
Total taxable
equivalent
adjustment....... 3728 3,904 4,089
-------- -------- --------
Gross interest
margin.......... $136,360 $134,264 $127,648
======== ======== ========
<CAPTION>
1993
------------------------------------------------------------
THIRD QUARTER SECOND QUARTER
---------------------------- ------------------------------
AVERAGE REVENUE/ YIELD/ AVERAGE REVENUE/ YIELD/
BALANCE EXPENSE RATE BALANCE EXPENSE RATE
----------- -------- ------ ----------- -------- ------
ASSETS
<S> <C> <C> <C> <C> <C> <C>
Earning assets:
Loans net of
unearned income.... $ 7,689,530 $155,951 8.05% $ 7,551,758 $154,048 8.18%
Trading
securities......... 60,832 824 5.37 34,240 439 5.14
Available
- -for-sale
securities......... 657,840 7,676 4.63 489,443 6,048 4.96
Held-to-maturity
securities
Taxable........... 2,322,403 37,278 6.37 2,431,410 39,279 6.48
Tax-free.......... 372,632 9,954 10.60 386,034 10,209 10.61
----------- -------- ----------- --------
Total held-to-
maturity
securities....... 2,695,035 47,232 6.95 2,817,444 49,488 7.05
----------- -------- ----------- --------
Total
securities...... 3,413,707 55,732 6.48 3,341,127 55,975 6.72
Other earning
assets............. 519,525 6,204 4.74 468,877 4,946 4.23
----------- -------- ----------- --------
Total earning
assets.......... 11,622,762 217,887 7.44 11,361,762 214,969 7.59
Cash and other
assets............. 1,081,336 1,087,560
Allowance for loan
losses............. (114,673) (115,106)
Market valuation on
available-for-sale
securities......... -0- -0-
----------- -----------
$12,589,425 $12,334,216
=========== ===========
LIABILITIES AND
SHAREHOLDERS'
EQUITY
Interest-bearing
liabilities:
Interest-bearing
demand deposits.... $ 3,266,837 21,761 2.64 $ 3,229,268 21,320 2.65
Savings deposits... 772,594 5,276 2.71 786,736 5,334 2.72
Time deposits...... 3,212,326 36,211 4.47 3,181,740 36,624 4.62
Certificates of
deposit of
$100,000 or more... 740,251 7,817 4.19 758,340 8,093 4.28
Federal funds
purchased and
securities sold
under agreements
to repurchase...... 1,033,735 8,364 3.21 1,008,559 7,869 3.13
Other interest-
bearing
liabilities........ 726,900 7,461 4.07 610,488 6,484 4.26
----------- -------- ----------- --------
Total interest-
bearing
liabilities...... 9,752,643 86,890 3.53 9,575,131 85,724 3.59
-------- ----- -------- -----
Incremental
interest spread.... 3.91% 4.00%
===== =====
Noninterest-bearing
demand deposits.... 1,640,041 1,582,546
Other liabilities.. 145,589 152,307
Shareholders'
equity............. 1,051,152 1,024,232
----------- -----------
$12,589,425 $12,334,216
=========== ===========
Gross interest
margin/spread on a
taxable equivalent
basis.............. 130,997 4.47% 129,245 4.56%
===== =====
Taxable equivalent
adjustment:
Loans.............. 881 905
Securities......... 3,287 3,195
-------- --------
Total taxable
equivalent
adjustment....... 4,168 4,100
-------- --------
Gross interest
margin.......... $126,829 $125,145
======== ========
</TABLE>
NOTE: Beginning with the third quarter of 1993, the taxable equivalent
adjustment has been computed based on a 35% federal income tax rate.
Prior quarters are computed using a 34% federal income tax rate.
13
<PAGE>
TABLE 4--INTEREST RATE SWAPS AND CAPS
<TABLE>
<CAPTION>
SWAPS
------------------------------------
RECEIVE FIXED PAY FIXED BASIS OTHER CAPS TOTAL
------------- --------- ----- ------ ------ ------
(IN MILLIONS)
<S> <C> <C> <C> <C> <C> <C>
Balance at December 31,
1990..................... $ 300 $ -0- $-0- $ -0- $ -0- $ 300
Additions............... -0- -0- -0- -0- 600 600
Maturities.............. -0- -0- -0- -0- -0- -0-
Calls................... -0- -0- -0- -0- -0- -0-
----- ----- ---- ------ ------ ------
Balance at December 31,
1991..................... 300 -0- -0- -0- 600 900
Additions............... 65 240 300 300 405 1,310
Maturities.............. -0- -0- -0- -0- -0- -0-
Calls................... (60) -0- -0- -0- -0- (60)
----- ----- ---- ------ ------ ------
Balance at December 31,
1992..................... 305 240 300 300 1,005 2,150
Additions............... -0- -0- -0- 300 20 320
Maturities.............. -0- -0- -0- -0- -0- -0-
Calls................... (120) (120) -0- -0- -0- (240)
----- ----- ---- ------ ------ ------
Balance at December 31,
1993..................... 185 120 300 600 1,025 2,230
Additions............... -0- 32 -0- 400 50 482
Maturities.............. -0- (32) -0- -0- (20) (52)
Calls................... (60) (60) -0- -0- -0- (120)
----- ----- ---- ------ ------ ------
Balance at June 30, 1994.. $ 125 $ 60 $300 $1,000 $1,055 $2,540
===== ===== ==== ====== ====== ======
</TABLE>
TABLE 5--MATURITIES AND INTEREST RATES EXCHANGED ON SWAPS AND CAPS
<TABLE>
<CAPTION>
MATURE DURING
JUNE 30 --------------------------------
1994 1994 1995 1996 1997 TOTAL
------- ---- ------ ---- ---- ------
(IN MILLIONS)
<S> <C> <C> <C> <C> <C> <C>
Receive fixed swaps:
Notional............................ $ 125 $ 60 $ 65 $-0- $-0- $ 125
Receive rate........................ 7.02% 9.04% 5.16% 7.02%
Pay rate............................ 4.36% 4.56% 4.56% 4.56%
Pay fixed swaps:
Notional............................ $ 60 $ 60 $ -0- $-0- $-0- $ 60
Receive rate........................ 4.41% 4.56% 4.56%
Pay rate............................ 4.00% 4.00% 4.00%
Basis swaps:
Notional............................ $ 300 $-0- $ -0- $300 $-0- $ 300
Receive rate........................ 4.56% 4.88% 4.88%
Pay rate............................ 5.50% 5.79% 5.79%
Other swaps:
Notional............................ $1,000 $-0- $ 300 $300 $400 $1,000
Receive rate........................ 4.41% 5.83% 5.29% 5.33% 5.46%
Pay rate............................ 4.57% 4.88% 4.88% 4.88% 4.88%
Total swap portfolio:
Notional............................ $1,485 $120 $ 365 $600 $400 $1,485
Receive rate........................ 4.66% 6.80% 5.71% 5.08% 5.33% 5.44%
Pay rate............................ 4.72% 4.28% 4.82% 5.33% 4.88% 5.00%
Total cap portfolio:
Notional............................ $1,055 $-0- $ 945 $ 33 $ 77 $1,055
Pay rate............................ 0.46% 0.47% 1.24% 0.59% 0.51%
Total portfolio:
Notional............................ $2,540 $120 $1,310 $633 $477 $2,540
Receive rate........................ 2.73% 6.80% 1.60% 4.83% 4.47% 3.19%
Pay rate............................ 2.95% 4.28% 1.68% 5.12% 4.18% 3.13%
</TABLE>
- --------
NOTE: The maturities and interest rates exchanged are calculated assuming that
interest rates remain unchanged from June 30, 1994. The information
presented could change as future interest rates increase or decrease.
14
<PAGE>
TABLE 6--LOANS AND CREDIT QUALITY
<TABLE>
<CAPTION>
LOANS NONPERFORMING LOANS* NET CHARGE-OFFS
JUNE 30 JUNE 30 JUNE 30
---------------------- -------------------------------------
1994 1993 1994 1993 1994 1993
----------- ---------- ---------- ----------------- -------
(IN THOUSANDS)
<S> <C> <C> <C> <C> <C> <C>
Commercial.............. $ 2,652,130 $2,319,674 $ 20,545 $24,172 $ 1,383 $ 3,121
Commercial real estate:
Commercial real estate
mortgages:
Owner occupied......... 591,107 357,905 19,886 1,045 139 28
Nonowner occupied...... 784,307 811,463 34,487 22,944 (1,094) 1,315
----------- ---------- ---------- --------- ------- -------
Total commercial real
estate mortgages..... 1,375,414 1,169,368 54,373 23,989 (955) 1,343
----------- ---------- ---------- --------- ------- -------
Real estate construc-
tion
Owner occupied......... 191,684 114,662 2,077 1,887 (169) -0-
Nonowner occupied...... 261,042 242,163 215 2,076 (7) (78)
----------- ---------- ---------- --------- ------- -------
Total real estate
construction......... 452,726 356,825 2,292 3,963 (176) (78)
----------- ---------- ---------- --------- ------- -------
Total commercial real
estate.............. 1,828,140 1,526,193 56,665 27,952 (1,131) 1,265
----------- ---------- ---------- --------- ------- -------
Consumer:
Residential first mort-
gages................. 3,787,197 1,967,065 22,862 5,669 (38) 342
Other residential mort-
gages................. 541,278 497,951 -0- 100 61 109
Dealer indirect........ 775,378 561,446 -0- -0- 646 884
Other consumer......... 1,075,251 849,055 1,653 2,933 7,473 8,677
----------- ---------- ---------- --------- ------- -------
Total consumer....... 6,179,104 3,875,517 24,515 8,702 8,142 10,012
----------- ---------- ---------- --------- ------- -------
$10,659,374 $7,721,384 $101,725 $60,826 $ 8,394 $14,398
=========== ========== ========== ========= ======= =======
</TABLE>
- --------
* Exclusive of accruing loans 90 days past due.
TABLE 7--NONPERFORMING ASSETS
<TABLE>
<CAPTION>
1994 1993
----------------- -------------------------
JUN 30 MAR 31 DEC 31 SEPT 30 JUN 30
----------------- ------- ------- -------
(DOLLARS IN THOUSANDS)
<S> <C> <C> <C> <C> <C>
Nonaccrual loans................. $ 90,550 $63,540 $53,020 $46,514 $57,085
Restructured loans............... 11,175 1,827 2,420 2,674 3,741
-------- ------- ------- ------- -------
Total nonperforming loans...... 101,725 65,367 55,440 49,188 60,826
Foreclosed properties............ 35,266 25,323 29,273 31,939 32,567
Repossessions.................... 887 888 1,081 683 666
-------- ------- ------- ------- -------
Total nonperforming assets*.... $137,878 $91,578 $85,794 $81,810 $94,059
======== ======= ======= ======= =======
Nonperforming assets* to loans
net of unearned income,
foreclosed properties and
repossessions................... 1.30% 1.02% 1.00% 1.05% 1.22%
Accruing loans 90 days past due.. $ 29,959 $28,638 $20,917 $21,074 $21,067
</TABLE>
- --------
* Exclusive of accruing loans 90 days past due.
15
<PAGE>
TABLE 8--ALLOWANCE FOR LOAN LOSSES
<TABLE>
<CAPTION>
1994 1993
----------------------- -----------------------------------
2ND QUARTER 1ST QUARTER 4TH QUARTER 3RD QUARTER 2ND QUARTER
----------- ----------- ----------- ----------- -----------
(DOLLARS IN THOUSANDS)
<S> <C> <C> <C> <C> <C>
Balance at beginning of
period................. $130,488 $131,509 $114,634 $114,420 $115,286
Loans charged off....... 9,512 8,894 8,017 9,189 11,044
Recoveries of loans
previously charged off. 5,796 4,216 2,264 9,592 2,143
-------- -------- -------- -------- --------
Net charge-offs
(recoveries)........... 3,716 4,678 5,753 (403) 8,901
Addition (reduction) to
allowance charged
(credited) to expense.. 2,974 2,207 12,635 (189) 8,035
Allowance acquired in
acquisitions........... 35,000 1,450 9,993 -0- -0-
-------- -------- -------- -------- --------
Balance at end of
period................. $164,746 $130,488 $131,509 $114,634 $114,420
======== ======== ======== ======== ========
Allowance for loan
losses to loans net of
unearned income........ 1.56% 1.46% 1.54% 1.47% 1.50%
Allowance for loan
losses to nonperforming
loans.................. 161.95% 199.62% 237.21% 233.05% 188.11%
Allowance for loan
losses to nonperforming
assets................. 119.49% 142.49% 153.28% 140.12% 121.65%
Net charge-offs to
average loans net of
unearned income
(annualized)........... 0.16% 0.22% 0.28% (0.02%) 0.47%
</TABLE>
TABLE 9--ALLOWANCE FOR FORECLOSED PROPERTY LOSSES
<TABLE>
<CAPTION>
1994 1993
----------------------- -----------------------------------
2ND QUARTER 1ST QUARTER 4TH QUARTER 3RD QUARTER 2ND QUARTER
----------- ----------- ----------- ----------- -----------
(IN THOUSANDS)
<S> <C> <C> <C> <C> <C>
Balance at beginning of
period................. $3,574 $3,908 $ 2,890 $ 7,251 $7,961
Reduction to allowance
credited to expense.... (627) (450) (1,684) (1,060) (541)
Net recoveries
(writedowns)/(losses).. (255) 116 1,848 (3,301) (169)
Allowance acquired in
bank purchases......... -0- -0- 854 -0- -0-
------ ------ ------- ------- ------
Balance at end of the
period................. $2,692 $3,574 $ 3,908 $ 2,890 $7,251
====== ====== ======= ======= ======
</TABLE>
TABLE 10--SECURITIES
<TABLE>
<CAPTION>
JUNE 30, 1994 JUNE 30, 1993
--------------------- ---------------------
CARRYING MARKET CARRYING MARKET
AMOUNT VALUE AMOUNT VALUE
---------- ---------- ---------- ----------
(IN THOUSANDS)
<S> <C> <C> <C> <C>
Held-to-maturity
U.S. Treasury and federal agency
securities...................... $3,156,061 $3,081,153 $2,102,887 $2,158,902
State, county and municipal secu-
rities.......................... 314,084 330,742 382,993 405,713
Other securities................. 7,970 7,900 264,906 268,873
---------- ---------- ---------- ----------
$3,478,115 $3,419,795 $2,750,786 $2,833,488
========== ========== ========== ==========
Available-for-sale
U.S. Treasury and federal agency
securities...................... $ 969,594 $ 160,394
Other securities................. 60,918 406,835
---------- ----------
$1,030,512 $ 567,229
========== ==========
</TABLE>
16
<PAGE>
TABLE 11--OTHER INTEREST-BEARING LIABILITIES
<TABLE>
<CAPTION>
JUNE 30
---------------------
1994 1993
---------- ----------
(IN THOUSANDS)
<S> <C> <C>
Short-term:
Treasury, tax, and loan note........................... $ 660,838 $ 719,000
Term federal funds purchased........................... 244,000 95,000
Other.................................................. 60,112 71,585
---------- ----------
Total short-term..................................... 964,950 885,585
Long-term:
Federal Home Loan Bank advances........................ 239,635 20,885
7 3/4% Subordinated Notes Due 2004..................... 149,091 -0-
Subordinated Capital Notes............................. 99,376 99,247
Floating Rate Notes Due 1999........................... 7,659 8,205
7 1/2% Convertible Subordinated Debentures............. 3,709 3,488
Long-term notes payable................................ 22,207 41,115
---------- ----------
Total long-term...................................... 521,677 172,940
---------- ----------
Total other interest-bearing liabilities........... $1,486,627 $1,058,525
========== ==========
</TABLE>
TABLE 12--CAPITAL RATIOS
<TABLE>
<CAPTION>
JUNE 30
------------------------
1994 1993
----------- -----------
(DOLLARS IN THOUSANDS)
<S> <C> <C>
Risk-adjusted capital ratio:
Total assets....................................... $17,337,405 $12,518,689
Adjusted allowance for loan losses................. 145,604 114,380
Adjustment for risk-weighting of balance sheet
items............................................. (7,028,582) (4,379,057)
Adjustment for off-balance sheet items............. 1,390,551 1,238,869
Add unrealized losses on available-for-sale securi-
ties.............................................. 16,853 -0-
Less certain intangible assets..................... (232,683) (97,629)
----------- -----------
Total risk-adjusted assets....................... $11,629,148 $ 9,395,252
=========== ===========
Shareholders' equity............................... $ 1,327,336 $ 1,038,198
Add unrealized losses on available-for-sale securi-
ties (net of
deferred taxes)................................... 10,555 -0-
Less certain intangible assets..................... (232,683) (97,629)
----------- -----------
Tier I capital..................................... 1,105,208 940,569
Adjusted allowance for loan losses................. 145,604 114,380
Qualifying long-term debt.......................... 252,176 102,735
----------- -----------
Tier II capital.................................... 397,780 217,115
----------- -----------
Total capital.................................... $ 1,502,988 $ 1,157,684
=========== ===========
Tier I capital to total risk-adjusted assets....... 9.50% 10.01%
Total capital to risk-adjusted assets.............. 12.92% 12.32%
Other capital ratios:
Leverage........................................... 7.99% 7.69%
Equity to assets................................... 7.66% 8.29%
Tangible equity to assets.......................... 5.68% 7.34%
</TABLE>
17
<PAGE>
PART II
OTHER INFORMATION
ITEM 5. OTHER INFORMATION
Since March 31, 1994, AmSouth has completed the following business
combinations, the terms of which are summarized in the following table.
<TABLE>
<CAPTION>
APPROXIMATE CONSIDERATION/
HEADQUARTERS TOTAL ACCOUNTING COMPLETION
NAME OF ACQUIRED COMPANY LOCATION ASSETS (1) TREATMENT DATE
- ------------------------ ------------ ----------- -------------- ----------
<S> <C> <C> <C> <C>
Citizens Naples, Florida $313 million common stock/ April 1994
National pooling-of-interests
Corporation
Parkway Ft. Myers, Florida 130 million common stock/ April 1994
Bancorp, pooling-of-interests
Inc.
First Federal Calhoun, Georgia 72 million common stock/ April 1994
Savings pooling-of-interests
Bank, Cal-
houn, Geor-
gia
Fortune Clearwater, Florida 2.7 billion cash and common June 1994
Bancorp, stock/purchase
Inc.
</TABLE>
- --------
(1) The dollar amounts indicated represent assets of the specified
organization as of the last reported period prior to the business
combination.
As of the date of this Form 10-Q, AmSouth is a party to two other pending
business combinations, which are summarized in the table below. Consummation
of each of these transactions remains subject to fulfillment of a number of
conditions, including receipt of shareholder and regulatory approvals. No
assurances can be given that such conditions will be fulfilled or that such
transactions will be consummated.
<TABLE>
<CAPTION>
APPROXIMATE
HEADQUARTERS TOTAL CONSIDERATION/EXPECTED
NAME OF COMPANY TO BE ACQUIRED LOCATION ASSETS (1) ACCOUNTING TREATMENT
- ------------------------------ ------------ ----------- ----------------------
<S> <C> <C> <C>
The Tampa Banking Tampa, Florida $219 million common stock/
Company pooling-of-interests
Community Federal Fort Oglethorpe, Georgia 103 million cash/purchase
Savings Bank
</TABLE>
- --------
(1) The dollar amounts indicated represent assets of the specified
organization as of June 30, 1994.
On May 19, 1994, AmSouth issued $150,000,000 of its 7 3/4% subordinated
notes due 2004. The effect of the issuance of these notes is reflected in the
financial statements that are a part of this report on Form 10-Q.
ITEM 6. EXHIBITS AND REPORTS ON FORM 8-K
Item 6(a)--Exhibits
The exhibits listed in the Exhibit Index at page 21 of this Form 10-Q are
filed herewith or are incorporated by reference herein.
Item 6(b)--Forms 8-K
The following Forms 8-K have been filed by AmSouth since March 31, 1994 and
have not previously been reported in AmSouth's Form 10-Q for the quarter ended
March 31, 1994:
18
<PAGE>
Form 8-K filed on May 19, 1994 to report pro forma financial statements
that give effect to pending mergers and acquisitions as of March 31, 1994.
Form 8-K filed on May 20, 1994 to file the Consent of Dillon Read & Co.,
Inc. relating to Registration Statement No. 33-52961 on Form S-4.
Form 8-K filed on June 10, 1994 to report the results of the pricing period
computations required in the agreement for the acquisition of Fortune
Bancorp, Inc., by AmSouth.
Form 8-K filed on July 8, 1994 to report the merger of Fortune Bancorp,
Inc. into AmSouth.
19
<PAGE>
SIGNATURES
PURSUANT TO THE REQUIREMENTS OF THE SECURITIES EXCHANGE ACT OF 1934, AMSOUTH
HAS DULY CAUSED THIS REPORT TO BE SIGNED ON ITS BEHALF BY THE UNDERSIGNED
THEREUNTO DULY AUTHORIZED.
Date: August 11, 1994 /s/ John W. Woods
By: _________________________________
Chairman of the Board, Chief
Executive Officer and President
Date: August 11, 1994 /s/ Ricky W. Thomas
By: _________________________________
Senior Vice President and
Controller (Principal Accounting
Officer)
20
<PAGE>
EXHIBIT INDEX
The following is a list of exhibits including items incorporated by
reference.
2-a Agreement and Plan of Merger dated as of June 29, 1992 between
First Chattanooga Financial Corporation and AmSouth
Bancorporation (1)
2-b Agreement and Plan of Reorganization dated as of January 21,
1993 among the First National Bank of Clearwater and Mickler
Corporation and AmSouth Bancorporation (2)
2-c Agreement and Plan of Merger dated as of March 29, 1993
between Orange Banking Corporation and AmSouth Bancorporation
(3)
2-d Amended and Restated Agreement and Plan of Reorganization by
and between Mid-State Federal Savings Bank and AmSouth
Bancorporation dated as of April 22, 1993, and amended and
restated as of June 22, 1993 (4)
2-e Agreement and Plan of Merger dated as of May 11, 1993 between
First Sunbelt Bankshares Inc. and AmSouth Bancorporation (5)
2-f Agreement and Plan of Merger dated as of June 30, 1993 between
FloridaBank, a Federal Savings Bank and AmSouth Bancorporation
(6)
2-g Agreement and Plan of Merger dated as of July 29, 1993 between
Parkway Bancorp, Inc. and AmSouth Bancorporation (7)
2-h Agreement and Plan of Merger dated as of August 3, 1993
between First Federal Savings Bank, Calhoun, Georgia and
AmSouth Bancorporation (8)
2-i Agreement and Plan of Merger dated as of August 9, 1993
between Citizens National Corporation and AmSouth
Bancorporation (9)
2-j Agreement and Plan of Merger dated as of September 12, 1993,
between Fortune Bancorp, Inc. and AmSouth Bancorporation, as
amended by amendment dated as of May 11, 1994 (10)
3 Bylaws of AmSouth Bancorporation, as amended
4-a Instruments defining the rights of security holders (11)
4-b Stockholder Protection Rights Agreement dated as of June 15,
1989 between AmSouth Bancorporation and AmSouth Bank, National
Association as Rights Agent, including as Exhibit A the forms
of Rights Certificate and of Election to Exercise and as
Exhibit B the form of Certificate of Designation and Terms of
Series A Preferred Stock (12)
4-c Certificate of Designation and Terms of Series A Preferred
Stock of AmSouth Bancorporation (13)
10-a AmSouth Bancorporation Executive Incentive Plan (14)
10-b AmSouth Bancorporation Transfer/Employee Relocation Policy
(15)
10-c AmSouth Bank Supplemental Retirement Plan (16)
10-d AmSouth Bancorporation Long Term Incentive Compensation Plan
(17)
10-e Amendment No. 1 to the AmSouth Bancorporation Long Term
Incentive Compensation Plan (18)
10-f
Amendment No. 2 to the AmSouth Bancorporation Long Term
Incentive Compensation Plan (19)
21
<PAGE>
10-g Amendment No. 3 to the AmSouth Bancorporation Long Term
Incentive Compensation Plan (20)
10-h Amendment No. 4 to the AmSouth Bancorporation Long Term
Incentive Compensation Plan (21)
10-i 1989 AmSouth Bancorporation Long Term Incentive Compensation
Plan (22)
10-j AmSouth Bancorporation 1987 Substitute Stock Option Plan (23)
10-k Change in Control Compensation Agreements (24)
10-l Deferred Compensation Plan for Directors of AmSouth and
AmSouth Bank N.A. (25)
10-m Agreement between AmSouth Bank N.A. and Brasfield & Gorrie
General Contractor, Inc. (Infrastructure)
10-n Agreement between AmSouth Bank N.A. and Brasfield & Gorrie
General Contractor, Inc. (Buildings)
10-o Guaranty Agreement between AmSouth Bank N.A. and Brasfield &
Gorrie General Contractor, Inc.
11 Statement re Computation of Earnings per Share
15 Letter re Unaudited Interim Financial Information
22
<PAGE>
NOTES TO EXHIBITS
(1) Filed as Exhibit 2 to AmSouth's Registration Statement on Form S-4
(Registration Statement No. 33-53088), incorporated herein by reference
(2) Filed as Exhibit 2(a) to AmSouth's Registration Statement on Form S-4
(Registration Statement No. 33-60164), incorporated herein by reference
(3) Filed as Exhibit 2(a) to AmSouth's Registration Statement on Form S-4
(Registration Statement No. 33-49865), incorporated herein by reference
(4) Filed as Exhibit 2(a) to AmSouth's Registration Statement on Form S-4
(Registration Statement No. 33-64960), incorporated herein by reference
(5) Filed as Exhibit 2(a) to AmSouth's Registration Statement on Form S-4
(Registration Statement No. 33-50041), incorporated herein by reference
(6) Filed as Exhibit 2(a) to AmSouth's Registration Statement on Form S-4
(Registration Statement No. 33-50605), incorporated herein by reference
(7) Filed as Exhibit 2(a) to AmSouth's Registration Statement on Form S-4
(Registration Statement No. 33-50727), incorporated herein by reference
(8) Filed as Exhibit 2(a) to AmSouth's Registration Statement on Form S-4
(Registration Statement No. 33-51767), incorporated herein by reference
(9) Filed as Exhibit 2(a) to AmSouth's Registration Statement on Form S-4
(Registration Statement No. 33-50865), incorporated herein by reference
(10) Filed as Exhibit 2(a) to AmSouth's Report on Form 8-K filed on September
16, 1993, as amended by a Form 8-K/A filed on September 23, 1993, and
Annex A to the Supplement to the Proxy Statement/Prospectus dated May 12,
1994 and filed by AmSouth pursuant to rule 424 (b)(3), incorporated herein
by reference
(11) Instruments defining the right of holders of long-term debt of AmSouth are
not filed herewith pursuant to Item 601(b) (4)(v) of Regulation S-K, and
AmSouth hereby agrees to furnish a copy of said instruments to the SEC
upon request
(12) Filed as Exhibit 4-a to AmSouth's Form 10-Q Quarterly Report for the
quarter ended June 30, 1989, incorporated herein by reference
(13) Filed as Exhibit 4-c to AmSouth's Form 10-Q Quarterly Report for the
quarter ended June 30, 1989, incorporated herein by reference
(14) Filed as Exhibit 10(b) to AmSouth's Form 10-Q Quarterly Report for the
quarter ended September 30, 1993, incorporated herein by reference
(15) Filed as Exhibit 10-b to AmSouth's Form 10-K Annual Report for the year
ended December 31, 1993, incorporated herein by reference
(16) Filed as Exhibit 10-b to AmSouth's Form 10-Q Quarterly Report for the
quarter ended September 30, 1991, incorporated herein by reference
(17) Filed as part of Exhibit 23 to AmSouth's Form 10-Q Quarterly Report for
the quarter ended March 31, 1984, incorporated herein by reference
(18) Filed as Exhibit 10-e to AmSouth's Form 10-K Annual Report for the year
ended December 31, 1985, incorporated herein by reference
(19) Filed as Exhibit 10-b to AmSouth's Form 10-Q Quarterly Report for the
quarter ended March 31, 1987, incorporated herein by reference
(20) Filed as Exhibit 10(b) to AmSouth's Form 10-Q Quarterly Report for the
quarter ended September 30, 1988, incorporated herein by reference
(21) Filed as Exhibit 10-i to AmSouth's Form 10-K Annual Report for the year
ended December 31, 1988, incorporated herein by reference
(22) Filed as Exhibit 10 to AmSouth's Form 10-Q Quarterly Report for the
quarter ended March 31, 1993, incorporated herein by reference
(23) Filed as Exhibit 10-a to AmSouth's Form 10-Q Quarterly Report for the
quarter ended March 31, 1988, incorporated herein by reference
(24) Filed as Exhibit 10-k to AmSouth's Form 10-K Annual Report for the year
ended December 31, 1992, incorporated herein by reference
(25) Filed as Exhibit 10-a to AmSouth's Form 10-Q Quarterly Report for the
quarter ended June 30, 1986, incorporated herein by reference
23
<PAGE>
EXHIBIT 3
SECTION 1.1: PRINCIPAL OFFICE AND OTHER OFFICES
The principal office of the corporation in the State of
Alabama shall be located in the City of Birmingham, County of
Jefferson. The corporation may have such other offices,
either within or without the State of Alabama, as the Board
of Directors may designate or as the business of the
corporation may require from time to time.
1
<PAGE>
SECTION 2.1: ANNUAL MEETING
The annual meeting of the shareholders shall be held on the
third Thursday in the month of April in each year, at the
hour of 11:00 o'clock, a.m., for the purpose of electing
directors and for the transaction of such other business as
may come before the meeting. If the day fixed for the annual
meeting shall be a legal holiday in the state in which the
meeting is to be held, such meeting shall be held on the next
succeeding business day. If the election of directors shall
not be held on the day designated herein for any annual
meeting of the shareholders, or at any adjournment thereof,
the Board of Directors shall cause the election to be held at
a special meeting of the shareholders as soon thereafter as
conveniently may be.
SECTION 2.2: SPECIAL MEETINGS
Special meetings of the shareholders, for any purpose or
purposes, may be called only as provided in the Certificate
of Incorporation.
SECTION 2.3: PLACE OF MEETING
The place of meeting shall be the principal office of the
corporation in the State of Alabama unless some other place,
either within or without the State of Alabama, is designated
by the directors at a meeting.
SECTION 2.4: NOTICE OF MEETING
2
<PAGE>
Written or printed notice stating the place, day, and hour of
the meeting and, in the case of a special meeting, or a
meeting which is required by statute to be held for any
special purpose, or of an annual meeting at which special
action is to be taken, the purpose or purposes for which the
meeting is called, or the special action which is proposed to
be taken, shall be delivered either personally or by mail, by
or at the direction of the Board of Directors, the Chief
Executive Officer, the Secretary, or the persons calling the
meeting, to each shareholder of record entitled to vote at
such meeting. If mailed, such notice shall be deemed to be
given when deposited in the United States mail, addressed to
the shareholder at his/her address as it appears on the
records of the corporation, with postage thereon prepaid.
Any such notice shall be delivered: a) with respect to the
annual meeting of shareholders, not less than ten (10) nor
more than fifty (50) days before the date of the meeting, and
b) with respect to any special meeting of shareholders, as
provided in the Certificate of Incorporation.
SECTION 2.5: CLOSING OF TRANSFER BOOKS OR FIXING OF RECORD DATE
For the purpose of determining shareholders entitled to notice
of or to vote at any meeting of shareholders or any
adjournment thereof, or shareholders entitled to receive
payment of any dividend, or in order to make a determination
of shareholders for any other proper purpose, the Board of
Directors of the corporation may provide that the stock
transfer books shall be closed for a stated period but not to
exceed, in any case, fifty (50) days, or in the case of a
determination of shareholders eligible to vote at a special
meeting of shareholders called by the shareholders, not more
than seventy-five (75) days. If the stock transfer books
shall be closed for the purpose of determining shareholders
entitled to notice of or to vote at a meeting of
3
<PAGE>
shareholders, such books shall be closed for at least ten (10)
days immediately preceding such meeting. In lieu of closing
the stock transfer books, the Board of Directors may fix in
advance a date as the record date for any such determination
of shareholders, such date in any case to be not more than
fifty (50) days and, in the case of a meeting of
shareholders, not less than ten (10) days (or, in the case of
a determination of shareholders eligible to vote at a special
meeting of shareholders called by the shareholders, not more
than seventy-five (75) days) prior to the date on which the
particular action, requiring such determination of
shareholders is to be taken. If the stock transfer books are
not closed and no record date is fixed for the determination
of shareholders entitled to notice of or to vote at a meeting
of the shareholders, or shareholders entitled to receive
payment of a dividend, the date on which notice of the meeting
is mailed or the date on which the resolution of the Board of
Directors declaring such dividend is adopted, as the case may
be, shall be the record date for such determination of
shareholders. When a determination of shareholders entitled
to vote at any meeting of shareholders has been made as
provided in this section, such determination shall apply to
any adjournment thereof, except where the determination has
been made through the closing of the stock transfer books and
the stated period of closing has expired.
SECTION 2.6: VOTING LISTS
The officer or agent having charge of the stock ledger for
shares of the corporation shall make, at least ten (10) days
before each meeting of shareholders, a complete list of the
shareholders entitled to vote at such meeting, or any
adjournment thereof, arranged in alphabetical order, with the
address and the number of shares held by each, which list,
for a period of ten (10) days prior to such meeting, shall be
kept on file at the principal office of the corporation
4
<PAGE>
in this state and shall be subject to inspection by any
shareholder at any time during usual business hours. Such
list shall also be produced and kept open at the time and
place of the meeting and shall be subject to the inspection
of any shareholder during the whole time of the meeting. The
original stock ledger shall be the only evidence as to who are
the shareholders entitled to examine such list or stock ledger
or books of the corporation or to vote in person or by proxy
at any meeting of shareholders.
SECTION 2.7: QUORUM
A majority of the outstanding shares of the corporation
entitled to vote, represented in person or by proxy, shall
constitute a quorum at a meeting of shareholders. If less
than a majority of the outstanding shares are represented at
a meeting, a majority of the shares so represented may
adjourn the meeting from time to time without further notice.
At such adjourned meeting at which a quorum shall be present
or represented, any business may be transacted which might
have been transacted at the meeting as originally notified.
The shareholders present at a duly organized meeting may
continue to transact business until adjournment,
notwithstanding the withdrawal of enough shareholders to
leave less than a quorum.
SECTION 2.8: PROXIES
At all meetings of shareholders, a shareholder may vote by
proxy executed in writing by the shareholder or by his/her
duly authorized attorney in fact. Such proxy shall be filed
with the Secretary of the corporation before or at the time
of the meeting. No proxy shall be valid after eleven (11)
months from the date of its execution, unless otherwise
provided in the proxy.
SECTION 2.9: VOTING OF SHARES
5
<PAGE>
Each outstanding share entitled to vote shall be entitled to
one (1) vote upon each matter submitted to a vote at a
meeting of the shareholders.
SECTION 2.10: VOTING OF SHARES BY CERTAIN HOLDERS
Except as provided in this paragraph, shares standing in the
name of another corporation may be voted by such officer,
agent, or proxy, as the by-laws of such corporation may
prescribe, or, in the absence of such provision, as the Board
of Directors of such corporation may determine. Shares
belonging to another corporation, if a majority of the shares
entitled to vote for the election of directors of such other
corporation is held by the corporation, shall not be voted at
any meeting or counted in determining the total number of
outstanding shares at any given time; provided, however, that
nothing in this section shall be construed as limiting the
right of any such other corporation to vote stock of the
corporation held by it in a fiduciary capacity.
Shares held by an administrator, executor, guardian, or
conservator may be voted by him/her, either in person or by
proxy, without a transfer of such shares into his/her name.
Shares standing in the name of a trustee may be voted by
him/her, either in person or by proxy, but no trustee shall
be entitled to vote shares held by him/her without a transfer
of such shares into his/her name.
Shares standing in the name of a receiver may be voted by such
receiver, and shares held or under the control of a receiver
may be voted by such receiver without the transfer thereof
into his/her name if authority so to do be contained in an
appropriate order of the court by which such receiver was
appointed.
A shareholder whose shares are pledged shall be entitled to
vote such shares unless in the transfer by the pledgor on the
books of the corporation the pledgor has expressly empowered
the pledgee to
6
<PAGE>
vote thereon, in which case only the pledgee, or his/her
proxy, may represent such shares and vote thereon. Treasury
shares shall not be voted, directly or indirectly, at any
meeting, and shall not be counted in determining the presence
of a quorum.
SECTION 2.11: INSPECTORS
Prior to any meeting of shareholders, the Board of Directors
or the Chief Executive Officer shall appoint one or more
inspectors to act at the meeting and make a written report
and may designate one or more persons as alternate inspectors
to replace any inspector who fails to act. If no inspector
or alternate is able to act at the meeting of shareholders,
the person presiding at the meeting shall appoint one or more
inspectors to act at the meeting. Inspectors may, but are not
required to be, employees of the corporation or of its
subsidiaries. Each inspector, before entering upon the
discharge of his or her duties, shall take and sign an oath
faithfully to execute the duties of inspector with strict
impartiality and according to the best of his or her ability.
The inspectors shall ascertain the number of shares
outstanding and the voting power of each, determine the
shares represented at the meeting and the validity of proxies
and ballots, count all votes and ballots, determine and
retain for a reasonable period a record of the disposition of
any challenges made to any determination by the inspectors
and certify their determination of the number of shares
represented at the meeting and their count of all votes and
ballots. The inspectors may appoint or retain other persons
or entities to assist them in the performance of their
duties.
The date and time of the opening and closing of the polls for
each matter upon which the shareholders will vote at a
meeting shall be announced at the meeting. No ballot, proxy,
or vote, nor
7
<PAGE>
any revocation thereof or change thereto, shall be accepted by
the inspectors after the closing of the polls.
In determining the validity and counting of proxies and
ballots, the inspectors shall be limited to an examination of
the proxies, any envelopes submitted therewith, any
information provided by a shareholder who submits a proxy by
telegram, cablegram, or other electronic transmission from
which it can be determined that the proxy was authorized by
the shareholder, ballots, and the regular books and records
of the corporation, and they may also consider other reliable
information for the limited purpose of reconciling proxies and
ballots submitted by or on behalf of banks, brokers, their
nominees or similar persons which represent more votes than
the holder of a proxy is authorized by the record owner to
cast or more votes than the shareholder holds of record. If
the inspectors consider other reliable information for such
purpose, they shall, at the time they make their
certification, specify the precise information considered by
them, including the person or persons from whom they obtained
the information, when the information was obtained, the means
by which the information was obtained and the basis for the
inspectors' belief that such information is accurate and
reliable.
8
<PAGE>
SECTION 3.1: GENERAL POWERS
The business and affairs of the corporation shall be managed
under the direction of its Board of Directors.
SECTION 3.2: NUMBER, TENURE, AND QUALIFICATIONS
(a) Subject to the provisions of Paragraph (5) of Section XI
of the Restated Certificate of Incorporation relating to the
rights of the holders of any class or series of Preferred
Stock, as defined in Section IV of the Restated Certificate
of Incorporation, to elect under specified circumstances by
separate class vote additional directors, the number of
directors of the corporation shall be fixed from time to time
by the affirmative vote of two-thirds of the total number of
directors then in office who have been elected by the holders
of the capital stock of the corporation entitled to vote
generally for the election of directors. No decrease in the
number of directors shall shorten the term of any incumbent
director.
(b) Directors need not be residents of the states of Alabama
or Delaware or shareholders of the corporation. No person
shall be eligible for election or re-election as a director
of this corporation (1) who shall have reached the age of
sixty-eight, (2) three years after retiring from active
business, (3) one year after permanent separation from the
business or professional organization with which such person
was primarily associated when first elected a director, or
(4) one year after moving his/her principal residence outside
the state in which such person was a resident when
9
<PAGE>
first elected a director, whichever event first occurs. If
any of the provisions stated in (1), (2), (3), or (4) above
shall become applicable to any director who is a member of a
class other than the class whose term of office will expire at
the next Annual Meeting of Shareholders, such director shall
submit his/her resignation to be effective no later than said
next Annual Meeting of Shareholders. Such resignation
shall be submitted to the Corporate Secretary in writing by
December 31 of the year prior to the year in which the
resignation is to become effective under the provisions of
the preceding sentence.
Any director who is an officer of the corporation, or of any
subsidiary thereof, shall resign as a director effective on
the date he/she ceases to be an officer.
On recommendation of the Nominating Committee, the application
to an individual of any provision of this paragraph may be
waived by the Board of Directors. Any such waiver shall only
be effective on a year-to-year basis.
SECTION 3.3: REGULAR MEETINGS
A regular meeting of the Board of Directors shall be held
without other notice than this by-law on the third Thursday
of each month (unless such date shall fall on a holiday
observed by AmSouth Bank N.A., in which event the meeting
shall be upon the next succeeding business day) at 10:00
a.m., or at such other hour as may be designated by the Board.
The Board of Directors may provide, by resolution, the time
and place, either within or without the State of Alabama, for
the holding of additional or substitute regular meetings
without other notice than such resolution.
SECTION 3.4: SPECIAL MEETINGS
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Special meetings of the Board of Directors may be called by or
at the request of the Chief Executive Officer or any seven
(7) directors. A special meeting of the Board of Directors
shall be held at the principal office of the corporation,
provided all directors may agree in writing that it be held
at any other place, either within or without the State of
Alabama.
SECTION 3.5: NOTICE
At least one (1) day's notice of any special meeting shall be
given to all directors unless in the opinion of the officers
or directors calling the meeting an emergency exists which
requires less than one (1) day's notice, in which event only
such notice need be given as such officer or directors shall
direct. Any director may waive notice of any meeting. The
attendance of a director at a meeting shall constitute a
waiver of notice of such meeting, except where a director
attends a meeting for the express purpose of objecting to the
transaction of any business because the meeting is not
lawfully called or convened.
SECTION 3.6: FEES
By resolution of the Board of Directors, the directors may be
paid their expenses, if any, of attendance at each meeting of
the Board of Directors or any committee thereof, and may be
paid a fixed sum for attendance at each such meeting or a
stated salary as director, or both.
SECTION 3.7: QUORUM
Except as otherwise provided in Section XI of the Restated
Certificate of Incorporation, a majority of the sum of (i)
the number of directors determined pursuant to Paragraph (2)
of Section XI of the Restated Certificate of Incorporation
and Section 3.2(a) of these by-laws, and (ii) the number of
directors, if any, elected under
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specified circumstances by a separate class vote of the
holders of any class or series of Preferred Stock, as defined
in Section IV of the Restated Certificate of Incorporation,
shall constitute a quorum for the transaction of business at
any meeting of the Board of Directors, but if less than such
quorum is present at a meeting, a majority of the directors
present may adjourn the meeting from time to time without
further notice. In the case of Committees of the Board of
Directors, at the time membership of a Committee is elected the
Board may designate one or more directors as alternate
members, who may replace any absent or disqualified member at
any meeting of that Committee. Further, in the absence or
disqualification of a member of a Committee, the member or
members present at any meeting and not disqualified from
voting, whether or not he/she or they constitute a quorum, may
unanimously appoint another member of the Board of Directors
to act at the meeting in the place of any such absent or
disqualified member.
SECTION 3.8: MANNER OF ACTING
Except as provided in Section XI of the Restated Certificate
of Incorporation and Section 3.2(a) of these by-laws, the act
of the majority of the directors present at a meeting at
which a quorum is present shall be the act of the Board of
Directors.
SECTION 3.9: VACANCIES
Any vacancy occurring in the Board of Directors and any
directorship to be filled by reason of an increase in the
number of directorships or any other reason shall be filled
according to the provisions of Section XI of the Restated
Certificate of Incorporation.
SECTION 3.10: EXECUTIVE COMMITTEE
A. POWERS AND DUTIES. There shall be an Executive Committee
of the Board of Directors which, in the interim between
the meetings of the Board, shall have and may exercise all
of the authority and powers of the Board of Directors to
the extent permitted by law. In amplification of, but not
in limitation of the general empowerment of the Executive
Committee, the Executive Committee is specifically charged
with responsibility for the Corporation's acquisition
program and with the duty to supervise the strategic
planning efforts and the control functions and activities
of the Corporation and all of its subsidiaries.
The Executive Committee shall periodically inform the
Board of Directors of the actions taken by the Committee.
To exercise its powers and duties the Executive Committee
shall meet at such times and on such dates as shall be
fixed from time to time by resolution of the Committee or
at any time on the call of its Chairman.
B. MEMBERSHIP. The Executive Committee shall consist of such
number of members drawn from the Board of Directors, not
officers of the corporation, as the Board of Directors may
determine by resolution from time to time, and the
Chairman of the Board and President of the Corporation
shall be an ex-officio member and serve as Chairman of the
Committee. If the Chairman of the Board is not present at
a meeting the Chairman may designate another member of the
Committee to preside at that meeting. The members of the
Executive Committee who are not officers of the
Corporation, shall serve a term of office as shall be
specified at the time of their election. Any member shall
be eligible to succeed himself/herself and shall serve
until a successor is elected.
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SECTION 3.11: AUDIT COMMITTEE
There shall be an Audit Committee of the Board of Directors, to
consist of such number of directors who are not officers of the
corporation as shall be determined by resolution of the Board of
Directors from time to time. Members of the Audit Committee
shall serve a term of office as shall be specified at the time
of their election which shall be staggered so that a rotation
of the membership shall be maintained. Members of this
committee shall serve until their successors are elected and
shall be eligible for reappointment. The Audit Committee shall
meet quarterly; the time and date to be fixed by the committee
from time to time. The Audit Committee shall audit and
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examine the condition of the corporation and its subsidiaries
and affiliates, shall review all reports of audits of the
corporation and its subsidiaries and affiliates, shall review
the asset quality of the corporation and its subsidiaries and
affiliates, shall monitor compliance with the various laws
and regulations to which the corporation and its subsidiaries
and affiliates are subject, and shall report its findings and
recommendations to the Board of Directors of the corporation
and of the affected subsidiaries and affiliates.
SECTION 3.12: COMPENSATION COMMITTEE
There shall be a Compensation Committee of the Board of
Directors to consist of such number of directors (who are
not, at the time of their election for one (1) year prior to
their election, officers of the corporation or of any of its
subsidiaries or affiliates) as shall be designated from time
to time by resolution of the Board of Directors and who shall
serve for a term of office as shall be specified at the time
of their election which shall be staggered so that a rotation
of the membership shall be maintained. Members shall serve
until their successors are elected and shall be eligible to
succeed themselves.
The Compensation Committee shall meet quarterly or more
frequently upon the call of its Chairman; the time and date to
be fixed by the Committee from time to time. The Compensation
Committee shall be responsible for all compensation and staff
benefit plans of the corporation and of its subsidiaries and
affiliates. The Committee shall evaluate and approve the
compensation of all of the Executive Officers as defined in
Section 4.1, together with such other officers of the
Corporation or any of its subsidiaries or affiliates as it may
deem appropriate. It shall review summaries of compensation
paid to all officers of the corporation and its subsidiaries and
affiliates. It shall be responsible for developing for the
corporation and its subsidiaries and
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affiliates all direct and indirect compensation programs
including salary administration, incentive compensation, welfare
benefits, perquisites, and deferred compensation programs and
shall ensure that periodic reports of changes in such programs
are made to the Board of Directors of the Corporation and of the
affected subsidiaries and affiliates. It shall receive and
review such reports of compensation and benefit plan
administration from the corporation's management as it may
require. The Compensation Committee shall also review
management structure and succession planning, together with any
management retirement policy of the corporation and its
subsidiaries and affiliates. The Committee shall also review
from time to time the supervision and training of the officers
of the corporation, its subsidiaries and affiliates to assure
the full development of their potential and an orderly
succession of management, and shall make recommendations to the
Board and the Chief Executive Officer of the corporation with
respect thereto.
SECTION 3.13: MANAGEMENT SUCCESSION COMMITTEE
There shall be a Management Succession Committee, the member-
ship of which shall be designated by the Board of Directors from
time to time, which shall review management structure and
succession planning, together with any management retirement
policy of the corporation and its subsidiaries and affiliates.
The Committee shall also review from time to time the
supervision and training of the officers of the corporation, its
subsidiaries and affiliates to assure the full development of
their potential and an orderly succession of management, and
shall make recommendations to the Board and the Chief Executive
Officer of the corporation with respect thereto. In addition,
the Management Succession Committee shall be responsible to
develop and make recommendations to the Board regarding the
selection of senior executive officers of the corporation and
its subsidiaries including the selection of a successor to the
chief executive officer. The Management Succession Committee
shall meet upon the call of its Chairman, and may meet with such
members of management and such independent consultants as it may
deem advisable.
SECTION 3.14: NOMINATING COMMITTEE
There shall be a Nominating Committee of the Board of
Directors, to consist of such number of directors who are not
officers of the corporation as shall be designated from time
to time by resolution of the Board of Directors, who shall
serve for a term of office as shall be specified at the time of
their election which shall be staggered so that a rotation of
the membership shall be maintained. Members shall serve until
their successors are elected and shall be eligible to succeed
themselves. The Committee shall meet twice a year or more
frequently upon the call of its Chairman; the time and date to
be fixed by the Committee from time to time.
All recommendations for potential nominees to the Board of
Directors shall be referred to the Nominating Committee which
shall review the qualifications of such potential nominees
and make
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recommendations to the Chief Executive Officer and the Board
of Directors with respect to such potential nominees. The
Nominating Committee will also review the structure of the
Board and its operation and recommend changes to the Board of
Directors where appropriate. The Committee will also review
and recommend appropriate changes in Board compensation and
Board retirement policies.
SECTION 3.15: MANAGEMENT COMMITTEE
There shall be a Management Committee of the corporation to
consist of such officers as may be appointed to sit thereon
by the Chief Executive Officer. The Committee shall be
chaired by the Chairman of the Board and shall meet upon call
of the Chairman.
The Management Committee shall develop, publish, and
implement detailed policies and procedures on behalf of the
corporation and its subsidiaries and affiliates under such
guidelines as may from time to time be adopted by the Board
of Directors. The Management Committee shall also have the
duty to amend, make additions to, or deletions from, or
revoke such policies and procedures, to the extent the
Committee deems such actions to be necessary and desirable.
The Committee shall have the duty to publish policies and
procedures in the form of a manual or manuals for
distribution to appropriate personnel of the corporation and
its subsidiaries and affiliates. The Board of Directors
shall at all times have the right to amend or revoke actions
of the Management Committee adopting, amending, adding to,
deleting from, or revoking policies and procedures. In
addition to the duties prescribed above, the Management
Committee shall have such other and further duties and
responsibilities as may from time to time be assigned to it
by the Board of Directors or management of the corporation.
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SECTION 3.16: OTHER COMMITTEES
The Board of Directors may, by resolution or resolutions
passed by a majority of the whole Board, designate one or
more committees, each committee to consist of two or more of
the directors of the corporation, which, to the extent
provided in such resolution or resolutions, shall have and
may during intervals between the meetings of the Board
exercise the powers of the Board of Directors in the manage-
ment of the business and affairs of the corporation and may
have power to authorize the seal of the corporation to be
affixed to all papers which may require it. Such committee
or committees shall have such name or names as may be
determined from time to time by resolution or resolutions
adopted by the Board of Directors. The designation of any
such committee or committees and the delegation thereto of
authority shall not operate to relieve the Board of
Directors, or any member thereof, of any responsibility
imposed upon it or him by law.
SECTION 3.17: INFORMAL ACTION
Any action required or permitted to be taken at any meeting of
the Board of Directors or of any committee thereof may be
taken without a meeting, if prior to such action a written
consent thereto is signed by all members of the Board of
Directors or of such committee, as the case may be, and such
written consent is filed with the minutes of proceedings of
the Board of Directors or committee.
SECTION 3.18: EMERITUS BOARD OF DIRECTORS
Each director of the corporation (including officer-directors)
retiring at or after the 1988 Annual Meeting of Shareholders
shall be eligible to become an Emeritus Director of the
corporation for a period of five (5) years. The
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Emeritus Board of Directors will meet quarterly with senior
management or at such other times as may be determined by the
Nominating Committee of the Board of Directors. By resolution
of the Nominating Committee of the Board of Directors, the
Emeritus Directors may be paid their reasonable transportation
expenses, if any, of attendance at each meeting of the Emeritus
Board, and may be paid a fixed sum for attendance at each such
meeting or a stated salary as Emeritus Director, or both.
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SECTION 4.1: GENERAL
(a) NUMBER. The officers of this corporation shall consist of
a Chairman of the Board of Directors, President and Chief
Executive Officer, one or more Vice Chairmen of the Board
of Directors, one or more Vice Presidents (one or more of
whom may be designated by the Board of Directors as
Executive Vice President, Senior Vice President, or such
other title as the Board of Directors may determine), a
Corporate Secretary, one or more Assistant Secretaries,
and may also include such other officers as the Board of
Directors may from time to time determine.
(b) EXECUTIVE OFFICERS; ORDER OF AUTHORITY. As used in these
By-Laws, the term "Executive Officers" shall include the
Chairman of the Board, President and Chief Executive
Officer, the Vice Chairmen of the Board, and the
Executive Vice Presidents. Their "order of authority"
shall be the order in which their titles are listed
above; except that, where there are two or more Vice
Chairmen of the Board or two or more Executive Vice
Presidents, their order of authority shall be any order
of authority designated by the Board or Compensation
Committee.
(c) DUAL OFFICES. Any two or more offices in this corporation
may, except where prohibited by law, be held by the same
individual. In cases where an individual holds more
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than one office, that person shall have the authority of
all offices so held and shall occupy the "order of
authority" provided in these by-laws for the more senior
of the offices held.
(d) MANNER OF ELECTION; TERM OF OFFICE; REMOVAL.
Except as provided below, all officers shall be elected
annually by the Board of Directors at the April meeting of
the Board, or as soon thereafter as is practicable, and
their term of office shall be for one (1) year, commencing
upon election, and until their successors are elected and
qualified. They shall, however, be subject to removal at any
time with or without cause either as specified below or by
the Board of Directors. The Board of Directors may, at any
time, elect such other officers as it may deem desirable.
Notwithstanding anything to the contrary contained in this
Section 4.1 or elsewhere in these By-Laws, each of the three
(3) Executive Officers having the highest order of authority
has the power to elect or appoint all employees and all
officers holding a title at or below that of Senior Vice
President. Appointment of employees and election of persons
to an office at or below the level of Senior Vice President
shall be made, unless one of the said three (3) Executive
Officers acts in the particular case, as provided in the
Personnel Policy of this Corporation. Compensation of all
officers and employees shall be fixed as provided in the
Personnel Policy of this Corporation. All officers and
employees serve at the will of this Corporation and may be
removed at any time, with or without cause. Removal from
office of the Chairman of the Board and President, and any
Vice Chairman of the Board, shall be by the Board of
Directors or by its Executive Committee. All other officers
and employees may be removed from office by any of the said
three (3) Executive Officers or by any person so authorized
by the Personnel Policies and Procedures of this
Corporation.
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(e) VACANCIES. Vacancies shall be filled by the Board or
Executive Committee as soon as deemed practicable. In the
event of a vacancy in any of the offices of the Executive
Officers, any of the other Executive Officers remaining
active may be elected to fill the vacancy in such office for
such period as the Board of Directors may determine or until
further action by the Board.
SECTION 4.2: CHAIRMAN OF THE BOARD AND PRESIDENT
The Chairman of the Board and President shall be the Chief
Executive Officer of the corporation and shall preside or
designate another Executive Officer to preside at all
regular, called, or special meetings of the Board and
adjournments thereof. Subject to the control of the Board of
Directors, of the Executive Committee and of other Committees
of the Board having authority, he shall be vested with
authority to act for the corporation in all matters to the
extent that such delegation of authority may not be contrary
to law, and shall have general charge of the corporation and
of its business and affairs, including authority over the
detailed operations of the corporation and over its
employees, and subject to the limitations stated, with full
power and authority to do and perform in the name of the
corporation all acts necessary or proper in his opinion to be
done and performed and to execute for and in the name of the
corporation all instruments, agreements, and deeds which may
be
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authorized to be executed on behalf of the corporation or are
required by law.
SECTION 4.3: VICE CHAIRMAN OF THE BOARD
The Vice Chairmen of the Board shall, subject to the control
of the Board of Directors, the Executive Committee, and other
committees of the Board having authority and of the Chief
Executive Officer, be vested with authority to act for the
corporation in all matters to the extent that such delegation
of authority may not be contrary to law. They shall have the
same power to sign for the corporation as prescribed in these
by-laws for the Chairman of the Board. They shall perform
all duties incidental to the office and shall perform such
other duties as may be assigned from time to time by the Board
of Directors or the Chairman of the Board. In the absence of
the Chief Executive Officer, one of the Vice Chairmen shall
preside at meetings of stockholders, the Board of Directors,
and the Executive Committee.
SECTION 4.4: OTHER EXECUTIVE OFFICERS
Each of the Executive Officers shall (subject to the control
of the Board of Directors and of the committees of the Board
having authority and to the control of the Chief Executive
Officer) have and may exercise authority to act for the
corporation in all matters to the extent that such delegation
of authority may not be contrary to law and in general to
discharge the functions and to exercise the authority vested
in the Chief Executive Officer in matters not otherwise acted
upon by the Chief Executive Officer or by other Executive
Officers prior in their order of authority. Subject to the
limitations stated above, such authority of each Executive
Officer shall include authority over the operations of the
corporation within his assigned areas of responsibility and
over assigned employees, and authority to do and perform in
the name of the corporation
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all acts necessary or proper in his opinion to be done and
performed and to execute for and in the name of the
corporation all instruments, agreements, and deeds which may
be authorized to be executed on behalf of the corporation or
required by law.
SECTION 4.5: VICE PRESIDENTS
Any Vice President shall have the authority to execute in the
name of the corporation stock certificates of the corporation
and transfers, conveyances, certificates, releases,
satisfactions, authentications, options, proxies, leases,
including oil, gas, and other mineral leases, agreements or
other instruments pertaining to investment, assets or
operations of the corporation or powers held or controlled by
the corporation. The Vice Presidents shall have such other
powers as are from time to time conferred upon them by the
Board of Directors, committees of the Board, and the
Executive Officers.
SECTION 4.6: CHIEF ACCOUNTING OFFICER
An officer of the corporation shall be appointed Chief
Accounting Officer and shall have custody of the
corporation's general accounting records, shall prepare
financial statements, tax returns, profit plans and reports
to regulatory authorities, and shall have such other duties
as the Chief Executive Officer or other Executive Officer may
assign him from time to time.
SECTION 4.7: THE SECRETARY
The Secretary shall: (a) keep the minutes of the
shareholders' and of the Board of Directors' meetings in one
(1) or more books provided for that purpose; (b) see that all
notices are duly given in accordance with the provisions of
these by-laws or as required by law; (c) be custodian of the
corporate records and of the seal of the corporation and see
that the seal of the corporation is
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affixed to all documents the execution of which on behalf of
the corporation under its seal is duly authorized; (d) keep a
record of the post office address of each shareholder which
shall be furnished to the Secretary by such shareholder; (e)
have general charge of the stock transfer books of the
corporation; and (f) in general perform all duties incident to
the office of Secretary and such other duties as from time to
time may be assigned to him by these by-laws, by the Chief
Executive Officer or by the Board of Directors.
SECTION 4.8: EXERCISE OF AUTHORITY OF CHIEF EXECUTIVE
OFFICER BY OTHER EXECUTIVE OFFICERS
In case of the disqualification, death, resignation, or
removal of the Chief Executive Officer, and until the Board
of Directors has filled the vacancy, the executive officers
(other than the Executive Vice Presidents) in their order of
authority, shall act as such Chief Executive Officer and with
his full authority. In case of the absence,
disqualification, death, or resignation, or removal of all
executive officers prior to the Executive Vice Presidents in
order of authority, the ordinary powers of the Chief
Executive Officer shall be exercised and his duties
discharged by an Executive Vice President or other Vice
President designated by the Board or the Executive Committee
until the Board has filled the vacancy, but any extraordinary
powers of the Chief Executive Officer shall be exercised by
such Executive Vice President or other Vice President only
when authorized by the Board of Directors or the Executive
Committee.
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SECTION 5.1: CONTRACTS
The Board of Directors may authorize any officer or officers,
agent or agents, to enter into any contract or execute and
deliver any instrument in the name of and on behalf of the
corporation, and such authority may be general or confined to
specific instances.
SECTION 5.2: LOANS
No loans shall be contracted on behalf of the corporation and
no evidences of indebtedness shall be issued in its name
unless authorized by a resolution of the Board of Directors.
Such authority may be general or confined to specific
instances.
SECTION 5.3: CHECKS, DRAFTS, ETC.
All checks, drafts, or other orders for the payment of money,
notes, or other evidences of indebtedness issued in the name
of the corporation, shall be signed by such officer or
officers, agent or agents of the corporation and in such
manner as shall from time to time be determined by resolution
of the Board of Directors.
SECTION 5.4: DEPOSITS
All funds of the corporation not otherwise employed shall be
deposited from time to time to the credit of the corporation
in such banks, trust companies, or other depositories as the
Board of Directors may select.
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SECTION 5.5: PROXIES
Unless otherwise provided by resolution of the Board of
Directors, the Chief Executive Officer may from time to time
appoint an attorney or agent of the corporation, to cast
the votes which the corporation may be entitled to cast as
the holder of stock or other securities in any other
corporation any of whose stock or other securities may be held
by the corporation, at meetings of the holders of the stock
or other securities of such other corporation, or to consent
in writing, in the name and on behalf of the corporation as
such holder, to any action by such other corporation, and may
instruct the person or persons so appointed as to the manner
of casting such votes or giving such consent, and may execute
or cause to be executed, in the name and on behalf of the
corporation and under its corporate seal or otherwise, all
such written proxies or other instruments as he may deem
necessary or proper in the premises.
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SECTION 6.1: CERTIFICATES FOR SHARES
Certificates shall be issued only for whole shares and no
certificate will be issued for a fractional share.
Certificates representing whole shares of the corporation
shall be in such form as shall be determined by the Board of
Directors, such certificates shall be signed in the manner
provided by the General Corporation Law of Delaware by the
Chief Executive Officer, and by the Secretary or an Assistant
Secretary. All certificates for shares shall be
consecutively numbered or otherwise identified. The name and
address of the person to whom the shares represented thereby
are issued, with the number of shares and date of issue,
shall be entered on the stock transfer books of the
corporation. All certificates surrendered to the corporation
for transfer shall be cancelled and no new certificate shall
be issued until the former certificate for a like number of
shares shall have been surrendered and cancelled, except that
in case of a lost, destroyed, or mutilated certificate a new
one may be issued therefore upon such terms and indemnity to
the corporation as the Board of Directors may prescribe.
SECTION 6.2: TRANSFER OF SHARES
Transfer of shares of the corporation shall be made only on
the stock transfer books of the corporation by the holder of
record thereof or by his/her legal representative, who shall
furnish proper evidence of authority to transfer, or by
his/her attorney thereunto authorized by power of attorney
duly executed and filed
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with the Secretary of the corporation, and on surrender for
cancellation of the certificate for such shares. The person
in whose name shares stand on the books of the corporation
shall be deemed by the corporation to be the owner thereof
for all purposes.
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SECTION 7.1: The fiscal year of the corporation shall begin
on the first day of January and end on the 31st day of
December in each year, unless the Board of Directors shall
provide to the contrary by resolution.
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SECTION 8.1: The Board of Directors may from time to time declare, and
the corporation may pay, dividends on its outstanding shares
in the manner and upon the terms and conditions provided by
law.
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SECTION 9.1: The Board of Directors shall provide a corporate seal in
such form as shall be determined by the Board of Directors.
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SECTION 10.1: Whenever any notice is required to be given to any
shareholder or director of the corporation under the
provisions of these by-laws, the certificate of
incorporation, or the provisions of law, a waiver thereof in
writing, signed by the person or persons entitled to such
notice, whether before or after the time stated therein,
shall be deemed equivalent to the giving of such notice.
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SECTION 11.1: POWER OF DIRECTORS TO AMEND
The Board of Directors shall have the power to alter, amend,
and repeal the by-laws of the corporation or adopt new
by-laws for the corporation at any regular or special meeting
of the Board.
SECTION 11.2: POWER OF SHAREHOLDERS TO AMEND
(a) The shareholders may alter, amend, or repeal the by-laws
of the corporation or adopt new by-laws for the corporation
at any annual meeting or at a special meeting called for the
purpose, and all by-laws made by the directors may be
altered, amended, or repealed by the shareholders; (1)
provided, however, that the affirmative vote of the holders
of sixty-seven percent (67%) of the combined voting power of
the then outstanding shares of capital stock of this
corporation entitled to vote generally for the election of
directors, voting together as a single class, shall be
required for the shareholders to alter, amend, or repeal
Section VII or Section VIII of the Restated Certificate of
Incorporation of this corporation, or adopt any provision of
these by-laws that would cause these by-laws to be
inconsistent with the provisions of Section VII or Section
VIII of the Restated Certificate of Incorporation of this
corporation; (2) provided further, however, that the
affirmative vote of the holders of eighty percent (80%) of
the combined voting power of the then outstanding shares of
capital stock of this corporation entitled to vote generally
for the election of directors, voting together as a single
class, shall
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be required for the shareholders to alter, amend, or repeal
Section XI of the Restated Certificate of Incorporation of
this corporation or to adopt any provision of these by-laws
that would cause these by-laws to be inconsistent with the
provisions of Section XI of the Restated Certificate of
Incorporation of this corporation; (3) provided further,
however, that the affirmative vote of the holders of eighty
percent (80%) of the combined voting power of the then
outstanding shares of capital stock of this corporation
entitled to vote generally for the election of directors,
voting together as a single class, shall be required for the
shareholders to alter, amend, or repeal any provision of
Paragraph (a) of Section 3.2 of these by-laws or to adopt any
provision of these by-laws that would cause these by-laws to
be inconsistent with the provisions of Paragraph (a) of
Section 3.2 of these by-laws.
(b) The affirmative vote of the holders of sixty-seven percent
(67%) of the combined voting power of the then outstanding
shares of capital stock of this corporation entitled to vote
generally for the election of directors, voting together as a
single class, shall be required for the shareholders to
alter, amend, or repeal Paragraph (a) (1) of this Section
11.2 of these by-laws or to adopt any provision of these
by-laws that would cause these by-laws to be inconsistent with
Paragraph (a) (1) of this Section 11.2 of these by-laws.
(c) The affirmative vote of the holders of eighty percent
(80%) of the combined voting power of the then outstanding
shares of capital stock of this corporation entitled to vote
generally for the election of directors, voting together as a
single class, shall be required for the shareholders to
alter, amend, or repeal Paragraph (a) (2) or (a) (3) of this
Section 11.2 of these by-laws or to adopt any provision of
these by-laws inconsistent with Paragraph (a) (2) or (a) (3)
of this Section 11.2 of these by-laws.
34
<PAGE>
EXHIBIT 10(m)
AIA Document A111 (1987 Edition)
Standard Form of Agreement between Owner
and Contractor (Infrastructure)
THIS AGREEMENT is executed on _________ _____, 1994 but shall be effective
for all purposes as of August 2, 1993 by and between AmSouth Bank N.A., a
national banking association ("Owner"), P.O. Box 11007, Burmingham, Alabama
35288 and Brasfield & Gorrie, General Contractor, Inc. ("Contractor"), a
Delaware Corporation, 729 South 30th Street, Burmingham, Alabama 35233.
Background
The Owner and Contractor entered into that certain Standard Form of
Agreement between Owner and Contractor dated as of August 2, 1993 (the "Original
Agreement") which provided for the construction of both the buildings and the
infrastructure associated with the buildings in the AmSouth Riverchase
Administrative Offices and Training Facility located on approximately
ninety-three (93) acres of land in Riverchase in Hoover, Alabama. After some of
the construction had been done, AmSouth entered into an agreement to sell the
buildings to Sun Riverchase Limited Partnership ("Sun Riverchase").
In connection with that sale, the parties agreed that the Owner would
assign the Original Agreement to Sun Riverchase insofar as it governs and
provides for the construction of the buildings. The portion of the Original
Agreement that governs and provides for the construction of the infrastructure
will not be assigned, but will remain in effect between the Owner and the
contractor. In order to accomplish this, the Owner and the Contractor have
agreed to divide the Original Agreement into two (2) agreements. This Agreement
governs and provides for the construction of the infrastructure.
Contemporaneously with the execution of this Agreement, the Owner and the
Contractor are entering into that certain Standard Form of Agreement Between
Owner and Contractor (Buildings) (the "Buildings Agreement") that governs and
provides for the construction of the buildings. Also contemporaneously with the
execution of this Agreement, Sun Riverchase and the Owner have entered into that
certain Construction Agreement (the "Construction Agreement"), which provides
for the administration of the Buildings Agreement by the Owner.
Agreement
NOW, THEREFORE, for good and valuable consideration, the receipt,
sufficiency and adequacy of which is hereby acknowledged, the Owner and the
Contractor hereby agree as follows:
<PAGE>
THE FOLLOWING DOCUMENT IS A REPRODUCTION OF AIA DOCUMENT A111, STANDARD FORM OF
AGREEMENT BETWEEN OWNER AND CONTRACTOR PRINTED BY THE AMERICAN INSTITUTE OF
ARCHITECTS, TENTH EDITION. THE BRACKETED PARAGRAPHS NUMBERED 12.6 THROUGH
12.6.3 AND PART OF 15.1 THROUGH 15.4 ARE MARKED THROUGH ON THE PRINTED ORIGINAL
AND THE PARTIES TO THE AGREEMENT HAVE AGREED TO EXCLUDE THOSE PARAGRAPHS FROM
THE AGREEMENT.
AIA Document A111
Standard Form of Agreement
Between Owner and Contractor
where the basis of payment is the
COST OF THE WORK PLUS A FEE
with or without a Guaranteed Maximum Price
1987 EDITION
THIS DOCUMENT HAS IMPORTANT LEGAL CONSEQUENCES;
CONSULTATION WITH AN ATTORNEY IS ENCOURAGED WITH RESPECT TO
ITS COMPLETION OR MODIFICATION.
This document has been approved and endorsed by The Associated General
Contractors of America.
AGREEMENT
made as of the 2nd day of August in the year of Nineteen Hundred and
Ninety-Three
BETWEEN the Owner: AmSouth Bank N.A.
(Name and address) Post Office Box 11007
Birmingham, Alabama 35288
and the Contractor: Brasfield & Gorrie General Contractor, Inc.
(Name and address) 729 South 30th Street
Birmingham, Alabama 35233
the Project is: AmSouth Riverchase Administrative
(Name and address) Offices and Training Facility
Riverchase Parkway and Parkway
Office Circle
Hoover, Alabama
the Architect: Lohan Associates, Inc.
(Name and address) 225 North Michigan Avenue, Suite 800
Chicago, Ill 60601
The Owner and Contractor agree as set forth below.
<PAGE>
ARTICLE 1
---------
THE CONTRACT DOCUMENTS
1.1 The Contract Documents consist of this Agreement, Conditions of the
Contract (General, Supplementary and other conditions), Drawings,
Specifications, addenda issued prior to execution of this Agreement, other
documents listed in this Agreement and Modifications issued after execution of
this Agreement: these form the Contract, and are as fully a part of the Contract
as if attached to this Agreement or repeated herein. The Contract represents the
entire and integrated agreement between the parties hereto and supersedes prior
negotiations, representations or agreements, either written or oral. An
enumeration of the Contract Documents, other than Modifications, appears in
Article 16. If anything in the other Contract Documents is inconsistent with
this Agreement, this Agreement shall govern.
ARTICLE 2
---------
THE WORK OF THIS CONTRACT
2.1 The Contractor shall execute the entire Work described in the Contract
Documents, except to the extent specifically indicated in the Contract Documents
to be the responsibility of others, for the following project:
All of the infrastructure improvements for the AmSouth Bank Administrative
Office and Training Facility, which includes, without limitation, excavation,
grading, site preparation, landscaping, on-grade paved parking lots, utilities,
and a lake, located on approximately 93 acres of land in Riverchase in Hoover,
Alabama. Attached hereto as Exhibit A is a line item budget and schedule of
values, both in effect as of the date this Agreement is executed, which set out
in more detail the scope of the Project.
ARTICLE 3
---------
RELATIONSHIP OF THE PARTIES
3.1 The Contractor accepts the relationship of trust and confidence
established by this Agreement and covenants with the Owner to cooperate with the
Architect and utilize the Contractor's best skill, efforts and judgment in
furthering the interests of the Owner; to furnish efficient business
administration and supervision; to make best efforts to furnish at all times an
adequate supply of workers and materials; and to perform the Work in the best
way and most expeditious and economical manner consistent with the interests of
the Owner. The Owner agrees to exercise best efforts to enable the Contractor
to perform the Work in the best way and most expeditious manner by furnishing
and approving in a timely way information required by the Contractor and making
payments to the Contractor in accordance with requirements of the Contract
Documents.
ARTICLE 4
---------
DATE OF COMMENCEMENT AND SUBSTANTIAL COMPLETION
4.1 The date of commencement is the date from which the Contract Time of
Subparagraph 4.2 is measured; it shall be the date of this Agreement, as first
written above, unless a different date is stated below or provision is made for
the date to be fixed in a notice to proceed issued by the Owner.
<PAGE>
(Insert the date of commencement, if it differs from the date of this Agreement
or, if applicable, state that the date will be fixed in a notice to proceed.)
The date of commencement shall be the date so designated in a notice to proceed
issued by the Owner, which date must be on or after the date on which a building
permit for the Project has been issued by the City of Hoover. Unless the date
of commencement is established by a notice to proceed issued by the Owner, the
Contractor shall notify the Owner in writing not less than five days before
commencing the Work to permit the timely filing of mortgages, mechanic's liens
and other security interests.
4.2 The contractor shall achieve Substantial Completion of the entire Work
not later than a date to be agreed upon by the Owner and Contractor at a later
date, subject to adjustments of this Contract Time as provided in the Contract
Documents. The Contractor agrees that the infrastructure work must be
sufficiently complete so that at least 105,000 square feet of usable space on
three contiguous floors (the "Space") may be substantially complete and in time
for the Owner's employees to fully occupy the Space and conduct business therein
on June 1, 1995.
(Insert the calendar date or number of calendar days after the date of
commencement. Also insert any requirements for earlier Substantial Completion
of certain portions of the Work, if not stated elsewhere in the Contract
Documents.)
(Insert provisions, if any, for liquidated damages relating to failure to
complete on time.)
The Contractor acknowledges that the Owner will need to begin moving into the
Space and otherwise preparing the Space for occupancy as administrative offices
prior to June 1 so that the Owner can fully conduct its business therein on and
after June 1, and the Contractor will cooperate with and assist the Owner in so
doing. The Owner agrees that the Space may be located on the top three floors of
the North administrative office building.
ARTICLE 5
---------
CONTRACT SUM
5.1 The Owner shall pay the Contractor in current funds for the
Contractor's performance of the Contract the Contract Sum consisting of the Cost
of the Work as defined in Article 7 less the cost of all materials and equipment
which are purchased on behalf of the Owner by the Contractor or a Subcontractor,
as Agent for the Owner, and for which the Owner pays the vendor thereof directly
and the Contractor's Fee determined as follows:
(State a lump sum, percentage of Cost of the Work or other provision for
determining the Contractor's Fee, and explain how the Contractor's Fee is to be
adjusted for changes in the Work.)
The Contractor's Fee shall be Four Percent (4%) of the Cost of the work.
5.2 GUARANTEED MAXIMUM PRICE (IF APPLICABLE)
5.2.1 The sum of the Cost of the Work and the Contractor's Fee is guaranteed
by the Contractor not to exceed an amount to be agreed upon at a later date.
Dollars ($ ), subject to additions and deductions by Change Order as
provided in the Contract Documents. Such maximum sum is referred to in the
Contract Documents as the
<PAGE>
Guaranteed Maximum Price. Costs which would cause the Guaranteed Maximum Price
to be exceeded shall be paid by the Contractor without reimbursement by the
Owner.
(Insert specific provisions if the Contractor is to participate in any savings.)
The provisions of Schedule 5.2.1 to this Agreement are incorporated by reference
herein as fully as though set forth in this space.
5.2.2 The Guaranteed Maximum Price is based upon the following alternates,
if any, which are described in the Contract Documents and are hereby accepted by
the Owner:
(State the numbers or other identification of accepted alternates, but only if a
Guaranteed Maximum Price is inserted in Subparagraph 5.2.1. If decisions on
other alternates are to be made by the Owner subsequent to the execution of
this Agreement, attach a schedule of such other alternates showing the amount
for each and the date until which that amount is valid.)
5.2.3 The amounts agreed to for unit prices, if any, are as follows:
(State unit prices only if a Guaranteed Maximum Price is inserted in
Subparagraph 5.2.1.)
ARTICLE 6
---------
CHANGES IN THE WORK
6.1 CONTRACTS WITH A GUARANTEED MAXIMUM PRICE
6.1.1 Adjustments to the Guaranteed Maximum Price on account of changes in
the Work may be determined by any of the methods listed in Subparagraph 7.3.3 of
the General Conditions.
6.1.2 In calculating adjustments to subcontracts (except those awarded with
the Owner's prior consent on the basis of cost plus a fee), the terms "cost" and
"fee" as used in Clause 7.3.3.3 of the General Conditions and the terms "costs"
and "a reasonable allowance for overhead and profit" as used in subparagraph
7.3.6 of the General Conditions shall have the meanings assigned to them in the
General Conditions and shall not be modified by Articles 5.7 and 8 of this
Agreement. Adjustments to subcontracts awarded with the Owner's prior consent
on the basis of cost plus a fee shall be calculated in accordance with the terms
of those subcontracts.
6.1.3 In calculating adjustments to this Contract, the terms "cost" and
"costs" as used in the above-referenced provisions of the General Conditions
shall mean the Cost of the Work as defined in Article 7 of this Agreement and
the terms "fee" and "a reasonable allowance for overhead and profit" shall mean
the Contractor's Fee as defined in Paragraph 5.1 of this Agreement.
<PAGE>
6.2 CONTRACTS WITHOUT A GUARANTEED MAXIMUM PRICE
6.2.1 Increased costs for the items set forth in Article 7 which result from
changes in the Work shall become part of the cost of the Work, and the
Contractor's Fee shall be adjusted as provided in Paragraph 5.1.
6.3 ALL CONTRACTS
6.3.1 If no specific provision is made in Paragraph 5.1 for adjustment of
the Contractor's Fee in the case of changes in the Work, or if the extent of
such changes is such, in the aggregate, that application of the adjustment
provisions of Paragraph 5.1 will cause substantial inequity to the Owner or
Contractor, the Contractor's Fee shall be equitably adjusted on the basis of the
Fee established for the original Work.
ARTICLE 7
---------
COST OF THE WORK
7.1 The term Cost of the Work shall mean costs necessarily incurred by the
Contractor in the proper performance of the Work plus the cost of all materials
and equipment which are purchased on behalf of the Owner by the Contractor or a
Subcontractor, as Agent for the Owner, and for which the Owner pays the Vendor
thereof directly. Such costs shall be at rates not higher than the standard
paid at the place of the Project except with prior consent of the Owner. The
Cost of the Work shall include only the items set forth in this Article 7.
7.1.1 LABOR COSTS
7.1.1.1 Wages of construction workers directly employed by the Contractor to
perform the construction of the Work at the site or, with the Owner's agreement,
at off-site workshops.
7.1.1.2 Wages or salaries of the Contractor's supervisory and administrative
personnel when stationed at the site with the Owner's agreement.
It is intended that all or part of the wages or salaries of certain personnel
stationed at the Contractor's principal or other offices shall be included in
the Cost of the Work when and as approved by the Owner.
7.1.1.3 Wages and salaries of the Contractor's supervisory or administrative
personnel engaged, at factories, workshops or on the road, in expediting the
production or transportation of materials or equipment required for the Work,
but only for that portion of their time required for the Work.
7.1.1.4 Costs paid or incurred by the Contractor for taxes, insurance,
contributions, assessments and benefits required by law or collective bargaining
agreements and, for personnel not covered by such agreements, customary benefits
such as sick leave, medical and health benefits, holidays, vacations and
pensions, provided such costs are based on wages and salaries included in the
Cost of the Work under Clauses 7.1.1.1 through 7.1.1.3.
<PAGE>
7.1.2 SUBCONTRACT COSTS
Payments made by the Contractor to Subcontractors in accordance with the
requirements of the subcontracts.
7.1.3 COSTS OF MATERIALS AND EQUIPMENT
INCORPORATED IN THE COMPLETED CONSTRUCTION
7.1.3.1 Costs (net of discounts), including transportation, of materials and
equipment incorporated or to be incorporated in the completed construction.
7.1.3.2 Costs of materials described in the preceding Clause 7.1.3.1 in excess
of those actually installed but required to provide reasonable allowance for
waste and for spoilage. Unused excess materials, if any, shall be handed over
to the Owner at the completion of the Work or, at the Owner's option, shall be
sold by the Contractor; amounts realized, if any, from such sales shall be
credited to the Owner as a deduction from the Cost of the Work.
7.1.4 COSTS OF OTHER MATERIALS AND EQUIPMENT,
TEMPORARY FACILITIES AND RELATED ITEMS
7.1.4.1 Costs, including transportation, installation, maintenance,
dismantling and removal of materials, supplies, temporary facilities, machinery,
equipment, and hand tools not customarily owned by the construction workers,
which are provided by the Contractor at the site and fully consumed in the
performance of the Work; and cost less salvage value on such items if not fully
consumed, whether sold to others or retained by the Contractor. Cost for items
previously used by the Contractor shall mean fair market value.
7.1.4.2 Rental charges for temporary facilities, machinery, equipment, and
hand tools not customarily owned by the construction workers, which are provided
by the Contractor at the site, whether rented from the Contractor or others, and
costs of transportation, installation, minor repairs and replacements,
dismantling and removal thereof. Rates and quantities of equipment rented shall
be subject to the Owner's prior approval.
7.1.4.3 Costs of removal of debris from the site.
7.1.4.4 Costs of telegrams and long-distance telephone calls, postage and
parcel delivery charges, telephone service at the site and reasonable petty cash
expenses of the site office.
7.1.4.5 That portion of the reasonable travel and subsistence expenses of the
Contractor's personnel incurred while traveling in discharge of duties connected
with the Work.
7.1.5 MISCELLANEOUS COSTS
7.1.5.1 That portion directly attributable to this Contract of premiums for
insurance and bonds.
<PAGE>
7.1.5.2 Sales, use or similar taxes imposed by a governmental authority which
are related to the Work and for which the Contractor is liable.
7.1.5.3 Fees and assessments for the building permit and for other permits,
licenses and inspections for which the Contractor is required by the Contract
Documents to pay.
7.1.5.4 Fees of testing laboratories for tests required by the Contract
Documents, except those related to defective or nonconforming Work for which
reimbursement is excluded by Subparagraph 13.5.3 of the General Conditions or
other provisions of the Contract Documents and which do not fall within the
scope of Subparagraphs 7.2.2 through 7.2.4 below.
7.1.5.5 Royalties and license fees paid for the use of a particular design,
process or product required by the Contract Documents; the cost of defending
suits or claims for infringement of patent rights arising from such requirement
by the Contract Documents; payments made in accordance with legal judgments
against the Contractor resulting from such suits or claims and payments of
settlements made with the Owner's consent; provided, however, that such costs of
legal defenses, judgment and settlements shall not be included in the
calculation of the Contractor's Fee or of a Guaranteed Maximum Price, if any,
and provided that such royalties, fees and costs are not excluded by the last
sentence of Subparagraph 3.17.1 of the General Conditions or other provisions of
the Contract Documents.
7.1.5.6 Deposits lost for causes other than the Contractor's fault or
negligence.
7.1.6 OTHER COSTS
7.1.6.1 Other costs incurred in the performance of the Work if and to the
extent approved in advance in writing by the Owner.
7.2 EMERGENCIES: REPAIRS TO DAMAGED, DEFECTIVE OR NONCONFORMING WORK
The Cost of the Work shall also include costs described in Paragraph 7.1 which
are incurred by the Contractor:
7.2.1 In taking action to prevent threatened damage, injury or loss in case
of an emergency affecting the safety of persons and property, as provided in
Paragraph 10.3 of the General Conditions.
7.2.2 In repairing or correcting Work damaged or improperly executed by
construction workers in the employ of the Contractor, provided such damage or
improper execution did not result from the fault or negligence of the Contractor
or the Contractor's foremen, engineers or superintendents, or other supervisory,
administrative or managerial personnel of the Contractor.
7.2.3 In repairing damaged work other than that described in Subparagraph
7.2.2, provided such damage did not result from the fault or negligence of the
Contractor or the Contractor's personnel, and only to the extent that the cost
of such repairs is not recoverable by the Contractor from others and the
Contractor is not compensated therefor by insurance or otherwise.
<PAGE>
7.2.4 In correcting defective or nonconforming Work performed or supplied by
a Subcontractor or material supplier and not corrected by them, provided such
defective or nonconforming Work did not result from the fault or neglect of the
Contractor or the Contractor's personnel adequately to supervise and direct the
Work of the Subcontractor or material supplier, and only to the extent that the
cost of correcting the defective or nonconforming Work is not recoverable by the
Contractor from the Subcontractor or material supplier.
ARTICLE 8
---------
COSTS NOT TO BE REIMBURSED
8.1 The cost of the work shall not include:
8.1.1 Salaries and other compensation of the Contractor's personnel
stationed at the Contractor's principal office or offices other than the site
office, except as specifically provided in Clauses 7.1.1.2 and 7.1.1.3 or as may
be provided in Article 14.
8.1.2 Expenses of the Contractor's principal office and offices other than
the site office.
8.1.3 Overhead and general expenses, except as may be expressly included in
Article 7.
8.1.4 The Contractor's capital expenses, including interest on the
Contractor's capital employed for the Work.
8.1.5 Rental costs of machinery and equipment, except as specifically
provided in Clause 7.1.4.2.
8.1.6 Except as provided in Subparagraphs 7.2.2 through 7.2.4 and Paragraph
13.5 of this Agreement, costs due to the fault or negligence of the Contractor,
Subcontractors, anyone directly or indirectly employed by any of them, or for
whose acts any of them may be liable, including but not limited to costs for the
correction of damaged, defective or nonconforming Work, disposal and replacement
of materials and equipment incorrectly ordered or supplied, and making good
damage to property not forming part of the Work.
8.1.7 Any cost not specifically and expressly described in Article 7.
8.1.8 Costs which would cause the Guaranteed Maximum Price, if any, to be
exceeded.
ARTICLE 9
---------
DISCOUNTS, REBATES AND REFUNDS
9.1 Cash discounts on payments made by the Owner shall accrue to the
Owner. Cash discounts obtained on payments made by the Contractor shall accrue
to the Owner if (1) before making the payment, the Contractor included them in
an Application for Payment and received payment therefor from the Owner, or (2)
the Owner has
<PAGE>
deposited funds with the Contractor with which to make payments; otherwise,
cash discounts shall accrue to the Contractor. Trade discounts, rebates,
refunds and amounts received from sales of surplus materials and equipment
shall accrue to the Owner, and the Contractor shall make provisions so that
they can be secured.
9.2 Amounts which accrue to the Owner in accordance with the provisions of
Paragraph 9.1 shall be credited to the Owner as a deduction from the Cost of the
Work.
ARTICLE 10
----------
SUBCONTRACTS AND OTHER AGREEMENTS
10.1 Those portions of the Work that the Contractor does not customarily
perform with the Contractor's own personnel shall be performed under
subcontracts or by other appropriate agreements with the Contractor. The
Contractor shall obtain bids from Subcontractors and from suppliers of materials
or equipment fabricated especially for the Work and shall deliver such bids to
the Architect. The Owner will then determine, with the advice of the Contractor
and subject to the reasonable objection of the Architect, which bids will be
accepted. The Owner may designate specific persons or entities from whom the
Contractor shall obtain bids; however, if a Guaranteed Maximum Price has been
established, the Owner may not prohibit the Contractor from obtaining bids from
others. The Contractor shall not be required to contract with anyone to whom
the Contractor has reasonable objection.
10.2 If a Guaranteed Maximum Price has been established and a specific
bidder among those whose bids are delivered by the Contractor to the Architect
(1) is recommended to the Owner by the Contractor; (2) is qualified to perform
that portion of the Work; and (3) has submitted a bid which conforms to the
requirements of the Contract Documents without reservations or exceptions, but
the Owner requires that another bid be accepted; then the Contractor may require
that a Change Order be issued to adjust the Guaranteed Maximum Price by the
difference between the bid of the person or entity recommended to the Owner by
the Contractor and the amount of the subcontract or other agreement actually
signed with the person or entity designated by the Owner.
10.3 Subcontracts or other agreements shall conform to the payment
provisions of Paragraphs 12.7 and 12.8, and shall not be awarded on the basis of
cost plus a fee without the prior consent of the Owner.
ARTICLE 11
----------
ACCOUNTING RECORDS
11.1 The Contractor shall keep full and detailed accounts and exercise such
controls as may be necessary for proper financial management under this
Contract; the accounting and control systems shall be satisfactory to the Owner.
The Owner and the
<PAGE>
Owner's accountants shall be afforded access to the Contractor's records, books,
correspondence, instructions, drawings, receipts, subcontracts, purchase orders,
vouchers, memoranda and other data relating to this Contract, and the Contractor
shall preserve these for a period of three years after final payment, or for
such longer period as may be required by law.
ARTICLE 12
----------
PROGRESS PAYMENTS
12.1 Based upon Applications for Payment submitted to the Architect by the
Contractor and Statements for Payment issued by the Architect, the Owner shall
make progress payments on account of the Contract Sum to the Contractor as
provided below and elsewhere in the Contract Documents.
12.2 The period covered by each Application for Payment shall be one
calendar month ending on the last day of the month, or as follows:
12.3 Provided an Application for Payment is received by the Architect not
later than the fifteenth (15th) day of a month, the Owner shall make payment to
the Contractor not later than the first (1st) day of the following month. If an
Application for Payment is received by the Architect after the application date
fixed above, payment shall be made by the Owner not later than ten (10) days
after the Architect receives the Application for Payment.
12.4 With each Application for Payment the Contractor shall submit
payrolls, petty cash accounts, receipted invoices or invoices with check
vouchers attached, and any other evidence required by the Owner or Architect to
demonstrate that cash disbursements already made by the Contractor on account of
the Cost of the Work equal or exceed (1) progress payments already received by
the Contractor; less (2) that portion of those payments attributable to the
Contractor's Fee; plus (3) payrolls for the period covered by the present
Application for Payment; plus (4) retainage provided in Subparagraph 12.5.4, if
any, applicable to prior progress payments.
12.5 CONTRACTS WITH A GUARANTEED MAXIMUM PRICE
12.5.1 Each Application for Payment shall be based upon the most recent
schedule of values submitted by the Contractor in accordance with the Contract
Documents. The schedule of values shall allocate the entire Guaranteed Maximum
Price among the various portions of the Work, except that the Contractor's Fee
shall be shown as a single separate item. The schedule of values shall be
prepared in such form and
<PAGE>
supported by such data to substantiate its accuracy as the Architect may
require. This schedule, unless objected to by the Architect, shall be used as a
basis for reviewing the Contractor's Applications for Payment.
12.5.2 Applications for Payment shall show the percentage completion of each
portion of the Work as of the end of the period covered by the Application for
Payment. The percentage completion shall be the lesser of (1) the percentage of
that portion of the Work which has actually been completed or (2) the percentage
obtained by dividing (a) the expense which has actually been incurred by the
Contractor on account of that portion of the Work for which the Contractor has
made or intends to make actual payment prior to the next Application for Payment
by (b) the share of the Guaranteed Maximum Price allocated to that portion of
the Work in the schedule of values.
12.5.3 Subject to other provisions of the Contract Documents, the amount of
each progress payment shall be computed as follows:
12.5.3.1 Take that portion of the Guaranteed Maximum Price properly allocable
to completed Work as determined by multiplying the percentage completion of each
portion of the Work by the share of the Guaranteed Maximum Price allocated to
that portion of the Work in the schedule of values. Pending final determination
of cost to the Owner of changes in the Work, amounts not in dispute may be
included as provided in Subparagraph 7.3.7 of the General Conditions, even
though the Guaranteed Maximum Price has not yet been adjusted by Change Order.
12.5.3.2 Add that portion of the Guaranteed Maximum Price properly allocable to
materials and equipment delivered and suitably stored at the site for subsequent
incorporation in the Work or, if approved in advance by the Owner, suitably
stored off the site at a location agreed upon in writing.
12.5.3.3 Add the Contractor's Fee, less retainage of two percent (2%). The
Contractor's Fee shall be computed upon the Cost of the Work described in the
two preceding Clauses at the rate stated in Paragraph 5.1 or, if the
Contractor's Fee is stated as a fixed sum in that Paragraph, shall be an amount
which bears the same ratio to that fixed-sum Fee as the Cost of the Work in the
two preceding Clauses bears to a reasonable estimate of the probable Cost of the
Work upon its completion.
12.5.3.4 Subtract the aggregate of previous payments made by the Owner, and the
aggregate cost of all materials and equipment which were purchased on behalf of
the Owner by the Contactor or a Subcontractor, as Agent of the Owner, and for
which the Owner paid the vendor thereof directly.
12.5.3.5 Subtract the shortfall, if any, indicated by the Contractor in the
documentation required by Paragraph 12.4 to substantiate prior Applications for
Payment, or resulting from errors subsequently discovered by the Owner's
accountants in such documentation.
<PAGE>
12.5.3.6 Subtract amounts, if any, for which the Architect has withheld or
nullified a Certificate for Payment as provided in Paragraph 9.5 of the General
Conditions.
12.5.4 Additional retainage, if any, shall be as follows:
(If it is intended to retain additional amounts from progress payments to the
Contractor beyond (1) the retainage from the Contractor's Fee provided in Clause
12.5.3.3.(2) the retainage from Subcontractors provided in Paragraph 12.7 below,
and (3) the retainage, if any, provided by other provisions of the Contract,
insert provision for such additional retainage here. Such provision, if made,
should also describe any arrangement for limiting or reducing the amount
retained after the Work reaches a certain state of completion.)
See Subparagrah 9.8.3 of the General Conditions for the amount to be withheld by
the Owner from the payment due the Contractor upon Substantial Completion.
12.7 Except with the Owner's prior approval, payments to Subcontractors
included in the Contractor's Applications for Payment shall not exceed an amount
for each Subcontractor calculated as follows:
12.7.1 Take that portion of the Subcontract Sum properly allocable to
completed Work as determined by multiplying the percentage completion of each
portion of the Subcontractor's Work by the share of the total Subcontract Sum
allocated to that portion in the Subcontractor's schedule of values, less
retainage of ten percent (10%).* Pending final determination of amounts to be
paid to the Subcontractor for changes in the Work, amounts not in dispute may be
included as provided in Subparagraph 7.3.7 of the General Conditions even though
the Subcontract Sum has not yet been adjusted by Change Order.
12.7.2 Add that portion of the Subcontract Sum properly allocable to
materials and equipment delivered and suitably stored at the site for subsequent
incorporation in the Work or, if approved in advance by the Owner, suitably
stored off the site at a location agreed upon in writing, less retainage of ten
percent (10%).*
12.7.3 Subtract the aggregate of previous payments made by the Contractor to
the Subcontractor and the aggregate cost of all materials and equipment which
were purchased on behalf of the Owner by the Contractor or a Subcontractor, as
Agent of the Owner, and for which the Owner paid the Vendor thereof directly.
12.7.4 Subtract amounts, if any, for which the Architect has withheld or
nullified a Certificate for Payment by the Owner to the Contractor for reasons
which are the fault of the Subcontractor.
12.7.5 Add, upon Substantial Completion of the entire Work of the Contractor,
a sum sufficient to increase the total payments to the Subcontractor to one
hundred percent (100%) of the Subcontract Sum, less amounts, if any, for
incomplete Work and unsettled claims; and, if final completion of the entire
Work is thereafter materially delayed
<PAGE>
through no fault of the Subcontractor, add any additional amounts payable on
account of Work of the Subcontractor in accordance with Subparagraph 9.10.3 of
the General Conditions.
(If it is intended, prior to Substantial Completion of the entire Work of the
Contractor, to reduce or limit the retainage from Subcontractors resulting from
the percentages inserted in Subparagraphs 12.7.1 and 12.7.2 above, and this is
not explained elsewhere in the Contract Documents, insert here provisions for
such reduction or limitation.)
*The retainage withheld from Subcontractors with subcontracts
providing for payment of costs plus a fee, with a guaranteed maximum price shall
be Two percent (2%).
If recommended by the General Contractor, retainage will not be
withheld after Subcontractors' work is fifty percent. (50%) complete.
The Subcontract Sum is the total amount stipulated in the subcontract to be paid
by the Contractor to the Subcontractor for the Subcontractor's performance of
the subcontract.
12.8 Except with the Owner's prior approval, the Contractor shall not make
advance payments to suppliers for materials or equipment which have not been
delivered and stored at the site.
12.9 In taking action on the Contractor's Applications for Payment, the
Architect shall be entitled to rely on the accuracy and completeness of the
information furnished by the Contractor and shall not be deemed to represent
that the Architect has made a detailed examination, audit or arithmetic
verification of the documentation submitted in accordance with Paragraph 12.4 or
other supporting data; that the Architect has made exhaustive or continuous
on-site inspections or that the Architect has made examinations to ascertain how
or for what purposes the Contractor has used amounts previously paid on account
of the Contract. Such examinations, audits and verifications, if required by
the Owner, will be performed by the Owner's accountants acting in the sole
interest of the Owner.
ARTICLE 13
----------
FINAL PAYMENT
13.1 Final payment shall be made by the Owner to the Contractor when (1)
the Contract has been fully performed by the Contractor except for the
Contractor's responsibility to correct defective or nonconforming Work, as
provided in Subparagraph 12.2.2 of the General Conditions, and to satisfy other
requirements, if any, which necessarily survive final payment; (2) a final
Application for Payment and a final accounting for the Cost of the Work have
been submitted by the Contractor and reviewed by the Owner's accountants; and
(3) a final Statement for Payment has then been issued by the Architect as
provided in Subparagraph 9.10.1 of the General Conditions; such final payment
shall be made by the Owner not more than 30 days after the issuance of the
Architect's final Statement for Payment, or as follows:
<PAGE>
13.2 The amount of the final payment shall be calculated as follows:
13.2.1 Take the sum of the Cost of the Work substantiated by the Contractor's
final accounting and the Contractor's Fee; but not more than the Guaranteed
Maximum Price, if any.
13.2.2 Subtract amounts, if any, for which the Architect withholds, in whole
or in part, a final Certificate for Payment as provided in Subparagraph 9.5.1 of
the General Conditions or other provisions of the Contract Documents.
13.2.3 Subtract the aggregate of previous payments made by the Owner and the
aggregate cost of all materials and equipment which were purchased on behalf of
the Owner by the Contractor or a Subcontractor, as Agent of the Owner, and for
which the Owner paid the Vendor thereof directly.
If the aggregate of previous payments made by the Owner exceeds the amount due
the Contractor, the Contractor shall reimburse the difference to the Owner.
13.3 The Owner's accountants will review and report in writing on the
Contractor's final accounting within 30 days after delivery of the final
accounting to the Architect by the Contractor. Based upon such Cost of the Work
as the Owner's accountants report to be substantiated by the Contractor's final
accounting, and provided the other conditions of Paragraph 13.1 have been met,
the Architect will, within seven days after receipt of the written report of the
Owner's accountants, either issue to the Owner a final Statement for Payment
with a copy to the Contractor, or notify the Contractor and Owner in writing of
the Architect's reasons for withholding a Statement as provided in Subparagraph
9.5.1 of the General Conditions. The time periods stated in this Paragraph 13.3
supersede those stated in Subparagraph 9.4.1 of the General Conditions.
13.4 If the Owner's accountants report the Cost of the Work as
substantiated by the Contractor's final accounting to be less than claimed by
the Contractor, the Contractor shall be entitled to demand arbitration of the
disputed amount without a further decision of the Architect. Such demand for
arbitration shall be made by the Contractor within 30 days after the
Contractor's receipt of a copy of the Architect's final Statement for Payment:
failure to demand arbitration within this 30-day period shall result in the
substantiated amount reported by the Owner's accountants becoming binding on the
Contractor. Pending a final resolution by arbitration, the Owner shall pay the
Contractor the amount certified in the Architect's final Statement for Payment.
13.5 If, subsequent to final payment and at the Owner's request, the
Contractor incurs costs described in Article 7 and not excluded by Article 8 to
correct defective or nonconforming Work, the Owner shall reimburse the
Contractor such costs and the Contractor's Fee applicable thereto on the same
basis as if such costs had been incurred prior to final payment, but not in
excess of the Guaranteed Maximum Price, if any. If the Contractor has
participated in savings as provided in Paragraph 5.2, the amount of such
<PAGE>
savings shall be recalculated and appropriate credit given to the Owner in
determining the net amount to be paid by the Owner to the Contractor.
ARTICLE 14
----------
MISCELLANEOUS PROVISIONS
14.1 Where reference is made in this Agreement to a provision of the
General Conditions or another Contract Document, the reference refers to that
provision as amended or supplemented by other provisions of the Contract
Documents.
14.2 Payments due and unpaid under the Contract shall bear interest from
the date payment is due at the rate stated below, or in the absence thereof, at
the legal rate prevailing from time to time at the place where the Project is
located.
(Insert rate of interest agreed upon, if any.)
Prime rate of AmSouth Bank N.A. in effect from time to time during the
applicable period or periods during which payments are past due.
(Usury laws and requirements under the Federal Truth in Lending Act, similar
state and local consumer credit laws and other regulations at the Owner's and
Contractor's principal places of business, the location of the Project and
elsewhere may affect the validity of this provision. Legal advice should be
obtained with respect to deletions or modifications, and also regarding
requirements such as written disclosure or waivers.)
14.3 Other provisions: The Cost of the Work includes the cost of materials
and equipment which are purchased on behalf of the Owner by the Contractor or a
Subcontractor, as Agent for the Owner, and for which the Owners pays the vendor
thereof directly. To facilitate appropriate accounting for the Project,
Applications for Payment will contain the cost of all such materials and
equipment and will also contain a credit to the Owner for the cost of such
materials and equipment. In no event shall the Contractor or any Subcontractor
be entitled to reimbursement or payment for any such materials or equipment.
ARTICLE 15
----------
TERMINATION OR SUSPENSION
15.1 The Contract may be terminated by the Contractor or the Owner as
provided in Article 14 of the General Conditions;
ARTICLE 16
----------
ENUMERATION OF CONTRACT DOCUMENTS
16.1 The Contract Documents, except for Modifications issued after
execution of this Agreement, are enumerated as follows:
<PAGE>
16.1.1 The Agreement is this executed Standard Form of Agreement Between
Owner and Contractor, Edition.
16.1.2 The General Conditions are the General Conditions of the Contract
for Construction, attached hereto.
16.1.3 The Supplementary and other Conditions of the Contract are those
contained in the following list of Contract Documents:
Document Title Pages
Lohan Construction Documents through Addendum No. 13 dated 4/20/94
Lohan Training Center Design/Development Documents dated 12/14/93
L/S/W Design Development Documents dated 2/22/94
(Training Center Interiors Only) Lohan Training Center Design/Development
Documents dated 11/17/93.
and the Clarifications dated March 2 and 3, 1994 attached hereto as Schedule
16.1.3.
16.1.4 The Specifications are those contained in
(Either list the Specifications here or refer to an exhibit attached to this
Agreement.)
Section Title Pages
Clarifications and Contract Documents listed in subparagraph 16.1.3 hereof.
16.1.5 The Drawings are
(Either list the Drawings here or refer to an exhibit attached to this
Agreement.)
Number Title Date
Contained in the Clarifications and Contract Documents listed in
subparagraph 16.1.3 hereof.
16.1.6 The Addenda, if any, are
Contained in the Clarifications and Contract Documents listed in
subparagraph 16.1.3 hereof.
Portions of Addenda relating to bidding requirements are not part of the
Contract Documents unless the bidding requirements are also enumerated in this
Article 16.
<PAGE>
16.1.7 Other Documents, if any, forming part of the Contract Documents are as
follows:
(List here any additional documents which are intended to form part of the
Contract Documents. The General Conditions provide that bidding requirements
such as advertisement or invitation to bid, instructions to Bidders, sample
forms and the Contractor's bid are not part of the Contract Documents unless
enumerated in this Agreement. They should be listed here only if intended to be
part of the Contract Documents.)
This Agreement is entered into as of the day and year first written above and is
executed in at least three original copies of which one is to be delivered to
the Contractor, one to the Architect for use in the administration of the
Contract, and the remainder to the Owner.
OWNER CONTRACTOR
/s/ Henry A. Long, Jr. /s/ M. James Gorrie
- ------------------------------- -------------------------------
(Signature) (Signature)
Henry A. Long, Senior Vice M. James Gorrie, Executive Vice
President President
- ------------------------------- -------------------------------
(Printed name and title) (Printed name and title)
<PAGE>
Exhibit 10(n)
AIA Document A111 (1987 Edition)
Standard Form of Agreement between Owner
and Contractor (Buildings)
THIS AGREEMENT is executed on _______________ ___, 1994 but shall be
effective for all purposes as of August 2, 1993 by and between AmSouth
Bank N.A., a national banking association ("Owner"), P. O. Box 11007,
Birmingham, Alabama 35288 and Brasfield & Gorrie, General Contractor, Inc.
("Contractor"), a Delaware Corporation, 729 South 30th Street, Birmingham,
Alabama 35233.
Background
The Owner and Contractor entered into that certain Standard Form of
Agreement Between Owner and contractor dated as of August 2, 1993 (the "Original
Agreement") which provided for the construction of both the buildings and the
infrastructure associated with the buildings in the AmSouth Riverchase
Administrative Offices and Training Facility located on approximately
ninety-three (93) acres of land in Riverchase in Hoover, Alabama. After some of
the construction had been done, AmSouth entered into an agreement to sell the
buildings to Sun Riverchase Limited Partnership ("Sun Riverchase").
In connection with that sale, the parties agreed that the Owner would
assign the Original Agreement to Sun Riverchase insofar as it governs and
provides for the construction of the buildings. The portion of the Original
Agreement that governs and provides for the construction of the infrastructure
will not be assigned, but will remain in effect between the Owner and the
Contractor. In order to accomplish this, the Owner and the Contractor have
agreed to divide the Original Agreement into two (2) agreements. This Agreement
governs and provides for the construction of the buildings. Contemporaneously
with the execution of this Agreement, the Owner and the Contractor are entering
into that certain Standard Form of Agreement Between Owner and Contractor
(Infrastructure) that governs and provides for the construction of the
infrastructure.
Agreement
NOW, THEREFORE, for good and valuable consideration, the receipt,
sufficiency and adequacy of which is hereby acknowledged, the Owner and the
Contractor hereby agree as follows:
<PAGE>
EXHIBIT 10(n)
THE FOLLOWING DOCUMENT IS A REPRODUCTION OF AIA DOCUMENT A111, STANDARD FORM OF
AGREEMENT BETWEEN OWNER AND CONTRACTOR PRINTED BY THE AMERICAN INSTITUTE OF
ARCHITECTS, TENTH EDITION. THE BRACKETED PARAGRAPHS NUMBERED 12.6 THROUGH
12.6.3 AND PART OF 15.1 THROUGH 15.4 ARE MARKED THROUGH ON THE PRINTED ORIGINAL
AND THE PARTIES TO THE AGREEMENT HAVE AGREED TO EXCLUDE THOSE PARAGRAPHS FROM
THE AGREEMENT.
AIA Document A111
Standard Form of Agreement
Between Owner and Contractor
where the basis of payment is the
COST OF THE WORK PLUS A FEE
with or without a Guaranteed Maximum Price
1987 EDITION
THIS DOCUMENT HAS IMPORTANT LEGAL CONSEQUENCES;
CONSULTATION WITH AN ATTORNEY IS ENCOURAGED WITH RESPECT TO
ITS COMPLETION OR MODIFICATION.
This document has been approved and endorsed by The Associated General
Contractors of America.
AGREEMENT
made as of the 2nd day of August in the year of Nineteen Hundred and
Ninety-Three
BETWEEN the Owner: AmSouth Bank N.A.
(Name and address) Post Office Box 11007
Birmingham, Alabama 35288
and the Contractor: Brasfield & Gorrie General Contractor, Inc.
(Name and address) 729 South 30th Street
Birmingham, Alabama 35233
the Project is: AmSouth Riverchase Administrative
(Name and address) Offices and Training Facility
Riverchase Parkway and Parkway
Office Circle
Hoover, Alabama
the Architect: Lohan Associates, Inc.
(Name and address) 225 North Michigan Avenue, Suite 800
Chicago, Ill 60601
The Owner and Contractor agree as set forth below.
<PAGE>
ARTICLE 1
---------
THE CONTRACT DOCUMENTS
1.1 The Contract Documents consist of this Agreement, General Conditions
of the Contract attached hereto, Drawings, Specifications, addenda issued prior
and subsequent to execution of this Agreement, other documents listed in this
Agreement and Modifications issued after execution of this Agreement: these
form the Contract, and are as fully a part of the Contract as if attached to
this Agreement or repeated herein. The Contract represents the entire and
integrated agreement between the parties hereto and supersedes prior
negotiations, representations or agreements, either written or oral. An
enumeration of the Contract Documents, other than Modifications, appears in
Article 16. If anything in the other Contract Documents is inconsistent with
this Agreement, this Agreement shall govern.
ARTICLE 2
---------
THE WORK OF THIS CONTRACT
2.1 The Contractor shall execute the entire Work described in the Contract
Documents, except to the extent specifically indicated in the Contract Documents
to be the responsibility of others, or as follows:
Two administrative office buildings, a pedestrian connector between them, a
parking deck and a training facility for the AmSouth Bank
Administrative/Training Facility Phase I located on approximately 93 acres of
land in Riverchase in Hoover, Alabama.
Attached hereto as Exhibit A is a line item budget and schedule of values, both
in effect as of the date this Agreement is executed, which set out in more
detail the scope of the Project.
ARTICLE 3
---------
RELATIONSHIP OF THE PARTIES
3.1 The Contractor accepts the relationship of trust and confidence
established by this Agreement and covenants with the Owner to cooperate with the
Architect and utilize the Contractor's best skill, efforts and judgment in
furthering the interests of the Owner; to furnish efficient business
administration and supervision; to make best efforts to furnish at all times an
adequate supply of workers and materials; and to perform the Work in the best
way and most expeditious and economical manner consistent with the interests of
the Owner. The Owner agrees to exercise best efforts to enable the Contractor
to perform the Work in the best way and most expeditious manner by furnishing
and approving in a timely way information required by the Contractor and making
payments to the Contractor in accordance with requirements of the Contract
Documents.
ARTICLE 4
---------
DATE OF COMMENCEMENT AND SUBSTANTIAL COMPLETION
4.1 The date of commencement is the date from which the Contract Time of
Subparagraph 4.2 is measured; it shall be the date of this Agreement, as first
written above, unless a different date is stated below or provision is made for
the date to be fixed in a notice to proceed issued by the Owner.
<PAGE>
(Insert the date of commencement, if it differs from the date of this Agreement
or, if applicable, state that the date will be fixed in a notice to proceed.)
The date of commencement shall be the date so designated in a notice to proceed
issued by the Owner, which date must be on or after the date on which a building
permit for the Project has been issued by the City of Hoover. Unless the date
of commencement is established by a notice to proceed issued by the Owner, the
Contractor shall notify the Owner in writing not less than five days before
commencing the Work to permit the timely filing of mortgages, mechanic's liens
and other security interests.
4.2 The contractor shall achieve Substantial Completion of the entire Work
not later than a date to be agreed upon by the Owner and Contractor at a later
date, subject to adjustments of this Contract Time as provided in the Contract
Documents. The Contractor agrees that at least 105,000 square feet of usable
space on three contiguous floors (the "Space") must be substantially complete
in time for the Owner's employees to fully occupy the Space and conduct
business therein on June 1, 1995.
(Insert the calendar date or number of calendar days after the date of
commencement. Also insert any requirements for earlier Substantial Completion
of certain portions of the Work, if not stated elsewhere in the Contract
Documents.)
(Insert provisions, if any, for liquidated damages relating to failure to
complete on time.)
The Contractor acknowledges that the Owner will need to begin moving into the
Space and otherwise preparing the Space for occupancy as administrative offices
prior to June 1 so that the Owner can fully conduct its business therein on
and after June 1, and the Contractor will cooperate with and assist the
Owner in so doing. The Owner agrees that the Space may be located on the top
three floors of the North administrative office building.
ARTICLE 5
---------
CONTRACT SUM
5.1 The Owner shall pay the Contractor in current funds for the
Contractor's performance of the Contract the Contract Sum consisting of the Cost
of the Work as defined in Article 7 less the cost of all materials and equipment
which are purchased on behalf of the Owner by the Contractor or a Subcontractor,
as Agent for the Owner, and for which the Owner pays the vendor thereof directly
and the Contractor's Fee determined as follows:
(State a lump sum, percentage of Cost of the Work or other provision for
determining the Contractor's Fee, and explain how the Contractor's Fee is to be
adjusted for changes in the Work.)
The Contractor's Fee shall be Four Percent. (4%) of the Cost of the work.
5.2 GUARANTEED MAXIMUM PRICE (IF APPLICABLE)
5.2.1 The sum of the Cost of the Work and the Contractor's Fee is guaranteed
by the Contractor not to exceed an amount to be determined at a later date;
provided however that the cost of the work and the Contractor's Fee shall in no
event exceed $62,167,864.00, Dollars ($ ), subject to additions and
deductions by Change Order as provided in the Contract Documents. Such maximum
sum is referred to in the Contract Documents as the
<PAGE>
Guaranteed Maximum Price. Costs which would cause the Guaranteed Maximum Price
to be exceeded shall be paid by the Contractor without reimbursement by the
Owner.
(Insert specific provisions if the Contractor is to participate in any savings.)
5.2.2 The Guaranteed Maximum Price is based upon the following alternates,
if any, which are described in the Contract Documents and are hereby accepted by
the Owner:
(State the numbers or other identification of accepted alternates, but only if a
Guaranteed Maximum Price is inserted in Subparagraph 5.2.1. If decisions on
other alternates are to be made by the Owner subsequent to the execution of
this Agreement, attach a schedule of such other alternates showing the amount
for each and the date until which that amount is valid.)
5.2.3 The amounts agreed to for unit prices, if any, are as follows:
(State unit prices only if a Guaranteed Maximum Price is inserted in
Subparagraph 5.2.1.)
ARTICLE 6
---------
CHANGES IN THE WORK
6.1 CONTRACTS WITH A GUARANTEED MAXIMUM PRICE
6.1.1 Adjustments to the Guaranteed Maximum Price on account of changes in
the Work may be determined by any of the methods listed in Subparagraph 7.3.3 of
the General Conditions.
6.1.2 In calculating adjustments to subcontracts (except those awarded with
the Owner's prior consent on the basis of cost plus a fee), the terms "cost" and
"fee" as used in Clause 7.3.3.3 of the General Conditions and the terms "costs"
and "a reasonable allowance for overhead and profit" as used in subparagraph
7.3.6 of the General Conditions shall have the meanings assigned to them in the
General Conditions and shall not be modified by Articles 5, 7 and 8 of this
Agreement. Adjustments to subcontracts awarded with the Owner's prior consent
on the basis of cost plus a fee shall be calculated in accordance with the terms
of those subcontracts.
6.1.3 In calculating adjustments to this Contract, the terms "cost" and
"costs" as used in the above-referenced provisions of the General Conditions
shall mean the Cost of the Work as defined in Article 7 of this Agreement and
the terms "fee" and "a reasonable allowance for overhead and profit" shall mean
the Contractor's Fee as defined in Paragraph 5.1 of this Agreement.
<PAGE>
6.2 CONTRACTS WITHOUT A GUARANTEED MAXIMUM PRICE
6.2.1 Increased costs for the items set forth in Article 7 which result from
changes in the Work shall become part of the cost of the Work, and the
Contractor's Fee shall be adjusted as provided in Paragraph 5.1.
6.3 ALL CONTRACTS
6.3.1 If no specific provision is made in Paragraph 5.1 for adjustment of
the Contractor's Fee in the case of changes in the Work, or if the extent of
such changes is such, in the aggregate, that application of the adjustment
provisions of Paragraph 5.1 will cause substantial inequity to the Owner or
Contractor, the Contractor's Fee shall be equitably adjusted on the basis of the
Fee established for the original Work.
ARTICLE 7
---------
COST OF THE WORK
7.1 The term Cost of the Work shall mean costs necessarily incurred by the
Contractor in the proper performance of the Work plus the cost of all materials
and equipment which are purchased on behalf of the Owner by the Contractor or a
Subcontractor, as Agent for the Owner, and for which the Owner pays the Vendor
thereof directly. Such costs shall be at rates not higher than the standard
paid at the place of the Project except with prior consent of the Owner. The
Cost of the Work shall include only the items set forth in this Article 7.
7.1.1 LABOR COSTS
7.1.1.1 Wages of construction workers directly employed by the Contractor to
perform the construction of the Work at the site or, with the Owner's agreement,
at off-site workshops.
7.1.1.2 Wages or salaries of the Contractor's supervisory and administrative
personnel when stationed at the site with the Owner's agreement.
It is intended that all or part of the wages or salaries of certain personnel
stationed at the Contractor's principal or other offices shall be included in
the Cost of the Work when and as approved by the Owner.
7.1.1.3 Wages and salaries of the Contractor's supervisory or administrative
personnel engaged, at factories, workshops or on the road, in expediting the
production or transportation of materials or equipment required for the Work,
but only for that portion of their time required for the Work.
7.1.1.4 Costs paid or incurred by the Contractor for taxes, insurance,
contributions, assessments and benefits required by law or collective bargaining
agreements and, for personnel not covered by such agreements, customary benefits
such as sick leave, medical and health benefits, holidays, vacations and
pensions, provided such costs are based on wages and salaries included in the
Cost of the Work under Clauses 7.1.1.1 through 7.1.1.3.
<PAGE>
7.1.2 SUBCONTRACT COSTS
Payments made by the Contractor to Subcontractors in accordance with the
requirements of the subcontracts.
7.1.3 COSTS OF MATERIALS AND EQUIPMENT
INCORPORATED IN THE COMPLETED CONSTRUCTION
7.1.3.1 Costs (net of discounts), including transportation, of materials and
equipment incorporated or to be incorporated in the completed construction.
7.1.3.2 Costs of materials described in the preceding Clause 7.1.3.1 in excess
of those actually installed but required to provide reasonable allowance for
waste and for spoilage. Unused excess materials, if any, shall be handed over
to the Owner at the completion of the Work or, at the Owner's option, shall be
sold by the Contractor; amounts realized, if any, from such sales shall be
credited to the Owner as a deduction from the Cost of the Work.
7.1.4 COSTS OF OTHER MATERIALS AND EQUIPMENT,
TEMPORARY FACILITIES AND RELATED ITEMS
7.1.4.1 Costs, including transportation, installation, maintenance,
dismantling and removal of materials, supplies, temporary facilities, machinery,
equipment, and hand tools not customarily owned by the construction workers,
which are provided by the Contractor at the site and fully consumed in the
performance of the Work; and cost less salvage value on such items if not fully
consumed, whether sold to others or retained by the Contractor. Cost for items
previously used by the Contractor shall mean fair market value.
7.1.4.2 Rental charges for temporary facilities, machinery, equipment, and
hand tools not customarily owned by the construction workers, which are provided
by the Contractor at the site, whether rented from the Contractor or others, and
costs of transportation, installation, minor repairs and replacements,
dismantling and removal thereof. Rates and quantities of equipment rented shall
be subject to the Owner's prior approval.
7.1.4.3 Costs of removal of debris from the site.
7.1.4.4 Costs of telegrams and long-distance telephone calls, postage and
parcel delivery charges, telephone service at the site and reasonable petty cash
expenses of the site office.
7.1.4.5 That portion of the reasonable travel and subsistence expenses of the
Contractor's personnel incurred while traveling in discharge of duties connected
with the Work.
7.1.5 MISCELLANEOUS COSTS
7.1.5.1 That portion directly attributable to this Contract of premiums for
insurance and bonds.
<PAGE>
7.1.5.2 Sales, use or similar taxes imposed by a governmental authority which
are related to the Work and for which the Contractor is liable.
7.1.5.3 Fees and assessments for the building permit and for other permits,
licenses and inspections for which the Contractor is required by the Contract
Documents to pay.
7.1.5.4 Fees of testing laboratories for tests required by the Contract
Documents, except those related to defective or nonconforming Work for which
reimbursement is excluded by Subparagraph 13.5.3 of the General Conditions or
other provisions of the Contract Documents and which do not fall within the
scope of Subparagraphs 7.2.2 through 7.2.4 below.
7.1.5.5 Royalties and license fees paid for the use of a particular design,
process or product required by the Contract Documents; the cost of defending
suits or claims for infringement of patent rights arising from such requirement
by the Contract Documents; payments made in accordance with legal judgments
against the Contractor resulting from such suits or claims and payments of
settlements made with the Owner's consent; provided, however, that such costs of
legal defenses, judgment and settlements shall not be included in the
calculation of the Contractor's Fee or of a Guaranteed Maximum Price, if any,
and provided that such royalties, fees and costs are not excluded by the last
sentence of Subparagraph 3.17.1 of the General Conditions or other provisions of
the Contract Documents.
7.1.5.6 Deposits lost for causes other than the Contractor's fault or
negligence.
7.1.6 OTHER COSTS
7.1.6.1 Other costs incurred in the performance of the Work if and to the
extent approved in advance in writing by the Owner.
7.2 EMERGENCIES: REPAIRS TO DAMAGED, DEFECTIVE OR NONCONFORMING WORK
The Cost of the Work shall also include costs described in Paragraph 7.1 which
are incurred by the Contractor:
7.2.1 In taking action to prevent threatened damage, injury or loss in case
of an emergency affecting the safety of persons and property, as provided in
Paragraph 10.3 of the General Conditions.
7.2.2 In repairing or correcting Work damaged or improperly executed by
construction workers in the employ of the Contractor, provided such damage or
improper execution did not result from the fault or negligence of the Contractor
or the Contractor's foremen, engineers or superintendents, or other supervisory,
administrative or managerial personnel of the Contractor.
7.2.3 In repairing damaged work other than that described in Subparagraph
7.2.2, provided such damage did not result from the fault or negligence of the
Contractor or the Contractor's personnel, and only to the extent that the cost
of such repairs is not recoverable by the Contractor from others and the
Contractor is not compensated therefor by insurance or otherwise.
<PAGE>
7.2.4 In correcting defective or nonconforming Work performed or supplied by
a Subcontractor or material supplier and not corrected by them, provided such
defective or nonconforming Work did not result from the fault or neglect of the
Contractor or the Contractor's personnel adequately to supervise and direct the
Work of the Subcontractor or material supplier, and only to the extent that the
cost of correcting the defective or nonconforming Work is not recoverable by the
Contractor from the Subcontractor or material supplier.
ARTICLE 8
---------
COSTS NOT TO BE REIMBURSED
8.1 The cost of the work shall not include:
8.1.1 Salaries and other compensation of the Contractor's personnel
stationed at the Contractor's principal office or offices other than the site
office, except as specifically provided in Clauses 7.1.1.2 and 7.1.1.3 or as may
be provided in Article 14.
8.1.2 Expenses of the Contractor's principal office and offices other than
the site office.
8.1.3 Overhead and general expenses, except as may be expressly included in
Article 7.
8.1.4 The Contractor's capital expenses, including interest on the
Contractor's capital employed for the Work.
8.1.5 Rental costs of machinery and equipment, except as specifically
provided in Clause 7.1.4.2.
8.1.6 Except as provided in Subparagraphs 7.2.2 through 7.2.4 and Paragraph
13.5 of this Agreement, costs due to the fault or negligence of the Contractor,
Subcontractors, anyone directly or indirectly employed by any of them, or for
whose acts any of them may be liable, including but not limited to costs for the
correction of damaged, defective or nonconforming Work, disposal and replacement
of materials and equipment incorrectly ordered or supplied, and making good
damage to property not forming part of the Work.
8.1.7 Any cost not specifically and expressly described in Article 7.
8.1.8 Costs which would cause the Guaranteed Maximum Price, if any, to be
exceeded.
ARTICLE 9
---------
DISCOUNTS, REBATES AND REFUNDS
9.1 Cash discounts on payments made by the Owner shall accrue to the
Owner. Cash discounts obtained on payments made by the Contractor shall accrue
to the Owner if (1) before making the payment, the Contractor included them in
an Application for Payment and received payment therefor from the Owner, or (2)
the Owner has
<PAGE>
deposited funds with the Contractor with which to make payments;
otherwise, cash discounts shall accrue to the Contractor. Trade discounts,
rebates, refunds and amounts received from sales of surplus materials and
equipment shall accrue to the Owner, and the Contractor shall make provisions so
that they can be secured.
9.2 Amounts which accrue to the Owner in accordance with the provisions of
Paragraph 9.1 shall be credited to the Owner as a deduction from the Cost of the
Work.
ARTICLE 10
----------
SUBCONTRACTS AND OTHER AGREEMENTS
10.1 Those portions of the Work that the Contractor does not customarily
perform with the Contractor's own personnel shall be performed under
subcontracts or by other appropriate agreements with the Contractor. The
Contractor shall obtain bids from Subcontractors and from suppliers of materials
or equipment fabricated especially for the Work and shall deliver such bids to
the Architect. The Owner will then determine, with the advice of the Contractor
and subject to the reasonable objection of the Architect, which bids will be
accepted. The Owner may designate specific persons or entities from whom the
Contractor shall obtain bids; however, if a Guaranteed Maximum Price has been
established, the Owner may not prohibit the Contractor from obtaining bids from
others. The Contractor shall not be required to contract with anyone to whom
the Contractor has reasonable objection.
10.2 If a Guaranteed Maximum Price has been established and a specific
bidder among those whose bids are delivered by the Contractor to the Architect
(1) is recommended to the Owner by the Contractor; (2) is qualified to perform
that portion of the Work; and (3) has submitted a bid which conforms to the
requirements of the Contract Documents without reservations or exceptions, but
the Owner requires that another bid be accepted; then the Contractor may require
that a Change Order be issued to adjust the Guaranteed Maximum Price by the
difference between the bid of the person or entity recommended to the Owner by
the Contractor and the amount of the subcontract or other agreement actually
signed with the person or entity designated by the Owner.
10.3 Subcontracts or other agreements shall conform to the payment
provisions of Paragraphs 12.7 and 12.8, and shall not be awarded on the basis of
cost plus a fee without the prior consent of the Owner.
ARTICLE 11
----------
ACCOUNTING RECORDS
11.1 The Contractor shall keep full and detailed accounts and exercise such
controls as may be necessary for proper financial management under this
Contract; the accounting and control systems shall be satisfactory to the Owner.
The Owner and the
<PAGE>
Owner's accountants shall be afforded access to the Contractor's records, books,
correspondence, instructions, drawings, receipts, subcontracts, purchase orders,
vouchers, memoranda and other data relating to this Contract, and the Contractor
shall preserve these for a period of three years after final payment, or for
such longer period as may be required by law.
ARTICLE 12
----------
PROGRESS PAYMENTS
12.1 Based upon Applications for Payment submitted to the Architect by the
Contractor and Statements for Payment issued by the Architect, the Owner shall
make progress payments on account of the Contract Sum to the Contractor as
provided below and elsewhere in the Contract Documents.
12.2 The period covered by each Application for Payment shall be one
calendar month ending on the last day of the month, or as follows:
12.3 Provided an Application for Payment is received by the Architect not
later than the 13th day of a month, the Owner shall make payment to the
Contractor not later than the 2nd day of the following month. If an Application
for Payment is received by the Architect after the application date fixed above,
payment shall be made by the Owner not later than 15 days after the Architect
receives the Application for Payment.
12.4 With each Application for Payment the Contractor shall submit
payrolls, petty cash accounts, receipted invoices or invoices with check
vouchers attached, and any other evidence required by the Owner or Architect to
demonstrate that cash disbursements already made by the Contractor on account of
the Cost of the Work equal or exceed (1) progress payments already received by
the Contractor; less (2) that portion of those payments attributable to the
Contractor's Fee; plus (3) payrolls for the period covered by the present
Application for Payment; plus (4) retainage provided in Subparagraph 12.5.4, if
any, applicable to prior progress payments.
12.5 CONTRACTS WITH A GUARANTEED MAXIMUM PRICE
12.5.1 Each Application for Payment shall be based upon the most recent
schedule of values submitted by the Contractor in accordance with the Contract
Documents. The schedule of values shall allocate the entire Guaranteed Maximum
Price among the various portions of the Work, except that the Contractor's Fee
shall be shown as a single separate item. The schedule of values shall be
prepared in such form and
<PAGE>
supported by such data to substantiate its accuracy as the Architect may
require. This schedule, unless objected to by the Architect, shall be used as a
basis for reviewing the Contractor's Applications for Payment.
12.5.2 Applications for Payment shall show the percentage completion of each
portion of the Work as of the end of the period covered by the Application for
Payment. The percentage completion shall be the lesser of (1) the percentage of
that portion of the Work which has actually been completed or (2) the percentage
obtained by dividing (a) the expense which has actually been incurred by the
Contractor on account of that portion of the Work for which the Contractor has
made or intends to make actual payment prior to the next Application for Payment
by (b) the share of the Guaranteed Maximum Price allocated to that portion of
the Work in the schedule of values.
12.5.3 Subject to other provisions of the Contract Documents, the amount of
each progress payment shall be computed as follows:
12.5.3.1 Take that portion of the Guaranteed Maximum Price properly allocable
to completed Work as determined by multiplying the percentage completion of each
portion of the Work by the share of the Guaranteed Maximum Price allocated to
that portion of the Work in the schedule of values. Pending final determination
of cost to the Owner of changes in the Work, amounts not in dispute may be
included as provided in Subparagraph 7.3.7 of the General Conditions, even
though the Guaranteed Maximum Price has not yet been adjusted by Change Order.
12.5.3.2 Add that portion of the Guaranteed Maximum Price properly allocable to
materials and equipment delivered and suitably stored at the site for subsequent
incorporation in the Work or, if approved in advance by the Owner, suitably
stored off the site at a location agreed upon in writing.
12.5.3.3 Add the Contractor's Fee, less retainage of two percent (2%). The
Contractor's Fee shall be computed upon the Cost of the Work described in the
two preceding Clauses at the rate stated in Paragraph 5.1 or, if the
Contractor's Fee is stated as a fixed sum in that Paragraph, shall be an amount
which bears the same ratio to that fixed-sum Fee as the Cost of the Work in the
two preceding Clauses bears to a reasonable estimate of the probable Cost of the
Work upon its completion.
12.5.3.4 Subtract the aggregate of previous payments made by the Owner, and the
aggregate cost of all materials and equipment which were purchased on behalf of
the Owner by the Contactor or a Subcontractor, as Agent of the Owner, and for
which the Owner paid the vendor thereof directly.
12.5.3.5 Subtract the shortfall, if any, indicated by the Contractor in the
documentation required by Paragraph 12.4 to substantiate prior Applications for
Payment, or resulting from errors subsequently discovered by the Owner's
accountants in such documentation.
<PAGE>
12.5.3.6 Subtract amounts, if any, for which the Architect has withheld or
nullified a Certificate for Payment as provided in Paragraph 9.5 of the General
Conditions.
12.5.4 Additional retainage, if any, shall be as follows:
(If it is intended to retain additional amounts from progress payments to the
Contractor beyond (1) the retainage from the Contractor's Fee provided in Clause
12.5.3.3.(2) the retainage from Subcontractors provided in Paragraph 12.7 below,
and (3) the retainage, if any, provided by other provisions of the Contract,
insert provision for such additional retainage here. Such provision, if made,
should also describe any arrangement for limiting or reducing the amount
retained after the Work reaches a certain state of completion.)
See Subparagrah 9.8.3 of the General Conditions for the amount to be withheld by
the Owner from the payment due the Contractor upon Substantial Completion.
12.7 Except with the Owner's prior approval, payments to Subcontractors
included in the Contractor's Applications for Payment shall not exceed an amount
for each Subcontractor calculated as follows:
12.7.1 Take that portion of the Subcontract Sum properly allocable to
completed Work as determined by multiplying the percentage completion of each
portion of the Subcontractor's Work by the share of the total Subcontract Sum
allocated to that portion in the Subcontractor's schedule of values, less
retainage of ten percent (10%).* Pending final determination of amounts to be
paid to the Subcontractor for changes in the Work, amounts not in dispute may be
included as provided in Subparagraph 7.3.7 of the General Conditions even though
the Subcontract Sum has not yet been adjusted by Change Order.
12.7.2 Add that portion of the Subcontract Sum properly allocable to
materials and equipment delivered and suitably stored at the site for subsequent
incorporation in the Work or, if approved in advance by the Owner, suitably
stored off the site at a location agreed upon in writing, less retainage of ten
percent (10%).*
12.7.3 Subtract the aggregate of previous payments made by the Contractor to
the Subcontractor and the aggregate cost of all materials and equipment which
were purchased on behalf of the Owner by the Contractor or a Subcontractor, as
Agent of the Owner, and for which the Owner paid the Vendor thereof directly.
12.7.4 Subtract amounts, if any, for which the Architect has withheld or
nullified a Certificate for Payment by the Owner to the Contractor for reasons
which are the fault of the Subcontractor.
12.7.5 Add, upon Substantial Completion of the entire Work of the Contractor,
a sum sufficient to increase the total payments to the Subcontractor to one
hundred percent (100%) of the Subcontract Sum, less amounts, if any, for
incomplete Work and unsettled claims; and, if final completion of the entire
Work is thereafter materially delayed
<PAGE>
through no fault of the Subcontractor, add any additional amounts payable on
account of Work of the Subcontractor in accordance with Subparagraph 9.10.3 of
the General Conditions.
(If it is intended, prior to Substantial Completion of the entire Work of the
Contractor, to reduce or limit the retainage from Subcontractors resulting from
the percentages inserted in Subparagraphs 12.7.1 and 12.7.2 above, and this is
not explained elsewhere in the Contract Documents, insert here provisions for
such reduction or limitation.)
* The retainage withheld from Subcontractors with subcontracts
providing for payment of costs plus a fee, with a guaranteed maximum price shall
be Two percent (2%).
If recommended by the General Contractor, retainage will not be
withheld after Subcontractors' work is fifty percent. (50%) complete.
The Subcontract Sum is the total amount stipulated in the subcontract to be paid
by the Contractor to the Subcontractor for the Subcontractor's performance of
the subcontract.
12.8 Except with the Owner's prior approval, the Contractor shall not make
advance payments to suppliers for materials or equipment which have not been
delivered and stored at the site.
12.9 In taking action on the Contractor's Applications for Payment, the
Architect shall be entitled to rely on the accuracy and completeness of the
information furnished by the Contractor and shall not be deemed to represent
that the Architect has made a detailed examination, audit or arithmetic
verification of the documentation submitted in accordance with Paragraph 12.4 or
other supporting data; that the Architect has made exhaustive or continuous
on-site inspections or that the Architect has made examinations to ascertain how
or for what purposes the Contractor has used amounts previously paid on account
of the Contract. Such examinations, audits and verifications, if required by
the Owner, will be performed by the Owner's accountants acting in the sole
interest of the Owner.
ARTICLE 13
----------
FINAL PAYMENT
13.1 Final payment shall be made by the Owner to the Contractor when (1)
the Contract has been fully performed by the Contractor except for the
Contractor's responsibility to correct defective or nonconforming Work, as
provided in Subparagraph 12.2.2 of the General Conditions, and to satisfy other
requirements, if any, which necessarily survive final payment; (2) a final
Application for Payment and a final accounting for the Cost of the Work have
been submitted by the Contractor and reviewed by the Owner's accountants; and
(3) a final Statement for Payment has then been issued by the Architect as
provided in Subparagraph 9.10.1 of the General Conditions; such final payment
shall be made by the Owner not more than 30 days after the issuance of the
Architect's final Statement for Payment, or as follows:
<PAGE>
13.2 The amount of the final payment shall be calculated as follows:
13.2.1 Take the sum of the Cost of the Work substantiated by the Contractor's
final accounting and the Contractor's Fee; but not more than the Guaranteed
Maximum Price, if any.
13.2.2 Subtract amounts, if any, for which the Architect withholds, in whole
or in part, a final Certificate for Payment as provided in Subparagraph 9.5.1 of
the General Conditions or other provisions of the Contract Documents.
13.2.3 Subtract the aggregate of previous payments made by the Owner and the
aggregate cost of all materials and equipment which were purchased on behalf of
the Owner by the Contractor or a Subcontractor, as Agent of the Owner, and for
which the Owner paid the Vendor thereof directly.
If the aggregate of previous payments made by the Owner exceeds the amount due
the Contractor, the Contractor shall reimburse the difference to the Owner.
13.3 The Owner's accountants will review and report in writing on the
Contractor's final accounting within 30 days after delivery of the final
accounting to the Architect by the Contractor. Based upon such Cost of the Work
as the Owner's accountants report to be substantiated by the Contractor's final
accounting, and provided the other conditions of Paragraph 13.1 have been met,
the Architect will, within seven days after receipt of the written report of the
Owner's accountants, either issue to the Owner a final Statement for Payment
with a copy to the Contractor, or notify the Contractor and Owner in writing of
the Architect's reasons for withholding a Statement as provided in Subparagraph
9.5.1 of the General Conditions. The time periods stated in this Paragraph 13.3
supersede those stated in Subparagraph 9.4.1 of the General Conditions.
13.4 If the Owner's accountants report the Cost of the Work as
substantiated by the Contractor's final accounting to be less than claimed by
the Contractor, the Contractor shall be entitled to demand arbitration of the
disputed amount without a further decision of the Architect. Such demand for
arbitration shall be made by the Contractor within 30 days after the
Contractor's receipt of a copy of the Architect's final Statement for Payment:
failure to demand arbitration within this 30-day period shall result in the
substantiated amount reported by the Owner's accountants becoming binding on the
Contractor. Pending a final resolution by arbitration, the Owner shall pay the
Contractor the amount certified in the Architect's final Statement for Payment.
13.5 If, subsequent to final payment and at the Owner's request, the
Contractor incurs costs described in Article 7 and not excluded by Article 8 to
correct defective or nonconforming Work, the Owner shall reimburse the
Contractor such costs and the Contractor's Fee applicable thereto on the same
basis as if such costs had been incurred prior to final payment, but not in
excess of the Guaranteed Maximum Price, if any. If the Contractor has
participated in savings as provided in Paragraph 5.2, the amount of such
<PAGE>
savings shall be recalculated and appropriate credit given to the Owner in
determining the net amount to be paid by the Owner to the Contractor.
ARTICLE 14
----------
MISCELLANEOUS PROVISIONS
14.1 Where reference is made in this Agreement to a provision of the
General Conditions or another Contract Document, the reference refers to that
provision as amended or supplemented by other provisions of the Contract
Documents.
14.2 Payments due and unpaid under the Contract shall bear interest from
the date payment is due at the rate stated below, or in the absence thereof, at
the legal rate prevailing from time to time at the place where the Project is
located.
(Insert rate of interest agreed upon, if any.)
Prime rate of AmSouth Bank N.A. in effect from time to time during the
applicable period or periods during which payments are past due.
(Usury laws and requirements under the Federal Truth in Lending Act, similar
state and local consumer credit laws and other regulations at the Owner's and
Contractor's principal places of business, the location of the Project and
elsewhere may affect the validity of this provision. Legal advice should be
obtained with respect to deletions or modifications, and also regarding
requirements such as written disclosure or waivers.)
14.3 Other provisions: The Cost of the Work includes the cost of materials
and equipment which are purchased on behalf of the Owner by the Contractor or a
Subcontractor, as Agent for the Owner, and for which the Owner pays the vendor
thereof directly. To facilitate appropriate accounting for the Project,
Applications for Payment will contain the cost of all such materials and
equipment and will also contain a credit to the Owner for the cost of such
materials and equipment. In no event shall the Contractor or any Subcontractor
be entitled to reimbursement or payment for any such materials or equipment.
ARTICLE 15
----------
TERMINATION OR SUSPENSION
15.1 The Contract may be terminated by the Contractor or the Owner as
provided in Article 14 of the General Conditions;
ARTICLE 16
----------
ENUMERATION OF CONTRACT DOCUMENTS
16.1 The Contract Documents, except for Modifications issued after
execution of this Agreement, are enumerated as follows:
<PAGE>
16.1.1 The Agreement is this executed Standard Form of Agreement Between
Owner and Contractor, AIA Document A111, 1987 Edition.
16.1.2 The General Conditions are the General Conditions of the Contract
for Construction, attached hereto.
16.1.3 The Supplementary and other Conditions of the Contract are those
contained in the following list of Contract Documents:
Document Title Pages
Lohan Construction Documents through Addendum No. 13 dated 4/20/94
Lohan Training Center Design/Development Documents dated 12/14/93
L/S/W Design Development Documents dated 2/22/94
(Training Center Interiors Only) Lohan Training Center
Design/Development Documents dated 11/17/93.
and the Clarifications dated March 2 and 3, 1994 attached hereto as
Schedule 16.1.3.
16.1.4 The Specifications are those contained in
(Either list the Specifications here or refer to an exhibit attached to this
Agreement.)
Section Title Pages
Clarifications and Contract Documents listed in subparagraph 16.1.3 hereof.
16.1.5 The Drawings are:
(Either list the Drawings here or refer to an exhibit attached to this
Agreement.)
Number Title Date
Contained in the Clarifications and Contract Documents listed in Subparagraph
16.1.3 hereof.
16.1.6 The Addenda, if any, are:
Contained in the Clarifications and Contract Documents listed in subparagraph
16.1.3 hereof.
Portions of Addenda relating to bidding requirements are not part of the
Contract Documents unless the bidding requirements are also enumerated in this
Article 16.
<PAGE>
16.1.7 Other Documents, if any, forming part of the Contract Documents are as
follows:
(List here any additional documents which are intended to form part of the
Contract Documents. The General Conditions provide that bidding requirements
such as advertisement or invitation to bid, instructions to Bidders, sample
forms and the Contractor's bid are not part of the Contract Documents unless
enumerated in this Agreement. They should be listed here only if intended to be
part of the Contract Documents.)
This Agreement is entered into as of the day and year first written above and is
executed in at least three original copies of which one is to be delivered to
the Contractor, one to the Architect for use in the administration of the
Contract, and the remainder to the Owner.
OWNER CONTRACTOR
/s/ Henry A. Long, Jr. /s/ M. James Gorrie
- ------------------------ -------------------------
(Signature) (Signature)
Henry A. Long, Jr. M. James Gorrie
Sr. Vice President Executive Vice President
- ----------------------------------------- -------------------------
(Printed name and title) (Printed name and title)
<PAGE>
Exhibit 10-0
- -------------------------------------------------------------------------------
[LOGO OF AMSOUTH APPEARS HERE]
____________ ___,1994
Brasfield & Gorrie General Contractor, Inc.
P.O. Box 10383
Birmingham, Alabama 35202
Attention: Charles L. Grizzle, Jr., Esquire
Dear Chip:
AmSouth Bank, N.A. ("AmSouth") is today entering into the Standard Form of
Agreement between Owner and Contractor (Buildings) (the "Agreement") with
Brasfield & Gorrie General Contractor, Inc. ("Brasfield & Gorrie"). AmSouth
desires to assign the Agreement to Sun Riverchase, Limited Partnership ("Sun
Riverchase"). In consideration for Brasfield & Gorrie's consent to the
assignment of the Agreement and for other good and valuable consideration,
receipt of which is hereby acknowledged, so long as Brasfield & Gorrie performs
its obligations under the Agreement AmSouth does hereby unconditionally
guarantee the full payment of all amounts due to Brasfield & Gorrie under the
Agreement as such amounts become due. AmSouth shall pay all collection costs,
including reasonable attorney's fees, in the event Brasfield & Gorrie initiates
legal action to enforce the guarantee set forth herein. AmSouth also agrees that
it will cooperate with Brasfield & Gorrie in the enforcement of Brasfield &
Gorrie's rights against Sun Riverchase under the Agreement, including, if and
to the extent
<PAGE>
Charles L. Grizzle, Jr., Esquire
____________ __, 1994
Page 2.
necessary, allowing Brasfield & Gorrie to bring lawsuits or actions against Sun
Riverchase in the name of AmSouth. If Brasfield & Gorrie desires to bring any
such lawsuit or action against Sun Riverchase, it will give AmSouth notice of
the same with a full explanation of the factual and legal basis thereof and give
AmSouth the opportunity to pursue or participate in, at AmSouth's election, such
lawsuit or action. Brasfield & Gorrie shall pay the reasonable costs and
expenses of any such lawsuit or action pursued or participated in by AmSouth.
AMSOUTH BANK N.A.
BY: /s/ Henry A. Long Jr.
----------------------------
TITLE: SR. VICE PRESIDENT
-------------------------
Agreed, this __ day of
___________, 1994
Brasfield & Gorrie General Contractor, Inc.
By: /s/ M. James Gorrie
------------------------------
Title: Executive Vice President
---------------------------
<PAGE>
EXHIBIT 11
AMSOUTH BANCORPORATION
COMPUTATION OF EARNINGS PER COMMON SHARE
<TABLE>
<CAPTION>
SIX MONTHS THREE MONTHS
ENDED JUNE 30 ENDED JUNE 30
------------------- -------------------
1994 1993 1994 1993
--------- --------- --------- ---------
(IN THOUSANDS EXCEPT PER SHARE DATA)
<S> <C> <C> <C> <C>
Net income............................. $81,874 $77,774 $42,900 $39,699
========= ========= ========= =========
Average shares of common stock out-
standing.............................. 54,588 50,345 54,782 50,965
========= ========= ========= =========
Earnings per common share.............. $ 1.50 $ 1.54 $ 0.78 $ 0.78
========= ========= ========= =========
</TABLE>
24
<PAGE>
EXHIBIT 15--LETTER RE: UNAUDITED INTERIM FINANCIAL INFORMATION
Board of Directors
AmSouth Bancorporation
We are aware of the incorporation by reference in the following Registration
Statements and in their related Prospectuses, of our report dated August 10,
1994, relating to the unaudited consolidated interim financial statements of
AmSouth Bancorporation and subsidiaries which are included in its Form 10-Q for
the quarter ended June 30, 1994:
Form S-8 No. 33-52243 pertaining to the assumption by AmSouth
Bancorporation of FloridaBank Stock Option Plan and Stock Option Plan--
1993;
Form S-8 No. 33-52113 pertaining to the 1989 Long Term Incentive
Compensation Plan;
Form S-3 No. 33-50363 pertaining to the Debt Shelf Registration;
Form S-8 No. 33-35218 pertaining to the 1989 Long Term Incentive
Compensation Plan;
Form S-8 No. 33-37905 pertaining to the AmSouth Bancorporation Thrift Plan;
Form S-8 No. 33-9368 pertaining to the Long Term Incentive Compensation
Plan;
Form S-8 No. 33-2927 (as amended) pertaining to the Employee Stock Purchase
Plan;
Form S-8 No. 2-97464 pertaining to the Long Term Incentive Compensation
Plan;
Form S-3 No. 33-35280 pertaining to the Dividend Reinvestment and Common
Stock Purchase Plan;
Form S-8 No. 33-19016 pertaining to the Long Term Incentive Compensation
Plan; and
Form S-8 No. 33-18653 pertaining to the 1987 Substitute Stock Option Plan.
Pursuant to Rule 436(c) of the Securities Act of 1933 our reports are not a
part of the registration statements prepared or certified by accountants within
the meaning of Sections 7 or 11 of the Securities Act of 1933.
/s/ Ernst & Young
August 10, 1994
25
