AS FILED WITH THE SECURITIES AND EXCHANGE COMMISSION ON JUNE 10, 1996
REGISTRATION NO. 333-05313
_______________________________________________________________
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
_____________
AMENDMENT NO. 1 TO
FORM S-3
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
_____________
BUCKHEAD AMERICA CORPORATION
(Exact name of registrant as specified in its charter)
________________
DELAWARE 58-2023732
____________________
(State or other jurisdiction (I.R.S. Employer
of incorporation or organization) Identification No.)
4243 DUNWOODY CLUB DRIVE
SUITE 100
DUNWOODY, GEORGIA 30350
(770) 393-2662
(Address, including zip code, and telephone number, including area
code, of registrant's principal executive offices)
DOUGLAS C. COLLINS
PRESIDENT AND CHIEF EXECUTIVE OFFICER
4243 DUNWOODY CLUB DRIVE
SUITE 200
DUNWOODY, GEORGIA 30350
(Name, address, including zip code, and telephone number, including
area code, of agent for service)
________________
COPIES TO:
T. CLARK FITZGERALD III, ESQ.
ARNALL GOLDEN & GREGORY
1201 W. PEACHTREE STREET
SUITE 2800
ATLANTA, GEORGIA 30309-3400
(404) 873-8622
________________
APPROXIMATE DATE OF COMMENCEMENT OF PROPOSED SALE TO THE PUBLIC:
From time to time after the effective date of this registration
statement.
If the only securities being registered on this form are being
offered pursuant to dividend or interest reinvestment plans, please
check the following box: / /
If any of the securities being registered on this form are to be
offered on a delayed or continuous basis pursuant to rule 415 under
the securities act of 1933, as amended, other than securities offered
only in connection with dividend or interest reinvestment plans,
please check the following box /x/
_________________
If this Form is filed to register additional securities for an
offering pursuant to Rule 462(b) under the Securities Act, please
check the following box and list the Securities Act registration
statement number of the earlier effective registration statement for
the same offering. / /
If this Form is a post-effective amendment filed pursuant to
Rule 462(c) under the Securities Act, check the following box and
list the Securities Act registration statement number of the earlier
effective registration statement for the same offering. / /
If delivery of the prospectus is expected to be made pursuant to
Rule 434, please check the following box. / /
___________________
The Registrant hereby amends this Registration Statement on such
date or dates as may be necessary to delay its effective date until
the Registrant shall file a further amendment which specifically
states that this Registration Statement shall thereafter become
effective in accordance with Section 8(a) of the Securities Act of
1933 or until this Registration Statement shall become effective on
such date as the Commission, acting pursuant to said Section 8(a),
may determine.
Subject to Completion, Dated June 10, 1996
PROSPECTUS
BUCKHEAD AMERICA CORPORATION
41,558 Shares
Common Stock
$.01 par value
The 41,558 shares of Common Stock, $0.01 par value (the
"Stock"), of Buckhead America Corporation ("Buckhead" or the
"Company") to which this Prospectus relates are offered for the
stockholder identified in this Prospectus under the heading "Selling
Stockholder," or for the account of pledgees, donees, transferees or
other successors in interest of the Selling Stockholder. Such sales
may be made to or through one or more brokers or dealers (who may
also be market makers) either in the over-the-counter market at
prices and at terms then prevailing or at prices related to the then-
current market price, or in negotiated transactions. Such
transactions may include, but are not limited to, one or more of the
following: (a) a block trade in which the broker or dealer so
engaged will attempt to sell the Stock as an agent, but may position
and resell a portion of the block as principal to facilitate the
transaction; (b) purchases by a broker or dealer as principal and
resale by such broker or dealer for its account pursuant to this
Prospectus; and (c) ordinary brokerage transactions and transactions
in which the broker solicits purchasers. In effecting sales, brokers
or dealers engaged by the Selling Stockholder may arrange for other
brokers or dealers to participate. In the event of a transaction
hereunder in which a broker or dealer acts as a principal (other than
to facilitate an installment sale transaction, or to a market maker
acting as such in routine transactions in the over-the-counter
market), this Prospectus will be supplemented to provide material
facts with respect to such transaction.
Brokers or dealers involved in sales hereunder will receive
commissions or discounts in amounts to be negotiated prior to the
sale. Such brokers or dealers and any other participating brokers or
dealers may be deemed to be "underwriters" within the meaning of the
Securities Act of 1933, as amended (the "Act"), in connection with
such sales, and any profits or commissions earned by them in such
transactions may be deemed to be underwriting discounts or
commissions under the Act.
The Common Stock offered hereby involves a high degree of risk.
See "Risk Factors" beginning on page 8.
Buckhead will receive no portion of the proceeds of the sale of
the Stock hereunder. The Company will incur the costs of
preparation, reproduction, and distribution for this Registration
Statement, estimated at $10,000 (including SEC and NASD filing fees).
The Selling Stockholder will pay the brokerage discounts or
commissions.
Sales of Stock may also be made for the account of the Selling
Stockholder, or for the account of donees, transferees or other
successors in interest of the Selling Stockholder, pursuant to Rule
144 under the Act. The Company's Common Stock is traded in the over-
the-counter market, and is reported in the Nasdaq Stock Market. On
June 3, 1996, the closing sale price was reported to be $7.48 per
share.
No dealer, salesman or other person has been authorized to give
any information or to make any representation not contained or
incorporated by reference in this Prospectus and, if given or made,
such information or representation must not be relied upon as having
been authorized by Buckhead. This Prospectus does not constitute an
offer to sell or a solicitation of any offer to buy any of the
securities offered hereby in any jurisdiction to any person to whom
it is unlawful to make such offer or solicitation in such
jurisdiction. Neither the delivery of this Prospectus nor any sale
made hereunder shall, under any circumstances, create any implication
that the information herein is correct as of any time subsequent to
the date hereof or that there has been no change in the affairs of
Buckhead since such date or, in the case of information incorporated
herein by reference, the date of filing with the Securities and
Exchange Commission.
THESE SECURITIES HAVE NOT BEEN APPROVED OR DISAPPROVED BY THE
SECURITIES AND EXCHANGE COMMISSION NOR HAS THE COMMISSION PASSED UPON
THE ACCURACY OR ADEQUACY OF THIS PROSPECTUS. ANY REPRESENTATION TO
THE CONTRARY IS A CRIMINAL OFFENSE. INFORMATION CONTAINED HEREIN IS
SUBJECT TO COMPLETION OR AMENDMENT. A REGISTRATION STATEMENT
RELATING TO THESE SECURITIES HAS BEEN FILED WITH THE SECURITIES AND
EXCHANGE COMMISSION. THESE SECURITIES MAY NOT BE SOLD NOR MAY OFFERS
TO BUY BE ACCEPTED PRIOR TO THE TIME THE REGISTRATION STATEMENT
BECOMES EFFECTIVE. THIS PROSPECTUS SHALL NOT CONSTITUTE AN OFFER TO
SELL OR THE SOLICITATION OF AN OFFER TO BUY NOR SHALL THERE BE ANY
SALE OF THESE SECURITIES IN ANY STATE IN WHICH SUCH OFFER,
SOLICITATION OR SALE WOULD BE UNLAWFUL PRIOR TO REGISTRATION OR
QUALIFICATION UNDER THE SECURITIES LAWS OF ANY SUCH STATE.
The date of this Prospectus is June 10, 1996
AVAILABLE INFORMATION
The Company is subject to the informational requirements of the
Securities Exchange Act of 1934, as amended, and, in accordance
therewith, files reports, proxy statements and other information
(including the Registration Statement contained in this Prospectus)
with the Securities and Exchange Commission (the "Commission").
Reports, proxy statements and other information filed by a the
Company with the Commission can be inspected and copied at the public
reference facilities maintained by the Commission at Judiciary Plaza,
450 Fifth Street NW, Washington, DC 20549 and at certain of its
Regional Offices located at Room 1204, Everett McKinley Dirksen
Building, 210 South Dearborn Street, Chicago, Illinois 60604; Room
1102, Jacob K. Javits Federal Building, 26 Federal Plaza, New York,
New York 10278; and Suite 500 East, 5757 Wilshire Boulevard, Los
Angeles, California 90036. Copies of such material may be obtained
from the Public Reference Section of the Commission at 450 Fifth
Street NW, Washington, DC 25049 at prescribed rates. The Common
Stock listed on The Nasdaq Stock Market and such reports, proxy and
information statements and other information concerning the Company
can be inspected and copied at the Nasdaq Stock Market, 1735 K
Street, N.W. Washington, D.C. 20006-1506.
As noted below, this Prospectus incorporates documents by
reference which are not presented herein or delivered herewith. The
Company will provide without charge to each person, including any
beneficial owner, to whom a copy of this Prospectus is delivered,
upon written or oral request of such person, a copy of any and all of
the information that has been incorporated by reference in this
Prospectus (not including exhibits to the information that is
incorporated by reference unless such exhibits are specifically
incorporated by reference into the information that this Prospectus
incorporates). Such requests should be made to Mr. Robert B. Lee,
Chief Financial Officer, Buckhead America Corporation, 4243 Dunwoody
Drive, Suite 102, Dunwoody, Georgia 30350 (telephone (770) 393-
2662), which address and telephone number are those of the Company's
principal executive offices.
INCORPORATION OF CERTAIN DOCUMENTS BY REFERENCE
The following documents filed with the Commission by Buckhead
(File No. 0-22132) pursuant to the Exchange Act and the Securities
Act are incorporated by reference in this Prospectus:
1. Buckhead's annual report on Form 10-KSB for the year ended
December 31, 1995.
2. Buckhead's quarterly report on Form 10-Q for the three
months ended March 31, 1996.
3. All other reports filed by the registrant pursuant to
Sections 13(a) or 15(d) of the Securities Exchange Act of 1934
since December 31, 1994.
4. The description of the registrant's Common Stock contained
in the registrant's registration statement filed under Section
12 of the Securities Exchange Act of 1934, including any
amendment or report filed for the purpose of updating such
description.
All documents and reports filed by Buckhead, if any, pursuant to
Section 13(a), 13(c), 14 or 15(d) of the Exchange Act as of the date
of this Prospectus and prior to termination of the Offering of the
securities offered hereby shall be deemed to be incorporated by
reference in this Prospectus and to be a part of this Prospectus from
the dates of filing of such documents or reports. Any statement
contained herein or in a document incorporated or deemed to be
incorporated by reference herein shall be deemed to be modified or
superseded for purposes of this Prospectus to the extent that a
statement contained herein, in any other subsequently filed document
which also or is or is deemed to be incorporated by reference herein
modifies or supersedes such statements. Any such statement so
modified or superseded shall not be deemed, except as so modified and
superseded, to constitute a part of this Prospectus.
BACKGROUND INFORMATION
BUSINESS DEVELOPMENT
Form and Year of Organization. Buckhead America Corporation
("Buckhead" or the "Company") and most of its wholly-owned
subsidiaries were incorporated in Delaware on December 17, 1992, in
connection with the reorganization under Chapter 11 of the Bankruptcy
Code ("Chapter 11") of Buckhead America Corporation ("Old Buckhead"),
a Georgia corporation formerly known as Days Inns of America, Inc.
("Days Inns"), and certain of its affiliates. The Company, the
successor-in-interest to certain assets and liabilities of Days Inns
and the other Debtors (as defined below), commenced operations on
December 29, 1992. Unless the context otherwise requires, references
to the Company herein include the Company and its subsidiaries.
Old Buckhead Chapter 11 Proceedings. On September 27, 1991,
Days Inns and seven of its subsidiaries, along with its parent,
Tollman-Hundley Lodging Corp. ("THLC"; collectively, the "Debtors"),
filed petitions for reorganization under Chapter 11 in the United
States Bankruptcy Court for the District of Delaware (the "Bankruptcy
Court") in jointly administered proceedings (the "Chapter 11
Proceedings").
In January 1992, during the course of the Chapter 11
Proceedings, the Debtors sold substantially all of their assets
relating to the Days Inns Franchise System (the "Franchise Sale") to
a wholly-owned subsidiary of Hospitality Franchise Systems, Inc.
("HFS"). Because the Franchise Sale included the "Days Inn" name,
Days Inns changed its name to Buckhead America Corporation.
On December 18, 1992, the Bankruptcy Court entered an Order
confirming the Debtors' Third Amended Joint Plan of Reorganization
(the "Plan"). The Plan became effective on December 28, 1992 (the
"Effective Date"). The Debtors' reorganization was implemented
through the transfer of certain assets to the Company and its wholly-
owned subsidiaries, each of which were newly incorporated as Delaware
corporations. Pursuant to the Plan, (1) substantially all of the
Debtors' assets, and certain assets of non-Debtor subsidiaries, other
than the Debtors' hotel management business, were transferred to the
Company and its subsidiaries, which also assumed certain liabilities
of the Debtors; (2) the Debtors' hotel management business was
retained by THLC; and (3) cash and 1,761,321 shares of the Company's
common stock, $.01 par value (the "Common Stock") were distributed to
creditors in accordance with the terms of the Plan.
Material Purchases and Sales of Significant Assets. During
1993, the Company sold the three hotel properties which had been
transferred from Old Buckhead. In March 1993, the Company acquired
through foreclosure a 180-room Days Inn hotel in Daytona, Florida
(the "Daytona Hotel") and in September 1994, the Company acquired
through foreclosure a 150-room Days Inns hotel in Miami, Florida (the
"Miami Hotel").
In May 1994, the Company, through a newly formed, wholly-owned
subsidiary, BAC Franchising Inc., a Delaware corporation, acquired
the trademark rights and license agreements comprising the Country
Hearth Inn mid-priced hotel franchise system.
On May 15, 1995, Buckhead acquired a fifty-five percent (55%)
interest in Heritage Inn Associates, Ltd., a partnership which owns a
150-room hotel in Orlando, Florida formerly known as the Heritage
Inn. Immediately upon acquisition, the hotel was converted to
operate as a Country Hearth Inn.
On December 7, 1995 Buckhead purchased three Homeplace Inn hotel
properties in Texas from affiliates of American Liberty Hospitality,
Inc. ("ALH"), including the Selling Stockholder. Immediately upon
acquisition, the acquired hotels (the "Texas Hotels") along with
three other ALH owned Homeplace Inn properties were converted to
operate as Country Hearth Inns.
Buckhead and ALH also entered into an agreement which grants ALH
preferential rights to licensing of Country Hearth Inns in Texas.
ALH has agreed to develop 12 new Country Hearth Inns in Texas over
the next five years.
Additionally, during 1994 and 1995 the Company expanded its
hotel franchising operations by developing updated prototype hotels,
implementing a franchise sales and marketing plan, and establishing a
centralized room reservation system. The Company became licensed to
sell Country Hearth Inn hotel franchises in 49 states.
During the first quarter of 1996 the Company completed the
acquisition of an 80-room hotel in Atlanta for approximately $3
million. The acquisition was funded by $600,000 cash, issuance of a
$230,000 interest free short-term note, and a seller provided $2.1
million (9.5%) first mortgage. The Company intends to spend
approximately $500,000 in renovations and refurbishments in
converting the Atlanta hotel to join the Country Hearth Inn chain,
the Company's principal product.
BUSINESS
Principal Products and Services. The Company operates in the
hospitality industry and its principal holdings include hotels, loans
and other investments secured by hotels, franchising rights and other
related assets. Its principal product is the Country Hearth Inn mid-
priced hotel chain which the Company acquired in May 1994. The
primary activity of the Company involves the expansion of the Country
Hearth chain. Expansion of the chain has been effected through
direct acquisition and conversion of existing hotels and through
franchise sales. The Company currently owns seven hotels, five of
which are Country Hearth hotels, and has Country Hearth franchise
agreements with the owners of a total of 13 hotels ("Franchise
Hotels")
A substantial portion of the Company's assets were transferred
to it by Old Buckhead pursuant to the Plan. In addition to a
significant amount of cash (more fully described below), the
principal assets transferred to the Company were notes receivable
primarily secured by limited service hotel properties, other
unsecured receivables, and limited service hotel properties acquired
through foreclosure. As a result of the assets transferred to it,
the initial operations of the Company included mortgage servicing and
hotel management.
Pursuant to the Plan, Old Buckhead transferred approximately $21
million in cash to the Company, approximately $20 million of which
was restricted in use. Substantially all of the restricted cash was
to be used in the settlement of certain pending claims asserted or
assertable against Old Buckhead. Based on a clarification of the
Plan, remaining amounts in these restricted cash accounts after
payment of pending administrative and tax claims, if any, are assets
of the Company. Thus, another significant activity of the Company
involved the settlement, disallowance, or other resolution of
disputed and otherwise unsettled administrative and tax claims
against Old Buckhead. As of December 31, 1995, most of these
activities had concluded.
The Daytona and Miami hotels are operated under Days Inns
license agreements. Marketing is generally conducted on a localized
basis and through national and regional programs implemented by the
franchisor. The Daytona Hotel is managed by the Company and the
Miami Hotel is managed by an unrelated third party.
The Orlando and Texas hotels are operated under Country Hearth
Inns license agreements. Marketing is generally conducted on a
localized basis and through national and regional programs
implemented by the Company. The Orlando Hotel is managed by the
Company and the Texas Hotels are managed by ALH.
COMPETITION. There is significant competition in every phase of
the hospitality industry including development, construction,
management, franchising, and in loan servicing. The Company competes
in a very limited way with other hotel management companies because
the Company currently manages only hotels which it owns. There are
many hotel management companies in the United States, and many of
them are significantly larger than the Company. The Company's
operations also involve collecting and servicing hotel mortgage
receivables. The terms of these mortgages are fixed. The Company
does not compete as it relates to those mortgages. However, the
mortgages are on hospitality related properties and the
collectibility of the mortgages could be affected by competition
faced by the maker of the mortgage. As stated earlier, there is
significant competition in the hospitality industry. There are
numerous hotel chains that operate on a national and regional basis.
There is significant competition in the areas of price, location,
quality and service. This competition could affect the
collectibility of these mortgages.
As a franchisor, the Company competes with a large number of
hotel franchise companies, most of whom are much larger than the
Company and own brands which are more nationally recognized than the
Company's.
The Company is a new entrant in the hotel industry. It believes
that its management is experienced in hotel franchising, hotel
management and in loan servicing. In addition, the Company may
identify other opportunities in the hospitality industry. However,
existing hotel companies and new entrants to the hotel industry in
markets which the Company may pursue will present significant
competition which may have an adverse affect on the Company. See
"Risk Factors - Hotel Industry Risks."
REGULATION. Sales of franchises are principally regulated
through fairly uniform state laws. Such laws generally provide for
registration by the franchiser of standardized offering documents and
compliance with numerous financial qualifications. The Company
undertook substantial registration activities and is presently
licensed to sell Country Hearth Inn franchises in 49 states.
RESEARCH AND DEVELOPMENT. During 1994, the Company invested
approximately $50,000 on the development of new prototype hotels and
other enhancements to the franchise system. During 1995, the Company
invested approximately $25,000 in market studies, environmental
studies, and other feasibility analyses relating to potential hotel
acquisitions.
ENVIRONMENTAL COMPLIANCE. In keeping with its environmental
policies, the Company replaced two underground storage tanks at its
Daytona Hotel during 1994 at a net cost of approximately $70,000.
Future funding requirements for all Company operations relating to
environmental compliance are presently expected to be negligible.
See "Risk Factors - Real Estate Investment Risks - Environmental
Matters."
EMPLOYEES. As of February 29, 1996, the Company has ten full-
time and one part-time corporate employees and 91 full-time and 28
part-time hotel employees. No Company personnel are presently
employed under collective bargaining agreements.
PURCHASE FROM SELLING STOCKHOLDER. The Company purchased three
hotels from the Selling Stockholder in September 1995. These hotels
are located in Wharton, Freeport, and Angleton, Texas. In connection
with such sale, the Company issued the Stock to the Selling
Stockholder. See "Selling Stockholder."
RISK FACTORS
LACK OF CAPITAL/LEVERAGE
The Company does not presently have a working capital facility
nor are there any assurances that it could obtain a working capital
facility to the extent that it determined that such a facility was
necessary.
The Company has guaranteed the obligations of its wholly-owned
subsidiary, BLM EB, Inc. ("Buckhead EB"), pursuant to the promissory
note (the "Trilon Note") in the original aggregate principal amount
of $11.3 million payable to Trilon International, Inc., formerly
known as Eurobrokers International, Inc., an unaffiliated third party
lender ("Trilon"). The current balance of the Trilon Note is
approximately $1.8 million. In order to generate sufficient funds to
make interest and principal payments under the Trilon Note, Buckhead
EB may be required to restructure or foreclose on one or more of the
notes which it acquired from the Debtors (the "Mortgage Portfolio
Notes"), certain of which were pledged to secure the Trilon Note (the
"Trilon Portfolio"), complete asset sales, or restructure or
refinance its obligations under the Trilon Note. There can be no
assurance that such foreclosures, asset sales, restructurings or
refinancings will generate sufficient proceeds to meet Buckhead EB's
obligations under the Trilon Note. Unfavorable conditions in the
financial markets and the hospitality industry, restrictive covenants
contained in the Trilon Note and various other factors may also limit
the ability of Buckhead EB to consummate these transactions. In the
event that the Company becomes liable pursuant to its guarantee of
the Trilon Note, there is no assurance that the Company will have
access to funds to make such payments. If the Company cannot fund
such payments, it may be required to sell assets, restructure its
obligations or seek protection under the Code.
REAL ESTATE INVESTMENT RISKS
GENERAL RISKS OF INVESTING IN REAL ESTATE
The Company's interests in undeveloped real properties and
hotels and its interests in the Days Inn Mortgage Trust, a Delaware
trust (the "CMO") and the Trilon Portfolio are real estate assets and
are subject to the varying risks associated with assets of such
nature. Because real estate assets are relatively illiquid, the
Company's ability to respond promptly to changes in economic or other
conditions by altering its portfolio may be limited. As of June 1,
1996, the Company's interest in the Trilon Portfolio constitutes a
substantial portion of the Company's operating assets, including the
Daytona, Miami and Orlando Hotels and is material to the Company's
business. The Company's interest in the CMO is immaterial and is
carried on the Company's balance sheet at a zero value. In addition,
income from these properties or debt service on certain unpledged
mortgage notes owned by the Company (the "Unpledged Mortgage Notes")
or the Mortgage Portfolio Notes included in the Trilon Portfolio and
the CMO may be adversely affected by the general economic climate,
local conditions such as oversupply of hotels or a reduction in
demand for hotels in the area, the attractiveness of the properties
to customers, competition from other available hotels, the ability of
the owner to provide adequate maintenance and insurance, and
increased operating costs (including real estate taxes).
The Company's investments in the Hotels are subject to varying
degrees of risk generally incident to the ownership of real property.
The underlying value of the Company's real estate investments and the
Company's income and ability to make distributions to its
shareholders are both dependent upon the ability of the Company to
operate the Hotels in a manner sufficient to maintain or increase
room revenues and to generate sufficient income in excess of
operating expenses. Income from the Hotels may be adversely affected
by adverse changes in national economic conditions and neighborhood
characteristics, competition from other hotel properties, changes in
interest rates and in the availability, cost and terms of mortgage
funds, the impact of present or future environmental legislation and
compliance with environmental laws, the ongoing need for capital
improvements, particularly in older structures, changes in real
property tax rates and other operating expenses, changes in
governmental rules and fiscal policies, civil unrest, acts of God,
including earthquakes, floods, and other natural disasters (which may
result in uninsured losses), acts of war, adverse changes in zoning
laws, and other factors which are beyond the control of the Company.
ILLIQUIDITY OF REAL ESTATE
Real estate investments are relatively illiquid. The ability of
the Company to vary its portfolio in response to changes in economic
and other conditions is limited. Further, although the Hotels have
been appraised, no assurances can be given that such appraised values
reflect market value. Also, no assurances can be given that the
market value of any of the Hotels will not decrease in the future.
There can be no assurance that the Company will be able to dispose of
an investment when it finds disposition advantageous or necessary or
that the sale price of any disposition will recoup or exceed the
amount of the Company's investment.
ENVIRONMENTAL MATTERS
The Company's operating costs may be affected by the obligation
to pay for the cost of complying with existing environmental laws,
ordinances and regulations, as well as the cost of future
legislation. Under various federal, state and local environmental
laws, ordinances and regulations, a current or previous owner or
operator of real property may be liable for the costs of removal or
remediation of hazardous or toxic substances on, under or in such
property. Such laws often impose liability whether or not the owner
or operator knew of, or was responsible for, the presence if such
hazardous or toxic substances. In addition, the presence of
contamination from hazardous or toxic substances, or the failure to
remediate such contaminated property properly, may adversely affect
the owner's ability to borrow using such real property as collateral.
Persons who arrange for the disposal or treatment of hazardous or
toxic substances also may be liable for the costs of removal or
remediation of such substances at the disposal or treatment facility,
whether or not such facility is or ever was owned or operated by such
person. Certain environmental laws and common-law principles could
be used to impose liability for releases of hazardous materials,
including asbestos-containing materials ("ACMs"), into the
environment, and third parties may seek recovery from owners or
operators of real properties for personal injury associated with
exposure to released ACMs or other hazardous materials.
Environmental laws also may impose restrictions on the manner in
which property may be used or transferred or in which businesses may
be operated, and these restrictions may require expenditures. In
connection with the ownership of the Hotels, the Company may be
potentially liable for any such costs. The cost of defending against
claims of liability or remediating contaminated property and the cost
of complying with environmental laws could materially adversely
affect the Company's results of operations and financial condition.
Recent Phase I environmental site assessments ("ESAs") have been
obtained on all of the Hotels to identify potential environmental
contamination and regulatory compliance concerns that are made
apparent from historical reviews of the Hotels, reviews of certain
public records, preliminary investigations of the sites and
surrounding properties, and screening for the presence of hazardous
substances, toxic substances, and storage tanks. Other than
identifying the underground storage tanks at the Daytona Hotel, which
have been replaced in a manner which the Company believes is in
compliance with applicable laws, the ESAs have not revealed any
significant environmental contamination or compliance concerns that
the Company believes would have a material adverse effect on the
Company's business, assets, results of operations or liquidity, nor
is the Company aware of any such liability or concerns.
Nevertheless, it is possible that these ESAs do not reveal all
environmental liabilities or compliance concerns or that there are
material environmental liabilities or compliance concerns of which
the Company is unaware. Although the Company believes that the
underground storage tanks at the Daytona Hotel have been properly
handled in accordance with applicable environmental laws, there can
be no assurance that there are not violations of which the Company is
unaware. See "Business - Environmental Compliance."
UNINSURED AND UNDERINSURED LOSSES
The Company's mortgage obligations require that comprehensive
insurance be maintained on each of the Hotels, including liability,
fire and extended coverage. Management believes such specified
coverage is of the type and amount customarily obtained for or by an
owner of real property assets. Mortgages for subsequently acquired
hotels may contain similar provisions. However, there are certain
types of losses, generally of a catastrophic nature, such as
earthquakes and floods, that may be uninsurable or not economically
insurable. The Company's officers use their discretion in
determining amounts, coverage limits and deductibility provisions of
insurance, with a view to maintaining appropriate insurance coverage
on the Company's investments at a reasonable cost and on suitable
terms. This may result in insurance coverage that, in the event of a
substantial loss, would not be sufficient to pay the full current
market value or currently replacement cost of the Company's lost
investment. Inflation, changes in building codes and ordinances,
environmental considerations, and other factors also might make it
infeasible to use insurance proceeds to replace the property after
such property has been damaged or destroyed. Under such
circumstances, the insurance proceeds received by the Company might
not be adequate to restore its economic position with respect to such
property.
COMPLIANCE WITH AMERICANS WITH DISABILITIES ACT AND OTHER
CHANGES IN GOVERNMENTAL RULES AND REGULATIONS
Under the Americans with Disabilities Act of 1990 (the "ADA"),
all public accommodations are required to meet certain federal
requirements related to access and use by disabled persons. While
the Company believes that the Hotels are substantially in compliance
with these requirements, a determination that the Company is not in
compliance with the ADA could result in imposition of fines or an
award of damages to private litigants. In addition, changes in
governmental rules and regulations or enforcement policies affecting
the use and operation of the Hotels, including changes to building
codes and fire and life safety codes, may occur. If the Company were
required to make substantial modifications at the Hotels to comply
with the ADA or other changes in governmental rules and regulations,
the Company's ability to make expected distributions to its
shareholders could be adversely affected.
FLUCTUATIONS IN PROPERTY TAXES
Each Hotel is subject to real and personal property taxes. The
real and personal property taxes on hotel properties in which the
Company invests may increase or decrease as tax rates change and as
the properties are assessed or reassessed by taxing authorities. If
property taxes increase, the Company's ability to make expected
distributions to its shareholders could be adversely affected.
HOTEL INDUSTRY RISKS
OPERATING RISKS
The hotel properties ("Hotels") owned by the Company or pledged
to it as security for Unpledged Mortgage Notes or Mortgage Portfolio
Notes included in the CMO or the Trilon Portfolio are generally
located in areas that contain numerous lodging facilities.
Competition among such facilities is generally intense. Additional
construction of lodging facilities in the market areas where the
hotel properties are located, without an accompanying increase in
demand for such facilities, would likely result in an excess supply
of available rooms and a decrease in occupancy and/or room rates. In
addition, the hotel properties may be subject to risks of geographic
concentration, because many of them are located in the southeastern
United States. This concentration could subject such properties to
prevailing economic conditions in this geographic regions in which
the properties are located. Business failures and layoffs by
companies experiencing losses have led to increased unemployment and
consumer uncertainty. As a result, fewer people from the northeast
may be inclined to travel either within the region or to the
southeast, traditionally one of the nation's preferred vacation
areas. These factors could result in lower operating revenues for
southeastern hotel properties.
The Hotels are subject to all operating risks common to the
hotel industry. These risks include, among other things, competition
from other hotels; over-building in the hotel industry, which
adversely affects occupancy and revenues; increases in operating
costs due to inflation and other factors, which increases have not
been, and may not be, offset by increased room rates; dependence on
business and commercial travelers and tourism; increases in energy
costs and other expenses affecting travel; and adverse effects of
general and local economic conditions. These factors could adversely
affect the Company's results of operations and therefore the
Company's ability to make expected distributions to shareholders.
COMPETITION
COMPETITION FOR GUESTS; OPERATIONS. The hotel industry is
highly competitive. The Hotels compete with other hotel properties
in the geographic markets. Many of the Company's competitors have
substantially greater marketing and financial resources than the
Company. See "Business - Competition."
COMPETITION FOR ACQUISITIONS. The Company competes for
investment opportunities with entities which have substantially
greater financial resources than the Company. These entities
generally may be able to accept more risk than the Company can manage
prudently. Competition generally may reduce the number of suitable
investment opportunities offered to the Company and may increase the
bargaining power of property owners seeking to sell. Further, the
Company believes that competition from entities organized for
purposes substantially similar to the Company's objectives has
increased and will increase significantly in the future.
OPERATIONAL RISKS OF RAPID GROWTH
Since the Chapter 11 Proceedings, the Company has acquired seven
additional hotels. See "Business Development." The size and
geographic dispersion of the Company's hotel properties have
increased substantially, resulting in the Company's need for
additional management, sales and accounting personnel. However,
there can be no assurance that the Company will be able to retain the
services of existing employees of the Hotels or hire additional
accounting and marketing personnel. To the extent the Company is
unable to retain or hire experience personnel to operate the Hotels,
the operations of the Hotels could be adversely affected. The
Company's growth strategy also contemplates acquisitions of
additional hotels that meet the Company's investment criteria,
further increasing the size and geographic dispersion of its hotel
properties. Failure of the company to hire sufficient personnel for
such expanded operations could have a material adverse effect on the
Company's operating results. Deteriorating operations could
negatively impact revenues at the Hotels and, therefore, the cash
available for distribution to stockholders. Further, deteriorating
operations could negatively impact the Company's operating results.
INVESTMENT CONCENTRATION IN CERTAIN SEGMENTS OF SINGLE INDUSTRY
The Company's investment strategy is to acquire interests in
mid-priced hotel properties. Therefore, a downturn in the hotel
industry, in general, and the mid-priced segment, in particular, will
have a material adverse effect on the Company's lease revenues and
amounts available for distribution to its stockholders.
SEASONALITY OF HOTEL INDUSTRY
The hotel industry is seasonal in nature. Generally, hotel
revenues are greater in the second and third quarters than in the
first and fourth quarters. This seasonality can be expected to cause
quarterly fluctuations in the Company's revenues. Quarterly earnings
may be adversely affected by factors beyond the Company's control,
including poor weather conditions and economic factors. The Company
may be required to enter into short-term borrowing in the first and
fourth quarters in order to offset such fluctuations in revenues and
to fund the Company's anticipated obligations, including
distributions to its shareholders.
EMPHASIS ON COUNTRY HEARTH INN HOTELS
Of the seven Hotels, five are operated as Country Hearth Inn
hotels. Significant adverse changes in the operations of any Hotel
could have a material adverse effect on revenues and the Company's
ability to make expected distributions to its shareholders. In
addition, because all of the Franchise Hotels are operated as Country
Hearth Inn hotels and because the Company intends to place an
emphasis on Country Hearth Inn hotels in its growth strategy, the
Company is subject to risks inherent in concentrating investments in
a single franchise brand, such as a reduction in business following
adverse publicity related to the brand, which could have an adverse
effect on the Company's revenues and amounts available for
distribution to shareholders
CAPITAL EXPENDITURES
The Company's hotel properties have an ongoing need for
renovations and other capital improvements, including periodic
replacement of furniture, fixtures and equipment. The cost of such
capital improvements could have an adverse effect on the Company's
financial condition. In addition, the Company's hotel properties may
require significant renovation in the future. Such renovations
involve certain risks, including the possibility of environmental
problems, construction cost overruns and delays, the possibility that
the Company will not have available cash to fund renovations or that
financing for renovations will not be available on favorable terms,
uncertainties as to market demand or deterioration in market demand
after commencement of renovation and the emergence of unanticipated
competition from hotels. During 1996, the Company spent
approximately $200,000 for capital improvements to the Hotels. The
Company generally spends approximately 3% to 5% of gross revenues per
year on capital improvements for each Hotel. The Company intends to
fund such improvements out of future cash from operations, present
cash balances or the Company's available borrowing capacity.
CONSTRAINTS ON ACQUISITIONS
The Company intends to continue to pursue a growth strategy
which includes acquiring hotel properties. There is a risk that the
Company will not have access to sufficient equity capital to pursue
its acquisition strategy. After the Offering, the Company will have
approximately $18.6 million of debt outstanding and, without
additional equity financing, the maximum amount the Company can
borrow under its debt limitations is approximately $15 million,
assuming that all additional borrowings are invested in hotel
properties. The Company's ability to continue making acquisitions
will depend primarily on its ability to obtain additional private or
public debt or equity financing. There is no assurance that such
financing will be available.
COMMON STOCK PRICE FLUCTUATIONS AND TRADING VOLUME
A number of factors may adversely influence the price of the
Company's Common Stock in public markets, many of which are beyond
the control of the Company. In particular, an increase in market
interest rates will result in higher yields on other financial
instruments and may lead purchasers of shares of Common Stock to
demand a higher annual distribution rate on the price paid for shares
from distributions by the Company, which could adversely affect the
market price of the shares of Common Stock. Although the Company's
Common stock is listed on The Nasdaq Stock Market, the daily trading
volume of hospitality stocks in general and the Company's shares in
particular may be lower than the trading volume of certain other
industries. As a result, investors in the Company who desire to
liquidate substantial holdings at a single point in time may find
that they are unable to dispose of such shares in the market without
causing a substantial decline in the market value of such shares.
The Common Stock was issued pursuant to the Plan to the Debtor's
creditors, some of whom may prefer to liquidate their investment
rather than to hold it on a long-term basis. Accordingly, the market
for Common Stock may be volatile.
DIVIDEND POLICY
Since its formation, the Company has not paid any dividends on
its Common Stock and does not intend to pay dividends in the
foreseeable future. The Trilon Note contains covenants that prohibit
the payment of dividends to the Company by Buckhead EB, and require
that cash revenues generated by the Trilon Collateral be applied to
payment of the Trilon Note. Moreover, there can be no assurance that
the Company can generate sufficient funds to pay dividends even
absent such restrictions.
RISKS ASSOCIATED WITH CMO
The Company, as successor-in-interest to the Debtors, owns the
residual interest (the "Class D Interest") in the CMO, which ranks
junior in payment priority to three tranches of bonds (the "Senior
Classes") issued by the CMO. As of June 1, 1996, the Class D
Interest had a negligible book value, if any. The CMO is currently
in default and is being operated for the benefit of the Senior
Classes.
The Amended and Restated Agreement and Declaration of Trust for
the CMO (the "Declaration of Trust") provides that the Company, as
holder of the Class D Interest in the CMO, will not be liable for
payment of principal and interest on the Senior Classes, but will be
severally liable, under certain circumstances, for the annual fees
and expenses of the trustee under the Declaration of Trust (the "CMO
Trustee"), other administrative expenses, certain indemnification
obligations and taxes imposed on the CMO. In addition, the Class D
Interest has been pledged to the CMO Trustee to secure payment of
principal and interest on the Senior Classes, and all decisions
regarding the use, disposition and management of the trust assets
(the "CMO Portfolio") are effectively controlled by the CMO Trustee
acting for the benefit of the Senior Classes.
CREDIT RISK; ADEQUACY OF ALLOWANCE FOR LOAN LOSSES
A significant portion of the Company's assets are invested in
notes receivable. There are certain risks inherent in holding such
notes as investments, including risks with respect to the period of
time over which notes may be repaid, risks resulting from changes in
economic and industry conditions, risks inherent in dealing with
individual borrowers and, in the case of a collateralized note, risks
resulting from uncertainties as to the future value of the
collateral. Management maintains an allowance for loan losses based
on, among other things, historical experience, an evaluation of
economic conditions, and regular reviews of delinquencies and loan
portfolio quality. Based upon such factors, management makes various
assumptions and judgements about the ultimate collectibility of the
loan portfolio and provides an allowance for potential loan losses
based upon a percentage of the outstanding balances and for specific
notes when their ultimate collectibility is considered questionable.
Although management believes that its allowance for loan losses is
adequate, there can be no assurance that the allowance will prove
sufficient to cover future losses. Further, future adjustments may
be necessary if economic conditions differ or adverse developments
arise with respect to the Company's nonperforming or performing
notes. Material additions to the Company's allowance for loan losses
would result in a material decrease in the Company's net income and,
possibly, its capital, and could result in its inability to pay
dividends, among other adverse consequences.
SELLING STOCKHOLDER
All of the securities offered hereby are to be offered for the
account of the security holders (the "Selling Stockholder") set forth
on the table below:
Shares Owned Percentage of Class
Selling Prior to Prior to Shares Offered
Stockholder Offering(1) Offering For Sale(2)
ALH Properties No.
One, Inc. 41, 558 2.4% 41,558
(1) Percentage is the percentage of outstanding shares of each class
of Common Stock beneficially owned as of June 3, 1996, the effective
date of this Prospectus. As of such date, 1,761,127 shares of Common
Stock were outstanding.
(2) Upon completion of this offering, if all offered securities are
sold, the Selling Stockholder will not own any shares of Buckhead
Common Stock.
USE OF PROCEEDS
Buckhead will not receive any proceeds from the offering of
Stock by the Selling Stockholder.
PLAN OF DISTRIBUTION
Buckhead has been advised by the Selling Stockholder that the
Selling Stockholder may sell all or a portion of the securities
offered by it hereby from time to time on the Nasdaq Stock Market at
prices prevailing at the time of such sales. The Selling Stockholder
may also make private sales directly or to or through a broker or
brokers. Alternatively, the Selling Stockholder may from time to
time offer the securities through underwriters, dealers or agents,
who may receive compensation in the form of underwriting discounts,
commissions or concessions from the Selling Stockholder and/or the
purchasers of the securities for whom they may act as agent. To the
extent required, the number of securities to be sold, the purchase
price, the name of any such agent, dealer or underwriter and any
applicable commissions with respect to a particular offer will be set
forth in an accompanying Prospectus Supplement. The aggregate net
proceeds to the Selling Stockholder from the sale of the securities
sold by the Selling Stockholder hereby will be the purchase price of
such securities less any broker's commissions.
No determination has been made whether the Selling Stockholder
will sell any of the securities offered hereby.
In order to comply with the securities laws of certain states,
if applicable, the securities will be sold in such jurisdictions only
through registered or licensed brokers or dealers. In addition,
certain states the securities may not be sold unless they have been
registered or qualified for sale in the applicable state or an
exemption from the registration or qualification requirement is
available and is complied with.
The Selling Stockholder and any broker-dealers, agents or
underwriters that participate with the Selling Stockholder in the
distribution of the securities may be deemed to be "underwriters"
within the meaning of the Securities Act, in which event any
commissions received by such broker-dealers, agents or underwriters
and any profit on the resale of the securities purchased by them may
be deemed to be underwriting commissions or discounts under the
Securities Act.
LEGAL MATTERS
The validity of the Common Stock has been passed upon for
Buckhead by Arnall Golden & Gregory, Atlanta, GA.
EXPERTS
The consolidated financial statements of Buckhead America
Corporation as of December 31, 1995 and 1994, and for each of the
years in the two-year period ended December 31, 1995, have been
incorporated by reference herein and in the registration statement in
reliance upon the report of KPMG Peat Marwick LLP, independent
certified public accountants, incorporated by reference herein, and
upon the authority of said firm as experts in accounting and
auditing.
MATERIAL CHANGES
During the first quarter of 1996 the Company completed the
acquisition of an 80-room hotel in Atlanta for approximately $3
million. The acquisition was funded by $600,000 cash, issuance of a
$230,000 interest free short-term note, and a seller provided $2.1
million (9.5%) first mortgage. The Company intends to spend
approximately $500,000 in renovations and refurbishments in
converting the Atlanta hotel to join the Country Hearth Inn chain,
the Company's principal product.
In April 1996, the Company entered into an three-year employment
contract with Gregory Plank pursuant to which Mr. Plank will serve as
President and Chief Operating Officer of the Company at an annual
base salary of $135,000 plus bonuses, including a bonus of $1,500 for
each new franchised Country Hearth Inn and an additional bonus of up
to 40% of base salary. The employment agreement provides for a
termination payment equal to the greater of the base salary Mr. Plank
would have received through the end of the three year term or one-
half of the termination year base salary, in the event that the
Company terminates his employment within twelve months after a change
in control of the Company.
Prior to his employment with the Company, Mr. Plank was the
Executive Vice President - Franchise for Travelodge and Thriftlodge.
During his tenure there, he reorganized the Franchise System and
oversaw the completion of 288 franchise deals. He was previously
Vice President of Marketing for Ramada under the ownership of HFS
Incorporated. Mr. Plank has also held marketing, development and
operations positions for Sheraton and Hawthorn Suites, as well as
independent ownership, development, and advertising companies. Mr.
Plank is a graduate of Cornell School of Hotel Administration and is
currently the Chairman of The Economy Lodging Council of the American
Hotel and Motel Association.
INDEMNIFICATION
Article Sixth of the Company's Certificate of Incorporation and
Article VIII, Section 3 of the Company's By-laws provide for
indemnification of directors and officers from any liability that
such person reasonably incurs with respect to any threatened, pending
or completed action, suit or proceeding (whether civil, criminal,
administrative, or investigative) by reason of his position as
director or officer of the Company, if such person acted in good
faith and in a manner he reasonably believed to be in, or not opposed
to, the best interests of the Company. With respect to a criminal
action or proceeding, however, such person must also have had
reasonable cause to believe that his action was lawful. If such
person is found liable to the Company in an action or proceeding by
or in the right of the Company itself, such person may be indemnified
only if the court specifically approves such indemnification. The
Company has obtained directors' and officers' liability insurance
that would cover up to $15 million in indemnification claims.
Insofar as indemnification for liabilities under the Act may be
permitted to directors, officers and controlling persons of the
Company pursuant to the foregoing provisions, or otherwise, the
Company has been advised that in the opinion of the Commission such
indemnification is against public policy as expressed in the Act and
is, therefore, unenforceable.
PART II
INFORMATION NOT REQUIRED IN PROSPECTUS
ITEM 14. OTHER EXPENSES OF ISSUANCE AND DISTRIBUTION.
The following expenses, other than the Securities and Exchange
Commission registration fee, are estimated. All expenses of the
offering will be paid by Buckhead.
Securities and Exchange Commission registration fee $104
Blue Sky fees and expenses 400
The Nasdaq Stock Market listing fee 817
Printing and engraving expenses 400
Legal fees and expenses (other than Blue Sky
fees and expenses) 6,100
Accounting fees and expenses 2,000
Miscellaneous 179
___________
Total $10,000
ITEM 15. INDEMNIFICATION OF DIRECTORS AND OFFICERS.
Section 145 of the Delaware General Corporation Law ("DGCL")
empowers a Delaware corporation to indemnify any person who was or
is, or is threatened to be made, a party to any threatened pending or
completed action, suit or proceeding, whether civil, criminal,
administrative or investigative (other than an action by or in the
right of such corporation) by reason of the fact that such person is
or was a director, officer, employee or agent of such corporation, or
is or was serving at the request of such corporation as a director,
officer, employee or agent of another corporation, partnership, joint
venture, trust or other enterprise. The indemnity may include
expenses (including attorneys' fees), judgments, fines and amounts
paid in settlement actually and reasonably incurred by such person in
connection with such action, suit or proceeding, provided that such
person acted in good faith and in a manner such person reasonably
believed to be in or not opposed to the best interests of the
corporation, and, with respect to any criminal action or proceeding,
such person had no reasonable cause to believe his conduct was
unlawful. A Delaware corporation may indemnify such persons against
expenses (including attorneys' fees) in actions brought by or in the
right of the corporation to procure a judgment in its favor under the
same conditions, except that no indemnification is permitted in
respect of any claim, issue or matter as to which such person shall
have been adjudged to be liable to the corporation unless and to the
extent the Court of Chancery of the State of Delaware or the court in
which such actio nor suit was brought shall determine upon
application that, in view of all the circumstances of the case, such
person if fairly and reasonably entitled to indemnity for such
expenses as the Court of Chancery or other such court shall deem
proper. To the extent such person has been successful on the merits
or otherwise in defense of any action referred to above, or in
defense of any claim, issue or matter therein, the corporation must
indemnify such person against expenses (including attorneys' fees)
actually and reasonably incurred by such person in connection
therewith. The indemnification and advancement of expenses provided
for in, or granted pursuant to, Section 145 is not exclusive of any
other rights to which those seeking indemnification or advancement of
expenses may be entitled under any by-law, agreement, vote of
stockholders or disinterested directors or otherwise. Section 145
also provides that a corporation may maintain insurance against
liabilities for which indemnification is not expressly provided by
the statute.
Article VI of Buckhead's Restated Certificate of Incorporation
provides for indemnification of the directors, officers, employees
and agents of Buckhead to the full extent currently permitted by the
DGCL.
In addition, Buckhead's Restated Certificate of Incorporation,
as permitted by Section 102(b) of the DGCL, limits directors'
liability to Buckhead and its stockholders by eliminating liability
in damages for breach of fiduciary duty. Article VII of Buckhead's
Restated Certificate of Incorporation provides that neither Buckhead
nor its stockholders may recover damages from its directors for
breach of their fiduciary duties in the performance of their duties
as directors of Buckhead. As limited by Section 102(b), this
provision cannot, however, have the effect of indemnifying any
director of Buckhead in the case of liability (i) for a breach of the
director's duty of loyalty, (ii) for acts or omissions not in good
faith or which involve intentional misconduct or a knowing violation
of law, (iii) for unlawful payments of dividends or unlawful stock
repurchases or redemptions as provided in Section 174 of the DGCL, or
(iv) for any transactions for which the director derived an improper
personal benefit.
ITEM 16. EXHIBITS.
Exhibit No. Exhibit
2(a)* Closing Agreement dated May 15, 1995 between Heritage
Inn Associates, Ltd. and BLM EB, Inc.
2(b)** Agreement for Purchase and Sale of Hotel between Buckhead
and ALH Properties No. One, Inc.
2(c)** Agreement for Purchase and Sale of Hotel between Buckhead
and ALH Properties No. Two, Inc.
3(i) Articles of Incorporation (incorporated herein by
reference to Exhibit 2.1 filed with Registrant's Registration
Statement on Form 10-SB (No. 0-22132) which became effective
on November 17, 1993)
3(i)(a) Restated Certificate of Amendment of Certificate of
Incorporation of the Registrant (incorporated herein by
reference to Exhibit (3)(i)(a) filed with Registrant's Form
10-KSB for the year ended December 31, 1994)
3(ii) Bylaws of the Registrant, as amended (incorporated
herein by reference to Exhibit (3)(a) filed with Registrant's
Form 10-KSB for the year ended December 31, 1994)
4(i) Amended and Restated Credit Agreement dated as of
December 23, 1992 between Buckhead and EB Eurobrokers
International, Inc. (incorporated herein by reference
to Exhibit 6.3 filed with Registrant's Registration
Statement on Form 10-SB (No. 0-22132) which became
effective on November 17, 1993)
4(ii) Amended and Restated Pledge Agreement dated as of
December 23, 1992 made by Buckhead and EB, as pledgor,
to Eurobrokers International, Inc. (incorporated herein
by reference to Exhibit 6.5 filed with Registrant's
Registration Statement on Form 10-SB (No. 0-22132)
which became effective on November 17, 1993)
4(iii) Guaranty dated as of December 23, 1992, made by the
Company and Buckhead Prime, Inc., as guarantors, in favor
of Eurobrokers International, Inc., as lender (incorporated
herein by reference to Exhibit 6.4 filed with Registrant's
Registration Statement on Form 10-SB (No. 0-22132) which
became effective on November 17, 1993)
4(iv) Account Pledge Agreement dated as of December 23, 1992 made
by Buckhead EB, as pledgor, to Trilon, as lender (incorporated
herein by reference to Exhibit 6.6 filed with Registrant's
Registration Statement on Form 10-SB (No. 0-22132) which
became effective on November 17, 1993)
5# Opinion of Arnall Golden & Gregory regarding legality
21*** Subsidiaries of the Company
23.1# Consent of Arnall Golden & Gregory
(included as part of Exhibit 5 hereto)
23.2## Consent of KPMG Peat Marwick, LLP
99 Debtors' Third Amended Joint Plan of Reorganization
and Disclosure Statement (incorporated herein by reference
to Exhibit 12.1 filed with Registrant's Registration
Statement on Form 10-SB (No. 0-22132) which became effective
on November 17, 1993)
* Previously filed as an Exhibit with the same Exhibit Number to
the Registrant's May 15, 1995 Form 8-K and incorporated herein
by reference.
** Previously filed as an Exhibit with the same Exhibit Number to
the Registrant's December 7, 1995 Form 8-K and incorporated
herein by reference.
*** Previously filed as an Exhibit with the same Exhibit Number to
the Registrant's Annual Report on Form 10-KSB for the Year Ended
December 3, 1995.
# Previously filed.
## Included with this filing.
ITEM 17. UNDERTAKINGS.
(a) The undersigned registrant hereby undertakes:
(1) to file, during any period in which offers or sales are
being made, a post-effective amendment to this registration
statement:
(i) To include any prospectus required by Section 10(a)(3)
of the Securities Act;
(ii) To reflect in the prospectus any facts or events
arising after the effective date of the registration statement (or
the most recent post-effective amendment thereof) which, individually
or in the aggregate, represent a fundamental change in the
information set forth in the registration statement;
(iii) To include any material information with respect
to the plan of distribution not previously disclosed in the
registration statement or any material change to such information in
the registration statement;
provided, however, that paragraphs (a)(1)(i) and (a)(1)(ii) do not
apply if the registration statement is on Form S-3 or Form S-8, and
the information required to be included in a post-effective amendment
by those paragraphs is contained in periodic reports filed by the
registrant pursuant to Section 13 or Section 15(d) of the Exchange
Act that are incorporated by reference in the registration statement.
(2) That, for the purpose of determining any liability under
the Securities Act, each such post-effective amendment shall be
deemed to be a new registration statement relating to the securities
offered therein, and the offering of such securities at that time
shall be deemed to be the initial bona fide offering thereof.
(3) To remove from registration by means of a post-effective
amendment any of the securities being registered which remain unsold
at the termination of the offering.
(b) The undersigned registrant hereby undertakes that, for purposes
of determining any liability under the Securities Act, each filing of
the registrant's annual report pursuant to Section 13(a) or Section
15(d) of the Exchange Act that is incorporated by reference in the
registration statement shall be deemed to be a new registration
statement relating to the securities offered therein, and the
offering of such securities at that time shall be deemed to be the
initial bona fide offering thereof.
(c) Insofar as indemnification for liabilities arising under the
Securities Act may be permitted to directors, officers and
controlling persons of the registrants pursuant to the foregoing
provisions, or otherwise, the registrant has been advised that in the
opinion of the Securities and Exchange Commission such
indemnification is against public policy as expressed in the
Securities Act and is, therefore, unenforceable. In the event that a
claim for indemnification against such liabilities (other than the
payment by the registrant of expenses incurred or paid by a
director, officer or controlling person of the registrant in the
successful defense of any action, suit or proceeding) is asserted by
such director, officer or controlling person in connection with the
securities being registered, the registrant will, unless in the
opinion of its counsel the matter has been settled by controlling
precedent, submit to a court of appropriate jurisdiction the question
of whether such indemnification by them is against public policy as
expressed in the Securities Act and will be governed by the final
adjudication of such issue.
(d) The undersigned registrant hereby undertakes that:
(1) For purposes of determining any liability under the
Securities Act, the information omitted from the form of prospectus
filed as part of this registration statement in reliance upon Rule
430A and contained in a form of prospectus filed by the registrant
pursuant to Rule 424(b)(1) or (4) or 497(h) under the Securities Act
shall be deemed to be part of this registration statement as of the
time it was declared effective.
(2) For the purpose of determining any liability under the
Securities Act, each post-effective amendment that contains a form of
prospectus shall be deemed to be a new registration statement
relating to the securities offered therein, and the offering of such
securities at that time shall be deemed to be the initial bona fide
offering thereof.
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, the
registrant certifies that it has reasonable grounds to believe that
it meets all of the requirements for filing on Form S-3 and has duly
caused this Amendment No. 1 to the Registration Statement to be
signed on its behalf by the undersigned, thereunto duly authorized,
in the City of Atlanta, State of Georgia on June 7, 1996.
BUCKHEAD AMERICA CORPORATION
By: Douglas C. Collins
__________________________
Douglas C. Collins
President and Chief Executive Officer
Pursuant to the requirements of the Securities Act of 1933, this
Amendment No. 1 to the Registration Statement has been signed by the
following persons in the capacities and on the date indicated above.
PRINCIPAL EXECUTIVE, FINANCIAL & ACCOUNTING OFFICERS AND DIRECTORS:
Name Title Date
Robert M. Miller* Chairman June 7, 1996
_______________________ (Principal Executive Officer)
Robert M. Miller
Douglas C. Collins President, Chief Executive June 7, 1996
_______________________ Officer and Director
Douglas C. Collins (Principal Executive Officer)
Robert B. Lee* Vice President, Chief June 7, 1996
_______________________ Financial Officer and Secretary
Robert B. Lee (Principal Financial Officer
and Principal Accounting Officer)
William K. Stern* Director June 7, 1996
_______________________
William K. Stern
Leon M. Wagner* Director June 7, 1996
_______________________
Leon M. Wagner
*By: Douglas C. Collins
____________________
Douglas C. Collins
Attorney-in-Fact
EXHIBIT INDEX
Exhibit No. Exhibit
2(a)* Closing Agreement dated May 15, 1995 between Heritage
Inn Associates, Ltd. and BLM EB, Inc.
2(b)** Agreement for Purchase and Sale of Hotel between Buckhead
and ALH Properties No. One, Inc.
2(c)** Agreement for Purchase and Sale of Hotel between Buckhead
and ALH Properties No. Two, Inc.
3(i) Articles of Incorporation (incorporated herein by
reference to Exhibit 2.1 filed with Registrant's Registration
Statement on Form 10-SB (No. 0-22132) which became effective
on November 17, 1993)
3(i)(a) Restated Certificate of Amendment of Certificate of
Incorporation of the Registrant (incorporated herein by
reference to Exhibit (3)(i)(a) filed with Registrant's Form
10-KSB for the year ended December 31, 1994)
3(ii) Bylaws of the Registrant, as amended (incorporated
herein by reference to Exhibit (3)(a) filed with Registrant's
Form 10-KSB for the year ended December 31, 1994)
4(i) Amended and Restated Credit Agreement dated as of
December 23, 1992 between Buckhead and EB Eurobrokers
International, Inc. (incorporated herein by reference
to Exhibit 6.3 filed with Registrant's Registration Statement
on Form 10-SB (No. 0-22132) which became effective on
November 17, 1993)
4(ii) Amended and Restated Pledge Agreement dated as of
December 23, 1992 made by Buckhead EB, as pledgor, to
Eurobrokers International, Inc. (incorporated herein by
reference to Exhibit 6.5 filed with Registrant's Registration
Statement on Form 10-SB (No. 0-22132) which became effective
on November 17, 1993)
4(iii) Guaranty dated as of December 23, 1992, made by the
Company and Buckhead Prime, Inc., as guarantors, in favor of
Eurobrokers International, Inc., as lender (incorporated
herein by reference to Exhibit 6.4 filed with Registrant's
Registration Statement on Form 10-SB (No. 0-22132) which
became effective on November 17, 1993)
4(iv) Account Pledge Agreement dated as of December 23, 1992 made
by Buckhead EB, as pledgor, to Trilon, as lender (incorporated
herein by reference to Exhibit 6.6 filed with Registrant's
Registration Statement on Form 10-SB (No. 0-22132) which
became effective on November 17, 1993)
5# Opinion of Arnall Golden & Gregory regarding legality
21*** Subsidiaries of the Company
23.1# Consent of Arnall Golden & Gregory
(included as part of Exhibit 5 hereto)
23.2## Consent of KPMG Peat Marwick, LLP
99 Debtors' Third Amended Joint Plan of Reorganization
and Disclosure Statement (incorporated herein by reference
to Exhibit 12.1 filed with Registrant's Registration
Statement on Form 10-SB (No. 0-22132) which became effective
on November 17, 1993)
* Previously filed as an Exhibit with the same Exhibit Number to
the Registrant's May 15, 1995 Form 8-K and incorporated herein
by reference.
** Previously filed as an Exhibit with the same Exhibit Number to
the Registrant's December 7, 1995 Form 8-K and incorporated
herein by reference.
*** Previously filed as an Exhibit with the same Exhibit Number to
the Registrant's Annual Report on Form 10-KSB for the Year Ended
December 3, 1995.
# Previously filed.
## Included with this filing.
EXHIBIT 23.2
CONSENT OF INDEPENDENT CERTIFIED PUBLIC ACCOUNTANTS
We consent to the use of our report incorporated herein by
reference and to the reference to our firm under the heading
"Experts" in the prospectus.
/s/ KPMG PEAT MARWICK LLP
Atlanta, Georgia
June 7, 1996
