AS FILED WITH THE SECURITIES AND EXCHANGE COMMISSION
ON JUNE 5, 1996
REGISTRATION NO. 333-____________
________________________________________________________________
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
_____________
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/
_________________
CALCULATION OF REGISTRATION FEE
TITLE OF EACH CLASS OF PROPOSED MAXIMUM AMOUNT OF
SECURITIES TO BE AGGREGATE OFFERING REGISTRATION
REGISTERED(1) PRICE FEE(1)
Common Stock, $.01 par value $301,295.50 $104.00
(1) Calculated pursuant to Rules 457(c) and 457(o) of the
Securities Act, based upon the average of the high and low
prices reported for the Common Stock on June 3, 1996.
SUBJECT TO COMPLETION, DATED JUNE 5, 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 5, 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 SHARES
PRIOR TO CLASS PRIOR TO OFFERED
SELLING 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.
# 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 registration statement to be signed
on its behalf by the undersigned, thereunto duly authorized, in
the City of Atlanta, State of Georgia on June 4, 1996.
BUCKHEAD AMERICA CORPORATION
By: Douglas C. Collins
______________________________
Douglas C. Collins
President and Chief Executive Officer
POWER OF ATTORNEY
KNOW ALL MEN BY THESE PRESENTS, that each individual whose
signature appears below constitutes and appoints Douglas C.
Collins his true and lawful attorney-in-fact and agent with full
power of substitution and resubstitution, for him and in his
name, place and stead, in any and all capacities, to sign any and
all amendments (including post-effective amendments) to this
Registration Statement, and to file the same with all exhibits
thereto, and all documents in connection therewith, with the
Securities and Exchange Commission, granting each and every act
and thing requisite and necessary to be done in and about the
premises, as fully and to all intents and purposes as he might or
could do in person, hereby ratifying and confirming all that said
attorney-in-fact and agent, or his substitutes, may lawfully do
or cause to be done by virtue hereof.
Pursuant to the requirements of the Securities Act of 1933,
this 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
_________________ (Principal Executive Officer) June 4, 1996
Robert M. Miller
Douglas C. Collins President, Chief Executive
_________________ Officer and Director (Principal
Douglas C. Collins Executive Officer) June 4, 1996
Robert B. Lee Vice President, Chief Financial
_________________ Officer and Secretary (Principal
Robert B. Lee Financial officer and Principal
Accounting Officer) June 4, 1996
William K. Stern Director June 4, 1996
_________________
William K. Stern
Leon M. Wagner Director June 4, 1996
________________
Leon M. Wagner
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.
# Included with this filing
ARNALL GOLDEN & GREGORY
1201 WEST PEACHTREE STREET
2800 ONE ATLANTIC CENTER
ATLANTA, GEORGIA 30309-3450
June 4, 1996
Buckhead America Corporation
Suite 200
4243 Dunwoody Club Drive
Dunwoody, Georgia 30350
Re: Form S-3 Registration Statement
Gentlemen:
We have acted as your counsel in connection with the
preparation of the Registration Statement on Form S-3 (the
"Registration Statement") filed by Buckhead America Corporation,
a Delaware corporation (the "Company"), with the Securities and
Exchange Commission under the Securities Act of 1933, as amended
(the "Act"). This Registration Statement relates to an offer by
a certain selling stockholder named therein of up to 41,558
shares of the Company's Common Stock, $.01 par value (the
"Shares").
In acting as counsel to you, we have examined and relied
upon such corporate records, documents, certificates and other
instruments and examined such questions of law as we have
considered necessary or appropriate for the purposes of this
opinion. Based upon and subject to the foregoing, we advise you
that in our opinion the Shares are legally issued, fully paid and
non-assessable.
We consent to the filing of this opinion as an exhibit to
the Registration Statement and the reference to this firm under
the caption "Experts" contained therein and elsewhere in the
Registration Statement. This consent is not to be construed as
an admission that we are a party whose consent is required to be
filed with the Registration Statement under the provisions of the
Act.
Sincerely,
ARNALL GOLDEN & GREGORY
ARNALL GOLDEN & GREGORY
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 4, 1996
