<PAGE>
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
SCHEDULE 13D
(Rule 13d-101)
(Amendment No. 1)
UNDER THE SECURITIES EXCHANGE ACT OF 1934
BUCKHEAD AMERICA CORPORATION
(Name of Issuer)
COMMON STOCK, PAR VALUE $.01
(Title of Class of Securities)
11835A105
(CUSIP Number)
BAY HARBOUR MANAGEMENT, L.C.
TOWER INVESTMENT GROUP, INC.
STEVEN A. VAN DYKE
777 South Harbour Island Boulevard, Suite 270
Tampa, Florida 33602
(813) 272-1992
DOUGLAS P. TEITELBAUM
885 Third Avenue
34th Floor
New York, New York 10022
(212) 371-2211
(Name, Address and Telephone Number of Person Authorized
to Receive Notices and Communications)
February 27, 1998 - October 26, 1998
(Date of Event which Requires Filing of this Statement)
If the filing person has previously filed a statement on Schedule 13G to report
the acquisition which is the subject of this Schedule 13D, and is filing this
schedule because of Rule 13d-1(b)(3) or (4), check the following box [_]
(Continued on the following pages)
(Page 1 of 9 Pages)
<PAGE>
SCHEDULE 13D
- ------------------------- ---------------------
CUSIP NO. 11835 A 105 PAGE 2 OF 9 PAGES
- ------------------------- ---------------------
- ------------------------------------------------------------------------------
1 NAME OF REPORTING PERSON Steven A. Van Dyke
I.R.S. IDENTIFICATION NO. OF ABOVE PERSON N/A
- ------------------------------------------------------------------------------
2 CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP
(a) [_]
(b) [X]
- ------------------------------------------------------------------------------
3 SEC USE ONLY
- ------------------------------------------------------------------------------
4 SOURCE OF FUNDS OO,PF
- ------------------------------------------------------------------------------
5 CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED PURSUANT
TO ITEMS 2(d) or 2(e) [_]
- ------------------------------------------------------------------------------
6 CITIZENSHIP OR PLACE OF ORGANIZATION United States
- ------------------------------------------------------------------------------
NUMBER OF 7 SOLE VOTING POWER -0-
SHARES
-----------------------------------------------------------
BENEFICIALLY 8 SHARED VOTING POWER 1,062,734
OWNED BY
-----------------------------------------------------------
EACH 9 SOLE DISPOSITIVE POWER -0-
REPORTING
-----------------------------------------------------------
PERSON 10 SHARED DISPOSITIVE POWER 1,062,734
WITH
- ------------------------------------------------------------------------------
11 AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON
1,062,734
- ------------------------------------------------------------------------------
12 CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES CERTAIN SHARES
[_]
- ------------------------------------------------------------------------------
13 PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11)
42.4%
- ------------------------------------------------------------------------------
14 TYPE OF REPORTING PERSON IN,HC
- ------------------------------------------------------------------------------
<PAGE>
SCHEDULE 13D
- ----------------------- ---------------------
CUSIP NO.11835 A 105 PAGE 3 OF 9 PAGES
- ----------------------- ---------------------
- ------------------------------------------------------------------------------
1 NAME OF REPORTING PERSON Douglas P. Teitelbaum
I.R.S. IDENTIFICATION NO. OF ABOVE PERSON N/A
- ------------------------------------------------------------------------------
2 CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP
(a) [_]
(b) [x]
- ------------------------------------------------------------------------------
3 SEC USE ONLY
- ------------------------------------------------------------------------------
4 SOURCE OF FUNDS OO
- ------------------------------------------------------------------------------
5 CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED PURSUANT
TO ITEMS 2(d) or 2(e) [_]
- ------------------------------------------------------------------------------
6 CITIZENSHIP OR PLACE OF ORGANIZATION United States
- ------------------------------------------------------------------------------
NUMBER OF 7 SOLE VOTING POWER -0-
SHARES
-----------------------------------------------------------
BENEFICIALLY 8 SHARED VOTING POWER 1,054,703
OWNED BY
-----------------------------------------------------------
EACH 9 SOLE DISPOSITIVE POWER -0-
REPORTING
-----------------------------------------------------------
PERSON 10 SHARED DISPOSITIVE POWER 1,054,703
WITH
- ------------------------------------------------------------------------------
11 AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON
1,054,703
- ------------------------------------------------------------------------------
12 CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES CERTAIN SHARES
[_]
- ------------------------------------------------------------------------------
13 PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11)
42.1%
- ------------------------------------------------------------------------------
14 TYPE OF REPORTING PERSON IN,HC
- ------------------------------------------------------------------------------
<PAGE>
SCHEDULE 13D
- ------------------------ ---------------------
CUSIP NO. 11835 A 105 PAGE 4 OF 9 PAGES
- ------------------------ ---------------------
- ------------------------------------------------------------------------------
1 NAME OF REPORTING PERSON Tower Investment Group, Inc.
I.R.S. IDENTIFICATION NO. OF ABOVE PERSON 59-2924229
- ------------------------------------------------------------------------------
2 CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP
(a) [_]
(b) [X]
- ------------------------------------------------------------------------------
3 SEC USE ONLY
- ------------------------------------------------------------------------------
4 SOURCE OF FUNDS OO
- ------------------------------------------------------------------------------
5 CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED PURSUANT
TO ITEMS 2(d) or 2(e) [_]
- ------------------------------------------------------------------------------
6 CITIZENSHIP OR PLACE OF ORGANIZATION
Florida
- ------------------------------------------------------------------------------
NUMBER OF 7 SOLE VOTING POWER 1,054,703
SHARES
-----------------------------------------------------------
BENEFICIALLY 8 SHARED VOTING POWER -0-
OWNED BY
-----------------------------------------------------------
EACH 9 SOLE DISPOSITIVE POWER 1,054,703
REPORTING
-----------------------------------------------------------
PERSON 10 SHARED DISPOSITIVE POWER -0-
WITH
- ------------------------------------------------------------------------------
11 AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON
1,054,703
- ------------------------------------------------------------------------------
12 CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES CERTAIN SHARES [_]
- ------------------------------------------------------------------------------
13 PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11) 42.1%
- ------------------------------------------------------------------------------
14 TYPE OF REPORTING PERSON
HC
- ------------------------------------------------------------------------------
<PAGE>
SCHEDULE 13D
- ----------------------- ---------------------
CUSIP NO. 11835 A 105 PAGE 5 OF 9 PAGES
- ----------------------- ---------------------
- ------------------------------------------------------------------------------
1 NAME OF REPORTING PERSON Bay Harbour Management, L.C.
I.R.S. IDENTIFICATION NO. OF ABOVE PERSON 59-3418243
- ------------------------------------------------------------------------------
2 CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP
(a) [_]
(b) [X]
- ------------------------------------------------------------------------------
3 SEC USE ONLY
- ------------------------------------------------------------------------------
4 SOURCE OF FUNDS OO
- ------------------------------------------------------------------------------
5 CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED PURSUANT
TO ITEMS 2(d) or 2(e) [_]
- ------------------------------------------------------------------------------
6 CITIZENSHIP OR PLACE OF ORGANIZATION Florida
- ------------------------------------------------------------------------------
NUMBER OF 7 SOLE VOTING POWER 1,054,703
SHARES
-----------------------------------------------------------
BENEFICIALLY 8 SHARED VOTING POWER -0-
OWNED BY
-----------------------------------------------------------
EACH 9 SOLE DISPOSITIVE POWER 1,054,703
REPORTING
-----------------------------------------------------------
PERSON 10 SHARED DISPOSITIVE POWER -0-
WITH
- ------------------------------------------------------------------------------
11 AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON
1,054,703
- ------------------------------------------------------------------------------
12 CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES CERTAIN SHARES
[_]
- ------------------------------------------------------------------------------
13 PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11) 42.1%
- ------------------------------------------------------------------------------
14 TYPE OF REPORTING PERSON IA
- ------------------------------------------------------------------------------
<PAGE>
- ------------------------- ----------------------
CUSIP No. 11835 A 105 13D Page 6 of 9 Pages
- ------------------------- ----------------------
This Amendment No. 1 amends and supplements the Statement on Schedule
13D, originally filed with the U.S. Securities and Exchange Commission (the
"SEC") on December 30, 1997 (the "Schedule 13D"), by Bay Harbour Management,
L.C. ("Bay Harbour"), Tower Investment Group, Inc. ("Tower"), as the majority
stockholder of Bay Harbour, and Steven A. Van Dyke ("Van Dyke"), in his capacity
as the sole stockholder and President of Tower. Since the filing of the Schedule
13D, Douglas P. Teitelbaum ("Teitelbaum") has become a stockholder of Tower (Bay
Harbour, Tower, Van Dyke and Teitelbaum are collectively, the "Reporting
Persons"). Capitalized terms contained herein but not otherwise defined have the
meanings ascribed to them in the Schedule 13D.
Item 2. Identity and Background.
Item 2 is hereby amended in its entirety to read as follows:
Bay Harbour is a Florida limited company and a registered investment
advisor under the Investment Advisors Act of 1940, as amended. Tower, a Florida
corporation, is the majority stockholder of Bay Harbour. Van Dyke, a resident of
Florida, is president and a stockholder of Tower and Mr. Teitelbaum is a
stockholder of Tower. The executive officers and directors of Bay Harbour and
Tower are as follows:
<TABLE>
<CAPTION>
Name Address Occupation Place of Employment
---- ------- ---------- -------------------
<S> <C> <C> <C>
Steven A. Van Dyke 777 South Harbour Island investment Bay Harbour
Boulevard, Suite 270 management Management, L.C.
Tampa, Florida 33602
Douglas P. Teitelbaum 885 Third Avenue, 34th Floor investment Bay Harbour
New York, New York 10022 management Management, L.C.
</TABLE>
The principal business address of Bay Harbour, Tower and Van Dyke
is 777 South Harbour Island Boulevard, Suite 270, Tampa, Florida 33602.
Teitelbaum's principal business address is 885 Third Avenue, 34th Floor, New
York, New York 10022.
Item 3. Source and Amount of Funds or Other Consideration.
Item 3 is hereby amended in its entirety to read as follows:
On December 22, 1997, Buckhead issued to certain managed accounts of
Bay Harbour its Five-Year Convertible Debentures (the "Debentures"), in the
aggregate principal amount of $5,000,000. The Debentures are convertible into
shares of Buckhead Common Stock at a conversion price of $9.00 per share
(subject to certain adjustments as set forth in the Debentures). The source of
the funds used by Bay Harbour to purchase the Debentures were investment
accounts managed on a discretionary basis by Bay Harbour.
From December 15, 1994 through October 26, 1998, Bay Harbour
purchased in secondary trades on the open market for certain of its managed
accounts, 453,531 shares of Buckhead Common Stock (the "Open Market Shares"),
for an aggregate purchase price of $2,550,187.92. The source of the funds used
by Bay Harbour to purchase the Open Market Shares were the investment accounts
managed on a discretionary basis by Bay Harbour. During this same time period,
Van Dyke purchased 8,031 shares of Buckhead Common Stock in secondary trades on
the open market for an aggregate amount of $50,201.38 using his and his wife's
personal funds.
<PAGE>
- ------------------------- ----------------------
CUSIP No. 11835 A 105 13D Page 7 of 9 Pages
- ------------------------- ----------------------
On August 13, 1998, Bay Harbour, for certain of its managed accounts,
purchased in secondary trade in a privately negotiated transaction with Host
Funding Corporation, 53,647 shares of Buckhead Common Stock (the "Host Funding
Shares"), for an aggregate purchase price of $319,199.65. The source of the
funds used by Bay Harbour to purchase the Host Funding Shares were investment
accounts managed on a discretionary basis by Bay Harbour.
Item 5. Interest in Securities of the Issuer.
Item 5 is hereby amended in its entirety to read as follows:
As of November 5, 1998, (i) Van Dyke beneficially owns 1,062,734
shares of Buckhead Common Stock which, assuming the conversion of the
Debentures, represent approximately 42.4% of Buckhead Common Stock outstanding,
(ii) Mr. Teitelbaum beneficially owns 1,054,073 shares of Buckhead Common Stock
which, assuming the conversion of the Debentures, represent approximately 42.1%
of Buckhead Common Stock outstanding, (iii) Tower beneficially owns 1,054,073
shares of Buckhead Common Stock which, assuming the conversion of the
Debentures, represent approximately 42.1% of Buckhead Common Stock outstanding
and (iv) Bay Harbour beneficially owns 1,054,073 shares of Buckhead Common Stock
which, assuming the conversion of the Debentures, represent approximately 42.1%
of Buckhead Common Stock outstanding based upon 1,951,427 shares of Buckhead
Common Stock outstanding as of July 31, 1998 as set forth in a 10-QSB filed on
August 14, 1998 with the SEC. For purposes of disclosing the number of shares
beneficially owned by each of the Reporting Persons, (A) Van Dyke is deemed to
beneficially own all shares of Buckhead Common Stock that are beneficially owned
by Tower and Bay Harbour and (B) Tower is deemed to beneficially own all shares
of Buckhead Common Stock that are beneficially owned by Bay Harbour. In
addition, Van Dyke, together with his wife, Ann Van Dyke, has the sole power to
vote and direct the vote of 8,031 shares of Buckhead Common Stock held in a
joint personal account.
Except for the Open Market Shares, to the best knowledge and belief
of the undersigned, no transactions involving Buckhead Common Stock have been
effected during the past 60 days by the Reporting Persons or by their directors,
executive officers or controlling persons.
Both the Debentures and 499,147 of the shares of Buckhead Common
Stock reported in this Statement are beneficially owned by Mr. Van Dyke, Mr.
Teitelbaum, Tower and Bay Harbour for the benefit of certain managed accounts
over which Mr. Van Dyke, Mr. Teitelbaum, Tower and Bay Harbour control the power
to (i) convert the Debentures into shares of Buckhead Common Stock, (ii) direct
the voting of such shares of Buckhead Common Stock and (iii) dispose of such
shares of Buckhead Common Stock. The limited partners of the investment
partnerships and the investors in the managed accounts for which Bay Harbour
acts as an investment adviser have the right to participate in the receipt of
dividends from, or proceeds from the sale of, securities held by their funds or
accounts, as the case may be. Other than Bay Harbour 90-1, Ltd., Trophy Hunter
Investments, Ltd., Bay Harbour Partners, Ltd., and John M. Templeton, through
beneficial interests in Gentleness, Limited and Templeton Religion Trust, no
such fund, single limited partner of any of such funds nor any investor in a
managed account has the right to receive or the power to direct the receipt of
dividends from, or proceeds from the sale of, shares of Buckhead Common Stock
reported in this Schedule 13D representing more than five percent of the
outstanding Buckhead Common Stock.
<PAGE>
- ------------------------- ----------------------
CUSIP No. 11835 A 105 13D Page 8 of 9 Pages
- ------------------------- ----------------------
Item 7. Material to be filed as Exhibits.
EXHIBIT I Joint Filing Agreement, dated November 10, 1998, by
--------- and among Bay Harbour, Tower and Van Dyke.(2)
EXHIBIT II Form of Amended and Restated Debenture.(1)
----------
EXHIBIT III Stock Purchase Agreement, dated as of August 13, 1998,
----------- between Host Funding Corporation and Bay Harbour.(2)
EXHIBIT IV Investment Letter Agreement, dated August 13, 1998,
---------- from Bay Harbour to Host Funding Corporation and
Buckhead. (2)
(1) Previously filed with this Schedule 13D on December 30, 1997.
(2) Filed herewith.
<PAGE>
- ------------------------- ----------------------
CUSIP No. 11835 A 105 13D Page 9 of 9 Pages
- ------------------------- ----------------------
SIGNATURE
After reasonable inquiry and to the best of its knowledge and belief,
the undersigned certifies that the information set forth in this statement is
true, complete and correct.
Dated as of: November 10, 1998
TOWER INVESTMENT GROUP, INC.
By: /s/ Steven A. Van Dyke
-------------------------------------
Name: Steven A. Van Dyke
Title: President
BAY HARBOUR MANAGEMENT, L.C.
By: /s/ Steven A. Van Dyke
-------------------------------------
Name: Steven A. Van Dyke
Title: President
/s/ Steven A. Van Dyke
-----------------------------------------
STEVEN A. VAN DYKE
/s/ Douglas P. Teitelbaum
-----------------------------------------
DOUGLAS P. TEITELBAUM
<PAGE>
13D
Exhibit Index
-------------
EXHIBIT I Joint Filing Agreement, dated November 10, 1998, by and among
- --------- Bay Harbour, Tower and Van Dyke. (2)
EXHIBIT II Form of Amended and Restated Debenture. (1)
- ----------
EXHIBIT III Stock Purchase Agreement, dated as of August 13, 1998, between
- ----------- Host Funding Corporation and Bay Harbour. (2)
EXHIBIT IV Investment Letter Agreement, dated August 13, 1998, from Bay
- ---------- Harbour to Host Funding Corporation and Buckhead. (2)
(1) Previously filed with this Schedule 13D on December 30, 1997.
(2) Filed herewith.
<PAGE>
13D
EXHIBIT I
Joint Filing Agreement
----------------------
The undersigned acknowledge and agree that the foregoing statement on
Schedule 13D is filed on behalf of each of the undersigned and that all
subsequent amendments to this statement shall be filed on behalf of each of the
undersigned without the necessity of filing additional joint filing agreements.
The undersigned acknowledge that each shall be responsible for the timely filing
of such amendments, and for the completeness and accuracy of the information
concerning it contained therein, but shall not be responsible for the
completeness and accuracy of the information concerning the others, except to
the extent that it knows or has reason to believe that such information is
inaccurate.
This Agreement may be executed in multiple counterparts and each of
such counterparts taken together shall constitute one and the same instrument.
Date: November 10, 1998 BAY HARBOUR MANAGEMENT, L.C.
By: /s/ Steven A. Van Dyke
--------------------------------------
Name: Steven A. Van Dyke
Title: President
Date: November 10, 1998 TOWER INVESTMENT GROUP, INC.
By: /s/ Steven A. Van Dyke
--------------------------------------
Name: Steven A. Van Dyke
Title: President
Date: November 10, 1998 /s/ Steven A. Van Dyke
-----------------------------------------
STEVEN A. VAN DYKE
Date: November 10, 1998 /s/ Douglas P. Teitelbaum
-----------------------------------------
DOUGLAS P. TEITELBAUM
<PAGE>
EXHIBIT III
STOCK PURCHASE AGREEMENT
------------------------
This STOCK PURCHASE AGREEMENT (this "Agreement") is entered into effective
as of August 13, 1998 (the "Effective Date") by and between HOST FUNDING, INC.,
a Maryland corporation ("Seller"), and BAY HARBOUR MANAGEMENT, L.C., f/b/o its
managed accounts, a Florida limited liability company ("Buyer").
R E C I T A L S
- - - - - - - -
A. Seller is the holder of 53,647 shares of the common stock (the
"Buckhead Stock") of Buckhead America Corporation, a Delaware corporation
("Buckhead America").
B. Buyer proposes to acquire the Buckhead Stock from Seller on the terms
and conditions set forth in this Agreement.
C. Buyer and Seller desire to set forth the representations, warranties,
agreements and conditions under which Buyer shall purchase, and the Seller shall
sell, the Buckhead Stock.
TERMS AND CONDITIONS
--------------------
In consideration of the mutual promises and covenants hereinafter set forth
and other good and valuable consideration, the receipt and sufficiency of which
are hereby acknowledged, the parties hereby agree as follows:
ARTICLE 1
---------
SALE AND TRANSFER OF BUCKHEAD STOCK; CLOSING
--------------------------------------------
1.1 Buckhead Stock. Subject to the terms and conditions of this
--------------
Agreement, at the Closing (as hereinafter defined), Seller agrees to sell,
transfer and deliver to Buyer, and Buyer agrees to purchase, the Buckhead Stock.
1.2 Purchase Price. The purchase price (the "Purchase Price") for the
--------------
Buckhead Stock shall be $319,199.65, payable in cash at the Closing.
1.3 Closing. The consummation of the purchase and sale of the Buckhead
-------
Stock provided for in this Agreement (the "Closing") shall take place on the
date hereof (the "Closing Date").
1.4 Closing Deliveries.
------------------
At the Closing:
(a) Seller shall deliver the following:
<PAGE>
(i) certificates representing the Buckhead Stock, endorsed
(with signature guaranties) to Buyer, which shall transfer to Buyer
good and indefeasible title to the Buckhead Stock, free and clear of
all liens, claims and encumbrances; and
(ii) such opinions of counsel as may be reasonably requested by
Buyer to consummate the transactions contemplated by this Agreement.
(b) Buyer shall deliver the following:
(i) the Purchase Price payable by wire transfer, pursuant to
the wiring instructions set forth in Schedule I attached hereto; and
(iii) an Investment Letter Agreement for the benefit of each of
Seller and Buckhead in the form attached to this Agreement as Exhibit
A.
ARTICLE 2
---------
REPRESENTATIONS AND WARRANTIES OF SELLER
----------------------------------------
Seller represents and warrants to Buyer as follows:
2.1 Organization and Good Standing. Seller is a corporation duly
------------------------------
organized, validly existing and in good standing under the laws of the State of
Maryland.
2.2 Ownership of Buckhead Stock. Seller is the owner of, and at the
---------------------------
Closing is transferring to Buyer, good and marketable title to the Buckhead
Stock free and clear of any and all encumbrances, liens, claims, debts, charges,
restrictions, proxies or rights of first refusal. The Buckhead Stock is validly
issued, fully paid and non-assessable with no personal liability attaching to
the ownership thereof.
2.3 Authority of Seller; Enforceability. Seller has all necessary power
-----------------------------------
and authority to enter into this Agreement, to carry out its obligations
hereunder and to consummate the transactions contemplated hereby. This
Agreement has been duly authorized, executed and delivered by Seller, and this
Agreement, assuming due authorization, execution and delivery by Buyer,
constitutes the legal, valid and binding obligation of Seller, enforceable
against Seller, in accordance with its terms.
2.4 No Conflicts; Consents. The execution, delivery and performance of
----------------------
this Agreement by Seller and the transactions contemplated hereby do not and
will not violate or conflict with the articles of incorporation, bylaws or other
organizational documents of Seller, and do not and will not, with the passage of
time, violate or conflict with (i) any applicable provision of law, statute,
rule or regulation, or any order, judgment or decree of any court, arbitrator,
or governmental agency applicable to Seller of which the Seller has knowledge,
or (ii) any material contract,
2
<PAGE>
agreement or instrument to which Seller is a party or by which it or any of its
properties or assets are bound or affected.
2.5 Clearance and Approvals. All clearances, approvals, authorizations
-----------------------
and consents, orders of, and designations by, any Governmental Entity (as
defined below), required under the laws of the United States or any regulation
to be obtained by Seller for or in connection with the sale and delivery of the
Shares, and compliance with the terms of this Agreement have been obtained and
compiled with, or will be obtained prior to Closing, and are in full force and
effect.
2.6 No Legal Actions. There is not pending, nor to Seller's knowledge is
----------------
there threatened, any suit, action or administrative, arbitration or other
proceeding which could adversely affect or materially impair the ability of
Seller to perform any of its obligations under this Agreement.
2.7 Brokers or Finders. Seller has not incurred any obligation or
------------------
liability, contingent or otherwise, for brokerage commissions, finder fees or
other like payments in connection with this Agreement and will indemnify and
hold Buyer harmless from any such payments alleged to be due through Seller.
ARTICLE 3
---------
REPRESENTATIONS AND WARRANTIES OF BUYER
---------------------------------------
Buyer hereby represents and warrants to Seller as follows:
3.1 Organization and Good Standing. Buyer is a limited liability company,
------------------------------
duly organized, validly existing and in good standing under the laws of the
State of Florida.
3.2 Authority Of Buyer; Enforceability. Buyer has all necessary power and
----------------------------------
authority to enter into this Agreement, to carry out its obligations hereunder
and to consummate the transactions contemplated hereby. This Agreement has been
duly authorized, executed and delivered by Buyer, and this Agreement, assuming
due authorization, execution and delivery by Seller, constitutes the legal,
valid and binding obligation of Buyer, enforceable against Buyer in accordance
with its terms, subject to the effect, if any, of bankruptcy, insolvency,
reorganization, moratorium and other similar laws affecting the rights of
creditors generally and the effect, if any of general principles of equity.
3.3 No Conflicts; Consents. The execution, delivery and performance of
----------------------
this Agreement by Buyer and the transactions contemplated hereby do not and will
not violate or conflict with the articles of organization, operating agreement
or other organizational documents of Buyer, and do not and will not, with the
passage of time, violate or conflict with (i) any applicable provision of law,
statute, rule or regulation, or order, judgment or decree of any court,
arbitrator, or governmental agency applicable to Buyer of which the Buyer has
knowledge, or (ii) any material contract, agreement or instrument to which Buyer
is a party or by which it or any of its properties or assets are bound or
affected.
3
<PAGE>
3.5 Clearance and Approvals. All clearances, approvals, authorizations
-----------------------
and consents, orders of, and designations by, any Governmental Entity (as
defined below), required under the laws of the United States or any regulation
to be obtained by Buyer for or in connection with the purchase of the Shares,
and compliance with the terms of this Agreement have been obtained and complied
with, or will be obtained prior to Closing, and are in full force and effect.
3.6 No Legal Actions. There is not pending, nor to Buyer's knowledge is
----------------
there threatened, any suit, action or administrative, arbitration or other
proceeding which could adversely affect or materially impair the ability of
Buyer to perform any of its obligations under this Agreement.
3.7 Brokers or Finders. Buyer has incurred no obligation or liability,
------------------
contingent or otherwise, for brokerage commissions, finder fees or other like
payments in connection with this Agreement and will indemnify and hold Seller
harmless from any such payments alleged to be due through Buyer.
ARTICLE 4
---------
CONDITIONS PRECEDENT TO THE OBLIGATIONS OF BUYER
------------------------------------------------
The obligations of Buyer to effect the transactions contemplated under this
Agreement at the Closing are subject to the fulfillment on or prior to the
Closing Date of the following conditions, any one or more of which may be waived
in whole or in part by Buyer in writing:
4.1 Representations and Warranties True at the Closing Date. Except for
-------------------------------------------------------
changes contemplated by this Agreement and the agreements and other documents to
be executed and delivered pursuant to this Agreement, the representations and
warranties of Seller contained in this Agreement shall be deemed to have been
made again at and as of the Closing Date and shall then be true and correct in
all respects. At the Closing, Seller shall deliver to Buyer a certificate,
dated the Closing Date, to the foregoing effect.
4.2 Seller's Performance. Seller shall have performed and complied with
--------------------
all covenants and agreements required by this Agreement to be performed or
complied with by Seller on or before the Closing Date.
4.3 Authority. All action required to be taken by or on the part of
---------
Seller to authorize the execution, delivery and performance of this Agreement by
Seller and the consummation of the transactions contemplated by this Agreement
shall have been duly and validly taken by Seller.
4.4 Good Title to Buckhead Stock. Seller shall have transferred the
----------------------------
Buckhead Stock to Buyer, free and clear of all liens, claims and encumbrances,
with transfer taxes, if any, paid by Seller.
4.5 Documentation and Consents. Seller shall have made all deliveries of
--------------------------
documents required pursuant to Section 1.4(a) of this Agreement.
4
<PAGE>
4.6 Consents and Approvals. Seller has obtained all consents, approvals,
----------------------
orders, authorizations of, and registrations and filings with, any Federal,
state, local or foreign government or ant court of competent jurisdiction,
administrative agency or commission or other governmental authority or
instrumentality, domestic or foreign (a "Governmental Authority"), that are
required to be obtained or made by Seller, in connection with the execution,
delivery or performance of this Agreement by Seller or the consummation by
Seller of any of the transactions contemplated hereby.
4.7 No Actions or Proceedings. No action or proceeding by or before any
-------------------------
Governmental Entity, or any other person shall be pending or to the Seller's
knowledge threatened, challenging or seeking to restrain or prohibit the
purchase and sale of any of the Buckhead Stock or any of the other transactions
contemplated by this Agreement or seeking to obtain damages from Buyer (or any
of its affiliates) in connection with the purchase and sale of the Buckhead
Stock or any of the other transactions contemplated by this Agreement.
4.8 No Orders. No statute, rule, regulation, executive order, decree, or
---------
temporary restraining order, preliminary injunction, permanent injunction or
other order of which Seller has knowledge, enacted, entered, promulgated,
enforced or issued by any Governmental Entity or other legal restraint or
prohibition preventing the purchase and sale of the Buckhead Stock shall be in
effect.
ARTICLE 5
---------
CONDITIONS PRECEDENT TO THE OBLIGATIONS OF SELLER
-------------------------------------------------
The obligations of Seller to effect the transactions contemplated under
this Agreement at the Closing are subject to the fulfillment on or prior to the
Closing Date of the following conditions, any one or more of which may be waived
in whole or in part by Seller in writing:
5.1 Representations and Warranties True at the Closing Date. Except for
-------------------------------------------------------
changes contemplated by this Agreement and the agreements and other documents to
be executed and delivered pursuant to this Agreement, the representations and
warranties of Buyer contained in this Agreement shall be deemed to have been
made again at and as of the Closing Date and shall then be true and correct in
all respects. At the Closing, Buyer shall deliver to Seller a certificate,
dated as of the Closing Date, to the foregoing effect.
5.2 Buyer's Performance. Buyer shall have performed and complied with all
-------------------
covenants and agreements required by this Agreement to be performed or complied
with by Buyer on or before the Closing Date.
5.3 Authority. All action required to be taken by or on the part of Buyer
---------
to authorize the execution, delivery and performance of this Agreement by Buyer
and the consummation of the transactions contemplated by this Agreement shall
have been duly and validly taken by Buyer.
5.4 Documentation and Consents. Buyer shall have paid the Purchase Price
--------------------------
and delivered the Investment Letter Agreement pursuant to Section 1.4(b) of this
Agreement.
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5.5 Consents and Approvals. Buyer has obtained all consents, approvals,
----------------------
orders, authorizations of, and registrations and filings with, any Governmental
Entity, that are required to be obtained or made by Buyer, in connection with
the execution, delivery or performance of this Agreement by Buyer or the
consummation by Buyer of any of the transactions contemplated hereby.
5.6 No Actions or Proceedings. No action or proceeding by or before any
-------------------------
Governmental Entity, or other person shall be pending or to the Buyer's
knowledge threatened, challenging or seeking to restrain or prohibit the
purchase and sale of any of the Buckhead Stock or any of the other transactions
contemplated by this Agreement or seeking to obtain damages from Seller (or any
of its affiliates) in connection with the purchase and sale of the Buckhead
Stock or any of the other transactions contemplated by this Agreement.
5.7 No Orders. No statute, rule, regulation, executive order, decree, or
---------
temporary restraining order, preliminary injunction, permanent injunction or
other order of which Buyer has knowledge, enacted, entered, promulgated,
enforced or issued by any Governmental Entity or other legal restraint or
prohibition preventing the purchase and sale of the Buckhead Stock shall be in
effect.
ARTICLE 6
---------
COVENANTS OF SELLER
-------------------
6.1 Notification. Seller will promptly notify Buyer in writing if it
------------
becomes aware of any fact or condition which makes untrue, or shows to have been
untrue, any representation or warranty made by Seller in this Agreement.
ARTICLE 7
---------
COVENANTS OF BUYER
------------------
7.1 Notification. Buyer will notify Seller in writing if it becomes aware
------------
of any fact or condition which makes untrue, or shows to have been untrue, any
representation or warranty made by Buyer under this Agreement.
7.2 Buckhead Stock as Restricted Securities. Buyer (i) acknowledges that
---------------------------------------
the Buckhead Stock has not been registered under the Securities Act of 1933 (the
"Securities Act"), and was acquired by Seller in a transaction not involving a
public offering, and therefore may not be resold by the Buyer without compliance
with the Securities Act, and (ii) covenants that none of the Buckhead Stock will
be offered, sold, assigned, pledged, hypothecated or otherwise disposed of
except in full compliance with all of the applicable provisions of the
Securities Act and the rules and regulations of the Securities and Exchange
Commission and applicable state securities laws and regulations.
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ARTICLE 8
---------
INDEMNIFICATION
---------------
8.1 Indemnity by Seller. Seller will protect, indemnify, hold harmless
-------------------
and defend Buyer, its affiliates, subsidiaries, members, officers, managers,
agents and assigns ("Buyer Indemnified Persons"), from and against all
liabilities, obligations, claims, damages, penalties, causes of action, costs
and expenses (including, without limitation, reasonable attorneys' fees and
expenses) imposed upon or incurred by or asserted against Buyer Indemnified
Persons by reason of any inaccuracy in any representation or warranty in any
respect, or any breach or nonfulfillment of any covenant, agreement or other
obligation of Seller under this Agreement.
8.2 Indemnity by Buyer. Buyer will protect, indemnify, hold harmless and
------------------
defend Seller and each of its affiliates, their respective subsidiaries,
shareholders, officers, directors, agents and assigns (the "Seller Indemnified
Persons") from and against all liabilities, obligations, claims, damages,
penalties, causes of action, costs and expenses (including, without limitation,
reasonable attorneys' fees and expenses) imposed upon or incurred by or asserted
against Seller Indemnified Parties by reason of any inaccuracy in any
representation or warranty in any respect, or any breach or unfulfillment of any
covenant, agreement or other obligation of Buyer under this Agreement.
ARTICLE 9
---------
MISCELLANEOUS
-------------
9.1 Expenses. Except as expressly otherwise provided herein, each party
--------
to this Agreement shall bear its respective expenses incurred in connection with
the preparation, execution and performance of this Agreement and the
transactions contemplated hereby.
9.2 Notices. All notices under this Agreement shall be in writing and
-------
delivered to the person to whom the notice is directed, either (a) by telephonic
facsimile communication, (b) by Federal Express or other guaranteed overnight
delivery service, or (c) by United States Mail, as a registered or certified
item, return receipt requested. Any notices may be delivered by the parties
hereto or by their respective attorneys. Any notice delivered by telephonic
facsimile communication or Federal Express or other guaranteed overnight
delivery service shall be deemed effective one (1) day after being transmitted
to the applicable telephone facsimile numbers set forth below, if such notice is
sent by telephonic facsimile communication, or when delivered to the address set
forth below if sent by Federal Express or other guaranteed overnight delivery
service. Notices delivered by registered or certified mail shall be deemed
effective three (3) days after being deposited in a post office or other
depository under the care or custody of the United States Postal Service,
enclosed in a wrapper with proper postage affixed, with return receipt addressed
to the party to be so notified, as follows:
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if to Seller: Host Funding, Inc.
6116 N. Central Expressway
Suite 1313
Dallas, Texas 75206
Facsimile No.: 214/750-0793
with a copy to: John G. Rebensdorf
--------------- James M. Duncan, P.C.
6116 N. Central Expressway
Suite 1313
Dallas, Texas 75206
Facsimile No.: 214/696-9388
if to Buyer: Bay Harbour Management, L.C.
777 S. Harbour Island Blvd., Suite 270
Tampa, Florida 33602
Attn: Steven A. Van Dyke
Facsimile No. (813) 272-1286
with a copy to: Warren G. Caywood
--------------- Howard, Smith & Levin LLP.
1330 Avenue of the Americas
New York, New York 10019
Facsimile No. (212) 841-1041
9.3 Further Assurances. The parties hereto agree (i) to furnish upon
------------------
request to each other such further information; (ii) to execute and deliver to
each other such other documents; and (iii) to do such other acts and things, all
as the other parties hereto may at any time reasonably request for the purpose
of carrying out the intent of this Agreement (including the reissuance of stock
certificates in the name of Buyer or its designees) and the documents referred
to herein.
9.4 Entire Agreement and Modification. This Agreement (including all
---------------------------------
exhibits hereto) contains the entire agreement between the parties with respect
to the subject matter hereof, supersedes all prior understandings, and may not
be amended, supplemented or terminated, nor shall any obligation hereunder or
condition hereof be deemed waived, except by a written instrument to such effect
signed by the party to be charged or as otherwise expressly provided in this
Agreement.
9.5 Assignment. Neither Seller nor Buyer shall have the right to assign
----------
its interest in this Agreement without the prior written consent of the other
party.
9.6 Governing Law. This Agreement shall be governed by, and construed
-------------
under, the laws of the State of New York without regard to conflicts of laws,
all rights and remedies being governed by such laws. Each of the parties hereto
irrevocably submits to the non-exclusive jurisdiction of (i) the Supreme Court
of the State of New York, New York County, and (ii) the
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<PAGE>
United States District Court for the Southern District of New York, for the
purposes of any suit, action or other proceeding arising out of this Agreement
or any transaction contemplated hereby. Each of the parties hereto further
agrees that service of any process, summons, notice or documents by United
States registered mail, return receipt requested, to such parties respective
address set forth in Section 9.2 of this Agreement, shall be effective service
of process for any action, suit, or proceeding in New York with respect to any
matters to which it has submitted to jurisdiction in this Section 9.6 Each of
the parties hereto irrevocably and unconditionally waives any objection to the
laying of venue of any action, suit or proceeding arising out of this Agreement
or the transactions contemplated hereby in (i) the Supreme Court of the State of
New York, New York County, and (ii) the United States District Court for the
Southern District of New York, and hereby further irrevocably and
unconditionally waives and agrees not to plead or claim in any such court that
any such action, suit or proceeding brought in any such court has been brought
in an inconvenient forum.
9.7 Survival. The representations, warranties, covenants and agreements,
--------
and obligations of Seller contained in this Agreement shall survive the Closing.
The representations, warranties, covenants, agreements and obligations of Buyer
shall survive the Closing.
9.8 Multiple Counterparts. This Agreement may be executed in a number of
---------------------
identical counterparts, each of which shall be deemed an original for all
purposes and all of which constitute, collectively, one agreement.
9.9 Successors and Assigns. The parties hereto acknowledge and agree that
----------------------
this Agreement shall inure to the benefit of and be binding upon the parties
hereto and their successors and assigns.
9.10 Captions. All captions and headings of paragraphs, subparagraphs and
--------
sections are not part of this Agreement and shall not be used for the
interpretation or determination of the validity of this Agreement or any
provision hereof
THIS AGREEMENT is entered into effective the day and year first above
written.
SELLER:
-------
HOST FUNDING, INC., a Maryland corporation
By: /s/ Michael S. McNulty
----------------------------------------
Michael S. McNulty, President
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BUYER:
------
BAY HARBOUR MANAGEMENT, L.C., a Florida
limited liability company
By: /s/ Steven A. Van Dyke
------------------------------------------
Steven A. Van Dyke, President
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EXHIBIT IV
INVESTMENT LETTER AGREEMENT
Host Funding, Inc.
1616 N. Central Expressway
Suite 1313
Dallas, Texas 75206
Buckhead America Corporation
4243 Dunwoody Club Drive
Suite 200
Atlanta, GA 30350
Gentlemen:
The undersigned acknowledges that pursuant to the terms of that certain
Stock Purchase Agreement dated as of August 13, 1998 (the "Purchase Agreement"),
by and between Bay Harbour Management, L.C., a Florida limited liability
company, f/b/o its managed accounts, and Host Funding, Inc., a corporation
incorporated under the laws of the State of Maryland ("Host Funding"), the
undersigned is acquiring from Host Funding 53,647 shares (the "Shares") of the
Common Stock of Buckhead America Corporation ("Buckhead").
1. Acceptance of Shares. Subject to the terms and conditions of this
--------------------
Agreement, the undersigned hereby accepts ownership of the Shares.
2. Acknowledgments, Representations and Covenants. The undersigned
----------------------------------------------
acknowledges that the undersigned is acquiring the Shares in a transaction not
involving a public offering and without being furnished any offering literature
or prospectus. The undersigned further acknowledges, represents, warrants and
covenants as follows:
(a) the undersigned is organized under the laws of the State of
Florida;
(b) the undersigned understands that the Shares have not been
registered under the Securities Act of 1933, as amended (the "Securities
Act"); the undersigned represents and warrants that the Shares are being
acquired by the undersigned solely for the undersigned's managed accounts,
for investment purposes only, and are not being received with a view to, or
in connection with, any resale or, distribution thereof;
(c) the undersigned understands that no federal or state agency has
passed on or made any recommendation or endorsement relating to the Shares
or any finding or determination as to the fairness of an investment in such
Shares;
(d) the undersigned agrees that the Shares may not be resold or
otherwise
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transferred unless such Shares are registered under the Act and any
applicable state securities laws or an exemption from such registration is
available;
(e) the undersigned (i) is a sophisticated investor, (ii) has had prior
experience with investments similar to the Shares, (iii) has knowledge and
experience in financial and business matters such that the undersigned is
capable of evaluating the merits and risks of the Shares and of making an
informed investment decision, and (iv) is able to bear the economic risk of
the undersigned's investment in the Shares;
(f) the undersigned has reviewed copies of Buckhead's most recent
Annual Report on Form 10-KSB and each subsequently filed Form 10-QSB; and
(g) the undersigned has full legal power and authority to execute and
deliver, and to perform the undersigned's obligations under, this
Investment Letter Agreement and such execution, delivery and performance
will not violate any agreement, contract, law, rule, decree or other legal
restriction by which the undersigned is bound.
The undersigned agrees that the foregoing acknowledgments, representations and
covenants shall survive the receipt by the undersigned of the Shares, as well as
any investigation made by the party relying on the same.
3. Revocation. The undersigned agrees that the undersigned may not
----------
cancel, terminate or revoke this Agreement, which shall survive the death or
disability of the undersigned and shall be binding upon the undersigned's
successors and assigns.
4. Miscellaneous.
-------------
(a) This Agreement shall be governed by and construed in accordance
with the laws of the State of New York; and
(b) This Agreement constitutes the entire agreement among the parties
hereto with respect to the subject matter hereof, and may be amended only
by a writing executed by the party to be bound thereby.
(SIGNATURE ON FOLLOWING PAGE)
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<PAGE>
IN WITNESS WHEREOF, the undersigned has executed this Investment Letter
Agreement as of this 13th day of August, 1998.
BAY HARBOUR MANAGEMENT, L.C.
By: /s/ Steven A. Van Dyke
---------------------------------
Name: Steven Van Dyke
-------------------------------
Title: President
------------------------------
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