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8-K - FORM 8-K - ASHFORD HOSPITALITY TRUST INC | d81735e8vk.htm |
Exhibit 5.1
Hogan Lovells US LLP Harbor East 100 International Drive Suite 2000 Baltimore, MD 21202 T +1 410 659 2700 F +1 410 659 2701 www.hoganlovells.com |
April 27, 2011
Citigroup Global Markets Inc.
388 Greenwich Street
New York, New York 10013
388 Greenwich Street
New York, New York 10013
UBS Securities LLC
677 Washington Boulevard
Stamford, Connecticut 06901
677 Washington Boulevard
Stamford, Connecticut 06901
Merrill Lynch, Pierce, Fenner & Smith Incorporated
One Bryant Park
New York, New York 10036
as Representatives of the several Underwriters
One Bryant Park
New York, New York 10036
as Representatives of the several Underwriters
Re:
|
Ashford Hospitality Trust, Inc. 9.000% Series E Cumulative Preferred Stock |
Ladies and Gentlemen:
This firm has acted as Maryland counsel to Ashford Hospitality Trust, Inc., a Maryland corporation
(the Company), in connection with the issuance and sale of 350,000 shares of 9.000% Series E
Cumulative Preferred Stock (Liquidation Preference $25 per share) of the Company (the Option
Shares), pursuant to a partial exercise of the Underwriters over-allotment option granted by the
Underwriting Agreement, dated April 13, 2011 (the Agreement), by and between the Company and you,
as representatives of the several underwriters named on Schedule I thereto. This opinion letter is
furnished to you pursuant to the requirements set forth in Section 6(c) of the Agreement in
connection with the partial exercise of the Underwriters over-allotment option on the date hereof.
Capitalized terms used herein which are defined in the Agreement shall have the meanings set forth
in the Agreement, unless otherwise defined herein, including in Schedule I attached hereto.
Certain other capitalized terms used herein are defined in Schedule I attached hereto.
For purposes of the opinions, which are set forth in paragraphs (a) through (n) below (the
Opinions), and other statements made in this letter, we have examined copies of the documents
listed on Schedule 1 attached hereto (the Documents). We believe the Documents provide
an appropriate basis on which to render the opinions hereinafter expressed.
In our examination of the Agreement and the other Documents, we have assumed the genuineness of all
signatures, the legal capacity of all natural persons, the accuracy and completeness of all of the
Documents, the authenticity of all originals of the Documents and the conformity to authentic
originals of all of the Documents submitted to us as copies (including telecopies). We have also
assumed the validity and constitutionality of each relevant statute, rule, regulation and agency
action
Hogan Lovells US LLP is a limited liability partnership registered in the District of Columbia. Hogan Lovells refers to the international legal practice comprising Hogan Lovells
US LLP, Hogan Lovells International LLP, Hogan Lovells Worldwide Group (a Swiss Verein), and their affiliated businesses with offices in: Abu Dhabi Alicante Amsterdam
Baltimore Beijing Berlin Boulder Brussels Caracas Chicago Colorado Springs Denver Dubai Dusseldorf Frankfurt Hamburg Hanoi Ho Chi Minh City Hong
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Shanghai Silicon Valley Singapore Tokyo Warsaw Washington DC Associated offices: Budapest Jeddah Riyadh Zagreb
Citigroup Capital Markets, Inc. UBS Securities LLC Merrill Lynch, Pierce, Fenner & Smith Incorporated |
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covered by this opinion letter. In our role as Maryland counsel to the Company, we have assumed
that the Option Shares will not be issued in violation of the ownership limit contained in the
Charter of the Company. As to all matters of fact relevant to the Opinions and other statements
made herein, we have relied on the representations and statements of fact made in the Documents, we
have not independently established the facts so relied on, and we have not made any investigation
or inquiry other than our examination of the Documents. The Opinions are given, and other
statements are made, in the context of the foregoing.
The Opinions are based as to matters of law solely on applicable provisions of the Maryland General
Corporation Law (the MGCL), as currently in effect.
Based upon, subject to and limited by the foregoing, we are of the opinion that:
(a) The Company has been duly incorporated and is validly existing as a corporation and in
good standing under the MGCL as of the date of the certificate specified in paragraph 7 of
Schedule 1.
(b) The Company has the corporate power to own its properties and to conduct its businesses as
described in the General Disclosure Package and the Prospectus.
(c) The authorized capital stock of the Company consists of 200,000,000 shares of common stock
par value $0.01 per share and 50,000,000 shares of preferred stock par value $0.01 per share.
(d) Except for the provisions of Sections 7 and 8 of the Articles Supplementary establishing
the Corporations Series B-1 Cumulative Convertible Redeemable Preferred Stock, no provision of the
Companys charter requires the Company to repurchase or otherwise acquire any shares of the
Companys capital stock;
(e) The Board of Directors of the Company or a committee thereof has duly adopted resolutions
reserving 3,181,815 shares of the Companys common stock, par value $0.01 (the Conversion
Shares), for issuance upon conversion of the Option Shares. The Conversion Shares have been duly
authorized and, when issued in accordance with the Articles Supplementary, will be validly issued,
fully paid and non-assessable.
(f) The Company has the corporate power to execute, deliver and perform its obligations on the
date hereof under the Agreement. The Company has taken all necessary corporate action to authorize
the execution and delivery of the Agreement and the performance on the date hereof of its
obligations thereunder.
(g) The Articles Supplementary creating the Option Shares have been authorized by the Board
of Directors and, based on the certified copy thereof referred to in paragraph 6 of Schedule
1 hereto, have been accepted for record by the Maryland State Department of Assessments and
Taxation and have become effective under the MGCL.
Citigroup Capital Markets, Inc. UBS Securities LLC Merrill Lynch, Pierce, Fenner & Smith Incorporated |
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(h) The Agreement has been duly authorized, executed and delivered on behalf of the Company.
(i) The form of certificate evidencing the Option Shares complies with the requirements of
Section 2-211 of the MGCL and the Companys charter and bylaws.
(j) The Option Shares have been duly authorized, and, when issued in accordance with the
provisions of the Agreement, will be validly issued, fully paid and non-assessable.
(k) No holder of outstanding shares of common stock or preferred stock of the Company has any
statutory preemptive right under the MGCL or any similar right under the charter or bylaws of the
Company to subscribe for any of the Option Shares.
(l) The execution, delivery and performance on the date hereof by the Company of the Agreement
do not (1) violate the MGCL or the charter or bylaws of the Company, or (2) violate any Maryland
court or administrative order, judgment or decree listed on Schedule 2 hereto that names
the Company and is specifically directed to it or any of its property.
(m) No approval or consent of, or registration or filing with, any Maryland regulatory agency
is required to be obtained or made by the Company under the MGCL in connection with the execution,
delivery and performance on the date hereof by the Company of the Agreement.
(n) The Option Shares conform as to legal matters in all material respects to the description
thereof set forth in the General Disclosure Package and the Prospectus under the caption
Description of the Series E Preferred Stock; and the statements under the captions Risk
FactorsRisk Factors Related to Our Corporate StructureOur charter does not permit ownership in
excess of 9.8% of our capital stock, and attempts to acquire our capital stock in excess of the
9.8% limit without approval from our Board of Directors are void and Risk FactorsRisk Factors
Related to Our Corporate StructureBecause provisions contained in Maryland law and our charter
may have an anti-takeover effect, investors may be prevented from receiving a control premium for
their shares in the Companys Annual Report on Form 10-K for the year ended December 31, 2010, and
Description of our Capital Stock (to the extent describing Maryland law or the charter or bylaws
of the Company), Description of our Common Stock, Description of our Preferred Stock and
Material Provisions of Maryland Law and of Our Charter and Bylaws in the Prospectus and under
Item 15 of the Registration Statement, to the extent that such information constitutes legal
matters or summaries of portions of the MGCL or summaries of the Companys charter or bylaws or
legal conclusions, have been reviewed by us, and are correct in all material respects.
Nothing herein shall be construed to cause us to be considered experts within the meaning of
Section 11 of the Securities Act of 1933, as amended.
We express no opinion in this letter as to any other laws and regulations not specifically
identified above as being covered hereby (and in particular, we express no opinion as to any effect
that such other laws and regulations may have on the Opinions). We express no opinion in this
letter as to
Citigroup Capital Markets, Inc. UBS Securities LLC Merrill Lynch, Pierce, Fenner & Smith Incorporated |
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federal or state securities laws or regulations, antitrust, unfair competition, banking, or tax
laws or regulations or laws or regulations of any political subdivision below the state level.
We assume no obligation to advise you of any changes in the foregoing subsequent to the delivery of
this opinion letter. This opinion letter has been prepared solely for your use in connection with
the Closing under the Agreement on the date hereof, and should not be quoted in whole or in part or
otherwise be referred to, and should not be filed with or furnished to any governmental agency or
other person or entity, without the prior written consent of this firm. The foregoing
notwithstanding, to the extent our Opinions relate to matters of Maryland law, Andrews Kurth LLP
and DLA Piper LLP (US) may rely on our Opinions in rendering their opinions to you on the date
hereof, provided that the full text of Andrews Kurth LLPs or DLA Piper LLP (US)s opinion letter
states that our Opinions speak only as of the date hereof and that no such reliance will have any
effect on the scope, phrasing or originally intended use of our Opinions.
Very truly yours,
/s/ Hogan Lovells US LLP
Hogan Lovells US LLP
Schedule 1
1. Executed copy of the Agreement.
2. The Registration Statement on Form S-3 (No. 333-162750) (the Registration Statement) filed
with the Commission on January 21, 2010.
3. The final prospectus supplement, dated April 13, 2011 (the Prospectus Supplement), to the
final prospectus, dated January 25, 2010 (the Base Prospectus, and together with the Prospectus
Supplement, the Prospectus), as filed pursuant to Rule 424(b)(5) under the Securities Act.
4. The Companys Annual Report on Form 10-K for the year ended December 31, 2010 and the Companys
Current Reports on Form 8-K filed with the Securities and Exchange Commission from January 1, 2010
through April 15, 2011 (all as available on www.sec.gov) and the Final Term Sheet Dated April 13,
2011 attached as Exhibits III and IV to the Underwriting Agreement (as defined below) (such
documents, together with the Prospectus, the General Disclosure Package).
5. The Charter of the Company, as certified by the Maryland State Department of Assessments and
Taxation (the MSDAT) on April 11, 2011 and as certified by the Secretary of the Company on the
date hereof as being, together with the Articles Supplementary referenced in paragraph 6 below,
complete, accurate and in effect.
6. A copy of the Articles Supplementary creating the Companys Series E Preferred Stock as
certified by the MSDAT on April 15, 2011.
7. The Amended and Restated Bylaws of the Company, as certified by the Secretary of the Company on
the date hereof as being complete, accurate and in effect.
8. A certificate of good standing of the Company issued by the MSDAT dated April 11, 2011.
9. A copy of the specimen certificate for the Companys Series E Preferred Stock .
10. An executed copy of the Underwriting Agreement dated as of April 13, 2011 between the Company
and Citigroup Global Markets, Inc., UBS Securities LLC and Merrill Lynch, Pierce, Fenner & Smith
Incorporated, as representatives of the several Underwriters (the Underwriting Agreement).
11. Certain resolutions of the Board of Directors of the Company (the Board) adopted at a meeting
duly held or by unanimous written consent on March 31, 2011, and the Evidence of Pricing Action
dated April 13, 2011and as certified by the Secretary of the Company on the date hereof as being
accurate and in effect, relating, among other things, to the authorization of the Agreement and the
Option Shares.
12. A certificate, dated the date hereof, of certain officers of the Company as to the
representations and warranties of the Company set forth in the Agreement and other matters relating
to the Option Shares.
13. A certificate of the Secretary of the Company, dated the date hereof, as to the incumbency and
signatures of certain officers of the Company.
Schedule 2
None.