Attached files
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8-K - CURRENT REPORT OF MATERIAL EVENTS OR CORPORATE CHANGES - ASHFORD HOSPITALITY TRUST INC | a15-3571_18k.htm |
EX-5.1 - EX-5.1 - ASHFORD HOSPITALITY TRUST INC | a15-3571_1ex5d1.htm |
EX-1.1 - EX-1.1 - ASHFORD HOSPITALITY TRUST INC | a15-3571_1ex1d1.htm |
Exhibit 8.1
February 4, 2015
Ashford Hospitality Trust, Inc.
14185 Dallas Parkway, Suite 1100
Dallas, TX 75254
Ladies and Gentlemen:
We have acted as counsel to Ashford Hospitality Trust, Inc., a Maryland corporation (the Company), in connection with the issuance and sale of 9,500,000 shares of the Companys common stock, par value $0.01 per share, which are being sold by the Company pursuant to the Companys Registration Statement on Form S-3 ASR (file no. 333-181499) initially filed with the Securities and Exchange Commission (the SEC) on May 17, 2012, of which the prospectus supplement dated January 30, 2015 (the Prospectus Supplement), and the prospectus dated May 17, 2012 (together with the Prospectus Supplement, the Prospectus) constitute a part, to Robert W. Baird & Co. Incorporated (the Underwriter) pursuant to the Underwriting Agreement dated January 30, 2015 among the Company, Ashford Hospitality Limited Partnership, a Delaware limited partnership (the Operating Partnership), Ashford Hospitality Advisors LLC, a Delaware limited liability company, and the Underwriter. You have requested our opinion as to certain United States federal income tax matters in connection with the Registration Statement.
In connection with our opinion, we have examined and relied upon the following:
1. the Companys Articles of Amendment and Restatement filed July 28, 2003, and the Certificate of Correction to Correct an Error, in the form filed with the State Department of Assessments and Taxation of Maryland on August 7, 2003;
2. the Companys Articles Supplementary (Series A Preferred Stock), in the form filed with the State Department of Assessments and Taxation of Maryland on September 21, 2004;
3. the Companys Articles Supplementary (Series B-1 Preferred Stock), in the form filed with the State Department of Assessments and Taxation of Maryland on December 29, 2004;
4. the Companys Articles Supplementary (Series B-2 Preferred Stock), in the form filed with the State Department of Assessments and Taxation of Maryland on December 29, 2004;
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5. the Companys Articles Supplementary (Series C Preferred Stock), in the form filed with the State Department of Assessments and Taxation of Maryland on April 10, 2007;
6. the Companys Articles Supplementary (Series D Preferred Stock), in the form filed with the State Department of Assessments and Taxation of Maryland on July 17, 2007; the Companys Articles Supplementary Establishing Additional Shares of Series D Preferred Stock, in the form filed with the State Department of Assessments and Taxation of Maryland on September 21, 2010; the Companys Articles Supplementary Establishing Additional Shares of Series D Preferred Stock, in the form filed with the State Department of Assessments and Taxation of Maryland on September 30, 2011;
7. the Companys Articles Supplementary (Series E Preferred Stock), in the form filed with the State Department of Assessments and Taxation of Maryland on April 15, 2011; the Companys Articles Supplementary Establishing Additional Shares of Series E Preferred Stock, in the form filed with the State Department of Assessments and Taxation of Maryland on October 14, 2011;
8. the Companys Amended and Restated Bylaws, as amended by Amendment No. 1 and Amendment No. 2, and the Companys Second Amended and Restated Bylaws, as certified by the Secretary of the Company;
9. the Registration Statement, including the Prospectus;
10. the Certificate of Amendment to the Certificate of Limited Partnership of the Operating Partnership, effective July 25, 2003, as certified by the Secretary of State of the State of Delaware;
11. the Amended and Restated Agreement of Limited Partnership of the Operating Partnership between Ashford OP General Partner LLC, as the general partner, and Ashford OP Limited Partner LLC, and certain officers, directors and others as the limited partners (the Operating Partnership Agreement), as amended through the relevant dates;
12. the Officers Certificate to Counsel for Ashford Hospitality Trust, Inc. Regarding Certain Income Tax Matters dated the date hereof and executed by a duly appointed officer of the Company (the AHT Officers Certificate);
13. the Officers Certificate for Ashford Hospitality Prime, Inc. Regarding Certain Income Tax Matters dated the date hereof and executed by a duly appointed officer of Ashford Hospitality Prime, Inc. (the AHP Officers Certificate);
14. the form of leases entered into between any taxable REIT subsidiary of the Company and each partnership, limited liability company or trust in which the Company directly or indirectly owns an interest, in the form of which is attached to the AHT Officers Certificate; and
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15. such other documents, records and matters of law as we have deemed necessary or appropriate for rendering this opinion.
In our examination, we have assumed (i) the authenticity and completeness of all original documents reviewed by us in original or copy form, (ii) the conformity to the original documents of all documents reviewed by us as copies, including electronic copies and conformed copies, (iii) the due authorization, capacity, execution and delivery on behalf of the respective parties thereto of all documents referred to herein and the legal, valid and binding effect thereof on such parties, (iv) the genuineness of all signatures on documents examined by us, (v) the truth, accuracy and completeness of the information, factual matters, representations and warranties contained in the records, documents, instruments and certificates we have reviewed and (vi) each unexecuted document submitted to us for our review will be executed in a form materially identical to the form we reviewed. We have further assumed that each of the parties to each of the documents referred to herein fully complies with all of its obligations thereunder and that there are no arrangements, understandings or agreements among any of the parties relating to such documents other than those evidenced by such documents. In connection with the opinion rendered below, we also have relied upon the correctness of the factual representations contained in the AHT Officers Certificate and the AHP Officers Certificate and have assumed that all representations made to the best knowledge of any person will be true, correct and complete as if made without that qualification. We have also assumed that:
1. the Company has not made and will not make any amendments to its organization documents or allow amendments to the Operating Partnership Agreement or organization documents of its corporate subsidiaries or partnership, limited liability or trust agreements of its partnership, limited liability company or trust subsidiaries after the date of this opinion that would adversely affect its qualification as a real estate investment trust (a REIT) under the Internal Revenue Code of 1986, as amended (the Code), for any taxable year;
2. Ashford Hospitality Prime, Inc. has not made and will not make any amendments to its organization documents or allow amendments to the Amended and Restated Agreement of Limited Partnership of Ashford Hospitality Prime Limited Partnership between Ashford Prime OP General Partner LLC, as the general partner, and Ashford Prime OP Limited Partner LLC, and certain officers, directors and others as the limited partners, as amended through the date hereof, or organization documents of its corporate subsidiaries or partnership, limited liability or trust agreements of its partnership, limited liability company or trust subsidiaries after the date of this opinion that would adversely affect its qualification as a REIT under the Code;
3. no action has been or will be taken by the Company, the Operating Partnership, partnership, limited liability company and trust subsidiaries of the Company or corporate subsidiaries of the Company after the date hereof that would have the effect of altering the facts upon which the opinions set forth below are based; and
4. no action has been or will be taken by Ashford Hospitality Prime, Inc., Ashford Hospitality Prime Limited Partnership, partnership, limited liability company and trust subsidiaries of Ashford Hospitality Prime, Inc. or corporate subsidiaries of Ashford Hospitality
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Prime, Inc. after the date hereof that would have the effect of altering the facts upon which the opinions set forth below are based.
Based on the documents and assumptions set forth above and the representations set forth in the AHT Officers Certificate, and the discussion in the Prospectus under the caption, Federal Income Tax Consequences of Our Status as a REIT as supplemented by descriptions in the Prospectus Supplement under the captions Additional Federal Income Tax Consequences (which is incorporated herein by reference) and the AHP Officers Certificate, we are of the opinion that:
(a) for the Companys taxable years ending December 31, 2003 through 2014, the Company qualified to be taxed as a REIT pursuant to Sections 856 through 860 of the Code, and the Companys organization and present and proposed method of operation will enable it to continue to meet the requirements for qualification and taxation as a REIT under the Code;
(b) the Operating Partnership is classified as a partnership for United States federal income tax purposes and not as an association taxable as a corporation or a publicly traded partnership taxable as a corporation under the Code; and
(c) the descriptions of the law and the legal conclusions contained in the Prospectus under the caption Federal Income Tax Consequences of Our Status as a REIT as supplemented by descriptions in the Prospectus Supplement under the captions Additional Federal Income Tax Consequences are correct in all material respects, and the discussion thereunder expresses the opinion of Andrews Kurth LLP insofar as it relates to matters of United States federal income tax law and legal conclusions with respect to those matters
It is not possible to predict whether the statements, representations, warranties or assumptions on which we have relied to issue this opinion will continue to be accurate in the future. We will not review on a continuing basis the Companys compliance with the documents or assumptions set forth above, or the representations set forth in the AHT Officers Certificate and the AHP Officers Certificate. Accordingly, no assurance can be given that the actual results of the Companys operations for any given taxable year will satisfy the requirements for qualification and taxation as a REIT.
The foregoing opinions are limited to the United States federal income tax matters addressed herein, and no other opinions are rendered with respect to other United States federal tax matters or to any issues arising under the tax laws of any other country, or any state or locality. The foregoing opinions are based on current provisions of the Code and the Treasury regulations thereunder (the Regulations), published administrative interpretations thereof, and published court decisions, all of which are subject to change and new interpretation, both prospectively and retroactively. The Internal Revenue Service has not issued Regulations or administrative interpretations with respect to various provisions of the Code relating to REIT qualification. No assurance can be given that the law will not change in a way that will prevent the Company from qualifying as a REIT. Although the conclusions set forth herein represent our
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best judgment as to the probable outcome on the merits of such matters, the Internal Revenue Service and the courts are not bound by, and may disagree with, the conclusions set forth herein. This opinion is rendered only as of the date hereof, and we assume no obligation to update our opinion to address other facts or any changes in law or interpretation thereof that may hereafter occur or hereafter come to our attention. If any one of the statements, representations, warranties or assumptions that we have relied upon to issue these opinions is incorrect in a material respect, our opinions might be adversely affected and may not be relied upon.
We hereby consent to the filing of this opinion as an exhibit to the Registration Statement. We also consent to the reference to Andrews Kurth LLP under the captions Additional Federal Income Tax Consequences and Federal Income Tax Consequences of Our Status as a REIT and Legal Matters in the Prospectus. In giving this consent, we do not admit that we are in the category of persons whose consent is required by Section 7 of the Securities Act of 1933, as amended, or the rules and regulations promulgated thereunder by the SEC.
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Very truly yours, |
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/s/ Andrews Kurth LLP |
TRP;WSB |
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