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Maryland (State of jurisdiction of incorporation or organization) | 86-1062192 (I.R.S. Employer Identification No.) | |
14185 Dallas Parkway, Suite 1100 Dallas, Texas 75254 (972) 490-9600 (Address including zip code, and telephone number, including area code, of registrant’s principal executive offices) | Montgomery J. Bennett David A. Brooks 14185 Dallas Parkway, Suite 1100 Dallas, Texas 75254 (972) 490-9600 (Name, address, including zip code, and telephone number, including area code, of agent for service) |
David Barbour
Muriel C. McFarling
Andrews Kurth LLP
1717 Main Street, Suite 3700
Dallas, Texas 75201
(214) 659-4400
Proposed | ||||||||||||||
Amount | Proposed | maximum | ||||||||||||
Title of each class of | to be | maximum offering | aggregate offering | Amount of | ||||||||||
securities to be registered | registered | price per unit(1) | price | registration fee(2) | ||||||||||
Common Stock, $0.01 par value per share | 4,994,150 | $11.08 | $55,335,182 | $6,513 | ||||||||||
(1) | Estimated solely for the purpose of determining the registration fee pursuant to Rule 457(c), based on the average of the high and low prices of the common stock as reported on the New York Stock Exchange on August 19, 2005. | |
(2) | Of this amount, $5,855 was previously paid with the initial filing. | |
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The information in this prospectus is not complete and may be changed or supplemented. We cannot sell any of the securities described in this prospectus until the registration statement that we have filed to cover the securities has become effective under the rules of the Securities and Exchange Commission. This prospectus is not an offer to sell the securities, nor is it a solicitation of an offer to buy the securities, in any state where the offer or sale is not permitted.
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Registration Rights Agreement | ||||||||
Opinion/Consent of Hogan & Hartson | ||||||||
Opinion/Consent of Andrews Kurth |
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• | our Annual Report on Form 10-K for the year ended December 31, 2004, as amended by Amendment No. 1 to our Annual Report on Form 10-K/A filed with the SEC on August 10, 2005; | ||
• | our Quarterly Reports on Form 10-Q for the quarters ended March 31, 2005 and June 30, 2005; and | ||
• | our Current Reports on Form 8-K, filed with the SEC on January 4, 2005, January 10, 2005, January 11, 2005, January 14, 2005, January 20, 2005 (both Current Reports filed on such date), February 10, 2005, March 14, 2005, March 18, 2005, March 22, 2005, March 29, 2005, March 31, 2005 (pursuant to Item 8.01), April 1, 2005, April 5, 2005, April 29, 2005, May 9, 2005, June 21, 2005 (pursuant to Items 1.01, 2.01, 2.03, 3.02, 8.01 and 9.01) and July 6, 2005. | ||
Ashford Hospitality Trust, Inc.
14185 Dallas Parkway, Suite 1100
Dallas, Texas 75254
(972) 490-9600.
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• | our business and investment strategy; | ||
• | our projected operating results; | ||
• | completion of any pending transactions; | ||
• | our ability to obtain future financing arrangements; | ||
• | our understanding of our competition; | ||
• | market trends; | ||
• | projected capital expenditures; and | ||
• | the impact of technology on our operations and business. |
• | the factors discussed in this prospectus, and in the information incorporated by reference into this prospectus, including those set forth under the section titled “Risk Factors;” | ||
• | general volatility of the capital markets and the market price of our securities; | ||
• | changes in our business or investment strategy; | ||
• | availability, terms and deployment of capital; | ||
• | availability of qualified personnel; | ||
• | changes in our industry and the market in which we operate, interest rates or the general economy; and | ||
• | the degree and nature of our competition. |
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• | 10 years after the contribution of such property, and | ||
• | the date on which the contributor no longer owns, in the aggregate, at least 25% of the units we issued to the contributor at the time of its contribution of property to our operating partnership. |
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• | 7 years after the contribution of such property, and | ||
• | the date on which the contributor or any of its specified transferees no longer owns, in the aggregate, at least 10% of the units we issued to the contributor at the time of its contribution of property to our operating partnership. |
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• | Available interest rate hedging may not correspond directly with the interest rate risk for which protection is sought. | ||
• | The duration of the hedge may not match the duration of the related liability. | ||
• | The party owing money in the hedging transaction may default on its obligation to pay. | ||
• | The credit quality of the party owing money on the hedge may be downgraded to such an extent that it impairs our ability to sell or assign our side of the hedging transaction. | ||
• | The value of derivatives used for hedging may be adjusted from time to time in accordance with accounting rules to reflect changes in fair value. Downward adjustments, or “mark-to-market losses,” would reduce our stockholders’ equity. |
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• | our hotels compete with other hotel properties in their geographic markets and many of our competitors have substantial marketing and financial resources; | ||
• | over-building in our markets, which adversely affects occupancy and revenues at our hotels; | ||
• | dependence on business and commercial travelers and tourism; and | ||
• | adverse effects of general, regional and local economic conditions and increases in energy costs or labor costs and other expenses affecting travel, which may affect travel patterns and reduce the number of business and commercial travelers and tourists. |
• | cost overruns and delays; | ||
• | renovations can be disruptive to operations and can displace revenue at the hotels, including revenue lost while rooms under renovation are out of service; | ||
• | the cost of funding renovations and the possibility that financing for these renovations may not be available on attractive terms; and | ||
• | the risk that the return on our investment in these capital improvements will not be what we expect. |
• | actual development costs may exceed our budgeted or contracted amounts; |
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• | construction delays may prevent us from opening hotels on schedule; | ||
• | we may not be able to obtain all necessary zoning, land use, building, occupancy and construction permits; | ||
• | our developed properties may not achieve our desired revenue or profit goals; and | ||
• | we may incur substantial development costs and then have to abandon a development project before completion. |
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• | adverse changes in national and local economic and market conditions; | ||
• | changes in interest rates and in the availability, cost and terms of debt financing; | ||
• | changes in governmental laws and regulations, fiscal policies and zoning and other ordinances and costs of compliance with laws and regulations; | ||
• | the ongoing need for capital improvements, particularly in older structures; | ||
• | changes in operating expenses; and | ||
• | civil unrest, acts of war and natural disasters, including earthquakes and floods, which may result in uninsured and underinsured losses. |
• | our knowledge of the contamination; | ||
• | the timing of the contamination; | ||
• | the cause of the contamination; or | ||
• | the party responsible for the contamination of the property. |
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• | we would be taxed as a regular domestic corporation, which, among other things, means being unable to deduct distributions to stockholders in computing taxable income and being subject to federal income tax on our taxable income at regular corporate rates; | ||
• | we would also be subject to federal alternative minimum tax and, possibly, increased state and local taxes; | ||
• | any resulting tax liability could be substantial and would reduce the amount of cash available for distribution to stockholders; and | ||
• | unless we were entitled to relief under applicable statutory provisions, we would be disqualified from treatment as a REIT for the subsequent four taxable years following the year during which we lost our qualification, and, thus, our cash available for distribution to stockholders would be reduced for each of the years during which we did not qualify as a REIT. |
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• | We will be required to pay tax on undistributed REIT taxable income. | ||
• | We may be required to pay the “alternative minimum tax” on our items of tax preference. | ||
• | If we have net income from the disposition of foreclosure property held primarily for sale to customers in the ordinary course of business or other non-qualifying income from foreclosure property, we must pay tax on that income at the highest corporate rate. | ||
• | If we sell a property in a “prohibited transaction,” our gain from the sale would be subject to a 100% penalty tax. A “prohibited transaction” would be a sale of property, other than a foreclosure property, held primarily for sale to customers in the ordinary course of business. | ||
• | Our taxable REIT subsidiaries, including Ashford TRS Corporation and Ashford TRS VI Corporation, are fully taxable corporations and will be required to pay federal and state taxes on their income. | ||
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• | Ownership limit:The ownership limit in our charter limits related investors, including, among other things, any voting group, from acquiring over 9.8% of our common stock without our permission. | ||
• | Classification of preferred stock:Our charter authorizes our board of directors to issue preferred stock in one or more classes and to establish the preferences and rights of any class of preferred stock issued. These actions can be taken without soliciting stockholder approval. The issuance of preferred stock could have the effect of delaying or preventing someone from taking control of us, even if a change in control were in our stockholders’ best interests. |
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Number of | Number of | |||||||||||||||
Shares Owned | Shares | |||||||||||||||
Prior to the | Offered | Shares Owned Following | ||||||||||||||
Selling Stockholder | Offering(1) | Hereby(2) | the Offering | |||||||||||||
Shares | Percent | |||||||||||||||
Archie Bennett(3) | 3,596,319 | 419,967 | 3,176,352 | 7.06 | % | |||||||||||
Perthshire, L.P.(3) | 361,604 | 361,604 | — | — | ||||||||||||
Montgomery Bennett(4) | 3,620,619 | 419,967 | 3,200,652 | 7.11 | % | |||||||||||
Southwest Siena, L.P. (4) | 361,604 | 361,604 | — | — | ||||||||||||
Chartwell Hotels Associates | 679,644 | 679,644 | — | — | ||||||||||||
Fisher 6R Hotel Associates | 324,333 | 324,333 | — | — | ||||||||||||
Fisher 2003 Hotel Refinancing Associates | 450,075 | 450,075 | — | — | ||||||||||||
Martin L. Edelman(5) | 327,358 | 92,711 | 234,647 | * | ||||||||||||
FGT, L.P. | 1,004,306 | 1,004,306 | — | — | ||||||||||||
George Soros | 75,346 | 75,346 | — | — | ||||||||||||
Tividar Holdings, LLC | 694,684 | 694,684 | — | — | ||||||||||||
David Kimichik(6) | 165,593 | 45,788 | 119,805 | * | ||||||||||||
David A. Brooks(7) | 352,719 | 45,788 | 306,931 | * | ||||||||||||
Mark Nunneley(8) | 144,646 | 18,333 | 126,313 | * | ||||||||||||
12,158,850 | 4,994,150 | 7,164,700 | ||||||||||||||
* | Less than 1.0 percent. | |
(1) | Represents shares of common stock currently owned, directly or indirectly, by the selling shareholder or issuable in exchange for an equal number of currently redeemable units of limited partnership interest in our operating partnership owned, directly or indirectly, by the selling stockholder. | |
(2) | Assumes that all units received by the selling stockholder in March 2005 as partial consideration for the contribution of real and personal property by the selling stockholder are exchanged for shares of common stock and that all such shares of common stock covered by this prospectus are being resold pursuant to this prospectus. | |
(3) | Archie Bennett, Jr. serves as the Chairman of our board of directors, and, together with his son Montgomery J. Bennett, beneficially owns 100% of Remington Lodging and Hospitality, L.P., our primary property manager, managing 30 of our 79 hotel properties. Additionally, Mr. Archie Bennett indirectly owns 100% of Perthshire, L.P. | |
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(4) | Montgomery J. Bennett serves as our President and Chief Executive Officer and, together with his father Archie Bennett, Jr., beneficially owns 100% of Remington Lodging and Hospitality, L.P., our primary property manager, managing 30 of our 79 hotel properties. Additionally, Mr. Montgomery Bennett indirectly owns 100% of Southwest Siena, L.P. | |
(5) | Martin L. Edelman has served on our board of directors since completion of our initial public offering in August 2003. The number of shares owned by Mr. Edelman prior to the offering includes shares issuable in exchange for units of limited partnership interest in our operating partnership held by 3MB Associates LLC, a limited liability company of which Mr. Edelman is the managing member. | |
(6) | David Kimichik serves as our Chief Financial Officer | |
(7) | David A Brooks serves as our Chief Legal Officer and Head of Transactions. | |
(8) | Mark Nunneley serves as our Chief Accounting Officer. |
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• | any person from actually or constructively owning shares of our capital stock that would result in us being “closely held” under Section 856(h) of the Code or otherwise cause us to fail to qualify as a REIT; and | ||
• | any person from transferring shares of our capital stock if such transfer would result in shares of our stock being beneficially owned by fewer than 100 persons (determined without reference to any rules of attribution). |
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• | any person who beneficially owns 10% or more of the voting power of our voting stock; or | ||
• | an affiliate or associate of the corporation who, at any time within the two-year period prior to the date in question, was the beneficial owner of 10% or more of the voting power of the then-outstanding voting stock of the corporation. |
• | 80% of the votes entitled to be cast by holders of the then outstanding shares of common stock; and | ||
• | two-thirds of the votes entitled to be cast by holders of the common stock other than shares held by the interested stockholder with whom or with whose affiliate the business combination is to be effected or shares held by an affiliate or associate of the interested stockholder. |
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• | with respect to an annual meeting of stockholders, the only business to be considered and the only proposals to be acted upon will be those properly brought before the annual meeting: |
- | pursuant to our notice of the meeting; | ||
- | by, or at the direction of, a majority of our board of directors; or | ||
- | by a stockholder who is entitled to vote at the meeting and has complied with the advance notice procedures set forth in our bylaws; |
• | with respect to special meetings of stockholders, only the business specified in our company’s notice of meeting may be brought before the meeting of stockholders unless otherwise provided by law; and | ||
• | nominations of persons for election to our board of directors at any annual or special meeting of stockholders may be made only: |
- | by, or at the direction of, our board of directors; or | ||
- | by a stockholder who is entitled to vote at the meeting and has complied with the advance notice provisions set forth in our bylaws. |
• | an act or omission of the director or officer was material to the matter giving rise to the proceeding and: |
- | was committed in bad faith; or |
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- | was the result of active and deliberate dishonesty; |
• | the director or officer actually received an improper personal benefit in money, property or services; or | ||
• | in the case of any criminal proceeding, the director or officer had reasonable cause to believe that the act or omission was unlawful. |
• | a written affirmation by the director or officer of his good faith belief that he has met the standard of conduct necessary for indemnification by the corporation; and | ||
• | a written undertaking by the director or on the director’s behalf to repay the amount paid or reimbursed by the corporation if it is ultimately determined that the director did not meet the standard of conduct. |
• | any present or former director or officer who is made a party to the proceeding by reason of his or her service in that capacity; or | ||
• | any individual who, while a director or officer of our company and at our request, serves or has served another corporation, real estate investment trust, partnership, joint venture, trust, employee benefit plan or any other enterprise as a director, officer, partner or trustee and who is made a party to the proceeding by reason of his or her service in that capacity. |
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• | in connection with a merger of the operating partnership, a sale of substantially all of the assets of the operating partnership or other transaction in which the limited partners receive a certain amount of cash, securities or property; or | ||
• | in connection with a merger of us or the general partner into another entity, if the surviving entity contributes substantially all its assets to the operating partnership and assumes the duties of the general partner under the operating partnership agreement. |
• | would cause us to fail to comply with the REIT rules under the Internal Revenue Code, or | ||
• | would cause us to become a publicly-traded partnership under the Internal Revenue Code. |
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• | all expenses relating to our continuity of existence; | ||
• | all expenses relating to offerings and registration of securities; | ||
• | all expenses associated with the preparation and filing of any of our periodic reports under federal, state or local laws or regulations; |
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• | all expenses associated with our compliance with laws, rules and regulations promulgated by any regulatory body; and | ||
• | all of our other operating or administrative costs incurred in the ordinary course of its business on behalf of the partnership. |
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• | the act or omission of the indemnitee was material to the matter giving rise to the proceeding and was committed in bad faith or was the result of active and deliberate dishonesty, | ||
• | the indemnitee actually received an improper personal benefit in money, property or services, or | ||
• | in the case of any criminal proceeding, the indemnitee had reasonable cause to believe that the act or omission was unlawful. |
• | the general partner’s bankruptcy or dissolution or withdrawal (unless the limited partners elect to continue the partnership); | ||
• | the passage of 90 days after the sale or other disposition of all or substantially all the assets of the partnership; | ||
• | the redemption of all partnership units (other than those held by us, if any); or | ||
• | an election by us in our capacity as the sole owner of the general partner. |
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• | We will pay federal income tax on taxable income, including net capital gain, that we do not distribute to our stockholders during, or within a specified time period after, the calendar year in which the income is earned. | ||
• | Under certain circumstances, we may be subject to the “alternative minimum tax” on items of tax preference. |
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• | We will pay income tax at the highest corporate rate on (1) net income from the sale or other disposition of property acquired through foreclosure (“foreclosure property”) that we hold primarily for sale to customers in the ordinary course of business and (2) other non-qualifying income from foreclosure property. | ||
• | We will pay a 100% tax on net income from sales or other dispositions of property, other than foreclosure property, that we hold primarily for sale to customers in the ordinary course of business. | ||
• | If we fail to satisfy the 75% gross income test or the 95% gross income test, as described below under “— Income Tests,” and nonetheless continue to qualify as a REIT because we meet other requirements, we will pay a 100% tax on (1) the gross income attributable to the greater of the amounts by which we fail the 75% and 95% gross income tests, multiplied by (2) a fraction intended to reflect our profitability. | ||
• | If we fail to distribute during a calendar year at least the sum of (1) 85% of our REIT ordinary income for such year, (2) 95% of our REIT capital gain net income for such year, and (3) any undistributed taxable income from prior periods, we will pay a 4% excise tax on the excess of this required distribution over the amount we actually distributed. | ||
• | We may elect to retain and pay income tax on our net long-term capital gain. In that case, a U.S. stockholder would be taxed on its proportionate share of our undistributed long-term capital gain (to the extent that a timely designation of such gain is made by us to the stockholder) and would receive a credit or refund for its proportionate share of the tax we paid. | ||
• | If we acquire any asset from a C corporation, or a corporation that generally is subject to full corporate-level tax, in a merger or other transaction in which we acquire a basis in the asset that is determined by reference to the C corporation’s basis in the asset, we will pay tax at the highest regular corporate rate applicable if we recognize gain on the sale or disposition of such asset during the 10-year period after we acquire such asset. The amount of gain on which we will pay tax generally is the lesser of: (1) the amount of gain that we recognize at the time of the sale or disposition; or (2) the amount of gain that we would have recognized if we had sold the asset at the time we acquired the asset. | ||
• | We will incur a 100% excise tax on transactions with a “taxable REIT subsidiary” that are not conducted on an arm’s-length basis. | ||
• | After 2004, if we fail to satisfy certain asset tests, described below under “- Asset Tests,” by more than a de minimis threshold, and nonetheless continue to qualify as a REIT because we meet certain other requirements, we will be subject to a tax of the greater of $50,000 or at the highest corporate rate on the income generated by the non-qualifying assets. | ||
• | After 2004, we may be subject to a $50,000 tax for each such failure if we fail to satisfy certain REIT qualification requirements, other than income tests or asset tests, and such failure is due to reasonable cause and not willful neglect. |
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• | rents from real property; | ||
• | interest on debt secured by mortgages on real property or on interests in real property; | ||
• | dividends and gain from the sale of shares in other REITs; and | ||
• | gain from the sale of real estate assets. |
• | First, the rent must not be based, in whole or in part, on the income or profits of any person but may be based on a fixed percentage or percentages of gross receipts or gross sales. | ||
• | Second, neither we nor a direct or indirect owner of 10% or more of our shares of common stock may own, actually or constructively, 10% or more of a tenant other than a TRS from whom we receive rent. | ||
• | Third, if the rent attributable to personal property leased in connection with a lease of real property exceeds 15% of the total rent received under the lease, then the portion of rent attributable to that personal property will not qualify as “rents from real property.” | ||
• | Fourth, we generally must not operate or manage our real property or furnish or render services to our tenants, other than through an “independent contractor” who is adequately compensated, from whom we do not derive revenue, and who does not, directly or through its stockholders, own more than 35% of our shares of common stock, taking into consideration the applicable ownership attribution rules. However, we need not provide services through an “independent contractor,” but instead may provide services directly to our tenants, if the services are “usually or customarily rendered” in the geographic area in connection with |
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the rental of space for occupancy only and are not considered to be provided for the tenants’ convenience. In addition, we may provide a minimal amount of “non-customary” services to the tenants of a property, other than through an independent contractor, as long as our income from the services (valued at not less than 150% of our direct cost of performing such services) does not exceed 1% of our income from the related property. Furthermore, we may own up to 100% of the stock of a TRS which may provide customary and noncustomary services to our tenants without tainting our rental income from the related properties. See “— Taxable REIT Subsidiaries.” |
• | the intent of the parties; | ||
• | the form of the agreement; | ||
• | the degree of control over the property that is retained by the property owner, or whether the lessee has substantial control over the operation of the property or is required simply to use its best efforts to perform its obligations under the agreement; and | ||
• | the extent to which the property owner retains the risk of loss with respect to the property, or whether the lessee bears the risk of increases in operating expenses or the risk of damage to the property or the potential for economic gain or appreciation with respect to the property. |
• | the service recipient is in physical possession of the property; | ||
• | the service recipient controls the property; | ||
• | the service recipient has a significant economic or possessory interest in the property, or whether the property’s use is likely to be dedicated to the service recipient for a substantial portion of the useful life of the property, the recipient shares the risk that the property will decline in value, the recipient shares in any appreciation in the value of the property, the recipient shares in savings in the property’s operating costs, or the recipient bears the risk of damage to or loss of the property; | ||
• | the service provider bears the risk of substantially diminished receipts or substantially increased expenditures if there is nonperformance under the contract; | ||
• | the service provider uses the property concurrently to provide significant services to entities unrelated to the service recipient; and | ||
• | the total contract price substantially exceeds the rental value of the property for the contract period. |
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• | the Partnerships, on the one hand, and a TRS, on the other hand, intend for their relationship to be that of a lessor and lessee, and such relationship is documented by lease agreements; | ||
• | a TRS has the right to the exclusive possession, use, and quiet enjoyment of the hotels during the term of the percentage leases; | ||
• | a TRS bears the cost of, and is responsible for, day-to-day maintenance and repair of the hotels and generally dictates how the hotels are operated, maintained, and improved; | ||
• | a TRS bears all of the costs and expenses of operating the hotels, including the cost of any inventory used in their operation, during the term of the percentage leases, other than real estate; | ||
• | a TRS benefits from any savings in the costs of operating the hotels during the term of the percentage leases; | ||
• | a TRS generally has indemnified the Partnerships against all liabilities imposed on the Partnerships during the term of the percentage leases by reason of (1) injury to persons or damage to property occurring at the hotels, (2) the TRS’ use, management, maintenance, or repair of the hotels, (3) any environmental liability caused by acts or grossly negligent failures to act of the TRS, (4) taxes and assessments in respect of the hotels that are the obligations of the TRS, or (5) any breach of the percentage leases or of any sublease of a hotel by the TRS; | ||
• | a TRS is obligated to pay substantial fixed rent for the period of use of the hotels; | ||
• | a TRS stands to incur substantial losses or reap substantial gains depending on how successfully it operates the hotels; | ||
• | the Partnerships cannot use the hotels concurrently to provide significant services to entities unrelated to a TRS; and | ||
• | the total contract price under the percentage leases does not substantially exceed the rental value of the hotels for the term of the percentage leases. |
• | are fixed at the time the percentage leases are entered into; |
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• | are not renegotiated during the term of the percentage leases in a manner that has the effect of basing percentage rent on income or profits; and | ||
• | conform with normal business practice. |
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• | that is acquired by a REIT as the result of such REIT having bid in such property at foreclosure, or having otherwise reduced such property to ownership or possession by agreement or process of law, after there was a default or default was imminent on a lease of such property or on an indebtedness that such property secured; and | ||
• | for which such REIT makes a proper election to treat such property as foreclosure property. |
• | on which a lease is entered into with respect to such property that, by its terms, will give rise to income that does not qualify for purposes of the 75% gross income test or any amount is received or accrued, directly or indirectly, pursuant to a lease entered into on or after such day that will give rise to income that does not qualify for purposes of the 75% gross income test; | ||
• | on which any construction takes place on such property, other than completion of a building, or any other improvement, where more than 10% of the construction of such building or other improvement was completed before default became imminent; or | ||
• | which is more than 90 days after the day on which such property was acquired by the REIT and the property is used in a trade or business which is conducted by the REIT, other than through an independent contractor from whom the REIT itself does not derive or receive any income. |
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• | our failure to meet such tests is due to reasonable cause and not due to willful neglect; | ||
• | for years ending before January 1, 2005, we attach a schedule of the sources of our income to our tax return; and any incorrect information on the schedule was not due to fraud with intent to evade tax; and | ||
• | for years beginning after December 31, 2004, following our identification of the failure to meet one or both gross income tests for a taxable year, a description of each item of our gross income included in the 75% and 95% gross income tests is set forth in a schedule for such taxable year filed as specified by Treasury regulations. |
• | First, at least 75% of the value of our total assets must consist of: |
- | cash or cash items, including certain receivables; | ||
- | government securities; | ||
- | interests in real property, including leaseholds and options to acquire real property and leaseholds; | ||
- | interests in mortgages on real property; | ||
- | stock in other REITs; and | ||
- | investments in stock or debt instruments during the one-year period following our receipt of new capital that we raise through equity offerings or offerings of debt with at least a five-year term. |
• | Second, of our investments not included in the 75% asset class, the value of our interest in any one issuer’s securities may not exceed 5% of the value of our total assets. | ||
• | Third, we may not own more than 10% of the voting power or value of any one issuer’s outstanding securities. | ||
• | Fourth, no more than 20% of the value of our total assets may consist of the securities of one or more TRSs. |
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• | the sum of (1) 90% of our “REIT taxable income,” computed without regard to the dividends paid deduction and our net capital gain or loss, and (2) 90% of our after-tax net income, if any, from foreclosure property; minus | ||
• | the sum of certain items of non-cash income. |
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• | 85% of our REIT ordinary income for such year; | ||
• | 95% of our REIT capital gain income for such year; and | ||
• | any undistributed taxable income from prior periods, |
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• | a citizen or resident of the United States; | ||
• | a corporation or partnership (including an entity treated as a corporation or partnership for U.S. federal income tax purposes) created or organized in or under the laws of the United States or of a political subdivision thereof; | ||
• | an estate whose income is subject to U.S. federal income taxation regardless of its source; or | ||
• | any trust if (1) a U.S. court is able to exercise primary supervision over the administration of such trust and one or more U.S. persons have the authority to control all substantial decisions of the trust or (2) it has a valid election in place to be treated as a U.S. person. |
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• | is a corporation or comes within certain other exempt categories and, when required, demonstrates this fact; or | ||
• | provides a taxpayer identification number, certifies as to no loss of exemption from backup withholding, and otherwise complies with the applicable requirements of the backup withholding rules. |
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• | the percentage of our dividends that the tax-exempt trust would be required to treat as unrelated business taxable income is at least 5%; | ||
• | we qualify as a REIT by reason of the modification of the rule requiring that no more than 50% of our common stock be owned by five or fewer individuals that allows the beneficiaries of the pension trust to be treated as holding our common stock in proportion to their actuarial interests in the pension trust (see “— Requirements for Qualification” above); and | ||
• | either (1) one pension trust owns more than 25% of the value of our common stock or (2) a group of pension trusts individually holding more than 10% of the value of our common stock collectively owns more than 50% of the value of our common stock. |
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• | a lower treaty rate applies and the non-U.S. stockholder files an IRS Form W-8BEN evidencing eligibility for that reduced rate with us; or | ||
• | the non-U.S. stockholder files an IRS Form W-8ECI with us claiming that the distribution is effectively connected income. |
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• | is treated as a partnership under Treasury regulations, effective January 1, 1997, relating to entity classification (the “check-the-box regulations”); and | ||
• | is not a “publicly traded” partnership. |
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• | the amount of cash and the basis of any other property contributed by us to the operating partnership; | ||
• | increased by our allocable share of the operating partnership’s income and our allocable share of indebtedness of the operating partnership; and | ||
• | reduced, but not below zero, by our allocable share of the operating partnership’s loss and the amount of cash distributed to us, and by constructive distributions resulting from a reduction in our share of indebtedness of the operating partnership. |
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• | such person is, or is related to a person who is, actively engaged in the trade or business of operating “qualified lodging facilities” for any person unrelated to us and the TRS; | ||
• | such person does not own, directly or indirectly, more than 35% of our common stock; | ||
• | no more than 35% of such person is owned, directly or indirectly, by one or more persons owning 35% or more of our common stock; and | ||
• | we do not directly or indirectly derive any income from such person. |
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• | on the New York Stock Exchange or other national exchange or quotation system on which our shares of common stock are listed or traded at the time of sale; | ||
• | in the over-the-counter market; | ||
• | in privately negotiated transactions; | ||
• | in underwritten transactions; or | ||
• | otherwise, at prices then prevailing or related to the then current market price or at negotiated prices. |
• | a block trade in which the broker-dealer so engaged will attempt to sell offered common stock as agent but may position and resell a portion of the block as principal to facilitate the transaction; | ||
• | purchases by a broker-dealer as principal and resale by such broker-dealer for its own account pursuant to this prospectus; | ||
• | ordinary brokerage transactions and transactions in which the broker solicits purchases; | ||
• | an exchange distribution in accordance with the rules of the exchange or quotation system; | ||
• | privately negotiated transactions; and | ||
• | underwritten transactions. |
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SEC Registration Fee | $ | 6,513 | ||
Legal Fees and Expenses (other than Blue Sky) | 25,000 | * | ||
Accounting and Fees and Expenses | 10,000 | * | ||
Miscellaneous | 3,487 | |||
Total | $ | 45,000 | ||
* | Fees are estimates only. |
• | an act or omission of the director or officer was material to the matter giving rise to the proceeding and: |
- | was committed in bad faith; or | ||
- | was the result of active and deliberate dishonesty; |
• | the director or officer actually received an improper personal benefit in money, property or services; or | ||
• | in the case of any criminal proceeding, the director or officer had reasonable cause to believe that the act or omission was unlawful. |
• | a written affirmation by the director or officer of his good faith belief that he has met the standard of conduct necessary for indemnification by the corporation; and | ||
• | a written undertaking by the director or on the director’s behalf to repay the amount paid or reimbursed by the corporation if it is ultimately determined that the director did not meet the standard of conduct. |
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• | any present or former director or officer who is made a party to the proceeding by reason of his or her service in that capacity; or | ||
• | any individual who, while a director or officer of our company and at our request, serves or has served another corporation, real estate investment trust, partnership, joint venture, trust, employee benefit plan or any other enterprise as a director, officer, partner or trustee of such corporation, real estate investment trust, partnership, |
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Exhibit | ||
Number | Description of Exhibit | |
4.1 | Articles of Amendment and Restatement of the Charter of the Company (incorporated by reference to Exhibit 3.1 of Form S-11 /A, filed on July 31, 2003) | |
4.2 | Amended and Restated Bylaws of the Company (incorporated by reference to Exhibit 3.2 of Form S-11/A, filed on July 31, 2003) | |
4.3 | Amendment No. 1 to Amended and Restated Bylaws of the Company (incorporated by reference to Exhibit 3.2.2 to the Registrant’s Form 10-K for the year ended December 31, 2003) | |
4.4 | Articles Supplementary classifying 3,000,000 shares of preferred stock as 8.55% Series A Cumulative Preferred Stock (incorporated by reference to Exhibit 4.4 to the Registrant’s Form 8-K, dated September 15, 2004, for the event dated September 21, 2004) | |
4.5 | Articles Supplementary classifying 7,447,865 shares of preferred stock as Series B-1 Cumulative Convertible Redeemable Preferred Stock (incorporated by reference to Exhibit 4.1 to the Registrant’s Form 8-K, dated January 4, 2005, for the event dated December 28, 2004) | |
4.6 | Articles Supplementary classifying 2,285,865 shares of preferred stock as Series B-2 Cumulative Convertible Redeemable Preferred Stock (incorporated by reference to Exhibit 4.2 to the Registrant’s Form 8-K, dated January 4, 2005, for the event dated December 28, 2004) | |
*4.7 | Registration Rights Agreement, dated as of March 16, 2005, by and between Ashford Hospitality Trust, Inc. and the Unitholders (as defined therein). | |
*5.1 | Opinion of Hogan & Hartson with respect to the legality of the shares being registered | |
*8.1 | Opinion of Andrews Kurth LLP with respect to tax matters | |
*23.1 | Consent of Hogan & Hartson (included in Exhibit 5.1) | |
*23.2 | Consent of Andrews Kurth (included in Exhibit 8.1) | |
**23.3 | Consent of Ernst & Young LLP | |
**23.4 | Consent of Holland Shipes Vann, P.C. | |
**23.5 | Consent of Berdon LLP | |
**24.1 | Power of Attorney |
* | Filed herewith. | |
** | Previously filed. | |
(i) | To include any prospectus required by Section 10(a)(3) of the Securities Act of 1933; | ||
(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. Notwithstanding the foregoing, any increase or decrease in volume of securities offered (if the total dollar value of securities offered would not exceed that which was registered) and any deviation from the low or high end of the estimated maximum offering range may be reflected in the form of prospectus filed with the |
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Commission pursuant to Rule 424(b) if, in the aggregate, the changes in volume and price represent no more than a 20 percent change in the maximum aggregate offering price set forth in the “Calculation of Registration Fee” table in the effective registration statement; and | |||
(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 this registration statement; |
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ASHFORD HOSPITALITY TRUST, INC. | ||||
By: | /s/ David Kimichik | |||
David Kimichik | ||||
Chief Financial Officer | ||||
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Signature | Title | Date | ||
* | Chairman of the Board of | August 22, 2005 | ||
Archie Bennett, Jr. | Directors | |||
Chief Executive Officer, | August 22, 2005 | |||
* | President and Director | |||
Montgomery J. Bennett | (Principal Executive Officer) | |||
* | Chief Financial Officer | August 22, 2005 | ||
David Kimichik | (Principal Financial Officer) | |||
* | Chief Accounting Officer | August 22, 2005 | ||
Mark Nunneley | (Principal Accounting Officer) | |||
* | August 22, 2005 | |||
Martin L. Edelman | Director | |||
* | August 22, 2005 | |||
W.D. Minami | Director | |||
* | August 22, 2005 | |||
W. Michael Murphy | Director | |||
* | August 22, 2005 | |||
Philip S. Payne | Director | |||
* | August 22, 2005 | |||
Charles P. Toppino | Director | |||
* /s/ David A. Brooks | ||||
David A. Brooks | ||||
Attorney-In-Fact |