EXHIBIT 8.1
August 19, 2003
Ashford Hospitality Trust, Inc.
14180 Dallas Parkway, 9th Floor
Dallas, Texas 75254
Ladies and Gentlemen:
We have acted as counsel to Ashford Hospitality Trust, Inc., a Maryland
corporation (the "Company"), in connection with the preparation of a Form S-11
registration statement (the "Registration Statement") filed with the Securities
and Exchange Commission ("SEC") on May 15, 2003 (No. 333-105277), as amended
through the date hereof, with respect to the offering and sale (the "Offering")
of 40,250,000 common shares of beneficial interest, par value $0.01 per share,
of the Company (the "Common Shares"). You have requested our opinion as to
certain United States federal income tax matters in connection with the
Offering.
In connection with our opinion, we have examined and relied upon the
following:
1. the Company's Articles of Amendment and Restatement, in the form
filed as an exhibit to the Registration Statement;
2. The Company's Amended and Restated Bylaws, in the form filed as an
exhibit to the Registration Statement;
3. the Registration Statement, including the prospectus (the
"Prospectus") contained as a part thereof;
4. the Limited Partnership Agreement 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"), in the form filed as an
exhibit to the Registration Statement;
5. the Omnibus Option Agreement between Ashford Hospitality Limited
Partnership, Ashford Financial Corporation, Remington Suites Austin, L.P.,
Remington Suites Dallas, L.P., Remington Suites Dulles, L.P., Remington Suites
Las Vegas, L.P., Chicago Illinois Hotel Limited Partnership and Remington Long
Island Hotel, L.P., dated as of May 15, 2003, which was filed as an exhibit to
the Registration Statement;
Ashford Hospitality Trust, Inc.
August 19, 2003
Page 2
6. the Leases, a form of which is attached to the Officer's Certificate
(as defined below);
7. the articles of incorporation, bylaws and stock ownership
information of each corporation in which the Company directly or indirectly owns
an interest, as set forth on Schedule 1 attached hereto (the "Corporate
Subsidiaries");
8. the certificate of formation, if applicable, and the partnership
agreement or limited liability company operating agreement, as applicable, of
each partnership or limited liability company in which the Company directly or
indirectly owns an interest, as set forth on Schedule 2 attached hereto (the
"Partnership/Limited Liability Company Subsidiaries"); and
9. 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, (iii) the authority and capacity of the
individual or individuals who executed any document on behalf of any person or
entity to so execute such document, (iv) the genuineness of all signatures on
documents examined by us, and (v) the accuracy and completeness of all records
made available to us. We have assumed that each unexecuted document submitted to
us for our review will be executed in a form materially identical to the form we
reviewed. In connection with the opinion rendered below, we also have relied
upon the correctness of the factual representations contained in the Officer's
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, with your consent, that:
1. during its short taxable year ending December 31, 2003 and future
taxable years, the Company will operate in a manner that will make the
representations contained in a certificate, dated August 19, 2003 and executed
by a duly appointed officer of the Company (the "Officer's Certificate"), true
for such years;
2. the Company will not make any amendments to its organization
documents or allow amendments to the Operating Partnership Agreement or
partnership agreements of the Partnership Subsidiaries after the date of this
opinion that would 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; and
3. no action will be taken by the Company, the Operating Partnership,
the Partnership Subsidiaries or the Corporate Subsidiaries after the date hereof
that would have the effect of altering the facts upon which the opinion set
forth below is based.
Ashford Hospitality Trust, Inc.
August 19, 2003
Page 3
Based on the documents and assumptions set forth above, the
representations set forth in the Officer's Certificate, and the discussion in
the Prospectus under the caption "Federal Income Tax Consequences Of Our Status
As A REIT" (which is incorporated herein by reference), we are of the opinion
that:
(a) commencing with the Company's short taxable year ending on
December 31, 2003, the Company will qualify to be taxed as a REIT
pursuant to sections 856 through 860 of the Code, and the Company's
organization and proposed method of operation will enable it to
continue to meet the requirements for qualification and taxation as a
REIT under the Code; and
(b) 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" are correct in all material
respects, and the discussion thereunder expresses the opinion of
Andrews & Kurth L.L.P. insofar as it relates to matters of United
States federal income tax law and legal conclusions with respect to
those matters.
We will not review on a continuing basis the Company's compliance with
the documents or assumptions set forth above, or the representations set forth
in the Officer's Certificate. Accordingly, no assurance can be given that the
actual results of the Company's 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 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 references to Andrews & Kurth
L.L.P. under the
Ashford Hospitality Trust, Inc.
August 19, 2003
Page 4
captions "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.
Very truly yours,
/s/ Andrews & Kurth L.L.P.
SCHEDULE 1
Corporate Subsidiaries
NAME JURISDICTION OF FORMATION/INCORPORATION
- ---- ---------------------------------------
Ashford TRS Corporation Delaware
Austin Embassy Beverage, Inc. Texas
Schedule 1
SCHEDULE 2
Partnership/Limited Liability Company Subsidiaries
<Table>
<Caption>
NAME JURISDICTION OF FORMATION/INCORPORATION
- ---- ---------------------------------------
Ashford OP General Partner LLC Delaware
Ashford OP Limited Partner LLC Delaware
Ashford Hospitality Limited Partnership Delaware
Ashford Properties General Partner LLC Delaware
Ashford Dulles LP Delaware
Ashford Las Vegas LP Delaware
Ashford Dallas LP Delaware
Ashford Austin LP Delaware
Ashford Covington LP Delaware
Ashford Holtsville LP Delaware
</Table>
Schedule 2