As filed with the Securities and Exchange Commission
on August 23, 2024
Registration No. 333-
UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
| FORM S-3 |
| |
REGISTRATION
STATEMENT
UNDER
THE SECURITIES ACT OF 1933 |
| RLJ
LODGING TRUST |
| (Exact
Name of Registrant as Specified in Its Charter) |
| Maryland |
|
27-4706509 |
(State
or Other Jurisdiction of
Incorporation or Organization) |
|
(I.R.S.
Employer
Identification Number) |
7373
Wisconsin Avenue, Suite 1500
Bethesda, MD 20814
(301) 280-7777 |
(Address, Including
Zip Code, and Telephone Number, Including Area Code,
of Registrant’s Principal Executive Offices) |
Leslie
D. Hale
President and Chief Executive Officer
RLJ Lodging Trust
7373 Wisconsin Avenue, Suite 1500
Bethesda, MD 20814
(301) 280-7777 |
| (Name,
Address, Including Zip Code, and Telephone Number, Including Area Code, of Agent For Service) |
Copy
to:
David W. Bonser
Les B. Reese, III
Hogan Lovells US LLP
555 Thirteenth Street, N.W.
Washington, D.C. 20004-1109
(202) 637-5600 |
Approximate
date of commencement of proposed sale to the public: From time to time after the effective date of this registration statement.
If
the only securities being registered on this form are being offered pursuant to dividend or interest reinvestment plans, please check
the following box. ¨
If any of the securities being registered on this
form are to be offered on a delayed or continuous basis pursuant to Rule 415 under the Securities Act of 1933, other than securities
offered only in connection with dividend or interest reinvestment plans, please check the following box. x
If
this form is filed to register additional securities for an offering pursuant to Rule 462(b) under the Securities Act, check
the following box and list the Securities Act registration statement number of the earlier effective registration statement for the same
offering. ¨
If
this form is a post-effective amendment filed pursuant to Rule 462(c) under the Securities Act, check the following box and
list the Securities Act registration statement number of the earlier effective registration statement for the same offering. ¨
If this form is a registration statement pursuant
to General Instruction I.D. or a post-effective amendment thereto that shall become effective upon filing with the Commission pursuant
to Rule 462(e) under the Securities Act, check the following box. x
If
this form is a post-effective amendment to a registration statement filed pursuant to General Instruction I.D. filed to register additional
securities or additional classes of securities pursuant to Rule 413(b) under the Securities Act, check the following box. ¨
Indicate
by check mark whether the registrant is a large accelerated filer, an accelerated filer, a non-accelerated filer, a smaller reporting
company, or an emerging growth company. See the definitions of “large accelerated filer,” “accelerated filer,”
“smaller reporting company” and “emerging growth company” in Rule 12b-2 of the Exchange Act.
| Large accelerated
filer x |
Accelerated
filer ¨ |
Non-accelerated
filer ¨ |
| Smaller reporting company ¨ |
Emerging
growth company ¨ |
|
If
an emerging growth company, indicate by check mark if the registrant has elected not to use the extended transition period for complying
with any new or revised financial accounting standards provided pursuant to Section 7(a)(2)(B) of the Securities Act. ¨
PROSPECTUS
Common Shares, Preferred Shares, Depositary
Shares,
Warrants and Rights
We may offer, from time to time, one or more series
or classes of:
| · | Depositary shares representing our preferred shares; |
| · | Warrants exercisable for our common
shares, preferred shares or depositary shares representing preferred shares; and |
| · | Rights to purchase common shares. |
We refer to our common shares, preferred shares,
depositary shares, warrants and rights collectively as the “securities.” This prospectus describes some of the general terms
that may apply to these securities and the general manner in which they may be offered. The prices and terms of any securities to be
offered, the net proceeds that we expect to receive from the sale of such securities and the specific manner in which such securities
may be offered will be set forth in one or more supplements to this prospectus.
We will deliver this prospectus together with
a prospectus supplement setting forth the specific terms of the securities we are offering. The applicable prospectus supplement also
will contain information, where applicable, about U.S. federal income tax considerations relating to, and any listing on a securities
exchange of, the securities covered by the prospectus supplement.
We may offer the securities directly to investors,
through agents designated from time to time by them or us, or to or through underwriters or dealers. If any agents, underwriters, or
dealers are involved in the sale of any of the securities, their names, and any applicable purchase price, fee, commission or discount
arrangement with, between or among them, will be set forth, or will be calculable from the information set forth, in an accompanying
prospectus supplement. For more detailed information, see “Plan of Distribution” beginning on page 52. No securities
may be sold without delivery of a prospectus supplement describing the method and terms of the offering of those securities.
Our common shares are listed on the New York Stock
Exchange (the “NYSE”) under the symbol “RLJ.” On August 22, 2024, the last reported sale price of our common
shares on the NYSE was $9.30 per share. Our principal executive offices are located at 7373 Wisconsin Avenue, Suite 1500, Maryland
20814, and our telephone number is (301) 280-7777.
You should carefully read this entire prospectus,
the documents that are incorporated by reference in this prospectus and any prospectus supplement before you invest in any of these securities.
Investing in our securities involves risks.
You should carefully consider the risks described under “Risk Factors” on page 4 of this prospectus, as well as the
other information contained or incorporated by reference in this prospectus and the applicable prospectus supplement, before making a
decision to invest in our securities.
Neither the Securities and Exchange Commission
nor any state securities commission has approved or disapproved of these securities or determined if this prospectus is truthful or complete.
Any representation to the contrary is a criminal offense.
This prospectus is dated August 23, 2024
TABLE
OF CONTENTS
ABOUT
THIS PROSPECTUS
This prospectus is part of a registration statement
that we filed with the Securities and Exchange Commission (the “SEC”) utilizing a “shelf” registration process.
This prospectus provides you with a general description of the securities we may offer at any time, from time to time, in one or more
offerings. This prospectus provides only a general description of the securities we may offer and is not meant to provide a complete
description of each security. As a result, each time we offer securities, we will provide a prospectus supplement that contains specific
information about the terms of those securities, which we will attach to this prospectus. The prospectus supplement may also add, update
or change information contained in this prospectus.
You should rely only on the information contained
in this prospectus and any applicable prospectus supplement. To the extent there are any inconsistencies between the information in this
prospectus and any prospectus supplement, you should rely on the information in the applicable prospectus supplement. You should rely
only on the information provided or information to which we have referred you, including any information incorporated by reference in
this prospectus or any applicable prospectus supplement. We have not authorized any other person to provide you with different information.
If anyone provides you with different or inconsistent information, you should not rely on it. We are not making an offer to sell these
securities in any jurisdiction where the offer or sale of these securities is not permitted. You should assume that the information appearing
in this prospectus, any free writing prospectus and any applicable prospectus supplement prepared by us or the other documents incorporated
by reference herein or therein is accurate only as of their respective dates or on the date or dates that are specified in these documents.
Our business, financial condition, liquidity, results of operations and prospects may have changed since those dates.
You should read carefully the entire prospectus,
as well as the documents incorporated by reference in the prospectus, which we have referred you to in “Where You Can Find More
Information and Incorporation by Reference” below, before making an investment decision. Information incorporated by reference
after the date of this prospectus may add, update or change information contained in this prospectus. Statements contained or deemed
to be incorporated by reference in this prospectus or any applicable prospectus supplement as to the content of any contract or other
document are not necessarily complete, and in each instance we refer you to the copy of the contract or other document filed as an exhibit
to a document incorporated or deemed to be incorporated by reference in this prospectus or such prospectus supplement, each such statement
being qualified in all respects by such reference. Any information in such subsequent filings that is inconsistent with this prospectus
will supersede the information in this prospectus or any earlier prospectus supplement.
Unless the context requires otherwise, references
in this prospectus to “we,” “our,” “us” and “our company” refer to RLJ Lodging Trust,
a Maryland real estate investment trust, together with its consolidated subsidiaries, including RLJ Lodging Trust, L.P., a Delaware limited
partnership, which we refer to as the “Operating Partnership.”
CAUTIONARY
NOTE REGARDING FORWARD-LOOKING STATEMENTS
Certain statements in this prospectus and the
documents incorporated by reference, other than purely historical information, including estimates, projections, statements relating
to our business plans, objectives and expected operating results, and the assumptions upon which those statements are based, are “forward-looking
statements” within the meaning of the Private Securities Litigation Reform Act of 1995, Section 27A of the Securities Act
of 1933, as amended (the “Securities Act”), and Section 21E of the Securities Exchange Act of 1934, as amended (the
“Exchange Act”). These forward-looking statements generally are identified by the use of the words “believe,”
“project,” “expect,” “anticipate,” “estimate,” “plan,” “may,”
“will,” “will continue,” “intend,” “should,” “may” or similar expressions.
Although we believe that the expectations reflected in such forward-looking statements are based upon reasonable assumptions, beliefs
and expectations, such forward-looking statements are not predictions of future events or guarantees of future performance and our actual
results could differ materially from those set forth in the forward-looking statements.
Factors that might cause actual outcomes to differ
materially from our forward-looking statements include the following: the current global economic uncertainty, increased direct and indirect
competition, changes in government regulations or accounting rules, changes in local, national and global real estate conditions, declines
in the lodging industry, seasonality of the lodging industry, risks related to natural disasters, such as earthquakes and hurricanes,
hostilities, including future terrorist attacks or fear of hostilities that affect travel, epidemics and/or pandemics, our ability to
obtain lines of credit or permanent financing on satisfactory terms, inflation and changes in interest rates, access to capital through
offerings of our common and preferred shares of beneficial interest, or debt, our ability to identify suitable acquisitions, our ability
to close on identified acquisitions and integrate those businesses, and inaccuracies of our accounting estimates. For a detailed discussion
of these and other risks and uncertainties that could cause actual results and events to differ materially from such forward-looking
statements, see the section entitled “Risk Factors” in our Annual Report on Form 10-K for the fiscal year ended December 31,
2023, our Quarterly Reports on Form 10-Q for the quarterly periods ended March 31, 2024 and June 30, 2024 and in other
documents that we may file from time to time in the future with the SEC. Given these uncertainties, undue reliance should not be placed
on such statements. Except as required by law, we undertake no obligation to update or revise publicly any forward-looking statements,
whether as a result of new information, future events or otherwise.
OUR COMPANY
We are a self-advised and self-administered Maryland
real estate investment trust that owns primarily premium-branded, rooms-oriented, high-margin, focused-service and compact full-service
hotels located within heart of demand locations. We own a geographically diversified portfolio of hotels located in high-growth urban
markets that exhibit multiple demand generators and attractive long-term growth prospects. We believe that our investment strategy allows
us to generate high levels of Revenue per Available Room (“RevPAR”), strong operating margins and attractive returns.
Our strategy is to own primarily premium-branded,
rooms-oriented, high-margin, focused-service and compact full-service hotels located within heart of demand locations. Focused-service
and compact full-service hotels typically generate most of their revenue from room rentals, have limited food and beverage outlets and
meeting space, and require fewer employees than traditional full-service hotels. We believe these types of hotels have the potential
to generate attractive returns relative to other types of hotels due to their ability to achieve RevPAR levels at or close to those achieved
by traditional full-service hotels while achieving higher profit margins due to their more efficient operating model and less volatile
cash flows.
As of June 30, 2024, we owned 97 hotel properties
with approximately 21,500 rooms, located in 23 states and the District of Columbia. We owned, through wholly-owned subsidiaries, a 100%
interest in 95 of our hotel properties, a 95% controlling interest in one hotel property, and a 50% non-controlling interest in an entity
owning one hotel property. We consolidate our real estate interests in the 96 hotel properties in which we hold a controlling interest,
and we record the real estate interest in the one hotel property in which we hold an indirect 50% non-controlling interest using the
equity method of accounting. We lease 96 of the 97 hotel properties to our taxable REIT subsidiaries (“TRSs”), of which we
own a controlling financial interest.
For U.S. federal income tax purposes, we elected
to be taxed as a REIT commencing with our taxable year ended December 31, 2011. Substantially all of our assets and liabilities
are held by, and all of our operations are conducted through our Operating Partnership. We are the sole general partner of the Operating
Partnership. As of June 30, 2024, we owned, through a combination of direct and indirect interests, 99.5% of the units of limited
partnership interest in the Operating Partnership (“OP Units”).
Our principal executive offices are located at
7373 Wisconsin Avenue, Suite 1500, Bethesda, Maryland 20814. Our telephone number is (301) 280-7777. Our website is located
at www.rljlodgingtrust.com. The information that is found on or accessible through our website is not incorporated into, and does not
form a part of, this prospectus or any applicable prospectus supplement. We have included our website address as an inactive textual
reference and do not intend it to be an active link to our website.
Risk
Factors
Investing
in our securities involves a high degree of risk. You should carefully consider the risk factors set forth in our Annual Report on Form 10-K for the fiscal year ended December 31, 2023 and our Quarterly Reports for the quarterly periods ended March 31, 2024
and June 30, 2024, together with all the other information contained or incorporated by reference into this prospectus, including
the risks we have highlighted in other sections of this prospectus, before making an investment decision to purchase our securities.
The occurrence of any of the events described could materially and adversely affect our business, prospects, financial condition, results
of operations and our ability to make cash distributions to our shareholders, which could cause you to lose all or a significant part
of your investment in our securities. Some statements in this prospectus constitute forward-looking statements. Please refer to the section
entitled “Cautionary Note Regarding Forward-Looking Statements.”
USE
OF PROCEEDS
Unless otherwise described in the applicable prospectus
supplement to this prospectus used to offer specific securities, we intend to use the net proceeds from the sale of securities under
this prospectus for general corporate purposes, which may include acquisitions of additional properties, the repayment of outstanding
indebtedness, capital expenditures, the expansion, redevelopment and/or improvement of properties in our portfolio, working capital,
share repurchases, the payment of dividends and other general purposes.
DESCRIPTION OF COMMON SHARES
The following summary of our common shares
and certain provisions of Maryland law and our declaration of trust and bylaws does not purport to be complete and is subject to and
qualified in its entirety by reference to Maryland law and to our declaration of trust and bylaws, copies of which are filed as exhibits
to the registration statement of which this prospectus is a part. See “Where You Can Find More Information and Incorporation by
Reference.”
General
Our declaration of trust provides that we may
issue up to 450,000,000 common shares, par value $0.01 per share. Our declaration of trust authorizes our board of trustees to amend
our declaration of trust to increase or decrease the aggregate number of authorized common shares without shareholder approval. As of
August 20, 2024, 154,890,750 common shares were issued and outstanding.
Maryland law provides, and our declaration of
trust provides, that none of our shareholders is personally liable for any of our obligations solely as a result of that shareholder’s
status as a shareholder.
Voting Rights
Subject to the provisions of our declaration of
trust regarding the restrictions on transfer and ownership of shares of beneficial interest and except as may otherwise be specified
in the terms of any class or series of shares of beneficial interest, each outstanding common share entitles the holder to one vote on
all matters submitted to a vote of shareholders, including the election of trustees, and, except as provided with respect to any other
class or series of shares of beneficial interest, the holders of such common shares will possess the exclusive voting power. There is
no cumulative voting in the election of trustees.
Under the Maryland statute governing real estate
investment trusts formed under the laws of that state (the “Maryland REIT law”), a Maryland real estate investment trust
generally cannot amend its declaration of trust or merge with another entity unless declared advisable by a majority of its board of
trustees and approved by the affirmative vote of shareholders holding at least two-thirds of the shares entitled to vote on the matter
unless a lesser percentage (but not less than a majority of all the votes entitled to be cast on the matter) is set forth in the real
estate investment trust’s declaration of trust. Our declaration of trust provides that these actions (other than certain amendments
to the provisions of the declaration of trust related to the removal of trustees, the restrictions on ownership and transfer of shares,
the termination of our existence and the provision imposing a higher voting threshold for amending those provisions of the declaration
of trust) may be taken if declared advisable by a majority of our board of trustees and approved by the vote of shareholders holding
a majority of the votes entitled to be cast on the matter.
Dividends, Distributions, Liquidation and Other Rights
Subject to the preferential rights of any other
class or series of shares (including the Series A Preferred Shares (as defined below)) and to the provisions of our declaration
of trust regarding the restrictions on transfer and ownership of shares, holders of our common shares are entitled to receive dividends
on such common shares if, as and when authorized by the board of trustees, and declared by us out of assets legally available therefor.
Such holders also are entitled to share ratably in the assets of our company legally available for distribution to shareholders in the
event of our liquidation, dissolution or winding up after payment or establishment of reserves for all debts and other liabilities of
our company and any shares with preferential rights related thereto.
Holders of common shares have no preference, conversion,
exchange, sinking fund or redemption rights, have no preemptive rights to subscribe for any securities of our company and have no appraisal
rights. Subject to the provisions of our declaration of trust regarding the restrictions on transfer and ownership of shares, common
shares will have equal dividend, liquidation and other rights.
Power to Reclassify Our Unissued Common Shares or Preferred Shares
Our declaration of trust authorizes our board
of trustees to classify and reclassify any unissued common shares or preferred shares into other classes or series of shares and to establish
the number of shares in each class or series and to set the preferences, conversion and other rights, voting powers, restrictions, limitations
as to dividends or other distributions, qualifications or terms or conditions of redemption for each such class or series.
Power to Increase or Decrease Authorized Common Shares and Issue
Additional Common and Preferred Shares
We believe that the power of our board of trustees
to amend our declaration of trust to increase or decrease the number of authorized shares, to issue additional authorized but unissued
common shares or preferred shares and to classify or reclassify unissued common shares or preferred shares and thereafter to cause to
issue such classified or reclassified shares will provide us with increased flexibility in structuring possible future financings and
acquisitions and in meeting other needs that might arise. The additional classes or series will be available for issuance without further
action by our shareholders, unless such action is required by applicable law or the rules of any stock exchange or automated quotation
system on which our securities may be listed or traded.
Restrictions on Ownership and Transfer
With certain exceptions, our declaration of trust
generally prohibits any person or entity (other than a person or entity who has been granted an exception) from directly or indirectly,
beneficially or constructively, owning more than 9.8% of the aggregate of our outstanding common shares, by value or by number of shares,
whichever is more restrictive. However, our declaration of trust permits (but does not require) exceptions to be made for shareholders
provided that our board of trustees determines that such exceptions will not jeopardize our qualification as a REIT. For more information
regarding these ownership restrictions and certain other restrictions intended to protect our qualification as a REIT, see “Restrictions
on Ownership and Transfer.”
Stock Exchange Listing
Our common shares are listed on the NYSE under
the symbol “RLJ.”
Transfer Agent and Registrar
The transfer agent and registrar for our common
shares is EQ Shareowner Services.
Certain Provisions of Maryland Law and Our Declaration of Trust
and Bylaws
Our Board of Trustees
Our declaration of trust and bylaws provide that
the number of trustees of our company may be established by our board of trustees, but may not be fewer than two nor more than 15. Our
declaration of trust and bylaws provide that any vacancy, including a vacancy created by an increase in the number of trustees, may be
filled by a majority of the remaining trustees, even if the remaining trustees do not constitute a quorum. Any individual elected to
fill such vacancy will serve for the remainder of the full term and until a successor is duly elected and qualifies.
Pursuant to our bylaws, each of our trustees will
be elected by our shareholders to serve until the next annual meeting of shareholders and until his or her successor is duly elected
and qualifies under Maryland law. Holders of our common shares will have no right to cumulative voting in the election of trustees. Trustees
will be elected by a majority of all the votes cast at a meeting of shareholders duly called and at which a quorum is present; provided,
however, that if on the record date for such meeting the number of trustee nominees exceeds the number of trustees to be elected, then
a plurality of all the votes cast at a meeting of shareholders duly called and at which a quorum is present shall be sufficient. For
purposes of the election of trustees, a majority of the votes cast means the number of shares voted for a trustee must exceed the number
of shares voted against that trustee. Any incumbent trustee who does not receive a majority of the votes cast by shareholders entitled
to vote with respect to the election of that trustee shall tender his or her resignation to the board of trustees within three (3) days
after certification of the results, for consideration by the nominating and corporate governance committee of our board of trustees.
The nominating and corporate governance committee will make a recommendation to our board of trustees on whether to accept or reject
the resignation, or whether other action should be taken. Our board of trustees will act on the recommendation and publicly disclose
its decision and the rationale behind it within 90 days from the date of the certification of the election results. The trustee who tenders
his or her resignation will not participate in our board of trustee’s decision. Notwithstanding the foregoing, our board of trustees
shall be required to accept any resignation tendered by an incumbent trustee if such trustee shall have received more votes against than
for his or her election at two consecutive annual meetings of shareholders for the election of trustees at which a quorum was present
and the number of trustee nominees equaled the number of trustees to be elected at each such annual meeting of shareholders.
Our bylaws provide that at least a majority of
our trustees must be “independent,” with independence being defined in the manner established by our board of trustees and
in a manner consistent with listing standards established by the NYSE.
Removal of Trustees
Our declaration of trust provides that, subject
to the rights of holders of one or more classes or series of preferred shares to elect or remove one or more trustees, a trustee may
be removed only for cause (as defined in our declaration of trust) and only by the affirmative vote of at least two-thirds of the votes
entitled to be cast generally in the election of trustees.
Business Combinations
Under provisions of the Maryland General Corporation
Law (“MGCL”) that apply to Maryland real estate investment trusts, certain “business combinations” (including
a merger, consolidation, share exchange or, in certain circumstances specified under the statute, an asset transfer or issuance or reclassification
of equity securities) between a Maryland real estate investment trust and any interested shareholder, or an affiliate of such an interested
shareholder, are prohibited for five years after the most recent date on which the interested shareholder becomes an interested shareholder.
Maryland law defines an interested shareholder as:
| · | any person who beneficially owns, directly or indirectly, 10% or more
of the voting power of the real estate investment trust’s outstanding voting shares;
or |
| · | an affiliate or associate of the real estate investment trust who,
at any time within the two-year period prior to the date in question, was the beneficial
owner, directly or indirectly, of 10% or more of the voting power of the then-outstanding
voting shares of the real estate investment trust. |
A person is not an interested shareholder under
the statute if the board of trustees approves in advance the transaction by which the person otherwise would have become an interested
shareholder. In approving a transaction, however, the board of trustees may provide that its approval is subject to compliance at or
after the time of the approval, with any terms and conditions determined by the board of trustees.
After the five-year prohibition, unless, among
other conditions, the real estate investment trust’s common shareholders receive a minimum price (as described under Maryland law)
for their shares and the consideration is received in cash or in the same form as previously paid by the interested shareholder for its
shares, any business combination between the real estate investment trust and an interested shareholder generally must be recommended
by the board of trustees and approved by the affirmative vote of at least:
| · | 80% of the votes entitled to be cast by holders of outstanding voting
shares of the real estate investment trust; and |
| · | two-thirds of the votes entitled to be cast by holders of voting shares
of the real estate investment trust other than shares held by the interested shareholder
with whom (or with whose affiliate) the business combination is to be effected or shares
held by an affiliate or associate of the interested shareholder. |
These provisions of the MGCL do not apply, however,
to business combinations that are approved or exempted by a real estate investment trust’s board of trustees prior to the time
that the interested shareholder becomes an interested shareholder. Our board of trustees, pursuant to the statute, has determined to
opt out of the business combination provisions of the MGCL and, consequently, the five-year prohibition and, accordingly, the supermajority
vote requirements will not apply to business combinations between us and an interested shareholder, unless our board in the future alters
or repeals this resolution. As a result, any person who later becomes an interested shareholder may be able to enter into business combinations
with our company without compliance by us with the supermajority vote requirements and the other provisions of the statute.
Our board of trustees may not determine to become
subject to such business combination provisions in the future without shareholder approval. An alteration or repeal of the resolution
of our board of trustees will not have any effect on any business combinations that have been consummated or upon any agreements existing
at the time of such modification or repeal.
Control Share Acquisitions
Maryland law provides that “control shares”
of a Maryland real estate investment trust acquired in a “control share acquisition” have no voting rights except to the
extent approved at a special meeting of shareholders by the affirmative vote of two-thirds of the votes entitled to be cast on the matter,
excluding shares in a Maryland real estate investment trust in respect of which any of the following persons is entitled to exercise
or direct the exercise of the voting power of such shares in the election of trustees: (1) a person who makes or proposes to make
a control share acquisition; (2) an officer of the real estate investment trust; or (3) an employee of the real estate investment
trust who is also a trustee of the real estate investment trust. “Control shares” are voting shares that, if aggregated with
all other such shares previously acquired by the acquirer or in respect of which the acquirer is able to exercise or direct the exercise
of voting power (except solely by virtue of a revocable proxy), would entitle the acquirer to exercise voting power in electing trustees
within one of the following ranges of voting power:
| · | one-tenth or more but less than one-third; |
| | | |
| · | one-third or more but less than a majority; or |
| | | |
| · | a majority or more of all voting power. |
Control shares do not include shares the acquiring person is then
entitled to vote as a result of having previously obtained shareholder approval. A “control share acquisition” means the
acquisition, directly or indirectly, of ownership of, or the power to direct the exercise of voting power with respect to, issued and
outstanding control shares, subject to certain exceptions.
A person who has made or proposes to make a control
share acquisition, upon satisfaction of certain conditions (including an undertaking to pay expenses and making an “acquiring person
statement” as described in the MGCL), may compel our board of trustees to call a special meeting of shareholders to be held within
50 days of demand to consider the voting rights of the control shares. If no request for a special meeting is made, we may present
the question at any shareholders meeting.
If voting rights of control shares are not approved
at the meeting or if the acquiring person does not deliver an “acquiring person statement” as required by Maryland law, then,
subject to certain conditions and limitations, the real estate investment trust may redeem any or all of the control shares (except those
for which voting rights have previously been approved) for fair value. Fair value is determined, without regard to the absence of voting
rights for the control shares, as of the date of the last control share acquisition by the acquirer or of any meeting of shareholders
at which the voting rights of such shares are considered and not approved. If voting rights for control shares are approved at a shareholders
meeting and the acquirer becomes entitled to vote a majority of the shares entitled to vote, all other shareholders may exercise appraisal
rights, unless appraisal rights are eliminated under the declaration of trust. Our declaration of trust eliminates all appraisal rights
of shareholders. The control share acquisition statute does not apply (1) to shares acquired in a merger, consolidation or share
exchange if the issuer is a party to the transaction or (2) to acquisitions approved or exempted by the declaration of trust or
bylaws of the real estate investment trust.
Our bylaws contain a provision exempting from
the control share acquisition statute any and all acquisitions by any person of our common shares. Our board of trustees may not amend
or eliminate such provision without shareholder approval.
Subtitle 8
Subtitle 8 of Title 3 of the MGCL permits a Maryland
real estate investment trust with a class of equity securities registered under the Exchange Act and at least three independent trustees
to elect to be subject, by provision in its declaration of trust or bylaws or a resolution of its board of trustees and notwithstanding
any contrary provision in the declaration of trust or bylaws, to any or all of the following five provisions:
| |
· |
a classified board; |
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|
| |
· |
a two-thirds shareholder vote requirement for removing a trustee; |
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|
| |
· |
a requirement that the number of trustees be fixed only by vote of the trustees; |
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· |
a requirement that a vacancy on the board be filled only by the remaining trustees and for the remainder of the full term of the class of trustees in which the vacancy occurred; and |
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· |
a requirement that requires the request of the holders of at least a majority of all votes entitled to be cast to call a special meeting of shareholders. |
We have opted out of all of the provisions of
Subtitle 8 through provisions contained in our declaration of trust, as amended and supplemented, and must receive the approval of a
majority of shareholders casting votes on the matter to opt in to any of the provisions of Subtitle 8; however, pursuant to provisions
in our declaration of trust and bylaws unrelated to Subtitle 8, we currently (1) require the affirmative vote of the holders of
not less than two-thirds of all of the votes entitled to be cast on the matter for the removal of any trustee from our board, which removal
will be allowed only for cause, and (2) require, unless called by the Executive Chairman of our board of trustees, the President
or Chief Executive Officer or our board of trustees, the written request of shareholders entitled to cast a majority of all votes entitled
to be cast at such meeting to call a special meeting. In addition, provisions in our declaration of trust and bylaws provide that the
number of trustees may be determined by our board and that our trustees may fill vacancies on our board and, therefore, as a practical
matter, shareholders may not have the ability to determine the number of trustees on our board or to fill vacancies on our board other
than vacancies resulting from the removal of a trustee.
Amendment of Our Declaration of Trust and
Bylaws and Approval of Extraordinary Transactions
Under the Maryland REIT law, a Maryland real estate
investment trust generally cannot amend its declaration of trust or merge with another entity unless declared advisable by a majority
of the board of trustees and approved by the affirmative vote of shareholders entitled to cast at least two-thirds of the votes entitled
to be cast on the matter unless a lesser percentage, but not less than a majority of all of the votes entitled to be cast on the matter,
is set forth in the real estate investment trust’s declaration of trust. Our declaration of trust provides that such actions (other
than certain amendments to the provisions of our declaration of trust related to the removal of trustees, the restrictions on ownership
and transfer of our shares, termination of the real estate investment trust, and the provision imposing a higher voting threshold for
amending those provisions of the real estate investment trust’s declaration of trust) may be taken if declared advisable by a majority
of our board of trustees and approved by the vote of shareholders holding a majority of the votes entitled to be cast on the matter.
Our bylaws may be altered, amended or repealed,
and new bylaws adopted, by the vote of a majority of the board of trustees or by the affirmative vote of shareholders entitled to cast
not less than a majority of all the votes entitled to be cast on the matter.
Meetings of Shareholders
Under our bylaws, annual meetings of shareholders
will be held each year at a date and time as determined by our board of trustees. Special meetings of shareholders may be called only
by a majority of the trustees then in office, by the executive chairman of our board of trustees, our president or our chief executive
officer. Additionally, subject to the provisions of our bylaws, special meetings of the shareholders shall be called by our secretary
upon the written request of shareholders entitled to cast at least a majority of the votes entitled to be cast at such meeting. Only
matters set forth in the notice of the special meeting may be considered and acted upon at such a meeting. Maryland law and our bylaws
provide that any action required or permitted to be taken at a meeting of shareholders may be taken without a meeting by unanimous written
consent, if that consent sets forth that action and is signed by each shareholder entitled to vote on the matter.
Advance Notice of Trustee Nominations and
New Business
Our bylaws provide that, with respect to an annual
meeting of shareholders, nominations of persons for election to our board of trustees and the proposal of business to be considered by
shareholders at the annual meeting may be made only:
| · | pursuant to our notice of the meeting; |
| | | |
| · | by or at the direction of our board of trustees; or |
| | | |
| · | by a shareholder who was a shareholder of record both at the time of
giving of the notice of the meeting and at the time of the annual meeting, who is entitled
to vote at the meeting and who has complied with the advance notice procedures set forth
in our bylaws. |
With respect to special meetings of shareholders,
only the business specified in our notice of the meeting may be brought before the meeting of shareholders. Nominations of persons for
election to our board of trustees may be made only:
| · | pursuant to our notice of the meeting; |
| · | by or at the direction of our board of trustees; or |
| · | provided that our board of trustees has determined that trustees shall
be elected at such meeting, by a shareholder who is a shareholder of record both at the time
of giving of the notice required by our bylaws and at the time of the meeting, who is entitled
to vote at the meeting and who has complied with the advance notice provisions set forth
in our bylaws. |
The purpose of requiring shareholders to give
advance notice of nominations and other proposals is to afford our board of trustees the opportunity to consider the qualifications of
the proposed nominees or the advisability of the other proposals and, to the extent considered necessary by our board of trustees, to
inform shareholders and make recommendations regarding the nominations or other proposals. The advance notice procedures also permit
a more orderly procedure for conducting our shareholder meetings. Although our bylaws do not give our board of trustees the power to
disapprove timely shareholder nominations and proposals, our bylaws may have the effect of precluding a contest for the election of trustees
or proposals for other action if the proper procedures are not followed, and of discouraging or deterring a third party from conducting
a solicitation of proxies to elect its own slate of trustees to our board of trustees or to approve its own proposal.
Anti-takeover Effect of Certain Provisions
of Maryland Law and Our Declaration of Trust and Bylaws
The provisions of our declaration of trust on
removal of trustees and the advance notice provisions of our bylaws could delay, defer or prevent a transaction or a change in control
of our company that might involve a premium price for holders of our common shares or otherwise be in the best interests of our shareholders.
Likewise, if our board of trustees were to opt into the business combination provisions of the MGCL or certain of the provisions of Subtitle
8 of Title 3 of the MGCL, with shareholder approval, or if the provision in our bylaws opting out of the control share acquisition provisions
of the MGCL were amended or rescinded, these provisions of the MGCL could have similar anti-takeover effects.
Indemnification and Limitation of Trustees’
and Officers’ Liability
The Maryland REIT law permits a Maryland real
estate investment trust to include in its declaration of trust a provision limiting the liability of its trustees and officers to the
real estate investment trust and its shareholders for money damages except for liability resulting from actual receipt of an improper
benefit or profit in money, property or services or active and deliberate dishonesty established by a final judgment as being material
to the cause of action. Our declaration of trust contains such a provision that eliminates such liability to the maximum extent permitted
by Maryland law.
The Maryland REIT law permits a Maryland real
estate investment trust to indemnify and advance expenses to its trustees, officers, employees and agents to the same extent as permitted
by the MGCL for directors and officers of a Maryland corporation. The MGCL permits a corporation to indemnify its present and former
directors and officers, among others, against judgments, penalties, fines, settlements and reasonable expenses actually incurred by them
in connection with any proceeding to which they may be made or are threatened to be made a party by reason of their service in those
or other capacities unless it is established that:
| · | the act or omission of the director or officer was material to the
matter giving rise to the proceeding and (1) was committed in bad faith or (2) 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. |
However, under the MGCL, a Maryland corporation
may not indemnify a director or officer for an adverse judgment in a suit by or in the right of the corporation or if the director or
officer was adjudged liable on the basis that personal benefit was improperly received, unless in either case a court orders indemnification
and then only for expenses.
In addition, the MGCL permits a corporation to
advance reasonable expenses to a director or officer upon the corporation’s receipt of:
| · | a written affirmation by such director or officer of his or her good
faith belief that he or she has met the standard of conduct necessary for indemnification
by the corporation; and |
| · | a written undertaking by such director or officer or on such director’s
or officer’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. |
Our declaration of trust and bylaws obligate us,
to the maximum extent permitted by Maryland law in effect from time to time, to indemnify and to pay or reimburse reasonable expenses
in advance of final disposition of a proceeding to:
| · | any present or former trustee or officer (including any individual
who, at our request, serves or has served as a director, trustee, officer, partner, member,
employee or agent of another real estate investment trust, corporation, partnership, company,
joint venture, trust, employee benefit plan or any other enterprise) against any claim or
liability to which he or she may become subject by reason of service in such capacity; and |
| · | any present or former trustee or officer who has been successful in
the defense of a proceeding to which he or she was made a party by reason of service in such
capacity. |
Our declaration of trust and bylaws also permit
us, with the approval of our board of trustees, to indemnify and advance expenses to any person who served a predecessor of ours in any
of the capacities described above and to any employee or agent of our company or a predecessor of our company.
In addition, we have entered into indemnification
agreements with each of our trustees and executive officers that provide for indemnification to the maximum extent permitted by Maryland
law.
Insofar as the foregoing provisions permit indemnification
of trustees, officers or persons controlling us for liability arising under the Securities Act, we have been informed that, in the opinion
of the SEC, this indemnification is against public policy as expressed in the Securities Act and is therefore unenforceable.
REIT Qualification
Our declaration of trust provides that our board
of trustees may revoke or otherwise terminate our REIT election, without approval of our shareholders, if our board of trustees determines
that it is no longer in our best interests to attempt to qualify, or to continue to qualify, as a REIT.
DESCRIPTION
OF PREFERRED SHARES
General
Our declaration of trust provides that we may
issue up to 50,000,000 preferred shares, par value $0.01 per share. Our declaration of trust authorizes our board of trustees to amend
our declaration of trust to increase or decrease the aggregate number of authorized shares of any class or series without shareholder
approval.
Outstanding Preferred Stock
As of August 20, 2024, 12,879,475 shares
of our $1.95 Series A Cumulative Convertible Preferred Shares (the “Series A Preferred Shares”) were issued and
outstanding.
Our Series A Preferred Shares rank, with
respect to rights to receive dividends and to participate in distributions of payments in the event of a dissolution, liquidation or
winding up of the affairs of the Company, senior to our common shares and to any other class of securities of the Company designated
as ranking junior to the Series A Preferred Shares. We pay cumulative dividends on our Series A Preferred Shares equal to the
greater of $1.95 per annum or the cash distributions declared or paid for the corresponding period on the number of common shares, or
portion thereof, into which a Series A Preferred Share is convertible. Dividends on our Series A Preferred Shares are payable
quarterly on or about the last calendar day of January, April, July and October, commencing on October 31, 2017. If we liquidate,
dissolve or windup, holders of our Series A Preferred Shares will have the right to receive $25 per Series A Preferred Share,
plus an amount per share equal to all accrued and unpaid dividends (whether or not earned or declared) to, but not including, the date
of payment, before any payments are made to holders of our common shares or other junior securities. On or after August 30, 2017,
we may, at our option, redeem the Series A Preferred Shares, in whole or in part, at any time, only if for twenty (20) days on which
the Series A Preferred Shares are traded on the NYSE (“Trading Days”) within any period of thirty (30) consecutive Trading
Days, including the last Trading Day of such period, the current market price of the common shares on each of such twenty (20) Trading
Days equals or exceeds the Conversion Price (as defined below). The “Conversion Price” is the conversion price per common
share for which the Series A Preferred Shares is convertible, subject to certain adjustments as described in the articles supplementary
setting forth the terms of the Series A Preferred Shares. Any shares of Series A Preferred Shares so redeemed, at our option,
will (i) be converted into a number of common shares equal to the liquidation preference (excluding any accrued and unpaid dividends)
of the Series A Preferred Shares being redeemed divided by the Conversion Price as of the opening of business on the specified date
of redemption (the “Call Date”), or (ii) be redeemed in cash at a price equal to the aggregate market value (determined
as of the date of the notice of redemption) of the number of common shares into which the Series A Preferred Shares are then convertible
divided by the then current Conversion Price. Upon any redemption of the Series A Preferred Shares, we will also pay any accrued
and unpaid dividends for full dividend payment periods ending on or prior to the Call Date. Further, holders of our Series A Preferred
Shares have the right, at any time, to convert all or a portion of such shares into the number of common shares obtained by dividing
the aggregate liquidation preference (excluding any accrued and unpaid dividends) of such shares by the Conversion Price. Except in certain
limited circumstances, holders of our Series A Preferred Shares have no voting rights.
Our Series A Preferred Shares are listed
on the NYSE under the symbol “RLJ-PA.”
Future Series of Preferred Stock
The following description sets forth certain general
terms of the preferred shares to which any prospectus supplement may relate. This description and the description contained in any prospectus
supplement are not complete and are in all respects subject to and qualified in their entirety by reference to our declaration of trust,
the applicable articles supplementary that describes the terms of the related class or series of preferred shares, and our bylaws, each
of which we will make available upon request.
Subject to the limitations prescribed by Maryland
law and our declaration of trust and bylaws, our board of trustees is authorized to establish the number of shares constituting each
series of preferred shares and to fix the preferences, conversion or other rights, voting powers, restrictions, limitations as to dividends
or other distributions, qualifications, terms and conditions of redemption, and such other subjects or matters as may be fixed by resolution
of the board of trustees or duly authorized committee thereof. The preferred shares will, when issued, be fully paid and nonassessable
and will not have, or be subject to, any preemptive or similar rights.
The prospectus supplement relating to the series
of preferred shares offered thereby will describe the specific terms of such securities, including:
| · | the title and stated value of such preferred shares; |
| · | the number of such preferred shares offered, the liquidation preference
per share and the offering price of such preferred shares; |
| · | the dividend rate(s), period(s) and/or payment date(s) or
method(s) of calculation thereof applicable to such preferred shares; |
| · | whether dividends shall be cumulative or non-cumulative and, if cumulative,
the date from which dividends on such preferred shares shall accumulate; |
| · | the procedures for any auction and remarketing, if any, for such preferred
shares; |
| · | the provisions for a sinking fund, if any, for such preferred shares; |
| · | the provisions for redemption or repurchase, if applicable, of such
preferred shares; |
| · | any listing of such preferred shares on any securities exchange; |
| · | the terms and conditions, if applicable, upon which such preferred
shares will be convertible into our common shares, including the conversion price (or manner
of calculation thereof) and conversion period; |
| · | material federal income tax considerations applicable to such preferred
shares; |
| · | any limitations on issuance of any series of preferred shares ranking
senior to or on a parity with such series of preferred shares as to dividend rights and rights
upon liquidation, dissolution or winding up of our affairs; |
| · | in addition to those limitations described below, any other limitations
on actual and constructive ownership and restrictions on transfer, in each case as may be
appropriate to preserve our status as a REIT; and |
| · | any other specific terms, preferences, rights, limitations or
restrictions of such preferred shares. |
Restrictions on Ownership
With certain exceptions, our declaration of trust
generally prohibits any person or entity (other than a person or entity who has been granted an exception) from directly or indirectly,
beneficially or constructively, owning more than 9.8% of the aggregate of our outstanding preferred shares of any class or series, by
value or by number of shares, whichever is more restrictive. For more information regarding these ownership restrictions and certain
other restrictions intended to protect our qualification as a REIT, see “Restrictions on Ownership and Transfer.”
Transfer Agent and Registrar
The transfer agent and registrar for our Series A
Preferred Shares is EQ Shareowner Services. The transfer agent and registrar for any future series of preferred shares will be set forth
in the applicable prospectus supplement.
Certain Provisions of Maryland Law and Our Charter and Bylaws
See “Description of Common Shares—Certain
Provisions of Maryland Law and Our Charter and Bylaws.”
DESCRIPTION OF DEPOSITARY SHARES
General
We may issue receipts for depositary shares, each
of which will represent a fractional interest of a preferred share of a particular series, as specified in the applicable prospectus
supplement. Preferred shares of each series represented by depositary shares will be deposited under a separate deposit agreement among
us, the depositary named therein and the holders from time to time of the depositary receipts. Subject to the terms of the applicable
deposit agreement, each owner of a depositary receipt will be entitled, in proportion to the fractional interest of a preferred share
of a particular series represented by the depositary shares evidenced by such depositary receipt, to all the rights and preferences of
the preferred shares represented by such depositary shares (including dividend, voting, conversion, redemption and liquidation rights).
The depositary shares will be evidenced by depositary
receipts issued pursuant to the applicable deposit agreement. Immediately following the issuance and delivery of the preferred shares
by us to a preferred share depositary, we will cause such preferred shares depositary to issue, on our behalf, the depositary receipts.
Copies of the applicable form of deposit agreement and depositary receipt may be obtained from us upon request, and the statements made
hereunder relating to the deposit agreement and the depositary receipts to be issued thereunder are summaries of certain provisions thereof
and do not purport to be complete and are subject to, and qualified in their entirety by reference to, all of the provisions of the applicable
deposit agreement and related depositary receipts.
Dividends and Other Distributions
The preferred share depositary will distribute
all cash dividends or other cash distributions received in respect of the preferred shares to the record holders of depositary receipts
evidencing the related depositary shares in proportion to the number of such depositary receipts owned by such holders, subject to certain
obligations of holders to file proofs, certificates and other information and to pay certain charges and expenses to the preferred shares
depositary.
In the event of a distribution other than in cash,
the preferred shares depositary will distribute property received by it to the record holders of depositary receipts entitled thereto,
subject to certain obligations of holders to file proofs, certificates and other information and to pay certain charges and expenses
to the preferred shares depositary, unless the preferred shares depositary determines that it is not feasible to make such distribution,
in which case the preferred shares depositary may, with our approval, sell such property and distribute the net proceeds from such sale
to such holders.
No distribution will be made in respect of any
depositary share to the extent that it represents any preferred shares converted into other securities.
Withdrawal of Shares
Upon surrender of the depositary receipts at the
corporate trust office of the applicable preferred shares depositary (unless the related depositary shares have previously been called
for redemption or converted into other securities), the holders thereof will be entitled to delivery at such office, to or upon such
holder’s order, of the number of whole or fractional preferred shares and any money or other property represented by the depositary
shares evidenced by such depositary receipts. Holders of depositary receipts will be entitled to receive whole or fractional preferred
shares on the basis of the proportion of preferred shares represented by each depositary share as specified in the applicable prospectus
supplement, but holders of such preferred shares will not thereafter be entitled to receive depositary shares therefor. If the depositary
receipts delivered by the holder evidence a number of depositary shares in excess of the number of depositary shares representing the
number of preferred shares to be withdrawn, the preferred shares depositary will deliver to such holder at the same time a new depositary
receipt evidencing such excess number of depositary shares.
Redemption of Depositary Shares
Whenever we redeem preferred shares held by the
preferred shares depositary, the preferred shares depositary will redeem as of the same redemption date the number of depositary shares
representing preferred shares so redeemed, provided we shall have paid in full to the preferred shares depositary the redemption price
of the preferred shares to be redeemed plus an amount equal to any accrued and unpaid dividends thereon to the date fixed for redemption.
The redemption price per depositary share will be equal to the corresponding proportion of the redemption price and any other amounts
per share payable with respect to the preferred shares. If fewer than all the depositary shares are to be redeemed, the depositary shares
to be redeemed will be selected pro rata (as nearly as may be practicable without creating fractional depositary shares) or by any other
equitable method determined by us that will not result in a violation of the ownership restrictions in our declaration of trust. See
“Restrictions on Ownership and Transfer.”
From and after the date fixed for redemption,
all dividends in respect of the preferred shares so called for redemption will cease to accrue, the depositary shares so called for redemption
will no longer be deemed to be outstanding and all rights of the holders of the depositary receipts evidencing the depositary shares
so called for redemption will cease, except the right to receive any moneys payable upon such redemption and any money or other property
to which the holders of such depositary receipts were entitled upon such redemption and surrender thereof to the preferred shares depositary.
Voting of the Preferred Shares
Upon receipt of notice of any meeting at which
the holders of the applicable preferred shares are entitled to vote, the preferred shares depositary will mail the information contained
in such notice of meeting to the record holders of the depositary receipts evidencing the depositary shares which represent such preferred
shares. Each record holder of depositary receipts evidencing depositary shares on the record date (which will be the same date as the
record date for the preferred shares) will be entitled to instruct the preferred shares depositary as to the exercise of the voting rights
pertaining to the amount of preferred shares represented by such holder’s depositary shares. The preferred shares depositary will
vote the amount of preferred shares represented by such depositary shares in accordance with such instructions, and we will agree to
take all reasonable action which may be deemed necessary by the preferred shares depositary in order to enable the preferred shares depositary
to do so. The preferred shares depositary will abstain from voting the amount of preferred shares represented by such depositary shares
to the extent it does not receive specific instructions from the holders of depositary receipts evidencing such depositary shares. The
preferred shares depositary shall not be responsible for any failure to carry out any instruction to vote, or for the manner or effect
of any such vote made, as long as any such action or non-action is in good faith and does not result from negligence or willful misconduct
of the preferred shares depositary.
Liquidation Preference
In the event of our liquidation, dissolution or
winding up, whether voluntary or involuntary, the holders of each depositary receipt will be entitled to the fraction of the liquidation
preference accorded each preferred share represented by the depositary shares evidenced by such depositary receipt, as set forth in the
applicable prospectus supplement.
Conversion of Preferred Shares
The depositary shares, as such, are not convertible
into common shares or any of our other securities or property. Nevertheless, if so specified in the applicable prospectus supplement
relating to an offering of depositary shares, the depositary receipts may be surrendered by holders thereof to the preferred shares depositary
with written instructions to the preferred shares depositary to instruct us to cause conversion of the preferred shares represented by
the depositary shares evidenced by such depositary receipts into whole common shares, other preferred shares, and we have agree that
upon receipt of such instructions and any amounts payable in respect thereof, we will cause the conversion thereof utilizing the same
procedures as those provided for delivery of preferred shares to effect such conversion. If the depositary shares evidenced by a depositary
receipt are to be converted in part only, a new depositary receipt or receipts will be issued for any depositary shares not to be converted.
No fractional common shares will be issued upon conversion, and if such conversion would result in a fractional share being issued, an
amount will be paid in cash by us equal to the value of the fractional interest based upon the closing price of the common shares on
the last business day prior to the conversion.
Amendment and Termination of Deposit
Agreement
The form of depositary receipt evidencing the
depositary shares which represent the preferred shares and any provision of the deposit agreement may at any time be amended by agreement
between us and the preferred shares depositary. However, any amendment that materially and adversely alters the rights of the holders
of depositary receipts or that would be materially and adversely inconsistent with the rights granted to the holders of the related preferred
shares will not be effective unless such amendment has been approved by the existing holders of at least two-thirds of the applicable
depositary shares evidenced by the applicable depositary receipts then outstanding. No amendment shall impair the right, subject to certain
exceptions in the deposit agreement, of any holder of depositary receipts to surrender any depositary receipt with instructions to deliver
to the holder the related preferred shares and all money and other property, if any, represented thereby, except in order to comply with
law. Every holder of an outstanding depositary receipt at the time any such amendment becomes effective shall be deemed, by continuing
to hold such receipt, to consent and agree to such amendment and to be bound by the deposit agreement as amended thereby.
The deposit agreement may be terminated by us
upon not less than 30 days’ prior written notice to the preferred shares depositary if (i) such termination is necessary
to preserve our status as a REIT or (ii) a majority of each series of preferred shares affected by such termination consents
to such termination, whereupon the preferred shares depositary shall deliver or make available to each holder of depositary receipts,
upon surrender of the depositary receipts held by such holder, such number of whole or fractional preferred shares as are represented
by the depositary shares evidenced by such depositary receipts together with any other property held by the preferred shares depositary
with respect to such depositary receipts. We have agreed that if the deposit agreement is terminated to preserve our status as a REIT,
then we will use our best efforts to list the preferred shares issued upon surrender of the related depositary shares on a national securities
exchange. In addition, the deposit agreement will automatically terminate if (i) all outstanding depositary shares shall have been
redeemed, (ii) there shall have been a final distribution in respect of the related preferred shares in connection with our liquidation,
dissolution or winding up and such distribution shall have been distributed to the holders of depositary receipts evidencing the depositary
shares representing such preferred shares or (iii) each related preferred share shall have been converted into our securities not
so represented by depositary shares.
Charges of Preferred Shares Depositary
We will pay all transfer and other taxes and governmental
charges arising solely from the existence of the deposit agreement. In addition, we will pay the fees and expenses of the preferred shares
depositary in connection with the performance of its duties under the deposit agreement. However, holders of depositary receipts will
pay the fees and expenses of the preferred shares depositary for any duties requested by such holders to be performed which are outside
of those expressly provided for in the deposit agreement.
Resignation and Removal of Depositary
The preferred shares depositary may resign at
any time by delivering to us notice of its election to do so, and we may at any time remove the preferred shares depositary, any such
resignation or removal to take effect upon the appointment of a successor preferred shares depositary. A successor preferred shares depositary
must be appointed within 60 days after delivery of the notice of resignation or removal and must be a bank or trust company having
its principal office in the United States and having a combined capital and surplus of at least $10,000,000.
Miscellaneous
The preferred shares depositary will forward to
holders of depositary receipts any reports and communications from the Company which are received by the preferred shares depositary
with respect to the related preferred shares.
Neither the preferred shares depositary nor the
Company will be liable if it is prevented from or delayed in, by law or any circumstances beyond its control, performing its obligations
under the deposit agreement. The obligations of us and the preferred shares depositary under the deposit agreement will be limited to
performing their duties thereunder in good faith and without negligence (in the case of any action or inaction in the voting of preferred
shares represented by the depositary shares), gross negligence or willful misconduct, and we and the preferred shares depositary will
not be obligated to prosecute or defend any legal proceeding in respect of any depositary receipts, depositary shares or preferred shares
represented thereby unless satisfactory indemnity is furnished. We and the preferred shares depositary may rely on written advice of
counsel or accountants, or information provided by persons presenting preferred shares represented thereby for deposit, holders of depositary
receipts or other persons believed in good faith to be competent to give such information, and on documents believed in good faith to
be genuine and signed by a proper party.
In the event the preferred shares depositary shall
receive conflicting claims, requests or instructions from any holders of depositary receipts, on the one hand, and us, on the other hand,
the preferred shares depositary shall be entitled to act on such claims, requests or instructions received from us.
Restrictions on Ownership
Holders of depositary receipts will be subject
to the ownership restrictions set forth in the declaration of trust. See “Restrictions on Ownership and Transfer.”
DESCRIPTION OF WARRANTS
We may offer by means of this prospectus warrants
for the purchase of our preferred shares, depositary shares representing preferred shares or common shares. We may issue warrants separately
or together with any other securities offered by means of this prospectus, and the warrants may be attached to or separate from such
securities. Each series of warrants will be issued under a separate warrant agreement to be entered into between us and a warrant agent
specified therein. The warrant agent will act solely as our agent in connection with the warrants of such series and will not assume
any obligation or relationship of agency or trust for or with any holders or beneficial owners of warrants.
The applicable prospectus supplement will describe
the following terms, where applicable, of the warrants in respect of which this prospectus is being delivered:
| · | the title and issuer of such warrants; |
| · | the aggregate number of such warrants; |
| · | the price or prices at which such warrants will be issued; |
| · | the currencies in which the price or prices of such warrants
may be payable; |
| · | the designation, amount and terms of the securities purchasable
upon exercise of such warrants; |
| · | the designation and terms of the other securities with which such warrants
are issued and the number of such warrants issued with each such security; |
| · | if applicable, the date on and after which such warrants and the securities
purchasable upon exercise of such warrants will be separately transferable; |
| · | the price or prices at which and currency or currencies in which the
securities purchasable upon exercise of such warrants may be purchased; |
| · | the date on which the right to exercise such warrants shall commence
and the date on which such right shall expire; |
| · | the minimum or maximum amount of such warrants which may be exercised
at any one time; |
| · | information with respect to book-entry procedures, if any; |
| · | material federal income tax considerations applicable to such warrants;
and |
| · | any other material terms of such warrants, including terms, procedures
and limitations relating to the exchange and exercise of such warrants. |
Restrictions on Ownership
Holders of warrants will be subject to the ownership
restrictions set forth in the declaration of trust. See “Restrictions on Ownership and Transfer.”
DESCRIPTION
OF RIGHTS
We may issue rights to our shareholders for the
purchase of common shares. Each series of rights will be issued under a separate rights agreement to be entered into between us and a
bank or trust company, as rights agent, all as set forth in the prospectus supplement relating to the particular issue of rights. The
rights agent will act solely as our agent in connection with the certificates relating to the rights of such series and will not assume
any obligation or relationship of agency or trust for or with any holders of rights certificates or beneficial owners of rights. The
rights agreement and the rights certificates relating to each series of rights will be filed with the SEC and incorporated by reference
as an exhibit to the registration statement of which this prospectus is a part.
The applicable prospectus supplement will describe
the terms of the rights to be issued, including the following, where applicable:
| · | the date for determining the shareholders entitled to the rights
distribution; |
| · | the aggregate number of common shares purchasable upon exercise
of such rights and the exercise price; |
| · | the aggregate number of rights being issued; |
| · | the date, if any, on and after which such rights may be transferable
separately; |
| · | the date on which the right to exercise such rights shall commence
and the date on which such right shall expire; |
| · | material federal income tax considerations applicable to such
rights; and |
| · | any other terms of such rights, including terms, procedures and limitations
relating to the distribution, exchange and exercise of such rights. |
Restrictions on Ownership
Holders of rights will be subject to the ownership
restrictions set forth in the declaration of trust. See “Restrictions on Ownership and Transfer.”
RESTRICTIONS
ON OWNERSHIP and transfer
In order to qualify as a real estate investment
trust (a “REIT”) under the Internal Revenue Code of 1986, as amended (the “Code”), our shares must be beneficially
owned by 100 or more persons during at least 335 days of a taxable year of 12 months (other than the first year for which an
election to be a REIT has been made) or during a proportionate part of a shorter taxable year. Also, no more than 50% of the value of
our outstanding shares (after taking into account options to acquire common shares) may be owned, directly, indirectly, or through attribution,
by five or fewer individuals (as defined in the Code to include certain entities) at any time during the last half of a taxable year
(other than the first year for which an election to be a REIT has been made).
Because our board of trustees believes that it
is essential for us to qualify as a REIT, our declaration of trust, subject to certain exceptions, contains restrictions on the number
of our shares of beneficial interest that a person may own.
In order to assist us in complying with the limitations
on the concentration of ownership of our shares imposed by the Code, our declaration of trust generally prohibits any person or entity
(other than a person or entity who has been granted an exception) from directly or indirectly, beneficially or constructively, owning
more than 9.8% of the aggregate of our outstanding common shares, by value or by number of shares, whichever is more restrictive, or
9.8% of the aggregate of the outstanding preferred shares of any class or series, by value or by number of shares, whichever is more
restrictive. However, our declaration of trust permits (but does not require) exceptions to be made for shareholders provided that our
board of trustees determines that such exceptions will not jeopardize our qualification as a REIT.
Our declaration of trust will also prohibit any
person from (1) beneficially or constructively owning our shares of beneficial interest that would result in our being “closely
held” under Section 856(h) of the Code, (2) transferring our shares if such transfer would result in us being beneficially
owned by fewer than 100 persons (determined without regard to any rules of attribution), (3) beneficially or constructively
owning our shares that would result in our owning (directly or constructively) 10% or more of the ownership interest in a tenant of our
real property if income derived from such tenant for our taxable year would result in more than a de minimis amount of non-qualifying
income for purposes of the REIT tests that, taking into account any other non-qualifying gross income of ours, would cause us to fail
to satisfy an applicable REIT gross income requirement, and (4) beneficially or constructively owning our shares that would cause
us otherwise to fail to qualify as a REIT, including, but not limited to, as a result of any “eligible independent contractor”
(as defined in Section 856(d)(9)(A) of the Code) that operates a “qualified lodging facility” (as defined in Section 856(d)(9)(D)(i) of
the Code) on behalf of a TRS failing to qualify as such. Any person who acquires or attempts or intends to acquire beneficial ownership
of our shares that will or may violate any of the foregoing restrictions on transferability and ownership will be required to give notice
immediately to us and provide us with such other information as we may request in order to determine the effect of such transfers on
our qualification as a REIT. The foregoing restrictions on transferability and ownership will not apply if our board of trustees determines
that it is no longer in our best interest to attempt to qualify, or to qualify, or to continue to qualify, as a REIT. In addition, our
board of trustees may determine that compliance with the foregoing restrictions is no longer required for our qualification as a REIT.
Our board of trustees, in its sole discretion,
may waive the 9.8% ownership limit for common shares or preferred shares for a shareholder that is not an individual if such shareholder
provides information and makes representations to the board that are satisfactory to the board, in its reasonable discretion, to establish
that such person’s ownership in excess of the 9.8% limit for common or preferred shares would not jeopardize our qualification
as a REIT. As a condition of granting the waiver, our board of trustees, in its sole discretion, may require a ruling from the Internal
Revenue Service (the “IRS”) or an opinion of counsel in either case in form and substance satisfactory to our board of trustees
in order to determine or ensure our qualification as a REIT.
In addition, our board of trustees from time to
time may increase the share ownership limits. However, the share ownership limits may not be increased if, after giving effect to such
increase, five or fewer individuals could own or constructively own in the aggregate, more than 49.9% in value of the shares then outstanding.
If any transfer of our shares of beneficial interest
occurs which, if effective, would result in any person beneficially or constructively owning shares in excess, or in violation, of the
above transfer or ownership limitations, known as a prohibited owner, then that number of shares, the beneficial or constructive ownership
of which otherwise would cause such person to violate the transfer or ownership limitations (rounded up to the nearest whole share),
will be automatically transferred to a charitable trust for the exclusive benefit of a charitable beneficiary, and the prohibited owner
will not acquire any rights in such shares. This automatic transfer will be considered effective as of the close of business on the business
day before the violative transfer. If the transfer to the charitable trust would not be effective for any reason to prevent the violation
of the above transfer or ownership limitations, then the transfer of that number of shares that otherwise would cause any person to violate
the above limitations will be void. Shares held in the charitable trust will continue to constitute issued and outstanding shares. The
prohibited owner will not benefit economically from ownership of any shares held in the charitable trust, will have no rights to dividends
or other distributions and will not possess any rights to vote or other rights attributable to the shares held in the charitable trust.
The trustee of the charitable trust will be designated by us and must be unaffiliated with us or any prohibited owner and will have all
voting rights and rights to dividends or other distributions with respect to shares held in the charitable trust, and these rights will
be exercised for the exclusive benefit of the real estate investment trust’s charitable beneficiary. Any dividend or other distribution
paid before our discovery that shares have been transferred to the trustee will be paid by the recipient of such dividend or distribution
to the trustee upon demand, and any dividend or other distribution authorized but unpaid will be paid when due to the trustee. Any dividend
or distribution so paid to the trustee will be held in trust for the real estate investment trust’s charitable beneficiary. Subject
to Maryland law, effective as of the date that such shares have been transferred to the charitable trust, the trustee, in its sole discretion,
will have the authority to:
| · | rescind as void any vote cast by a prohibited owner prior to our discovery
that such shares have been transferred to the charitable trust; and |
| · | recast such vote in accordance with the desires of the trustee acting
for the benefit of the real estate investment trust’s charitable beneficiary. |
However, if we have already taken irreversible corporate action, then
the trustee will not have the authority to rescind and recast such vote.
Within 20 days of receiving notice from us
that shares have been transferred to the charitable trust, and unless we buy the shares first as described below, the trustee will sell
the shares held in the charitable trust to a person, designated by the trustee, whose ownership of the shares will not violate the share
ownership limits in our declaration of trust. Upon the sale, the interest of the charitable beneficiary in the shares sold will terminate
and the trustee will distribute the net proceeds of the sale to the prohibited owner and to the charitable beneficiary. The prohibited
owner will receive the lesser of:
| · | the price paid by the prohibited owner for the shares or, if the prohibited
owner did not give value for the shares in connection with the event causing the shares to
be held in the charitable trust (for example, in the case of a gift or devise), the market
price of the shares on the day of the event causing the shares to be held in the charitable
trust; and |
| · | the price per share received by the trustee from the sale or other
disposition of the shares held in the charitable trust (less any commission and other expenses
of a sale). |
The trustee may reduce the amount payable to the
prohibited owner by the amount of dividends and distributions paid to the prohibited owner and owed by the prohibited owner to the trustee.
Any net sale proceeds in excess of the amount payable to the prohibited owner will be paid immediately to the charitable beneficiary.
If, before our discovery that our shares have been transferred to the charitable trust, such shares are sold by a prohibited owner, then:
| · | such shares will be deemed to have been sold on behalf of the
charitable trust; and |
| · | to the extent that the prohibited owner received an amount for such
shares that exceeds the amount that the prohibited owner was entitled to receive as described
above, the excess must be paid to the trustee upon demand. |
In addition, shares held in the charitable trust
will be deemed to have been offered for sale to us, or our designee, at a price per share equal to the lesser of:
| · | the price per share in the transaction that resulted in such transfer
to the charitable trust (or, in the case of a gift or devise, the market price at the time
of the gift or devise); and |
| · | the market price on the date we, or our designee, accepts such
offer. |
We may reduce the amount payable to the prohibited
owner by the amount of dividends and distributions paid to the prohibited owner and owed by the prohibited owner to the trustee. We may
pay the amount of such reduction to the trustee for the benefit of the charitable beneficiary. We will have the right to accept the offer
until the trustee has sold the shares held in the charitable trust. Upon such a sale to us, the interest of the charitable beneficiary
in the shares sold will terminate and the trustee will distribute the net proceeds of the sale to the prohibited owner and any dividends
or other distributions held by the trustee will be paid to the charitable beneficiary.
All certificates representing our shares will
bear a legend referring to the restrictions described above.
Every shareholder of record of more than 5% (or
such lower percentage as required by the Code or the regulations promulgated thereunder) in value of the outstanding shares will be required
to give written notice to us within 30 days after the end of each taxable year stating the name and address of each actual owner,
the number of shares of each class and series of shares that each actual owner beneficially owns and a description of the manner in which
such shares are held. Each such shareholder shall provide to us such additional information as we may request in order to determine the
effect, if any, of such beneficial ownership on our status as a REIT and to ensure compliance with the ownership limitations. In addition,
each shareholder shall upon demand be required to provide to us such information as we may request, in good faith, in order to determine
our status as a REIT and to comply with the requirements of any taxing authority or governmental authority or to determine such compliance.
These share ownership limitations could delay,
deter or prevent a transaction or a change in control that might involve a premium price for holders of our common shares or might otherwise
be in the best interest of our shareholders.
BOOK-ENTRY SECURITIES
We may issue the securities offered by means of
this prospectus in whole or in part in book-entry form, meaning that beneficial owners of the securities will not receive certificates
representing their ownership interests in the securities, except in the event the book-entry system for the securities is discontinued.
If securities are issued in book-entry form, they will be evidenced by one or more global securities that will be deposited with, or
on behalf of, a depositary identified in the applicable prospectus supplement relating to the securities. The Depository Trust Company
is expected to serve as depository. Unless and until it is exchanged in whole or in part for the individual securities represented thereby,
a global security may not be transferred except as a whole by the depository for the global security to a nominee of such depository
or by a nominee of such depository to such depository or another nominee of such depository or by the depository or any nominee of such
depository to a successor depository or a nominee of such successor. Global securities may be issued in either registered or bearer form
and in either temporary or permanent form. The specific terms of the depositary arrangement with respect to a class or series of securities
that differ from the terms described here will be described in the applicable prospectus supplement.
Unless otherwise indicated in the applicable prospectus
supplement, we anticipate that the following provisions will apply to depository arrangements.
Upon the issuance of a global security, the depository
for the global security or its nominee will credit on its book-entry registration and transfer system the respective principal amounts
of the individual securities represented by such global security to the accounts of persons that have accounts with such depository,
who are called “participants.” Such accounts shall be designated by the underwriters, dealers or agents with respect to the
securities or by us if the securities are offered and sold directly by us. Ownership of beneficial interests in a global security will
be limited to the depository’s participants or persons that may hold interests through such participants. Ownership of beneficial
interests in the global security will be shown on, and the transfer of that ownership will be effected only through, records maintained
by the applicable depository or its nominee (with respect to beneficial interests of participants) and records of the participants (with
respect to beneficial interests of persons who hold through participants). The laws of some states require that certain purchasers of
securities take physical delivery of such securities in definitive form. Such limits and laws may impair the ability to own, pledge or
transfer beneficial interest in a global security.
So long as the depository for a global security
or its nominee is the registered owner of such global security, such depository or nominee, as the case may be, will be considered the
sole owner or holder of the securities represented by such global security for all purposes under the applicable instrument defining
the rights of a holder of the securities. Except as provided below or in the applicable prospectus supplement, owners of beneficial interest
in a global security will not be entitled to have any of the individual securities of the series represented by such global security
registered in their names, will not receive or be entitled to receive physical delivery of any such securities in definitive form and
will not be considered the owners or holders thereof under the applicable instrument defining the rights of the holders of the securities.
Payments of amounts payable with respect to individual
securities represented by a global security registered in the name of a depository or its nominee will be made to the depository or its
nominee, as the case may be, as the registered owner of the global security representing such securities. None of us, our officers and
board members or any trustee, paying agent or security registrar for an individual series of securities will have any responsibility
or liability for any aspect of the records relating to or payments made on account of beneficial ownership interests in the global security
for such securities or for maintaining, supervising or reviewing any records relating to such beneficial ownership interests.
We expect that the depository for a series of
securities offered by means of this prospectus or its nominee, upon receipt of any payment of principal, premium, interest, dividend
or other amount in respect of a permanent global security representing any of such securities, will immediately credit its participants’
accounts with payments in amounts proportionate to their respective beneficial interests in the principal amount of such global security
for such securities as shown on the records of such depository or its nominee. We also expect that payments by participants to owners
of beneficial interests in such global security held through such participants will be governed by standing instructions and customary practices,
as is the case with securities held for the account of customers in bearer form or registered in “street name.” Such payments
will be the responsibility of such participants.
If a depository for a series of securities is
at any time unwilling, unable or ineligible to continue as depository and a successor depository is not appointed by us within 90 days,
we will issue individual securities of such series in exchange for the global security representing such series of securities. In addition,
we may, at any time and in our sole discretion, subject to any limitations described in the applicable prospectus supplement relating
to such securities, determine not to have any securities of such series represented by one or more global securities and, in such event,
will issue individual securities of such series in exchange for the global security or securities representing such series of securities.
MATERIAL
U.S. FEDERAL INCOME TAX Considerations
The following is a summary of the material U.S.
federal income tax consequences of an investment in our common shares, preferred shares, and depositary shares (together with our common
shares and preferred shares, the “shares”) and other material tax considerations relating to the Company and to the holders
of the shares, as well as our warrants and rights. If we offer securities other than common shares, information about any additional
income tax consequences to holders of those securities may be included in the documents pursuant to which those securities are offered.
The discussion set forth herein is not intended to be, and should not be construed as, tax advice. As used in this section, references
to the terms “Company,” “we,” “our,” and “us” mean only RLJ Lodging Trust, and not its
subsidiaries, except as otherwise indicated. This discussion is based upon the Code, the Treasury regulations, rulings and other administrative
interpretations and practices of the IRS (including administrative interpretations and practices expressed in private letter rulings,
which are binding on the IRS only with respect to the particular taxpayers who requested and received those rulings), and judicial decisions,
all as currently in effect, and all of which are subject to differing interpretations or to change, possibly with retroactive effect.
No assurance can be given that the IRS would not assert, or that a court would not sustain, a position contrary to any of the tax consequences
described below. We have not sought and will not seek an advance ruling from the IRS regarding any matter discussed in this section.
This discussion also is based upon the assumption that we will operate the Company and its subsidiaries in accordance with their applicable
organizational documents and in the manner that we have represented. This discussion does not address the actual material U.S. federal
income tax consequences of the ownership and disposition of our shares to any particular holder, which depend on that shareholder’s
particular tax circumstances. In addition, this discussion does not discuss any state, local or non-U.S. tax consequences, or any
tax consequences arising under any U.S. federal tax other than the income tax, associated with the ownership or disposition of our shares
or our election to be taxed as a REIT.
This summary is for general information only,
and does not purport to discuss all aspects of U.S. federal income taxation that may be important to a particular investor in light of
its investment or tax circumstances, or to investors subject to special tax rules, including:
| · | tax-exempt organizations, except to the extent discussed below in
“—Taxation of U.S. Shareholders—Taxation of Tax-Exempt Shareholders,” |
| · | non-U.S. corporations, non-U.S. partnerships, non-U.S. trusts, non-U.S.
estates, or individuals who are not taxed as citizens or residents of the United States,
all of which may be referred to collectively as “non-U.S. persons,” except to
the extent discussed below in “—Taxation of Non-U.S. Shareholders,” |
| · | regulated investment companies (“RICs”), |
| · | subchapter S corporations, |
| · | foreign (non-U.S. governments), |
| · | persons subject to the alternative minimum tax provisions of
the Code, |
| · | persons holding the shares as part of a “hedge,” “straddle,”
“conversion,” “synthetic security” or other integrated investment, |
| · | persons holding the shares through a partnership or similar
pass-through entity, |
| · | persons with a “functional currency” other than
the U.S. dollar, |
| · | persons holding 10% or more (by vote or value) of the beneficial interest
in us, except to the extent discussed below, |
| · | persons who do not hold the shares as a “capital asset,”
within the meaning of Section 1221 of the Code, |
| · | corporations subject to the provisions of Section 7874
of the Code, |
| · | persons otherwise subject to special tax treatment under the
Code. |
U.S. Federal Income Taxation of the Company as a REIT
General
We are a self-advised and self-administered Maryland
real estate investment trust that acquires primarily premium-branded, focused-service and compact full-service hotels. Substantially
all of our assets are held by, and all of our operations are conducted through, the Operating Partnership. We are the sole general partner
of the Operating Partnership. As of June 30, 2024, we owned, through a combination of direct and indirect interests, 99.5% of
the OP Units in the Operating Partnership. We made an election to be treated as a REIT, effective for our taxable year that ended
December 31, 2011. We believe that we have been organized and have operated in a manner that has permitted us to qualify for
taxation as a REIT from the effective date of our REIT election. We own, through the Operating Partnership, 100% of the outstanding
common stock of two entities that also have elected to be treated as REITs. These entities are subject to the same REIT qualification
requirements and other limitations described herein that apply to us.
The law firm of Hogan Lovells US LLP (“Hogan
Lovells”) has acted as our tax counsel in connection with the filing of the registration statement of which this discussion is
a part. We have received an opinion of Hogan Lovells to the effect that we have been organized and have operated in conformity with the
requirements for qualification and taxation as a REIT for each of our taxable years, beginning with our taxable year ended December 31,
2014, and that our current organization and current and intended method of operation (as described in our disclosure and a letter that
we have provided to Hogan Lovells) will enable us to continue to meet the requirements for qualification and taxation as a REIT under
the Code for the current taxable year and thereafter. It must be emphasized that the opinion of Hogan Lovells is based on various
assumptions relating to our organization and operation, is conditioned upon factual representations and covenants made by our management
regarding our organization, assets, income, the present and future conduct of our business operations, the economic terms of our leases,
and other items regarding our ability to meet the various requirements for qualification as a REIT, and assumes that such representations
and covenants are accurate and complete and that we will take no action inconsistent with our qualification as a REIT. While we intend
to continue to operate so that we will qualify as a REIT, given the highly complex nature of the rules governing REITs, the ongoing
importance of factual determinations, and the possibility of future changes in our circumstances, no assurance can be given by Hogan
Lovells or by us that we will qualify as a REIT for any particular year. The opinion of Hogan Lovells is expressed as of the date issued.
Hogan Lovells has no obligation to advise us or our shareholders of any subsequent change in the matters stated, represented or assumed,
or of any subsequent change in the applicable law. You should be aware that opinions of counsel are not binding on the IRS, and no assurance
can be given that the IRS will not challenge the conclusions set forth in such opinions. Hogan Lovells’ opinion does not foreclose
the possibility that we may have to utilize one or more of the REIT savings provisions discussed below, which could require us to pay
an excise or penalty tax (which tax could be significant in amount) in order for us to maintain our REIT qualification.
Qualification and taxation as a REIT depend on
our ability to meet, on a continuing basis, through actual operating results, distribution levels, and diversity of share and asset ownership,
various qualification requirements imposed upon REITs by the Code. In addition, our ability to qualify as a REIT may depend in part upon
the operating results, organizational structure and entity classification for U.S. federal income tax purposes of certain entities in
which we invest. Our ability to qualify as a REIT also requires that we satisfy certain asset tests, some of which depend upon the fair
market values of assets that we own directly or indirectly. Such values may not be susceptible to a precise determination. Accordingly,
no assurance can be given that the actual results of our operations for any taxable year will satisfy such requirements for qualification
and taxation as a REIT.
Provided that we qualify to be taxed as a REIT
generally, we will be entitled to a deduction for dividends that we pay and therefore not be subject to U.S. federal corporate income
tax on our REIT taxable income that is distributed currently to our shareholders. This treatment substantially eliminates the “double
taxation” at the corporate and shareholder levels that generally results from an investment in a C corporation. A “C corporation”
is a corporation that generally is required to pay tax at the corporate level. Double taxation means taxation once at the corporate level
when income is earned and once again at the shareholder level when the income, net of corporate income taxes paid, is distributed thereto.
In general, the income that we generate is taxed only at the shareholder level upon a distribution of dividends by us to our shareholders.
U.S. shareholders (as defined herein) generally
will be subject to taxation on dividends distributed by us (other than designated capital gain dividends and “qualified dividend
income”) at tax rates applicable to ordinary income, instead of at lower capital gain rates. For taxable years beginning after
December 31, 2017 and before January 1, 2026, generally, U.S. shareholders that are individuals, trusts or estates may deduct
20% of the aggregate amount of ordinary dividends distributed by us, subject to certain limitations. Capital gain dividends and qualified
dividend income will continue to be subject to a maximum 23.8% tax rate (which rate takes into account the maximum capital gain rate
of 20% and the 3.8% Medicare tax on net investment income, described below under “—Medicare Tax on Net Investment Income”).
See “—U.S. Federal Income Taxation of Our Shareholders—Taxation of Taxable U.S. Shareholders—Distributions Generally.”
Any net operating losses, foreign tax credits
and other tax attributes generated or incurred by us generally do not pass through to our shareholders, subject to special rules for
certain items such as the undistributed but designated capital gain that we recognize. See “—U.S. Federal Income Taxation
of Our Shareholders—Taxation of Taxable U.S. Shareholders—Distributions Generally.”
Even if we qualify to be taxed as a REIT, we nonetheless
will be subject to U.S. federal income tax in the following circumstances:
| · | We will be taxed at regular U.S. federal corporate income tax rates
on any undistributed “REIT taxable income,” including undistributed net capital
gains, for any taxable year. REIT taxable income is the taxable income of the REIT, subject
to specified adjustments, including a deduction for dividends paid. |
| · | If we have net income from prohibited transactions, which are, in general,
sales or other dispositions of inventory or property held primarily for sale to customers
in the ordinary course of business, other than foreclosure property, such income will be
subject to a 100% tax. See “—Gross Income Tests—Prohibited Transactions
Tax” below. |
| · | If we elect to treat property that we acquire in connection with certain
leasehold terminations or a foreclosure of a mortgage loan as “foreclosure property,”
we may thereby avoid (1) the 100% prohibited transactions tax on gain from a resale
of that property (if the sale otherwise would constitute a prohibited transaction); and (2) the
inclusion of any income from such property as non-qualifying income for purposes of the REIT
gross income tests discussed below. Income from the sale or operation of the property may
be subject to U.S. federal corporate income tax at the highest applicable rate (currently
21%). See “—Gross Income Tests—Income from Foreclosure Property,”
below. |
| · | If we fail to satisfy the 75% gross income test or the 95% gross income
test, as discussed below, but our failure is due to reasonable cause and not due to willful
neglect and we nonetheless maintain our REIT qualification because of specified cure provisions,
we will be subject to a 100% tax on an amount equal to (1) the greater of (a) the
amount by which we fail the 75% gross income test, or (b) the amount by which we fail
the 95% gross income test, as the case may be, multiplied by (2) a fraction intended
to reflect our profitability. |
| · | If we violate the asset tests (other than a de minimis failure of the
5% or 10% asset test) or other requirements applicable to REITs, as described below, but
our failure is due to reasonable cause and not due to willful neglect and we nonetheless
maintain our REIT qualification because of specified cure provisions, we will be required
to pay a tax equal to at least $50,000 per failure, which, in the case of certain asset test
failures, will be determined as the amount of net income generated by the assets in question
multiplied by the highest U.S. federal corporate income tax rate, if that amount exceeds
$50,000 per failure. |
| · | If we fail to distribute during each 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
(collectively, the “required distribution”), we will be subject to a non-deductible
4% excise tax on the excess of the required distribution over the sum of (a) the amounts
that we actually distributed (taking into account excess distributions from prior years),
plus (b) retained amounts upon which we paid U.S. federal corporate income tax. |
| · | We may be required to pay monetary penalties to the IRS in certain
circumstances, including if we fail to meet record-keeping requirements intended to monitor
our compliance with rules relating to the composition of our shareholders, as described
below under “—Requirements for Qualification as a REIT.” |
| · | We will be subject to a 100% penalty tax on amounts we receive from,
on certain expenses deducted by, and on certain service income imputed to, a TRS if certain
arrangements between us and our TRSs are not comparable to similar arrangements among unrelated
parties. |
| · | If we acquire appreciated assets from a corporation that is or has
been a C corporation (or a partnership in which a C corporation is a partner) in a transaction
in which our tax basis in the assets is determined by reference to the C corporation’s
(or such partnership’s) tax basis in such assets, provided no election is made for
the transaction to be taxable currently, we will be subject to tax on such appreciation at
the highest U.S. federal corporate income tax rate then applicable if we subsequently recognize
gain on a disposition of any such assets during the five-year period following the acquisition
from the C corporation (or partnership). Gain from the sale of property which we acquired
in an exchange under Section 1031 (a like kind exchange) or 1033 (an involuntary conversion)
of the Code is generally excluded from the application of this built-in gains tax, unless
we surrendered property in the exchange that was subject to built-in gain immediately prior
to the exchange. |
| · | We may elect to retain and pay U.S. federal corporate income tax on
our net long-term capital gain. See “U.S. Federal Income Taxation of Our Shareholders.” |
| · | The earnings of our subsidiaries that are C corporations, including
our TRSs, are subject to U.S. federal and, if applicable, non-U.S. corporate income tax. |
In addition, we and our subsidiaries may be subject
to a variety of taxes, including payroll taxes and state, local, and non-U.S. income, property, gross receipts and other taxes on our
assets and operations. We also could be subject to tax in other situations and on transactions not presently contemplated.
Requirements for Qualification
as a REIT
The Code defines a REIT as a corporation,
trust or association:
| (1) | that is managed by one or more trustees or directors; |
| (2) | the beneficial ownership of which is evidenced by transferable shares,
or by transferable certificates of beneficial interest; |
| (3) | that would be taxable as a domestic corporation but for Sections 856
through 860 of the Code; |
| (4) | that is neither a financial institution nor an insurance company subject
to applicable provisions of the Code; |
| (5) | the beneficial ownership of which is held by 100 or more persons; |
| (6) | during the last half of each taxable year not more than 50% in value
of the outstanding shares of which is owned, directly or indirectly, or by application of
certain attribution rules, by five or fewer “individuals” (as defined in the
Code to include certain entities); |
| (7) | that makes an election to be taxable as a REIT, or has made this election
for a previous taxable year which has not been revoked or terminated, and satisfies all of
the relevant filing and other administrative requirements established by the IRS that must
be met in order to elect and maintain REIT qualification; |
| (8) | that uses a calendar year for U.S. federal income tax purposes; |
| (9) | that meets other tests described below, including with respect to the
nature of its income and assets and the amount of its distributions; and |
| (10) | that has no earnings and profits from any non-REIT taxable year
at the close of any taxable year. |
The Code provides that conditions (1) through
(4) must be met during the entire taxable year, and condition (5) must be met during at least 335 days of a taxable
year of 12 months, or during a proportionate part of a shorter taxable year. Conditions (5) and (6) need not be satisfied
during a corporation’s initial tax year as a REIT. For purposes of condition (6), an “individual” generally includes
a supplemental unemployment compensation benefit plan, a private foundation or a portion of a trust permanently set aside or used exclusively
for charitable purposes. However, a trust that is a qualified trust under Code Section 401(a) generally is not considered an
individual, and beneficiaries of a qualified trust are treated as holding shares of a REIT in proportion to their actual interests in
the trust for purposes of condition (6) above.
To monitor compliance with the share ownership
requirements, we generally are required to maintain records regarding the actual ownership of our shares. To do so, we must demand written
statements each year from the record holders of specified percentages of our shares pursuant to which the record holders must disclose
the actual owners of the shares (i.e., the persons required to include our dividends in their gross income). We must maintain a
list of those persons failing or refusing to comply with this demand as part of our records. We could be subject to monetary penalties
if we fail to comply with these record-keeping requirements. A shareholder that fails or refuses to comply with the demand is required
by Treasury regulations to submit a statement with such record holder’s tax return disclosing the actual ownership of our shares
and other information. We have complied, and currently intend to continue to comply, with these requirements.
We believe that we have been organized, have operated
and have issued sufficient shares with sufficient diversity of ownership to allow us to satisfy conditions (1) through (9) and
we have no earnings and profits from a non-REIT year in satisfaction of condition (10). Our declaration of trust provides restrictions
regarding the ownership and transfers of our shares, which are intended to assist us in satisfying the share ownership requirements described
in conditions (5) and (6) above. These restrictions, however, do not ensure that we have previously satisfied, and
may not ensure that we will, in all cases, be able to continue to satisfy, such share ownership requirements. If we fail to satisfy
these requirements, except as provided in the next sentence, our status as a REIT will terminate. If, however, we comply with the
demand and record-keeping requirements described in the previous paragraph and we do not know, or would not have known through the exercise
of reasonable diligence, that we failed to meet the requirement described in condition (6), we will be treated as having satisfied this
requirement. See “—Failure to Qualify as a REIT.”
Effect of Subsidiary Entities
Ownership of Partnerships, Limited
Liability Companies and Qualified REIT Subsidiaries
If we are a partner in an entity that is treated
as a partnership for U.S. federal income tax purposes, Treasury regulations provide that we are deemed to own our proportionate share
of the partnership’s assets, and to earn our proportionate share of the partnership’s income, for purposes of the asset and
gross income tests applicable to REITs, as described below. Our proportionate share of a partnership’s assets and income is based
on our capital interest in the partnership (except that for purposes of the 10% value asset test, described below, our proportionate
share of the partnership’s assets is based on our proportionate interest in the equity and certain debt securities issued by the
partnership). In addition, the assets and gross income of the partnership are deemed to retain the same character in our hands. Thus,
our proportionate share of the assets and items of income of the Operating Partnership and any subsidiaries treated as partnerships for
U.S. federal income tax purposes will be treated as our assets and items of income for purposes of applying the REIT requirements. A
summary of the rules governing the U.S. federal income taxation of partnerships and their partners is provided below in “—Tax
Aspects of the Operating Partnership and Our Other Subsidiary Partnerships.” As the sole general partner of the Operating Partnership,
we have direct control over it and indirect control over the subsidiaries in which the Operating Partnership or a subsidiary has a controlling
interest. We currently intend to operate these entities in a manner consistent with the requirements for our qualification as a REIT.
Under a U.S. federal audit of a partnership, liability
is imposed on the partnership (rather than its partners) for adjustments to reported partnership taxable income resulting from audits
or other tax proceedings. The liability can include an imputed underpayment of tax, calculated by using the highest marginal U.S. federal
income tax rate, as well as interest and penalties on such imputed underpayment of tax. Using certain rules, partnerships may be able
to transfer these liabilities to their partners. In the event any adjustments are imposed by the IRS on the taxable income reported by
any subsidiary partnerships, we intend to utilize certain rules to the extent possible to allow us to transfer any liability with
respect to such adjustments to the partners of the subsidiary partnerships who should properly bear such liability. However, there is
no assurance that we will qualify under those rules or that we will have the authority to use those rules under the operating
agreements for certain of our subsidiary partnerships.
If we own a corporate subsidiary that is a qualified
REIT subsidiary (“QRS”), that QRS generally is disregarded for U.S. federal income tax purposes, and its assets, liabilities
and items of income, deduction and credit are treated as our assets, liabilities and items of income, deduction and credit, including
for purposes of the gross income and asset tests applicable to REITs. A QRS is any entity treated as a corporation for U.S. federal income
tax purposes other than a TRS that is directly or indirectly wholly-owned by a REIT. Other entities that are wholly-owned by us, including
single member limited liability companies that have not elected to be taxed as corporations for U.S. federal income tax purposes, also
generally are disregarded as separate entities for U.S. federal income tax purposes, including for purposes of the REIT income and asset
tests. Disregarded subsidiaries, along with any partnerships in which we hold an equity interest, are sometimes referred to herein as
“pass-through subsidiaries.”
In the event that a disregarded subsidiary ceases
to be wholly-owned by us (for example, if any equity interest in the subsidiary is acquired by a person other than us or another disregarded
subsidiary of ours), the subsidiary’s separate existence no longer would be disregarded for U.S. federal income tax purposes. Instead,
the subsidiary would have multiple owners and would be treated either as a partnership or a taxable corporation. Such an event could,
depending on the circumstances, adversely affect our ability to satisfy the various asset and gross income requirements applicable to
REITs, including the requirement that REITs generally may not own, directly or indirectly, more than 10% of the securities of another
corporation unless it is a TRS, a QRS or another REIT. See “—Gross Income Tests” and “—Asset Tests.”
Ownership of Subsidiary REITs
As discussed above, we own two subsidiary REITs.
We believe that each such REIT is organized and has operated and will continue to operate in a manner to permit it to qualify for taxation
as a REIT for U.S. federal income tax purposes from and after the effective date of its REIT election. However, if any subsidiary
REIT were to fail to qualify as a REIT, then (i) the subsidiary REIT would become subject to regular U.S. federal corporate income
tax, as described herein, see “—Failure to Qualify as a REIT” below, and (ii) our equity interest in such subsidiary
REIT would cease to be a qualifying real estate asset for purposes of the 75% asset test and would become subject to the 5% asset test,
the 10% voting share asset test, and the 10% value asset test generally applicable to our ownership in corporations other than REITs,
QRSs and TRSs. See “—Asset Tests” below. If any subsidiary REIT were to fail to qualify as a REIT, it is
possible that we would not meet the 10% voting share asset test and the 10% value asset test with respect to our indirect interest in
such entity, in which event we would fail to qualify as a REIT, unless we could avail ourselves of certain relief provisions.
Ownership of Taxable REIT Subsidiaries
A TRS is an entity that is taxable as a corporation
in which a REIT owns, directly or indirectly, an equity interest, including stock, and that elects with the REIT to be treated as a TRS
under the Code. If a TRS owns, directly or indirectly, securities representing more than 35% of the vote or value of a subsidiary
corporation, that subsidiary also will be treated as a TRS. A TRS is a C corporation subject to U.S. federal corporate income tax
at applicable corporate tax rates. The gross income and assets of our TRSs are not attributable to us for purposes of satisfying
the REIT income and asset test requirements.
A TRS must not directly or indirectly operate
or manage a lodging or health care facility or, generally, provide to another person, under a franchise, license or otherwise, rights
to any brand name under which any lodging facility or health care facility is operated. Although a TRS may not operate or manage
a lodging facility, it may lease or own such a facility so long as the facility is a “qualified lodging facility” and such
facility is operated on behalf of the TRS by an “eligible independent contractor.” A “qualified lodging facility”
generally is a hotel at which no authorized gambling activities are conducted, and includes the customary amenities and facilities operated
as part of, or associated with, the hotel. “Customary amenities” must be customary for other properties of a comparable
size and class owned by other owners unrelated to the REIT. An “eligible independent contractor” is an independent
contractor that, at the time a management agreement is entered into with a TRS to operate a “qualified lodging facility,”
is actively engaged in the trade or business of operating “qualified lodging facilities” for a person or persons unrelated
to either the TRS or any REITs with which the TRS is affiliated. A hotel management company that otherwise would qualify as an
“eligible independent contractor” with regard to a TRS of a REIT will not so qualify if the hotel management company and/or
one or more actual or constructive owners of 10% or more of the hotel management company actually or constructively own more than 35%
of the REIT, or one or more actual or constructive owners of more than 35% of the hotel management company own 35% or more of the REIT
(determined with respect to a REIT whose stock is regularly traded on an established securities market by taking into account only the
stock held by persons owning, directly or indirectly, more than 5% of the outstanding stock of the REIT and, if the stock of the eligible
independent contractor is publicly-traded, more than 5% of the publicly-traded stock of the eligible independent contractor). We
believe, and currently intend to take all steps reasonably practicable to ensure, that none of our TRSs has engaged or will engage in
“operating” or “managing” our hotels and that the hotel management companies engaged to operate and manage hotels
leased to or owned by the TRSs have qualified and continue to qualify as “eligible independent contractors” with regard to
those TRSs.
Certain restrictions are imposed on TRSs. First,
TRSs are limited in their ability to deduct interest payments in excess of a certain amount, including interest payments made directly
or indirectly to the REIT. In addition, a REIT would be obligated to pay a 100% penalty tax on certain payments from the TRS that it
receives, including interest or rent, or on certain expenses deducted by the TRS, and on income earned by our TRSs for services provided
to, or on behalf of, us, if the IRS were able to assert successfully that the economic arrangements between the REIT and the TRS did
not meet specified arm’s-length standards set forth in the Code. Our TRSs make substantial payments to us, including payments of
rent pursuant to the hotel leases and interest payments. There can be no assurance that the limitation on interest deductions applicable
to TRSs will not apply to the interest payments made to us by one of our TRSs, resulting in an increase in the corporate income tax liability
of such subsidiary. In addition, there can be no assurance that the IRS might not seek to impose the 100% excise tax on a portion of
the payments received by us from, or expenses deducted by, or service income imputed to, our TRSs. While we believe that our arrangements
with our TRSs reflect arm’s-length terms, these determinations inherently are factual, and the IRS has broad discretion to assert
that amounts paid between related parties should be reallocated to reflect accurately their respective incomes.
Because of the restrictions applicable to the
income, assets and activities of a REIT, we may need to conduct certain business activities in one or more TRSs. These business activities
include alternative uses of real estate, such as the development and/or sale of timeshare or condominium units. As discussed below under
“—Asset Tests,” the aggregate value of all of our TRSs may not exceed 20% of the value of our total assets.
Gross Income Tests
To qualify as a REIT, we must satisfy two gross
income requirements on an annual basis. First, at least 75% of our gross income for each taxable year must be derived from investments
relating to real property or mortgages on real property, including:
| · | “rents from real property”; |
| · | dividends or other distributions on, and gain from the sale
of, stock in other REITs; |
| · | gain from the sale of real property or mortgages on real property,
in either case, not held for sale to customers; |
| · | interest income derived from mortgage loans secured by real
property or interests in real property; and |
| · | income attributable to the temporary investment of new capital in stock
and debt instruments during the one-year period following the receipt by us of new capital
raised through equity offerings or the issuance of debt obligations with at least a five-year
term. |
Second, at least 95% of our gross income in each
taxable year must be derived from some combination of income that qualifies under the 75% gross income test described above, as well
as (1) other dividends, (2) interest, and (3) gain from the sale or disposition of stock or securities, in either case,
not held for sale to customers.
For purposes of one or both of the 75% and 95%
gross income tests, the following items of income are excluded from the computation of gross income: (1) gross income from prohibited
transactions; (2) certain foreign currency gain; and (3) income and gain from certain hedging transactions. See “—Income
from Hedging Transactions,” “—Foreign Currency Gain,” and “—Prohibited Transactions Tax,” below.
Rents from Real Property
Currently, rents paid pursuant to the leases of
our hotels to our TRSs, together with gain from the sale of hotels and dividends and interest received from the TRSs, constitute substantially
all of our gross income. Rents received by us will qualify as “rents from real property” in satisfying the gross income requirements
described above only if the following conditions are met:
| · | First, if rent attributable to personal property, leased in connection
with a lease of real property, is greater than 15% of the total rent received under the lease,
then the portion of rent attributable to the personal property will not qualify as rents
from real property. |
| · | Second, the amount of rent must not be based in whole or in part on
the income or profits of any person. Amounts received as rent, however, generally will not
be excluded from rents from real property solely by reason of being based on fixed percentages
of gross receipts or sales. |
| · | Third, rents we receive from a “related party tenant” generally
will not qualify as rents from real property. A tenant is a related party tenant if the REIT,
or an actual or constructive owner of 10% or more of the REIT, actually or constructively
owns 10% or more of the tenant. Two exceptions apply with respect to the lease of property
by a REIT to a TRS. We may lease our hotels that qualify as “qualified lodging facilities”
to our TRSs if the hotel is operated on behalf of the TRS by an “eligible independent
contractor.” In addition, a REIT may lease any property to a TRS if at least 90% of
the property is leased to unrelated tenants, and the rent paid by the TRS is substantially
comparable to rent paid by the unrelated tenants for comparable space. Amounts attributable
to certain rental increases charged to a controlled TRS can fail to qualify even if the above
conditions are met. |
| · | Fourth, for rents to qualify as rents from real property for the purpose
of satisfying the gross income tests, we generally must not operate or manage the property
or furnish or render services to the tenants of such property, other than through an “independent
contractor” who is adequately compensated and from whom we derive no revenue, or through
a TRS. To the extent that impermissible services are provided by an independent contractor,
the cost of the services generally must be borne by the independent contractor. A REIT is
permitted to provide directly to tenants services that are “usually or customarily
rendered” in connection with the rental of space for occupancy only and not otherwise
considered to be provided for the tenants’ convenience. A REIT may provide a minimal
amount of “non-customary” services to its tenants, other than through an independent
contractor or a TRS, but if the income from these impermissible tenant services exceeds 1%
of the total gross income from a property, then all of the gross income from that property
will fail to qualify as rents from real property. If the total amount of the income from
impermissible tenant services does not exceed 1% of the total gross income from the property,
the services will not “taint” the other income from the property (that is, it
will not cause the rent paid by tenants of that property to fail to qualify as rents from
real property), but the impermissible tenant services income will not qualify as rents from
real property. A REIT is deemed to have received income from the provision of impermissible
services in an amount equal to at least 150% of the direct cost of providing the service. |
Because we lease substantially all of our properties
to our TRSs, we generally do not provide services to our tenants. However, we have a few small leases of space at our hotels with
tenants that are unrelated third parties. In that case, we cannot provide any assurance that the IRS will agree with our positions
related to whether any services we provide directly to tenants are “usually or customarily rendered” in connection with the
rental of space for occupancy only. We monitor the activities at our properties and do not intend to provide services that will
cause us to fail to meet the gross income tests.
In order for the rent paid pursuant to the leases
with our TRSs to constitute “rents from real property,” the leases must be respected as true leases for U.S. federal income
tax purposes. Accordingly, the leases cannot be treated as service contracts, joint ventures or some other type of arrangement. The determination
of whether the leases are true leases for U.S. federal income tax purposes depends upon an analysis of all the relevant facts and circumstances.
In making such a determination, courts have considered a variety of factors, including the following:
| · | the intent of the parties; |
| · | the form of the agreement; |
| · | the degree of control over the property that is retained by the property
owner (e.g., whether the lessee has substantial control over the operation of the property
or whether the lessee was 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 (e.g., 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 (e.g., appreciation)
with respect to the property. |
In addition, Section 7701(e) of the
Code provides that a contract that purports to be a service contract or a partnership agreement is treated instead as a lease of property
if the contract properly is treated as such, taking into account all relevant factors. Since the determination of whether a service contract
should be treated as a lease is inherently factual, the presence or absence of any single factor may not be dispositive in every case.
Our leases have been structured with the intent
to qualify as true leases for U.S. federal income tax purposes. However, this determination is inherently a question of fact, and we
cannot assure you that the IRS will not successfully assert a contrary position. If the leases were recharacterized as service contracts
or partnership agreements, rather than true leases, or disregarded altogether for U.S. federal income tax purposes, all or part of the
payments that we receive from the TRSs would not be considered rent or would not otherwise satisfy the various requirements for qualification
as “rents from real property.” In that case, we likely would not be able to satisfy either the 75% or 95% gross income tests
and, as a result, would lose our REIT status.
As indicated above, “rents from real property”
must not be based in whole or in part on the income or profits of any person. Each of our leases provides for periodic payments of a
specified base rent plus, to the extent that it exceeds the base rent, additional rent which is calculated based upon the gross sales
of the hotels subject to the lease, plus certain other amounts. Payments made pursuant to these leases should qualify as “rents
from real property” since generally they are based on either fixed dollar amounts or on specified percentages of gross sales that
are fixed at the time the leases are entered into. The foregoing assumes that the leases have not been and will not be renegotiated during
their term in a manner that has the effect of basing either the percentage rent or the base rent on income or profits. The foregoing
also assumes that the leases are not in reality used as a means of basing rent on income or profits. More generally, the rent payable
under the leases will not qualify as “rents from real property” if, considering the leases and all of the relevant circumstances,
the arrangement does not conform with normal business practice. We have not renegotiated, and currently do not intend to renegotiate,
the percentages used to determine the percentage rent during the terms of the leases in a manner that has had or will have the effect
of basing rent on income or profits. In addition, we believe that the rental provisions and other terms of the leases conform with normal
business practice and generally are not intended to be used as a means of basing rent on income or profits. Furthermore, currently we
intend that, with respect to properties that we acquire in the future, we will not charge rent for any property that is based in whole
or in part on the income or profits of any person, except by reason of being based on a fixed percentage of gross revenues, as described
above.
As noted above, under the Code, if a lease provides
for the rental of both real and personal property and the portion of the rent attributable to personal property is 15% or less of the
total rent due under the lease, then all rent paid pursuant to such lease qualifies as “rents from real property.” If, however,
a lease provides for the rental of both real and personal property, and the portion of the rent attributable to personal property exceeds
15% of the total rent due under the lease, then no portion of the rent that is attributable to personal property will qualify as “rents
from real property.” The amount of rent attributable to personal property is the amount which bears the same ratio to total rent
for the taxable year as the average of the fair market value of the personal property at the beginning and end of the year bears to the
average of the aggregate fair market value of both the real and personal property at the beginning and end of such year. Currently, a
significant portion of our personal property is owned by our TRSs. We believe that, to the extent that any of our leases includes a lease
of items of personal property, either the amount of rent attributable to personal property with respect to such lease would not exceed
15% of the total rent due under the lease (determined under the law in effect for the applicable period), or, with respect to leases
where the rent attributable to personal property constitutes non-qualifying gross income, such amounts, when taken together with all
other non-qualifying income, would not jeopardize our status as a REIT.
Interest Income
Interest generally will be non-qualifying gross
income for purposes of the 75% or 95% gross income tests if it depends in whole or in part on the income or profits of any person. However,
interest based on a fixed percentage or percentages of receipts or sales still may qualify under the gross income tests. We receive interest
payments from our TRSs and from third parties, which constitutes qualifying gross income for purposes of the 95% gross income test, but
not necessarily for purposes of the 75% gross income test. We do not expect that the interest income from these sources will affect our
ability to satisfy the requirements of the 75% gross income test.
Dividend Income
We may receive distributions from our TRSs or
other corporations that are not REITs or QRSs. These distributions generally will be treated as dividend income to the extent of the
earnings and profits of the distributing corporation. We also may recognize capital gain with respect to our investments in our TRSs
or such other corporations. Such dividend income or capital gain will constitute qualifying gross income for purposes of the 95%
gross income test, but not for purposes of the 75% gross income test. We do not expect that these amounts will affect our ability to
satisfy the requirements of the 75% gross income test. Any dividends that we receive from a REIT, or capital gain recognized in
connection with an investment in a REIT, will be qualifying gross income for purposes of both the 95% and 75% gross income tests.
Income from Hedging Transactions
From time to time we may enter into hedging transactions
with respect to one or more of our assets or liabilities. Any such hedging transactions could take a variety of forms, including the
use of derivative instruments such as interest rate swap or cap agreements, option agreements, and futures or forward contracts. Gross
income of a REIT, including gross income from a pass-through subsidiary, arising from “clearly identified” hedging transactions
that are entered into to manage the risk of interest rate or price changes with respect to borrowings, including gain from the disposition
of such hedging transactions, to the extent the hedging transactions hedge indebtedness incurred, or to be incurred, by the REIT to acquire
or carry real estate assets (each such hedge, a “Borrowings Hedge”), will not be treated as gross income for purposes of
either the 95% gross income test or the 75% gross income test. Gross income of a REIT arising from hedging transactions that are entered
into to manage the risk of currency fluctuations with respect to our investments (each such hedge, a “Currency Hedge”) will
not be treated as gross income for purposes of either the 95% gross income test or the 75% gross income test provided that the transaction
is “clearly identified.” This exclusion from the 95% and 75% gross income tests also will apply if we previously entered
into a Borrowings Hedge or a Currency Hedge, a portion of the hedged indebtedness or property is disposed of, and in connection with
such extinguishment or disposition we enter into a new “clearly identified” hedging transaction to offset the prior hedging
position. In general, for a hedging transaction to be “clearly identified,” (1) it must be identified as a hedging transaction
before the end of the day on which it is acquired, originated, or entered into; and (2) the items of risks being hedged must be
identified “substantially contemporaneously” with entering into the hedging transaction (generally not more than 35 days
after entering into the hedging transaction). To the extent that we hedge with other types of financial instruments or in other situations,
the resultant income will be treated as income that does not qualify under the 95% or 75% gross income tests unless the hedge meets certain
requirements and we elect to integrate it with a specified asset and to treat the integrated position as a synthetic debt instrument.
We intend to structure any hedging transactions in a manner that does not jeopardize our qualification as a REIT but there can be no
assurance we will be successful in this regard.
Foreign Currency Gain
“Real estate foreign exchange gain”
is excluded from the calculation of the 75% gross income test and “passive foreign exchange gain” is excluded from the calculation
of the 95% gross income test. “Real estate foreign exchange gain” means (i) foreign currency gain attributable
(without duplication) to (A) an item of income or gain to which the 75% gross income test applies, (B) the acquisition or ownership
of obligations secured by mortgages on real property or on interests in real property, or (C) becoming or being the obligor under
obligations secured by mortgages on real property or interests in real property, or (ii) foreign currency gain attributable to a
“qualified business unit” (“QBU”) of the REIT under Code Section 987, provided the QBU itself satisfies
both the 75% gross income test and the 75% asset test described below under “—Asset Tests.” “Passive foreign
exchange gain” is (without duplication) real estate foreign exchange gain, foreign currency gain attributable to an item of income
or gain to which the 95% gross income test applies, foreign currency gain attributable to the acquisition or ownership of obligations
secured by mortgages on real property or on interests in real property, or foreign currency gain attributable to becoming or being the
obligor under obligations secured by mortgages on real property or on interests in real property.
Prohibited Transactions Tax
Any gain realized by us on the sale of any property
held as inventory or other property held primarily for sale to customers in the ordinary course of business, including our share of any
such gain realized by a subsidiary partnership and taking into account any related foreign currency gains or losses, will be treated
as income from a “prohibited transaction” that is subject to a 100% penalty tax. Whether property is held as inventory or
primarily for sale to customers in the ordinary course of a trade or business is a question of fact that depends upon all the facts and
circumstances with respect to the particular transaction. However, we will not be treated as a dealer in real property for the purpose
of the 100% penalty tax if: (i) we have held the property for at least two years and for the production of rental income (unless
such property was acquired through foreclosure or deed in lieu of foreclosure or lease termination); (ii) capitalized expenditures
on the property in the two years preceding the year of sale are less than 30% of the net selling price of the property; and (iii) we
either (a) have seven or fewer sales of property (excluding sales of foreclosure property or in connection with an involuntary conversion
(“excluded sales”)) for the year of sale, (b) the aggregate tax basis of property sold (other than excluded sales) during
the year of sale is 10% or less of the aggregate tax basis of all of our assets as of the beginning of the taxable year, (c) the
fair market value of property sold (other than excluded sales) during the year of sale is less than 10% of the fair market value of all
of our assets as of the beginning of the taxable year, (d) the aggregate adjusted basis of property sold during the year is 20%
or less of the aggregate adjusted basis of all of our assets as of the beginning of the taxable year and the aggregate adjusted basis
of property sold during the three-year period ending with the year of sale is 10% or less of the aggregate tax basis of all of our assets
as of the beginning of each of the three taxable years ending with the year of sale; or (e) the fair market value of property sold
during the year is 20% or less of the aggregate fair market value of all of our assets as of the beginning of the taxable year and the
fair market value of property sold during the three-year period ending with the year of sale is 10% or less of the aggregate fair market
value of all of our assets as of the beginning of each of the three taxable years ending with the year of sale. If we rely on clauses
(b), (c), (d), or (e) in the preceding sentence, substantially all of the marketing and development expenditures with respect to
the property sold must be made through an independent contractor from whom we derive no income or our TRS. The sale of more than one
property to one buyer as part of one transaction constitutes one sale for purposes of this “safe harbor.”
We hold hotels for investment with a view to long-term
appreciation, engage in the business of acquiring and owning hotels and we currently intend to make sales of hotels consistent with our
investment objectives. However, some of our sales may not satisfy the “safe harbor” requirements described above and there
can be no assurance that the IRS might not contend that one or more of these sales are subject to the 100% penalty tax.
Income from Foreclosure Property
We generally will be subject to tax at the maximum
U.S. federal corporate income tax rate (currently 21%) on any net income from foreclosure property, including any gain from the disposition
of the foreclosure property and any foreign currency gain, other than income that constitutes qualifying income for purposes of the 75%
gross income test (other than by reason of such income being income or gain from foreclosure property). Foreclosure property is real
property and any personal property incident to such real property (1) that we acquire as the result of having bid on the property
at foreclosure, or having otherwise reduced the property to ownership or possession by agreement or process of law, after a default (or
upon imminent default) on a lease of the property or a mortgage loan held by us and secured by the property, (2) for which we acquired
the related loan or lease at a time when default was not imminent or anticipated, and (3) with respect to which we made a proper
election to treat the property as foreclosure property. Any gain from the sale of property for which a foreclosure property election
has been made will not be subject to the 100% tax on gain from prohibited transactions described above, even if the property otherwise
would constitute inventory or dealer property. If an unrelated third party lessee defaults under a lease, we are permitted to lease the
related hotel to a TRS, in which case the hotel would not become foreclosure property. To the extent that we receive any income
from property described in clause (1) above that does not qualify for purposes of the 75% gross income test, we intend to make an
election to treat the related property as foreclosure property.
Failure to Satisfy the Gross Income
Tests
We intend to continue to monitor our sources of
gross income, including any non-qualifying gross income received by us, and manage the ownership of our assets so as to ensure our compliance
with the 95% and 75% gross income tests. If we fail to satisfy one or both of the 75% or 95% gross income tests for any taxable year,
we still may qualify as a REIT for such year if we are entitled to relief under applicable provisions of the Code. These relief provisions
generally will be available if (1) our failure to meet these tests was due to reasonable cause and not due to willful neglect, and
(2) following our identification of the failure to meet the 75% and/or 95% gross income tests for any taxable year, we file a
schedule with the IRS setting forth a description of each item of our gross income that satisfies the gross income tests for such taxable
year in accordance with Treasury regulations. It is not possible to state whether we would be entitled to the benefit of these relief
provisions in all circumstances. As discussed above under “—General,” even where these relief provisions apply, the
Code imposes a tax, which could be significant in amount, based upon the profit attributable to the amount by which we fail to satisfy
the particular gross income test.
Asset Tests
At the close of each calendar quarter, we must
satisfy the following tests relating to the nature of our assets:
| · | at least 75% of the value of our total assets must be represented by
some combination of “real estate assets,” cash, cash items, U.S. government securities,
and, under some circumstances, stock or debt instruments purchased with new capital. For
this purpose, real estate assets include interests in real property, such as land, buildings
and leasehold interests in real property, stock of other corporations that qualify as REITs
and debt instruments issued by publicly offered REITs, some types of mortgage-backed securities,
interests in mortgages on interests in real property, personal property leased in connection
with real property to the extent that rents attributable to such personal property are treated
as “rents from real property,” and stock and debt instruments held for less than
one year purchased with an offering of our shares or long-term debt. Assets that do not qualify
for purposes of the 75% asset test are subject to the additional asset tests described below; |
| · | not more than 25% of our total assets may be represented by securities
other than those described in the first bullet above; |
| · | except for securities described in the first bullet above and last
bullet below, and securities in TRSs or QRSs, the value of any one issuer’s securities
owned by us may not exceed 5% of the value of our total assets; |
| · | except for securities described in the first bullet above and last
bullet below, and securities in TRSs or QRSs, we may not own more than 10% of any one issuer’s
outstanding voting securities; |
| · | except for securities described in the first bullet above and last
bullet below, securities in TRSs or QRSs, and certain types of indebtedness that are not
treated as securities for purposes of this test, as discussed below, we may not own more
than 10% of the total value of the outstanding securities of any one issuer; |
| · | not more than 20% of our total assets may be represented by securities
of one or more TRSs; and |
| · | not more than 25% of our total assets may be represented by debt instruments
issued by publicly offered REITs that are “nonqualified” debt instruments (e.g.,
not secured by interests in mortgages on interests in real property and personal property
leased in connection with real property to the extent that rents attributable to such personal
property are treated as “rents from real property”). |
For purposes of the asset tests, a REIT is not
treated as owning the stock of a QRS or an equity interest in any entity treated as a partnership or disregarded for U.S. federal income
tax purposes. Instead, a REIT is treated as owning its proportionate share of the assets held by such entity. Solely for purposes of
the 10% value asset test, the determination of our interest in the assets of an entity treated as a partnership for U.S. federal income
tax purposes in which we own an interest will be based on our proportionate interest in any securities issued by the partnership, excluding
for this purpose certain securities described in the Code.
The 10% value asset test does not apply to certain
“straight debt” and other excluded securities, as described in the Code, including (1) loans to individuals or estates,
(2) obligations to pay rents from real property, (3) rental agreements described in Section 467 of the Code (generally,
obligations related to deferred rental payments, other than with respect to transactions with related party tenants), (4) securities
issued by other REITs, (5) certain securities issued by a state, the District of Columbia, a foreign government, or a political
subdivision of any of the foregoing, or the Commonwealth of Puerto Rico, and (6) any other arrangement as determined by the IRS.
In addition, (1) a REIT’s interest as a partner in a partnership is not considered a security for purposes of the 10% value
asset test; (2) any debt instrument issued by a partnership (other than straight debt or other excluded security) will not be considered
a security issued by the partnership if at least 75% of the partnership’s gross income is derived from sources that would qualify
for the 75% gross income test; and (3) any debt instrument issued by a partnership (other than straight debt or other excluded security)
will not be considered a security issued by a partnership to the extent of the REIT’s interest as a partner in the partnership.
For purposes of the 10% value asset test, “straight
debt” means a written unconditional promise to pay on demand on a specified date a sum certain in money if (1) the debt is
not convertible, directly or indirectly, into stock, (2) the interest rate and interest payment dates are not contingent on profits,
the borrower’s discretion, or similar factors, other than certain contingencies relating to the timing and amount of principal
and interest payments, as described in the Code, and (3) in the case of an issuer which is a corporation or a partnership, securities
that otherwise would be considered straight debt will not be so considered if we, and any of our “controlled TRSs” (as defined
in the Code), hold securities of the corporate or partnership issuer which (a) are not straight debt or other excluded securities
(prior to the application of this rule), and (b) have an aggregate value greater than 1% of the issuer’s outstanding securities
(including, for purposes of a partnership issuer, our interest as a partner in the partnership).
We intend to continue to maintain adequate records
of the value of our assets to ensure compliance with the asset tests and to take any available actions within 30 days after the
close of any quarter as may be required to cure any non-compliance with the asset tests. See “—Failure to Satisfy the Asset
Tests.” We may not obtain independent appraisals to support our conclusions concerning the values of some or all of our assets.
We do not intend to seek an IRS ruling as to the classification of our properties for purposes of the REIT asset tests. Accordingly,
there can be no assurance that the IRS will not contend that our assets or our interest in other securities will not cause a violation
of the REIT asset test requirements.
Failure to Satisfy the Asset Tests
The asset tests must be satisfied not only on
the last day of the calendar quarter in which we, directly or through pass-through subsidiaries, acquire securities in the applicable
issuer, but also on the last day of the calendar quarter in which we increase our ownership of securities in such issuer, including as
a result of increasing our interest in pass-through subsidiaries. An example of such an acquisition would be an increase in our interest
in the Operating Partnership as a result of the exercise of a limited partner’s redemption right relating to units in the Operating
Partnership or an additional capital contribution to the Operating Partnership of proceeds from an offering of shares by us. After
initially meeting the asset tests at the close of any quarter, we will not lose our qualification as a REIT for failure to satisfy the
asset tests at the end of a later quarter solely by reason of changes in asset values (including a failure caused solely by a change
in the foreign currency exchange rate used to value a foreign asset). If we fail to satisfy the asset tests because we acquire assets
during a quarter, we can cure this failure by disposing of sufficient non-qualifying assets or acquiring sufficient qualifying assets
within 30 days after the close of such quarter. We intend to continue to maintain adequate records of the value of our assets to
ensure compliance with the asset tests and to take any available action within 30 days after the close of any quarter as may be
required to cure any non-compliance with the asset tests. Although we plan to take steps to ensure that we satisfy such tests for any
quarter with respect to which testing is to occur, there can be no assurance that such steps always will be successful. If we fail to
timely cure any non-compliance with the asset tests, we would cease to qualify as a REIT, unless we satisfy certain relief provisions.
The failure to satisfy the 5% asset test, or the
10% vote or value asset tests, can be remedied even after the 30-day cure period under certain circumstances. Specifically, if we fail
these asset tests at the end of any quarter and such failure is not cured within 30 days thereafter, we may dispose of sufficient assets
(generally within six months after the last day of the quarter in which our identification of the failure to satisfy these asset tests
occurred) in order to cure such a violation that does not exceed the lesser of 1% of the value of our assets at the end of the relevant
quarter or $10 million. If we fail any of the other asset tests or our failure of the 5% and 10% asset tests results in a violation in
excess of the de minimis amount described above, as long as such failure was due to reasonable cause and not willful neglect, we are
permitted to avoid disqualification as a REIT, after the 30-day cure period, by taking steps including disposing of sufficient assets
to meet the asset test (generally within six months after the last day of the quarter in which our identification of the failure to satisfy
the REIT asset test occurred), paying a tax equal to the greater of $50,000 or the highest U.S. federal corporate income tax rate multiplied
by the net income generated by the non-qualifying assets during the period in which we failed to satisfy the asset test, and filing,
in accordance with applicable Treasury regulations, a schedule with the IRS that describes the assets that caused us to fail to satisfy
the asset test(s). We intend to take advantage of any and all relief provisions that are available to us in order to cure any violation
of the asset tests applicable to REITs. In certain circumstances, utilization of such provisions could result in us being required to
pay an excise or penalty tax, which tax could be significant in amount.
Annual Distribution Requirements
In order to qualify as a REIT, we are required
to distribute dividends, other than capital gain dividends, to our shareholders in an amount at least equal to:
| · | the sum of: (1) 90% of our “REIT taxable income,”
computed without regard to our net capital gain and the deduction for dividends paid, and
(2) 90% of our net income, after tax, if any, from foreclosure property; minus |
| · | the excess of the sum of specified items of “non-cash income”
over 5% of our REIT taxable income, computed without regard to our net capital gain and the
deduction for dividends paid. |
For purposes of this test, “non-cash income”
means income attributable to (1) leveled stepped rents, (2) original issue discount included in our taxable income without
the receipt of a corresponding payment, (3) cancellation of indebtedness, or (4) a like-kind exchange that later is determined
to be taxable.
We generally must make dividend distributions
in the taxable year to which they relate. Dividend distributions may be made in the following year in two circumstances. First, we may
declare a dividend in October, November, or December of any year with a record date in one of these months if we pay the dividend
on or before January 31 of the following year. Such dividends are treated as both paid by us and received by our shareholders on
December 31 of the year in which they are declared. Second, distributions may be made in the following year if they are declared
before we timely file our tax return for the year and if made with or before the first regular dividend payment after such declaration.
These distributions are taxable to our shareholders in the year in which paid, even though the distributions relate to our prior taxable
year for purposes of the 90% distribution requirement.
In order for distributions to be counted as satisfying
the annual distribution requirement for REITs, and to provide REITs with a REIT-level dividends paid deduction, the distributions must
not be “preferential dividends.” A distribution is not a preferential dividend if the distribution is (1) pro rata among
all outstanding shares within a particular class of shares and (2) in accordance with the preferences among different classes of
shares as set forth in the REIT’s organizational documents. This requirement does not apply to publicly offered REITs, including
us, but may apply to our subsidiary REITs.
To the extent that we distribute at least 90%,
but less than 100%, of our “REIT taxable income,” as adjusted, we will be subject to tax at U.S. federal corporate income
tax rates on the retained portion. We may elect to retain, rather than distribute, some or all of our net long-term capital gain and
pay tax on such gain. In this case, we could elect for our shareholders to include their proportionate share of such undistributed long-term
capital gain in their taxable income, and for them to receive a corresponding credit for their share of the U.S. federal corporate income
tax that we pay thereon. Our shareholders would then increase the adjusted basis of their share by the difference between (1) the
amount of capital gain dividends that we designated and that they included in their taxable income, and (2) the tax that we paid
on their behalf with respect to that capital gain.
To the extent that, in the future, we may have
available net operating losses carried forward from prior tax years, such losses may reduce the amount of distributions that we must
make in order to comply with the REIT distribution requirements. Our deduction for any net operating loss carryforwards arising from
losses we incur in taxable years beginning after December 31, 2017 is limited to 80% of our annual REIT taxable income (determined
without regard to the deduction for dividends paid), and any unused portion of such losses may not be carried back, but may be carried
forward indefinitely.
If we fail to distribute during each calendar
year at least the sum of (1) 85% of our ordinary income for such year, (2) 95% of our capital gain net income for such year,
and (3) any undistributed taxable income from prior periods, we would be subject to a non-deductible 4% excise tax on the excess
of such required distribution over the sum of (a) the amount actually distributed, and (b) the amount of income we retained
and on which we paid U.S. federal corporate income tax.
We expect that our REIT taxable income (determined
before our deduction for dividends paid) will be less than our cash flow because of depreciation and other non-cash charges included
in computing REIT taxable income. Accordingly, we anticipate that we will generally have sufficient cash or liquid assets to enable us
to satisfy the distribution requirements described above. However, from time to time, we may not have sufficient cash or other liquid
assets to meet these distribution requirements due to timing differences between the actual receipt of income and actual payment of deductible
expenses, and the inclusion of income and deduction of expenses in arriving at our taxable income.
The Code limits the deductibility of net interest
expense paid or accrued on debt properly allocable to a trade or business to 30% of “adjusted taxable income,” subject to
certain exceptions. Any deduction in excess of the limitation is carried forward and may be deducted in a subsequent year, again subject
to the 30% limitation. Adjusted taxable income is determined without regard to certain deductions, including those for net interest expense,
and net operating loss carryforwards. If we or our subsidiaries, as applicable, are eligible to make a timely election (which is irrevocable),
the 30% limitation does not apply to a trade or business involving real property development, redevelopment, construction, reconstruction,
rental, operation, acquisition, conversion, disposition, management, leasing or brokerage, within the meaning of Section 469(c)(7)(C) of
the Code. If this election is made, depreciable real property (including certain improvements) held by the relevant trade or business
must be depreciated under the alternative depreciation system under the Code, which is generally less favorable than the generally applicable
system of depreciation under the Code. If we do not make the election or if the election is determined not to be available with respect
to all or certain of our business activities, this interest deduction limitation could result in us having more REIT taxable income and
thus increase the amount of distributions we must make to comply with the REIT distribution requirements and avoid incurring U.S. federal
corporate income tax. Similarly, the limitation could cause our TRSs to have greater taxable income and thus potentially greater corporate
tax liability.
Furthermore, under amendments to Section 451
of the Code, subject to certain exceptions, we must accrue income for U.S. federal income tax purposes no later than when such income
is taken into account as revenue in our financial statements, which could create additional differences between REIT taxable income and
the receipt of cash attributable to such income. In addition, Section 162(m) of the Code places a per-employee limit of $1
million on the amount of compensation that a publicly held corporation may deduct in any one year with respect to its chief executive
officer and certain other highly compensated executive officers. Changes to Section 162(m) eliminated an exception that formerly
permitted certain performance-based compensation to be deducted even if in excess of $1 million, which may have the effect of increasing
our REIT taxable income. If these timing differences occur, we may need to arrange for short-term, or possibly long-term, borrowings
or need to pay dividends in the form of taxable stock dividends in order to meet the distribution requirements.
We may be able to rectify a failure to meet the
distribution requirement for a year by paying “deficiency dividends” to our shareholders in a later year, which may be included
in our deduction for dividends paid for the earlier year. Thus, we may be able to avoid being taxed on amounts distributed as deficiency
dividends. However, we will be required to pay interest to the IRS based upon the amount of any deduction claimed for deficiency dividends.
Like-Kind Exchanges
We may dispose of hotels in transactions intended
to qualify as like-kind exchanges under Section 1031 of the Code. Such like-kind exchanges are intended to result in the deferral
of gain for U.S. federal income tax purposes. The failure of any such transaction to qualify as a like-kind exchange could require us
to pay U.S. federal corporate income tax, including the built-in gains tax, and possibly including the 100% prohibited transaction tax,
depending on the facts and circumstances of the particular transaction. The preferential tax treatment applicable to like-kind exchanges
is limited to exchanges of real property not held primarily for sale. Accordingly, exchanges of personal property and intangible property
will not qualify for deferral under Section 1031 of the Code.
Record-Keeping Requirements
We are required to maintain records and request
on an annual basis information from specified shareholders. These requirements are designed to assist us in determining the actual ownership
of our outstanding shares and in maintaining our qualification as a REIT. Failure to comply therewith could result in monetary fines.
Failure to Qualify as a REIT
If we fail to satisfy one or more requirements
for REIT qualification other than the gross income or asset tests, we could avoid disqualification if our failure is due to reasonable
cause and not to willful neglect and we pay a penalty of $50,000 for each such failure. Relief provisions are available for failures
of the gross income tests and asset tests, as described above in “—Gross Income Tests” and “—Asset Tests.”
If we fail to qualify as a REIT in any taxable
year, and the relief provisions described above do not apply, we would be subject to tax, including any applicable alternative minimum
tax, on our taxable income at U.S. federal corporate income tax rates. We would be unable to deduct distributions to shareholders in
any year in which we are not a REIT, and we would not be required to make distributions in such a year. As a result, the cash available
for distribution to our shareholders would be reduced significantly and the value of our shares could be reduced materially. Any distributions
to shareholders would be taxable to such shareholders as dividends to the extent of our current and accumulated earnings and profits
(as determined for U.S. federal income tax purposes). Such dividends paid to U.S. holders of our common stock that are individuals, trusts
and estates may be taxable at preferential income tax rates (i.e., the 23.8% maximum U.S. federal rate for capital gain, which rate takes
into account the maximum capital gain tax rate of 20% and the 3.8% Medicare tax on net investment income, described below under “—Medicare
Tax on Net Investment Income”) for qualified dividends. Such dividends, however, would not be eligible for the 20% deduction on
“qualified” REIT dividends allowed by Section 199A of the Code generally available to U.S. holders of our common stock
that are individuals, trusts or estates for taxable years beginning after December 31, 2017 and before January 1, 2026. In
addition, subject to the limitations of the Code, corporate distributees may be eligible for the dividends received deduction. Unless
we were entitled to relief under specific statutory provisions, we also would be disqualified from re-electing to be taxed as a REIT
for the four taxable years following the year during which we lost qualification. In addition, if we merge with another REIT, and we
are the “successor” to the other REIT, the other REIT’s disqualification from taxation as a REIT would prevent us from
being taxed as a REIT for the four taxable years following the year during which the other REIT’s qualification was lost. It is
not possible to state whether, in all circumstances, we would be entitled to statutory relief, although we intend to take advantage of
any and all relief provisions that are available to us to cure any violation of the requirements applicable to REITs.
Tax Aspects of the Operating Partnership and
Other RLJ Subsidiary Partnerships
General
Substantially all of our assets are owned indirectly
through the Operating Partnership, which owns hotels either directly or through certain subsidiaries (including through subsidiary REITs).
This discussion focuses on the tax aspects of RLJ’s ownership of its hotel properties through partnerships and entities, such as
limited liability companies, that are treated as partnerships for U.S. federal income tax purposes. In general, partnerships are “pass-through”
entities that are not subject to U.S. federal income tax. Rather, partners are allocated their proportionate shares of the items of income,
gain, loss, deduction and credit of a partnership, and potentially are subject to tax thereon, without regard to whether the partners
receive a distribution from the partnership. We include in our gross income our proportionate share of partnership items for purposes
of the gross income tests and in the computation of our REIT taxable income. Moreover, for purposes of the REIT asset tests, we include
our proportionate share of assets held through the Operating Partnership and those of its subsidiaries that either are disregarded as
separate entities or treated as partnerships for U.S. federal income tax purposes. See “U.S. Federal Income Taxation of the Company
as a REIT—Effect of Subsidiary Entities—Ownership of Partnerships, Limited Liability Companies and Qualified REIT Subsidiaries”
above.
Entity Classification
If the Operating Partnership or any non-corporate
subsidiary were treated as an association, the entity would be taxable as a corporation and, therefore, would be subject to U.S. federal
income tax on its taxable income. In such a situation, the character of our assets and items of gross income would change and could preclude
us from qualifying as a REIT (see “U.S. Federal Income Taxation of the Company as a REIT —Asset Tests” and “U.S.
Federal Income Taxation of the Company as a REIT —Gross Income Tests” above).
We assume for purposes of this discussion that
the Operating Partnership and all of its subsidiaries (other than our TRSs and subsidiary REITs) are classified as partnerships or disregarded
as separate entities for U.S. federal income tax purposes. Pursuant to Treasury regulations under Section 7701 of the Code, a partnership
will be treated as a partnership for U.S. federal income tax purposes unless it elects to be treated as a corporation or is treated as
a corporation because it is a “publicly traded partnership.”
Neither the Operating Partnership nor any of its
non-corporate subsidiaries that is not a TRS has elected or will elect to be treated as a corporation. Therefore, subject to the
disclosure below, the Operating Partnership and each such subsidiary will be treated as a partnership for U.S. federal income tax purposes
(or, if such an entity only has one partner or member, a disregarded entity for U.S. federal income tax purposes).
Pursuant to Section 7704 of the Code, a partnership
that does not elect to be treated as a corporation nevertheless will be treated as a corporation for U.S. federal income tax purposes
if it is a “publicly traded partnership” and it does not derive at least 90% of its gross income from certain specified sources
of “qualifying income” within the meaning of that section. A “publicly traded partnership” is any partnership
(i) the interests of which are traded on an established securities market, or (ii) the interests of which are readily tradable
on a “secondary market or the substantial equivalent thereof.” OP Units currently are not and in the future will not be traded
on an established securities market. There is a significant risk, however, that the OP Units could be considered readily tradable on
the substantial equivalent of a secondary market. In that event, the Operating Partnership could be treated as a “publicly traded
partnership,” but even then it only would be taxable as a corporation if less than 90% of its gross income were to constitute “qualifying
income.” Treasury regulations under Section 7704 of the Code set forth certain “safe harbors” under which interests
will not be treated as “readily tradable on a secondary market (or the substantial equivalent thereof)” within the meaning
of Section 7704 of the Code (the “Safe Harbors”).
“Qualifying income,” for purposes
of the “qualifying income” exception, generally is real property rents and other types of passive income. We believe that
the Operating Partnership has had and will continue to have sufficient qualifying gross income so that it would be taxed as a partnership
even if it were considered a publicly traded partnership. The gross income requirements applicable to us in order for us to qualify as
a REIT under the Code and the definition of qualifying income under the publicly traded partnership rules are very similar. Although
differences exist between these two gross income tests, we do not believe that these differences would cause the Operating Partnership
not to satisfy the 90% gross income test applicable to publicly traded partnerships.
If the Operating Partnership were taxable as a
corporation, most, if not all, of the tax consequences described herein would be inapplicable. In particular, we would not qualify as
a REIT because the value of our ownership interest in the Operating Partnership would exceed 5% of our assets and we would be considered
to hold more than 10% of the voting securities (and more than 10% of the value of the outstanding securities) of another corporation
(see “—Asset Tests” above). In this event, the value of our shares could be materially adversely affected (see “—Failure
to Qualify as a REIT” above).
Except with regard to the exercise of the right
to redeem the OP Units and certain “permitted transfers” (generally among related individuals or entities) under the Operating
Partnership’s partnership agreement, no limited partner may transfer OP Units without our prior written consent, as general partner
of the Operating Partnership, which consent may be withheld in our sole discretion. The Operating Partnership’s partnership agreement
provides that we shall take such actions, if any, that are reasonably necessary or appropriate to prevent the Operating Partnership from
being classified as a publicly traded partnership and, except as provided otherwise in the partnership agreement, to permit the Operating
Partnership to insure that at least one of the Safe Harbors is met. We may exercise our authority, as general partner, under the partnership
agreement to impose limitations on the right to redeem OP Units only to the extent that outside tax counsel provides to us an opinion
to the effect that, in the absence of such limitation or restriction, there is a significant risk that the Operating Partnership will
be treated as a publicly traded partnership and, by reason thereof, taxable as a corporation. These limitations, if imposed, could adversely
affect the interests of holders of OP Units.
Partnership Tax Allocations
A partnership agreement generally will determine
the allocation of income and loss among partners. However, such allocations will be disregarded for U.S. federal income tax purposes
if they do not comply with the provisions of Section 704(b) of the Code and the regulations promulgated thereunder. Generally,
Section 704(b) of the Code and the regulations promulgated thereunder require that partnership allocations respect the economic
arrangement of the partners.
If an allocation is not recognized for U.S. federal
income tax purposes, the item subject to the allocation will be reallocated in accordance with the partners’ interests in the partnership,
which will be determined by taking into account all of the facts and circumstances relating to the economic arrangement of the partners
with respect to such item. The allocations of taxable income and loss provided for in the Operating Partnership’s partnership agreement
and the partnership agreements and operating agreements of the non-corporate subsidiaries are intended to comply with the requirements
of Section 704(b) of the Code and the regulations promulgated thereunder.
Tax Allocations with Respect to the Hotels
Pursuant to Section 704(c) of the Code,
income, gain, loss and deduction attributable to appreciated or depreciated property, such as the hotels, that is contributed to a partnership
in exchange for an interest therein must be allocated in a manner such that the contributing partner is charged with, or benefits from,
the difference between the adjusted tax basis and the fair market value of such property at the time of contribution. This difference
is known as built-in gain or built-in loss. The Operating Partnership’s partnership agreement requires that such allocations be
made in a manner consistent with Section 704(c) of the Code. In general, the partners of the Operating Partnership, including
us, who contributed appreciated assets with built-in gain are allocated depreciation deductions for U.S. federal income tax purposes
that are lower than such deductions would be if determined on a pro rata basis. Thus, the carryover basis of the contributed assets in
the hands of the Operating Partnership may cause us to be allocated lower depreciation and other deductions, and therefore to be effectively
allocated more income, which might adversely affect our ability to comply with the REIT distribution requirements and/or cause a higher
proportion of our distributions to our shareholders to be taxed as dividends. See “U.S. Federal Income Taxation of the Company
as a REIT—Annual Distribution Requirements” above.
In addition, in the event of the disposition of
any of the contributed assets with built-in gain, all income attributable to the built-in gain generally will be allocated to the contributing
partners, even though the proceeds of such sale would be distributed proportionately among all the partners and could be retained by
us rather than distributed to our shareholders. Thus, if the Operating Partnership were to sell a hotel with built-in gain that
was contributed to the Operating Partnership by us, we generally would be allocated all of the income attributable to the built-in gain,
which amount could exceed the economic, or “book,” income allocated to us as a result of such sale. Such an allocation might
cause us to recognize taxable income in excess of cash proceeds, which might adversely affect our ability to comply with the REIT distribution
requirements. It should be noted that, as the general partner of the Operating Partnership, we will determine whether or not to
sell a hotel that we contributed to the Operating Partnership.
As the general partner of the Operating Partnership,
we have the authority to elect the method to be used to account for built-in gain with respect to assets contributed to the Operating
Partnership. Any property purchased by the Operating Partnership initially will have an adjusted tax basis equal to its fair market value,
and Section 704(c) of the Code will not apply.
U.S. Federal Income Taxation of Our Shareholders
Taxation of Taxable U.S. Shareholders
This section summarizes the taxation of U.S. shareholders
that are not tax-exempt organizations. For these purposes, the term “U.S. shareholder” is a beneficial owner of our shares
that, for U.S. federal income tax purposes, is:
| · | a citizen or resident of the United States; |
| · | a corporation (including an entity treated as a corporation 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 (including the District of Columbia); |
| · | 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. |
If an entity or arrangement treated as a partnership
for U.S. federal income tax purposes holds our shares, the U.S. federal income tax treatment of a partner generally will depend upon
the status of the partner and the activities of the partnership. A partner of a partnership holding our shares should consult its own
tax advisor regarding the U.S. federal income tax consequences to the partner of the acquisition, ownership and disposition of our shares
by the partnership.
If you hold our shares and are not a U.S. shareholder
or an entity or arrangement that is treated as a partnership for U.S. federal income tax purposes, you are a non-U.S. shareholder.
Distributions Generally
The distributions that we make to our taxable
U.S. shareholders out of current or accumulated earnings and profits that we do not designate as capital gain dividends or as qualified
dividend income will be taken into account by shareholders as ordinary income when actually or constructively received. As long
as we qualify as a REIT, these distributions will not be eligible for the dividends-received deduction for U.S. shareholders that are
corporations. In determining the extent to which a distribution with respect to our shares constitutes a dividend for U.S. federal income
tax purposes, our earnings and profits will be allocated first to distributions with respect to our preferred shares, if any, and then
to our common shares. Except for dividends that we designate as qualified dividend income, dividends received from REITs are not eligible
to be taxed at the preferential qualified dividend income tax rates currently available to individual U.S. shareholders who receive dividends
from taxable C corporations. For taxable years prior to January 1, 2026, U.S. shareholders that are individuals, trusts or
estates may deduct 20% of the aggregate amount of ordinary dividends distributed by us, subject to certain limitations.
Distributions from us in excess of our current
and accumulated earnings and profits will not be taxable to a U.S. shareholder to the extent that they do not exceed the adjusted basis
of the U.S. shareholder’s shares in respect of which the distributions were made. Rather, the distribution will reduce the adjusted
basis of these shares. To the extent that such distributions exceed the adjusted basis of a U.S. shareholder’s shares, the U.S.
shareholder generally must include such distributions in income as long-term capital gain if the shares have been held for more than
one year, or short-term capital gain if the shares have been held for one year or less. In addition, any dividend that we declare in
October, November or December of any year and that is payable to a shareholder of record on a specified date in any such month
will be treated as both paid by us and received by the shareholder on December 31 of such year, provided that we actually pay the
dividend before the end of January of the following calendar year.
To the extent that we have available net operating
losses and capital losses carried forward from prior tax years, such losses may reduce the amount of distributions that we must make
in order to comply with the REIT distribution requirements. See “U.S. Federal Income Taxation of the Company as a REIT—Annual
Distribution Requirements.” Such losses, however, are not passed through to U.S. shareholders and may not be used to offset income
of U.S. shareholders from other sources on their income tax returns. Such losses would not affect the character of any distributions
that we make, which generally are subject to tax in the hands of U.S. shareholders to the extent that we have current or accumulated
earnings and profits.
Capital Gain Dividends
We may elect to designate distributions of our
net capital gain as “capital gain dividends.” Distributions that we designate as capital gain dividends generally will be
taxed to U.S. shareholders as long-term capital gain, without regard to the period during which the U.S. shareholder that receives such
distribution has held its shares, to the extent that such gain does not exceed our actual net capital gain for the taxable year.
Designations made by us only will be effective to the extent that they comply with Revenue Ruling 89-81, which requires that distributions
made to different classes of shares be composed proportionately of dividends of a particular type. If we designate any portion of a dividend
as a capital gain dividend, a U.S. shareholder will receive an IRS Form 1099-DIV indicating the amount that will be taxable to the
U.S. shareholder as capital gain. Corporate U.S. shareholders may be required to treat up to 20% of some capital gain dividends as ordinary
income. Recipients of capital gain dividends from us that are taxed at U.S. federal corporate income tax rates will be taxed at the normal
U.S. federal corporate income tax rates on these dividends.
We may elect to retain and pay taxes on some or
all of our net long-term capital gain, in which case U.S. shareholders will be treated as having received, solely for U.S. federal income
tax purposes, our undistributed capital gain as well as a corresponding credit or refund, as the case may be, for taxes that we paid
on such undistributed capital gain. The U.S. shareholder will increase the basis in its shares by the difference between the amount of
capital gain included in its income and the amount of tax it is deemed to have paid. Our earnings and profits, and the earnings
and profits of U.S. shareholders that are corporations, will be adjusted for the undistributed capital gains in accordance with Treasury
regulations to be prescribed by the IRS. See “U.S. Federal Income Taxation of the Company as a REIT—Annual Distribution
Requirements.”
We will classify portions of any designated capital
gain dividend or undistributed capital gain as either:
| · | a long-term capital gain distribution, which would be taxable to non-corporate
U.S. shareholders at a maximum rate of up to 23.8% (which rate takes into account the maximum
capital gain rate of 20% and the 3.8% Medicare tax on net investment income, described below
under “—Medicare Tax on Net Investment Income”), and taxable to U.S. shareholders
that are corporations at a maximum rate of 21%; or |
| · | an “unrecaptured Section 1250 gain” distribution,
which would be taxable to non-corporate U.S. shareholders at a maximum rate of 25%, to the
extent of previously claimed real property depreciation deductions. |
The maximum amount of dividends that we may designate
as capital gain and as “qualified dividend income” (discussed below) with respect to any taxable year may not exceed the
dividends actually paid by us with respect to such year, including dividends paid by us in the succeeding tax year that relate back to
the prior tax year for purposes of determining our dividends paid deduction.
Qualified Dividend Income
With respect to U.S. shareholders who are taxed
at the rates applicable to individuals, we may designate a portion of our distributions paid to such U.S. shareholders as “qualified
dividend income.” A portion of a distribution that is properly designated as qualified dividend income is taxable to non-corporate
U.S. shareholders as capital gain, provided that the U.S. shareholder has held the shares with respect to which the distribution is made
for more than 60 days during the 121-day period beginning on the date that is 60 days before the date on which such shares became
ex-dividend with respect to the relevant distribution. The maximum amount of our distributions eligible to be designated as qualified
dividend income for a taxable year is equal to the sum of:
| · | the qualified dividend income received by us during such taxable year
from non-REIT corporations (including any TRS in which we own an interest); |
| · | the excess of any “undistributed” REIT taxable income recognized
during the immediately preceding year over the U.S. federal corporate income tax paid by
us with respect to such undistributed REIT taxable income; and |
| · | the excess of any income recognized during the immediately preceding
year attributable to the sale of a built-in-gain asset that was acquired in a carry-over
basis transaction from a non-REIT C corporation over the U.S. federal corporate income tax
paid by us with respect to such built-in gain. |
Generally, dividends that we receive will be treated
as qualified dividend income for purposes of the first bullet above if (1) the dividends are received from (a) a U.S. C corporation
(other than a REIT or a RIC under Section 851(a) of the Code), (b) any TRS that we may form, or (c) a “qualifying
foreign corporation,” and (2) specified holding period requirements and other requirements are met. If we designate any portion
of a dividend as qualified dividend income, a U.S. shareholder will receive an IRS Form 1099-DIV indicating the amount thereof.
Passive Activity Losses and Investment
Interest Limitations
Distributions made by us and gain arising from
the sale or exchange by a U.S. shareholder of our shares will not be treated as passive activity income. As a result, U.S. shareholders
will not be able to apply any “passive losses” against income or gain relating to our shares. Distributions made by us, to
the extent they do not constitute a return of capital, generally will be treated as investment income for purposes of computing the investment
interest limitation. A U.S. shareholder that elects to treat capital gain dividends, capital gain from the disposition of shares, or
qualified dividend income as investment income for purposes of the investment interest limitation will be taxed at ordinary income rates
on such amounts. We intend to notify U.S. shareholders regarding the portions of distributions for each year that constitute ordinary
income, return of capital and capital gain in compliance with the applicable IRS guidance.
Distributions to Holders of Depositary Shares
Owners of depositary shares will be treated for
U.S. federal income tax purposes as if they were owners of the underlying preferred shares represented by such depositary shares. Accordingly,
such owners will be entitled to take into account, for U.S. federal income tax purposes, income and deductions to which they would be
entitled if they were direct holders of underlying preferred shares. In addition, (i) no gain or loss will be recognized for U.S.
federal income tax purposes upon the withdrawal of certificates evidencing the underlying preferred shares in exchange for depositary
receipts, (ii) the tax basis of each share of the underlying preferred shares to an exchanging owner of depositary shares will,
upon such exchange, be the same as the aggregate tax basis of the depositary shares exchanged therefor, and (iii) the holding period
for the underlying preferred shares in the hands of an exchanging owner of depositary shares will include the period during which such
person owned such depositary shares.
Dispositions of Our Shares
In general, a U.S. shareholder will realize gain
or loss upon the sale, redemption or other taxable disposition of our shares in an amount equal to the difference between the sum of
the fair market value of any property and the amount of cash received in such disposition and the U.S. shareholder’s adjusted tax
basis in the shares at the time of the disposition. In general, a U.S. shareholder’s adjusted tax basis will equal the U.S. shareholder’s
acquisition cost, increased by the excess for net capital gain deemed distributed to the U.S. shareholder (discussed above) less tax
deemed paid on it and reduced by returns of capital.
In general, capital gain recognized by individuals
and other non-corporate U.S. shareholders upon the sale or disposition of our shares will be subject to a maximum U.S. federal income
tax rate of up to 23.8% (which rate takes into account the maximum capital gain rate of 20% and the 3.8% Medicare tax on net investment
income, described below), if our shares are held for more than one year, and will be taxed at ordinary income tax rates (of up to 40.8%
for taxable years beginning before January 1, 2026, which rate takes into account the maximum ordinary income tax rate of 37% and
the 3.8% Medicare tax on net investment income, described below) if the shares are held for one year or less. Gains recognized by U.S.
shareholders that are corporations are subject to U.S. federal income tax at a maximum rate of 21%, whether or not such gains are classified
as long-term capital gain or ordinary income. The IRS has the authority to prescribe, but has not yet prescribed, Treasury Regulations
that would apply a capital gain tax rate of 25% (which is higher than the long-term capital gain tax rate for non-corporate U.S. shareholders)
to all or a portion of capital gain realized by a non-corporate U.S. shareholder on the sale of shares of our common stock that would
correspond to a shareholder’s share of our “unrecaptured Section 1250 gain.” U.S. shareholders should consult
with their tax advisors with respect to their capital gain tax liability.
A capital loss recognized by a U.S. shareholder
upon the disposition of our shares that were held for more than one year at the time of disposition will be considered a long-term capital
loss, which generally is available only to offset capital gain of the shareholder, but not ordinary income (except in the case of individuals,
who may offset up to $3,000 of ordinary income each year). In addition, any loss upon a sale or exchange of our shares by a U.S. shareholder
who has held the shares for six months or less, after applying holding period rules, will be treated as a long-term capital loss to the
extent of distributions that we make that are required to be treated by the U.S. shareholder as long-term capital gain.
Redemption of Preferred Shares and Depositary
Shares
Whenever we redeem any preferred shares held by
the depositary, the depositary will redeem as of the same redemption date the number of depositary shares representing the preferred
shares so redeemed. The treatment accorded to any redemption by us for cash (as distinguished from a sale, exchange or other disposition)
of our preferred shares to a holder of such preferred shares can only be determined on the basis of the particular facts as to each holder
at the time of redemption. In general, a holder of our preferred shares will recognize capital gain or loss measured by the difference
between the amount received by the holder of such shares upon the redemption and such holder’s adjusted tax basis in the preferred
shares redeemed (provided the preferred shares are held as a capital asset) if such redemption (i) is “not essentially equivalent
to a dividend” with respect to the holder of the preferred shares under Section 302(b)(1) of the Code, (ii) is a
“substantially disproportionate” redemption with respect to the shareholder under Section 302(b)(2) of the Code,
or (iii) results in a “complete termination” of the holder’s interest in all classes of our shares under Section 302(b)(3) of
the Code. In applying these tests, there must be taken into account not only any series or class of the preferred shares being redeemed,
but also such holder’s ownership of other classes of our shares and any options (including stock purchase rights) to acquire any
of the foregoing. The holder of our preferred shares also must take into account any such securities (including options) which are considered
to be owned by such holder by reason of the constructive ownership rules set forth in Sections 318 and 302(c) of the Code.
A redemption of preferred shares will satisfy
the “not essentially equivalent to a dividend” exception if it results in a “meaningful reduction” of the holder’s
proportionate interest in the Company. If the holder of preferred shares owns (actually or constructively) none of our voting shares,
or owns an insubstantial amount of our voting shares, based upon current law, it is probable that the redemption of preferred shares
from such a holder would be considered to be “not essentially equivalent to a dividend.” However, whether a distribution
is “not essentially equivalent to a dividend” depends on all of the facts and circumstances, and a holder of our preferred
shares intending to rely on any of these tests at the time of redemption should consult its tax advisor to determine their application
to its particular situation.
Satisfaction of the “substantially disproportionate”
and “complete termination” exceptions is dependent upon compliance with the respective objective tests set forth in Section 302(b)(2) and
Section 302(b)(3) of the Code.
A distribution to a holder of preferred shares
will be “substantially disproportionate” if the percentage of our outstanding voting shares actually and constructively owned
by the shareholder immediately following the redemption of preferred shares (treating preferred shares redeemed as not outstanding) is
less than 80% of the percentage of our outstanding voting shares actually and constructively owned by the shareholder immediately before
the redemption, and immediately following the redemption the shareholder actually and constructively owns less than 50% of the total
combined voting power of the Company. Because the Company’s preferred shares are nonvoting shares, a shareholder would have to
reduce such holder’s holdings (if any) in our classes of voting shares to satisfy this test.
A redemption of preferred shares will result in
a “complete termination” if either (i) the holder owns none of the Company’s shares of any class, either actually
or constructively, after the preferred shares are redeemed, or (ii) the holder does not actually own any of the Company’s
shares of any class immediately after the redemption of preferred shares and, with respect to shares constructively owned, is eligible
to waive, and effectively waives, constructive ownership of all such shares. Holders wishing to satisfy the “complete termination”
test through waiver of attribution should consult their own tax advisors.
If the redemption does not meet any of the tests
under Section 302 of the Code, then the redemption proceeds received from our preferred shares will be treated as a distribution
on our shares as described under “U.S. Federal Income Taxation of Our Shareholders—Taxation of Taxable U.S. Shareholders—
Distributions Generally,” and “—Taxation of Non-U.S. Shareholders—Distributions Generally.” If the redemption
of a holder’s preferred shares is taxed as a dividend, the adjusted tax basis of such holder’s redeemed preferred shares
will be transferred to any other shares held by the holder. If the holder owns no other shares, under certain circumstances, such tax
basis may be transferred to a related person, or it may be lost entirely.
With respect to a redemption of our preferred
shares that is treated as a distribution with respect to our shares, which is not otherwise taxable as a dividend, the IRS had proposed
Treasury regulations that would require any tax basis reduction associated with such a redemption to be applied on a share-by-share tax
basis which could result in taxable gain with respect to some shares, even though the holder’s aggregate tax basis for the shares
would be sufficient to absorb the entire amount of the redemption distribution (in excess of any amount of such distribution treated
as a dividend). Additionally, these proposed Treasury regulations did not permit the transfer of tax basis in the redeemed shares of
the preferred shares to the remaining shares held (directly or indirectly) by the redeemed holder. Instead, the unrecovered tax basis
in our preferred shares would be treated as a deferred loss to be recognized when certain conditions are satisfied. These proposed Treasury
regulations have been withdrawn and, although the IRS has reaffirmed its support for a share-by-share basis recovery approach, there
is no indication as to whether regulations or other guidance on this issue will be promulgated in the future.
Substantially contemporaneous dispositions or
acquisitions of shares by a holder or a related person that are part of a plan viewed as an integrated transaction with the redemption
of preferred shares may be taken into account in determining whether any of the tests described above are satisfied. Due to the factual
nature of the Section 302 tests explained above, holders should consult their tax advisers to determine whether the redemption of
their preferred shares qualifies for sale or exchange treatment in their particular circumstances.
Medicare Tax on Net Investment
Income
Certain U.S. individuals, estates, and trusts
are subject to an additional 3.8% tax on net investment income. Net investment income, for this purpose, includes dividends and gain
from the sale of stock. In the case of an individual, the tax will be 3.8% of the lesser of the individual’s net investment income
or the excess of the individual’s modified adjusted gross income over an amount equal to (1) $250,000, in the case of a married
individual filing a joint return or a surviving spouse, (2) $125,000, in the case of a married individual filing a separate return,
or (3) $200,000 in the case of a single individual. The temporary 20% deduction allowed by Section 199A of the Code with respect
to ordinary REIT dividends received by non-corporate taxpayers is allowed only for purposes of Chapter 1 of the Code and, thus, apparently
is not allowed as a deduction allocable to such dividends for purposes of determining the amount of net investment income subject to
the 3.8% Medicare tax, which is imposed under Chapter 2A of the Code. U.S. shareholders should consult their tax advisors regarding this
tax on net investment income.
Withholding on Payments in Respect of Certain
Foreign Accounts
Certain future payments made to “foreign
financial institutions” and “non-financial foreign entities” may be subject to withholding at a rate of 30%. U.S. shareholders
should consult their tax advisors regarding the effect, if any, of this withholding provision on their ownership and disposition of our
shares. See “—Taxation of Non-U.S. Shareholders—Foreign Account Tax Compliance Act.”
Information Reporting Requirements
and Backup Withholding
We will report to our shareholders and to the
IRS the amount of dividends we pay during each calendar year and the amount of tax we withhold, if any. Generally, dividend payments
are not subject to withholding; however, they may be subject to backup withholding. A shareholder may be subject to backup withholding
at a rate of 24% with respect to dividends, unless the holder:
| · | is a corporation or is considered exempt therefrom pursuant to 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. |
A shareholder who does not provide us with its
correct taxpayer identification number also may be subject to penalties imposed by the IRS. Any amount paid as backup withholding will
be creditable against the shareholder’s U.S. federal income tax liability. In addition, we may be required to withhold a portion
of any capital gain dividends paid to any shareholders who fail to certify their non-foreign status to us. For a discussion of the backup
withholding rules as applied to non-U.S. shareholders, see “—Taxation of Non-U.S. Shareholders.”
Taxation of Tax-Exempt U.S.
Shareholders
U.S. tax-exempt entities, including qualified
employee pension and profit sharing trusts and individual retirement accounts, generally are exempt from federal income taxation. Such
entities, however, may be subject to taxation on their unrelated business taxable income (“UBTI”). While some investments
in real estate may generate UBTI, the IRS has ruled that dividend distributions from a REIT to a tax-exempt entity generally do not constitute
UBTI. Based on that ruling, and provided that (1) a tax-exempt shareholder has not held our shares as “debt financed property”
within the meaning of the Code (i.e., where the acquisition or holding of the property is financed through a borrowing by the U.S.
tax-exempt shareholder), and (2) our shares are not otherwise used in an unrelated trade or business, dividend income from us and
gain from the sale of our shares generally should not give rise to UBTI to a U.S. tax-exempt shareholder.
Tax-exempt U.S. shareholders that are social clubs,
voluntary employee benefit associations, and supplemental unemployment benefit trusts exempt from U.S. federal income taxation under
Sections 501(c)(7), (c)(9), or (c)(17) of the Code, respectively, or single parent title-holding corporations exempt under Section 501(c)(2) of
the Code whose income is payable to any of the aforementioned tax-exempt organizations, are subject to different UBTI rules. These
rules generally require such shareholders to characterize distributions from us as UBTI unless the organization is able to claim
properly a deduction for amounts set aside or placed in reserve for certain purposes so as to offset the income generated by its investment
in our shares. These shareholders should consult with their own tax advisors concerning these set aside and reserve requirements.
In certain circumstances, a pension trust (1) that
is described in Section 401(a) of the Code, (2) that is tax exempt under Section 501(a) of the Code, and (3) that
owns more than 10% of our shares, could be required to treat a percentage of the dividends as UBTI, if we are a “pension-held REIT.”
We will not be a pension-held REIT unless:
| · | either (1) one pension trust owns more than 25% of the value of
our shares, or (2) one or more pension trusts, each individually holding more than 10%
of the value of our shares, collectively own more than 50% of the value of our shares; and |
| · | we would not have qualified as a REIT but for the fact that Section 856(h)(3) of
the Code provides that shares owned by such trusts shall be treated as owned by the beneficiaries
of such trusts for purposes of the requirement that not more than 50% of the value of the
outstanding shares of a REIT may be owned, directly or indirectly, by five or fewer “individuals”
(as defined in the Code to include certain entities). |
As a result of restrictions on the ownership and
transfer of our shares contained in our declaration of trust, we do not expect to be classified as a “pension-held REIT,”
and, as a result, the tax treatment described above should be inapplicable to our shareholders. However, because our shares are
publicly traded, we cannot guarantee that this always will be the case.
Tax-exempt U.S. shareholders are urged to consult
their tax advisors regarding the U.S. federal, state, local and foreign income and other tax consequences of owning our shares.
Taxation of Non-U.S. Shareholders
The following is a discussion of rules governing
the federal income taxation of the ownership and disposition of our shares by our non-U.S. shareholders. For purposes of this summary,
a “non-U.S. shareholder” is a beneficial owner of our shares that is not a U.S. shareholder (as defined above under “U.S.
Federal Income Taxation of Our Shareholders”) or an entity that is treated as a partnership for U.S. federal income tax purposes.
Except as specifically noted below, the discussion does not address the federal income taxation of the ownership and disposition of our
shares by non-U.S. shareholders who have held more than 10% of our shares or by non-U.S. shareholders who are “qualified shareholders”
as defined in Section 897(k)(3)(A) of the Code. These rules are complex, and no attempt is made herein to provide more
than a brief summary of such rules. Accordingly, this discussion does not address all aspects of federal income taxation, and we urge
non-U.S. shareholders to consult with their tax advisors regarding the effect of U.S. federal, state, local and non-U.S. income tax laws
on the ownership and disposition of our shares.
Distributions Generally
As described in the discussion below, distributions
made by us with respect to our common shares, preferred shares and depositary shares will be treated for U.S. federal income tax purposes
as:
| · | ordinary income dividends; |
| · | return of capital distributions; or |
| · | capital gain dividends (including unrecaptured Section 1250
gain). |
This discussion assumes that our shares will continue
to be considered regularly traded on an established securities market for purposes of the Foreign Investment in Real Property Tax Act
of 1980 (“FIRPTA”) provisions described below. If our shares no longer are regularly traded on an established securities
market, the tax consequences described below would materially differ.
Ordinary Income Dividends
A distribution made by us to a non-U.S. shareholder
will be treated as an ordinary income dividend if the distribution is paid out of our earnings and profits and:
| · | is not attributable to our net capital gain, or |
| · | the distribution is attributable to our net capital gain from the sale
of “U.S. real property interests” (“USRPIs”) and the non-U.S. shareholder
owns 10% or less of the value of a class of our shares at all times during the one-year period
ending on the date of the distribution. |
In general, non-U.S. shareholders will not be
considered to be engaged in a U.S. trade or business solely as a result of their ownership of our shares. In cases where the dividend
income from a non-U.S. shareholder’s investment in our shares is, or is treated as, effectively connected with the non-U.S. shareholder’s
conduct of a U.S. trade or business, the non-U.S. shareholder generally will be subject to U.S. federal income tax at graduated rates
in the same manner as U.S. shareholders are taxed with respect to such dividends. Such income generally must be reported on a U.S. income
tax return filed by or on behalf of the non-U.S. shareholder. The income also may be subject to the 30% branch profits tax in the case
of a non-U.S. shareholder that is a corporation.
Generally, we will withhold and remit to the IRS
30% of dividend distributions (including distributions that later may be determined to have been made in excess of current and accumulated
earnings and profits) that could not be treated as FIRPTA gain distributions with respect to the non-U.S. shareholder (and that are not
deemed to be capital gain dividends for purposes of the FIRPTA withholding rules described below) unless:
| · | a lower treaty rate applies and the non-U.S. shareholder files with
us an IRS Form W-8BEN or W-8BEN-E evidencing eligibility for that reduced treaty rate; |
| · | the non-U.S. shareholder files an IRS Form W-8ECI with us claiming
that the distribution is income effectively connected with the non-U.S. shareholder’s
trade or business; or |
| · | the non-U.S. shareholder is a foreign sovereign or controlled entity
of a foreign sovereign and also provides an IRS Form W-8EXP claiming an exemption from
withholding under section 892 of the Code. |
Tax treaties may reduce the withholding obligations
with respect to our distributions. Under most tax treaties, however, taxation rates below 30% that are applicable to ordinary income
dividends from U.S. corporations may not apply to ordinary income dividends from a REIT or may apply only if the REIT meets certain additional
requirements. If the amount of tax withheld with respect to a distribution to a non-U.S. shareholder exceeds the non-U.S. shareholder’s
U.S. federal income tax liability with respect to the distribution, the non-U.S. shareholder may file for a refund of the excess from
the IRS.
Return of Capital Distributions
Unless (A) our shares constitute a USRPI,
as described in “—Dispositions of Our Shares” below, or (B) either (1) the non-U.S. shareholder’s investment
in our shares is effectively connected with a U.S. trade or business conducted by such non-U.S. shareholder (in which case the non-U.S.
shareholder will be subject to the same treatment as U.S. shareholders with respect to such gain), or (2) the non-U.S. shareholder
is a nonresident alien individual who was present in the U.S. for 183 days or more during the taxable year and has a “tax home”
in the U.S. (in which case the non-U.S. shareholder will be subject to a 30% tax on the individual’s net capital gain for the year),
distributions that we make which are not dividends out of our earnings and profits and are not FIRPTA gain distributions will not be
subject to U.S. federal income tax. If we cannot determine at the time a distribution is made whether or not the distribution will exceed
our current and accumulated earnings and profits, the distribution will be subject to withholding at the rate applicable to dividends.
The non-U.S. shareholder may seek a refund from the IRS of any amounts withheld if it subsequently is determined that the distribution
was, in fact, in excess of our current and accumulated earnings and profits. If our shares constitute a USRPI, as described below, distributions
that we make in excess of the sum of (1) the non-U.S. shareholder’s proportionate share of our earnings and profits, and (2) the
non-U.S. shareholder’s basis in its shares, will be taxed under FIRPTA at the rate of tax, including any applicable capital gain
rates, that would apply to a U.S. shareholder of the same type (e.g., an individual or a corporation, as the case may be), and the
collection of the tax will be enforced by a refundable withholding tax at a rate of 15% of the amount by which the distribution exceeds
the non-U.S. shareholder’s share of our earnings and profits.
Capital Gain Dividends
Subject to the discussion below under the section
titled “—FIRPTA Distributions,” a distribution made by us to a non-U.S. shareholder will be treated as long-term capital
gain if the distribution is made out of our current or accumulated earnings and profits, the distribution is attributable to our net
capital gain (other than from the sale of a USRPI) and we timely designate the distribution as a capital gain dividend.
Long-term capital gain that a non-U.S. shareholder
is deemed to receive from a capital gain dividend that is not attributable to the sale of a USRPI generally will not be subject to U.S.
federal income tax in the hands of the non-U.S. shareholder unless:
| · | the non-U.S. shareholder’s investment in our shares is effectively
connected with a U.S. trade or business of the non-U.S. shareholder, in which case the non-U.S.
shareholder will be subject to the same treatment as U.S. shareholders with respect to any
such gain, except that a non-U.S. shareholder that is a corporation also may be subject to
the 30% branch profits tax; or |
| · | the non-U.S. shareholder is a nonresident alien individual who is present
in the United States for 183 days or more during the taxable year and has a “tax
home” in the United States, in which case the nonresident alien individual will be
subject to a 30% tax on any such capital gains. |
FIRPTA Distributions
From time to time, some of our distributions may
be of amounts attributable to gain from the sale or exchange of USRPIs. Such distributions to a non-U.S. shareholder generally will be
subject to the taxation and withholding regime applicable to ordinary income dividends only if (1) dividends are received with respect
to a class of shares that is “regularly traded” on a domestic “established securities market,” both as defined
by applicable Treasury regulations, and (2) the non-U.S. shareholder does not own more than 10% of that class of shares at any time
during the one-year period ending on the date of distribution. If both of these conditions are satisfied, qualifying non-U.S. shareholders
will not be subject to FIRPTA withholding or reporting with respect to such dividends, and will not be required to pay branch profits
tax. Instead, these dividends will be subject to U.S. federal income tax and withholding as ordinary dividends, currently at a 30% tax
rate, unless reduced by applicable treaty. Although there can be no assurance in this regard, we believe that our common shares are “regularly
traded” on a domestic “established securities market” within the meaning of applicable Treasury regulations; however,
we can provide no assurance that our common shares are or will continue to be “regularly traded” on a domestic “established
securities market” in future taxable years.
Except as discussed above, for any year in which
we qualify as a REIT, distributions that are attributable to gain from the sale or exchange of a USRPI are taxed to a non-U.S. shareholder
as if these distributions were gains effectively connected with a trade or business in the U.S. conducted by the non-U.S. shareholder.
A non-U.S. shareholder that does not qualify for the special rule discussed above will be taxed on these amounts at the normal rates
applicable to a U.S. shareholder and will be required to file a U.S. federal income tax return reporting these amounts. If such a non-U.S.
shareholder is a corporation, it also may owe the 30% branch profits tax under Section 884 of the Code in respect of these amounts.
We or other applicable withholding agents will be required to withhold from distributions to such non-U.S. shareholders, and to remit
to the IRS 21% of the amount treated as gain from the sale or exchange of USRPIs. The amount of any tax so withheld is creditable against
the non-U.S. shareholder’s U.S. federal income tax liability, and the non-U.S. shareholder may file for a refund from the IRS of
any amount of withheld tax in excess of that tax liability.
A non-U.S. shareholder who has held more than
10% of our shares or a non-U.S. shareholder who is a “qualified shareholder” as defined in Section 897(k)(3)(A) of
the Code should consult its own tax advisors concerning the tax consequences of the our distributions attributable to gain from the sale
or exchange of USRPIs.
Undistributed Capital Gain
Although the law is not entirely clear on the
matter, it appears that amounts designated by us as undistributed capital gains in respect of our shares held by non-U.S. shareholders
generally should be treated in the same manner as actual distributions by us of capital gain dividends. Under this approach, the non-U.S.
shareholder would be able to offset as a credit against its U.S. federal income tax liability resulting therefrom its proportionate share
of the tax paid by us on the undistributed capital gains treated as long-term capital gains to the non-U.S. shareholder, and receive
from the IRS a refund to the extent its proportionate share of the tax paid by us were to exceed the non-U.S. shareholder’s actual
U.S. federal income tax liability on such long-term capital gain. If we were to designate any portion of our net capital gain as undistributed
capital gain, a non-U.S. shareholder should consult its tax advisors regarding taxation of such undistributed capital gain.
Dispositions of Our Shares
Unless our shares constitute a USRPI, a sale of
our shares by a non-U.S. shareholder generally will not be subject to U.S. federal income taxation under FIRPTA.
Generally, with respect to any particular shareholder,
our shares will constitute a USRPI only if each of the following three statements is true.
| · | Fifty percent or more of our assets throughout a prescribed testing
period consists of interests in real property located within the United States, excluding
for this purpose, interests in real property solely in a capacity as creditor. We believe
that 50% or more of our assets will consist of interests in U.S. real property. |
| · | We are not a “domestically-controlled qualified investment entity.”
A domestically-controlled qualified investment entity includes a REIT less than 50% of the
value of which is held directly or indirectly by foreign persons (as defined in the Code)
at all times during a specified testing period. Although we expect that we likely will be
domestically-controlled, we cannot make any assurance that we are or will remain a domestically-controlled
qualified investment entity. |
| · | Either (a) our shares are not “regularly traded,”
as defined by applicable Treasury regulations, on an established securities market; or (b) our
shares are “regularly traded” on an established securities market but the selling
non-U.S. shareholder has held over 10% of that outstanding class of shares any time during
the five-year period ending on the date of the sale. We expect that our common shares will
continue to be regularly traded on an established securities market. |
In addition, dispositions of our capital stock
by qualified shareholders are exempt from FIRPTA, except to the extent owners of such qualified shareholders that are not also qualified
shareholders own, actually or constructively, more than 10% of our capital stock. An actual or deemed disposition of our capital stock
by such shareholders may also be treated as a dividend. Furthermore, dispositions of our capital stock by “qualified foreign pension
funds” or entities all of the interests of which are held by “qualified foreign pension funds” are exempt from FIRPTA.
Non-U.S. shareholders should consult their tax advisors regarding the application of these rules.
Specific wash sale rules applicable to sales
of shares in a domestically-controlled qualified investment entity could result in gain recognition, taxable under FIRPTA, upon the sale
of our shares even if we are a domestically-controlled qualified investment entity. These rules would apply if a non-U.S. shareholder
(1) disposes of our shares within a 30-day period preceding the ex-dividend date of a distribution, any portion of which, but for
the disposition, would have been taxable to such non-U.S. shareholder as gain from the sale or exchange of a USRPI, (2) acquires,
or enters into a contract or option to acquire, other shares during the 61-day period that begins 30 days prior to such ex-dividend date,
and (3) if our shares are “regularly traded” on an established securities market in the United States, such non-U.S.
shareholder has owned more than 10% of such class of outstanding shares at any time during the one-year period ending on the date of
such distribution.
If gain on the sale of our shares were subject
to taxation under FIRPTA, the non-U.S. shareholder would be required to file a U.S. federal income tax return and would be subject to
the same treatment as a U.S. shareholder with respect to such gain, subject to the applicable alternative minimum tax and a special alternative
minimum tax in the case of non-resident alien individuals, and the purchaser of the shares could be required to withhold 15% of the purchase
price and remit such amount to the IRS.
Gain from the sale of our shares that otherwise
would not be subject to FIRPTA will nonetheless be taxable in the United States to a non-U.S. shareholder as follows: (1) if the
non-U.S. shareholder’s investment in our shares is effectively connected with a U.S. trade or business conducted by such non-U.S.
shareholder, the non-U.S. shareholder will be subject to the same treatment as a U.S. shareholder with respect to such gain, or (2) if
the non-U.S. shareholder is a nonresident alien individual who was present in the United States for 183 days or more during the taxable
year and has a “tax home” in the United States, the nonresident alien individual will be subject to a 30% tax on the individual’s
capital gain.
Backup Withholding and Information Reporting
The sale of our shares by a non-U.S. shareholder
through a non-U.S. office of a broker generally will not be subject to information reporting or backup withholding. The sale generally
is subject to the same information reporting applicable to sales through a U.S. office of a U.S. or foreign broker if the sale of shares
is effected at a non-U.S. office of a broker that is:
| · | a controlled foreign corporation for U.S. federal income tax
purposes; |
| · | a foreign person 50% or more of whose gross income is effectively connected
with the conduct of a U.S. trade or business for a specified three-year period; or |
| · | a foreign partnership, if at any time during its tax year: (1) one
or more of its partners are “U.S. persons,” as defined in U.S. Treasury regulations,
who, in the aggregate, hold more than 50% of the income or capital interest in the foreign
partnership; or (2) such foreign partnership is engaged in the conduct of a U.S. trade
or business. |
Backup withholding generally does not apply if
the broker does not have actual knowledge or reason to know that you are a United States person and the applicable documentation requirements
are satisfied. Generally, a non-U.S. shareholder satisfies the information reporting requirements by providing the IRS with Form W-8BEN
or Form W-8BEN-E or an acceptable substitute. Backup withholding is not an additional tax. Any amounts that we withhold under the
backup withholding rules will be refunded or credited against the non-U.S. shareholder’s federal income tax liability if certain
required information is furnished to the IRS. The application of information reporting and backup withholding varies depending on the
shareholder’s particular circumstances and, therefore, a non-U.S. shareholder is advised to consult its tax advisor regarding applicable
information reporting and backup withholding requirements.
Foreign Account Tax Compliance
Act
The Foreign Account Tax Compliance Act (“FATCA”)
imposes a 30% withholding tax on dividends in respect of our shares if paid to a foreign entity, unless either (i) the foreign entity
is a “foreign financial institution” that undertakes certain due diligence, reporting, withholding, and certification obligations,
or in the case of a foreign financial institution that is a resident in a jurisdiction that has entered into an intergovernmental agreement
to implement FATCA, the entity complies with the diligence and reporting requirements of such agreement, (ii) the foreign entity
is not a “foreign financial institution” and identifies certain of its U.S. investors, or (iii) the foreign entity otherwise
is excepted under FATCA. While withholding under FATCA would have applied to payments of gross proceeds from the sale or other disposition
of our shares received after December 31, 2018, proposed Treasury regulations eliminate FATCA withholding on payments of gross proceeds
entirely. Taxpayers may generally rely on these proposed Treasury regulations until final Treasury regulations are issued.
If withholding is required under FATCA on a payment
related to our shares, investors that otherwise would not be subject to withholding (or that otherwise would be entitled to a reduced
rate of withholding) generally will be required to seek a refund or credit from the IRS to obtain the benefit of such exemption or reduction
(provided that such benefit is available). Prospective investors should consult their tax advisors regarding the effect of FATCA in their
particular circumstances.
Taxation of Holders of Our Warrants and Rights
You will not generally recognize gain or loss
upon the exercise of a warrant. Your basis in the preferred shares, depositary shares representing preferred shares or common shares,
as the case may be, received upon the exercise of the warrant will be equal to the sum of your adjusted tax basis in the warrant and
the exercise price paid. Your holding period in the preferred shares, depositary shares representing preferred shares or common shares,
as the case may be, received upon the exercise of the warrant will not include the period during which the warrant was held by you. Upon
the expiration of a warrant, you will recognize a capital loss in an amount equal to your adjusted tax basis in the warrant. Upon the
sale or exchange of a warrant to a person other than us, you will recognize gain or loss in an amount equal to the difference between
the amount realized on the sale or exchange and your adjusted tax basis in the warrant. Such gain or loss will be capital gain or loss
and will be long-term capital gain or loss if the warrant was held for more than one year. Upon the sale of the warrant to us, the IRS
may argue that you should recognize ordinary income on the sale. You should consult your own tax advisors as to the consequences of a
sale of a warrant to us.
In the event of a rights offering, the tax consequences
of the receipt, expiration, and exercise of the rights we issue will be addressed in detail in a prospectus supplement. You should review
the applicable prospectus supplement in connection with the ownership of any rights, and consult your own tax advisors as to the consequences
of investing in the rights.
Other Tax Considerations
Legislative or Other Actions
Affecting REITs
The rules dealing with U.S. federal
income taxation (or otherwise affecting REITs) are constantly under review by persons involved in the legislative process (including
the IRS and the U.S. Treasury Department). We cannot give you any assurances as to whether, or in what form, any legislative
proposals affecting REITs or their shareholders will be enacted. Changes to the U.S. federal income tax laws (or other laws
affecting REITs) and interpretations thereof, possibly with retroactive effect, could adversely affect an investment in our shares.
Taxpayers should consult with their tax advisors regarding the effect of potential changes to the U.S. federal income tax or other
laws and interpretations on their particular circumstances.
State, Local and Foreign Taxes
We, our subsidiaries, and/or our shareholders
may be subject to state, local or foreign taxation in various jurisdictions, including those in which we or they transact business, own
property or reside. We own properties located in numerous U.S. jurisdictions and may be required to file tax returns in some or all of
those jurisdictions. Our state and local tax treatment and the state, local and foreign tax treatment of our shareholders may not conform
to the federal income tax treatment discussed above. Prospective shareholders should consult their tax advisors regarding the application
and effect of state, local and foreign income and other tax laws on an investment in our shares and depositary shares.
Tax Shelter Reporting
If a holder of our shares recognizes a loss as
a result of a transaction with respect to our shares of at least (1) $2 million or more in a single taxable year or $4 million
or more in a combination of taxable years, for a shareholder that is an individual, S corporation, trust, or a partnership with at least
one non-corporate partner, or (2) $10 million or more in a single taxable year or $20 million or more in a combination of taxable
years, for a shareholder that is either a corporation or a partnership with only corporate partners, such shareholder may be required
to file a disclosure statement with the IRS on Form 8886. Direct holders of portfolio securities are in many cases exempt from this
reporting requirement, but holders of REIT securities currently are not exempt. The fact that a loss is reportable under these Treasury
regulations does not affect the legal determination of whether the taxpayer’s treatment of the loss is proper. The Code imposes
significant penalties for failure to comply with these requirements. Shareholders should consult their tax advisers concerning any possible
disclosure obligation with respect to the receipt or disposition of our shares, or transactions that we might undertake directly or indirectly.
Moreover, shareholders should be aware that we and other participants in the transactions in which we are involved (including their advisors)
might be subject to disclosure or other requirements pursuant to these regulations.
PLAN
OF DISTRIBUTION
Unless otherwise set forth in a prospectus supplement
accompanying this prospectus, we may sell the securities offered pursuant to this prospectus to or through one or more underwriters or
dealers, or we may sell the securities to investors directly or through agents. Any such underwriter, dealer or agent involved in the
offer and sale of the securities will be named in the applicable prospectus supplement. We may sell securities directly to investors
on our own behalf in those jurisdictions where we are authorized to do so.
Underwriters may offer and sell the securities
at a fixed price or prices which may be changed, at market prices prevailing at the time of sale, at prices related to such prevailing
market prices or at negotiated prices. We also may, from time to time, authorize dealers or agents to offer and sell the securities upon
such terms and conditions as may be set forth in the applicable prospectus supplement. In connection with the sale of any of the securities,
underwriters may receive compensation from us in the form of underwriting discounts or commissions and may also receive commissions from
purchasers of the securities for whom they may act as agents. Underwriters may sell the securities to or through dealers, and such dealers
may receive compensation in the form of discounts, concessions or commissions from the underwriters or commissions from the purchasers
for whom they may act as agents.
Our securities, including common and preferred
shares, may also be sold in one or more of the following transactions: (i) block transactions (which may involve crosses) in which
a broker-dealer may sell all or a portion of such shares as agent, but may position and resell all or a portion of the block as principal
to facilitate the transaction; (ii) purchases by any such broker-dealer as principal, and resale by such broker-dealer for its own
account pursuant to a prospectus supplement; (iii) a special offering, an exchange distribution or a secondary distribution in accordance
with applicable NYSE or other stock exchange, quotation system or over-the-counter market rules; (iv) ordinary brokerage transactions
and transactions in which any such broker-dealer solicits purchasers; (v) sales “at the market” to or through a market
maker or into an existing trading market, on an exchange or otherwise, for such shares; and (vi) sales in other ways not involving
market makers or established trading markets, including direct sales to purchasers.
Any underwriting compensation paid by us to underwriters
or agents in connection with the offering of the securities, and any discounts or concessions or commissions allowed by underwriters
to participating dealers, will be set forth in the applicable prospectus supplement. Dealers and agents participating in the distribution
of the securities may be deemed to be underwriters, and any discounts and commissions received by them and any profit realized by them
on resale of the securities may be deemed to be underwriting discounts and commissions.
Underwriters, dealers and agents may be entitled,
under agreements entered into with us, to indemnification against and contribution toward certain civil liabilities, including liabilities
under the Securities Act. Unless otherwise set forth in an accompanying prospectus supplement, the obligations of any underwriters to
purchase any of the securities will be subject to certain conditions precedent, and the underwriters will be obligated to purchase all
of such securities, if any are purchased.
Underwriters, dealers and agents may engage in
transactions with, or perform services for, us and our affiliates in the ordinary course of business.
If indicated in the prospectus supplement, we
may authorize underwriters or other agents to solicit offers by institutions to purchase securities from us pursuant to contracts providing
for payment and delivery on a future date. Institutions with which we may make these delayed delivery contracts include commercial and
savings banks, insurance companies, pension funds, investment companies, educational and charitable institutions and others. The obligations
of any purchaser under any such delayed delivery contract will be subject to the condition that the purchase of the securities shall
not at the time of delivery be prohibited under the laws of the jurisdiction to which the purchaser is subject. The underwriters and
other agents will not have any responsibility with regard to the validity or performance of these delayed delivery contracts.
In connection with the offering of the securities
hereby, certain underwriters, and selling group members and their respective affiliates may engage in transactions that stabilize, maintain
or otherwise affect the market price of the applicable securities. Such transactions may include stabilization transactions effected
in accordance with Rule 104 of Regulation M promulgated by the SEC pursuant to which such persons may bid for or purchase securities
for the purpose of stabilizing their market price. The underwriters in an offering of securities may also create a “short position”
for their account by selling more securities in connection with the offering than they are committed to purchase from us. In such case,
the underwriters could cover all or a portion of such short position by either purchasing securities in the open market following completion
of the offering of such securities or by exercising any over-allotment option granted to them by us. In addition, the managing underwriter
may impose “penalty bids” under contractual arrangements with other underwriters, which means that they can reclaim from
an underwriter (or any selling group member participating in the offering) for the account of the other underwriters, the selling concession
with respect to securities that are distributed in the offering but subsequently purchased for the account of the underwriters in the
open market. Any of the transactions described in this paragraph or comparable transactions that are described in any accompanying prospectus
supplement may result in the maintenance of the price of the securities at a level above that which might otherwise prevail in the open
market. None of such transactions described in this paragraph or in an accompanying prospectus supplement are required to be taken by
any underwriters and, if they are undertaken, may be discontinued at any time.
We may sell the securities in exchange in whole
or part for consideration other than cash. This consideration may consist of services or products, whether tangible or intangible, and
including services or products we may use in our business; outstanding debt or equity securities of our company or one or more of its
subsidiaries; debt or equity securities or assets of other companies, including in connection with investments, joint ventures or other
strategic transactions, or acquisitions; release of claims or settlement of disputes; and satisfaction of obligations, including obligations
to make payments to distributors or other suppliers and payment of interest on outstanding obligations. We may sell the securities as
part of a transaction in which outstanding debt or equity securities of our company or one or more of our subsidiaries are surrendered,
converted, exercised, canceled or transferred.
Our common shares are listed on the NYSE under
the symbol “RLJ.” Our Series A Preferred Shares also trade on the NYSE under the symbol “RLJ-PA.” Any securities
that we issue, other than common shares and the Series A Preferred Shares, will be new issues of securities with no established
trading market and may or may not be listed on a national securities exchange, quotation system or over-the-counter market. Any underwriters
or agents to or through which securities are sold by us may make a market in such securities, but such underwriters or agents will not
be obligated to do so and any of them may discontinue any market making at any time without notice. No assurance can be given as to the
liquidity of or trading market for any securities sold by us.
LEGAL
MATTERS
The validity of the securities offered by means
of this prospectus and certain U.S. federal income tax matters have been passed upon for us by Hogan Lovells US LLP.
EXPERTS
The
financial statements and management’s assessment of the effectiveness of internal control over financial reporting (which is included
in Management’s Report on Internal Control over Financial Reporting) incorporated in this Prospectus by reference to the Annual Report on Form 10-K for the year ended December 31, 2023 have been so incorporated in reliance on the report of PricewaterhouseCoopers
LLP, an independent registered public accounting firm, given on the authority of said firm as experts in auditing and accounting.
WHERE
YOU CAN FIND MORE INFORMATION AND INCORPORATION BY REFERENCE
We file annual, quarterly, and current reports,
proxy statements and other information with the SEC. Our SEC filings are available to the public at the SEC’s website at http://www.sec.gov.
Our reference to the SEC’s website is intended to be an inactive textual reference only.
This prospectus does not contain all of the information
included in the registration statement. If a reference is made in this prospectus or any accompanying prospectus supplement to any of
our contracts or other documents, the reference may not be complete and you should refer to the exhibits that are a part of or incorporated
by reference in the registration statement for a copy of the contract or document.
The SEC allows us to “incorporate by reference”
into this prospectus the information we file with the SEC, which means that we can disclose important information to you by referring
you to those documents. Information incorporated by reference is deemed to be part of this prospectus. Later information filed with the
SEC will update and supersede this information.
This prospectus incorporates by reference the
documents listed below, all of which have been previously filed with the SEC:
We also incorporate by reference into this prospectus
additional documents that we may file with the SEC under Sections 13(a), 13(c), 14, or 15(d) of the Exchange Act from the date of
this prospectus until we have sold all of the securities to which this prospectus relates or the offering is otherwise terminated; provided,
however that we are not incorporating any information furnished under either Item 2.02 or Item 7.01 of any Current Report on Form 8-K.
You may request a copy of these filings, at no
cost, by contacting Chad D. Perry, Executive Vice President, General Counsel and Corporate Secretary, 7373 Wisconsin Avenue, Suite 1500,
Maryland 20814, by telephone at 301-280-7777, by e-mail at cperry@rljlodgingtrust.com, or by visiting our website, www.rljlodgingtrust.com.
The information contained on our website is not part of this prospectus. Our reference to our website is intended to be an inactive textual
reference only.
PART II. INFORMATION NOT REQUIRED IN PROSPECTUS
ITEM 14. OTHER EXPENSES OF ISSUANCE AND DISTRIBUTION.
The following table sets forth the costs and
expenses, other than underwriting discounts and commissions, payable by us in connection with the sale and distribution of the securities
being registered. All amounts except the SEC registration fee are estimated.
| SEC
Registration Fee |
|
$ |
* |
| Accountant’s
Fees and Expenses |
|
|
** |
| Legal
Fees and Expenses |
|
|
** |
| Printing
Expenses |
|
|
** |
| Miscellaneous |
|
|
** |
| TOTAL |
|
$ |
** |
| * |
In accordance with Rules 456(b) and 457(r) under
the Securities Act, the registrant is deferring payment of all of the registration fee. |
| ** |
The calculation of these fees and expenses is dependent
on the number of issuances and amount of securities offered and, accordingly, cannot be estimated at this time. |
Item 15. Indemnification
of TRUSTEES and Officers.
The Maryland REIT law permits a Maryland real
estate investment trust to include in its declaration of trust a provision eliminating the liability of its trustees and officers to
the real estate investment trust and its shareholders for money damages except for liability resulting from (a) actual receipt of
an improper benefit or profit in money, property or services or (b) active and deliberate dishonesty established by a final judgment
as being material to the cause of action. Our declaration of trust contains such a provision which eliminates such liability to the maximum
extent permitted by Maryland law.
The Maryland REIT law permits a Maryland real
estate investment trust to indemnify and advance expenses to its trustees and officers to the same extent as permitted by the MGCL for
directors and officers of Maryland corporations. The MGCL permits a corporation to indemnify its present and former directors and officers,
among others, against judgments, penalties, fines, settlements and reasonable expenses actually incurred by them in connection with any
proceeding to which they may be made a party by reason of their service in those or other capacities unless it is established that (a) the
act or omission of the director or officer was material to the matter giving rise to the proceeding and (i) was committed in bad
faith or (ii) was the result of active and deliberate dishonesty, (b) the director or officer actually received an improper
personal benefit in money, property or services or (c) in the case of any criminal proceeding, the director or officer had reasonable
cause to believe that the act or omission was unlawful. However, a Maryland corporation may not indemnify for an adverse judgment in
a suit by or in the right of the corporation or for a judgment of liability on the basis that a personal benefit was improperly received,
unless, in either case, a court orders indemnification and then only for expenses. In addition, the MGCL permits a corporation to advance
reasonable expenses to a director or officer upon the corporation’s receipt of (a) a written affirmation by the trustee or
officer of his or her good faith belief that he or she has met the standard of conduct necessary for indemnification by the corporation
and (b) a written undertaking by him or on his behalf to repay the amount paid or reimbursed by the corporation if it shall ultimately
be determined that the standard of conduct was not met.
Our declaration of trust provides that we shall
indemnify, and pay or reimburse reasonable expenses in advance of final disposition of a proceeding, to the maximum extent permitted
by Maryland law in effect from time to time, (i) any individual who is a present or former trustee or officer, and (ii) any
individual who, while a trustee or officer, at our request, serves or has served as an, officer, partner, employee or agent of another
corporation, partnership, joint venture, trust, employee benefit plan or any other enterprise from and against any claim or liability
to which such person may become subject or which such person may incur by reason of his status as a present or former officer, partner,
employee or agent of our company. We have the power, with the approval of our board of trustees, to provide such indemnification and
advancement of expenses to a person who served a predecessor of our company in any of the capacities described in (a) or (b) above
and to any employee or agent of our company or a predecessor of our company. Maryland law requires us to indemnify a trustee or officer
who has been successful, on the merits or otherwise, in the defense of any proceeding to which he is made a party by reason of his service
in that capacity.
In addition, we have entered into indemnification
agreements with each of our trustees and executive officers that provide for indemnification to the maximum extent permitted by Maryland
law.
Item
16. Exhibits.
EXHIBIT INDEX
| Exhibit No. |
|
Description |
| 1.1* |
|
Form of Common Shares
Underwriting Agreement |
| 1.2* |
|
Form of Preferred
Shares Underwriting Agreement |
| 1.3* |
|
Form of Depositary
Shares Underwriting Agreement |
| 1.4* |
|
Form of Warrants
Underwriting Agreement |
| 1.5* |
|
Form of Rights Underwriting
Agreement |
| 3.1 |
|
Articles of Amendment
and Restatement of Declaration of Trust of RLJ Lodging Trust (incorporated by reference to Exhibit 3.1 to Amendment No. 4
to the Registrant's Registration Statement on Form S-11 (File. No. 333-172011) filed on May 5, 2011) |
| 3.2 |
|
Articles of Amendment
to Articles of Amendment and Restatement of Declaration of Trust of RLJ Lodging Trust (incorporated by reference to Exhibit 3.1
to the Registrant's Current Report on Form 8-K filed on May 7, 2015) |
| 3.3 |
|
Articles of Amendment
to Articles of Amendment and Restatement of Declaration of Trust of RLJ Lodging Trust (incorporated by reference to Exhibit 3.1
to the Registrant’s Current Report on Form 8-K filed on May 5, 2016) |
| 3.4 |
|
Articles Supplementary
to Articles of Amendment and Restatement of Declaration of Trust (incorporated by reference to Exhibit 3.1 to the Registrant's
Current Report on Form 8-K filed on February 26, 2015) |
| 3.5 |
|
Articles Supplementary
designating RLJ Lodging Trust’s $1.95 Series A Cumulative Convertible Preferred Shares, par value $0.01 per share (incorporated
by reference to Exhibit 3.5 to the Registrant’s Form 8-A filed on August 30, 2017) |
| 3.6 |
|
Third Amended and Restated
Bylaws of RLJ Lodging Trust (incorporated by reference to Exhibit 3.2 to the Registrant's Current Report on Form 8-K filed
on May 5, 2016) |
| 4.1* |
|
Form of Deposit Agreement
for Depositary Shares |
| 4.2* |
|
Form of Equity Warrant
Agreement |
| 4.3* |
|
Form of Rights Agreement |
| 4.4 |
|
Form of Specimen
Common Share Certificate (incorporated by reference to Exhibit 4.1 to the Registrant’s Registration Statement on Form S-11/A
(File No. 333-172011) filed on April 29, 2011) |
| 4.5 |
|
Form of stock certificate
evidencing the $1.95 Series A Cumulative Convertible Preferred Shares, par value $0.01 per share (incorporated by reference
to Exhibit 4.2 to the Registrant's Form 8-A filed on August 30, 2017) |
| 5.1 |
|
Opinion of Hogan Lovells
US LLP regarding the legality of the securities being registered |
| 8.1 |
|
Opinion of Hogan Lovells
US LLP regarding certain tax matters |
| 23.1 |
|
Consent of PricewaterhouseCoopers
LLP |
| 23.2 |
|
Consent of Hogan Lovells
US LLP (included in Exhibit 5.1) |
| 23.3 |
|
Consent of Hogan Lovells
US LLP (included in Exhibit 8.1) |
| 24.1 |
|
Powers of Attorney (included
on the signature pages to this Registration Statement) |
| 107 |
|
Filing Fee Table. |
*
To be filed by amendment or incorporated by reference in connection with the offering of specific securities.
Item 17. Undertakings.
| |
(a) |
The undersigned registrant hereby undertakes: |
(1)
To file, during any period in which offers or sales are being made, a post-effective amendment to this registration statement:
(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 this 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 this 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 Commission pursuant to Rule 424(b) if,
in the aggregate, the changes in volume and price represent no more than a 20% 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 this registration statement
or any material change to such information in this registration statement;
provided,
however, that subparagraphs (i), (ii) and (iii) of this section do not apply if the information required to be included
in a post-effective amendment by those paragraphs is contained in reports filed with or furnished to the Securities and Exchange Commission
by the registrant pursuant to Section 13 or Section 15(d) of the Securities Exchange Act of 1934 that are incorporated
by reference in this registration statement, or is contained in a form of prospectus filed pursuant to Rule 424(b) that is
part of this registration statement.
(2)
That, for the purpose of determining any liability under the Securities Act of 1933, each such post-effective amendment shall be deemed
to be a new registration statement relating to the securities offered therein, and the offering of such securities at that time shall
be deemed to be the initial bona fide offering thereof.
(3)
To remove from registration by means of a post-effective amendment any of the securities being registered that remain unsold at the termination
of the offering.
(4)
That, for the purpose of determining liability under the Securities Act of 1933 to any purchaser:
(A)
Each prospectus filed by the registrant pursuant to Rule 424(b)(3) shall be deemed to be part of this registration statement
as of the date the filed prospectus was deemed part of and included in this registration statement; and
(B)
Each prospectus required to be filed pursuant to Rule 424(b)(2), (b)(5), or (b)(7) as part of a registration statement in reliance
on Rule 430B relating to an offering made pursuant to Rule 415(a)(1)(i), (vii), or (x) for the purpose of providing the
information required by section 10(a) of the Securities Act of 1933 shall be deemed to be part of and included in this registration
statement as of the earlier of the date such form of prospectus is first used after effectiveness or the date of the first contract of
sale of securities in the offering described in the prospectus. As provided in Rule 430B, for liability purposes of the issuer and
any person that is at that date an underwriter, such date shall be deemed to be a new effective date of the registration statement relating
to the securities in the registration statement to which that prospectus relates, and the offering of such securities at that time shall
be deemed to be the initial bona fide offering thereof. Provided, however, that no statement made in a registration statement
or prospectus that is a part of this registration statement or made in a document incorporated or deemed incorporated by reference into
this registration statement or prospectus that is a part of this registration statement will, as to a purchaser with a time of contract
of sale prior to such effective date, supersede or modify any statement that was made in this registration statement or prospectus that
was part of this registration statement or made in any such document immediately prior to such effective date.
(5)
That, for the purpose of determining liability of the registrant under the Securities Act of 1933 to any purchaser in the initial distribution
of the securities:
The undersigned registrant undertakes
that in a primary offering of securities of the undersigned registrant pursuant to this registration statement, regardless of the underwriting
method used to sell the securities to the purchaser, if the securities are offered or sold to such purchaser by means of any of the following
communications, the undersigned registrant will be a seller to the purchaser and will be considered to offer or sell such securities
to such purchaser:
(i)
Any preliminary prospectus or prospectus of the undersigned registrant relating to the offering required to be filed pursuant to Rule 424;
(ii)
Any free writing prospectus relating to the offering prepared by or on behalf of the undersigned registrant or used or referred to by
the undersigned registrant;
(iii)
The portion of any other free writing prospectus relating to the offering containing material information about the undersigned registrant
or its securities provided by or on behalf of the undersigned registrant; and
(iv)
Any other communication that is an offer in the offering made by the undersigned registrant to the purchaser.
(b)
The undersigned registrant hereby undertakes that, for the purpose of determining any liability under the Securities Act of 1933, each
filing of the registrant’s annual report pursuant to Section 13(a) or Section 15(d) of the Securities Exchange
Act of 1934 (and, where applicable, each filing of an employee benefit plan’s annual report pursuant to Section 15(d) of
the Securities Exchange Act of 1934) that is incorporated by reference in this registration statement shall be deemed to be a new registration
statement relating to the securities offered herein and the offering of such securities at that time shall be deemed to be the initial
bona fide offering thereof.
(c)
The undersigned registrant hereby undertakes to supplement the prospectus, after the expiration of the subscription period, to set forth
the results of the subscription offer, the transactions by the underwriters during the subscription period, the amount of unsubscribed
securities to be purchased by the underwriters, and the terms of any subsequent reoffering thereof. If any public offering by the underwriters
is to be made on terms differing from those set forth on the cover page of the prospectus, a post-effective amendment will be filed
to set forth the terms of such offering.
(d)
Insofar as indemnification for liabilities arising under the Securities Act of 1933 may be permitted to trustees, officers and controlling
persons of the registrant pursuant to the foregoing provisions, or otherwise, the registrant has been advised that in the opinion of
the Securities and Exchange Commission such indemnification is against public policy as expressed in the Securities Act and is, therefore,
unenforceable. In the event that a claim for indemnification against such liabilities (other than the payment by the registrant
of expenses incurred or paid by a trustee, officer or controlling person of the registrant in the successful defense of any action, suit
or proceeding) is asserted by such trustee, officer or controlling person in connection with the securities being registered, the registrant
will, unless in the opinion of its counsel the matter has been settled by controlling precedent, submit to a court of appropriate jurisdiction
the question whether such indemnification by it is against public policy as expressed in the Securities Act and will be governed by the
final adjudication of such issue.
SIGNATURES
Pursuant to the requirements of the Securities
Act of 1933, the registrant certifies that it has reasonable grounds to believe that it meets all of the requirements for filing on Form S-3
and has duly caused this registration statement to be signed on its behalf by the undersigned, thereunto duly authorized, in the City
of Bethesda, State of Maryland, on August 23, 2024.
| |
RLJ LODGING TRUST |
| |
|
| |
By: |
/s/
Leslie D. Hale |
| |
|
Leslie D. Hale |
| |
|
President and Chief Executive Officer |
KNOW ALL PERSONS BY
THESE PRESENTS, that each of the undersigned directors and officers of RLJ Lodging Trust, does hereby constitute and appoint Leslie D.
Hale or Chad D. Perry and each of them, his or her true and lawful attorney-in-fact and agent, with full power of substitution and resubstitution,
for him or her and in his or her name, place and stead, in any and all capacities, to sign any and all amendments to this registration
statement (including post-effective amendments to the registration statement), and to file the same, with all exhibits thereto, and any
other documents in connection therewith, granting unto said attorneys-in-fact and agents full power and authority to do and perform each
and every act and thing requisite and necessary to be done in and about the premises, as fully to all intents and purposes as he or she
might or could do in person, hereby ratifying and confirming all that said attorneys-in-fact and agents, or their substitute or substitutes,
may lawfully do or cause to be done by virtue hereof.
Pursuant to the requirements of the Securities
Act of 1933, this registration statement has been signed by the following persons in their respective capacities on August 23, 2024.
| /s/
Robert L. Johnson |
|
Executive
Chairman and Trustee |
| Robert
L. Johnson |
|
|
| |
|
|
| /s/
Leslie D. Hale |
|
President
and Chief Executive Officer and Trustee |
| Leslie
D. Hale |
|
(Principal
Executive Officer) |
| |
|
|
| /s/
Sean M. Mahoney |
|
Executive
Vice President and Chief Financial Officer |
| Sean
M. Mahoney |
|
(Principal
Financial Officer) |
| |
|
|
| /s/
Christopher A. Gormsen |
|
Senior
Vice President and Chief Accounting Officer |
| Christopher
A. Gormsen |
|
(Principal
Accounting Officer) |
| |
|
|
| /s/
Evan Bayh |
|
Trustee
|
| Evan
Bayh |
|
|
| |
|
|
| /s/
Arthur R. Collins |
|
Trustee
|
| Arthur
R. Collins |
|
|
| |
|
|
| /s/
Nathaniel A. Davis |
|
Trustee
|
| Nathaniel
A. Davis |
|
|
| |
|
|
| /s/
Patricia L. Gibson |
|
Trustee
|
| Patricia
L. Gibson |
|
|
| |
|
|
| /s/
Robert M. La Forgia |
|
Trustee
|
| Robert
M. La Forgia |
|
|
| |
|
|
| /s/
Robert J. McCarthy |
|
Trustee
|
| Robert
J. McCarthy |
|
|
| |
|
|
| /s/
Robin M. Zeigler |
|
Trustee
|
| Robin
M. Zeigler |
|
|
Exhibit 5.1
 |
Hogan Lovells US LLP
Columbia Square
555 Thirteenth Street, NW
Washington, DC 20004
T +1 202 637 5600
F +1 202 637 5910
www.hoganlovells.com |
August 23, 2024
Board of Trustees
RLJ Lodging Trust
7373 Wisconsin Avenue, Suite 1500
Bethesda, MD 20814
To the addressee referred to above:
We are acting as counsel to RLJ Lodging Trust,
a Maryland real estate investment trust (the “Company”), in connection with its registration statement on Form S-3,
as amended (the “Registration Statement”), filed with the Securities and Exchange Commission relating to the proposed
public offering of an unlimited amount of one or more series of the following securities of the Company: (i) common shares of beneficial
interest, par value $0.01 per share (the “Common Shares”); (ii) preferred shares, par value $0.01 per share (the
“Preferred Shares”); (iii) Preferred Shares represented by depositary receipts (the “Depositary Shares”);
(iv) warrants to purchase Common Shares (the “Common Share Warrants”); (v) warrants to purchase Preferred
Shares (the “Preferred Share Warrants”); (vi) warrants to purchase Depositary Shares (the “Depositary
Share Warrants” and, together with the Common Share Warrants and the Preferred Share Warrants, the “Warrants”);
and (vii) rights to purchase the Common Shares (the “Rights” and, together with the Common Shares, Preferred
Shares, Depositary Shares and Warrants, the “Securities”), all of which may be sold from time to time and on a delayed
or continuous basis, as set forth in the prospectus which forms a part of the Registration Statement, and as to be set forth in one or
more supplements to the prospectus. This opinion letter is furnished to you at your request to enable you to fulfill the requirements
of Item 601(b)(5) of Regulation S-K, 17 C.F.R. § 229.601(b)(5), in connection with the Registration Statement.
For purposes of this opinion letter, we have
examined copies of such agreements, instruments and documents as we have deemed an appropriate basis on which to render the opinions
hereinafter expressed. In our examination of the aforesaid documents, we have assumed the genuineness of all signatures, the legal capacity
of all natural persons, the accuracy and completeness of all documents submitted to us, the authenticity of all original documents, and
the conformity to authentic original documents of all documents submitted to us as copies (including pdfs). As to all matters of fact,
we have relied on the representations and statements of fact made in the documents so reviewed, and we have not independently established
the facts so relied on. This opinion letter is given, and all statements herein are made, in the context of the foregoing.
For purposes of this opinion letter, we have
assumed that (i) the issuance, sale, amount and terms of any Securities of the Company to be offered from time to time will have
been duly authorized and established by proper action of the Board of Trustees of the Company or a duly authorized committee of such
board (“Board Action”) consistent with the procedures and terms described in the Registration Statement and in accordance
with the Company’s Articles of Amendment and Restatement of Declaration of Trust, as amended (the “Declaration of Trust”),
bylaws and applicable Maryland real estate investment trust and corporate law, in a manner that does not violate any law, government
or court-imposed order or restriction or agreement or instrument then binding on the Company or otherwise impair the legal or binding
nature of the obligations represented by the applicable Securities; (ii) at the time of offer, issuance and sale of any Securities,
the Registration Statement shall have become effective under the Securities Act of 1933, as amended (the “Act”), and
no stop order suspending its effectiveness will have been issued and remain in effect; (iii) prior to the issuance of any Preferred
Shares or Depositary Shares, appropriate articles supplementary shall be filed and accepted for record by the Maryland State Department
of Assessments and Taxation; (iv) any Depositary Shares will be issued under one or more deposit agreements by the financial institution
identified therein as a depositary, each deposit agreement to be between the Company and the financial institution identified therein
as a depositary; (v) any Warrants will be issued under one or more warrant agreements, each to be between the Company and a financial
institution identified therein as warrant agent; (vi) any Rights associated with the Common Shares will be issued under one or more
rights agreements, each to be between the Company and a financial institution identified therein as rights agent, and the members of
the Board of Trustees of the Company have acted and will act in a manner consistent with their fiduciary duties as required under applicable
law in adopting the rights agreement; (vii) if being sold by the issuer thereof, the Securities will be delivered against payment
of valid consideration therefor and in accordance with the terms of the applicable Board Action authorizing such sale and any applicable
underwriting agreement or purchase agreement and as contemplated by the Registration Statement and/or the applicable prospectus supplement;
(viii) the laws of the State of New York will be the governing law under any deposit agreement, warrant agreement or rights agreement;
(ix) the Company will remain a Maryland real estate investment trust; and (x) the Securities will not be issued in violation
of the ownership limit contained in the Company’s Declaration of Trust.
Hogan Lovells US LLP is a limited liability partnership
registered in the state of Delaware. “Hogan Lovells” is an international legal practice that includes Hogan Lovells US LLP
and Hogan Lovells International LLP, with offices in: Alicante Amsterdam Baltimore Berlin Beijing Birmingham Boston Brussels Colorado
Springs Denver Dubai Dusseldorf Frankfurt Hamburg Hanoi Ho Chi Minh City Hong Kong Houston Johannesburg London Los Angeles Luxembourg
Madrid Mexico City Miami Milan Minneapolis Monterrey Munich New York Northern Virginia Paris Philadelphia Riyadh Rome San Francisco São
Paulo Shanghai Silicon Valley Singapore Sydney Tokyo Warsaw Washington, D.C. Associated Offices: Budapest Jakarta Shanghai FTZ. Business
Service Centers: Johannesburg Louisville. For more information see www.hoganlovells.com
Board of Trustees RLJ Lodging Trust | - 2 - | August 23, 2024 |
To the extent that the obligations of the Company
with respect to the Securities may be dependent upon such matters, we assume for purposes of this opinion that the other party under
the deposit agreement for any Depositary Shares, under the warrant agreement for any Warrants, and under the rights agreement for any
Rights associated with the Common Shares, namely, the depositary, the warrant agent or the rights agent, respectively, is duly organized,
validly existing and in good standing under the laws of its jurisdiction of organization; that such other party is duly qualified to
engage in the activities contemplated by such deposit agreement, warrant agreement or rights agreement, as applicable; that such deposit
agreement, warrant agreement or rights agreement, as applicable, has been duly authorized, executed and delivered by the other party
and constitutes the legal, valid and binding obligation of the other party enforceable against the other party in accordance with its
terms; that such other party is in compliance with respect to performance of its obligations under such deposit agreement, warrant agreement
or rights agreement, as applicable, with all applicable laws, rules and regulations; and that such other party has the requisite
organizational and legal power and authority to perform its obligations under such deposit agreement, warrant agreement or rights agreement,
as applicable.
This opinion letter is based as to matters of
law solely on the applicable provisions of the following, as currently in effect: (i) Title 8 of the Corporations and Associations
Article of the Annotated Code of Maryland, as amended, and the Maryland General Corporation Law, as amended; and (ii) as to
the opinions given in paragraphs (a), (c), (d), (e) and (f), the laws of the State of New York (but not including any laws,
statutes, ordinances, administrative decisions, rules or regulations of any political subdivision below the state level). We express
no opinion herein as to any other statutes, rules or regulations (and in particular, we express no opinion as to any effect that
such other statutes, rules or regulations may have on the opinions expressed herein).
Board of Trustees RLJ Lodging Trust | - 3 - | August 23, 2024 |
Based upon, subject to and limited by the foregoing,
we are of the opinion that:
(a)
The Common Shares (including any Common Shares duly issued upon the exchange or conversion of Preferred Shares that are exchangeable
for or convertible into Common Shares, or upon the exercise of Common Share Warrants or Rights and receipt by the Company of any additional
consideration payable upon such conversion, exchange or exercise), upon due execution and delivery on behalf of the Company of certificates
therefor, including global certificates, or the entry of the issuance thereof in the books and records of the Company, as the case may
be, will be validly issued, fully paid and nonassessable, and the Rights associated with the Common Shares, upon due execution and delivery
of a rights agreement relating thereto on behalf of the Company and the rights agent named therein and the valid issuance of the Common
Shares, will be valid and binding obligations of the Company.
(b)
The Preferred Shares (including any Preferred Shares represented by Depositary Shares or that are duly issued upon the exercise of Preferred
Share Warrants and receipt by the Company of any additional consideration payable upon such exercise), upon due execution and delivery
on behalf of the Company of certificates therefor, including global certificates, or the entry of the issuance thereof in the books and
records of the Company, as the case may be, will be validly issued, fully paid and nonassessable.
(c)
The depositary receipts evidencing the Depositary Shares, upon due countersignature thereof and issuance against a deposit of duly authorized
and validly issued Preferred Shares in accordance with the deposit agreement relating thereto, will be validly issued and entitle the
holders thereof to the rights specified in such depositary receipts and deposit agreement.
(d)
The Preferred Share Warrants, upon due execution and delivery of an equity warrant agreement relating thereto on behalf of the Company
and the warrant agent named therein and due authentication of the Preferred Share Warrants by such warrant agent, and upon due execution
and delivery of the Preferred Share Warrants on behalf of the Company, will constitute valid and binding obligations of the Company.
(e)
The Common Share Warrants, upon due execution and delivery of an equity warrant agreement relating thereto on behalf of the Company and
the warrant agent named therein and due authentication of the Common Share Warrants by such warrant agent, and upon due execution and
delivery of the Common Share Warrants on behalf of the Company, will constitute valid and binding obligations of the Company.
(f)
The Depositary Share Warrants, upon due execution and delivery of an equity warrant agreement relating thereto on behalf of the Company
and the warrant agent named therein and due authentication of the Depositary Share Warrants by such warrant agent, and upon due execution
and delivery of the Depositary Share Warrants on behalf of the Company, will constitute valid and binding obligations of the Company.
Board of Trustees RLJ Lodging Trust | - 4 - | August 23, 2024 |
The opinions expressed in paragraphs (a) (with
respect to the Rights), (c), (d), (e) and (f) above with respect to the valid and binding nature of obligations may be limited
by bankruptcy, insolvency, reorganization, receivership, moratorium or other laws affecting creditors’ rights and remedies (including,
without limitation, the effect of statutory and other law regarding fraudulent conveyances and fraudulent, preferential or voidable transfers)
and by the exercise of judicial discretion and the application of principles of equity, good faith, fair dealing, reasonableness, conscionability
and materiality (regardless of whether the Securities are considered in a proceeding in equity or at law), including, without limitation,
principles limiting the availability of specific performance and injunctive relief.
It should be understood that the opinion in paragraph (a) above
concerning the Rights does not address the determination a court of competent jurisdiction may make regarding whether the Board of Trustees
of the Company would be required to redeem or terminate, or take other action with respect to, the Rights at some future time based on
the facts and circumstances existing at that time and that our opinion in paragraph (a) above addresses the Rights and the
rights agreement in their entirety and not any particular provision of the Rights or the rights agreement and that it is not settled
whether the invalidity of any particular provision of a rights agreement or of rights issued thereunder would result in invalidating
in their entirety such rights.
This opinion letter has been prepared for use
in connection with the Registration Statement. We assume no obligation to advise of any changes in the foregoing subsequent to the effective
date of the Registration Statement.
We hereby consent to the filing of this opinion
letter as Exhibit 5.1 to the Registration Statement and to the reference to this firm under the caption “Legal Matters”
in the prospectus constituting a part of the Registration Statement. In giving this consent, we do not thereby admit that we are an “expert”
within the meaning of the Act.
Very truly yours,
/s/ Hogan Lovells US LLP
HOGAN LOVELLS US LLP
Exhibit 8.1
 |
Hogan
Lovells US LLP
Columbia Square
555 Thirteenth Street, NW
Washington, DC 20004
T +1 202 637 5600
F +1 202 637 5910
www.hoganlovells.com |
August 23, 2024
Board of Trustees
RLJ Lodging Trust
7373 Wisconsin Avenue, Suite 1500
Bethesda, MD 20814
Ladies and Gentlemen:
This firm has acted as tax counsel to RLJ Lodging
Trust, a Maryland real estate investment trust (the “Company”), in connection with its registration statement on Form S-3,
as amended (the “Registration Statement”), filed with the Securities and Exchange Commission relating to the proposed
public offering of an unlimited amount of one or more series of the following securities of the Company: (i) common shares of beneficial
interest, par value $0.01 per share, (the “Common Shares”); (ii) preferred shares, par value $0.01 per share
(the “Preferred Shares”); (iii) Preferred Shares represented by depositary receipts (the “Depositary
Shares”); (iv) warrants to purchase Common Shares (the “Common Share Warrants”); (v) warrants
to purchase Preferred Shares (the “Preferred Share Warrants”); (vi) warrants to purchase Depositary Shares (the
“Depositary Share Warrants” and, together with the Common Share Warrants and the Preferred Share Warrants, the “Warrants”);
and (vii) rights to purchase the Common Shares (the “Rights” and, together with the Common Shares, Preferred
Shares, Depositary Shares and Warrants, the “Securities”), all of which may be sold from time to time and on a delayed
or continuous basis, as set forth in the prospectus which forms a part of the Registration Statement, and as to be set forth in one or
more supplements to the prospectus.
In connection with the filing of the Registration
Statement, we have been asked to provide you with this letter regarding the Company’s qualification as a real estate investment
trust (a “REIT”) for U.S. federal income tax purposes and certain other U.S. federal income tax matters to be filed
as an exhibit to the Registration Statement. Capitalized terms used herein, unless otherwise defined in the body of this letter, shall
have the meanings set forth in Appendix A.
Bases for Opinions
The opinions set forth in this letter are based
on relevant current provisions of the Internal Revenue Code of 1986, as amended (the “Code”), the Treasury Regulations
thereunder (including proposed and temporary Treasury Regulations), and interpretations of the foregoing as expressed in court decisions,
applicable legislative history, and the administrative rulings and practices of the Internal Revenue Service (the “IRS”),
including its practices and policies in issuing private letter rulings, which are not binding on the IRS except with respect to a taxpayer
that receives such a ruling, all as of the date hereof. These provisions and interpretations are subject to change by the IRS, Congress
and the courts (as applicable), which may or may not be retroactive in effect and which might result in material modifications of our
opinions. Our opinions do not foreclose the possibility of a contrary determination by the IRS or a court of competent jurisdiction,
or of a contrary position taken by the IRS or the Treasury Department in regulations or rulings issued in the future. In this regard,
an opinion of counsel with respect to an issue represents counsel’s best professional judgment with respect to the outcome on the
merits with respect to such issue, if such issue were to be litigated, but an opinion is not binding on the IRS or the courts, and is
not a guarantee that the IRS will not assert a contrary position with respect to such issue or that a court will not sustain such a position
asserted by the IRS.
Hogan Lovells US LLP is a limited liability partnership
registered in the state of Delaware. “Hogan Lovells” is an international legal practice that includes Hogan Lovells US LLP
and Hogan Lovells International LLP, with offices in: Alicante Amsterdam Baltimore Berlin Beijing Birmingham Boston Brussels Colorado
Springs Denver Dubai Dusseldorf Frankfurt Hamburg Hanoi Ho Chi Minh City Hong Kong Houston Johannesburg London Los Angeles Luxembourg
Madrid Mexico City Miami Milan Minneapolis Monterrey Munich New York Northern Virginia Paris Philadelphia Riyadh Rome San Francisco São
Paulo Shanghai Silicon Valley Singapore Sydney Tokyo Warsaw Washington, D.C. Associated Offices: Budapest Jakarta Shanghai FTZ. Business
Service Centers: Johannesburg Louisville. For more information see www.hoganlovells.com
Board of Trustees
RLJ Lodging Trust
August 23, 2024
Page 2
In rendering the following opinions, we have
examined such statutes, regulations, records, agreements, certificates and other documents as we have considered necessary or appropriate
as a basis for the opinions, including, but not limited to:
| (1) | the Registration Statement; |
| (2) | the Declaration of Trust of the Company,
dated as of January 31, 2011, as amended through the date hereof (the “Declaration
of Trust”); |
| (3) | certain of the Leases; and |
| (4) | such other documents as we deemed necessary
or appropriate (the documents referred to in clauses (1) through (4), the “Reviewed
Documents”). |
The opinions set forth in this letter are premised
on, among other things, the written representations of the Company and the Operating Partnership contained in a letter to us dated as
of the date hereof (the “Representation Letter”).
Although we have discussed the Representation
Letter with the signatories thereto, for purposes of rendering our opinions, we have not made an independent investigation or audit of
the facts set forth in the Reviewed Documents and the Representation Letter. We consequently have relied upon the representations and
statements of the Company and RLJ LP, as described in the Reviewed Documents and the Representation Letter, and assumed that the information
presented in such documents or otherwise furnished to us is accurate and complete in all material respects.
In this regard, we have assumed with your consent
the following:
| (1) | that (A) all of the representations
and statements set forth in each of the Reviewed Documents and the Representation Letter
are true, correct, and complete as of the date hereof, (B) any representation or statement
made in any of the Reviewed Documents or the Representation Letter as a belief or made “to
the knowledge of” or similarly qualified is true, correct, and complete as of the date
hereof, without such qualification, (C) each agreement described in any of the Reviewed
Documents is valid and binding in accordance with its terms, and (D) each of the obligations
of the Company, the Operating Partnership and their respective subsidiaries, as described
in the Reviewed Documents, has been or will be performed or satisfied in accordance with
its terms; |
| (2) | the genuineness of all signatures, the
proper execution of all documents, the authenticity of all documents submitted to us as originals,
the conformity to originals of documents submitted to us as copies, and the authenticity
of the originals from which any copies were made; |
Board of Trustees
RLJ Lodging Trust
August 23, 2024
Page 3
| (3) | that any documents as to which we have
reviewed only a form were or will be duly executed without material changes from the form
reviewed by us; and |
| (5) | from and after the date of this letter,
the Company and the Operating Partnership will comply with the representations contained
in the Representation Letter that the Company will utilize all appropriate “savings
provisions” (including the provisions of Sections 856(c)(6), 856(c)(7), and 856(g) of
the Code, and the provision included in Section 856(c)(4) of the Code (flush language)
allowing for the disposal of assets within 30 days after the close of a calendar quarter,
and all available deficiency dividend procedures) available to the Company under the Code
in order to correct any violations of the applicable REIT qualification requirements of Sections
856 and 857 of the Code, to the full extent the remedies under such provisions are available. |
Any material variation or difference in the facts
from those set forth in the documents that we have reviewed and upon which we have relied (including, in particular, the Registration
Statement and the Representation Letter) may adversely affect the conclusions stated herein.
Opinions
Based upon, and subject to the assumptions and
qualifications set forth herein, including, without limitation, the discussion in the next paragraph below, we are of the opinion that:
| (1) | the Company has been organized and has
operated in conformity with the requirements for qualification and taxation as a REIT under
the Code for each of its taxable years beginning with its taxable year ended December 31,
2014 through and including its taxable year ended December 31, 2023, and the Company’s
current organization and current and proposed method of operation (as described in the Registration
Statement and the Representation Letter) will enable it to meet the requirements for qualification
and taxation as a REIT under the Code for its taxable year ending December 31, 2024,
and future taxable years; and |
| (2) | the portions of the discussions in the
Registration Statement under the heading “Material U.S. Federal Income Tax Consequences”
that describe applicable U.S. federal income tax law are correct in all material respects
as of the date hereof. |
* * * * *
In addition to the assumptions set forth above,
our opinions are subject to the exceptions, limitations and qualifications set forth below:
| (1) | The Company’s ability to qualify
as a REIT depends in particular upon whether each of the Leases is respected as a lease for
U.S. federal income tax purposes. If one or more Leases are not respected as leases for U.S.
federal income tax purposes, the Company may fail to qualify as a REIT (including by reason
of one or more of the Old REITs or the Subsidiary REITs failing to qualify as a REIT in one
or more taxable years. The determination of whether the Leases are leases for U.S. federal
income tax purposes is highly dependent on specific facts and circumstances. In addition,
for the rents payable under a Lease to qualify as “rents from real property”
under the Code, the rental provisions of the Leases and the other terms thereof must conform
with normal business practice and not be used as a means to base the rent paid on the income
or profits of the Lessees. In delivering the first opinion set forth above, we expressly
rely upon, among other things, the Company’s representations as to various factual
matters with respect to the Leases, including representations as to the commercial reasonableness
of the economic and other terms of the Leases at the times the Leases were originally entered
into and subsequently renewed or extended (and taking into account for this purpose changes
to the economic and other terms of the Leases pursuant to subsequent amendments), the intent
and economic expectations of the parties to the Leases, the allocation of various economic
risks between the parties to the Leases, taking into account all surrounding facts and circumstances,
the conformity of the rental provisions and other terms of the Leases with normal business
practice, the conduct of the parties to the Leases, and the conclusion that such terms are
not being, and will not be, used as a means to base the rent paid on the income or profits
of the Lessees. We express no opinion as to any of the economic terms of the Leases, the
commercial reasonableness thereof, or whether the actual economic relationships created thereby
are such that the Leases will be respected for U.S. federal income tax purposes or whether
the rental and other terms of the Leases conform with normal business practice (and are not
being used as a means to base the rent paid on the income or profits of the Lessees). |
Board of Trustees
RLJ Lodging Trust
August 23, 2024
Page 4
| (2) | The Company’s qualification and
taxation as a REIT under the Code will depend upon the ability of the Company to meet on
an ongoing basis (through actual quarterly and annual operating results, distribution levels,
diversity of share ownership and otherwise) the various qualification tests imposed under
the Code, and upon the Company utilizing any and all appropriate “savings provisions”
(including the provisions of Sections 856(c)(6), 856(c)(7), and 856(g) of the Code and
the provision included in Section 856(c)(4) of the Code (flush language) allowing
for the disposal of assets within 30 days after the close of a calendar quarter, and all
available deficiency dividend procedures) available to the Company under the Code in order
to correct any violations of the applicable REIT qualification requirements of Sections 856
and 857 of the Code. Our opinions set forth in this letter do not foreclose the possibility
that the Company may have to utilize one or more of these “savings provisions”
in the future, which could require the Company to pay an excise or penalty tax (which could
be significant in amount) in order to maintain its REIT qualification. We have not undertaken
at this time to review the Company’s compliance with the applicable REIT qualification
requirements on a continuing basis, nor will we do so in the future. Accordingly, no assurance
can be given that the actual results of the Company’s operations, the sources of its
income, the nature of its assets, the level of its distributions to shareholders and the
diversity of its share ownership for any given taxable year will satisfy the requirements
under the Code for qualification and taxation as a REIT. |
| (3) | This opinion letter addresses only the
specific U.S. federal income tax matters set forth above. This opinion letter does not address
any other U.S. federal, state, local or foreign legal or tax issues. |
This opinion letter has been prepared solely
for your use in connection with the filing of the Registration Statement and speaks as of the date hereof. We assume no obligation by
reason of this opinion letter or otherwise to advise you of any changes in our opinions subsequent to the date hereof. Except as provided
in the last paragraph, this opinion letter may not be distributed, quoted in whole or in part or otherwise reproduced in any document,
or filed with any governmental agency without our express written consent. In addition, this opinion letter may not be relied on by any
other person for any other purpose without our prior written consent.
Board of Trustees
RLJ Lodging Trust
August 23, 2024
Page 5
We hereby consent to the filing of this opinion
letter as Exhibit 8.1 to the Registration Statement and to the reference to Hogan Lovells US LLP under the caption “Legal
Matters” in the Registration Statement. In giving this consent, however, we do not admit thereby that we are an “expert”
within the meaning of the Act.
Very truly yours,
/s/ Hogan Lovells US LLP
HOGAN LOVELLS US LLP
Appendix A
Definitions
“Fund II REIT”
means each of RLJ Lodging II REIT, LLC and RLJ Lodging II REIT (PF #1), LLC, each a Delaware limited liability company that elected
to be taxed as a REIT.
“Fund III REIT”
means each of RLJ Real Estate III REIT, LLC, and RLJ Real Estate III REIT (PF #1), LLC, each a Delaware limited liability company
that elected to be taxed as a REIT.
“Hotel”
means each hotel in which the Company has a direct or indirect interest.
“Lease”
means any real estate lease of a Hotel pursuant to which either the Company, directly or through a Subsidiary REIT and/or one or
more Partnership Subsidiaries, or one or more of the Old REITs leased or leases a Hotel or other Real Property to a Lessee, taking into
actcount all subsequent amendments, renewals and/or extensions.
“Lessee”
means any TRS Lessee or any other party that leases one or more Hotels or other leased Real Property pursuant to a Lease.
“Old REITs”
means any of the Fund II REITs or the Fund III REITs.
“Operating Partnership”
means RLJ Lodging Trust, L.P., a Delaware limited partnership.
“Partnership Subsidiary”
means any of the Operating Partnership and each partnership, limited liability company, or other entity treated as a partnership
for federal income tax purposes or disregarded as a separate entity for federal income tax purposes in which either the Company, an Old
REIT, or a Subsidiary REIT owns (or owned) an interest, either directly or through one or more other partnerships, limited liability
companies or other entities treated as a partnership for federal income tax purposes or disregarded as a separate entity for federal
income tax purposes (whether or not the interest is (or was) a controlling interest in, or otherwise represents (or represented) the
ability to control or direct the operation of, such entity). Notwithstanding the foregoing, the term “Partnership Subsidiary”
shall not in any way be deemed to include a TRS or subsidiaries thereof.
“Real Property”
means real property, including interests in real property and interests in mortgages on real property.
“Subsidiary REIT”
means any of RLJ III – MH Denver Airport, Inc. (f/k/a Lodgian Denver Inc.), RLJ III – EM West Palm Beach, Inc.
(f/k/a Servico Centre Associates, Inc.), RLJ III – C Buckhead, Inc. (f/k/a Lodgian Buckhead, Inc.) and, from and
after the effective date of its REIT election, any direct or indirect subsidiary of the Operating Partnership that has elected to be
treated as a REIT under the Code.
“TRS”
means a “taxable REIT subsidiary,” as described in Section 856(l) of the Code. Any entity taxable as a corporation
in which a TRS of a real estate investment trust owns (x) securities possessing more than 35% of the total voting power of the outstanding
securities of such entity or (y) securities having a value of more than 35% of the total value of the outstanding securities of
such entity shall also be treated as a TRS of such real estate investment trust whether or not a separate election is made with respect
to such other entity.
“TRS Lessee”
means any lessee of a Hotel that is a TRS.
Exhibit 23.1
CONSENT OF INDEPENDENT REGISTERED PUBLIC
ACCOUNTING FIRM
We hereby consent to the incorporation
by reference in this Registration Statement on Form S-3 of RLJ Lodging Trust of our
report dated February 27, 2024 relating to the financial statements, financial statement schedule and the effectiveness of internal
control over financial reporting, which appears in RLJ Lodging Trust's Annual Report on Form 10-K for the year ended December 31,
2023. We also consent to the reference to us under the heading “Experts” in such Registration Statement.
/s/ PricewaterhouseCoopers LLP
Washington, District Of Columbia
August 23, 2024
S-3
S-3ASR
EX-FILING FEES
0001511337
RLJ Lodging Trust
0001511337
2024-08-21
2024-08-21
0001511337
1
2024-08-21
2024-08-21
0001511337
2
2024-08-21
2024-08-21
0001511337
3
2024-08-21
2024-08-21
0001511337
4
2024-08-21
2024-08-21
0001511337
5
2024-08-21
2024-08-21
iso4217:USD
xbrli:pure
xbrli:shares
|
Calculation of Filing Fee Tables
|
|
S-3
|
|
RLJ Lodging Trust
|
|
Table 1: Newly Registered and Carry Forward Securities
|
|
|
|
Security Type
|
Security Class Title
|
Fee Calculation or Carry Forward Rule
|
Amount Registered
|
Proposed Maximum Offering Price Per Unit
|
Maximum Aggregate Offering Price
|
Fee Rate
|
Amount of Registration Fee
|
Carry Forward Form Type
|
Carry Forward File Number
|
Carry Forward Initial Effective Date
|
Filing Fee Previously Paid in Connection with Unsold Securities to be Carried Forward
|
|
Newly Registered Securities
|
|
Fees to be Paid
|
1
|
Equity
|
Common Shares of Beneficial Interest, $.01 par value per share
|
457(r)
|
|
|
|
0.0001476
|
|
|
|
|
|
|
Fees to be Paid
|
2
|
Equity
|
Preferred Shares, par value $.01 per share
|
457(r)
|
|
|
|
0.0001476
|
|
|
|
|
|
|
Fees to be Paid
|
3
|
Equity
|
Depositary Shares, representing Preferred Shares(3)
|
457(r)
|
|
|
|
0.0001476
|
|
|
|
|
|
|
Fees to be Paid
|
4
|
Other
|
Warrants(4)
|
457(r)
|
|
|
|
0.0001476
|
|
|
|
|
|
|
Fees to be Paid
|
5
|
Other
|
Rights
|
457(r)
|
|
|
|
0.0001476
|
|
|
|
|
|
|
Fees Previously Paid
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Carry Forward Securities
|
|
Carry Forward Securities
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Total Offering Amounts:
|
|
$
0.00
|
|
$
0.00
|
|
|
|
|
|
|
|
|
Total Fees Previously Paid:
|
|
|
|
$
0.00
|
|
|
|
|
|
|
|
|
Total Fee Offsets:
|
|
|
|
$
0.00
|
|
|
|
|
|
|
|
|
Net Fee Due:
|
|
|
|
$
0.00
|
|
|
|
|
|
1
|
1) The registrant is deferring payment of all of the registration fee in accordance with Rules 456(b) and 457(r) under the Securities Act of 1933, as amended.
(2) An unspecified aggregate initial offering of the securities of each identified class is being registered as may from time to time be offered by the registrants at unspecified prices, along with an indeterminate number of securities that may be issued upon exercise, settlement, exchange or conversion of securities offered hereunder. Separate consideration may or may not be received for securities that are issuable on exercise, conversion or exchange of other securities or that are represented by depositary shares.
|
|
|
|
2
|
(1) The registrant is deferring payment of all of the registration fee in accordance with Rules 456(b) and 457(r) under the Securities Act of 1933, as amended.
(2) An unspecified aggregate initial offering of the securities of each identified class is being registered as may from time to time be offered by the registrants at unspecified prices, along with an indeterminate number of securities that may be issued upon exercise, settlement, exchange or conversion of securities offered hereunder. Separate consideration may or may not be received for securities that are issuable on exercise, conversion or exchange of other securities or that are represented by depositary shares.
|
|
|
|
3
|
(1) The registrant is deferring payment of all of the registration fee in accordance with Rules 456(b) and 457(r) under the Securities Act of 1933, as amended.
(2) An unspecified aggregate initial offering of the securities of each identified class is being registered as may from time to time be offered by the registrants at unspecified prices, along with an indeterminate number of securities that may be issued upon exercise, settlement, exchange or conversion of securities offered hereunder. Separate consideration may or may not be received for securities that are issuable on exercise, conversion or exchange of other securities or that are represented by depositary shares.
(3) Each depositary share will be issued under a deposit agreement, will represent a specified interest in a preferred share and will be evidenced by a depositary receipt.
|
|
|
|
4
|
(1) The registrant is deferring payment of all of the registration fee in accordance with Rules 456(b) and 457(r) under the Securities Act of 1933, as amended.
(2) An unspecified aggregate initial offering of the securities of each identified class is being registered as may from time to time be offered by the registrants at unspecified prices, along with an indeterminate number of securities that may be issued upon exercise, settlement, exchange or conversion of securities offered hereunder. Separate consideration may or may not be received for securities that are issuable on exercise, conversion or exchange of other securities or that are represented by depositary shares.
(4) The warrants covered by this registration statement may be warrants for common shares, preferred shares or depositary shares.
|
|
|
|
5
|
(1) The registrant is deferring payment of all of the registration fee in accordance with Rules 456(b) and 457(r) under the Securities Act of 1933, as amended.
(2) An unspecified aggregate initial offering of the securities of each identified class is being registered as may from time to time be offered by the registrants at unspecified prices, along with an indeterminate number of securities that may be issued upon exercise, settlement, exchange or conversion of securities offered hereunder. Separate consideration may or may not be received for securities that are issuable on exercise, conversion or exchange of other securities or that are represented by depositary shares.
|
|
|
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v3.24.2.u1
Offerings
|
Aug. 21, 2024 |
| Offering: 1 |
|
| Offering: |
|
| Fee Previously Paid |
false
|
| Rule 457(r) |
true
|
| Security Type |
Equity
|
| Security Class Title |
Common Shares of Beneficial Interest, $.01 par value per share
|
| Fee Rate |
0.01476%
|
| Offering Note |
1) The registrant is deferring payment of all of the registration fee in accordance with Rules 456(b) and 457(r) under the Securities Act of 1933, as amended.
(2) An unspecified aggregate initial offering of the securities of each identified class is being registered as may from time to time be offered by the registrants at unspecified prices, along with an indeterminate number of securities that may be issued upon exercise, settlement, exchange or conversion of securities offered hereunder. Separate consideration may or may not be received for securities that are issuable on exercise, conversion or exchange of other securities or that are represented by depositary shares.
|
| Offering: 2 |
|
| Offering: |
|
| Fee Previously Paid |
false
|
| Rule 457(r) |
true
|
| Security Type |
Equity
|
| Security Class Title |
Preferred Shares, par value $.01 per share
|
| Fee Rate |
0.01476%
|
| Offering Note |
(1) The registrant is deferring payment of all of the registration fee in accordance with Rules 456(b) and 457(r) under the Securities Act of 1933, as amended.
(2) An unspecified aggregate initial offering of the securities of each identified class is being registered as may from time to time be offered by the registrants at unspecified prices, along with an indeterminate number of securities that may be issued upon exercise, settlement, exchange or conversion of securities offered hereunder. Separate consideration may or may not be received for securities that are issuable on exercise, conversion or exchange of other securities or that are represented by depositary shares.
|
| Offering: 3 |
|
| Offering: |
|
| Fee Previously Paid |
false
|
| Rule 457(r) |
true
|
| Security Type |
Equity
|
| Security Class Title |
Depositary Shares, representing Preferred Shares(3)
|
| Fee Rate |
0.01476%
|
| Offering Note |
(1) The registrant is deferring payment of all of the registration fee in accordance with Rules 456(b) and 457(r) under the Securities Act of 1933, as amended.
(2) An unspecified aggregate initial offering of the securities of each identified class is being registered as may from time to time be offered by the registrants at unspecified prices, along with an indeterminate number of securities that may be issued upon exercise, settlement, exchange or conversion of securities offered hereunder. Separate consideration may or may not be received for securities that are issuable on exercise, conversion or exchange of other securities or that are represented by depositary shares.
(3) Each depositary share will be issued under a deposit agreement, will represent a specified interest in a preferred share and will be evidenced by a depositary receipt.
|
| Offering: 4 |
|
| Offering: |
|
| Fee Previously Paid |
false
|
| Rule 457(r) |
true
|
| Security Type |
Other
|
| Security Class Title |
Warrants(4)
|
| Fee Rate |
0.01476%
|
| Offering Note |
(1) The registrant is deferring payment of all of the registration fee in accordance with Rules 456(b) and 457(r) under the Securities Act of 1933, as amended.
(2) An unspecified aggregate initial offering of the securities of each identified class is being registered as may from time to time be offered by the registrants at unspecified prices, along with an indeterminate number of securities that may be issued upon exercise, settlement, exchange or conversion of securities offered hereunder. Separate consideration may or may not be received for securities that are issuable on exercise, conversion or exchange of other securities or that are represented by depositary shares.
(4) The warrants covered by this registration statement may be warrants for common shares, preferred shares or depositary shares.
|
| Offering: 5 |
|
| Offering: |
|
| Fee Previously Paid |
false
|
| Rule 457(r) |
true
|
| Security Type |
Other
|
| Security Class Title |
Rights
|
| Fee Rate |
0.01476%
|
| Offering Note |
(1) The registrant is deferring payment of all of the registration fee in accordance with Rules 456(b) and 457(r) under the Securities Act of 1933, as amended.
(2) An unspecified aggregate initial offering of the securities of each identified class is being registered as may from time to time be offered by the registrants at unspecified prices, along with an indeterminate number of securities that may be issued upon exercise, settlement, exchange or conversion of securities offered hereunder. Separate consideration may or may not be received for securities that are issuable on exercise, conversion or exchange of other securities or that are represented by depositary shares.
|
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