EXHIBIT 5
ASSIGNMENT AGREEMENT
(VOTECO)
ASSIGNMENT AGREEMENT (this "Agreement"), made as of December
18, 2000, by and between Kelvin L. Davis (the "Seller") and Thomas J.
Barrack, Jr. or his designee (the "Purchaser").
WHEREAS, the parties hereto are parties to an Agreement,
dated February 10, 2000 (the "February Agreement"), governing the
termination of certain relationships between Seller, Purchaser, Colony
Capital, Inc. and their respective affiliates. Capitalized terms used in
this Agreement that are not defined herein shall have the meanings given to
them in the February Agreement.
WHEREAS, the February Agreement provides that Seller shall
sell and Purchaser shall purchase Seller's membership interest in Colony
HCR VoteCo, LLC (the "Company").
NOW, THEREFORE, in consideration of the mutual covenants set
forth herein and for other good and valuable consideration, receipt of
which is hereby acknowledged, Seller and Purchaser hereby agree as follows:
1. Purchase. Seller hereby agrees to sell and Purchaser
hereby agrees to purchase all of Seller's membership interest (the
"Interest") in the Company in exchange for Purchaser's assumption of that
certain Promissory Note, dated February 1, 1999 (the "Note") by Colony HCR
in favor of Colony Investors III in the original principal amount of
$748,235.
2. Assignment and Transfer. Upon assumption of the Note by
Purchaser, Seller shall have no further direct or indirect membership
interests in the Company. Seller represents and warrants that he has full
power and authority to sell, assign and transfer the Interests; provided,
however, Seller shall not be deemed to have breached this representation
and warranty as a result of a failure to have obtained any consents or
approvals (other than necessary consents or approvals from any of the Davis
Parties) required under the terms of the constitutive documents of the
Company or any shareholders or similar agreements or any required
regulatory approvals (other than regulatory approvals that Davis is
required to obtain). Seller further represents and warrants that Purchaser
will acquire title to such Interests, free and clear of all liens,
restrictions, charges, encumbrances and adverse claims created by Seller
(other than as provided in the constitutive documents of the Company or in
any shareholders or similar agreements to which any one of the Colony
Companies is a party and as otherwise provided in Section 3.B of the
February Agreements). Seller hereby agrees that he shall execute and
deliver such additional documents as may be reasonably requested by
Purchaser or the Company to complete the transfer to Purchaser of the
Interests as herein provided.
3. Miscellaneous. Sections 14 through 16 of the February
Agreement are hereby incorporated herein by reference as if fully set forth
herein.
IN WITNESS WHEREOF, the parties hereby agree to the
foregoing as of the date first above written.
/s/ KELVIN L. DAVIS
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KELVIN L. DAVIS
/s/ THOMAS J. BARRACK, JR.
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THOMAS J. BARRACK, JR.
