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Exhibit 2.1
AMENDMENT NO. 1
TO THE
AGREEMENT AND PLAN OF MERGER
BY AND AMONG
MS RESORT HOLDINGS LLC,
MS RESORT ACQUISITION LLC,
MS RESORT PURCHASER LLC,
ASHFORD SAPPHIRE ACQUISITION LLC
AND
CNL HOTELS & RESORTS, INC.
DATED AS OF FEBRUARY 21, 2007
1
THIS AMENDMENT NO. 1 TO THE AGREEMENT AND PLAN OF
MERGER , dated as of February 21, 2007 (this "
Amendment "), is entered into by and among MS Resort
Holdings LLC, a Delaware limited liability company (" Parent
"), MS Resort Acquisition LLC, a Delaware limited liability company
and a wholly-owned subsidiary of Parent (" Sub "), MS Resort
Purchaser LLC, a Delaware limited liability company and
wholly-owned subsidiary of Parent (" Missouri "), Ashford
Sapphire Acquisition LLC, a Delaware limited liability company ("
Arizona "), and CNL Hotels & Resorts, Inc., a
Maryland corporation (the " Company "). Parent, Sub,
Missouri and Arizona are hereinafter collectively referred to as
the " Buyer Parties ".
W I T N E S S E T
H:
WHEREAS, the Buyer Parties and the Company
entered into that certain Agreement and Plan of Merger, dated as of
January 18, 2007, by and among the Buyer Parties and the
Company (the " Merger Agreement "); and
WHEREAS, the Buyer Parties and the Company desire
to amend the Merger Agreement as provided in this
Amendment.
NOW, THEREFORE, in consideration of the foregoing
and for other good and valuable consideration, the receipt and
sufficiency of which is hereby acknowledged, the parties hereto
hereby agree as follows:
1. Amendment to Section 1.1 of the
Merger Agreement . The definition of the "Company Letter" set
forth in Section 1.1 of the Merger Agreement is hereby amended
and restated in its entirety to read as follows:
" " Company Letter " means the letter
from the Company to the Buyer Parties dated as of January 18,
2007 as amended by that certain amendment to the Company Letter,
dated as of February 21, 2007, which letter, as amended,
relates to this Agreement and is designated therein as the Company
Letter."
The Buyer Parties and the Company hereby agree
that the amendment to the Company Letter, dated as of
February 21, 2007, shall be in the form attached hereto as
Exhibit A .
2. Amendment to Section 3.2(b) of
the Merger Agreement . The second sentence of
Section 3.2(b) is hereby amended and restated in its entirety
as follows:
"Upon surrender of a Certificate (or affidavits
of loss in lieu thereof) for cancellation to the Paying Agent,
together with such letter of transmittal, duly executed, and such
other documents as may reasonably be required by the Paying Agent
or, in the case of Uncertificated Shares, at or promptly following
the receipt by the Payin
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