SECOND AMENDMENT TO MERGER AGREEMENT
This SECOND AMENDMENT TO MERGER AGREEMENT (this Amendment) is entered into as of August 9, 2022 by and among WHEELER REAL ESTATE INVESTMENT TRUST, INC., a Maryland corporation (Parent), WHLR MERGER SUB INC., a Maryland corporation and a wholly owned subsidiary of Parent (Merger Sub), WHLR OP MERGER SUB LLC, a Delaware limited liability company and a wholly owned subsidiary of Merger Sub (OP Merger Sub, and together with Parent and Merger Sub, the Parent Parties), CEDAR REALTY TRUST, INC., a Maryland corporation (the Company), and CEDAR REALTY TRUST PARTNERSHIP, L.P., a Delaware limited partnership (the Operating Partnership, and together with the Company, the Company Parties). Each entity listed above is referred to as a Party and collectively the Parties.
WHEREAS, the Parties entered into that certain Agreement and Plan of Merger, dated as of March 2, 2022 (as amended by that certain First Amendment to Merger Agreement among the Parties, dated April 19, 2022, the Merger Agreement), pursuant to which the Parent Parties intend to acquire the Company Parties by means of the mergers described therein;
WHEREAS, capitalized terms used but not defined herein shall have the meanings assigned to them in the Merger Agreement;
WHEREAS, the Merger Agreement provides for the declaration and payment by the Company of the Closing Dividend, calculated and determined as provided in Section 6.16 of the Merger Agreement, and payable by the Company prior to, and as a condition to, the consummation of the Mergers;
WHEREAS, on even date hereof the Board of Directors of the Company has declared the Closing Dividend in the amount of $19.52 per share of Company Common Stock (the Per Share Closing Dividend), payable to holders of record as of the close of business on August 19, 2022 and to be paid on the fourth Business Day following the Closing;
WHEREAS, the Parties anticipate that the Closing will occur on or about August 22, 2022, the conditions to Closing set forth in Article 7 of the Merger Agreement having been satisfied (other than those conditions that by their terms are to be satisfied at the Closing);
WHEREAS, pursuant to Section 3.1(a)(ii) of the Merger Agreement, the Merger Consideration payable to holders of Company Common Stock and OP Units has been determined to be $9.48 per share/unit (the Per Share Merger Consideration); and
WHEREAS, the Parent Parties and the Company Parties desire to amend the Merger Agreement pursuant to Section 9.1 thereof to clarify certain matters with respect to payment of the Per Share Closing Dividend and the Per Share Merger Consideration, and as otherwise set forth herein.
NOW, THEREFORE, in consideration of the covenants and representations set forth herein and therein, and for other good and valuable consideration, the Parties hereby agree as follows with respect to the Merger Agreement: