AGREEMENT AND PLAN OF MERGER
This Agreement and Plan of Merger (this Agreement), dated as of August 28, 2020, by and between Steadfast Income REIT Operating Partnership, L.P., a Delaware limited partnership (the Acquiror), Steadfast Apartment REIT Operating Partnership, L.P., a Delaware limited partnership (the Company).
WHEREAS, Steadfast Apartment REIT, Inc. a Maryland corporation and the general partner of the Acquiror and the Company have each approved and adopted this Agreement and the transactions contemplated by this Agreement, in each case after making a determination that this Agreement and such transactions are advisable and fair to, and in the best interests of, such party and its limited partners;
WHEREAS, pursuant to the transactions contemplated by this Agreement and on the terms and subject to the conditions set forth herein, the Company, in accordance with the Delaware Limited Partnership Act (the DLPA), will merge with and into the Acquiror, with the Acquiror as the Surviving Partnership (the Merger); and
WHEREAS, for U.S. federal and applicable state income tax purposes, the Company is an entity disregarded from Steadfast Apartment REIT, Inc. (STAR), and the Merger will be treated as a tax-deferred contribution by STAR of all the assets and liabilities of the Company to the Acquiror under Section 721(a) of the Internal Revenue Code, as amended (the Code).
NOW, THEREFORE, in consideration of the mutual covenants, terms and conditions set forth herein, and for other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the parties agree as follows:
1. Merger. Upon the terms and subject to the conditions set forth in this Agreement, and in accordance with Section 17-211 of the DLPA the Company shall be merged with and into the Acquiror at the Effective Time (as hereinafter defined). Following the Effective Time, the separate existence of the Company shall cease, and the Acquiror shall continue as the surviving entity (the Surviving Partnership). The effects and consequences of the Merger shall be as set forth in this Agreement and the DLPA.
2. Effective Time.
(a) Subject to the provisions of this Agreement, on the date hereof, the parties shall duly prepare, execute and file a a certificate of merger (the Certificate of Merger) complying with Section 17-211 of the DLPA with the Secretary of State of the State of Delaware with respect to the Merger. The Merger shall become effective at 9:02 A.M. EST as set forth in the Certificate of Merger (the Effective Time).
(b) The Merger shall have the effects set forth in the DLPA. Without limiting the generality of the foregoing, from the Effective Time: (i) all the properties, rights, privileges, immunities, powers and franchises of the Company shall vest in the Acquiror, as the Surviving Partnership, and (ii) all debts, liabilities, obligations and duties of the Company shall become the debts, liabilities, obligations and duties of the Acquiror, as the Surviving Partnership.