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2005-299 FILE REFERENCE FORM 2005-299 FILE(S) Date Initials First Amendment to the Asset Purchase Agreement - Ordinance No. 2006-119 05/02/06 JR S:\OUf Documents\Ordinanccs\OS\Asset Transfer and Assignment of McDonald Agreement2.doc ORDINANCE NO. :A005. ,{;(qq AN ORDINANCE APPROVING AND AUTHORIZING THE MAYOR TO EXECUTE AN ASSET PURCHASE AGREEMENT, BILL OF SALE AND OTHER DOCUMENTS TRANSFERRING ALL BUSES, EQUIPMENT AND OTHER RELATED ASSETS FROM THE CITY PASSENGER MOTOR CARRIER TRANSIT SYSTEM KNOWN AS LINK TO THE DENTON COUNTY TRANSPORTATION AUTHORITY AND AUTHORIZING THE MAYOR TO EXECUTE AN ASSIGNMENT OF THAT CERTAIN AGREEMENT TO PROVIDE THE SERVICES FOR THE PASSENGER MOTOR CARRIER TRANSIT SYSTEM KNOWN AS LINK, WITH MCDONALD TRANSIT ASSOCIATES, INC. DATED APRIL 16, 2002, AS AMENDED, TO THE DENTON COUNTY TRANSPORTATION AUTHORITY; AUTHORIZING THE EXTENSION OF THAT CERTAIN INTERLOCAL COOPERATION AGREEMENT WITH THE DENTON COUNTY TRANSPORTATION AUTHORITY EFFECTIVE OCTOBER 1,2004 AND AN EXTENSION OF THE MCDONALD TRANSIT ASSOCIATES, INC. AGREEMENT, IF NECESSARY; AUTHORIZING NECESSARY ACTIONS AND THE EXPENDITURE OF FUNDS TO COMPLETE THE TRANSFER; AND PROVIDING AN EFFECTIVE DATE. WHEREAS, on the 26th day of July, 2005, the City Council passed Resolution No. R2005-028 expressing its intent to sell and transfer all LINK public transportation service assets to the Denton County Transportation Authority ("DCTA") and to agree to continue to provide, pursuant to the existing Agreement between the parties dated September 7, 2004, fuel, facilities, utilities and all other equipment and services necessary for the LINK public transportation and UNT campus shuttle operations to the DCT A or its service contractor until the parties complete negotiations on an Agreement with the DCT A to transfer the LINK assets and the parties have executed the Agreement effectively selling and transferring all the LINK public transportation assets to DCT A; and WHEREAS, on the 30th day of August, 2005, the City Council passed Resolution No. R2005-031 expressing its intent and notifying the Federal Transit Administration (FT A) of the City of Denton's intent to transfer the federal capital interest and certain vehicles and equipment in the City of Denton's possession currently used for public transportation services provided by LINK to the DCT A and expressing the City's desire to assign the rights and responsibilities under Section 5307 federal grant interests with an exception to the DCTA; and WHEREAS, on July 28, 2005, DCT A passed Resolution No. R59-05 expressing its intent to purchase from the City all the City's assets that are necessary and appropriate for public transportation service and thereafter passed a Resolution expressing its intent to purchase these assets and to notify the FTA of this intent; a!1d WHEREAS, DCT A and the City have. negotiated an Asset Purchase Agreement, Bill of Sale and other documents which will effectively transfer all assets currently known as the LINK Public Transportation Service to DCTA; and S:\Our Documcnts\Ordinances\05\Asset Transfer and Assignment of McDonald Agrccmcnt2.doc WHEREAS, as a part of the transfer of the LINK assets to DCT A, the City staff recommends that the City assign that certain Agreement to Provide Services for Passenger Motor Carrier Transit System between the City and McDonald Transit Associates, Inc. dated April 16, 2002, as amended, to the DCT A; and WHEREAS, the City Council deems it in the public interest to assign the current agreement with McDonald Transit Associates, Inc. to the DCT A and approve the transfer of the public transportation assets known as LINK and described in the Asset Purchase Agreement to DCTA; NOW, THEREFORE, THE COUNCIL OF THE CITY OF DENTON HEREBY ORDAINS: SECTION 1. The findings set forth in the preamble of this Ordinance are incorporated by reference into the body of this Ordinance as iffully set forth herein. SECTION 2. That the City Council hereby approves and authorizes the Mayor, or in her absence, the Mayor Pro Tern, to execute the Asset Purchase Agreement, the attached Bill of Sale and other transfer documents necessary to affect the transfer of all the buses, equipment and other assets known as the LINK Public Transportation Service to the DCTA in substantially the form of the attached Asset Purchase Agreement, Bill of Sale and attached documents. SECTION 3. That the City Council hereby approves and authorizes the Mayor, or in her absence, the Mayor Pro Tem, to execute the attached Assignment of the City of Denton's interest in that certain Agreement to Provide Services for Passenger Motor Carrier Transit System with McDonald Transit Associates, Inc. dated April 16, 2002, as amended, to the DCT A in substantially the form attached. SECTION 4. That the City Managcr, or his designee, is hereby authorized to make expenditures of funds and take all other actions necessary to complete the transfer of the LINK Public Transportation Service System to the DCT A. SECTION 5. That in the event the closing date for the transfer of all the buses, equipment and other assets known as the LINK Public Transportation Scrvice to the DCT A is extended beyond September 30, 2005 the Mayor, or in her absence, the Mayor Pro Tern, and the City Manager or his designee, are authorized to enter into an cxtension of the Interlocal Cooperation Agreement with the Denton Co'.unty Transportation Authority, effective October 2004 providing LINK operations funding and to extend the above-mentioned Agreement with McDonald Transit Associates, Inc. until November 15, 2005 after said extension agreements have been approved as to the form by the City Attorncy. SECTION 6. That a true and correct of an executed copy of this Ordinance will be transmitted to the appropriate officials at the FT A by Mark Nelson, Director of Airport & Transit Operations, immediately upon its passage and approval. Page 2 of3 , S:\Our Documents\Ordinances\05\Asset Transfer and Assignment of McDonald Agreemcnt2.doc SECTION 7. This Ordinance shall become effective immediately upon its passage and approval. PASSED AND APPROVED this the .2.OI:/idayof Q~tl/n.Jt-<.../ ,2005. , ~AL EULINE BROCK, MAYOR ATTEST: JENNIFER WALTERS, CITY SECRETARY BY: qaJ1e liMl1lJidlJJ1,/ flu};. APPROVED AS TO LEGAL FORM: EDWIN M. SNYDER, CITY ATTORNEY BY: /~~ Page 3 of3 .} .,. \ " ASSET PURCHASE AGREEMENT Between DENTON COUNTY TRANSPORTATION AUTHORITY Buyer And CITY OF'DENTON, TEXAS Seller, For the Sale and Purchase of Certain Assets of City of Denton, Texas' Dated as of September 30, 2005' 785236.28fSP3/13144/0 1 0 1/091 905 ARTICLE I 1.1. 1.2. 1.3. 1.4. 1.5. 1.6. 1.7. 1.8. 1.9. 1.10. 1.11. 1.12. 1.13. 1.14. 1.15. 1.16. 1.17. 1.18. 1.19. 1.20. 1.21. 1.22. 1.23. 1.24. 1.25. 1.26. 1.27. 1.28. 1.29. 1.30. 1.31. 1.32. 1.33. 1.34. 1.35. 1.36. 1.37. 1.38. 1.39. ARTICLE II TABLE OF CONTENTS Page DE FI N ITI 0 N S.......................................................................................... 1 "Agreement" ............................................................................................ 1 "Assets" .... ....... ................................. ..... ............. ............ ........ ........ .... .....1 "Assignment of McDonald Operating Agreement" ...................................1 "Assignment of Service Marks"................................................................ 1 "Bill Of Sale" ............................................................................................1 "Buses" .................................................................................................... 1 "Business" ............................................................................................... 2 "Business Day" ..... ...... ....... ................... .................... ...... ...... ................... 2 "Business Intellectual Property" ...............................................................2 "Buyer"..................................................................................................... 2 "Buyer Docu ments"..............................,................................................... 2 "Closing" .................................................................................................. 2 "Closing Date".......................................................................................... 2 "Code" ..................................................................................................... 2 "Effective Time" ....................................................................................... 2 "Equipment" ............................................................................................. 2 "Escrow Agent" ..:... ...... .... .......... ...... ............ ........... ....... .................... ... ... 2 "Escrow Ag reement" ................................................................................ 2 "FTA".......................................................................................................2 "Govern mental Body" ....................................................,.... ..................... 3 "Knowledge of Buyer," "Buyer's Knowledge" ...........................................3 "Knowiedge of Seller," "Seller's Knowledge" ...........................................3 "Liabilities" ........................... ............. .......................................................3 "Lien" ...................................,................................................................... 3 "Losses" ........................................................._........................_...... ..........3 "Master Lease Agreement" ........ .............................................................. 3 "Other Buses" ........................................ .................. .........;.... .................. 3 "Other Bus Transfer Instrument"...........................................:.................. 3 "Person" ................................................................................................... 3 "Purchase Price" ................... ............ ....... ............ ........................... ......... 3 "Seller".....................................................................................................3 "Seller Documents" ....... ... ...................... ........... ..... ........... ....... ......... ....... 4 "Shelters and Benches" .........................,.................................................4 liT axes" ..........................................................................._................... ,_....4 "Titles" ....................................................................................................4 "TXDOT" ................................................................................................ 4 "U.S. DOT" ........... ... ..... .... ... ........ ... .... ..... ....... ... ... ...... ......... ........ ...........4 "Use Agreement" ..................................................................................... 4 "Vehicles" ............................................................................................... 4 SALE AND PURCHASE OF CERTAIN ASSETS AND CONVEYANCE' OF OTHER ASSETS...............................................................................4 785236.28/;;P3/13144/0 1 01/091905 '. ,. 2.1. 2.2. .2.3. ARTICLE III 3.1. 3.2. ARTICLE IV 4.1. ARTICLE V 5.1. 5.2. 5.3. 5.4. 5.5. 5.6. 5.7. 5.8.. 5.9. 5.10. 5.11. 5.12. 5.13. ARTICLE VI 6.1. 6.2. 6.3. 6.4. 6.5. ARTICLE VII 7.1. 7.2. 7.3. 7.4. 7.5. ARTICLE VIII 8.1. 8.2. 8.3. 8.4. 8.5. 8.6. Sale of Certain Assets. ...............................................................:............4 Transfer of Other Buses. .........................................................................5 "AS IS" Transfer.............. ................. .......................... ........... ......... .......... 5 CLOSING ...... ............ ........ ....:.......... ..................... ... ...... ........... .... ..........5 Closing Date. ............ ................................ ..... ........................... ............... 5 Deliveries at the Closing. ......................................................................... 5 PURCHASE PRiCE....... ...... ..................... ............. ..... ........ ............ ......... 8 Purchase Price. ..... ........ .........:............. ....... ....................... ................ ..... 8 REPRESENTATIONS AND WARRANTIES OF SELLER .......................8 Organization. ......:........... ..... .................................. ........ ... ............ ...........8 Authority; Consents and Approvals. ........................................................8 Title to Assets and Other Buses. .............................................................9 No Injunctions or Orders.......................................................................... 9 Compliance with Laws. ............................................................................ 9 Contracts. ................................................................................................ 9 Brokers. ................................................................................................. 9 Patent or Trademark Clairils.................................................................... 9 Valid Representations and Warranties. ................................................... 9 No Taxes Due........................................................................................ 10 No Liens. ......................... .............................. ...................... ..................10 Prudent Business Operation.................................................................. 10 Litigation.. ................ ........... ................................... ...................... .......... 10 REPRESENTATIONS AND WARRANTIES OF BUYER....................... 1 0 Organization. ........... .................................................. ....... ..... ................ 10 Authority, Consents and Approvals. ......................................................10 No Injunctions or Orders............................,..................................:........ 1 0 . Litigation. ... ... .................. .......... ....... ...................... ................... .............11 Brokers. ............ ........ ................... ................ ..................... ....... ..............11 FURTHER AGREEMENTS ...................................................................11 Additional Actions by Seller and Buyer.................................................. 11 Announcements..................................................................................... 11 Transaction Costs..................................................................................11 Fire and Casualty. .................................................................................11 FT A Approval......................................................................................... 12 MISCELLANEOUS. ............ ..................... ........................... ................... 12 Entire Understanding, Waiver, Etc.........................................................12 Severability. ........ ....................... .................. ................. ............... ..........13 Accounting Terms.... ........... ................ ................. ............... ........ ..:... .....13 Notices. ........ ............. .......... ....... ................ .......... ................. ................. 13 Successors and Assigns. ......................................................................14 Waivers. ... ... .... ............ .....1. ...... ............... ........... ...... ... ... ....:. ...... ...........14 785236.2BfSP3/13144fO 1 01/091905 ii " 8.7. Counterparts. .......... ....... ...................... .... ................... ..............:..... .......14 8.8. Attorneys' Fees and Costs. ...................................................................14 8.9. Headings. ..............................................................................................14 8.10. Governing Law. .........................................:..:.::.....................................14 iii 7B5236.28/SP3!13144/0101/091905 EXHIBITS Exhibit 1.4 - Assignment of Servic.e Marks Exhibit 1.5 - Bill Of Sale iv 785236.2BfSP 3/13144101 01/091 905 ~. SCHEDULES Schedule 1.9 - Business Intellectual Property Schedule 1.16 - Equipment Schedule 1.33 - Shelters and Benches Schedule 1.39 (a) - Buses Schedule 1.39 (b) - Other Buses Schedule 5.6 - Contracts v 785236.281SP3/13144/01 01/091 gas ASSET PURCHASE AGREEMENT NOW, THEREFORE, intending to be legally bound, the Parties agree as follows: ARTICLE I DEFINITIONS The terms defined in this Article shall have the following meanings: 1.1. "Agreement" shall have the meaning set forth in the opening paragraph of this Agreement. 1.2. "Assets" shall have the meaning set forth in Article II of this Agreement. 1.3. "Assignment of McDonald Operating Agreement" means that certain Assignment of McDonald Operating Agreement between McDonald Transit Associates, Inc., a Texas corporation ("McDonald"), and Buyer, which shall be completed, executed and delivered at Closing, and by tne terms of which Seller and McDonald assign to Buyer that certain Agreement to Provide Management and Operation Services for Passenger Motor Carrier Transit System dated April 16, 2002 (as amended) between Seller and McDonald. 1.4. "Assignment of Service Marks" means that certain Assignment of Service Marks, in the form of Exhibit 1.4 attached to this Agreement and incorporated herein by reference for all purposes, and which shall be completed, executed and delivered by Seller at Closing. . 1.5. "Bill Of Sale" means the bill of sale, in the form of Exhibit 1.5 attached to this Agreement and incorporated herein by reference for all purposes, and which shall be completed, executed and delivered by Seller at Closing. 1.6. "Buses" means as defined in the definition of "Vehicles" below. ASSET PURCHASE AGREEMENT - Page 1 7B5236.28/SP3/13144/01 01/091 905 .. 1.7. "Business" shall have the meaning set forth in the second recital of this Agreement. 1.8. "Business Day" means any day other than'a Saturday, Sunday, or' a 'national holiday in the U.S.A. 1.9. "Business Intellectual Property" means all of the trade secrets,processes, confidential business information, technical formulas, technology and know-how, data, designs, drawings, specifications, supplier. lists, pricing and cost information, business and marketing plans and proposals, and all copies and tangible embodiments thereof (in whatever form or medium) that are primarily used in the conduct of the Business or are known by Seller to be necessary for the continued conduct of the Business by Buyer after the Closing Date. 1.10. "Buyer" shall have the meaning set forth in the opening paragraph of this Agreement. 1.11. "Buyer Documents" shall have the meaning set forth in Section 3.2 (b) of this Agreement. 1.12. "Closing" shall have the meaning set forth in Section 3.1 of this Agreement. 1.13. "Closing Date" means the date on which the Closing actually occurs pursuant to Section 3.1 of this Agreement. 1.14. "Code" . means the Internal Revenue Code of 1986, as amended, or any successor statute thereto. 1.15. "Effective Time" means the effective time of the Closing specified in Section 3.1(b) of this Agreement. 1.16. "Equipment" means, collectively, the computers, servers, printers, scanners, fax machines, automobiles, office furniture, bus-related signs, cabinets, fixtures, telephone system, tools and equipment utilized by Seller in the Business and identified on Schedule 1.16 attached to this Agreement and incorporated herein by reference for all purposes. 1.17. "Escrow Agent" means as defined in the definition of "Escrow Agreement" b-elow. 1.18. "Escrow Agreement" means that escrow agreement by the terms of which Seller, Buyer and American Escrow Company ("Escrow Agent") agree that the fully completed and endorsed negotiable Texas Certificates of Title to each of the Vehicles will be deposited at Closing and in accordance with the terms and conditions set forth therein will be released to the Seller or Buyer, as applicable. 1.19. "FTA" means the Federal Transit Administration of the United States Department of Transportation. ASSET PURCHASE AGREEMENT - Page 2 785236 .28/SP3f13144/01 011091905 1.20. "Governmental Body" means any federal, state, local or othE:lrgovernmental department, commission, board, bureau, agency, instrumentality' or other authority. 1.21. "Knowledge of Buyer," "Buyer's Knowledge" or any substantially similar term means to the best of Buyer's knowledge. 1.22. "Knowledge of Seller," "Seller's Knowledge" or any substantially similar term means to the best of Seller's knowledge. 1.23. "Liabilities" means any indebtedness, liability, loss, damage, deficiency or obligation, known or unknown, fixed or unfixed, choate or inchoate, liquidated or unliquidated, secured or unsecured, accrued, absolute, contingent or otherwise, whether or not of the kind required by accounting principles generally accepted in the United States to be set forth on a financial statement, including any liability for Taxes. 1.24. "Lien" means any lien, pledge, mortgage, security interest, claim, lease, charge, option, right of first refusal, easement, servitude, transfer restriction or any other encumbrance, restriction or limitation whatsoever. 1.25. "Losses" means any and all losses, costs, expenses, obligations, liabilities or damages, including, without limitation, court costs, reasonable attorneys' fees and disbursements. 1.26. "Master Lease Agreement" means that written lease agreement between Buyer and Seller, which is the owner of that real estate specifically described therein and commonly known as 1100 Mayhill Road, City of Denton, County of Denton, Texas (collectively, the "Real Property"). 1.27. "Other Buses" means those vehicles referenced in the definition of "Vehicles" below. 1.28. "Other Bus Transfer Instrument" means that docurnent by the terms of which Seller conveys and transfers to Seller all of its right, title and interest to the other Buses for the consideration therein stated. 1.29. "Person" means an individual, partnership, limited liability cornpany, corporation, trust, unincorporated organization, association or joint venture or Governmental Body. 1.30. "Purchase Price" shall have the meaning set forth in Section 4.1 of this Agreement. 1.31. "Seller" shall have the meaning set forth in the opening paragraph of this Agreement. ASSET PURCHASE AGREEMENT - Page 3 765236. 28/SP3/13144/01 01/091905 1.32. "Seller Documents" shall have the meaning set forth in Section 3.2 (a) and 3.2 (d) of this Agreement. 1;33. "Shelters and Benches" means each and every pedestrian bus shelter and each pedestrian bench owned by the Seller and identified on Schedule 1.33, attached hereto and incorporated herein by reference for all purposes, on the Closing Date. 1.34. "Taxes" means any federal, state, local or foreign income, gross receipt,. license, payroll, employment, excise, severance, occupation, capital stock, franchise, profits, withholding, social security (or similar), unemployment, disability, real property, personal property, sales, use, transfer, registration, estimated or other tax of any kind whatsoever, including any interest, penalty or addition thereto, whether disputed or not. 1.35. "Titles" means, collectively, the negotiable Texas Certificates of Title issued for each of the Vehicles as properly completed, executed and endorsed by Seller (and any lienholder for the purpose of the lienholder releasing its lien). , 1.36. "TXDOT" means the Texas Department of Transportation. 1.37. "U.S. DOT" means the United States Department of Transportation which regulates the use of the Buses in the transportation of public passengers in the U.S.A. 1.38. "Use Agreement" means that agreement by the terms of which Seller agrees (among other things) that as to any Business Intellectual Property owned, licensed to or otherwise utilized by Seller in or related to the Business after Closing, Seller shall provide Buyer unlimited access to and use of same for purposes of operating the Business including, without limitation, the intra-city bus line under the name "LINK" in the City of Denton, Texas to the extent Seller is permitted by contract or law. 1.39. "Vehicles" means collectively all 'of those vehicles identified on Schedule 1.39 (a) attached hereto and incorporated herein by reference for all purposes (collectively, the "Buses") and each of those vehicles identified on Schedule 1.39 (b) attached hereto and incorporated herein by reference for all purposes (collectively, the "Other Buses"). ARTICLE II SALE AND PURCHASE OF CERTAIN ASSETS AND CONVEYANCE OF OTHER ASSETS 2.1. Sale of Certain Assets. On the terms and subject to the conditions stated in this Agreement, at the Closing, Seller shall sell, transfer, assign, convey and deliver to Buyer, and Buyer shall purchase, acquire and accept from Seller all of Seller's right, title and interest in arid to certain of the assets of Seller used in the ASSET PURCHASE AGREEMENT - Page 4 7 85236.28/SP3/13144/01 01/091905 conduct of the Business (collectively, the "Assets")' including each of the . following: (a) (b) (c) (d) the Buses identified on Schedule 1.39 (a); the Equipment; the Shelters and Benches; (e) any and all Governmental Body licenses, permits, certificates of authority, certificates of occupancy, authorizations, approvals, registrations, franchises and similar consents relating to the Business, to the extent assignable; any Business Intellectual Property as identified on Schedule 1.9 attached hereto and incorporated herein by reference for all purposes; and (f) the Route Match Software. 2.2. Transfer of other Buses. Further, subject to the terms and conditions of this Agreement,' at the Closing, Seller shall convey and transfer to Buyer all of Seller's right, title and interest in and to each of those Other Buses listed on Schedule 1.39 (b) in consideration of Buyer's agreement (as evidenced by this Agreement) to establish, operate and maintain an intra-city bus system in the City of Denton. 2.3. "AS IS" Transfer. Buyer agrees that all of the Assets are being conveyed and transferred by Seller to Buyer in accordance herewith on an AS IS, WHERE IS basis and that Seller is not making any warranties regarding the suitability of the Vehicles or other Assets for any intended use other than those required by FTA. Further, Buyer agrees that it has examined each of the Vehicles and other Assets and accepts them in their present repaired condition. ARTICLE III CLOSING 3.1. ClosinQ Date. (a) The Closing hereunder (the "Closing") shall take place on September 30, 2005 at 11 :00 a.m. (the "Closing Date"). (b) The effective time of the Closing hereunder will be deemed to have occurred at 5:00 p.m. (Central time) on September 30, 2005 (the "Effective Time"). 3.2. Deliveries at the ClosinQ. (a) At the Closing, Seller will deliver to Buyer the following: ASSET PURCHASE AGREEMENT - Page 5 7 8S236.2BfSP3/13144/0 1 0 1/091905 i) the Bill Of Sale duly completed and executed by Seller and listing therein, among other things, all Assets (including, without limitation, all Vehicles and Equipment) being sold to Buyer and the Purchase Price for same as determined in accordance with Section 4.1 below; ii) the Other Bus Transfer Instrument duly completed and executed by Seller and listing therein each of the Other Buses being conveyed and transferred by Seller to Buyer in accordance with Section 2.2 above for the consideration therein stated; iii) the Assignment of Service Marks duly executed by Seller; iv) a Certificate of the City Secretary of Seller, certifying (among other things) that attached thereto are true and correct copies of each resolution or ordinance of the City Council of Seller authorizing the execution, delivery and performance of this Agreement, the Master Lease Agreement and the other related agreements and documents referenced herein and executed pursuant to or related to this Agreement; v) all contracts, agreements, commitments and rights pertaining to the Business and other data relating to its assets, business and operation including, without limitation, all Vehicles and Equipment, except its books of account and supporting records; provided, however, after Closing, Seller shall provide Buyer with copies of such portions of said books of account as Buyer may from time to time require; and vi) all applicable sales, 'transfer, documentary, use, filing and other taxes and fees that may be due or payable as a result of the conveyance, assignment, transfer, or delivery of the Other Buses and the Assets, P\operty or Business to be conveyed and transferred as provid~d herein shall be borne by Buyer. vii) Assignment of McDonald Operating Agreement as separately consented to in writing by McDonald; viii) the unrestricted possession of each Vehicle and the other tangible Assets; . ix) The entirety of Seller's unused bus pass stock; x) and: (a) such other deeds, bills of sale, endorsements, assignments, and other good and sufficient instruments of conveyance, to vest all right, title, and interest of the Seller in the Buyer to ASSET PURCHASE AGREEMENT - Page 6 785236.2B/SP3/13144/0101/091905 property and Business being transferred to the Buyer from the Seller, free and clear of all Liens (except as to that Vehicle (Texas Vehicle Identification Number 1 FDXE45S43HA62794) which is subject to a Lien granted to TXDOT), in accordance herewith, except the Titles for the Vehicles will be deposited with the Escrow Agent in accordance with Section 3.2(d) below); (b) simultaneously with such delivery, the Seller wili take all such steps as may be required to put the Buyer in actual possession, operation and control of the Other Buses, the Assets, properties and Business to be transferred hereunder; xi) and such other instruments, documents or agreements that Buyer may reasonably request to carry out the transactions contemplated by this Agreement or comply with the terms of this Agreement. (b) At the Closing, Buyer wili deliver to Seller: i) the Purchase Price in a form acceptable to Seller; ii) a Certificate of the Secretary of Buyer, including resolutions of the Board of Directors, authorizing the execution, delivery and performance of this Agreement and the related agreements and documents; iii) such other instruments, documents or agreements as Seller may reasonably request to carry out the transactions contemplated by this Agreement and to comply with the terms of this Agreement. (c) At the Closing, Seller and Buyer shall mutually complete, execute and deliver to the other party each of the following: i) the Master Lease Agreement; ii) the Use Agreement; and iii) the Escrow Agreement; (d) At t~e Closing, Seller shall deliver to the Escrow Agent: i) the original negotiable Texas Certificates of Title for each of the Vehicles, completed and properly executed and endorsed by the Seller (and lienholder for the purpose of releasing its lien) and free and clear of any Liens, encumbrances or restrictions (except as to that Vehicle (Texas Vehicle Identification Number 1 FDXE45S43HA62794), which is subject to a TXDOT Lien); ASSET PURCHASE AGREEMENT - Page 7 785236.28/SP3/13144/0101/091605 , (e) From time to time after the Closing, at the request of the Buyer, the Seller' will execute and deliver to the Buyer such other instruments of conveyance and transfer or any other instruments, documents or, agreements and take such other action as the Buyer'may reasonably require to more effectively convey, transfer to, vest all of Seller's right, title and interest in, and to put the Buyer in possession of, any of the properties, the Other Buses or the Assets to be conveyed, transferred and delivered to the Buyer hereunder or to carry out the transactions contemplated by the Agreement or to comply with the terms of this Agreement. ARTICLE IV PURCHASE PRICE 4.1. Purchase Price. The Purchase Price payable to Seller by Buyer as consideration for the sale, transfer, conveyance and assignment of the Assets (the "Purchase Price") shall be: (a) Two Hundred Thirty Three Thousand Dollars ($233,000). ARTICLE V REPRESENTATIONS AND WARRANTIES OF SELLER Seller hereby represents and warrants to Buyer as follows: 5.1. Orqanization. Seller is a Texas home rule municipal corporation duly incorporated and chartered and validly existing under the laws of the State of Texas and has all requisite right, power and authority to own, lease and operate all of its properties and assets used in the Business and to carry out the Business as it is presently conducted. 5.2. Authority; Consents and Approvals. Seller has all requisite right, power and authority to execute, deliver and perform this Agreement and each other document and agreement referenced in this Agreement or to be executed and delivered by Seller pursuant to this Agreement (together, the "Seller Documents"). The execution, delivery, and performance of the Seller Documents by Seller has been duly and validly authorized and approved by all necessary actions of its City Council. This Agreement constitutes a valid and legally binding obligation of Seller, and the execution, delivery and performance of the Seller Documents by Seller will not violate Seller's Charter or applicable ordinances, as each is amended to the date of this Agreement, or (a) violate in any material respect any applicable provision of law or any rule or regulation of any Governmental Body or any order, writ, injunction, judgment or decree of any court, administrative agency or Governmental Body, (b) require any consent under or constitute a default under any material agreement, indenture, mortgage, deed of trust, lease, or other instrument to which Seller is a party or by which it is bound, or any license, permit or certificate heid by it, or (c) result in the creation of any Lien upon any of the Assets or the other Buses. ASSET PURCHASE AGREEMENT - Page 8 785236.28/SP3/13144J01011091905 5.3. Title to Assets and Other Buses. At Closing, Seller will have the full right and power to convey and will convey to Buyer, effective as of the Effective Time, all of its right, title and interest to the Assets and the Other Buses, free and clear of any and all Liens (except as to that Vehicle (Texas Vehicle Identification Number 1 FDXE45S43HA62794) which is subject to a TXDOT Lien) except that the Titles will be deposited with the Escrow Agent in accordance with Section 3.2(d). 5.4. No Injunctions or Orders. Except for the approval of the FT A as is required by Article 7.5 below for the transfer of the Other Buses and the sale of the Buses, there are no other necessary governmental consents, approvals or filings necessary for the conveyance and transfer of the Other Buses or the sale of the Assets by Seller. Seller is not subject to and, to Seller's Knowledge, has not been threatened with any injunctions of any court or orders of any federal, state or municipal court or Governmental Body, which would limit or otherwise adversely affect Seller's ability to convey and transfer the Other Buses or sell the Assets or to conduct the Business substantially as it is currently conducted by Seller. 5.5. Compliance with Laws: Seller has complied in all material respects with all federal, state and local laws and regulations applicable to the Other Buses and the Assets and the Business. 5.6. Contracts. Seller represents that the contracts or agreements listed on Schedule 5.6, attached hereto and incorporated herein by reference for all purposes, are the only contracts or.agreements Seller has entered into which are in effect and may create a liability for Buyer. 5.7. Brokers. No agent, broker, investment banker or other Person acting on behalf of Seller or under its authority is or will be entitled to any broker's or finder's fee or any other commission or similar fee, directly or indirectly, in connection with the transactions contemplated by this Agreement for which Buyer will be liable. 5.8. Patent or Trademark Claims. The Seller has no knowledge of any claim or reason to believe that it is or may be infringing or otherwise acting adversely to the rights of any Person under or .in respect of any patent, trademark, service mark, trade name, copyright, license, franchise, or other similar intangible right. The Seller is not obligated or under any liability whatever to make any payments ,by way of royalties, fees or otherwise to any owner or licensee of ,or other claimant to any patent, trademark, trade name, copyright, franchise, or other intangible asset with respect to the'use thereof or in connection with the conduct of the Business or otherwise. ' 5.9. Valid Representations and Warranties. No representation or warranty by the ,Seller in this Agreement or in any writing required hereunder or related hereto, contains or will contain any untrue statements of material fact or omits or will omit to state any material fact required to make the statements herein or therein contained not misleading. ASSET PURCHASE AGREEMENT - Page 9 785236.29/SP3/13144J0101/092005 5.10. No Taxes Due. The Seller has filed all federal and state withholding and employment tax retums and paid all taxes that are now due and payable or will be due and payable as of the date of the Closing. 5.11. No Liens. All of the Other Buses and the Assets are being transferred free and clear of any indebtedness or Liens (except as to that Vehicle (Texas Vehicle Identification Number 1 FDXE45S43HA62794) which is subject to a TXDOT Lien), and there are no tax or judgment liens against Seller or the Business to be transferred, except (a) for the approval of the FTA as is required by Article 7.5 below for the transfer of the Other Buses and the sale of the Buses, and (b) the Titles to the Vehicles are being deposited at Closing with the Escrow Agent in accordance with Section 3.2(d). 5.12. Prudent Business Operation. Seller will continue until the Effective Time on Closing Date to operate the Business in a reasonable and prudent manner. 5.13. Litiqation. Seller is not a party to, nor has any knowledge of any threat of, any litigation in which any Asset of Seller being sold to Buyer hereunder or any Other Bus being conveyed and transferred by Seller hereunder is the subjeCt of any such litigation or is affected by or could be affected by any such existing or threatened litigation. ARTICLE VI REPRESENTATIONS AND WARRANTIES OF BUYER Buyer hereby represents and warrants to Seller as follows: 6.1. Orqanization. Buyer is a political subdivision of the State of Texas and a coordinated county transportation authority created pursuant to Chapter 460, Texas Transportation Code, validly existing under the laws of the State of Texas and has the full right, power and authority to own, lease and operate the Assets and the Business in the State of Texas. 6.2. Authority, Consents and Approvals. Buyer has all requisite, necessary and appropriate power and authority to execute, deliver and perform this Agreement and each other document and agreement referenced in this Agreement or to be executed and delivered by Buyer pursuant to this Agreement (together, the "Buyer Documents"). The execution, delivery and performance of the Buyer Documents by Buyer have been duly and validly authorized and approved by the governing body of the Buyer. 6.3. No Iniunctions or Orders. Buyer is not engaged in, nor is there pending or, to Buyer's Knowledge, threatened, any action, dispute, claim, litigation, arbitration, investigation or other proceeding at law or in equity or before any Governmental Body or other administrative agency nor are there any injunctions of any court or orders of any federal, state or municipal court or Governmental Body which could adversely affect Buyer's ability to perform any of its obligations under this Agreement or the transactions contemplated by this Agreement. ASSET PURCHASE AGREEMENT - Page 10 785236.28/SP3/13144/0 1 0 1/091905 6.4. Litiqation. There is no pending or, to Buyer's Knowledge, threatened litigation against Buyer that would inhibit Buyer's ability to consummate the transactions contemplated by this Agreement. 6.5. Brokers. No agent, broker, investment banker or other Person acting on behalf of Buyer or under its authority is 'or will be entitled to any broker's or finder's fee or any other commission or similar fee, directly or indirectly, in connection with the transactions contemplated by this Agreement for which Seller will be liable. ARTICLE VII FURTHER AGREEMENTS 7.1. Additional Actions bV Seller and Buver. After the Closing, Seller and Buyer shall execute and deliver such documents and do and perform all such other acts as may reasonably be required by the other in order to consummate the transactions described in this Agreement. 7.2. Announcements. The Parties will mutuaily agree as to the time, form and content before issuing any press releases or otherwise making any public statements or statements to third parties with respect to transactions contemplated by this Agreement, except as may be required by law. 7.3. Transaction Costs. Each of Seller and Buyer shall be responsible for the payment of its own costs and expenses incurred in connection with this Agreement (including, without limitation, any attorneys' fees incurred by its counsel) and the transactions contE\mplated by this Agreement. 7.4. Fire and Casualtv. Subject to the terms and conditions hereof, the Seller assumes all risk of destruction, loss, or damage of any Asset and each of the Other Buses being transferred hereunder due to fire or other casualty up to the Effective Time. Upon said destruction, loss or damage due to fire or other casualty of a substantial portion of the Assets or the Other Buses or the building or buildings in which they are located, the Buyer shall have the option to terminate this Agreement and, in the event of the exercise of such option, all rights of the Buyer and the Seller shall terminate without liability to any party. The Buyer shall notify the Seller within five (5) days after receiving written notice of said destruction, loss or damage due to fire or other casualty, of its decision to terminate this Agreement. If the: Buyer does not timely notify the Seller of termination, this Agreement shall remain in full force and effect, provided, however, the Purchase Price shall be adjusted at Closing to refiect such destruction, loss, or damage and ,if the Buyer and Seller are unable to agree upon the amount of adjustmen( the dispute shall be determined by an independent appraiser agreed to by Buyer and Seller and such determination shall be binding upon both the Buyer and the Seller herein; however, on or after the Effective Time the Buyer assumes all risk of destruction, loss or damage of the Assetsand the Other Buses being transferred hereunder due to fire or other casualty. ASSET PURCHASE AGREEMENT - Page 11 785236.29/$ P3/13144/0 1 0 1/092005 7.5. FTA Approval. As in accordance with Section 3.2(d) above, at Closing, the Titles shall be deposited with the Escrow Agent to be held by and then released by the Escrow Agent to the Buyer in accordance with the terms ,and conditions of, the Escrow Agreement upon Seller receiving FT A approval to transfer the Vehicles to the Buyer and promptly executing and delivering to the Escrow Agent the Statement of FT A Approval By the City of Denton, Texas (Exhibit B ,to the Escrow Agreement) and upon Buyer receiving FTA approval to receive the Vehicles from the Seller and promptly executing and delivering to the Escrow Agent the Statement of FTA Approval By Denton County Transportation Authority (Exhibit C to the Escrow Agreement), as contemplated herein. However, the Seller and Buyer further agree if the FT A has not approved the sale of the Assets by the Seller to the Buyer and the conveyance and transfer of the Other Buses by the Seller to the Buyer as contemplated in this Agreement by close of business on March 31, 2006, the Seller and Buyer shall immediately commence the good faith negotiation of the terms and conditions of an operating lease of all of the Vehicles by the Seller to Buyer for the purpose of the Buyer's unlimited use of the Vehicles in the establishment, operation and maintenance of an intra-city bus line in the City of Denton and, such terms and conditions (among others) of such operating lease shall include, without limitation, each of the following: , (a) the Purchase Price shall be~deemed by Seller and Buyer to be the full and complete rental to be paid by Buyer and Seller under such operating lease and therefore Buyer shall not have any other or additional rental obligation under the operating lease beyond the Purchase Price as paid at Closing; and (b) the term of the operating lease shall have a scheduled expiration date of April 30, 2010. Further, Seller and Buyer agree that such operating lease shall be executed by Seller and Buyer by no later than close of business on May 31, 2006 unless such date shall be extended in writing by Seller and Buyer that shall provide for interim operation by the Buyer. . ARTICLE VIII MISCELLANEOUS 8.1. Entire Understandinq, Waiver, Etc. This Agreement (including all schedules and exhibits attached to this Agreement) and all other agreements executed and delivered at the Closing set forth' the entire understanding of the Parties and supersede any and all prior or contemporaneous agreements and understandings relating to the subject matter of this Agreement, and the provisions hereof may not be changed, modified, waived or altered except by an agreement in writing signed by the Parties to this Agreement. A waiver by any Party of any of the terms or conditions of this Agreement, or of any breach thereof, shall not be deemed a waiver of such term or condition for the future, or ASSET PURCHASE AGREEMENT - Page 12 785236 .28/SP3/13144/0 1 011091905 of any other term or condition of this Agreement, or of any subsequent breach thereof. ' 8.2. Severability. If any provision of this Agreement or the' application of such' provision shall be held by a court of competent jurisdiction to be invalid or unenforceable, the remaining provisions of this Agreement shall remain in full force and effect. 8.3. Accountinq Terms. All accounting terms' not specifically defined in this Agreement shall have the meanings given to them under accounting principles generally accepted in the United States. 8.4. Notices. All notices, requests, demands and other communications that are required or may be given under this Agreement shall be in writing. All notices shall be deemed to have been duly given or made: if by hand, immediately upon delivery; if by Federal Express, Express Mail or any other reputable overnight delivery service, one Business Day after being placed in the control of the courier for overnight delivery; and if mailed by certified mail, return receipt requested, five Business Days after mailing. All notices are to be given or made to the parties at the following addresses (or to such other address as either Party may designate by notice in accordance with the provisions of this Section): (a) If to Seller: City of Denton Jon Fortune Assistant City Manager 215 E. McKinney Denton, Texas 76201 , Facsimile: (940) 349-8596 . jon. fortu n e@cityofdenton.com (b) If to Buyer: Denton County Transportation Authority John Hedrick, Executive Director 1660 South Stemrnons, Suite 250 Lewisville, Texas 75067 Facsimile: (972) 221-4601 jhedrick@dcta.net With a copy to: Rider Scott, Esq. Strasburger & Price, LLP 2801 Network Boulevard, Suite 600 Frisco, TX 75034 ASSET PURCHASE AGREEMENT - Page 13 785236 .28/SP3/131441O 1 0 11091905 8.5. Successors and Assiqns. Neither this Agreement nor any of the rights or obligations arising under this Agreement shall be assignable without the prior' written consent of the Parties to this Agreement. Nothing ,in this Agreement, express or implied, shall confer upon any Person, other than the Parties to this Agreement, and their successors and permitted assigns, any rights or remedies under or by reason of this Agreement. 8.6. Waivers. At any time prior to the Closing, any Party to this Agreement may (i) extend the time for the performance of any of the obligations or other acts of the other Party to this Agreement, (iI) waive any inaccuracies in the representations and warranties of the other Party contained in this Agreement or in any document delivered pursuant to this Agreement, and (iii) waive compliance with any of the agreements or conditions contained in this Agreement subject to any specific provisions governing the effect of such extensions or waivers. Any agreement on the part of a Party to this Agreement to grant any such extension or waiver will be valid only if set forth in a written instrument signed on behalf of such Party. 8.7. Counterparts. This Agreement may be executed in two or more counterparts, each of which shall be deemed an original, but all of which, together, shall constitute one and the same instrument. 8.8. Attornevs' Fees and Costs. Unless otherwise provided in this Agreement to the contrary, in the event any action or proceeding is commenced by any party to this Agreement to determine rights, duties or obligations under this Agreement, determine a breach of this Agreement and obtain damages as a result of such breach or otherwise enforce this Agreement, the prevailing party in such action or proceeding shall be entitled to recover from the non-prevailing party all of the prevailing party's out-of-pocket costs and expenses, including all reasonable attorneys' fees, disbursements and, related charges. 8.9. Headinqs. The headings contained in this Agreement are for the sole purpose of convenience of reference, and will not in any way limit or affect the meaning or interpretation of any of the terms or provisions of this Agreement. 8.10. Governinq Law. THIS AGREEMENT SHALL BE CONTROLLED, CONSTRUED AND ENFORCED IN ACCORDANCE WITH THE LAWS OF THE STATE OF TEXAS APPLICABLE TO AGREEMENTS MADE AND TO BE PERFORMED IN THAT STATE WITHOUT APPLICATION OF CONFLICTS OF LAW PROVISIONS AND IS IN ALL RESPECTS PERFORMABLE IN DENTON' COUNTY, TEXAS. (Remainder of Page Intentionally Left Blank-- Signatures Follow) ASSET PURCHASE AGREEMENT - Page 14 785236.28/SP3/13144/0 1 0 1/091905 IN WITNESS WHEREOF. this Agreement has been executed by duly authorized officers of each of the Parties all as of the date first above written. ATTEST: SELLER: JENNIFER WALTERS CITY OF DENTON, TEXAS CITY SECRETARY. . G _ .A A By: ~J8~JwJJiJJ!Yl"f1uky: ~/~ f Name: Euline Brock Title: Mayor ATTEST: BUYER: Jason DENTON COUNTY TRANSPORTATION AUTHORITY DENTON COUNTY TRANSPORTATI By: By: Name: Title: APPROVED AS TO LEGAL FORM: EDWIN M. SNYDER CITY ATTORNEY By: RIDER SCOTT GENERAL COUNSEL ASSET PURCHASE AGREEMENT - Page 15 785236. 2B/SP3/13144/01 01/09 1905 'j EXHIBIT 1.4 TO ASSET PURCHASEAGREEMENT ASSIGNMENT OF SERVICE MARKS For and in consideration of Ten Doliars ($10.00) and other good and valuable consideration, of which receipt is acknowledged, the CITY OF DENTON, TEXAS, a Texas municipal corporation and home rule city ("Assignor"), owner of the entire right, title and interest in the service marks identified on Appendix A attached hereto and incorporated herein for all purposes hereby selis and assigns to DENTON COUNTY TRANSPORTATION AUTHORITY, a political subdivision, and a coordinated county transportation authority created pursuant to Chapter 460, Tex. Transportation Code ("Assignee"), its entire right, title and interest in the service marks identified on Appendix A along with all good will associated therewith, to be held and enjoyed by the Assignee, its successors, and assigns, as fuliy and entirely as the same would have been held and , enjoyed by the Assignor had this assignment and sale not been made. , In testimony whereof, the Assignor has caused this Assignment of Service Marks to be signed by its duly authorized officer(s) this:Jo;h day of r$PnlPfl1~2005. , ASSIGNOR: CITY OF DENTON, TEXAS, a Texas municipal corporation and home rule city By: C~ ~e/.- HONORABLE EULlNE BROCK MAYOR ATTEST: JENNIFER WALTERS CITY SECRETARY By: CjaM b;l1JVJiJlJJltj om;. EXHIBIT 1.4 TO ASSET PURCHASE AGREEMENT- Assiqnment of Service Marks 786028 .21SP3J13144/01 011091605 APPROVED AS TO LEGAL FORM: EDWIN M. SNYDER , :~ ;:d"MI.I1fr/ STATE OF TEXAS ~ ~ COUNTY OF DENTON ~ This instru ment was acknowledged before me on the 212iIL day of l$ iJ 7i /YI iJ/".{ /, 2005, by Euline Brock, Mayor of the City of Denton, Texas, known or proved to me on satisfactory evidence to be the person and officer whose name is subscribed to the foregoing instrument, and acknowledged to me that she executed the same for the purposes and consideration therein expressed and in the capacity therein stated, on behalf of such municipal corporation. LINDA HOLLEY Notaf/$l)!~ StateL01 iexa~ ;1 My Comm. Exp. 12-08.2005 ~~' ot Public, St<3te ofTex My Commission Expires: /:2 - /),f - o.s- EXHIBIT 1.4 TO ASSET PURCHASE AGREEMENT- Assiqnment of Service Marks 7 86028.21SP3/13144/0 1 01/091605 Appendix A to Assiqnment of Service Marks :: V) Q) U o - 0... o +-> Q) - 0... o Q) 0... b.Q c: "- ~ c: "- - - - APPENDIX A TO ASSIGNMENT OF SERVICE MARKS 786028.21SP3/13144/01011091605 EXHIBIT 1.5 TO ASSET PURCHASE AGREEMENT BILLOF SALE THIS BILL OF SALE is made as of September 30, 2005, by the CITY OF DENTON, Texas, a Texas municipal corporation and home rule city ("Seller"). WIT N E SSE T H: WHEREAS, the DENTON COUNTY TRANSPORTATION AUTHORITY, a political subdivision and coordinated cou~ty transportation authority created pursuant to Chapter 460, Tex. Transportation Code '("Buyer") and Selier entered into that certain Asset Purchase Agreement dated as of September 30, 2005 (the "Purchase , Agreement") providing, among other things, for the sale by Selier to Buyer of the Assets (as defined in the Purchase Agreement); and WHEREAS, in order to effectuate the sale and purchase of the Assets as aforesaid, Selier is executing and delivering this Bili of Sale; NOW THEREFORE, in consideration of the premises, the consideration paid pursuant to the Purchase Agreement, the mutual covenants and agreements contained in the Purchase Agreement and other good and valuable consideration, the receipt and sufficiency, of which are hereby acknowledged, Selier hereby SELLS, ASSIGNS, TRANSFERS, SETS OVER AND DELIVERS, and has hereby SOLD, ASSIGNED, TRANSFERRED, SET OVER AND DELIVERED to Buyer, its successors and assigns, ali of its right, title, and interest in and to and under ali of the Assets (as defined in the Purchase Agreement) including, without limitation, each of the following (ali capitalized terms not herein defined shali have the meaning set forth in the Purchase Agreement): (a) the Buses; EXHIBIT 1.5 TO ASSET PURCHASE AGREEMENT - Bill of Sale - Page 1 785B76.10ISP3/13144/0101/0919D5 (b) the Equipment; . (c) the Shelters and Benches; (d) the use and operation of the Business; (e) the Business Intellectual Property identified on Schedule 1.9 of the Purchase Agreement; (f) All of Seller's right, title and interest in and to the Route Match Software, as further described in Exhibit A. (g) Customer Data. All ofthe books, lists, and records of the Seller containing data or information of any kind relating to (i) the customers of the Business as conducted by the Seller with the Assets, and (ii) the Assets. (h) Intanqible Assets. All right, title and interest of Seller in, to and under the name "LINK" and any derivatives of such name, any service marks, labels, logos, copyrights, designs, rights to telephone numbers and all listings pertaining to Seller in all telephone books and other directories pertaining to the Business, internet domain names, web sites created by, licensed by and/or used by Seller in their operation of the business, and any registrations or applications for registrations of the foregoing used in the conduct of the Business, and any right to recovery for infringement thereof (including past infringement) and any and all goodwill associated therewith or connected with the use thereof and symbolized thereby. (i) Goodwill. The goodwill and going concern value of the Business conducted by the Seller. U) Licenses and Permits. Any and all Governmental Body licenses, permits, certificates of authority, certificates ,of occupancy, authorizations, approvals, EXHIBIT 1.5 TO ASSET PURCHASE AGREEMENT. Bill of Sale - Page 2 785876.1 O!SP 3/13144/01 0 1109 1905 registrations, franchises and similar consents, to the extent assignable, owned or used by Seller in the operation of the Business, whether issued by any Governmental Body or any other Person. For purposes of this paragraph and this Bill of Sale generally, the following terms have the following meanings: "Applicable Law": All applicable provisions (domestic or foreign) of all (i) constitutions, treaties, statutes, laws (including the common law), rules, regulations, ordinances, codes and Orders of or with any Governmental Body, and (ii) Governmental Approvals. "Consent": Any consent, approval, authorization, action, waiver, permit, grant, franchise, concession, agreement, license, exemption or Order of, registration, certificate, declaration or filing with, or report or notice to, any Person (including foreign Persons), including any Governmental Body. "Governmental Approval": Any Co'nsent of, from or with any Governmental Body. "Governmental Body": Any court or any federal; state, municipal or other governmental department, commission, board, bureau, agency, authority or instrumentality, domestic or foreign. "Order": Any order, writ, injunction, directive, decree, judgment, award, restriction, decision or determination of, or agreement with, any Governmental Body. "Permits": All permits, authorizations, qualifications, certificates, consents, approvals, registrations, variances, exemptions, rights-of-way, franchises, privileges, immunities, grants, ordinances, licenses, waivers and other rights of every kind and character (a) under any (i) Applicable Law, (ii) Order or (Iii) contract with any Governmental Body, or (b) granted by any Governmental Body. "Person": An individual, partnership, joint venture, corporation, company, limited liability company, bank, trust, unincorporated organization, Governmental Body or other entity or group. (k) Claims. All of Seller' rights, claims and causes of action relating to the Assets or the Business. (I) Other Assets. Each of the other Assets listed on Exhibit A attached hereto and incorporated herein by reference for all purposes. EXHIBIT 1.5 TO ASSET PURCHASE AGREEMENT. Bill of Sale - Page 3 785B76.10/SP3/13144/01011091905 . Seller and its successors and assigns, further covenants and agrees that Seller will do or cause ,to be done all such further acts and things and will execute, acknowledge and deliver, or will cause to be executed, acknowledged and delivered, any and all such further transfers, conveyances, instruments, powers of attorney and assurances as the Buyer may reasonably require for the better assuring, assigning, transferring and conveying to the Buyer, its successors and assigns, on nie terms stated in the Purchase Agreement and herein, all and singular the Assets. As between Seller and Buyer, this Bill of Sale and the Purchase Agreement and any and all other instruments, documents or agreements executed or delivered in accordance with the terms and conditions of the Purchase Agreement constitute the entire agreement, and supersede all other prior agreements or understandings, whether written or oral, with respect to the subject matter hereof. THIS AGREEMENT SHALL BE CONTROLLED, CONSTRUED AND ENFORCED IN ACCORDANCE WITH'THE LAWS OF THE STATE OF TEXAS APPLICABLE TO AGREEMENTS MADE AND TO BE PERFORMED IN THAT STATE WITHOUT APPLICATION OF CONFLICTS OF LAW PROVISIONS AND IS IN ALL RESPECTS PERFORMABLE IN DENTON COUNTY, TEXAS. SELLER MAKES NO REPRESENTATIONS WITH REGARD TO THE ASSETS, AND BUYER ACCEPTS THE ASSETS "AS IS, WHERE IS," WITH ALL FAULTS. Nothing contained in this Bill of Sale, express or implied, is intended to confer upon any Person not a party to the Purchase Agreement any rights or remedies of any nature whatsoever under or by reason of this Bill of Sale or the Purchase Agreement or EXHIBIT 1.5 TO ASSET PURCHASE AGREEMENT - Bill of Sale - Page 4 785876.10lSP3/13144f01011091905 any document, instrument, or Agreement referenced therein or executed and delivered pursuant to the terms of the Purchase Agreement. IN WITNESS WHEREOF, Seller has executed this Bill of Sale as of the Effective Date. SELLER: CITY OF DENTON, TEXAS, a Texas municipal corporation and home rule city By: C~~dL HONORABLE EUUNE BROCK MAYOR ATTEST: JENNIFER WALTERS CITY SECRETARY By: QiltlIh)fllltdJl){, aut APPROVED AS TO LEGAL FORM: EDWIN M. SNYDER CITY ATTORNEY EXHIBIT 1.5 TO ASSET PURCHASE AGREEMENT - Bill of Sale - Page 5 785876.1 O/SP3113144/0 1 01/091 905 Exhibit "A" to Bill of Sale Route Match Software Description RouteMatch Software. RouteMatch Software Version SR239C - 4 licensed users' Contract No. CITDEN 152 Windows 2003 for PowerEdge 1800 Server Other Software Software to remain on four Dell Computers: Microsoft Windows XP, Microsoft Office 2000, Citrix Client and Real Player \ EXHIBIT "An to Bill of Sale 785876.1 O/S P 3{ 13144fO 1 01/091905 SCHEDULE 1.9 TO ASSET PURCHASE AGREEMENT Business Intellectual Property RouteMatch Software RouteMatch Software Version SR239C - 4 licensed users Contract No. CITDEN 152 Windows 2003 for PowerEdge 1800 Server Other Software Software to remain on four Dell Computers: Microsoft Windows XP, Microsoft Office 2000, Citrix Client and Real Player SCHEDULE 1.9 TO ASSET PURCHASE AGREEMENT Business Intellectual Property 787545.1/SP3113144/0101J091605 Exhibit 1.16 to Asset Purchase Agreement Equipment Description Vehicle Identification Number Ford Crown-Victory Ford Crown-Victory Concrete slabs for benches & l?helters Eight Soiar power light and information Display Systems Bus Sheiters Basic System and Inventory Module - Software Two Deli MFP 1600n Printers Two Dell Computers -Smali Mlnltower Pentium Two Deli latitude Laptops Model 5400 Shop Floor Scrubber LINKS Bus Lifts (Hydraulic Repair Lifts) Ten Benches with Backrest Signs - LINK buses Signs - liNK buses logos & striping Signs - liNK buses decals Two Panasonic Toughbook Computers Four Workstations One Deli Computer PowerEdge N e\work Switch Routematch Software HP Laser Printer HP8150 HP Color Laser Prlnter,HP4550 HP Scan Jet Scanner HP Fax 1020 Scan Coin Sorter Left Pedestal Desk Two File Cabinets Secretary Desk Secretary Desk Bookcase Chair Roadmaster Elec Utility Vehicle (Taylor Dunn) Norlel Option 11C Phone System and Cisco Switch with 10 Phone Desk Sets 2FALP71W4SX174474 2FALP71W2VX158262 Page: 1 " SCHEDULE 1.33 TO ASSET PURCHASE AGREEMENT' Shelters and Benches Passenger Ame~ty LocationS' LQcation City B enC(l City KDB B.encl1 Sweat Team TINT Shelter Shelter LINK Central :xxxx XX 100 Block ofE. ffickory Emily Fowler .' .~ library X It: < 500 Block of l' Oakland Joyce & , .. . G,rrdenveiw ! X . 3500 Block of Joyce - Oriole & Loop 288 \t X 3600 Block of " Ono1e Mm:ket&Loop -u ., 288 X 3800 Block of i Mm:ket Street Bell @Peach "Y!~:!"', X 2400 Block of #. Bell Colorado @ Target ~-;i X 2300 Block of .... . Colorado Avenue G @1- 35E (Sac-n- Save) : X 1000 Block of AveDlle C Teas1ey@. Family DomoIE X 1500 Block of .' Teasley ! Irvin @Dema ,- Recreation C!:r. X 1000 Block of parvin " Charlotte @ Avenue G X +2500 Block of : Charlotte " SCHEDULE 1.33 TO ASSET PURCHASE AGREEMENT- Shelters and Benches - Pace 1 7B7316.1/SP3/13144/0101/091605 .., .... ~ Location City Bcnch City KIlB Bench Sweat Team TINT Shelter Shelter Bonnie Brae & Chm:lotte X 2400 Block of , Chaxlotte W. HiCKOry & Ayenue C X 1700 Block of W. Hickory , TINT Student Union ; X 400 Block of AyenueA W. Oak@ Carroll X I' 300 Block ofW. Oak .HickOJ)' @ Railroad X 600 Block ofE. I Hickory Wtlson@~ X Recreation Ctr. 1300 Block of Wilson Ruddell @E. Hickory X 300 Block of .Ruddell Bonnie Brae @ Denton Co=unity Hospital X 200 Block of S. Bonnie Brae Mingo @ Village East Apts. , X 1700 Block of Mingo'Road Crescent @ Malone X 1400 Block of Crescent Road Elm @ Second X 1200 Blocle of Elm Street : SCHEDULE 1.33 TO ASSET PURCHASE AGREEMENT.:. Shelters and Benches - Paqe 2 787316.1/SP3/13144/01011091605 r,. ~. Lo cation City Bench City Jam Bench Sweat Team UNT Shelter Shelter Dallas Drive @ Smith X 300 Block of Dallas Drive Ruddell @ Phoenix Apts. X 300 Block of Rnddell Bell @ Senior , Center X 200 Block of Bell A vewe Total: 30 SCHEDULE 1.33 TO ASSET PURCHASE AGREEMENT- Shelters and Benches - Paqe 3 787316.11SP3113144/01011091605 Exhibit 1.39 (a) to Asset Purchase Agreement Buses Description 1987 Flxible Diesel Bus 1987 Flxible Diesel Bus ESCORT RE Propane 30ft Bus ESCORT RE Propane 30ft Bus ESCORT RE Propane 30ft Bus, ESCORT RE Propane 30ft Bus CGII Propane 25ft Paralransit Bus CGII Propane 25ft Paratransi! Bus 2000 Goshen SENTRY Bus 2000 Goshen SENTRY Bus 2000 Goshen SENTRY Bus 2000 Goshen SENTRY Bus The following assets are not in working order: 1987 Flxible Diesel Bus 1987 Flxible Diesel Bus 1987 Flxible Diesel Bus 1987 Flxlble Diesel Bus Page: 1 Vehicle License Unit Vehicle, Identification Number Number Number 845-952 8701 1 GF5CAFKXHD098862 845-954 8703 1 GF5CAFKOHD098885 828-019 275 1 N9RBABG92C084143 851-184 335 1 N9EBABG63C084117 851-185 336 1 N9EBABG43C084116 851-186 337 1 N9EBABG33C084124 851-182 330 1FDXE45S23HA62793 853-172 331 1 FDXE45S43HA62794 806-442 197 4UZAACBV81CJ40370 806.211 199 4UZAACBV41 CJ25767 806-441 196 1 FDWE35F21 HB00447 806-443 198 1 FDWE35F41 HB00448 845.953 845-955 845-956 845-957 8702 8704 9001 9002 1 GF5CAFK4HD098890 1 GF5CAFK3HD098864 1GF5CAFK6LD101006 1GF5CAFK1HD101003 Exhibit 1.39 (b) to Asset Purchase Agreement other Buses Description 2001 Champion Bus CT300 2001 Champion Bus CT300 2001 Champion Bus CT300 2001 Champion Bus CT300 2001 Champion Bus CT300 2001 Champion Bus CT300 2001 Champion Bus CT300 2001 Champion Bus CT300 2001 Champion Bus CT300 2001 Champion Bus CT300 2001 Champion Bus CT300 2001 Champion Bus CT300 2001 Champion Bus CT300 2001 Champion Bus CT300 2001 Champion Bus CT300 License. Number' 879-212 879-213 879-214 879-215 879-216 879-217 879-218 879-219 879-220 879-221 879-222 879-223 879-224 879-225 879-226 Page: 1 Vehicle Unit Nuniber 542 543 544 545 546 547 548 549 550 551 552 553 554 555 556 Vehicle Identification Nuniber 4UZAACBV21 CH72803 4UZAACBV91 CH72801 4UZAACBV31 CH72809 4UZAACBV81 CH72806 4UZAACBV81CH72823 4UZAACBV91CH72815 4UZAACBV91 CH72832 4UZAACBVX1 CH72824 4UZAACBVX1 CH72838 4UZAACBV91CH72846 4UZAACBV01 CH72833 4UZAACBV91 CH72829 4UZAACBV11 CH72839 4UZAACBV81 CH72840 4UZAACBVX1CH72841 SCHEDULE 5.6 TO ASSET PURCHASE AGREEMENT Contracts Agreement to Provide Management and Operation Services for Passenger Motor Carrier Transit System dated April 16, 2002 (as amended) between City of Denton, Texas and McDonald Transit Associates, Inc. SCHEDULE 5.6 TO ASSET PURCHASE AGREEMENT Contracts 787546.1/SP3113144f0101/091505 ESCROW AGREEMENT THISAGREEMENT, made this 30th day of September,2()05, among the Citycif Denton, Texas, a Texas municipal corporation and home rule city ("Seller"), the Denton County Transportation Authority, a political subdivision and a coordinated county transportation authority created pursuant to Chapter 469, Tex. Transportation Code ("Buyer), American Escrow Company, a Texas corporation, having its principal place of business at 2626 Howell, 10th Floor, Dallas, Texas 75204, Attn: Carla Janousek, 214- 855-8879 (hereinafter referred to as "Escrow Agent"), WITNESSETH THAT: WHEREAS, the Seller and Buyer entered into that certain Asset Purchase Agreement (the "Purchase Agreement") dated September 30, 2005, wherein Seller agreed to sell the Buses (as defined in the Purchase Agreement) and certain other assets and agreed to convey and transfer the Other Buses (as defined in the Purchase Agreement), to Buyer described therein (collectively, the "Assets"); and WHEREAS, Seller has deposited the Titles (as defined in the Purchase Agreement) to the Vehicles with Escrow Agent. NOW THEREFORE, the parties hereto agrees as follows: Escrow Agent shall open and maintain an escrow account in the name of Buyer and Seller and hold in such account each of the Titles to the Vehicles listed on Exhibit "A" attached hereto and incorporated herein by reference for all purposes. Upon receipt by the Escrow Agent of an executed copy of the Statement of FT A Approval By the City of Denton, Texas, in the form of Exhibit "B" attached hereto and incorporated herein by reference for all purposes, by close of business on March 31, 2006, and the Statement of FTA Approval By the Denton County Transportation Authority, in the form of Exhibit "C" attached hereto and incorporated herein by reference for all purposes, Escrow Agent shall immediately deliver the Titles to the Buyer and, upon doing so, shall not have any further obligation hereunder. However, in the event the Escrow Agent does not receive an executed copy of Exhibit B and Exhibit C by close of business on March 31, 2006, Escrow Agent shall promptly deliver the Titles to the Seller and, upon doing so, shall not have any'further obligation hereunder. Buyer shall pay the full cost of the escrow established with Escrow Agent. Escrow Agent is not a party to, 'or bound by any agreement which may be deposited under, evidenced by, or which arises out of the foregoing instructions. ESCROW AGREEMENT - Page 1 7868 BO.7/SP3/13144/01 0 1/0919 0 5 Escrow Agent acts hereunder as a depository only and is not responsible or liable in any manner whatever for the sufficiency, correctness, genuineness or validity of any Instrument deposited with it hereunder, or with respect to the form or execution of same; or the identity, authority, or rights of any person executing or depositing the same. The parties hereto further agree that Escrow Agent assumes no liability for and is expressly released from any claim or claims whatsoever in connection with the receiving, retaining and delivering of the above Titles except to account for delivery made thereof as required above. Deposit by Escrow Agent of. the instruments comprising this escrow in Court, shall relieve Escrow Agent of all further responsibility and liability, and Escrow Agent is hereby expressly authorized to disregard in its sole discretion any and all notices or warnings given by any of the parties hereto, or by any other person or corporation, but the said Escrow Agent is hereby expressly authorized to regard and to comply with and obey any and all Orders, Judgments or Decrees entered or issued by any Court with or without jurisdiction, and in case Escrow Agent obeys or complies with any such Order, Judgment or Decree of any Court it shall not be liable to any of the parties hereto or to any other person, firm or corporation by reason of such compliance, notwithstanding any such Order, Judgment or Decree be entered without jurisdiction or be subsequently reversed, modified, annulled, set aside or vacated. In case of any suit or proceeding regarding this escrow to which Escrow Agent is or may be at any time a party, it shall have a lien on the contents hereof for any and all cost, attorneys' fees, whether such attorneys shall be regularly retained or specially employed and other expenses which it ,may have incurred or become liable for on account thereof, and it shall be entitled to reimburse itself therefore out of said deposit, and the undersigned jointly and severally agree to indemnify and hold harmless Escrow Agent from all loss, costs or damages incurred, including but not limited to attorneys' fees, by reason of this Agreement or the subject matter hereof or any cause of action which may be filed in connection therewith and to pay Escrow Agent, upon demand all such costs, fees and expenses so incurred. Escrow Agent shall not be liable for any error of judgment or for any act done or step taken or omitted by it in good faith, or for any mistake of fact or law, or for anything which it may do or refrain from doing in connection herewith, except its own gross negligence or willful misconduct, and Escrow Agent shall have no duties to anyone except those signing this instrument. Escrow Agent may consult with legal counsel in the event of any dispute or questions as to the construction of the foregoing instructions, or Escrow Agent's duties hereunder, and Escrow Agent shall incur no liability and shall be fully protected in acting in accordance with the opinion and instructions or such counsel. Escrow Agent shall not have any liability due to any of the parties, other than Escrow Agent, filing for bankruptcy or the consequences or effect of such a bankruptcy on the documents deposited hereunder. ESCROW AGREEMENT - Page 2 7 BS 880.7/5 P3/13144/01 01 {0919 0 5 EXECUTED as of the day and year first above written. Seller: Buyer: Denton County Transportation Authority 1660 South Stemmons, Suite 250 Lewisville, Texas 75067 The City of Denton 215 E. McKinney Denton, Texas 76201 C~ ~cL ATTEST: ATTEST: By: Name: Cnarlt!ls Title: Chairman By: Name: Euline Brock Title: Mayor JENNIFER WALTERS DENTON COUNTY TRA CITY SECRETARY AUTHORITY (jd J1LfIVwujJi"Aj MBY. By: , Jason .l2ec.1 ce, Secretary Pie-,,-,- APPROVED AS TO LEGAL FORM: APPROVED AS TO LEGAL FORM: By: -~cl)l EDWIN M. SNYDER CITY ATTORNEY By: RIDER SCOTT, GENERAL COUNSEL "' Escrow Agent 4n:r!(I/7/,P/Jt1/111j) t!tJ/lJ/lI/Ji./' Escrow Agent herein, hereby acknowledges receipt of the aforementioned Titles and agrees ~act as ES~W Agent herein pursuant to the terms of this Agreement, dated this day of /JIC/lltxr- , 2005. Escrow Agent: L-~ ESCROW AGREEMENT - Page 3 786980. 7/SP3113144101 01/091905 Description EXHIBIT A to Escrow Agreement 1987 Flxible Diesel Bus 1987 Flxible Diesel Bus ESCORT RE Propane 30ft Bus ESCORT RE Propane 30ft Bus ESCORT RE p'opane 30ft Bus ESCORT Re. rropane 30ft Bus CGII Propane 25ft Paratransit Bus CGII Propane 25ft Paretransit Bus 2000 Goshen SENTRY Bus 2000 Goshen SENTRY Bus 2000 Gm-hen SENTRY Bus 2000 Goshen SENTRY Bus 1987 Flxible Diesel Bus 1987 Flxible Diesel Bus 1987 Flxibte Diesel Bus 1987 Flxible Diesel Bus 2001 Champion Bus CT300 2001 Champion Bus CT300 2001 Champion Bus CT300 2001 Champion Bus CT300 2001 Champion Bus CT300 2001 Champion Bus CT300 2001 Champion Bus CT300 2001 Champion Bus CT300 2001 Champion Bus CT300 2001 Champion Bus CT300 2001 Champion Bus CT300 2001 Champion Bus CT300 2001 Champion Bus CT300 2001 Champion Bus CT300 2001 Champion Bus CT300 License Number 845-952 845.954 828-019 851-184 851.185 851-186 851-182 853.172 806-442 806-211 806-441 806-443 845-953 845-955 845.956 845-957 879-212 879-213 879-214 879-215 879-216 879-217 879-218 879.219 879.220 879-221 879.222 879-223 879-224 879-225 879-226 Vehicle Unit Number 8701 8703 275 335 336 337 330 331 197 199 196 198 542 543 544 545 546 547 548 549 559 551 552 ' 553 554 ,555 556 Vehicle Identification Number 1 GF5CAFKXHD098862 1 GF5CAFKOHD098885 1 N9RBABG92C084143 1 N9EBABG63C084117 1N9EBABG43C084116 1 N9EBABG33C084124 1 FDXE45S23HA62793 1 FDXE45S43HA62794 4UZJV\CBV81CJ40370 4UZJV\CBV41 CJ25767 1 FDWE35F21 HB0044 7 1 FDWE35F41 HB00448 8702 8704 9001 9002 1 GF5CAFK4HD098890 1 GF5CAFK3HD098864 1GF5CAFK6LD101006 1 GF5CAFK1 HD1 01003 , 4UZAACBV21 CH72803 4UZAACBV91CH72801 4UZAACBV31 CH72809 4UZAACBV81 CH72806 4UZAACBV81 CH72823 4UZJV\CBV91CH72815 4UZAACBV91CH72832 4UZAACBVXl CH72824 4UZJV\CBVX1CH72838 4UZAACBV91 CH72846 4UZAACBVOl CH72833 4UZAACBV91 CH72829 4UZAACBVll CH72839 4UZAACBV81 CH72840 4UZAACBVXl CH72841 Exhibit B to Escrow Aqreement STATEMENT OF FTAAPPROVAL BY CITY OF DENTON, TEXAS I, ' of the City of Denton, Texas do hereby swear and affirm that the City of Denton, Texas has received the approval of the FT A to transfer the Vehicles (as defined in the Asset Purchase Agreement between the City of Denton, Texas and the Denton County Transportation Authority dated September 30, 2005) to the Denton County Transportation Authority. THIS statement is made to (escrow agent) to complete the transaction contemplated in the Asset Purchase Agreement, and does hereby swear under the penalties of perjury that the foregoing information is true and correct in all respects, and that is authorized to make this statement on behalf of the City of Denton, Texas. EXECUTED effective as of ,20_. By: Name: Title: COUNTY OF DENTON s s s STATE OF TEXAS SWORN TO AND SUBSCRIBED BEFORE ME on , in his capacity as' _, 2005. by of the City of Denton, Texas. Notary Public, State of Notary's printed name: My commission expires: 786880. 7/SP3113144!O 1 01/091905 Exhibit C to Escrow Aqreement STATEMENT OF FTA APPROVAL BY DENTON COUNTY TRANSPORTATION AUTHORITY I, of the Denton County Transportation Authority do hereby swear and affirm that the Denton County Transportation Authority has received the approval of the FT A ,to transfer the Vehicles (as defined in the Asset Purchase Agreement between the City of Denton, Texas and the Denton County Transportation Authority dated September 30, 2005) to the Denton County Transportation Authority. THIS statement is made to (escrow agent) to complete the transaction contemplated in the Asset Purchase Agreement, and does hereby swear under the penalties of perjury that the foregoing information is true and correct in all respects, and that is authorized to make this statement on behalf of the Denton County Transportation Authority. EXECUTED effective as of ,20_. By: Name: Title: STATE OF TEXAS COUNTY OF DENTON ~ ~ ~ SWORN TO AND SUBSCRIBED BEFORE ME on , in his capacity as Transportation Authority. _, 2005, by of the Denton County Notary Public, State of Notary's printed name: My commission expires: 786880. 7/SP3f13144/01 01f091 905 USE AGREEMENT. This Use Agreement ("Agreement") is entered into as of September 30, 2005, by and between the CITY OF DENTON, TEXAS, a Texas municipalcorporation and horrie rule' city ("Seller") and the DENTON COUNTY TRANSPORTATION AUTHORITY, a political subdivision and coordinated county transportation authority created pursuant to Chapter 460, Tex. Transportation Code ("Buyer"). WiT N E SSE T H: WHEREAS, Buyer and Seller entered into that certain Asset Purchase Agreement dated as of September 30, 2005 (the "Purchase Agreement") providing, among other things, for the sale by Seller to Buyer of the Assets (as defined in the Purchase Agreement); and WHEREAS, in order to effectuate the orderly transition of the Business (as defined in the Purchase Agreement) and complete the transaction set forth in the Purchase Agreement Buyer and Seller have agreed to execute this Agreement; NOW THEREFORE, in consideration of the premises, the consideration paid pursuant to the Purchase Agreement, the mutual covenants and agreements contained in the Purchase Agreement and other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, to the extent there is Business Intellectual Property (as defined in the Purchase Agreement) owned, licensed to or otherwise utilized by Seller, Seller grants Buyer unlimited access to and use of the same for purposes of operating the Business, including without limitation the intra-city bus line under the name "LINK" in the City of Denton, Texas to the extent Seller is permitted to do so by contract or law. SELLER: CITY OF DENTON, TEXAS, a Texas municipal corporation and home rule city By: ~~ ~dL HONORABLE EULlNE BROCK MAYOR USE AGREEMENT - Page 1 7B6902.3/SP3/13144/01 01/091 905 1 ATTEST: JENNIFER WALTERS CITY SECRETARY By: yr1l1i laYU1Mp!J{ f auJ; APPROVED AS TO LEGAL FORM: EDWIN M. SNYDER CITY ATTORNEY .-~ - STATE OF TEXAS S S COUNTY OF DENTON S This instrument was acknowledged before me on the o"tJ it-day of September, 2005, by Euline Brock, Mayor of the City of Denton, Texas, known or proved to me on satisfactory evidence to be the person and officer whose name is subscribed to the foregoing instrument, and acknowledged to me that she executed the same for the purposes and consideration therein expressed and in the capacity therein stated, on behalf of such municipal corporation. d+A Notary Public, Sta~ My Commission Expires: / ~ -oJ'~O.Y USE AGREEMENT - Page 2 7 86902.3/SP3f13144/01 0 1/091 905 2 OTHER BUS TRANSFER INSTRUMENT THIS OTHER BUS TRANSFER INSTRUMENT ("Instrument") is made as of September 30, 2005, by the CITY OF DENTON, TEXAS, a Texas municipal corporation and home rule city ("Seller"). WIT N E SSE T H: WHEREAS, the DENTON COUNTY TRANSPORTATION AUTHORITY, a political subdivision and coordinated county transportation authority created pursuant to Chapter 460, Tex. Transportation Code ("Buyer") and Seller entered into that certain Asset Purchase Agreement dated as of September 30, 2005 (the "Purchase Agreement") providing, among other things, for the transfer of the Other Buses (as defined in the Purchase Agreement) (as identified on Exhibit A attached hereto and incorporated by reference for all purposes) by Seller to Buyer; and WHEREAS, in order to effectuate the transfer of the Other Buses as aforesaid, Seller is executing and delivering this Instrument; NOW THEREFORE, in accordance with the mutual covenants and agreements contained in the Purchase Agreement , Seller hereby CONVEYS AND TRANSFERS, SETS OVER AND DELIVERS, and has hereby CONVEYED, ASSIGNED, TRANSFERRED. SET OVER AND DELIVERED to Buyer, its successors and assigns, all of its right, title, and interest in and to and under all of the Other Buses. Seller and its successors and assigns, further covenants and agrees that Seller will do or cause to be done all such further acts and things and will execute, acknowledge and deliver, or will cause to be executed, acknowledged and delivered, any and all such further transfers, conveyances, instruments, powers of attorney and assurances as the Buyer may reasonably require for the better assuring, assigning, OTHER BUS TRANSFER INSTRUMENT - Page 1 787225.21SP3/13144!0101/091905 , transferring and conveying to the Buyer, its successors and assigns, on the terms' stated in the Purchase.Agreement and herein, all and singular the Other Buses. THIS AGREEMENT SHALL BE CONTROLLED, CONSTRUED AND ENFORCED IN ACCORDANCE WITH THE LAWS OF THE STATE OF TEXAS APPLICABLE TO AGREEMENTS MADE AND TO BE PERFORMED IN THAT STATE WITHOUT APPLICATION OF CONFLICTS OF LAW PROVISIONS AND IS IN ALL RESPECTS PERFORMABLE IN DENTON COUNTY, TEXAS. SELLER MAKES NO REPRESENTATIONS WITH REGARD TO THE OTHER BUSES, AND BUYER ACCEPTS THE OTHER BUSES "AS IS, WHERE IS," WITH ALL FAULTS. Nothing contained in this Instrument, express or implied, is intended to confer upon any Person not a party to the Purchase Agreement any rights or remedies of any nature whatsoever under or by reason oUhis Instrument or the Purchase Agreement or any document, instrument, or Agreement referenced therein or executed and delivered pursuant to the terms of the Purchase Agreement. IN WITNESS WHEREOF, Seller has executed this Instrument as of the Effective Date. SELLER: CITY OF DENTON, TEXAS, a Texas municipal c,orporation and home rule city C~ thv~ By: HONORABLE EULlNE BROCK MAYOR OTHER BUS TRANSFER INSTRUMENT - Page 2 787225.21SP3/13144/0101/091905 . ATTEST: JENNIFER WALTERS CITY SECRETARY - By: ~ it'dvilA tldh;1 t2td. APPROVED AS TO LEGAL FORM: EDWIN M. SNYDER CITY ATTORNEY By: /' OTHER BUS TRANSFER INSTRUMENT" Page 3 787225.218 P3/13144/01 01/091905 Description Exhibit "A" to Other Bus Transfer Instrument 2001 Champion Bus CT300 2001 Champion Bus CT300 2001 Champion Bus CT300 2001 Champion Bus CT300 2001 Champion Bus CT300 2001 Champion Bus CT300 2001 Champion Bus CT300 2001 Champion Bus CT300 2001 Champion Bus CT300 2001 Champion Bus CT300 2001 Champion Bus CT300 2001 Champion Bus CT300 2001 Champion Bus CT300 2001 Champion Bus CT300 2001 Champion Bus CT300 other Buses License Number 879-212 879-213 879-214 879-215 879-216 879-217 879-218 879-219 879-220 879-221 879-222 879-223 879-224 879'225 879.226 Exhibit "A" to other Bus Transfer Instrument 787225.21SP3/13144/01 0 1/09 19 05 Page: 1 Vehicte Unit Number 542 543 544 545 546 547 548 549 550 551 552 553 554 555 556 Vehicle identification Number 4UZAACBV21CH72803 4UZAACBV91 CH72801 4UZAACBV31 CH72809 4UZAACBV81CH72806 4UZAACBV81 CH72823 4UZAACBV91CH72815 4UZAACBV91 CH72832 4UZAACBVX1CH72824 4UZAACBVX1CH72838 4UZAACBV91 CH72846 4UZAACBV01 CH72833 4UZAACBV91CH72829 4UZAACBV11 CH72839 4UZAACBV81CH72840 4UZAACBVX1CH72841 . S:\OUT Documents\Contracts\05\McDonald Transit.doc ASSIGNMENT OF THAT CERTAIN AGREEMENT BETWEEN THE CITY OF DENTON, TEXAS AND MCDONALD TRANSIT ASSOCIATES, INC. DATED APRIL 16, 2002, AS AMENDED DATE: September 20, 2005 ASSIGNOR: The City of Denton, Texas, a Texas Municipal Corporation and home rule city. ASSIGNEE: The Denton County Transportation Authority, a political subdivision and a coordinated county transportation authority created pursuant to Chapter 460, Tex. Transportation Code. CONSENTING CONTRACTOR: ',McDonald Transit Associates, Inc., a Texas Corporation AGREEMENT: Type: Agreement to provide services for the City of Denton's passenger motor carrier transit system called LINK. Date: April .16, 2002" amended on several occasions, the last amendment being on June 15,2004. Parties: City of Denton, Texas and McDonald Transit Associates, Inc. Reference: The Agreement described herein shall hereinafter be ,referred to as the Agreement. 1. Assignor assigns to Assignee all Assignor's rights, obligations and interest in the Agreement. 2. Assignee Agrees to: a. Assume Assignor's rights, obligations and interests under the Agreement. b. Fully perform all Assignor's, obligations under the Agreement's temlS and conditions. IN WITNESS WHEREOF, the parties have executed this Assignment of that certain Agreement between the City o~I?~ton, Texas and McDonald Transit Associates, dated April 16, 2002, as amended, as of the gQffJ.day ofSeptembe,r, 2005, which shall be the effective date. PREVIOUS ASSIGNMENTS: None For Assignor: City of Denton, Texas , 215 E. McKinney Denton, Texas 76201 By.C~~L Euline Brock, Mayor S:\Our Documents\COntracIS\05\M:cDonald Trnnsildoc Attest: Jennifer Walters, City Secretary By:tjJn f}U/JAd~fl1; rJd. Approved as to Legal Form: :f;Zi)t1t-~m"Y For Assignee: Denton County Transportation Authority 1660 South Stemmons, Suite 250 Lewisville, Texas 75067 Attest: Denton County Transp ~ Jason Pettree, Secretary R€.-..-c..R....o Approved as to Legal Form --- /. l A By: '-~-::L\::---- Rider Scott, General Counsel For Consenting Contractor: McDonald Transit Associates, Inc. 4500MerCantile~~llZ'a. DriVe~~'te3 (1/ Fort Worth, T~as~ // AJ.,r ? 1./7 C 1/ 1/"" By: I ;/ Roberfr. Babbitt, President Page 2 of3 S:\Our Documents\Conttacts\05\McDonald Transitdoc STATE OF TEXAS COUNTY OF DENTON This instrument was acknowledged before me on the ~ay of (~lJ!il/J7 o-er, 2005, by Euline Brock, Mayor of the City of Denton, Texas, a Texas municipal corporation, on behalf of said Municipal Corporation. [SE 6<f!!;.~ LINDA HOLLEY t;1 ., Notary Public ., State of Texas ~~< My Cumm. Exp.12-0e.2005 6-J2e_lkt--vY' Notary Public, State ofTexaf' My Commission Expires /.J--'; Y".- (or Notary Stamp) STATE OF TEXAS COUNTY OF DENTON This instrument was acknowledged before me on the 3L"(f!l day of .!:>./Wil..QC3J 2005, by Charles Emery, Chairman of the Denton County Transportation Authority, a Texas political subdivision and a coordinated County Transportation Authority created by Chapter 460, Texas Transportation Code, on behalf of said Political Subdivision. C'. C Cd!LC.'\c/': Co. h,uJ..-v~ Notary Public, State of Texas My Commission Expires (i;! I'<,}O-:: (or Notary Stamp) ~'~ ~.~ -;~:"T ""l'o;;<<" Catherine E Knudson My Commission Expires 08118/2009 STATE OF TEXAS COUNTY OF DENTON c '~1 " .. This instrument was acknowledged before me on the ~ ~ay orJ.eOft;l\lQ.e,l 1)0(18 2005, by Robert T. Babbitt, President of McDonald Transit Associates, Inc., a T~xas corporation, on behalf of said Corporation. [SEAL] ,\"~~~t"", o'~"2x:'\ lJ~~9 MARISOL CAMPOS Notary Public, State of lexas My Commission Expires February 07, 2006 l Page 3 0[3 215 E. McKINNEY STREET. DENTON, TEXAS 76201 . (940) 349-8307 . FAX (940) 349-8596 OFFICE OF THE CITY MANAGER September 30, 2005 In accordance with Ordinance No. 2005-299, I hereby designate Mark Nelson, Director of Airport & Transit Operations, to sign any documents or take all other actions necessary to complete the transfer of LINK Public Transportation Service System to the Denton County Transportation Authority. Mark is fully authorized to do any and all actions and sign any and all documents which I was authorized to sign under the authority given in said Ordinance and under my authority as City Manager for the City of Denton. "Dedicated to Quality Scmice" www.dtyofdcnton.com Mike.Condllfj@cityofdenlon.colII DCltt Board of Directors Chairman Charles Emery Vice Chairman Joe Roy Secretary Jason Pierce Treasurer Charles Correll Randy Hunt Van James Skip Kalb Mike Leavitt Doug Peach Paul Ruggicre Tom Spencer Fernando Villarreal Bill Walker Executive Director John O. Hedrick Denton County Transportation Authority J 660 South Stemmons, Suite 250 Lewisville, Texas 75067 www.dcta.net Ph: (972) 221-4600 Metro: (972) 434-9922 Fax: (972) 221-4601 September 30, 2005 At the closing of the City of Denton and the Denton County Transportation Authority the mileage of vehicles transferred will not be inserted in the title transfers, but will be ~;~"d by <h, D,",o" CO""" T,=,o,,"';O" A"<h~~'~ ""'~ relT "::' ,;,,~ by <h, ~ ~v~wl,v liLt..----- ( Mark Nelson Director of Airport and Transit City of Denton nO. Hedrick Executive Director