Exhibit 10.3


 


AGREEMENT, dated as of November 29, 2005 (“Agreement”),
between Green Bus Lines, Inc. (“Green”), Command Bus Company, Inc. (“Command”),
Triboro Coach Corp. (“Triboro”), and Jamaica Buses, Inc. (“Jamaica”) (Green,
Command, Triboro and Jamaica collectively, the “Transit Alliance Companies”);
Varsity Transit, Inc. (“Varsity”), GTJ Co., Inc. (“GTJ”) and The City of New
York, a municipal corporation acting through the Office of the Mayor, with an
office at City Hall, New York, New York 10007 (“City”) (Transit Alliance
Companies, Varsity, GTJ and the City collectively referred to as the “Parties”).


BACKGROUND:


WHEREAS, the Transit Alliance Companies are engaged in
the business of providing bus transportation service within New York City
pursuant to operating authority granted by the City (hereinafter “Bus Service”);
and


WHEREAS, the City desires to acquire certain assets of
the Transit Alliance Companies and the City and the Metropolitan Transportation
Authority (“MTA”) desire to have the MTA, through its subsidiary, the MTA Bus
Company, Inc. (“MTA Bus Company”), provide bus service in the areas now served
by Transit Alliance Companies;


WHEREAS, the Transit Alliance Companies desire to
dispose of and the City desires to acquire certain assets of Transit Alliance
Companies to facilitate such MTA Bus Company operations on the terms and
subject to the conditions set forth in this Agreement; and


WHEREAS, the City desires to lease certain real
property (such leases are herein referred to collectively as, the “Real
Property Leases”) of Green Bus Lines Holding Corp., Jamaica Bus Holding Corp.
and Triboro Coach Holding Corporation, each a New York



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corporation (hereinafter collectively referred to as “Lessors”),
affiliated entities controlled by the Transit Alliance Companies; and


 


NOW, THEREFORE, in consideration of these premises and
of the mutual representations, warranties, covenants and agreements contained
in this Agreement and for other good and valuable consideration, the receipt
and sufficiency of which are hereby acknowledged, the Parties agree as follows:


ARTICLE I: ACQUISITION


1.1           Acquisition.


(a)           On
and subject to the terms and conditions of this Agreement, the Transit Alliance
Companies agree to sell and the City agrees to buy, all of their respective
assets used in connection with the Transit Alliance Companies’ bus operations
(the “Acquired Assets”) free and clear of any mortgage, pledge, security
interest, encumbrance, lien, claim or charge of any kind (“Lien”) other than
Permitted Liens (as defined below in Section 5.2(d)), but expressly excluding
the Excluded Assets (as hereinafter described and defined). The Acquired Assets
include, without limitation by reason of specificity, fixtures, furniture and
equipment, maintenance records, personnel records, operating schedules, the
intangible value of the development, administration, and maintenance of such
assets, including the value related to the development and training of
employees, the value related to the development of routes and operating schedules,
and going concern value or good will.


(b)           Notwithstanding
anything herein to the contrary, specifically excluded from the assets of
Transit Alliance Companies being purchased hereunder are the following
(collectively, the “Excluded Assets”) (it being understood however that nothing
in this paragraph is intended to limit or otherwise affect the City’s or
Transit Alliance Companies’ respective



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rights and obligations with regard to Excluded Assets
under the operating assistance arrangements between the Parties):  (i) all cash, cash equivalents, and
investments of any kind or nature; (ii) all of Transit Alliance Companies’
accounts receivable; (iii) all escrow accounts, non-tail prepaid expenses,
deferred charges, payments due from affiliates or stockholders, and security
deposits; (iv) all assets of Transit Alliance Companies consumed, disposed of
or otherwise used in the ordinary course of business between the date hereof
and up through and including the Transition Date (as defined below); (v) all
individual life insurance policies owned by Transit Alliance Companies; (vi)
all rights of Transit Alliance Companies to claims for tax refunds; (vii)
Transit Alliance Companies’ original corporate and financial books and records,
including minutes of meetings of its board of directors and stockholders;
(viii) any and all equity interests in the Lessors and all real property,
including all structures thereon and leasehold improvements thereto owned by
the Lessors and/or any Transit Alliance Company; (ix) the personal property
identified in Exhibit 1 hereof, Exhibit 1 to be agreed upon prior
to each Applicable Closing Date; (x) third-party software, information,
accounting, or payroll systems licensed rather than owned by the Transit
Alliance Companies, including any software systems or
modifications/enhancements owned by Varsity or GTJ (“Licensed Systems”),
provided that the City is entitled to paper records of the data in the Licensed
Systems relating to Bus Service; and (xi) use of the names and initials for Green
(i.e., GBL), Triboro (i.e., TCC), Jamaica (i.e., JB) and Command (i.e., CB).


 


1.2           Real
Property.


(a)           The Parties acknowledge that the bus
facility used by Command located at 12755 Flatlands Avenue, Brooklyn, New York
(“Command Facility”) is owned by the City. Command’s occupancy of the Command
Facility shall terminate and Command shall vacate the



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Facility
on the Applicable Transition Date (as defined below); provided that at the
Closing the City shall provide to Command a release and waiver as contemplated
by Section 4.2(d).


(b)           As
a material term of this Agreement, the Transit Alliance Companies agree to
cause Lessors, pursuant to the terms of Real Property Leases to be agreed upon
by the City and the Lessors prior to Closing, to lease to the City the property
located at the following locations:


·  Green Bus
Line Depot and Parking Lot, 165-25 147th Ave., Jamaica, bounded by Rockaway
Blvd., 147th Ave., 167th St., 146th Ave., Block 13296, Lots 7, 14 and 101, and
Block 13298, Lot 11, and Block 13302, Lot 171


·  Green Bus
Line Depot and Parking Lot, bounded by Rockaway Beach Blvd, B. 47th St.,
Edgemere Ave., and B.49th St., Block 15855, Lot 1, Block 15841, Lots 5, 7, 8,
10, 14, and 70


·  Triboro
Coach Bus Depot and Parking Lot, 85-01 24th Avenue, bounded
by: 23rd Ave, 85th St., 24th Ave., and 87th St., Block 1080, Lot 1


·  Jamaica
Bus Line Depot and Parking Lot, 114-15 Guy R Brewer Blvd, bounded by Guy R.
Brewer, Linden Blvd., 165th St., and 115th Ave., Block 12327, Lots 1, 8, and 30


Subject
to Article IV hereof, the Parties agree that, for Green, Triboro, and Jamaica,
the closing of the sale and transfer of the Acquired Assets and the City taking
possession pursuant to the Real Property Leases are interdependent; the City
taking possession under the Real Property Leases and the closing of the sale
and transfer of the Acquired Assets shall occur simultaneously and neither may
occur without the other.


(d)           No
Right of Set-Off. No party hereto nor any of its affiliates shall have any
right of set-off against any payments due to any other party or any of its
affiliates pursuant to a Real Property Lease (or payments of deemed Rent
pursuant to Section 4.1(b) hereof) based in whole or in part on any other
agreement or arrangement.



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1.3           Purchase
Price. In consideration of the transfer and sale of the Acquired Assets
hereunder related to each Transit Alliance Company, on the Applicable Closing
Date, the City shall pay to each Transit Alliance Company, in the manner set
forth in Section 4.2 and subject to the true-up described below in this Section
1.3, the following amounts:


(a)           Twenty-Five
Million Dollars ($25,000,000.00), to be paid on the Applicable Closing Date or,
if applicable, the Final Closing Date pursuant to Section 4.1(b) hereof, in the
following amounts:


(i)       Green: Nine Million Four Hundred Sixty
Thousand Dollars ($9,460,000.00);


(ii)      Command: Three Million Four Hundred and
Five Thousand Dollars ($3,405,000.00);


(iii)     Triboro: Eight Million One Hundred
Twenty-Five Thousand Dollars ($8,125,000.00);


(iv)     Jamaica: Four Million Ten Thousand Dollars
($4,010,000.00); and


(b)           An
amount equal to the actual invoiced cost for the Transit Alliance Companies’
inventory of spare parts and fluids (fuel, motor oil, antifreeze, transmission
fluid, brake fluid, etc.), provided that the Transit Alliance Companies shall
represent and warrant to the City that it has paid or will pay such invoiced
cost, and the liability (if any) to pay such cost shall remain with the Transit
Alliance Companies. A joint audit of the inventory of all such items shall be
conducted by the City and the applicable Transit Alliance Company at a mutually
agreeable time prior to the Applicable Closing Date; and


(c)           An
amount equal to the book value (net of accumulated depreciation) of the Transit
Alliance Companies’ other tangible assets (that are Acquired Assets) as of
Closing.



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(d)           The
sums of the amounts listed or described in Sections 1.3(a), (b), and (c) are
hereinafter referred to as the “Purchase Price” for each Transit Alliance
Company. The final Purchase Price for each Transit Alliance Company shall be
determined after the inventory of spare parts and fluids in (b) and based upon
the date of Closing for (c). The City shall pay the amounts listed in Sections
1.3(b) and (c) to the Transit Alliance Companies within thirty (30) days of the
Applicable Closing Date or Final Closing Date, as the case may be. All other
payments (other than the true-up amount) due in connection with the
transactions contemplated hereby or otherwise contemplated hereby to be payable
shall be made within thirty (30) days of the Transit Alliance Companies’
presentation of a valid request therefore accompanied by reasonable and
customary backup documentation (i.e., the type and level of back-up
documentation that is consistent with what is currently required under the
operating assistance arrangements between the Parties). It is understood and
agreed that the Transit Alliance Companies will reallocate the Purchase Price
after the Closing to reflect the relative value of each Transit Alliance
Company based on an appraisal that will not be completed before the Closing.


(e)           If
all of the Claimants in the Non-Unionized
Employees v. New York City Department of Transportation and Green Bus Lines, Inc., et al. (OSP
Case No. 03-13(c)-02) (“13(c) Proceeding”) execute Settlement Authorization
Forms and the City receives copies of such forms in accordance with the terms
of the Settlement Agreement, agreed upon by the City and the Transit Alliance
Companies in connection with the 13(c) Proceeding (the “Settlement Agreement”),
the City will pay the Transit Alliance Companies an additional Five Hundred
Thousand Dollars ($500,000.00), to be paid as additional Purchase Price in the
following manner:



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(i)       Green: 
One Hundred Eighty-Nine Thousand Two Hundred Dollars ($189,200)


(ii)      Command: Sixty-Eight Thousand One Hundred
Dollars ($68,100)


(iii)     Triboro: One Hundred Sixty-Two Thousand
Five Hundred Dollars ($162,500)


(iv)     Jamaica: Eighty Thousand Two Hundred
Dollars ($80,200)


If less than 100%
of the Claimants execute Settlement Authorization Forms, the City will pay the
Transit Alliance Companies an additional amount to be determined by multiplying
the percentage of Claimants who have executed the Forms by $300,000. For
example, if 90% of the Claimants execute Settlement Authorization Forms, the
City will pay an additional $270,000 in compensation for the settlement of the
13(c) Proceeding and the related litigation brought by the individual claimants.
If less than 100% of the Claimants execute Settlement Authorization Forms, the
City’s payment shall be distributed as follows:


(i)       Green: 37.84%


(ii)      Command: 13.62%


(iii)     Triboro: 32.50%


(iv)     Jamaica: 16.04%


The City shall pay the
amounts due under this sub-paragraph 1.3 (e) within ninety (90) days after the
submission of the Settlement Authorization Forms. The Transit Alliance
Companies may make more than one submission for payment hereunder accompanied
by copies of supporting Settlement Authorization Forms. If the City declares
the Settlement Agreement null and void in accordance with the terms of the
Settlement Agreement, no payment under this sub-paragraph 1.3 (e) shall be due.



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1.4                                 Transition
Date. The day that a Transit Alliance Company ceases bus operations
pursuant to the grant of operating authority from the City shall be the
“Transition Date” for that Transit Alliance Company. The Transition Date shall
be December 5, 2005 for Command; January 9, 2006 for Green; January 30, 2006
for Jamaica; February 20, 2006 for Triboro, or such other dates agreed upon by
the Parties, provided that the Applicable Transition Date shall be no earlier
than the Applicable Closing Date.


1.5                                 Assumption
of Liabilities, Indemnification.


(a)                                  In
further consideration of the transfer and sale of the Acquired Assets, on each
Applicable Closing Date, the City shall assume, defend, indemnify and hold the
Transit Alliance Companies, their respective current and former officers,
directors, employees and stockholders harmless from and against the
following  (collectively, the “Assumed
Liabilities”) (it being understood that for all purposes of this Agreement,
when the City has an obligation to defend, the City shall provide and control
the defense with counsel through the New York City Law Department or through
other counsel chosen and paid for by the City, and the Transit Alliance
Companies may retain counsel to participate in the defense through counsel of the
Transit Alliance Companies’ choosing at the Transit Alliance Companies’
expense; provided, however, if a conflict of interest arises between the City
and any of the Transit Alliance Companies or their affiliates, the Transit
Alliance Companies and/or their respective affiliates may engage counsel of
their own choosing and the City shall pay or promptly reimburse the Transit
Alliance Companies for the reasonable attorney’s fees and expenses of such
counsel):


(i)            Irrespective
of when any claim or demand is made, any and all claims, losses or damages for
bodily injury and/or property damage resulting from or alleged to result from
the operation and maintenance of buses as part of the Transit Alliance
Companies’



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Bus Service up
through and including the Applicable Transition Date. The Transit Alliance
Companies shall reasonably cooperate with the City and any third party
administrator identified by the City in the defense of any claim (and the City
shall pay or reimburse the Transit Alliance Companies for  any out-of-pocket third-party costs and
expenses incurred in connection with such cooperation) and the Transit Alliance
Companies shall transfer any claim to the City and/or such third party
administrator at the direction of the City.


(ii)           Without
regard to when any claim or demand is made, any and all claims, losses, and
damages alleged to arise from or relate, directly or indirectly, to the
designation of Jerome Cooper or any in-house counsel of the Transit Alliance
Companies as counsel of record in any or all matters involving any and all
claims, losses or damages for bodily injury and/or property damage resulting
from or alleged to result from the operation and/or maintenance of buses as
part of the Transit Alliance Companies’ Bus Service up to the Applicable
Transition Date. In furtherance hereof, subject to the Transit Alliance
Companies providing the City with a list of pending actions, with venue, index
numbers, and names and addresses of counsel and the parties they represent,
promptly after the Closing (but in no event more than 60 days thereafter) the
City, at its sole cost and expense shall obtain and cause to be filed in all
appropriate jurisdictions, substitutions of counsel forms with respect to all
matters involving any and all claims, losses or damages for bodily injury
and/or property damage resulting from or alleged to result from the operation
and/or maintenance of buses as part of the Transit Alliance Companies’ Bus
Service up to the Applicable Transition Date for which Jerome Cooper or any other
agent or representative of the Transit Alliance Companies or their affiliates
is designated as counsel of record naming counsel selected by the City to be
counsel of record, for each such matter. It is expressly understood and agreed
that from and after the Closing,



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neither Jerome
Cooper nor any other agent or representative of any Transit Alliance Companies
shall be required to appear as counsel in court or otherwise continue to act as
counsel of record in any pending or threatened action except as necessary to
effectuate substitution of counsel or where the Court does not allow a
substitution of counsel (in which case, costs for such case, including
attorney’s fees, will be handled in accordance with the current operating
assistance arrangements subject to the reasonable and customary documentation
of such expenses) .


(iii)          Any
and all claims arising under Section 13(c) (“Section 13 (c)”) of the
federal transit law, codified at 49 U.S.C. §5333(b), relating to this
transaction and/or the transition contemplated hereby. Provided, however, that
if less than 100% of the Claimants in the 13(c) Proceeding execute Settlement
Authorization Forms, the City’s obligation to indemnify and hold harmless will
not apply to any and all claims of the Claimants who do not execute Settlement
Authorization Forms arising under Section 13(c) relating to this transaction or
the transitions contemplated hereby. As a condition of this indemnification,
neither the Transit Alliance Companies, Varsity, GTJ, nor any officer, director,
or executive of any such companies, acting in any personal, official, or
unofficial capacity, will provide any financial support, including payment of
attorney’s fees, for legal services rendered subsequent to the execution of
this Agreement in connection with the filing or prosecution by any individual,
including prosecution of the 13(c) Proceeding or the litigation titled Hanz Andre, et al., v. The City of New York, et. al.,
Index No. 13423/04, currently pending in Supreme Court of the State
of New York, Queens County (“Andre Litigation”) or any other arbitration,
litigation or other judicial or quasi-judicial proceeding based upon,
attributable to, or arising out of the expiration and/or termination of the
franchise or operating authority of the Transit Alliance Companies, or the
commencement by MTA Bus Company of operations in the area and/or over the
routes operated by the Transit



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Alliance
Companies, or any action or decision of the City regarding the performance of
claims work (as that term is used in connection with the Andre Litigation)
performed by the Transit Alliance Companies and/or Varsity and GTJ. It is
understood that the Transit Alliance Companies and/or Varsity and GTJ have paid
as recently as November 16, 2005 for legal fees with respect to such matters
for services previously rendered and the Transit Alliance Companies, Varsity
and GTJ each agree that they will make no further payments for any such
services. In addition, none of the Excluded Employees, as defined in the
Settlement Agreement, shall file a claim in regard to the above. Nothing in
this Agreement is or shall be deemed to be an admission on the part of the City
or the Transit Alliance Companies that either the City or the Transit Alliance
Companies have any liability under Section 13(c).


(iv)          It
is the Parties’ understanding that Jamaica and Triboro are obligated by their
collective bargaining agreement with T.W.U. Local 100 to make certain defined
contributions to the T.W.U. – New York City Private Bus Lines Health Benefit Trust
(“TWU Health Benefit Trust”) and that Jamaica and Triboro have no legal
obligation to make any other payments to, or assume any responsibility for any
deficit in the funding of, the TWU Health Benefit Trust. Further, it is the
Parties’ understanding that Command and Green are obligated by their collective
bargaining agreements with Amalgamated Transit Union (“ATU”) Local 1179 and ATU
Local 1181 to make certain defined contributions to the health trusts relating
to Command and Green (“ATU Health Benefit Trusts”) and that Command and Green
have no legal obligation to make any other payments to, or assume any
responsibility for any deficit in the funding of, the ATU Health Benefit
Trusts. As provided in Section 2.2(f) of this Agreement, the City shall fund the
operating deficit of the TWU Health Benefit Trust and the ATU Health Benefit
Trusts. Operating deficit shall include all expenses in excess of required
contributions



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through the
Applicable Transition Date, including claims for benefits (including run-off of
claims) and administrative expenses through final termination of the plan
(including, but not limited to, preparation of required governmental reports,
filing fees and reasonable actuarial, accounting and legal expenses, and the
cost of providing fiduciary liability insurance for six years following the
applicable termination date [, provided such coverage is available on
commercially reasonable terms]). The City shall defend and hold harmless
Jamaica, Triboro, Green and Command from any third party claim which alleges
that Jamaica, Triboro, Green and Command are obligated to make any payment
other than defined contributions through the Transition Date to the TWU Health
Benefit Trust or the ATU Health Benefit Trusts, as applicable. Jamaica, Triboro,
Green and Command shall reasonably cooperate with the City in the defense of
any such claim and the City shall pay or reimburse for any out-of-pocket
third-party costs and expenses incurred in connection with such cooperation.


(v)           Any
and all funding obligations, claims, losses, damages, fines, costs, and
expenses associated with any withdrawal, termination, freezing, or other
liability related to the T.W.U.-N.Y.C. Private Bus Lines Pension Plan (the
“TWU-NYC Pension Plan”), the Restated Command-Local 1181 Pension Plan (the
“Command-Local 1181 Pension Plan”), the Green Bus Lines Inc. Employees’
Retirement Plan (the “Green Retirement Plan”), the Retirement Plan for Certain
Employees of Green Bus Lines, Inc. (the “Green Non-Union Retirement Plan”), the
Retirement Plan for Certain Employees of Command Bus Company (the “Command
Non-Union Retirement Plan”), the Retirement Plan for Certain Employees of
Triboro Coach Corporation (the “Triboro Non-Union Retirement Plan”) and the
Retirement Plan for Certain Employees of Jamaica Buses, Inc. (the “Jamaica
Non-Union Retirement Plan”), arising out of the transactions set forth in
Section 2.4



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or otherwise
related to the termination of the Transit Alliance Companies’ operations as
contemplated by this Agreement, regardless of whether such liability is
triggered immediately upon the consummation of such transactions or such
termination or as a result of subsequent events. For the avoidance of doubt, if
and to the extent any withdrawal liability, mass withdrawal liability and
reallocation liability is imposed on Jamaica or Triboro as a result of the
transactions contemplated by this Agreement, the City shall timely pay such
liability subject to the conditions set forth below. The TWU-NYC Pension Plan,
Command-Local 1181 Pension Plan, Green Retirement Plan, Green Non-Union
Retirement Plan, Command Non-Union Retirement Plan, Triboro Non-Union
Retirement Plan and Jamaica Non-Union Retirement Plan are collectively referred
to herein as the “Transit Alliance Pension Plans.”  As a condition of this indemnification,
subsequent to execution of this Agreement, and prior to implementation of the
City’s option to proceed with Section 2.4(a)(i) or (ii) below, Sections
2.4(b)(i) or (ii) below, and Sections 2.4(c)(i) or (ii) below, the applicable
Transit Alliance Company shall appoint individuals selected by the City to
replace the Current Trustees as the Employer Trustees or management
representatives with respect to the applicable Transit Alliance Pension Plan.
If a Current Trustee resigns, the City shall promptly select an individual to
be appointed by the applicable Transit Alliance Company. Except that, if an
agreement is reached to merge the Command-Local 1181 Pension Plan or the Green
Retirement Plan with the MTA Plan, then no substitution of trustees will be
required as to such plans. As a further additional condition of this
indemnification, any Transit Alliance Company receiving any written notice or
communication regarding withdrawal or termination liability shall immediately
provide a copy of such notice or communication to the City and, at the City’s
expense, take any reasonable steps directed by



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the City,
including contesting the amount of any liability. It is understood and agreed
that the indemnity provided for herein shall expressly extend in favor of all
Current Trustees of any Transit Alliance Pension Plan. “Current Trustees” shall mean the Employer
Trustees or management representatives as of the date prior to the applicable
Transit Alliance Company appointing individuals selected by the City pursuant
to the provisions of this Agreement.


(vi)          In
regard to both union and non-union employees of the Transit Alliance Companies,
Varsity and GTJ, any and all claims, losses or damages with respect to Accrued
Leave (as hereinafter defined) in accordance with Section 2.2(d), or with
regard to severance in accordance with Section 2.1(c) (other than severance
with respect to which, by the express terms of Section 2.1(b) the City has no
responsibility).


(vii)         Any
claims made by any union or any member of any union arising under any
collective bargaining agreement (“CBA”) and relating to this transaction or any
of the transitions contemplated hereby, including but not limited to whether
the MTA is required to assume the terms of the CBA.


(viii)        The
obligation, if any, to pay additional or retrospective premiums in connection
with any Workers’ Compensation Retrospective Policy.


(ix)           The
obligation to pay accumulated holiday pay under Section 9(b) of the Jamaica TWU
CBA and Section 9(f) of the Triboro TWU CBA or any provision of any other CBA
(as defined in Section 2.1(a));


(x)            Irrespective
of when any claim or demand is made, any and all claims asserted by vendors
(other than Varsity, GTJ or any other affiliated entities) to the Transit
Alliance Companies in regard to Bus Service, up, through, and including the
Transition Date, which shall include late fees, penalties, and interest on any
sums found to be due and owing on



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any vendor claims,
if the sums found to be due and owing are for an eligible operating expense and
the relevant Transit Alliance Company provided the City with a timely request
for reimbursement accompanied by appropriate and customary backup
documentation.


(b)                                 The
City’s obligations to defend and indemnify pursuant to this section are excess
to any insurance covering either the Transit Alliance Companies (other than
self insurance of the Transit Alliance Companies) or Current Trustees of any
Transit Alliance Pension Plan or the City and, if necessary, the Transit
Alliance Companies shall cooperate in obtaining an assignment of any applicable
insurance policy to the City.


(c)                                  Notwithstanding
any other provision to the contrary, the City shall not be required to defend
or be responsible for any attorney’s fees or costs of the Transit Alliance
Companies, Varsity, and GTJ, or any of the Claimants and/or Plaintiffs related
to the 13(c) Proceeding; the Andre Litigation; Green
Bus, et. al., Plaintiffs, v. City of New York, Defendants, Supreme
Court, Queens County Index Number 18770/04;
and Green Bus Lines, Inc. et. al., Plaintiffs, v. City of New York, Defendant, United
States District Court, Eastern District of New York Docket No. 03 Civ. 4849
(RJD)(CLP).


1.6                                 Excluded
Liabilities. Other than the Assumed Liabilities, or as expressly set forth
in another section of this Agreement, including without limitation Section 8.1
hereof, the City shall not hereby assume, become liable for, or agree to
discharge any obligation or liability of the Transit Alliance Companies, known
or unknown, choate or inchoate, absolute or contingent, including without
limitation: (a) any current liabilities, accounts payable or trade liabilities;
(b) any liability or obligation under, related to or arising from any contract
assigned pursuant to Section 3.2 accruing prior to the Closing; (c) any
liability or obligation of the Transit Alliance Companies to any former or
current employee of the Transit Alliance Companies,



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including
any liability or obligation to owners, officers, directors, or executives; or
(d) any obligation or liability of the Transit Alliance Companies arising from
a violation of law or governmental regulation (all of the foregoing being
hereinafter referred to as the “Excluded Liabilities”).


ARTICLE II: EMPLOYEES AND BENEFIT
MATTERS


2.1.                              Offers
of Employment. The City warrants and represents to the Transit Alliance
Companies that the City has arranged with the MTA Bus Company as follows (and
the City shall indemnify, defend, and hold harmless the Transit Alliance
Companies, Varsity and GTJ from any and all costs, losses and damages related
to and obligations arising out of any failure by the MTA or the MTA Bus Company
to act in accordance with the following or in accordance with any other
provision of this Agreement (including without limitation Sections 2.2 – 2.5
hereof) which contemplates any action or behavior by MTA and MTA Bus Company,
except to the extent that the Transit Alliance Companies, Varsity and GTJ take
any action or step (other than actions or steps taken at the request of MTA or
MTA Bus Company) that creates liability to third parties for any such failure
by the MTA or MTA Bus Company to act, it being understood and agreed that the
City is fully responsible to the Transit Alliance Companies, Varsity and GTJ
for any failure by the MTA and/or the MTA Bus Company to comply with the
arrangements set forth in this Agreement):


(a)                                  Prior
to the Transition Date applicable to the individual Transit Alliance Company
(hereinafter “Applicable Transition Date”), the MTA Bus Company shall offer employment
(to commence at 12:01am on the day after the Applicable Transition Date) to (i)
all members of TWU Local 100 employed by Jamaica and Triboro on the Transition
Date on the terms and conditions substantially similar to those contained in
Jamaica’s and Triboro’s current



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collective
bargaining agreement with TWU Local 100 (“TWU CBA”), (ii) all members of ATU
Local 1181 employed by Command on the Transition Date on the terms and
conditions substantially similar to those contained in Command’s current collective
bargaining agreement with ATU Local 1181 (“Command ATU CBA”), and (iii) all
members of ATU Local 1179 employed by Green on the Transition Date on the terms
and conditions substantially similar to those contained in Green’s current
collective bargaining agreement with ATU Local 1179 (“Green ATU CBA”) (the TWU
CBA, Command ATU CBA and Green ATU CBA, each a “CBA”). A list of such employees
is set forth in Exhibit 2. Notwithstanding the above, the MTA Bus
Company shall not be obligated to offer employment to any individual who has
previously been terminated for cause by the MTA or any of its agencies,
affiliates, or subsidiaries. The City understands and agrees that a number of
these employees are inactive and that the offer to each such employee shall remain
open for so long as such employee would have been entitled to return to the
applicable Transit Alliance Company had the Transit Alliance Company continued
to provide Bus Service (such union employees, together with similarly-situated
non-union employees who are offered employment by the MTA Bus Company, the
“Inactive Employees”).


(b)                                 Except
as otherwise provided in this Section 2.1(b), for the non-union employees of
the Transit Alliance Companies and Varsity, prior to the Applicable Transition
Date, the MTA Bus Company will offer employment (to commence at 12:01 am on the
day after the Applicable Transition Date) to those individuals who are set
forth in Exhibit 3, including, without limitation, Inactive Employees.
The offer of employment to any Inactive Employee shall remain open for so long
as such Inactive Employee would have been entitled to return to the applicable
Transit Alliance Company and/or Varsity had the Transit Alliance Company or



 17
 






 



 


Varsity
continued to provide Bus Service after the Applicable Transition Date. Exhibit
4 sets forth terms and conditions of such employment and wages and benefits,
health and welfare and pension plans available with respect to each of the
non-union employees. The Chairman, Chief Executive Officer, President, Vice
President, Chief Financial Officer, Chief Accounting Officer of the Transit
Alliance Companies and any other employee identified on the attached Exhibit 5
are Excluded Employees who will not be offered positions with the MTA Bus
Company. The Transit Alliance Companies may make severance payments to such
Excluded Employees but the Parties agree that such severance payments are not
eligible for reimbursement by the City as operating expenses or for any other
reason and neither the City nor the MTA shall have any responsibility for any
severance paid by the Transit Alliance Companies to any Excluded Employee for
any reason. Any employees who do not accept employment or who are not offered
positions with the MTA Bus Company shall also receive payment from the Transit
Alliance Companies, to the extent they are entitled to such payment, for earned
and unused sick, personal or vacation days (for any employees, whether or not
such employee is an MTA Transit Alliance Company Employee, as such term is
defined below in Section 2.1(d), such leave is herein referred to as “Accrued
Leave”) in accordance with Section 2.2(d) of this Agreement and the City shall
promptly reimburse the Transit Alliance Companies for such payments in respect
of Accrued Leave in the amount actually paid by the Transit Alliance Companies.
To the extent the Transit Alliance Companies make payments in respect of any
Accrued Leave, the Transit Alliance Companies shall be reimbursed by the City
within the period contemplated by the next to last sentence of Section 1.3 of
this Agreement. Non-union employees hired by the MTA Bus Company will receive
severance from the MTA Bus Company if terminated without cause within the first
year of their employment with the MTA Bus Company. The amount of



 18
 






 



 


severance
pay shall equal one month’s base salary (not including benefits) for each full year of service with the
Transit Alliance Company, not to exceed twelve months’ base salary, less the
amount paid to such employee in salary by the MTA Bus Company prior to the date
of termination. However, any non-union employee terminated without cause after
nine months of service with the MTA Bus Company shall be entitled to severance
pay of three months’ base salary (not including benefits).


(c)                                  The
Transit Alliance Companies represent and warrant that each employee listed in
Exhibits 2 and 3 is an employee of a Transit Alliance Company or Varsity who as
of the date hereof was engaged in the business of providing Bus Service and is
actively at work or absent in accordance with an established policy of a
Transit Alliance Company or Varsity and has the contractual or legal right to
return to active work within the terms of such policy or of a CBA.


(d)                                 The
employees who receive and accept offers of employment from the MTA Bus Company
and become employees of the MTA Bus Company effective on the day after the
Applicable Transition Date or who are Inactive Employees as of such date and
who are ready, willing and able to become MTA Bus Company employees before the
expiration of their right to return to work shall be referred to in this
Agreement as “MTA Transit Alliance Company Employees.”


2.2                                 Health
and Welfare Benefits. The Transit Alliance Companies shall continue to
provide or cause to be provided (e.g., by payment of contractually required
contributions to their respective union-related plans) (a) to MTA Transit
Alliance Company Employees and MTA Transit Alliance Company Retirees (as
defined below) medical, dental and life insurance benefits through the last day
of the month in which the Applicable Transition Date



 19
 






 



 


occurs, and (b) to
MTA Transit Alliance Company Employees all workers’ compensation, disability
and other welfare benefits through the Applicable Transition Date. The City
shall reimburse the Transit Alliance Companies for all costs associated with
providing such benefits as if such benefits were provided during the operation
of the Transit Alliance Companies prior to the Applicable Transition Date,
including, but not limited to, benefit claims and administrative and other
expenses from the Applicable Transition Date through the last day of the month
in which such Transition Date occurs. For purposes of this Agreement, MTA
Transit Alliance Company Retiree shall mean any retiree of a Transit Alliance
Company who is entitled to receive retiree benefits, under the terms of the
Health and Welfare Plans (as defined below), immediately prior to or due to
retirement on the Applicable Transition Date. The City warrants and represents
to the Transit Alliance Companies that the City has arranged with the MTA Bus
Company as follows:


(a)                                  Responsibility
for Benefits Claims.


(i)                                     The
MTA Bus Company shall be responsible for all medical, dental, life insurance,
workers’ compensation, disability and other welfare benefit claims with respect
to MTA Transit Alliance Company Employees incurred after termination of
benefits under the plans or policies of a Transit Alliance Company, the TWU
Health Benefit Trust, or the ATU Health Benefit Trusts (such plans or policies
and health trusts collectively, the “Health and Welfare Plans”) (i.e., for
workers’ compensation, disability and other welfare benefits commencing on the
Applicable Transition Date and for medical, dental and life insurance benefits
from and after the first day of the month following the month in which the
Applicable Transition Date occurs), in accordance with the applicable Health
and Welfare Plans. The MTA Bus Company shall further be responsible for any
medical, dental or life insurance benefit claims



 20
 






 



 


with respect to
MTA Transit Alliance Company Retirees who are entitled to such benefits under
the terms of the Health and Welfare Plans incurred after the first day of the
month following the month in which the Applicable Transition Date occurs. It is
understood and agreed that for purposes of this Agreement, “claims with respect
to” any individual includes without limitation claims related to
dependents/beneficiaries of such individual who, under the Health and Welfare
Plans, are entitled to the benefits in question.


(ii)                                  The
MTA Bus Company shall further be responsible for all wage claims related to
workers’ compensation and disability benefit claims with respect to MTA Transit
Alliance Company Employees for pay periods ending after the Applicable
Transition Date.


(iii)                               Subject
in each case to the City’s obligation to reimburse each Transit Alliance
Company set forth below:


·                  Each Transit
Alliance Company (or the TWU Health Benefit Trust or ATU Health Benefit Trusts)
shall retain its previous responsibility for all medical, dental and life
insurance benefit claims with respect to MTA Transit Alliance Company Employees
or MTA Transit Alliance Company Retirees incurred on or prior to the last day
of the month in which the Applicable Transition Date occurs. The City shall
reimburse the Transit Alliance Companies for all costs, including, but not
limited to, premium payments, benefit claims and administrative and other
expenses, associated with providing such benefits on and after the Transition
Date as if such benefits were provided during the operation of the Transit
Alliance Companies prior to the Applicable Transition Date.


·                  Each Transit
Alliance Company shall retain its previous responsibility for all workers’
compensation, disability and other welfare benefit claims with respect to MTA
Transit



 21
 






 



 


Alliance Company Employees incurred on or prior to the
Applicable Transition Date and all wage claims related to workers’ compensation
and disability benefit claims with respect to MTA Transit Alliance Company
Employees for pay periods ending on or prior to the Transition Date.


·                  Except as
otherwise provided in this Agreement, each Transit Alliance Company (or the TWU
Health Benefit Trust or ATU Health Benefit Trusts) shall retain its previous
responsibility for all health and welfare benefits claims and obligations with
respect to any other Transit Alliance Company employees or former employees and
in accordance with applicable plans and/or insurance policies.


To the extent
provided for by current City procedures, all expenses of the Transit Alliance
Companies with respect to the foregoing shall be reimbursable as eligible
expenses.


(b)                                 Establishment
of Programs. Prior to the Applicable Transition Date, but effective upon
the termination of benefits provided under the Health and Welfare Plans (i.e.,
for workers’ compensation, disability and other welfare claims as of the
Applicable Transition Date, and for medical, dental and life insurance
benefits, the first day of the month following the month in which the
Applicable Transition Date occurs), the MTA Bus Company shall have established
and shall maintain workers’ compensation, medical, dental, life insurance,
disability benefits and other health and welfare programs that provide the MTA
Transit Alliance Company Employees and MTA Transit Alliance Company Retirees,
and their respective eligible dependents and beneficiaries, with health and
welfare benefits no less favorable in the aggregate than those they had
immediately prior to the Applicable Transition Date. The MTA Bus Company
program shall be responsible for maintaining continuation health coverage under
Section 4980B of the Internal Revenue Code of 1986, as amended (the “Code”) and
Part 6 of 



 22
 






 



 


Title
I of ERISA for those employees of the Transit Alliance Companies who are not
hired by the MTA and who do not continue employment with a Transit Alliance
Company, Varsity, or any other related or affiliated entity, and their
qualified beneficiaries. The MTA Bus Company will cause the waiver of all
pre-existing conditions, exclusionary provisions and waiting period
requirements with respect to coverage of MTA Transit Alliance Company Employees
and MTA Transit Alliance Company Retirees (and their dependents/beneficiaries)
under all health and welfare plans in which such individuals are eligible to
participate after the Transition Date to the extent such individuals were not
subject to any such conditions, exclusions or requirements under the Health and
Welfare Plans immediately prior to the Transition Date. The MTA Bus Company
will credit any MTA Transit Alliance Company Employees and MTA Transit Alliance
Company Retirees (and their respective eligible dependents/beneficiaries) with
any amounts paid during the plan year in which the Applicable Transition Date
occurs for purposes of satisfying deductible amounts, out-of-pocket limits, or
similar limits under any MTA Bus Company plan in which such individuals
participate during the plan year in which the Applicable Transition Date
occurs.


(c)                                  Credit
for Service. The MTA Bus Company will credit MTA Transit Alliance Company
Employees with all service with a Transit Alliance Company, Varsity or with an
affiliate or predecessor of a Transit Alliance Company or Varsity for
eligibility and participation with respect to health and welfare benefits,
including without limitation retiree medical coverage.


(d)                                 Accrued
Vacation and Sick Leave. The MTA Bus Company will permit MTA Transit
Alliance Company Employees to use all Accrued Leave to the extent such use
would be consistent with any Transit Alliance Company or Varsity policy in
effect as of the



 23
 






 



 


Applicable
Transition Date (i.e., such leave must be available to the employee in question
on such date and use of available days may be subject to any limits any Transit
Alliance Company or Varsity policy would put on such use). Each Transit
Alliance Company and Varsity shall cooperate in the transfer of such Accrued
Leave by taking any administrative steps, necessary or desirable, to facilitate
the transfer (i.e., shall provide the MTA with applicable records and policies).
The City shall seek no direct or indirect reimbursement from any Transit
Alliance Company or Varsity in connection with any such Accrued Leave
(including via any break-even or operating assistance calculation) and shall
indemnify and hold each Transit Alliance Company, Varsity, their respective
directors, officers and employees, harmless against any claims of MTA Transit
Alliance Company Employee with respect to such Accrued Leave and shall promptly
(and in no event later than thirty (30) days from written notice together with
backup documentation customarily provided and accepted) reimburse each Transit
Alliance Company or Varsity for any amounts paid by it in respect of any
Accrued Leave. The MTA Bus Company will credit MTA Transit Alliance Company
Employees for service with a Transit Alliance Company, Varsity or their
predecessors or affiliates for purposes of determining entitlement to vacation,
sick and personal days under the MTA Bus Company policies.


(e)                                  Changes
to Health and Welfare Benefits. Notwithstanding anything to the contrary on
Exhibit 4 hereto, the MTA Bus Company shall act in good faith at all times in
making any changes to the health and welfare benefits set forth on Exhibit 4
hereto and will not discriminate against MTA Transit Alliance Company Employees
with respect to any changes in future benefits when making any such changes
(i.e., will treat MTA Transit Alliance Company Employees no less favorably than
comparable employees of the MTA Bus Company when making any such changes).


 


 



 24














 


 


(f)            The
City will continue to fund the operating deficits of the ATU Health Benefit
Trusts. The City will fund the operating deficits of the TWU Health Benefit
Trust related to Triboro upon the Transition Date for Triboro and related to
Jamaica upon the Transition Date for Jamaica. Operating deficits shall include
all expenses remaining after required employer contributions through the
Applicable Transition Date, including claims for benefits (including run-off of
claims) and administrative expenses through final termination of the plan
(including, but not limited to, preparation of required government reports;
filing fees; and reasonable actuarial, accounting and legal expenses).


2.3           Severance.
Each Transit Alliance Company represents and warrants that it has no
contractual obligation to any MTA Transit Alliance Company Employee for
severance or termination pay or similar compensation as a result of any action
or event contemplated by this Agreement.


2.4           Pension Plans.


(a)           Prior to
consummating the transactions involving Jamaica and Triboro contemplated
hereby, the City shall proceed with either, at its sole and exclusive option,
2.4(a)(i) or 2.4(a)(ii) below. The failure of the conditions of
2.4(a)(i) or 2.4(a)(ii) to be satisfied shall not relieve the City of its
obligation to close the transactions, except that the City shall not be
obligated to close if the Transit Alliance Companies have failed to meet their
obligations under 2.4(a).


(i)            The
conditions of 2.4(a)(i) are:


(A)          The
MTA Bus Company, the MTA, the Trustees of the TWU-NYC Pension Plan or an
appropriate party acting on behalf of the TWU-NYC Pension Plan, Jamaica and
Triboro, and/or other appropriate parties, shall have entered into a Pension



 25
 






 



 


Agreement
providing for, all as set forth in the Pension Agreement, (A) the merger of the
TWU-NYC Pension Plan into the Metropolitan Transportation Authority Defined
Benefit Pension Plan (“MTA Plan”); (B) the transfer of all assets of the
TWU-NYC Pension Plan to the MTA Plan; (C) the assumption by the MTA Plan of
liabilities of the TWU-NYC Pension Plan; (D) the transfer of appropriate
records of the TWU-NYC Pension Plan to the MTA Plan; and (E) agreed upon
representations and warranties.


(B)           The
MTA shall have amended the MTA Plan so that effective upon the transfer of
assets from the TWU-NYC Pension Plan, the MTA Plan (i) provides that Eligible
TWU-NYC Pension Plan Beneficiaries be credited with all service with a Transit
Alliance Company or an affiliate of a Transit Alliance Company for purposes of
vesting, eligibility and benefit accrual; and (ii) provides for benefits
for Eligible TWU-NYC Pension Plan Beneficiaries as of the Applicable Transition
Date on substantially the same terms and conditions as the TWU-NYC Pension Plan
provided as of such Transition Date. “Eligible TWU-NYC Pension Plan
Beneficiaries” refers collectively to any individual who, immediately prior to
the Applicable Transition Date, is receiving benefits or is or may be entitled
to benefits under the TWU-NYC Pension Plan, whether or not such individual is
an MTA Transit Alliance Company employee, and each individual’s beneficiaries,
whose pension benefit liabilities are to be assumed by the MTA Plan as
described in Section 2.4.


(ii)           The
conditions of 2.4(a)(ii) are:


(A)          The
MTA shall have amended the MTA Plan so that effective upon the day after the
Applicable Transition Date, the MTA Plan (1) provides that each MTA Transit
Alliance Company Employee who on the Applicable Transition Date was a
participant in the TWU-NYC Pension Plan be credited with all service as
recognized under the TWU-NYC 



 26
 






 



 


Pension Plan for
purposes of vesting and eligibility (including eligibility for early
retirement, disability and other retirement benefits), but not benefit
accrual;  and (2) provides for
benefits for such MTA Transit Alliance Company Employee as of the day after the
Applicable Transition Date on substantially the same terms and conditions as
the TWU-NYC Pension Plan provided as of such Transition Date; and


(B)           The
Transit Alliance Companies shall have provided or caused to have been provided
to MTA Bus Company a complete and accurate schedule listing the name of each
applicable MTA Transit Alliance Employee who on the Applicable Transition Date
was a participant in the TWU-NYC Pension Plan, and each such employee’s (1)
Social Security Number, (2) gender, (3) date of birth, (4) date of initial
participation in the TWU-NYC Pension Plan, and (5) uninterrupted seniority
under the TWU-NYC Pension Plan as of the Applicable Transition Date. In
addition the Transit Alliance Companies shall provide or cause to be provided
true and complete copies of (6) the TWU-NYC Pension Plan (including all
amendments thereto), (7) the most recent summary plan description with respect
to the TWU-NYC Pension Plan, (8) the most recent actuarial valuation report
prepared with respect to the TWU-NYC Pension Plan, (9) the most recent
favorable determination letter issued by the Internal Revenue Service with
respect to the TWU-NYC Pension Plan and (10) any material written communications
delivered to participants in the TWU-NYC Pension Plan. Jamaica and Triboro
shall also have used their best efforts to cause the non-vested benefits of the
MTA Transit Alliance Company Employees in the TWU-NYC Pension Plan to be fully
vested as of the Applicable Transition Date. If such non-vested benefits are so
vested, the City shall pay Jamaica and Triboro an amount equal to the actual
incremental cost of vesting such unvested benefits within thirty (30) days of
such amount being determined and provided to the City, and



 27
 






 



 


Jamaica and
Triboro shall thereupon pay such cost to the NYC-TWU Pension Plan, provided
that the payments contemplated in this sentence do not have to occur prior to
Closing.


(b)           Prior
to consummating the transactions involving Command contemplated hereby, the
City shall proceed with either, at its sole and exclusive option, 2.4(b)(i) or
2.4(b)(ii) below. The failure of the conditions of 2.4(b)(i) or 2.4(b)(ii) to
be satisfied shall not relieve the City of its obligation to close the transactions,
except that the City shall not be obligated to close if the Transit Alliance
Companies have failed to meet their obligations under 2.4(b).


(i)            The
conditions of 2.4(b)(i) are:


(A)          The
MTA Bus Company, the MTA, the Trustees of the Command-Local 1181 Pension Plan
or an appropriate party acting on behalf of the Command-Local 1181 Pension
Plan, and Command, and/or other appropriate parties, shall have entered into a
Pension Agreement providing for, all as set forth in the Pension Agreement, (A)
the merger of the Command-Local 1181 Pension Plan into the MTA Plan;
(B) the transfer of all assets of the Command-Local 1181 Pension Plan to
the MTA Plan;  (C) the assumption by the
MTA Plan of liabilities of the Command-Local 1181 Plan; (D) the transfer of appropriate
records of the Command-Local 1181 Pension Plan to the MTA Plan; and (E) agreed
upon representations and warranties.


(B)           The
MTA shall have amended the MTA Plan so that effective upon the transfer of
assets from the Command – Local 1181 Pension Plan, the MTA Plan
(i) provides that Eligible Command-Local 1181 Beneficiaries be credited
with all service with a Transit Alliance Company or an affiliate of a Transit
Alliance Company for purposes of vesting, eligibility and benefit accrual; and
(ii) provides for benefits for Eligible Command-Local 1181



 28
 






 



 


Beneficiaries as
of the Applicable Transition Date on substantially the same terms and
conditions as the Command-Local 1181 Pension Plan provided as of such
Transition Date. “Eligible Command-Local 1181 Beneficiaries” refers
collectively to any individual who, immediately prior to the Applicable
Transition Date, is receiving benefits or is or may be entitled to benefits
under the Command-Local 1181 Pension Plan, whether or not such individual is an
MTA Transit Alliance Company employee, and each individual’s beneficiaries,
whose pension benefit liabilities are to be assumed by the MTA Plan as
described in this Section 2.4.


(ii)           The
conditions of 2.4(b)(ii) are:


(A)          The
MTA shall have amended the MTA Plan so that effective upon the day after the
Applicable Transition Date, the MTA Plan (1) provides that each MTA Transit
Alliance Company Employee who on the Applicable Transition Date was a
participant in the Command-Local 1181 Pension Plan be credited with all service
as recognized under the Command-Local 1181 Pension Plan for purposes of vesting
and eligibility (including eligibility for early retirement, disability and
other retirement benefits), but not benefit accrual;  and (2) provides for benefits for such MTA
Transit Alliance Company Employee as of the day after the Applicable Transition
Date on substantially the same terms and conditions as the Command-Local 1181
Pension Plan provided as of such Transition Date.


(B)           The
Transit Alliance Companies shall have provided or caused to have been provided
to MTA Bus Company a complete and accurate schedule listing the name of each
applicable MTA Transit Alliance Employee who on the Applicable Transition Date
was a participant in the Command-Local 1181 Pension Plan, and each such
employee’s (1) Social Security Number, (2) gender, (3) date of birth, (4) date
of initial participation in the Command-Local 1181 Pension Plan, and (5)
uninterrupted seniority under the Command-Local 1181



 29
 






 



 


Pension Plan as of
the Applicable Transition Date. In addition the Transit Alliance Companies
shall provide or cause to be provided true and complete copies of the
Command-Local 1181 Pension Plan (including all amendments thereto), (7) the
most recent summary plan description with respect to the Command-Local 1181
Pension Plan, (8) the most recent actuarial valuation report prepared with
respect to the Command-Local 1181 Pension Plan, (9) the most recent favorable
determination letter issued by the Internal Revenue Service with respect to the
Command-Local 1181 Pension Plan and (10) any material written communications
delivered to participants in the Command-Local 1181 Pension Plan. Command shall
also have used its best efforts to cause the non-vested benefits of the MTA
Transit Alliance Company Employees in the Command-Local 1181 Pension Plan to be
fully vested as of the Applicable Transition Date. If such non-vested benefits
are so vested, the City shall pay Command an amount equal to the actual
incremental cost of vesting such unvested benefits within thirty (30) days of
such amount being determined and provided to the City and Command shall
thereupon pay such cost to the Command-Local 1181 Pension Plan, provided that
the payments contemplated in this sentence do not have to occur prior to Closing.


(c)           Prior
to consummating the transactions involving Green contemplated hereby the City
shall proceed with either, at its sole and exclusive option, 2.4(c)(i) or
2.4(c)(ii) below. The failure of the conditions of 2.4(c)(i) or 2.4(c)(ii) to
be satisfied shall not relieve the City of its obligation to close the
transactions, except that the City shall not be obligated to close if the
Transit Alliance Companies have failed to meet their obligations under 2.4(c).


(i)            The
conditions of 2.4(c)(i) are:



 30
 






 



 


(A)          The
MTA Bus Company, the MTA, the Trustees of the Green Retirement Plan or an
appropriate party acting on behalf of the Green Retirement Plan, and Green,
and/or other appropriate parties, shall have entered into a Pension Agreement
providing for, all as set forth in the Pension Agreement, (A) the merger of the
Green Retirement Plan into the MTA Plan; (B) the transfer of all assets of the
Green Retirement Plan to the MTA Plan; (C) the assumption by the MTA Plan of
liabilities of the Green Retirement Plan; (D) the transfer of appropriate
records of the Green Retirement Plan to the MTA Plan; and (E) agreed upon
representations and warranties.


(B)           The
MTA shall have amended the MTA Plan so that effective upon the transfer of
assets from the Green Retirement Plan, the MTA Plan (i) provides that Eligible
Green Retirement Plan Beneficiaries be credited with all service with a Transit
Alliance Company or an affiliate of a Transit Alliance Company for purposes of
vesting, eligibility and benefit accrual; and (ii) provides for benefits for
Eligible Green Retirement Plan Beneficiaries as of the Applicable Transition
Date on substantially the same terms and conditions as the Green Retirement
Plan provided as of such Transition Date. “Eligible Green Retirement Plan Beneficiaries”
refers collectively to any individual who, immediately prior to the Applicable
Transition Date, is receiving benefits or is or may be entitled to benefits
under the Green Retirement Plan, whether or not such individual is an MTA
Transit Alliance Company, and each individual’s beneficiaries, whose pension
benefit liabilities are to be assumed by the MTA Plan as described in this
Section 2.4.


(ii)           The
conditions of 2.4(c)(ii) are:


(A)          The
MTA shall have amended the MTA Plan so that effective upon the day after the
Applicable Transition Date, the MTA Plan (1) provides that each MTA



 31
 






 



 


Transit Alliance
Company Employee who on the Applicable Transition Date was a participant in the
Green Retirement Plan be credited with all service as recognized under the
Green Retirement Plan for purposes of vesting and eligibility (including
eligibility for early retirement, disability and other retirement benefits),
but not benefit accrual; and (2) provides for benefits for such MTA
Transit Alliance Company Employee as of the day after the Applicable Transition
Date on substantially the same terms and conditions as the Green Retirement
Plan provided as of such Transition Date; and


(B)           The
Transit Alliance Companies shall have provided or caused to have been provided
to MTA Bus Company a complete and accurate schedule listing the name of each
applicable MTA Transit Alliance Employee who on the Applicable Transition Date
was a participant in the Green Retirement Plan, and each such employee’s (1)
Social Security Number, (2) gender, (3) date of birth, (4) date of initial
participation in the Green Retirement Plan, and (5) uninterrupted seniority
under the Green Retirement Plan as of the Applicable Transition Date. In
addition the Transit Alliance Companies shall provide or cause to be provided
true and complete copies of the Green Retirement Plan (including all amendments
thereto), (7) the most recent summary plan description with respect to the
Green Retirement Plan, (8) the most recent actuarial valuation report prepared with
respect to the Green Retirement Plan, (9) the most recent favorable
determination letter issued by the Internal Revenue Service with respect to the
Green Retirement Plan and (10) any material written communications delivered to
participants in the Green Retirement Plan. Green shall also have used its best
efforts to cause the non-vested benefits of the MTA Transit Alliance Company
Employees in the Green Retirement Plan to be fully vested as of the Applicable
Transition Date. If such non-vested benefits are so vested, the City shall pay
Green an amount equal to the actual incremental cost of vesting such unvested



 32
 






 



 


benefits within
thirty (30) days of such amount being determined and provided to the City and
Green shall thereupon pay such cost to the Green Retirement Plan, provided that
the payments contemplated in this sentence do not have to occur prior to
Closing.


(d)           Prior
to and as a condition to the Parties’ obligation to close the transactions
involving Green contemplated hereby, the MTA Bus Company, the MTA, the Trustees
of the Green Non-Union Retirement Plan and Green shall have entered into a
Pension Agreement providing for, all as set forth in the Pension Agreement, (A)
the merger of the Green Non-Union Retirement Plan into the MTA Plan; (B) the transfer
of all assets of the Green Non-Union Retirement Plan to the MTA Plan; (C) the
assumption by the MTA Pension Plan of liabilities of the Green Non-Union
Retirement Plan; (D) the transfer of appropriate records of the Green Non-Union
Retirement Plan to the MTA Plan; and (E) agreed upon representations and
warranties.


(e)           Prior
to and as a condition to the Parties’ obligation to close the transactions
involving Green contemplated hereby, the MTA shall have amended the MTA Plan so
that effective upon the transfer of assets from the Green Non-Union Retirement
Plan, the MTA Plan  (i) provides that
Eligible Green Beneficiaries be credited with all service with a Transit
Alliance Company or an affiliate of a Transit Alliance Company for purposes of
vesting, eligibility and benefit accrual; and (ii) provides for benefits for
Eligible Green Beneficiaries as of the Applicable Transition Date on
substantially the same terms and conditions as the Green Non-Union Retirement
Plan provided as of such Transition Date. “Eligible Green Beneficiaries” refers
collectively to any individual who, immediately prior to the Applicable
Transition Date, is receiving benefits or is or may be entitled to benefits
under the Green Non-Union Retirement Plan, whether or not such individual is an
MTA Transit Alliance Company Employee, and each



 33
 






 



 


such individual’s
beneficiaries, whose pension benefit liabilities are to be assumed by the MTA
Plan as described in this Section 2.4.


(f)            Prior
to and as a condition to the Parties’ obligation to close the transactions
involving Command contemplated hereby, the MTA Bus Company, the MTA, the
Trustees of the Command Non-Union Retirement Plan, and Command shall have
entered into a Pension Agreement providing for, all as set forth in the Pension
Agreement, (A) the merger of the Command Non-Union Retirement Plan into the MTA
Plan; (B) the transfer of all assets of the Command Non-Union Retirement Plan
to the MTA Plan; (C) the assumption by the MTA Pension Plan of liabilities of
the Command Non-Union Retirement Plan; (D) the transfer of appropriate records
of the Command Non-Union Retirement Plan to the MTA Plan; and (E) agreed upon
representations and warranties.


(g)           Prior
to and as a condition to the Parties’ obligation to close the transactions
involving Command contemplated hereby, the MTA shall have amended the MTA Plan
so that effective upon the transfer of assets from the Command Non-Union
Retirement Plan, the MTA Plan (i) provides that Eligible Command Beneficiaries
be credited with all service with a Transit Alliance Company or an affiliate of
a Transit Alliance Company for purposes of vesting, eligibility and benefit
accrual; and (ii) provides for benefits for Eligible Command Beneficiaries as
of the Applicable Transition Date on substantially the same terms and
conditions as the Command Retirement Plan provided as of such Transition Date.
“Eligible Command Beneficiaries” refers collectively to any individual who,
immediately prior to the Applicable Transition Date, is receiving benefits or
is or may be entitled to benefits under the Command Retirement Plan, whether or
not such individual is an MTA Transit Alliance Company



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Employee, and each
such individual’s beneficiaries, whose pension benefit liabilities are to be
assumed by the MTA Pension Plan as described in this Section 2.4.


(h)           Prior
to and as a condition to the Parties’ obligation to close the transactions
involving Triboro contemplated hereby, the MTA Bus Company, the MTA, the
Trustees of the Triboro Non-Union Retirement Plan and Triboro shall have
entered into a Pension Agreement providing for, all as set forth in the Pension
Agreement, (A) the merger of the Triboro Non-Union Retirement Plan into the MTA
Plan; (B) the transfer of all assets of the Triboro Non-Union Retirement Plan
to the MTA Plan; (C) the assumption by the MTA Pension Plan of liabilities of
the Triboro Non-Union Retirement Plan; (D) the transfer of appropriate records
of the Triboro Non-Union Retirement Plan to the MTA Plan; and (E) agreed
upon representations and warranties.


(i)            Prior
to and as a condition to the Parties’ obligation to close the transactions
involving Triboro contemplated hereby, the MTA shall have amended the MTA Plan
so that effective upon the transfer of assets from the Triboro Non-Union
Retirement Plan, the MTA Plan (i) provides that Eligible Triboro Beneficiaries
be credited with all service with a Transit Alliance Company or an affiliate of
a Transit Alliance Company for purposes of vesting, eligibility and benefit
accrual; and (ii) provides for benefits for Eligible Triboro Beneficiaries as
of the Applicable Transition Date on substantially the same terms and
conditions as the Triboro Non-Union Retirement Plan provided as of such
Transition Date. “Eligible Triboro Beneficiaries” refers collectively to any
individual who, immediately prior to the Applicable Transition Date, is
receiving benefits or is or may be entitled to benefits under the Triboro
Non-Union Retirement Plan, whether or not such individual is an MTA Transit
Alliance Company



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Employee, and each
such individual’s beneficiaries, whose pension benefit liabilities are to be
assumed by the MTA Pension Plan as described in this Section 2.4.


(j)            Prior
to and as a condition to the Parties’ obligation to close the transactions
involving Jamaica contemplated hereby, the MTA Bus Company, the MTA, the
Trustees of the Jamaica Non-Union Retirement Plan, and Jamaica shall have
entered into a Pension Agreement providing for, all as set forth in the Pension
Agreement, (A) the merger of the Jamaica Non-Union Retirement Plan into the MTA
Plan; (B) the transfer of all assets of the Jamaica Non-Union Retirement Plan
to the MTA Plan; (C) the assumption by the MTA Pension Plan of liabilities of
the Jamaica Non-Union Retirement Plan; (D) the transfer of appropriate records
of the Jamaica Non-Union Retirement Plan to the MTA Plan; and (E) agreed upon
representations and warranties.


(k)           Prior
to and as a condition to the Parties’ obligation to close the transactions
involving Jamaica contemplated hereby, the MTA shall have amended the MTA Plan
so that effective upon the transfer of assets from the Jamaica Non-Union
Retirement Plan, the MTA Plan (i) provides that Eligible Jamaica Beneficiaries
be credited with all service with a Transit Alliance Company or an affiliate of
a Transit Alliance Company for purposes of vesting, eligibility and benefit
accrual; and (ii) provides for benefits for Eligible Jamaica Beneficiaries as
of the Applicable Transition Date on substantially the same terms and
conditions as the Jamaica Non-Union Retirement Plan provided as of such
Transition Date. “Eligible Jamaica Beneficiaries” refers collectively to any
individual who immediately prior to the Applicable Transition Date, is
receiving benefits or is or may be entitled to benefits under the Jamaica
Non-Union Retirement Plan, whether or not such individual is an MTA Transit
Alliance Company



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Employee, and each
such individual’s beneficiaries, whose pension benefit liabilities are to be
assumed by the MTA Pension Plan as described in this Section 2.4.


(l)            Prior
to and as a condition to the Parties’ obligation to close the transactions
contemplated hereby, the MTA shall have amended the MTA Plan so that effective
as of the first Transition Date, the MTA Plan (i) provides that Eligible Varsity
Beneficiaries be credited with all service with a Transit Alliance Company or
an affiliate of a Transit Alliance Company, including Varsity, for purposes of
vesting, eligibility and benefit accrual; (ii) provides for benefits for
Eligible Varsity Beneficiaries as of the Transition Date on the same terms and
conditions as the Retirement Plan for Certain Employees of GTJ & Affiliates
(the “GTJ Plan”) provided as of the Transition Date; and (iii) provides that,
an Eligible Varsity Beneficiary’s benefit under the MTA Plan will be reduced by
the amount of such Eligible Varsity Beneficiary’s accrued benefit under the GTJ
Plan as of the Transition Date. “Eligible Varsity Beneficiaries” refers
collectively to MTA Transit Alliance Company Employees who are employees of
Varsity and participants in the GTJ Plan on the Transition Date, the names of
whom are listed on Schedule 2.4(o) hereto (the “Varsity Participants”), and
their beneficiaries. Varsity and GTJ shall have provided or caused to have been
provided to MTA Bus Company and the MTA Plan a complete and accurate schedule
listing the name of each Varsity Participant and such participant’s (i) Social
Security Number, (ii) gender, (iii) date of birth, (iv) date of initial
participation in the GTJ Plan, and (v) years of service in the GTJ Plan as of
the Applicable Transition Date.


(m)          It
is the understanding, intent, and agreement of the Parties that the MTA Bus and
the MTA, or their successors, shall not permit or cause the MTA Plan to reduce
the accrued benefit as of the applicable Effective Date, of any Alliance
Company Plan Participant



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under any Alliance
Company Plan for any reason at any time except and only to the extent that the
Internal Revenue Service, or any court or other agency with jurisdiction over
the matter requires such a reduction; provided that each affected Alliance
Company Plan Participant be timely notified of any potential reduction and
shall have the right, at his or her own expense, to intervene in any such
action or appeal to prevent such reduction of his or her accrued benefit.


(n)           The
Transit Alliance Companies shall be responsible for the preparation of required
government reporting (including, but not limited to, IRS Forms W-2P, 1099 and
5500) with respect to the Transit Alliance Company Plans referenced in Sections
2.4(d), (f), (h), and (j) hereof for all periods prior to the Applicable
Transition Date and the City shall pay or reimburse the Transit Alliance
Companies for the reasonable fees, costs and expenses related thereto.


2.5           401(k)
Plans. Upon the request of the trustees or the administrator of any of the
401(k) Plans listed in this Section 2.5, the City shall arrange for MTA Bus to
facilitate the rollover of distributions from such 401(k) Plan into a 401(k)
plan or its equivalent to be offered by the MTA or MTA Bus Company to
participants in such 401(k) Plan. The 401(k) Plans are: (i) the A.T.U. Local
1179 and Green Bus Lines, Inc. 401(k) Plan; (ii) the ATU Local 1181 and Command
Bus Company, Inc. 401(k) Plan; (iii) the T.W.U.–N.Y.C. Private Bus Lines 401(k)
Savings Plan; (iv) the GTJ & Affiliates 401(k) Plan; and (v) the Jamaica
Buses, Inc. 401(k) Plan. Any rollover or transfer of participant loans, if any,
shall be subject to MTA approval and after-tax contributions, if any, may not
be rolled over or transferred. The City shall pay charges, if any, that are
agreed upon charges (set forth in Exhibit 6 to this Agreement) associated with
the rollovers or distributions from the applicable 401(k) plan.


 


 



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ARTICLE III:  MTA BUS COMPANY


3.1                                 Cooperation.
During the period after the execution of this Agreement and before the
Applicable Transition Date, each Transit Alliance Company, Varsity and GTJ will
cooperate in good faith with the City and the MTA Bus Company in order to
facilitate the MTA Bus Company being able to provide bus service beginning on
the Applicable Transition Date; provided that the foregoing shall not require
any Transit Alliance Company to make any changes to its business operations and
access to employees shall be at the applicable bus depot and subject to
employee time availability, the applicable Transit Alliance Company’s bus
operations and maintenance of good labor relations. To the extent that MTA Bus
Company elects to enter any applicable bus depot prior to the Applicable
Transition Date, MTA Bus Company shall assume all risks associated with such
entrance and performance, and the City shall indemnify and hold harmless the
applicable Transit Alliance Company from any and all claims, losses and damages
arising out of such entrance. Throughout this period, and subject to the
foregoing, each Transit Alliance Company, Varsity, and GTJ shall provide the
MTA Bus Company with reasonable access to its facilities, records, and
employees on prior notice at agreed upon times during regular business hours,
provided however that the MTA Bus Company shall not remove any records or any
copies of records from the premises without the applicable Transit Alliance
Company’s written permission until after the Applicable Transition Date. Each
Transit Alliance Company shall provide such information, data and technical
assistance as is reasonably required by the City’s and the MTA’s
representatives in order to accomplish the technical changes, staff acquisition
and training as may be necessary to assure uninterrupted bus service to begin
immediately after the Applicable Transition Date.


 



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3.2                                 Assignment
of Licensed Systems. As set forth in Section 1.1(b)(x), the acquisition
does not include third-party software, information, accounting, or payroll
systems licensed rather than owned by the Transit Alliance Companies, including
any software systems or modifications/enhancements owned by Varsity or GTJ
(“Licensed Systems”). The Parties will explore the possibility of the City
and/or the MTA Bus Company obtaining licenses or other authorization to use
such Licensed Systems. If requested, the Transit Alliance Companies will
consent to an assignment of such Licensed Systems to the City and/or the MTA
Bus Company without further compensation to the Transit Alliance Companies, but
only to the extent that any such assignment does not interfere, limit or
ultimately cause the Transit Alliance Companies or their subsidiaries,
affiliates or successor(s) to forfeit any rights to use or continue to use the
Licensed Systems. Any assignment or authorization to use Licensed Systems owned
by Varsity or GTJ is contingent upon the City and Varsity and/or GTJ reaching
an agreement on appropriate compensation to be paid by the City to Varsity or
GTJ.


3.3                                 Assignment
of Contracts Other Than Licensed Systems. Except as provided in Section
3.2, the Transit Alliance Companies will endeavor to make its vendors available
to the MTA and will consent to assignment of its contracts to the MTA after the
Applicable Transition Date upon request by the MTA. Effective on the Applicable
Transition Date, the City shall assume or shall cause the MTA to assume all the
Transit Alliance Companies’ obligations under the contracts related to the
Transit Alliance Companies’ ordinary course of operations and set forth on Exhibit
7 hereto. Exhibit 7 shall be agreed upon prior to each Applicable
Closing Date. Each contract listed on Exhibit 7 is a valid and binding
agreement of the applicable Transit Alliance Company and is in full force and
effect. Except as otherwise provided in Exhibit 7, there has been no
breach or default by a Transit Alliance


 



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Company
under any Contract listed on Exhibit 7 except for breaches or defaults
that have been cured, or waived, or are not material.


3.4                                 Mass
Transportation Lease and Service Agreement. The Mass Transportation Lease
and Service Agreement between the City and a Transit Alliance Company relating
to the lease of buses, project equipment and/or project vehicles (collectively “Buses”)
from the City to the applicable Transit Alliance Company shall terminate at
11:59 PM on the Applicable Transition Date provided that the City shall provide
to the applicable Transit Alliance Company a release and waiver as contemplated
by Section 4.2(e) hereof. The Transit Alliance Companies shall return all Buses
to the City on that date at the appropriate depot. Prior to the Applicable
Transition Date, the Parties will discuss how the MTA Bus Company intends to
address the leasing of tires for the Buses; provided that no Transit Alliance
Company will be obliged to remove any Transit Alliance Company-owned or Transit
Alliance Companies -leased tires from the Buses. The City will arrange for the
MTA Bus Company to remove any Transit Alliance Company identification from each
bus after the Applicable Transition Date and prior to inception of its
operation by the MTA Bus Company.


3.5                                 Access
to Books and Records. Following the Applicable Transition Date, for a
period of six (6) years, the City, the MTA and/or the MTA Bus Company and their
respective counsel, accountants, and other representatives, will be permitted,
upon reasonable notice to the Transit Alliance Companies, during normal
business hours, reasonable access to the books, records, files, documents,
correspondence and other data pertaining to the Transit Alliance Companies’
operations (including the computer systems in which such records and other data
is stored) that are part of the Excluded Assets with respect to the period
prior to the Closing to the extent that such access may be reasonably required
by the City to facilitate (a) the


 



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investigation,
litigation and final disposition of any claims which are or have been made
against the Transit Alliance Companies (other than claims brought by the City,
MTA , or MTA Bus Company), or which are made against the City with respect to
Bus Service provide by the Transit Alliance Companies, or (b) insurance or
government audits. Such access shall include without limitation the right to
make copies of all such books, records, files, documents, correspondence and
other data. For such 6 year period, upon reasonable notice, the Transit
Alliance Companies or their successor shall make reasonably available at their
sole expense, without charge to the City or MTA Bus Company, employees with
knowledge of such records (including computer records) for purpose of data
retrieval and records assembly for the foregoing purposes, and shall make
reasonable office space available at a facility in which the City or MTA Bus
Company and/or its representatives can review and assemble the applicable
records and data. For a period of six (6) years after the Closing, the Transit
Alliance Companies or their successor will not dispose of any such books,
records, files, records, correspondence and other data (including data stored
in electronic form) without giving 30 days prior written notice to the City and
MTA Bus Company and providing the opportunity for the City and MTA Bus Company
to examine and take possession of such books, records, files, documents,
correspondence, and data.


ARTICLE IV: CLOSING


4.1                                 The
Closing.    (a)  There
shall be a closing with respect to this Agreement for each Transit Alliance
Company (individually, a “Closing” and collectively, the “Closings”). All Closings
shall take place at the offices of the New York City Law Department, 100 Church
Street, New York, New York, at 10:00 a.m., and the Closing for (i) Command
shall be on December 2, 2005; (ii) for Green shall be on January 6, 2006; (iii)
for Jamaica shall be on January 27, 2006; and (iv) for Triboro shall be on
February 17, 2006; or such other places, times


 



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and
dates as the Parties may agree. The actual time and dates of the Closings for
each of the respective Closings are each herein referred to as the “Applicable
Closing Date(s).”  The Parties agree to
use their best efforts to cause each Applicable Closing Date to occur as soon
as practicable consistent with the provisions of this Agreement.


(b)                                 If one or more Closings do not occur on their
respective Applicable Closing Date due to the entry of an order in the Andre
Matter, enjoining one or more of the Parties from taking actions contemplated
herein and thereby delaying the occurrence of any Applicable Transition Date,
then within thirty (30) days of the earliest to occur of: (i) the last date to
appeal such order, if no notice of appeal is filed; or (ii) the final and
non-appealable resolution of the validity of such order (whether upholding or
reversing the grant of such relief (the “Final Closing Date”, as the case may
be), the Parties shall close the transactions contemplated by this Agreement
without any further extension of time. In the event of an injunction that
delays the Applicable Transition Date, the City shall pay the Transit Alliance
Companies in accordance with the terms of the operating assistance agreements,
as currently applied by the Parties, the following amounts for the use of the
applicable bus depot facility:


·      Triboro: 
$215,416.67/month


·      Green; 
(both facilities combined): $283,333.34/month


·      Jamaica: 
$126,250.00/month


(the
“Deemed Rent”) All payments on account of Deemed Rent shall commence on the
first day of the first month immediately following the date that would have
been the Applicable Transition Date for each of the Transit Alliance Companies
but for the imposition of the injunction and shall continue to be paid during
the pendency of the injunction.


 



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4.2                                 Deliveries
by the City. On the terms and subject to the conditions of this Agreement,
at each Closing, for the Transit Alliance Company that is the subject of the
Closing, the City shall deliver to such Transit Alliance Company the following:


(a)                                  The
Purchase Price in accordance with Section 1.3(e) by wire transfer pursuant to
wire transfer instructions provided by each Transit Alliance Company:


(b)                                 Good
and sufficient instruments of assumption of the Assumed Liabilities, in form
and substance reasonably satisfactory to such Transit Alliance Company;


(c)                                  A
certificate of an officer of the City that all actions by the MTA, the MTA Bus
Company, and the City required to be undertaken prior to the Closing have been
fully performed, including without limitation all actions required by Section 2
hereof;


(d)                                 Instruments
of release and waiver regarding the matters contemplated by Sections 1.2 and
3.3 above substantially in the form of Exhibit 8 hereto;


(e)                                  All
payments related to the applicable Real Property Lease which are due and
payable on the Applicable Closing Date.


(f)                                    Copies
of all environmental assessment studies obtained by the City with respect to
any of the Real Property, including without limitation, all Phase I studies;
and


(g)                                 Such
other instruments or documents, in form and substance reasonably acceptable to
such Transit Alliance Company, as may be necessary to effect the Closing.


4.3                                 Deliveries
by the Transit Alliance Companies. On the terms and subject to the
conditions of this Agreement, at each Closing, the applicable Transit Alliance
Company shall deliver to the City the following:


(a)                                  Good
and sufficient bills of sale and instruments of assignment and transfer,
conveying, assigning and transferring to the City good and marketable title to
the


 



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Acquired
Assets of such Transit Alliance Company consistent with the provisions of
Section 1.1 of this Agreement;


(b)                                 Evidence
of shareholder approval of this Agreement and the transactions contemplated
hereunder;


(c)                                  Such
other instruments or documents in form and substance reasonably acceptable to
the City, as may be necessary to effect the Closing.


4.4                                 Non-Union
Pension Agreements And Other Pre-Requisites to Closing. On the terms and
subject to the conditions of this Agreement, each Closing shall not occur prior
to (i) the execution of applicable non-union pension agreements in accordance
with Section 2.4, (ii) the applicable amendment of the MTA Plan in accordance
with Section 2.4, (iii) the execution and delivery of the Real Property Leases
described in Section 1.2 (c) hereof, and (iv) the occurrence of all actions
that pursuant to the terms of this Agreement are to occur prior to the Closing.


ARTICLE
V:  REPRESENTATIONS AND WARRANTIES


5.1                                 Operating
Authority Beyond November 30, 2005. The Parties acknowledge that the legal
authority for the Transit Alliance Companies to continue to operate Bus Service
in the City after November 30, 2005 is dependent upon the adoption of a local
law authorizing the New York City Department of Transportation, subject to the
approval of the New York City Franchise and Concession Review Committee, or
such other action that the City determines is sufficient to extend the Transit
Alliance Companies’ operating authority beyond November 30, 2005. If necessary,
the City shall diligently pursue the extension of the Transit Alliance
Companies’ operating authority, subject to the same terms and conditions as the
Transit Alliance Companies are currently operating under.


 



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5.2                                 Representations
and Warranties of the Transit Alliance Companies. Each Transit Alliance
Company represents and warrants to the City as follows:


(a)                                  Due
Organization. The Transit Alliance Company is a corporation duly
incorporated, validly existing and in good standing under the laws of the State
of New York and has full corporate power and authority to own all of its
properties and assets and to carry on its businesses as they are now being
conducted.


(b)                                 Authorization
and Validity of Agreement. The Transit Alliance Company has all requisite
corporate power and authority to execute and deliver this Agreement and,
subject to Section 5.1 above, to consummate the transactions contemplated
hereunder. The execution, delivery and performance by the Transit Alliance
Company of this Agreement and the consummation by the Transit Alliance Company
of the transactions contemplated hereby have been duly and validly authorized
by all necessary corporate action and no other corporate action on the part of
the Transit Alliance Company is necessary to authorize the execution, delivery
and performance of this Agreement and the consummation by the Transit Alliance
Company of the transactions contemplated hereby, except the consent of the
shareholders of the Transit Alliance Company. Each Transit Alliance Company
will diligently take such steps as are necessary to obtain shareholder
approval. This Agreement has been duly executed and delivered by the Transit
Alliance Company and, assuming the due authorization, execution and delivery
hereof by the City, is a valid and legally binding obligation of the Transit
Alliance Company, enforceable against the Transit Alliance Company in
accordance with its terms, except to the extent that its enforceability may be
limited by bankruptcy, insolvency, reorganization, moratorium or other laws
relating to or affecting creditors’ rights generally and by general equity
principles regardless of whether such enforceability is considered in a
proceeding in equity or at law.


 



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(c)                                  No
Conflict; Consents. The execution, delivery and performance by the Transit
Alliance Company of this Agreement and the consummation by the Transit Alliance
Company of the transactions contemplated hereby:  (i) will not violate, or result in the
violation of, any provision of any judgment or decree specifically applicable
to the Transit Alliance Company; and (ii) subject to the approval of
shareholders, will not violate any provision of the certificate of
incorporation or by-laws or other organizational documents of the Transit
Alliance Company.


(d)                                 Title
to Acquired Assets; Liens and Encumbrances. As of the date of this
Agreement, the Transit Alliance Company has good, valid and marketable title to
all the Acquired Assets of the Transit Alliance Company and all such Acquired
Assets are free and clear of all Liens except (i) liens that will be eliminated
prior to or at the Closing, (ii) any interest in the Acquired Assets already
owned by the City, (iii) liens for current taxes not yet due and payable, (iv)
liens imposed by law, (v) the Assumed Liabilities and liens related thereto,
(vi) other minor imperfections in title not material in nature or amount and
not materially detracting from the value or impairing the use of the property
subject thereto (the types of liens identified in clauses (i) — (vi) above
being herein referred to as “Permitted Liens”).


(e)                                  Legal
Proceedings. To the actual knowledge of the Transit Alliance Company and
except as set forth on Exhibit 9 hereto, (i) there is no action,
proceeding or governmental investigation currently pending against the Transit
Alliance Company which seeks to restrain or enjoin the consummation of the
transactions contemplated by this Agreement; (ii) there is no action,
proceeding or governmental investigation currently pending against the Transit
Alliance Company which could reasonably be expected to have a Material Adverse
Effect; and (iii) the Transit Alliance Company is not in violation of any term of
any judgment,


 



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decree,
injunction or order entered by any court of competent jurisdiction and
outstanding against it, which violation would have a Material Adverse Effect.
For purposes of this Agreement, “Material Adverse Effect” means any effect that
is, either individually or together with other effects, materially adverse to
the assets, properties, business, operations, net income or financial condition
of the Transit Alliance Company’s bus operation, taken as a whole.


(f)                                    Environmental
Matters. To the actual knowledge of the Transit Alliance Company, there are
no Environmental Liabilities (as defined below) relating to the Transit
Alliance Company’s bus operation or the Acquired Assets except those are set
forth in the attached Exhibit 10. “Environmental Liabilities” means any
and all liabilities which (i) arise under Environmental Laws and (ii) are based
upon actions occurring or conditions existing on or prior to the applicable
Transition Date. As used in this Agreement, “Environmental Laws” means any and
all applicable federal, state, local or municipal laws, rules, orders,
regulations, statutes, ordinances, codes, injunctions, orders or decrees
regulating or imposing liability or standards of conduct concerning pollution,
hazardous materials or protection of the environment, in effect as of the date
of this Agreement.


(g)                                 Absence
of Certain Liabilities and Changes. From the date of this Agreement and
through the Applicable Transition Date, none of the Transit Alliance Companies,
Varsity or GTJ will (i) grant (or enter into an agreement to grant) any general
increase (“general increase”, for purposes hereof, means an increase generally
applicable to a class or group of employees of a company but does not include
increases granted to individual employees for merit, length of services, change
in position or responsibility or other reasons applicable to specific employees
and not generally to a class or group) in any rate or rates of salaries or
compensation to directors, officers or employees or agents or any specific
increase in the salary


 



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or
compensation to any officer, agent or employee; (ii) fail to inform the City of
any material damage, destruction or loss to any Acquired Asset, whether or not
covered by insurance; or (iii) establish any new plan, program or arrangement
or, except as expressly provided for hereby, adopt a material modification or
amendment or provision for material increases in any existing plan, program or
arrangement, or written interpretation or announcement by a Transit Alliance
Company, Varsity or GTJ under any Plan which would materially increase the
expense of maintaining such Plan. For purposes of this section, “Plan” means
any plan, program, policy, fund, arrangement, or agreement providing for
benefits for employees of a Transit Alliance Company, Varsity or GTJ,
including, without limitation, any “employee benefit plan” as that term is
defined in Section 3(3) of the ERISA, all retirement, pension benefit, profit
sharing, medical, dental, disability, vacation, hospitalization, incentive,
bonus, executive compensation, deferred compensation, and any other similar
material fringe or employee benefit plan, fund, program or arrangement, whether
or not covered by ERISA, which is maintained by a Transit Alliance Company,
Varsity or GTJ for the benefit of, or relates to, any or all present or former
employees or directors of such Transit Alliance Company, Varsity or GTJ.
Notwithstanding the foregoing, the parties hereto recognize and agree that
certain Transit Alliance Companies are contributing employers to either
multi-employer or single employer pension and health and welfare plans for such
Transit Alliance Companies’ unionized employees, and that the boards of
trustees for such plans have the authority to modify or amend the plans;
provided, however, to the extent appropriate, such Transit Alliance Companies
shall advise the trustees that it has appointed that it prefers that such
trustees vote against any such modification or amendment that increases the
cost of any such multi-employer plan; and provided further that, to the extent
practicable, the Transit Alliance Companies shall give the City and the MTA
advance written


 



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notice
of any modification or amendment and, unless MTA Bus Company otherwise agrees,
if such modification or amendment increases any cost of MTA Bus Company or the
MTA with respect to any Transit Alliance Company Eligible Beneficiaries, MTA
Bus Company and the MTA shall not be obligated to provide or fund such
increase.


(h)                                 No
Broker. None of the Transit Alliance Companies, Varsity or GTJ have
employed or utilized the services of any broker, finder, or investment banker
who is entitled to a commission in connection with this Agreement or the
transactions contemplated by it.


(i)                                     Licenses
and Permits. Exhibit 11 is a list, together with a brief
description, of all licenses and permits material to the Transit Alliance
Companies’ business, issued or registered in the name of any Transit Alliance
Company. Except as set forth in Exhibit 11, all licenses held by any Transit
Alliance Company are in full force and effect.


(j)                                     Each
Transit Alliance Company has made all required contributions to their
respective pension plans and all required contractual contributions to their
respective health trusts.


5.3                                 Representations
and Warranties of the City. The City represents and warrants to the Transit
Alliance Companies as follows:


(a)                                  Due
Organization and Power of the City. The City is a municipal corporation,
duly established and validly existing under the constitution and laws of the
State of New York and The City of New York and is authorized by the laws of the
State of New York and The City of New York to enter into this Agreement and
perform its obligations hereunder.


(b)                                 Authorization
and Validity of Acquisitions. The City has all requisite power and
authority to execute and deliver this Agreement and to consummate the
transactions contemplated hereunder. The execution and delivery by the City of
this Agreement have been


 



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duly
authorized by all necessary action, no other action on the part of the City is
necessary to authorize the performance by the City of this Agreement and the
consummation by it of the transactions contemplated hereby. This Agreement has
been duly executed and delivered by the City, and, assuming the due authorization,
execution and delivery by the Transit Alliance Companies, is a valid and
legally binding obligation of the City to the limit of the available
appropriation and enforceable against the City in accordance with its terms,
except to the extent that enforceability may be limited by bankruptcy,
insolvency, reorganization, moratorium, or other laws relating to or affecting
creditors’ rights generally and by general equity principles, regardless of
whether such enforceability is considered in a proceeding in equity or law.


(c)                                  No
Conflict; Consents. The execution, delivery and performance by the City of
this Agreement and the consummation by the City of the transactions
contemplated hereby:  (i) will not
violate, or result in the violation of, any provision of any judgment or decree
specifically applicable to the City;  and
(ii) will not violate any provision of the New York City Charter, the New York
City Administrative Code, or the Rules of the City of New York.


(d)                                 Legal
Proceedings. To the actual knowledge of the City, except as set forth in
Exhibit 12, there is no action, proceeding or governmental investigation
currently pending against the City which seeks to restrain or enjoin the
consummation of the transactions contemplated by this Agreement.


ARTICLE VI: COVENANTS AND
TRANSACTIONS PRIOR TO CLOSING


6.1                                 Conduct
of the Business Prior to the Applicable Transition Date. Each Transit
Alliance Company agrees that, except as permitted, required or specifically
contemplated by this Agreement or as otherwise consented to or approved in
writing by the City, during the period commencing on the date of this Agreement
and ending at the Applicable Transition Date:


 



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(a)                                  The
bus operations shall be conducted only in the ordinary course of business
consistent with past practice;


(b)                                 Subject
to the following provisos, each Transit Alliance Company will use reasonable
efforts to preserve intact its business organization, to keep available the
services of its present officers and key employees, and to preserve the good
will of those having business relationships with them, provided, however, that
none of the Transit Alliance Companies may increase compensation or benefits or
pay any special bonuses and provided further that none of the Transit Alliance
Companies shall be obligated to take any steps outside of the ordinary course
of their business in respect of the foregoing obligations;


(c)                                  Each
Transit Alliance Company shall promptly notify the City in writing of, and
furnish to City information reasonably requested by the City with respect to
them individually, the occurrence of any event or the existence of any state of
facts that would result in any of the Transit Alliance Company’s
representations and warranties not being true in all material respects;


(d)                                 Each
Transit Alliance Company shall maintain its books, accounts and records (manual
and automated) in the ordinary course, consistent with past practice, and make
no material change in the accounting methods or practices with respect to their
business or the Acquired Assets; and


(e)                                  Each
Transit Alliance Company, prior to undertaking any negotiation or discussion
with any labor union as to recognition, labor contracts, or other matters of
like import relating to its business, will first notify and consult with the
City, the MTA and the MTA Bus Company and furnish to the City, the MTA and/or
the MTA Bus Company such information relating thereto as the City, the MTA,
and/or the MTA Bus Company may reasonably request.


 



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6.2           Further
Actions. Subject to the terms and conditions of this Agreement, each of the
Parties agrees to use its best efforts to take, or cause to be taken, all
actions and to do, or cause to be done, all things necessary, proper or
advisable to consummate and make effective the transactions contemplated by
this Agreement, including, but not limited to, using its best efforts:  (i) to obtain any licenses, permits,
consents, approvals, authorizations, qualifications and order of governmental
authorities as are required in connection with the consummation of the
transactions contemplated hereby; (ii) to effect all necessary registrations
and filings; (iii) to defend any lawsuits or other legal proceedings, whether
judicial or administrative, challenging this Agreement or the consummation of
the transactions contemplated hereby; and (iv) to furnish to each other such
information and assistance as is reasonably requested in connection with the
foregoing. Without limiting the generality of the foregoing, from and after the
date hereof and following the Closing, the Parties shall execute and deliver
such further documents and instruments and do such other acts and things as the
Transit Alliance Companies or the City, as the case may be, may reasonably
request in order to effectuate the transactions contemplated by this Agreement.


ARTICLE VII:  CONDITIONS PRECEDENT


7.1           Conditions
Precedent to the Obligation of the Transit Alliance Companies. The
obligations of each Transit Alliance Company to consummate the transactions
contemplated by this Agreement are subject to the satisfaction (or waiver by
such Transit Alliance Company) at or prior to the Closing of each of the
following additional conditions:


(a)           Accuracy of Representations and
Warranties. The representations and warranties of the City contained herein
shall have been true and correct in all material respects on and as of the date
thereof and (except to the extent such representations and warranties speak


 



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of an
earlier date) shall continue to be true and correct in all material respects as
of the Closing Date, except as otherwise contemplated by this Agreement.


(b)           Performance
of Agreement. The City shall have performed in all material respects all
obligations and agreements, and complied in all material respects with all
covenants and conditions, contained in this Agreement to be performed or
complied with by it prior to or on the Closing Date, and each of the MTA and
MTA Bus Company shall have performed and undertaken all actions and matters
contemplated by this Agreement to be performed by it prior to the Closing.


7.2           Conditions
Precedent to Obligation of the City. The obligations of the City to
consummate the transactions contemplated by this Agreement are subject to the
satisfaction (or waiver by the City) at or prior to the Closing of each of the
following additional conditions:


(a)           Accuracy
of Representations and Warranties. The representations and warranties of
the Transit Alliance Companies and Varsity Transit contained herein shall have
been true and correct in all material respects on and as of the date hereof and
(except to the extent such representations and warranties speak of an earlier
date) shall continue to be true and correct in all material respects as of the
Closing Date, except as otherwise contemplated by this Agreement.


(b)           Performance of Agreement. The
Transit Alliance Companies shall have performed and complied in all material
respects with all obligations and agreements, and complied in all material
respects with all covenants and conditions, contained in this Agreement to be
performed or complied with by them individually prior to or on the Closing
Date.


 



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ARTICLE VIII:  EXPIRATION OF THE TRANSIT ALLIANCE COMPANIES’

OPERATING AUTHORITY


8.1           The City will promptly pay those
ongoing operating expenses generally referred to as “break-even” payments for
any period of time after the Applicable Transition Date, within 30 days of the
Transit Alliance Companies’ submission of reasonable and customary
documentation of such expenses (i.e., the level and type of documentation that
is consistent with what is currently required or customarily provided and
accepted under the operating assistance arrangements between the Parties). In
addition, the City will promptly pay, within 30 days of the Transit Alliance
Companies’ submission of reasonable documentation, (i) post-termination
expenses in accordance with current City procedures, including without
limitation retroactive worker’s compensation adjustments, insurance premiums
and cancellation payments, if any; and (ii) operating expenses incurred or paid
by the Transit Alliance Companies after the Closing which are reimbursable in
accordance with current City procedures that the Transit Alliance Companies
learns about or incurs upon or after the Closing, and which the City
acknowledges and agrees shall include without limitation final taxes,
preparation of final payroll records and financial statements,  post-termination expenses related to health
coverage, or any COBRA related expenses for those who do not obtain such
coverage from MTA Bus Company benefit plans, and such other expenses related to
the wind-down of the Transit Alliance Companies’ business as the Parties may
agree.


8.2           Release by the Transit Alliance
Companies. In consideration of the payments and performance of the
obligations set forth in this Agreement, effective on the Applicable Transition
Date, and subject to the other terms and conditions of this Agreement, each
Transit Alliance Company, Varsity and GTJ releases the City and all of the City’s
present


 



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or
former agents, employees, subdivisions, agencies or departments from any and
all causes of action, suits, debts, claims, sums of money, accounts, balances,
retainages, reckonings, bonds, bills, covenants, contracts, agreements,
controversies, promises, variances, trespasses, judgments, executions and
demands whatsoever, in law, admiralty and in equity, which such Transit
Alliance Company, Varsity and GTJ and their successors and assigns ever had,
now has or hereafter can, shall or may have, for, upon, or by reason of any
matter, cause or thing whatsoever (i) from the beginning of the world until the
Applicable Transition Dates and arising out of the Transit Alliance Company,
Varsity and GTJ providing bus service pursuant to any and all operating
authority granted by the City of New York including any agreement between the
Transit Alliance Company and the City for reimbursement of operating expenses
or for any monies due or to become due thereunder, except for the payments in
accordance with Section 8.1 above; and (ii) from the beginning of the world
until the applicable Transition Dates and arising out of expiration and/or
termination of the operating authority granted the Transit Alliance Company by
the City for the operation of buses on the streets of the City; but expressly
excluding from the terms of this release, all obligations of the City, MTA and
MTA Bus Company under this Agreement, the Real Property Leases, the Pension
Agreements, and the transactions contemplated hereby and thereby.


8.3           Release by City. In
consideration of the Acquired Assets and performance of the obligations set
forth in this Agreement, effective upon the Applicable Transition Date and
subject to the other terms and conditions of this Agreement, the City releases each
Transit Alliance Company, Varsity and GTJ and their respective directors,
officers and employees, from any and all causes of action, suits, debts,
claims, sums of money, accounts, balances, retainages, reckonings, bonds,
bills, covenants, contracts, agreements, controversies, promises, variances,


 



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trespasses,
judgments, executions and demands whatsoever, in law, admiralty and in equity,
which the City and its successors and assigns ever had, now has or hereafter
can, shall or may have, for, upon, or by reason of any matter, cause or thing
whatsoever (i) from the beginning of the world until the Transition Date and
arising out of the Transit Alliance Company providing bus service pursuant to
any and all operating authority granted by the City of New York including any
agreement between the Transit Alliance Company, Varsity and GTJ and the City
for reimbursement of operating expenses or for any monies due or to become due
thereunder, except for the payments in accordance with Section 8.1 above; and
(ii)  from the beginning of the world
until the Applicable Transition Date and arising out of expiration and/or
termination of the operating authority granted the Transit Alliance Company by
the City for the operation of buses on the streets of the City; but expressly
excluding from the terms of this release, all obligations of the Transit
Alliance Company, Varsity and GTJ under this Agreement, the Real Property
Leases, the Pension Agreements and the transactions contemplated hereby and
thereby.


8.4           Discontinuance of Legal
Proceedings. In consideration of this Agreement, on the last of the
Applicable Closing Dates or the Final Closing Date, as the case may be, (the
“Operative Date”) the Transit Alliance Companies, who are plaintiffs in Green Bus Lines, Inc., et al. v. The City of New York, et al., Index
No. 18770/04, currently pending in Supreme
Court of the State of New York, Queens County (“State Court Green Bus
Litigation”), and appellants in Green Bus Lines, Inc. v.
The City of New York, Docket No. 05-CV-1399, currently pending in
the United States Court of Appeals for the Second Circuit (“Federal Court Green
Bus Litigation”), agree (1) to withdraw all motions and discontinue, with
prejudice, all claims or causes of action in the State Court Green Bus Litigation,
and (2) to withdraw their appeal in the Second Circuit in the Federal Court
Green Bus Litigation. On the Operative Date, the Parties to this Agreement


 



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who
are also parties in the State Court Green Bus Litigation and the Federal Court
Green Bus Litigation agree to have their counsel execute stipulations of
discontinuance with prejudice and without costs in those matters in the forms
annexed hereto as Exhibits 13 and 14. Such stipulations shall be so-ordered,
where appropriate, in the respective tribunals in which such matters are
pending (with notification to the Appellate Division Second Department to the
extent any matter is pending at the Second Department).


8.5           No Admission or Prejudice.
Nothing in this Agreement is or shall be deemed to be an admission on the part
of the City that the City has any liability to the Transit Alliance Companies,
Varsity or GTJ for any claims to compensation from the City arising out of the
expiration and/or termination of any franchise or operating authority granted the
Transit Alliance Companies by the City for the operation of buses on the
streets of the City, and/or the City’s or the MTA’s commencement of operations
in the area and/or over the routes operated by the Transit Alliance Companies
or provision of service comparable to that provided by the Transit Alliance
Companies and any related activities. Nothing in this Agreement is or shall be
deemed to be an admission by the Transit Alliance Companies or the City as to
the actual value of the Transit Alliance Companies’ assets that are anticipated
to be acquired by the City, and the Transit Alliance Companies’ willingness to
provide access to the City, the MTA and the MTA Bus Company prior to the
Closing of its books, records, facilities and employees, as contemplated by
section 3.1 above, shall not operate to prejudice any the Transit Alliance
Companies claim for compensation from the City arising out of the expiration
and/or termination of any franchise or operating authority granted the Transit
Alliance Companies by the City for the operation of buses on the streets of the
City, and/or the City’s or the MTA’s use of such books, records, facilities and
employees and commencement of operations in the area and/or


 



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over the routes
operated by  the Transit Alliance Companies
or provision of service comparable to that provided by the Transit Alliance
Companies and any related activities. Nothing in this Agreement is or shall be
deemed to be an admission on the part of the City or the Transit Alliance
Companies that either the City or the Transit Alliance Companies has any
liability under Section 13(c).


ARTICLE IX:  MISCELLANEOUS


9.1           Fees
and Expenses. Except as specifically provided elsewhere in this Agreement,
whether or not the transactions contemplated hereby are consummated, each of
the Parties shall pay its own fees and expenses incident to the negotiation,
preparation and execution of this Agreement, including attorneys’, accountants’
and other advisors’ fees in connection with such negotiation, preparation and
execution. The City shall, however, 
reimburse the Transit Alliance Companies for reasonable fees and
expenses  incurred by it in connection
with pension and labor matters related to the transactions contemplated hereby
and/or incurred in connection with fulfilling its obligations pursuant to
Section 6.2 hereof. In addition, fees and expenses that pursuant to this
paragraph are to be borne by the Transit Alliance Companies without
reimbursement are not allowable expenses under the expense account for the
reimbursement of operating expenses.


9.2           Notices. All notices,
requests, demands, waivers and other communications required or permitted to be
given under this Agreement shall be in writing delivered (i) by hand, or (ii)
by facsimile with an additional copy to be sent by U.S. mail, and


 



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shall
be deemed to have been duly given or made when delivered by hand, or, in the
case of facsimile, when received by the addressee, addressed as follows:


If to the Transit Alliance Companies, Varsity or GTJ:


Jerome
Cooper


444 Merrick
Road, Suite 370


Lynbrook, New York 11563


With a copy to:


Douglas
A. Cooper


Ruskin
Moscou Faltischek, P.C.


1425
Reckson Plaza


15th
Floor, East Tower


Uniondale, New York 11556-1425


If to the City:


Mark
Page, Director


New
York City Office of Management and Budget


75
Park Place, 6th Floor


New York, New York 10007


With copies to:


Steven
Stein Cushman


Chief,
Contracts and Real Estate


New
York City Law Department


100
Church Street, Room 3-176


New
York, New York 10007


 


and


Tom
Savage, President


MTA
Bus Company


347
Madison Avenue


New York, New York 10017


or to such other persons
or addresses as any party shall specify as to itself by notice in writing to
the other Parties.


 



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9.3           Severability.
If any term or other provision of this Agreement is invalid, illegal or
incapable of being enforced by any rule of law, or public policy, all other
conditions and provisions of this Agreement shall nevertheless remain in full
force and effect so long as the economic or legal substance of the transactions
contemplated hereby is not affected in any manner adverse to any party. Upon
such determination that any term or other provision is invalid, illegal or
incapable of being enforced, the Parties hereto shall negotiate in good faith
to modify this Agreement so as to effect the original intent of the Parties as
closely as possible in an acceptable manner to the end that the transactions
contemplated hereby are fulfilled to the fullest extent possible.


9.4           Entire
Agreement. This Agreement (including the attached Exhibits) constitutes the
entire agreement between the Parties hereto and supersedes all prior agreements
and understandings, oral and written, between the Parties hereto with respect
to acquisition of the Acquired Assets and the commencement by the MTA Bus
Company of bus service in the areas currently served by the Transit Alliance
Companies.


9.5           Binding
Effect; Assignability. This Agreement shall inure to the benefit of and be
binding upon the Parties hereto and their respective successors and assigns.
This Agreement shall not be assigned by either of the Parties hereto without
the prior written consent of the other party.


9.6           No Third Party Beneficiaries.
Except as expressly provided in the following sentence, nothing in this
Agreement, expressed or implied, is intended to confer on any Person other than
the Parties hereto or their respective successors and assigns, any rights,
remedies, obligations or liabilities under or by reason of this Agreement.
Notwithstanding the foregoing, the Parties agree and acknowledge that the
Current Trustees of any Transit Alliance


 



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Company
Plan are third party beneficiaries of Section 1.5(a)(v) of this Agreement, but
that no other person is or shall be a third party beneficiary.


9.7           Amendment
and Waiver. This Agreement may not be amended, modified or supplemented
except by a written instrument authorized and executed on behalf of all the
Parties at any time prior to the Closing Date with respect to any of the terms
contained herein. No waiver by any party of any of the provisions shall be effective
unless explicitly set forth in writing and executed by the party so waiving.
Except as provided in the preceding sentence, no action taken pursuant to this
Agreement, including without limitation, any investigation by or on behalf of
any party, shall be deemed to constitute a waiver by the party taking such
action of compliance with any representations, warranties, covenants, or
agreements contained in this Agreement, and in any documents delivered or to be
delivered pursuant to this Agreement and in connection with the Closing. The
waiver by any Party of a breach of any provision of this Agreement shall not
operate or be construed as a waiver of any other or subsequent breach.


9.8           Section
Headings. The section headings contained in this Agreement are inserted for
reference purposes only and shall not affect the meaning or interpretation of
this Agreement.


9.9           Counterparts.
This Agreement may be executed in any number of counterparts, each of which
shall be deemed an original, and all of which together shall be deemed to be
one and the same instrument.


9.10         Governing Law. This Agreement
and the legal relations between the Parties shall be governed by and construed
in accordance with the law of the State of New York without regard to conflicts
of law principles.


 



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9.11         Venue.
The parties agree that any and all claims asserted arising under this Agreement
or related thereto shall be heard and determined either in the courts of the
United States located in New York City or in the courts of the State of New
York located in the City and County of New York.


9.12         Survival.
All obligations expressly contemplated to occur on or after the Closing or the
Transition Date, all indemnification and hold harmless provisions, and all
provisions which by their nature or the particular circumstances at issue can
reasonably only be fulfilled after the Closing, shall survive the Closing.


9.13         Allocation
of Purchase Price. The Purchase Price shall be allocated among the
Purchased Assets as determined by the Transit Alliance Companies in accordance
with Code Section 1060 and the applicable regulations and authorities
thereunder. The Transit Alliance Companies shall prepare and complete its
income tax returns and reports, including Internal Revenue Service Form 8594,
on a basis consistent with such allocations and the City shall not take a
position before any taxing authority or in any judicial proceeding that is in
any way inconsistent with such allocations.


9.14         Payments and reimbursement made
pursuant to the provisions of this Agreement that are not made within thirty
(30) days of written notice thereof together with


 



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backup
documentation customarily provided and accepted shall accrue interest at the
prime rate announced by JP Morgan Chase from time to time until paid in full.


IN
WITNESS WHEREOF, the Parties hereto have executed this Agreement as of the date
first above written.


 


 


	
  

  	
  GREEN BUS LINES, INC.

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
   

  	
  /s/ Jerome Cooper

  	
   

  
	
   

  	
   

  	
  Name:

  	
  Jerome Cooper

  	
   

  
	
   

  	
   

  	
  Title:

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  COMMAND BUS COMPANY, INC.

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
   

  	
  /s/ Jerome Cooper

  	
   

  
	
   

  	
   

  	
  Name:

  	
  Jerome Cooper

  	
   

  
	
   

  	
   

  	
  Title:

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  TRIBORO COACH CORP.

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
   

  	
  /s/ Jerome Cooper

  	
   

  
	
   

  	
   

  	
  Name:

  	
  Jerome Cooper

  	
   

  
	
   

  	
   

  	
  Title:

  	
   

  



 



 64
 






 



 


	
  

  	
  JAMAICA BUSES, INC.

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
   

  	
  /s/ Jerome Cooper

  	
   

  
	
   

  	
   

  	
  Name:

  	
  Jerome Cooper

  	
   

  
	
   

  	
   

  	
  Title:

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  VARSITY TRANSIT, INC.

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
   

  	
  /s/ Jerome Cooper

  	
   

  
	
   

  	
   

  	
  Name:

  	
  Jerome Cooper

  	
   

  
	
   

  	
   

  	
  Title:

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  GTJ CO., INC.

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
   

  	
  /s/ Jerome Cooper

  	
   

  
	
   

  	
   

  	
  Name:

  	
  Jerome Cooper

  	
   

  
	
   

  	
   

  	
  Title:

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  THE CITY OF NEW YORK

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
   

  	
  /s/ Marc V. Shaw

  	
   

  
	
   

  	
   

  	
  Name:

  	
  Marc V. Shaw

  	
   

  
	
   

  	
   

  	
  Title:

  	
  Deputy Mayor of Operations

  	
   

  
	
   

  	
   

  	
   

  
	
  Approved as to
  Form and

  	
   

  	
   

  
	
  Certified as to
  Legal Authority

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
  /s/ Steve Stein
  Cushman

  	
   

  	
   

  
	
  Acting
  Corporation Counsel

  	
   

  	
   

  



 



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