trussvillesupplyagreement

EX-10.05B 14 trussvillesupplyagmt.htm SERVICES AND MANAGEMENT AGREEMENT TRUSSVILLE trussvillesupplyagreement

Exhibit # 10.05b

Trussville

SUPPLY, SERVICES AND MANAGEMENT AGREEMENT

THIS SUPPLY, SERVICE AND MANAGEMENT AGREEMENT (hereinafter -Agreement")
is made and entered into as of the - day of _1 996, by and between Personal
Communications Spectrum V (hereinafter referred to as 'PCS') and COMPETITIVE
COMMUNICATIONS INC., a California Corporation D.B.A. Western Telephone and
Television (herein after referred to as "CCI").

WITNESSETH

WHEREAS, PCS holds a Telephone, or a Telephone / Cable Television License
Agreement, dated September 13, 1995, (hereinafter "License Agreement") executed
between CCI and Daniel /Rime I L-L C_ ("Owner"), and assigned by CCI to PCS for
the due consideration specified in the Purchase Agreement dated December ILI
995, to construct and operate a private telephone or a private telephone / cable
television system (hereinafter "System") with the Telecommunication Systems
specified in the Purchase Agreement and

WHEREAS, CCI has experience in planning, constructing and operating
telecommunication systems; and

WHEREAS, Investor desires to retain CCI to plan, construct, develop and
manage the operation of the System in conformance with said License Agreement.

NOW, THEREFORE, in consideration of the promises and the mutual
understanding herein contained, Investor and CCI hereby agree as follows:

1. Appointment of CCI for Supply, Service and Management

a. Subject to PCS ultimate supervision and control, CCI and
its contractors shall provide the following supply, services and management to
Investor in connection with the System:

(1) Take "turnkey" responsibility, for initial System purchase
in accordance with the Purchase Agreement, design and construction, including
selection and installation of all equipment and improvements necessary to
complete and maintain the System for each function; selection and installation
of all equipment and improvements necessary to complete and maintain the System
for each function; selection, and acquisition, design specification; negotiation
of interconnection, specification and selection of the System equipment;
contract evaluation, selection, and supervision: and pre-operational system
testing.

(2) Perform day-to-day System operations support, including
routine and emergency maintenance, evaluation of the System and interface performance;
monitoring of and compliance with federal, state and local requirements; and
incremental System expansion.

(3) Perform routine System management functions, including
selection and training of personnel; bookkeeping and accounting; preparation of reports
for Investor and preparation of recommended budgets for Investor's consideration.

(4) Keep PCS informed of the status of the System

b. PCS shall provide direct supervision of CCI where necessary,
useful or required by law. Investor shall identify a single point of contact for
CCI, and shall respond to M's inquiries or requests for direction in a timely fashion.
PCS shall maintain ultimate control over the License and the System, and shall
execute such documents which it finds acceptable as are necessary for the
purpose of this Agreement. Without prior approval from PCS, CCI shall not take
any action which will give it a prohibited ownership or financial interest in,
or de facto or dejure control over, the System, the License or the Licensee.

C. CCI shall perform system marketing support, including
selection, training a. and evaluation of sales agents; design, preparation, and
implementation of marketing campaigns; execution of CCI's subscriber policies;
negotiation and execution of license agreements; routing subscriber support and
record-keeping; sales, leasing and other distribution of subscriber billing and
collection for subscribers.

d. Notwithstanding anything to the contrary contained in this
Section 1, without the prior written consent of PCS, CCI shall not be authorized on
behalf of PCS to:

(1) sell, lease, trade, exchange or otherwise dispose of
any material capital asset of PCS*

(2) execute, certify and/or deliver any filings to or for
the FCC without the expressed consent of PCS, or;

(3) incur any expenses or make any capital expenditures
which results in the aggregate actual expenses or capital expenditure line item
exceeding PCS's approved budgeted amount for such expenses or capital expenditure
item.

d. All actions taken by CCI under the provisions of this
Section 1, shall be taken. As agent of PCS and all obligations or expenses incurred
hereunder shall be for the System's account, on behalf and at the expense
of, Investor, whether such obligations or expenses are incurred with
respect to independent third parties or with respect to affiliates M. Any
payments to be made by CCI hereunder with respect to Investor shall be made
from such sums as are available in one or more of the System's accounts of
Investor or as otherwise provided for herein.

e. Upon The termination of this Agreement for any reason
other than the assignment of transfer of control of PCS to CCI or CCI's unauthorized
expenditure in accordance with Section I c, above, Investor will reimburse
CCI for all costs and expenses which CCI has incur-red on behalf of PCS,
License or System in excess of payments which PCS has made To CCI

pursuant to Section 2 hereof

2. Compensation for Services.

As compensation for its continuous, acceptable services under
this Agreement, PCS shall pay CCI the following: For system operation as
specified including: billing, maintenance, marketing, subscriber services
and other daily management responsibilities, the Company will receive the
fees specified in Exhibit "C" payable within ten (10) days of PCS's receipt
of CCI's invoice. Maintenance and billing fees specified therein are based
on the number of subscribers at the end of each monthly billing period.

3. Compensation for Management Services.

As compensation for its continuous acceptable management services
as defined in the license Agreement, PCS shall pay CCI the following:

a. Fees described in Exhibit "A".

b. For PCS's authorized costs directly incurred by CCI on behalf
of PCS or the Systems excluding capital expenditures and costs associated with
CO's responsibilities, the slim of all authorized costs incurred, payable
within ten (10) days of CO's presentation of invoice to Investor.

c. As farther consideration for its services hereunder, PCS
grants to CCI, subject to CCI's continuous, acceptable performance hereunder,
a right of first refusal to purchase all of PCS's offered interest in the System
or License or all of the offered direct or indirect ownership of PCS. CCI
shall have the exclusive right to match any bona fide written offer to PCS
from an unaffiliated third party to purchase the System or License or PCS
(all as set forth herein), which is received prior to actual licensing or
within five (5) years thereafter. Investor shall provide CCI with written
notice of such offer within ten (10) days of receipt thereof, together with
a copy of the offer and CCI's acceptance thereof Or agreement. At CCI's
sole discretion, CCI may exercise his right of first refusal to purchase
the offering within fifteen (15) days of receipt of written notice of such
offer. Failure to provide CCI of written offer within such period shall
release PCS from CCI's right of first refusal and allow Investor to proceed
and accept the previous offer.

4. Failure to Perform.

Failure of CCI to meet either or both: (1) its obligations
herein specified, and (ii) continuous acceptable management services as
defined in License Agreement, shall release PCS from this Agreement
and all future compensation from the date of said failure to perform
as delineated herein and Investor shall, in such case, have the sole
discretion of terminating this agreement for cause and securing supply
and management services from other sources without CCI's recourse.

5. Commencement and Duration.

Unless otherwise extended or modified by the parties hereto, this
Agreement terminates upon any of the following events:

a. if at the end of ten (10) years of commercial operation
of the System the License is not renewed;

b. the voluntary or uncured involuntary bankruptcy of either
party;

c. the written consent of the parties hereto;

d. in the case of willful misconduct, gross negligence or
failure to perform on the part of either Party hereto;

e. the License is not granted or is revoked as a result of
litigation;

f. CCI fails to exercise its Right of First Refusal

This Agreement may be reinstated at the option and mutual agreement of PCS and CCI.

6. Miscellaneous.

a. Liability. CCI shall not be able to PCS and/or to any partner
or shareholder thereof for any loss arising out of any action taken or not taken
and/or decision made by CCI in good faith, unless such action, inaction or
decision constituted willful misconduct or gross negligence on the pan of the
CCI. PCS agrees to indemnify and hold harmless CCI for any action taken or not
taken and/or decision made in good faith, which action, inaction, or decision
does not constitute willful misconduct or gross negligence on the part of CCI.
CCI agrees to procure and maintain, during the entire term of this Agreement, a
policy of commercial general liability insurance coverage in the amount of no
less than $ 1,000,000,00. CCI will include PCS and Owner as additional insured
to policy.

b. Non-Exclusive Agreement. CCI may perform similar or dissimilar
duties and responsibilities for others. If CCI provides such service to other
telecommunications applicants, or licensees, the various entities will not be
deemed to be a partnership, joint venture or common enterprise as a result of
their independent use of CCI.

c. Entire Agreement. This Agreement embodies the entire understanding
between the parties hereto with respect to the subject matters covered hereby
and supersedes any prior agreement or understanding between the parties with
respect to such matters.

d. Amendments and Waivers. This Agreement may not be amended nor
may an), rights hereunder be waived except by an instrument in writing, signed by
the party sought to

be charged with such amendment or waiver. The failure of a party to insist
upon adherence to any term of this Agreement on any occasion shall not be
considered a waiver or deprive that party of the right thereafter to insist upon
adherence to that term or any other term of this Agreement

e. Governing Law. This Agreement shall be construed in accordance
with and governed by the laws of the State of California, without giving effect to
the provisions, policies or principles thereof relating to choice or conflict of
laws.

f. Assignment of Rights. CCI may freely assign its rights under
this Agreement to any third party upon written notification to PCs. Except as
provided otherwise herein, this Agreement shall be binding upon and inure to the
benefit of the parties and their respective legal representatives, successors
and assigns.

g. Counterparts. This Agreement may be executed in one or more
counterparts, each of which shall be deemed an original but all of which
together shall constitute one and the same instrument. The execution of this
Agreement may be by actual signature only.

h. Arbitration. Any controversy, dispute or claim arising out of
or relating to this Agreement, or its 'Interpretation, application, implementation,
breach or enforcement which the parties hereto are unable-to resolve by mutual
agreement, shall be settled by submission by either party of controversy, claim
or dispute to binding arbitration in Riverside, California, (Unless the parties
agree in writing to a different location), before a single arbitrator in
accordance with the rules of the American Arbitration Association then in
effect. In any such arbitration proceeding, the parties agree to provide all
discover deemed necessary by the arbitrator. The decision and award made by the
arbitrator shall be final, binding and conclusive on all parties hereto for all
purposes, and judgment maybe entered thereon in any court having jurisdiction
thereof.

i. Notices and Addresses. All notice, offers, acceptance, and
any other acts under this Agreement (except payment) shall be in writing, and
shall be sufficiently given if delivered to the addresses in person, by FedEx
or similar receipted delivery, by facsimile delivery or, if mailed, postage prepaid,
be certified mail return receipt requested, as follows:

CCI: Competitive Communications Inc.
11731 Sterling Avenue, Suite F
Riverside, CA 92503
Fax Number: (909) 687-6103
Telephone: (909) 687-6100

PCs: Personal Communications Spectrum
19000 MacArthur Blvd Suite 500
Irvine, Ca 92715

or such other address as either of the parties hereto, by notice to the other
may designate from

time to time. The transmission confirmation receipt from the sender's facsimile
machine shall be conclusive evidence of successful facsimile delivery. Time
shall be counted to, or from, as the case may be, the delivery in person or by
mailing.

j. Oral Evidence. This Agreement constitutes the entire agreement
between the parties hereto and supersedes all prior oral and written agreements
between said parties hereto with respect to the subject matter hereof Neither this
Agreement nor any provision hereof may be changed, waived, discharged or
terminated orally, except by a statement in writing signed by the party or
parties against which enforcement or the change, waiver, discharge of
termination is sought.

k. Additional Documents. The parties hereto shall execute such additional
instruments as may be reasonably required by their counsel in order to carry out
the purpose and intent of this Agreement and to fulfill the obligations of the
parties hereunder.

1. Section or Paragraph Headings. Section headings herein have been
inserted for reference only and shall not be deemed to limit or otherwise
affect, in any matter, or be deemed to interpret in whole or in part the terms
or provisions of this Agreement.

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

WITNESSES: COMPETITIVE COMMUNICATIONS INC.

By:/s/ David Kline
David Kline. Chief Executive Officer

Personal Communications Spectrum V

By:/s/ Gerard Suite
Gerard Suite, Managing Partner

EXHIBIT "A"

Management Fees

Telephone:

Install Residential Line (Remote) $17.50
Install Residential Lines (Wire) $45-$80
Telephone Billing (Per sub) $3.00
Install Features $3.00
Install Voice Mail/800 Service $5.00
Change Telephone Number $12-50
move Service $12.50
Install Resident to LEC $25-00
Customer Charged Service Call S35.00/hr
Customer Placed in Collections $10.00
Maintenance (Per sub) $2.00

Cable TV:

Install Service (Remote) $17.50
Install Premium Channels $5.00
Cable Billing (Per sub) $2.00
Change Customer Programming $ 7.50
Move Service $10.00
Custom Charged Service Can S35.00/hr
Customer Placed in. Collections $10.00
Maintenance (Per sub) $ .75

EXHIBIT "C"

Management Fees

Television

Description Management Fee Subscriber Price

Install Primary Residential line $17.5O $34.75
Convert Telephone Customer $17-60 n/c
Install Additional lines $60.00/80.00 S80.00/1 05.00
Telephone Only Billing $ 3.50 $14.35
Telephone w/TV Billing (add TV below) $3.00 $14.36
Install Features $3.00 $5.00
Install Voice Mail800 Service $5.00 $7.50
Custom Calling Restriction $20.00 $25.00
Change Telephone Number $12.50 $20-00
Move Apartments $12.50 $20-00
Reconnect after Disconnection $12-50 $20-00
Install Resident to LEC $25.00 $59.95
Service Call Phone $35.00/hour $50.00/hour
Customer Placed In Collections $10.00 N/C
Maintenance $ 2.00 N/C

Cable TV

Description Management Fee Subscriber Price

Install Television Customer - (Charged) $17.00 $39.95
Install Premium Television Customers $5.00 $7.50
Move Apartments $10.00 $20.00
Reconnect after Disconnect $10.00 $20.00
Television Service Call $35.00/hour $50.00/hour
Television only Swing $2.00 $10-95
Customer Placed In Collections $10.00 N/C
Maintenance $.75 N/C