Exhibit 10.81
ADMINISTRATIVE SERVICES AGREEMENT
THIS ADMINISTRATIVE SERVICES AGREEMENT ("Agreement") is entered into as of this
29th day of DECEMBER, 1997, by and between CITADEL HOLDING CORPORATION
("Citadel") and BIG 4 RANCH, INC. ("Big 4"). Citadel and Big 4 hereby agree as
follows:
R E C I T A L S
A. Big 4 is the owner of a 40% partnership interest in each of three separate
general California partnerships (the "Partnerships") owning certain agricultural
real property (the "Property") for the farming and harvesting of citrus
orchards; and
B. Big 4 desires to engage Citadel on behalf of itself under this Agreement to
provide certain administrative services to and for Big 4.
1. Services:
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1.1. Services Included: Citadel hereby undertakes, at the request from
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time to time by Big 4, to perform the following administrative services:
a) To prepare quarterly and annual reports to Big 4 shareholders,
making use of financial information provided by Big 4, and to administer
the printing and distribution of such reports;
b) To include in its mailings to Citadel shareholders, such reports
and other information as Big 4 may reasonably request; provided that such
materials are clearly labeled as being the materials of Big 4 and as not
being the materials of Citadel;
c) To administer the Big 4's bank accounts;
d) To maintain a mailing and delivery address for Big 4 at the
principal corporate offices of Citadel and to review and direct to
appropriate directors, officers, representatives and contractors of Big 4
correspondence addressed to Big 4;
e) To maintain a telephone and fax facility for Big 4 at the
principal corporate offices of Citadel and to receive and direct to
appropriate directors, officers, representatives and contractors of Big 4
telephone and other oral communications directed to Big 4;
f) To provide, or cause to be provided, share registry services for
Big 4;
g) To provide, or cause to be provided, on January 1, 1999 or
promptly thereafter, a message center or electronic bulletin board or other
facility whereby persons interested in buying or selling Big 4 common stock
can register, post or otherwise give notice of such interest;
h) To provide, at Citadel's principal corporate offices, facilities
where Big 4 directors and officers can hold meetings; and
i) To provide, at Citadel's principal corporate offices, such
secretarial support services to the directors and officers of Big 4 as they
may reasonably require in the execution of their official duties and
responsibilities.
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1.2. Services not included: Citadel will have no obligation to perform
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accounting or auditing functions, and it is understood that Big 4 will
separately contract for such services. Nor is Citadel being engaged to
perform any services of a fiduciary nature or of a discretionary, as
opposed to a ministerial, nature. It is understood that the officers and
directors of Big 4 will continue to be responsible for the management of
the business and affairs of Big 4 and that Citadel will have no
responsibility with respect to such management functions.
1.3 No Obligation to Advance Monies: Citadel shall have no obligation to
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make any advance to or for the account of Big 4 nor to become liable for
any expense of Big 4 regardless of the detriment or penalty that Big 4 will
suffer if the same is not made or incurred. If, in Citadel's reasonable
discretion, it incurs any expense or makes any advance for Big 4 arising
out of or in carrying out Citadel's duties under this Agreement, Citadel
shall be deemed to have done so as the authorized agent of Big 4 and Big 4
shall promptly upon request pay such expense or reimburse Citadel for such
advance which sum shall bear interest from the date disbursed by Citadel at
the rate set forth in Section 2.3.
2. Reimbursement and Compensation:
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2.1. Reimbursement: Big 4 will promptly, and in any event within thirty
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(30) days of receipt of invoice from Citadel, reimburse Citadel for its
out-of-pocket costs in providing services under this Agreement. Where a
precise apportionment is not possible, a representative of each of Citadel
and Big 4 will meet and confer periodically to determine a reasonable
apportionment. Reimbursable costs will not include, however, general
overhead items such as employee salaries, rent and utilities (other than
telephone and other communications type utilities), compensation for such
items being included within the administrative fee specified below.
2.2. Administrative Fee: Big 4 will pay a monthly fee of One Thousand
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Dollars ($1,000), commencing January 1,1998, to compensate Citadel for the
services to be provided under this Agreement. This amount will remain
fixed for the first 24 months of this Agreement. Thereafter, such fee will
be adjusted upwards to reflect a change in the consumer price index, all
urban consumers _____ = 100, or such other index as may be selected by
Citadel and Big 4 from time to time. Notwithstanding the above, the
parties agree that following every second anniversary of this Agreement
they will review the level and quantity of services being provided under
this Agreement and make such adjustment to the Administrative Fee as may be
appropriate given the level and quantity of such services.
2.3. Agreement Interest Rate: Any payment not timely made will accrue
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interest at that fluctuating rate equal from time to time to the prime rate
as published in the Wall Street Journal (or such other equivalent published
index as the parties may from time to time select) plus two hundred (200)
basis points, or the maximum amount permitted by law, whichever is less.
3. Term:
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This Agreement will have an initial term of ten (10) years, and will
continue there after on a year to year basis unless terminated by either party
on not less than one hundred eighty (180) days notice. Notwithstanding the
above, this Agreement may be terminated by Big 4 at any time on not less than
ninety (90) days notice, and by either party in the event of material breach by
the other party of its obligations under this Agreement. In the case of
termination for breach, the terminating party will first give notice to the
other party of such breach and thirty (30) days in which to cure the same.
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4. Indemnification:
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Big 4 agrees to indemnify Citadel, its officers, directors, employees and
contractors, against any and all liability arising out of or relating to this
Agreement or from the performance by Citadel, and/or such other persons, of
services under this Agreement, except where such liability was the direct and
proximate result of willful misconduct or gross negligence on the part of the
person seeking such indemnity. This indemnity obligation includes, without
limitation, the obligation to advance all reasonable attorneys fees and other
costs incurred by any person indemnified under this Agreement in defending any
action or proceeding resulting from the performance of services under this
Agreement and/or in investigating any claim by any person threatening any such
action or proceeding; provided, however, that such indemnified party will be
obligated to repay such advances, together with interest at the Agreement
Interest Rate, in the event that a court of competent jurisdiction ultimately
determines, in a final and non-appealable judgment, that such liability was the
direct and proximate result of willful misconduct or gross negligence on the
part of such person.
5. Miscellaneous:
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5.1. Governing Law: Venue: This Agreement is to be governed by the laws of
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the State of California as such laws pertain to contracts made and to be
performed entirely within such state. Any action brought under this
Agreement may be brought only in the Federal District Court or the
California Superior (or Municipal) Court sitting in Los Angeles County,
California. Each of the parties hereto consent to the jurisdiction and
venue of such courts.
5.2. Notices: Any notice to be given under this Agreement must be in
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writing, and will be deemed given when actually delivered, in the case of
Citadel, to the Chairman of the Board, President or Secretary of that
company, and in the case of Big 4, to the Chairman of the Board, President
or Secretary of that company.
5.3. No Third Party Beneficiaries: There are not third party beneficiaries
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to this Agreement, The indemnity provisions set forth hereinabove may be
asserted by individuals other than Citadel only with the written approval
of Citadel, which approval may be given or withheld by Citadel in its sole
and absolute discretion.
5.4. Amendments: This Agreement can only be amended by a writing making
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specific reference to this Agreement and signed by both parties hereto.
5.5. Successors and Assigns: This Agreement will be binding upon any
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corporate successor to Citadel and/or Big 4 as the case may be: provided,
however, that the benefits and burdens of this Agreement can only be
assigned in connection with a merger or sale of all or substantially all of
the assets of the transferor (and then only provided that the transferee
agrees in writing addressed to the nontransfering party hereunder to be
bound by this Agreement) or otherwise with the written approval of the
other party to this Agreement, such approval not to be unreasonably
withheld or delayed. Upon any such transfer, the obligations of the
transferor hereunder will terminate.
5.6. Interpretation: This Agreement is to be interpreted in an even handed
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manner and not with reference to any rule of construction providing for
interpretation for or against the drafter thereof.
5.7 Competition; Self-Dealing. Except as otherwise agreed, Citadel and
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its affiliates may engage in or possess an interest in other business
ventures of any nature or description, independently or with others,
whether currently existing or hereafter created, including business that is
competitive with the business of Big 4. Big 4 shall not have any rights in
or to such independent ventures or the income of profits derived therefrom.
Furthermore, nothing in this Agreement shall preclude transactions between
Citadel, or its
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affiliates, and Big 4, provided that any services performed by Citadel, or
its affiliates, are on terms no less favorable to Big 4 than could be
obtained from an unrelated third party on an arms' length basis.
5.8 Entire Agreement: This Agreement constitutes the entire understanding
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between and among the parties, and supersedes any prior understandings
respecting the subject matter thereof.
IN WITNESS WHEREOF. the parties hereto have executed and delivered this
Agreement as of the date first set forth above.
CITADEL HOLDING CORPORATION BIG 4 RANCH, INC.
By By /s/ Xxxxxx X. Xxxx
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Xxxxx Xxxxxx Xxxxxx X. Xxxx
Title: President Title: President
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