EXHIBIT 10.38
Nonqualified Deferral Plan
Administration Services Agreement
This Nonqualified Deferral Plan Administration Services Agreement (the
"Agreement") is entered into this January 23, 2003 by and between BENEFIT PLAN
SERVICES, INC., a Georgia Corporation ("BPSI") of Suite 2100, 0000 Xxxxxxxxx
Xxxx, X.X., Xxxxxxx, Xxxxxxx 00000-0000 and Petro Stopping Centers, L.P., a
Delaware limited partnership ("Petro") of 0000 Xxxxxx Xxxxx, Xx Xxxx, XX 00000.
The Agreement sets forth the terms and conditions under which the parties agree
that BPSI will provide Petro with certain specified services related to the
administration of the Petro Deferred Compensation Plan (each plan hereafter
individually or collectively, as the content requires, referred to as the
"Plan").
For and in consideration of the payment of the amounts set forth in Section 3 of
this Agreement by Petro to BPSI, the mutual promises and undertakings set forth
in this Agreement, and other good and valuable consideration, the receipt and
sufficiency of which is hereby acknowledged, BPSI and Petro agree as follows:
1. Term
This Agreement shall be effective upon execution and shall remain in effect
until terminated by either party with ninety (90) days prior written notice
to the other party. No refund of previously billed fees will be made. In
the event that neither party terminates this Agreement, it will
automatically renew each January 1.
2. Scope of Services
BPSI shall perform the services outlined in Attachment A, which is made a
part of this Agreement. Petro agrees to furnish BPSI with all information
required to perform these services. This will include, without limitation,
the Plan Document, a complete set of enrollment material provided to
participants, deferral and/or contribution amounts, any trust agreements
related to the Plan and any other pertinent plan documents. Petro also
acknowledges that Bloomberg L.P. ("Bloomberg"), an information services,
news and media company, provides BPSI with all daily fund pricing
(including, without limitation, Net Asset Values, Dividends, Capital
Gains). In performing services hereunder, BPSI may rely in good faith upon
information provided by Petro and Bloomberg. BPSI has no duty to
investigate the source of the information provided, the accuracy of the
information provided, or question any actions of Petro, its agents or any
trustee of the Plan, except to the extent that these actions may be in
direct violation of the provisions of the Plan.
BPSI shall not provide or be responsible for the expense and cost of legal
counsel, actuaries, certified public accountants, investment counselors,
investment analysts or similar type of services engaged on behalf of Petro,
and BPSI shall not be authorized to engage such services or incur any
expense or cost therefore on behalf of Petro without the written consent of
Petro.
Petro agrees to review and reconcile account balance and other account
information provided by BPSI to Petro hereunder within 90 days of receipt
of such information, and agrees that BPSI is only contractually obligated
to correct any errors or other mistakes in participant account balance or
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investment selection information within 180 days of the participant
receiving an account balance statement from BPSI. Petro acknowledges that
corrections to accounts may be made as of the date BPSI is notified of the
error or mistake.
3. Charges and Payment
Petro will pay BPSI an annual fee of $25,000.00 for the first one hundred
fifty participants in the one Petro Plan which BPSI administers. Additional
participant recordkeeping is priced at $150.00 per life for the next 150
incremental participants, $100.00 per life for the next incremental 200
participants, and $75.00 per life for all other incremental participants.
On each January 1 billing, the annual fee will be adjusted by an amount
equal to the increase in the prior year's Consumer Price Index ("CPI") over
the second prior year's CPI, or similar index, if the CPI is not available.
No portion of the annual fee will be pro-rated for a partial year of
service, and no portion of the annual fee is refundable, for any reason,
including Plan termination. In the event Petro makes any changes to the
Plan, BPSI reserves the right to increase its annual fee hereunder in an
amount agreed to by the parties and memorialized through a written
amendment hereto, or, if the parties are unable to agree to such changed
fee, to terminate this Agreement.
Petro will pay BPSI for additional services specifically requested by Petro
based on the schedule listed below. These fees will accrue throughout the
year and be added to the base annual fee on the January 1 billing.
Customization (interface, reports) $150/hr
Periodic Benefit Payments $10 Per Payment
Non-Periodic Benefit Payments $35 Per Payment
State Withholding $75 Per Year/Per State
Off-Cycle Reporting $100/hour
In addition, Petro will reimburse BPSI for any direct, reasonable
out-of-pocket expenses related to the administration of the Plan. These
expenses will include, but not be limited to, postage, printing of any
enrollment materials, telephone charges, travel expenses, etc. All
individual out-of-pocket expenses in excess of $1,000.00 must be approved,
or have been requested, by Petro before being incurred. For any services
which are not listed in Attachment A, the parties hereto shall agree to a
fee for such services prior to their performance by BPSI and shall amend
this Agreement using Attachment B. In the event BPSI, at the request of
Petro, performs any additional services prior to BPSI and Petro reaching an
agreement on the fee for such services, BPSI shall be entitled to payment
from Petro for the reasonable value of such services in the event the
parties cannot reach agreement on a fee. All invoices submitted by BPSI are
payable upon receipt.
4. Confidentiality
BPSI agrees that information provided by Petro and Bloomberg to BPSI
hereunder related to the Plan, and its participants, (the "Data") is
confidential to Petro and may not be disclosed to third parties who are not
affiliated with BPSI without the prior written consent of Petro and/or, to
the extent deemed applicable by BPSI, any directly affected person or
persons (e.g., Plan participants). Notwithstanding the foregoing, BPSI
shall not be prohibited from disclosing Data if required to do so pursuant
to a court order, subpoena, document request, or other process of law
("Legal Process"), provided that Petro is promptly notified of such Legal
Process in advance of such disclosure so that it
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may seek a protective order, confidentiality agreement, or similar remedy
to protect against further disclosure or dissemination of the Data.
BPSI acknowledges that Petro owns the Data, and that BPSI may not withhold
the Data from Petro, its agents or trustees of the Plan under any
circumstances, except for the non-payment of any final fees or expenses
owed to BPSI; provided, however, BPSI shall be entitled to retain copies of
the Data at its own expense. In addition, Petro has the right, upon one
business day's notice and during normal business hours, to audit the Data
related to the Plan at BPSI's principal office in Atlanta, Georgia.
Petro agrees that the processes used to administer the Plan are owned by
and are proprietary to BPSI, and are confidential. These processes may not
be disclosed to any other entity without the prior written consent of BPSI,
except that Petro shall not be prohibited from making such disclosure if
required pursuant to Legal Process, provided that BPSI is promptly notified
of such Legal Process in advance of such disclosure so that it may seek a
protective order, confidentiality agreement, or similar remedy to protect
against further disclosure or dissemination of the processes.
5. Authority
Petro hereby agrees that BPSI shall be the sole and exclusive routine
administrator for the Plan. Petro will provide all legal, accounting, tax
and financial decisions regarding the Plan. BPSI will have no power,
authority or control with respect to the management or disposition of any
assets of the Plan. BPSI will also have no discretionary authority for the
management of the provisions of the Plan or their application.
Petro hereby agrees to designate BPSI as its agent to make Plan benefit
payments and perform those acts required of employers relating to
employment taxes and withholding of income taxes related to benefit
payments under the Plan. Petro agrees to provide BPSI with all information
necessary to perform this function and BPSI agrees to file the appropriate
employment and income tax information with the Internal Revenue Service.
6. Limitation of Liability
Petro agrees that BPSI is not responsible for any fees and penalty charges
related to BPSI's administration of the Plan which are levied by the
federal government or the government of any state or any political
subdivision or instrumentality of either, including, without limitation,
the Internal Revenue Service, Department of Labor and/or Pension Benefit
Guaranty Corporation, except to the extent incurred as a result of BPSI's
negligence, willful misconduct, bad faith or fraud.
The parties agree that BPSI shall have no responsibility for the funding of
the Plan or for the investment of any assets of, or associated with, the
Plan.
Petro agrees to indemnify and hold harmless BPSI and its employees, agents,
directors and assigns from any claim, liability, cost, loss, expense or
damage (including reasonable attorneys' and accountants' fees) resulting
from or in connection with the operation and administration of the Plan or
any action or inaction by BPSI pursuant to this Agreement, unless such
claim, liability, cost, loss, expense or damage resulted from BPSI's
negligence, bad faith, willful misconduct or fraud.
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BPSI agrees to indemnify and hold harmless Petro and its employees, agents,
directors and assigns from any claim, liability, cost, loss, expense or
damage (including reasonable attorneys' and accountants' fees) resulting
from or in connection with the operation and administration of the Plan or
any action or inaction by Petro pursuant to this Agreement, unless such
claim, liability, cost, loss, expense or damage resulted from Petro's
negligence, bad faith, willful misconduct or fraud.
7. Amendment
This Agreement may be amended by the parties hereto only by a writing
signed by both parties hereto.
8. General
This Agreement represents the entire contract between BPSI and Petro. This
Agreement is not assignable to any other party, without the prior written
consent of the non-assigning party; provided, however, that BPSI shall be
entitled to assign this Agreement to an affiliate of BPSI or in connection
with any merger, share exchange, reorganization or sale of all or
substantially all of the assets of BPSI. This Agreement shall be governed
and enforced in accordance with the laws of the State of Georgia.
9. Data Transfer via Internet and Telephonic Voice Mail
Petro agrees that any information sent via the Internet or voice mail is
sent at Petro's risk. Petro agrees that BPSI shall have no responsibility
for unauthorized access of Petro information sent via the Internet (e.g.
electronic mail).
10. Non-Hire
During the term of this Agreement and for a period of one year thereafter
and regardless of the reason for the termination hereof, neither BPSI nor
Petro shall engage in any of the following activities, either directly or
indirectly (individually, or through or on behalf of another entity as
owner, partner, agent, employee, consultant, or in any other capacity)
without the prior written consent of the other: (i) hire any Employee (as
defined below) of the other party; or (ii) solicit, encourage, or engage in
any activity to induce any such Employee to terminate existing employment
or to become employed by, or to enter into a business relationship with any
other person or entity. The term "Employee" as used in the Agreement means
any employee respectively of BPSI or Petro, or their respective affiliate
companies.
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This Agreement is agreed to on behalf of Petro by:
Signature:
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Name:
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Title:
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Date:
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This Agreement is accepted on behalf of BPSI by:
Signature:
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Name: Xxxxxxx X. Xxxxx
Title: Vice President
Date:
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