ex10_51.htm


    
      

      

    


    EXHIBIT 10.51

     

    
 

    First
Amendment to the

    Weingarten
Realty Retirement Plan

     

    R
E C I T A L S:

     

    A.           WHEREAS, Weingarten Realty Investors
(the “Employer”) has previously established the Weingarten Realty Retirement
Plan (the “Plan”) for the benefit of those employees who qualify
thereunder and for their Beneficiaries; and

     

    B.           WHEREAS, the Employer has
previously amended and restated the Plan in part to reflect its compliance with
the Pension Protection Act of 2006; and

     

    C.           WHEREAS, the Employer desires
to amend the Plan to adopt further applicable provisions of the Pension
Protection Act of 2006, as well as applicable provisions of the Heroes Earnings
Assistance and Relief Tax Act; and

     

    D.           WHEREAS, the Employer has the
power and authority to amend the Plan pursuant to Section 16.1 of the
Plan;

     

    NOW, THEREFORE, pursuant to
Section 16.1 of the Plan, the following amendment is hereby made and shall be
effective as provided herein, and the terms of the Amendment shall supersede the
provisions of the Plan to the extent those provisions are inconsistent with the
provisions of this Amendment:

     

    1.           Section
5.7 of the Plan is hereby amended by adding the following new paragraph at the
end thereof to be and read as follows, effective January 1, 2008:

     

    Special Rule Relating To
Termination of the Plan.  Effective January 1, 2008, upon the
termination of the Plan:

     

    
      	
               
      

            	
              (A)

            	
              If
      an interest credit rate (or an equivalent amount) under the Plan is a
      variable rate, then for such rate, the rate of interest used to determine
      accrued benefits under the Plan shall be equal to the average of the rates
      of interest used under the Plan during the 5-year period ending on the
      termination date; and

            


    

     

    
      	
               
      

            	
              (B)

            	
              The
      interest rate and mortality table used to determine the amount of any
      benefit under the Plan payable in the form of an annuity payable at normal
      retirement age shall be the rate and table specified under the Plan for
      such purpose as of the termination date, except that if such interest rate
      is a variable rate, the interest rate shall be determined under the rules
      of subclause (A).

            


    

     


    
      
         


      

      
        1

        
          

        

      

      
         


      

    


    2.           The
Plan is hereby amended by adding the following new Article XIX to be and read as
follows, effective as stated herein:

     

    


     

    ARTICLE
XIX

    Funding-Based
Limits

     

     

    
      
        	
                19.1

              	
                Effective Date and Application
      of Article.

              


      

       

    

    
      	
               
      

            	
              (a)

            	
              Effective Date.
      The provisions of this Article apply to Plan Years beginning after
      December 31, 2007.

            


    

     

    
      	
               
      

            	
              (b)

            	
              This
      Article only applies to single employer plans and does not apply to a plan
      maintained pursuant to one or more collective bargaining agreements
      between employee representatives and one or more employers. For purposes
      of this subsection, the term Plan shall include any predecessor
      plan.

            


    

     

    
      	
               
      

            	
              (c)

            	
              Notwithstanding
      anything in this Article to the contrary, the provision of Code Section
      436 and the Regulations thereunder are incorporated herein by
      reference.

            


    

     

    
      	
              19.2

            	
              Funding-Based Limitation on
      Shutdown Benefits and Other Unpredictable Contingent Event
      Benefits.

            


    

     

    
      	
               
      

            	
              (a)

            	
              In General. If a
      Participant is entitled to an “unpredictable contingent event benefit”
      payable with respect to any event occurring during any Plan Year, then
      such benefit may not be provided if the “adjusted funding target
      attainment percentage” for such Plan Year (i) is less than sixty percent
      (60%) or, (ii) would be less than sixty percent (60%) percent taking into
      account such occurrence.

            


    

     

    
      	
               
      

            	
              (b)

            	
              Exemption. Paragraph (a)
      shall cease to apply with respect to any Plan Year, effective as of the
      first day of the Plan Year, upon payment by the Employer of a contribution
      (in addition to any minimum required contribution under Code Section 430)
      equal to:

            


    

     

    
      	
               
      

            	
              (1)

            	
              in
      the case of 19.2(a)(i) above, the amount of the increase in the funding
      target of the Plan (under Code Section 430) for the Plan Year attributable
      to the occurrence referred to in paragraph (a),
  and

            


    

     

    
      	
               
      

            	
              (2)

            	
              in
      the case of 19.2(a)(ii) above, the amount sufficient to result in a
      “funding target attainment percentage” of sixty percent
    (60%).

            


    

     

    
      	
               
      

            	
              (c)

            	
              Unpredictable Contingent Event
      Benefit.  For purposes of this subsection, the term
      “unpredictable contingent event benefit” means any benefit payable solely
      by reason of:

            


    

     

    
      	
               
      

            	
              (1)

            	
              a
      plant shutdown (or similar event, as determined by the Secretary of the
      Treasury), or

            


    

     


    
      
         


      

      
        2

        
          

        

      

      
         


      

    


    
      	
               
      

            	
              (2)

            	
              an
      event other than the attainment of any age, performance of any service,
      receipt or derivation of any compensation, or occurrence of death or
      disability.

            


    

     

    
      
        	
                19.3

              	
                Limitations on Plan Amendments
      Increasing Liability for
Benefits.

              


      

    

     

    
      	
               
      

            	
              (a)

            	
              In
      General.  No amendment which has the effect of increasing
      liabilities of the Plan by reason of increases in benefits, establishment
      of new benefits, changing the rate of benefit accrual, or changing the
      rate at which benefits become nonforfeitable may take effect during any
      Plan Year if the “adjusted funding target attainment percentage” for such
      Plan Year is:

            


    

     

    
      	
               
      

            	
              (1)

            	
              less
      than eighty percent (80%), or

            


    

     

    
      	
               
      

            	
              (2)

            	
              would
      be less than eighty percent (80%) taking into account such
      amendment.

            


    

     

    
      	
               
      

            	
              (b)

            	
              Exemption. Paragraph
      19.3(a) above shall cease to apply with respect to any Plan Year,
      effective as of the first day of the Plan Year (or if later, the effective
      date of the amendment), upon payment by the Employer of a contribution (in
      addition to any minimum required contribution under Code Section 430)
      equal to—

            


    

     

    
      	
               
      

            	
              (1)

            	
              in
      the case of paragraph 19.3(a)(1) above, the amount of the increase in the
      funding target of the Plan (under Code Section 430) for the Plan Year
      attributable to the amendment, and

            


    

     

    
      	
               
      

            	
              (2)

            	
              in
      the case of paragraph 19.3(a)(2) above, the amount sufficient to result in
      an “adjusted funding target attainment percentage” of eighty percent
      (80%).

            


    

     

    
      	
               
      

            	
              (c)

            	
              Exception for Certain Benefit
      Increases.  Paragraph (a) shall not apply to any
      amendment which provides for an increase in benefits under a formula which
      is not based on a Participant’s compensation, but only if the rate of such
      increase is not in excess of the contemporaneous rate of increase in
      average wages of Participants covered by the
  amendment.

            


    

    
    

    
      
        
        

      

       

      
        
          
            	
                    
                      19.4

                    

                  	
                    
                      Limitations on Accelerated
      Benefit
Distributions.

                    

                  


          

        

         

      

    

    
      	
               
      

            	
              (a)

            	
              Funding Percentage Less Than
      Sixty Percent (60%). If the Plan's “adjusted funding target
      attainment percentage” for a Plan Year is less than sixty percent (60%),
      then the Plan may not pay any “prohibited payment” after the valuation
      date for the Plan Year.

            


    

    


    
      	
               
      

            	
              (b)

            	
              Bankruptcy. During any
      period in which the Employer is a debtor in a case under title 11, United
      States Code, or similar Federal or state law, the Plan may not pay any
      “prohibited payment.” The preceding sentence shall not apply on or after
      the date on which the enrolled actuary of the Plan certifies that the
      “adjusted funding

            


    


    
      
         


      

      
        3

        
          

        

      

      
         


      

    


    
      	
               
      

            	
              target
      attainment percentage” of the Plan is not less than one-hundred percent
      (100%).

            


    

    


    
      	
               
      

            	
              (c)

            	
              Limited Payment if Percentage
      at Least Sixty Percent (60%) But Less Than Eighty Percent
      (80%).

            


    

    


    
      	
               
      

            	
              (1)

            	
              In General. If the
      Plan's “adjusted funding target attainment percentage” for a Plan Year is
      sixty percent (60%) or greater but less than eighty percent (80%), then
      the Plan may not pay any “prohibited payment” after the valuation date for
      the Plan Year to the extent the amount of the payment exceeds the lesser
      of:

            


    

    


    
      	
               
      

            	
              (A)

            	
              fifty
      (50) percent of the amount of the payment which could be made without
      regard to this subsection, or

            


    

    


    
      	
               
      

            	
              (B)

            	
              the
      present value (determined under guidance prescribed by the Pension Benefit
      Guaranty Corporation, using the interest and mortality assumptions under
      Code Section 417(e)) of the maximum guarantee with respect to the
      participant under ERISA Section
4022.

            


    

    


    (2)           One-time
Application.

    


    
      	
               
      

            	
              (A)

            	
              In General. Only one
      “prohibited payment” meeting the requirements of subparagraph (1) may be
      made with respect to any Participant during any period of consecutive Plan
      Years to which the limitations under either paragraph (a) or (b) or this
      paragraph (c) applies.

            


    

    


    
      	
               
      

            	
              (B)

            	
              Treatment of
      Beneficiaries. For purposes of this subparagraph, a Participant and
      any Beneficiary (including an  alternate payee, as defined in
      Code Section 414(p)(8)) shall be treated as one Participant. If the
      Accrued Benefit of a Participant is allocated to such an alternate payee
      and one or more other persons, the amount under subparagraph (1) shall be
      allocated among such persons in the same manner as the Accrued Benefit is
      allocated unless the qualified domestic relations order (as defined in
      Code Section 414(p)(1)(A)) provides
otherwise.

            


    

    


    
      	
               
      

            	
              (d)

            	
              Exception. This
      subsection shall not apply for any Plan Year if the terms of the
      Plan  (as in effect for the period beginning on September 1,
      2005, and ending with such Plan Year) provide for no benefit accruals with
      respect to any Participant during such
period.

            


    

    


    
      	
               
      

            	
              (e)

            	
              “Prohibited Payment.” For
      purpose of this subsection, the term “prohibited payment”
      means:

            


    


    
      
         


      

      
        4

        
          

        

      

      
         


      

    


    
      


      
        	
                 
      

              	
                (1)

              	
                any
      payment, in excess of the monthly amount paid under a single life annuity
      (plus any Social Security supplements described in the last sentence of
      Code Section 411(a)(9)), to a Participant or Beneficiary whose Annuity
      Starting Date occurs during any period a limitation under paragraph (a) or
      (b) is in effect,

              


      

       

    

    
      	
               
      

            	
              (2)

            	
              any
      payment for the purchase of an irrevocable commitment from an insurer to
      pay benefits, and

            


    

    


    
      	
               
      

            	
              (3)

            	
              any
      other payment specified by the Secretary by
  Regulations.

            


    

    


    
      
        
          
            	
                    19.5

                  	
                    Limitation on Benefit Accruals
      for Plans With Severe Funding
Shortfalls.

                  


          

        

      

    

    


    
      	
               
      

            	
              (a)

            	
              In General. If the
      Plan's “adjusted funding target attainment percentage” for a Plan Year is
      less than sixty percent (60%), benefit accruals under the Plan shall cease
      as of the valuation date for the Plan
Year.

            


    

    


    
      	
               
      

            	
              (b)

            	
              Exemption. Paragraph (a)
      shall cease to apply with respect to any Plan Year, effective as of the
      first day of the Plan Year, upon payment by the Employer of a contribution
      (in addition to any minimum required contribution under Code Section 430)
      equal to the amount sufficient to result in an “adjusted funding target
      attainment percentage” of sixty percent
(60%).

            


    

     

    
      
        
          
            
              	
                      19.6

                    	
                      Rules Relating to Contributions
      Required to Avoid Benefit
Limitations.

                    


            

          

        

      

       

    

    
      	
               
      

            	
              (a)

            	
              Security May Be
      Provided.

            


    

     

    
      	
               
      

            	
              (1)

            	
              In General. For purposes
      of this section, the “adjusted funding target attainment percentage” shall
      be determined by treating as an asset of the Plan any security provided by
      the Employer in a form meeting the requirements of subparagraph
      (2).

            


    

     

    
      	
               
      

            	
              (2)

            	
              Form of Security. The
      security required under subparagraph (1) shall consist
  of:

            


    

     

    
      	
               
      

            	
              (A)

            	
              a
      bond issued by a corporate surety company that is an acceptable surety for
      purposes of ERISA Section 412,

            


    

     

    
      	
               
      

            	
              (B)

            	
              cash,
      or United States obligations which mature in three (3) years or less, held
      in escrow by a bank or similar financial institution,
  or

            


    

     

    
      	
               
      

            	
              (C)

            	
              such
      other form of security as is satisfactory to the Secretary and the parties
      involved.

            


    

     

    
      	
               
      

            	
              (3)

            	
              Enforcement. Any
      security provided under subparagraph (1) may be perfected and enforced at
      any time after the earlier of:

            


    

     

     

    
      
        
        

      

      
        5

        
          

        

      

      
        
        

      

    

     

    
      	
               
      

            	
              (A)

            	
              the
      date on which the Plan terminates,

            


    

     

    
      	
               
      

            	
              (B)

            	
              if
      there is a failure to make a payment of the minimum required contribution
      for any Plan Year beginning after the security is provided, the due date
      for the payment under section 430(j),
or

            


    

     

    
      	
               
      

            	
              (C)

            	
              if
      the “adjusted funding target attainment percentage” is less than sixty
      percent (60%) for a consecutive period of seven years, the valuation date
      for the last year in the period.

            


    

     

    
      	
               
      

            	
              (4)

            	
              Release of Security. The
      security shall be released  (and any amounts thereunder shall be
      refunded together with any interest accrued thereon) at such time as the
      Secretary may prescribe in Regulations, including Regulations for partial
      releases of the security by reason of increases in the “funding target
      attainment percentage.”

            


    

     

    
      	
               
      

            	
              (b)

            	
              Prefunding Balance or Funding
      Standard Carryover Balance May Not Be Used. No prefunding balance
      under Code Section 430(f) or funding standard carryover balance may be
      used under Sections 19.2, 19.3, or 19.5 to satisfy any payment an Employer
      may make under any such Section to avoid or terminate the application of
      any limitation under such Section.

            


    

     

    
      	
               
      

            	
              (c)

            	
              Deemed Reduction of Funding
      Balances:

            


    

     

    
      	
               
      

            	
              (1)

            	
              In General. Subject to
      subparagraph (3), in any case in which a benefit limitation under Section
      19.2, 19.3, 19.4, or 19.5 would (but for this subparagraph and determined
      without regard to subsection 19.2(b), 19.3(b), or 19.5(b)) apply to such
      Plan for the Plan Year, the Employer shall be treated for purposes of this
      Article as having made an election under Code Section 430(f) to reduce the
      prefunding balance or funding standard carryover balance by such amount as
      is necessary for such benefit limitation to not apply to the Plan for such
      Plan Year.

            


    

     

    
      	
               
      

            	
              (2)

            	
              Exception for Insufficient
      Funding Balances. Subparagraph (1) shall not apply with respect to
      a benefit limitation for any Plan Year in the application of subparagraph
      (1) would not result in the benefit limitation not applying for such Plan
      Year.

            


    

     

    
      	
               
      

            	
              (3)

            	
              Restrictions of Certain Rules
      to Collectively Bargained Plans. With respect to any benefit
      limitation under Section 19.2, 19.3, or 19.5, subparagraph (1) shall only
      apply in the case of a plan maintained pursuant to one or more collective
      bargaining agreements between employee representatives and one or more
      employers.

            


    

     

    
      
        
          
            
              
                	
                        19.7

                      	
                        Presumed Underfunding for
      Purposes of Benefit
Limitations.

                      


              

            

          

        

      

    

     

    
      	
               
      

            	
              (a)

            	
              Presumption of Continued
      Underfunding. In any case in which a benefit limitation under
      Sections 19.2, 19.3, 19.4, or 19.5 has been applied to a Plan with
      

            


    

     


    
      
         


      

      
        6

        
          

        

      

      
         


      

    


    
      	
               
      

            	
              respect
      to the Plan Year preceding the current Plan Year, the “adjusted funding
      target attainment percentage” of the Plan for the current Plan Year shall
      be presumed to be equal to the “adjusted funding target attainment
      percentage” of the Plan for the preceding Plan Year until the enrolled
      actuary of the Plan certifies the actual “adjusted funding target
      attainment percentage” of the Plan for the current Plan
    Year.

            


    

     

    
      	
               
      

            	
              (b)

            	
              Presumption of Underfunding
      After 10th Month. In any case in which no certification of the
      “adjusted funding target attainment percentage” for the current Plan Year
      is made with respect to the Plan before the first day of the 10th month of
      such year, for purposes of Sections 19.2, 19.3, 19.4, or 19.5, such first
      day shall be deemed, for purposes of such Section, to be the valuation
      date of the Plan for the current Plan Year and the Plan's “adjusted
      funding target attainment percentage” shall be conclusively presumed to be
      less than sixty percent (60%) as of such first
  day.

            


    

     

    
      	
               
      

            	
              (c)

            	
              Presumption of Underfunding
      After 4th Month for Nearly Underfunded Plans. In any case in
      which:

            


    

     

    
      	
               
      

            	
              (1)

            	
              a
      benefit limitation under Sections 19.2, 19.3, 19.4, or 19.5 did not apply
      to a Plan with respect to the Plan Year preceding the current Plan Year,
      but the “adjusted funding target attainment percentage” of the Plan for
      such preceding Plan Year was not more than ten (10) percentage points
      greater than the percentage which would have caused such Section to apply
      to the Plan with respect to such preceding Plan Year,
  and

            


    

     

    
      	
               
      

            	
              (2)

            	
              as
      of the first day of the 4th month of the current Plan Year, the enrolled
      actuary of the Plan has not certified the actual “adjusted funding target
      attainment percentage” of the Plan for the current Plan Year, until the
      enrolled actuary so certifies, such first day shall be deemed, for
      purposes of such Section, to be the valuation date of the Plan for the
      current Plan Year and the “adjusted funding target attainment percentage”
      of the Plan as of such first day shall, for purposes of such Section, be
      presumed to be equal to ten (10) percentage points less than the “adjusted
      funding target attainment percentage” of the Plan for such preceding Plan
      Year.

            


    

    
       

      
        
          
            
              
                
                  	
                          19.8

                        	
                          Treatment of Plan as of Close
      of Prohibited or Cessation Period. The following provisions apply for
      purposes of applying this
Section.

                        


                

              

            

          

        

      

       

    

    
      	
               
      

            	
              (a)

            	
              Operation of Plan After
      Period. Payments and accruals will resume effective as of the day
      following the close of the period for which any limitation of payment or
      accrual of benefits under Section 19.4 or 19.5 applies; provided, however,
      that if benefit accrual has previously ceased under the Plan due to Plan
      amendment, such accruals will not
resume.

            


    

     

     

    
      
        
        

      

      
        7

        
          

        

      

      
        
        

      

    

     

     

    
      	
               
      

            	
              (b)

            	
              Treatment of Affected
      Benefits. Nothing in this Section shall be construed as affecting
      the Plan’s treatment of benefits that would have been paid or accrued but
      for this Section.

            


    

    
      
         

        
          
            
              
                
                  
                    	
                            19.9

                          	
                            Definitions.

                          


                  

                

              

            

          

        

      

    

    
       

      
        	
                 
      

              	
                (a)

              	
                The
      term “funding target attainment percentage” has the same meaning given
      such term by Code Section 430(d)(2), except as otherwise provided herein.
      However, in the case of the Plan Year beginning in 2008, the “funding
      target attainment percentage” for the preceding Plan Year may be
      determined using such methods of estimation as the Secretary may
      provide.

              


      

       

    

    
      	
               
      

            	
              (b)

            	
              The
      term “adjusted funding target attainment percentage” means the “funding
      target attainment percentage” which is determined under paragraph (a) by
      increasing each of the amounts under subparagraphs (A) and (B) of Code
      Section 430(d)(2) by the aggregate amount of purchases of annuities for
      employees other than highly compensated employees (as defined in Code
      Section 414(q)) which were made by the Plan during the preceding two (2)
      Plan Years.

            


    

     

    
      	
               
      

            	
              (c)

            	
              Application to Plans Which Are
      Fully Funded Without Regard to Reductions for Funding
      Balances.

            


    

     

    
      	
               
      

            	
              (1)

            	
              In General. For any Plan
      Year, if the “funding target attainment percentage” is one-hundred percent
      (100%) or more (determined without regard to this paragraph and without
      regard to the reduction in the value of assets under Code Section
      430(f)(4)(A)), the “funding target attainment percentage” for purposes of
      paragraph (a) shall be determined without regard to
      such  reduction.

            


    

     

    
      	
               
      

            	
              (2)

            	
              Transition Rule.
      Subparagraph (1) shall be applied to Plan Years beginning after 2007 and
      before 2011 by substituting for “one-hundred percent (100%)” the
      applicable percentage determined in accordance with the following
      table:

            


    

     

    

      
        	 	
                In
      the case of a Plan Year beginning in calendar year:

              	
                The
      applicable percentage is:

              
	 	 
      	 
      
	 	 
      	 
      
	 	
                2008

              	
                92%

              
	 	
                2009

              	
                94%

              
	 	
                2010

              	
                96%

              


      



    
      	
               
      

            	
              (3)

            	
              Subparagraph
      (2) shall not apply with respect to any Plan Year after 2008 unless the
      “funding target attainment percentage” (determined without regard to this
      paragraph) of the Plan for each preceding Plan Year after 2007 was not
      less than the applicable percentage with respect to such preceding Plan
      Year determined under subparagraph
(2).

            


    

     

     

    
      
        
        

      

      
        8

        
          

        

      

      
        
        

      

    

     

    3.           The
Plan is hereby amended by adding the following new Article XX to be and read as
follows, effective as stated herein:

     


    ARTICLE
XX

    HEROES
EARNINGS ASSISTANCE AND RELIEF TAX ACT PROVISIONS

     

    
      	
              20.1

            	
              Death benefits. In the
      case of a death or disability occurring on or after January 1, 2007, if a
      Participant dies while performing qualified military service (as defined
      in Code Section 414(u)), the survivors of the Participant are entitled to
      any additional benefits (other than benefit accruals relating to the
      period of qualified military service) provided under the Plan as if the
      Participant had resumed and then terminated employment on account of
      death.

            


    

     

    
      	
              20.2

            	
              Differential wage
      payments. For years beginning after December 31, 2008, (i) an
      individual receiving a differential wage payment, as defined by Code
      Section 3401(h)(2), shall be treated as an employee of the employer making
      the payment, (ii) the differential wage payment shall be treated as
      compensation, and (iii) the plan shall not be treated as failing to meet
      the requirements of any provision described in Code Section 414(u)(1)(C)
      by reason of any contribution or benefit which is based on the
      differential wage payment. The immediately preceding clause (iii) shall
      apply only if all employees of the Employer performing service in the
      uniformed services described in Code Section 3401(h)(2)(A) are entitled to
      receive differential wage payments (as defined in Code Section 3401(h)(2))
      on reasonably equivalent terms and, if eligible to participate in a
      retirement plan maintained by the employer, to make contributions based on
      the payments on reasonably equivalent terms (taking into account Code
      Sections 410(b)(3), (4), and (5)).

            


    

     

    


     

    


     


    
      
         


      

      
        9

        
          

        

      

      
         


      

    


    IN WITNESS WHEREOF, the
Employer has caused the Plan to be amended by this First Amendment this 2nd day
of December, 2009, to be effective as stated herein.

     

    
      
        	 	WEINGARTEN REALTY
      INVESTORS	 
	 	 	 	 
	
                 

              	
                By:
      

              	/s/ Stephen
      C. Richter	 
	 	 	Stephen
      C. Richter	 
	 	 	Executive
      VP/CFO	 
	 	 	 	 


      

    

    
 

    10