ex10_55.htm


    
      

      

    

    EXHIBIT 10.55

    
 

    Non-Qualified Plan Trust
Agreement

     

    For Recordkept
Plans

     

     

    This
Non-Qualified Plan Trust Agreement for Recordkept Plans (“Trust Agreement”),
entered into as of_________________ by and between Weingarten Realty
(the "Employer") and Merrill Lynch Bank & Trust Co., FSB, (the “Trustee”),
with respect to a trust forming part of the Weingarten Realty Investors
Deferred Compensation Plan (the “Plan”);

     

    WHEREAS, the Employer has
adopted the non-qualified deferred compensation plan identified
above;

     

    WHEREAS, the Employer has
incurred or expects to incur liability under the terms of such Plan with respect
to the individuals participating in such Plan;

     

    WHEREAS, the Employer wishes
to establish a trust (the “Trust”) and to contribute to the Trust assets that
shall be held therein, subject to the claims of the Employer's creditors in the
event of the Employer's Insolvency, as herein defined, until paid to Plan
participants and their beneficiaries in such manner and at such times as
specified in the Plan;

     

    WHEREAS, it is the intention
of the parties that this Trust shall constitute an unfunded arrangement and
shall not affect the status of the Plan as an unfunded plan maintained for the
purpose of providing deferred compensation for a select group of management or
highly compensated employees for purpose of Title I of the Employee Retirement
Income Security Act of 1974, as amended;

     

    WHEREAS, it is the intention
of the Employer to make contributions to the Trust to provide itself with a
source of funds to assist it in the meeting of its liabilities under the
Plan;

     

    NOW, THEREFORE, the parties do
hereby establish the Trust and agree that the Trust shall be comprised, held and
disposed of as follows:

     

    Section
1.  Establishment Of Trust

     

     

    
      	
              (a)

            	
              Deposit of Funds. The
      Employer hereby deposits with the Trustee in trust such cash and/or
      marketable securities, if any, which shall become the principal of the
      Trust to be held, administered and disposed of by the Trustee as provided
      in this Trust Agreement.

            


    

     

    
      	
              (b)

            	
              Irrevocability. The
      Trust hereby established shall be
irrevocable.

            


    

     

    
      	
              (c)

            	
              Grantor Trust. The Trust
      is intended to be a grantor trust, of which the Employer is the grantor,
      within the meaning of subpart E, part 1, subchapter J, chapter 1, subtitle
      A of the Internal Revenue Code of 1986, as amended, and shall be construed
      accordingly.

            


    

     

    
      	
              (d)

            	
              Trust Assets. The
      principal of the Trust, and any earnings thereon, shall be held separate
      and apart from other funds of the Employer and shall be used exclusively
      for the uses and purposes of Plan participants and general creditors
      as herein
      set forth. Plan participants and their beneficiaries shall have no
      preferred claim on, or any beneficial ownership interest in, any assets of
      the Trust. Any rights created under the Plan and this Trust Agreement
      shall be mere unsecured contractual rights of Plan participants and their
      beneficiaries against the Employer. Any assets held by the Trust will be
      subject to the claims of the Employer's general creditors under federal
      and state law in the event of Insolvency, as defined in Section 3(a)
      herein.

            


    

     

    
      	
              (e)

            	
              Additional Deposits. The
      Employer, in its sole discretion, may at any time, or from time to time,
      make additional deposits of cash or other property in trust with the
      Trustee to augment the principal to be held, administered and disposed of
      by the Trustee as provided in this Trust Agreement. Neither the Trustee
      nor any Plan participant or beneficiary shall have any right to compel
      such additional deposits.

            


    

     

    
      	
              (f)

            	
              Acceptance of Additional
      Deposits. The Trustee shall not be obligated to receive such cash
      and/or property unless prior thereto the Trustee has agreed that such cash
      and/or property is acceptable to the Trustee and the Trustee has
      received

            


    


    
      
         


      

      
         


        
          

        

      

      
         


      

    


     

    
      	
               
      

            	
              such
      reconciliation, allocation, investment or other information concerning, or
      representation with respect to, the cash and/or property as the Trustee
      may require. The Trustee shall have no duty or authority to (a) require
      any deposits to be made under the Plan or to the Trustee; (b) compute any
      amount to be deposited under the Plan to the Trustee; or (c) determine
      whether amounts received by the Trustee comply with the Plan. Assets of
      the Trust may, in the Trustee's discretion, be held in an account with an
      affiliate of the Trustee.

            


    

     

    Section
2.  Payments To Plan Participants And Their Beneficiaries

     

     

    
      	
              (a)

            	
              Payment of Benefits by Trustee. With
      respect to each Plan participant, the Employer shall deliver to the
      Trustee a schedule (the “-Payment Schedule”) that indicates the amounts
      payable in respect of the participant (and his or her beneficiaries), that
      provides a formula or other instructions acceptable to the Trustee for
      determining the amounts so payable, the form in which such amounts are to
      be paid (as provided for or available under the Plan), and the time of
      commencement for payment of such amounts. The Payment Schedule shall be
      delivered to the Trustee not more than thirty (30) business days nor fewer
      than fifteen (15) business days prior to the first date on which a payment
      is to be made to the Plan participant. Any change to a Payment Schedule
      shall be delivered to the Trustee not more than thirty (30) business days
      nor fewer than fifteen (15) business days prior to the date on which the
      first payment is to be made in accordance with the changed Payment
      Schedule. Except as otherwise provided herein, the Trustee shall arrange
      for payments to be made to Plan participants and their beneficiaries in
      accordance with such Payment Schedule by transmitting the distribution
      amount (together with amounts necessary for federal, state or local taxes
      that may be required to be withheld) to the Employer or Employer's
      designee who shall be responsible for payment directly to participants and
      their beneficiaries and proper tax reporting and withholding to the
      appropriate tax authorities. In all events, the Employer is responsible
      for calculating the amount of all federal, state or local taxes required
      to be withheld with respect to any distribution and advising the Trustee
      of such amounts prior to the Trustee's transmission to the Employer of any
      amounts from the Trust.

            


    

     

    
      	
              (b)

            	
              Entitlement to Benefits. The entitlement
      of a Plan participant or his or her beneficiaries to benefits under the
      Plan shall be determined by the Employer or such party as it shall
      designate under the Plan, and any claim for such benefits shall be
      considered and reviewed under the procedures set out in the
      Plan.

            


    

     

    
      	
              (c)

            	
              Payment of Benefits by Employer. The
      Employer may make payment of benefits directly to Plan participants or
      their beneficiaries as they become due under the terms of the Plan. If the
      Employer determines to make a payment of a deferred compensation benefit
      directly to a participant or beneficiary as the benefit becomes payable to
      the participant or such participant's beneficiary under the terms of the
      Plan, the Employer shall notify the Trustee of the decision to make
      payment of the benefit directly to the participant or the participant's
      beneficiary prior to the time the benefit becomes payable to the
      participant or the participant's beneficiary. The Employer shall provide
      written certification to the Trustee evidencing such payment, and may at
      that time or at a subsequent time request reimbursement from the Trustee
      of the amount of such payment. The Trustee, upon receipt of such written
      certification and such request, shall distribute such amount to the
      Employer. In addition, if the principal of the Trust, and any earnings
      thereon, are not sufficient to make payments of benefits in accordance
      with the terms of the Plan, the Employer shall make the balance of each
      payment as it falls due. The Trustee shall notify the Employer where
      principal and earnings are not
sufficient.

            


    

     

    
      	
              (d)

            	
              No Duty to Determine Sufficiency. The
      Trustee shall have no responsibility to determine whether the Trust is
      sufficient to meet the liabilities under the Plan, and shall not be liable
      for payments or Plan liabilities in excess of the value of the assets held
      in the Trust.

            


    

     

    Section
3.  Trustee Responsibility Regarding Payments In The Event Of
Insolvency

     

     

    
      	
              (a)

            	
              Insolvency. The Trustee shall cease
      payment of benefits to Plan participants and their beneficiaries if the
      Employer is Insolvent. The Employer shall be considered “Insolvent” for
      purposes of this Trust Agreement if (i) the Employer is unable to pay its
      debts as they become due, or (ii) the Employer is subject to a pending
      proceeding as a debtor under the United States Bankruptcy
      Code.

            


    

     

    
      	
              (b)

            	
              Notice of Insolvency. At all times during
      the continuance of this Trust, as provided in Section 1(d) hereof, the
      principal and income of the Trust, for which the Employer is treated as
      grantor and owner shall be subject to the claims of general creditors of
      the Employer under federal and state law as set forth
    below.

            


    

     

    
      	 	
              (i)

            	
              The
      Board of Directors and the Chief Executive Officer of the Employer (or, if
      there is no Chief Executive Officer, the highest ranking officer) shall
      have the duty to inform the Trustee in writing of the Insolvency of the
      Employer. 

            


    

     

     

    
      
        
        

      

      
        
        

        
          

        

      

      
        
        

      

    

     

    
       

      
        	 	
                 

              	
                If
      a person claiming to be a creditor of the Employer alleges in writing to
      the Trustee that the Employer has become Insolvent, the Trustee shall
      determine whether the Employer is Insolvent and, pending such
      determination, the Trustee shall discontinue payment of benefits to Plan
      participants or their
beneficiaries,

              


      

       

    

     

    
      	
               
      

            	
              (ii)

            	
              Unless
      the Trustee has actual knowledge of the Insolvency of the Employer, or has
      received notice from the Employer or a person claiming to be a creditor
      alleging that the Employer is Insolvent, the Trustee shall have no duty to
      inquire whether the Employer is Insolvent. The Trustee may in all events
      rely on such evidence concerning the solvency of the Employer as may be
      furnished to the Trustee and that provides the Trustee with a reasonable
      basis for making a determination concerning the solvency of the
      Employer.

            


    

     

    
      	 	
              (iii)

            	
              If
      at any time the Trustee has determined that the Employer is Insolvent, the
      Trustee shall discontinue payments to Plan participants or their
      beneficiaries and shall hold the assets of the Trust for the benefit of
      the general creditors of the Employer. Nothing in this Trust Agreement
      shall in any way diminish any rights of Plan participants or their
      beneficiaries to pursue their rights as general creditors of the Employer
      with respect to benefits due under the Plan or
  otherwise.

            


    

     

    
      	 	
              (iv)

            	
              The
      Trustee shall resume the payment of benefits to Plan participants or their
      beneficiaries in accordance with Section 2 of this Trust Agreement only
      after the Trustee has determined that the Employer is not Insolvent (or is
      no longer Insolvent).

            


    

     

    
      	
              (c)

            	
              Amount of Payments after
      Insolvency. Provided that there are sufficient assets, if the
      Trustee discontinues the payment of benefits from the Trust pursuant to
      Section 3(b) hereof and subsequently resumes such payments, the first
      payment following such discontinuance shall include the aggregate amount
      of all payments due to Plan participants or their beneficiaries under the
      terms of the Plan for the period of such discontinuance, less the
      aggregate amount of any payments made to Plan participants provided for
      hereunder during any such period of discontinuance; provided that the
      Employer has given the Trustee the information with respect to such
      payments made during the period of discontinuance prior to resumption of
      payments by the Trustee.

            


    

     

    
      	
              (d)

            	
              Parent Assets after
      Insolvency. Notwithstanding the foregoing provisions of this
      Section 3, to the extent a parent corporation, if any ("Parent"),
      contributes Parent stock or other assets to the Trust to satisfy any
      subsidiary corporation's obligations to the Plan participants and
      beneficiaries ("Parent Assets"), such Parent Assets are subject to claims
      of both the general creditors of the subsidiary corporation as well as the
      general creditors of the Parent.

            


    

     

    Section
4.  Payments To The Employer

     

     

    Except as
provided in Section 2(a), Section 2(c) and Section 3 hereof, since the Trust is
irrevocable, in accordance with Section 1(b) hereof, the Employer shall have no
right or power to direct the Trustee to return to the Employer or to divert to
others any of the Trust assets before the payment of all benefits have been made
to Plan participants and their beneficiaries

     

    pursuant
to the terms of the Plan and this Trust Agreement.

     

    Section
5.  Investment Authority

     

     

    
      	
              (a)

            	
              Investment of Principal and
      Interest. The Trustee shall invest and reinvest the principal and
      income of the Trust as directed by the Employer (including directions that
      the Trustee follow Plan participants' deemed investment elections made in
      accordance with the terms of the Plan), which directions may be changed
      from time to time, all in accordance with procedures established by the
      Trustee. The Trustee may limit the categories of assets in which the Trust
      may be invested.

            


    

     

    
      	
              (b)

            	
              Voting Rights. The
      Trustee may invest in securities (including stock or rights to acquire
      stock) or obligations issued by the Employer. All rights associated with
      assets of the Trust shall be exercised by the Trustee or the person
      designated by the Trustee, and shall in no event be exercised by or rest
      with Plan participants, except that voting rights with respect to Trust
      assets will be exercised by the Employer, unless an investment adviser has
      been appointed pursuant to Section 5(d) and voting authority has been
      delegated to such investment
adviser.

            


    

     

    
      	
              (c)

            	
              Substitution of
      Assets. The Employer shall have the right at any time, and from
      time to time in its sole discretion, to substitute assets of equal fair
      market value for any asset held by the Trust. This right is
    

            




    
      
         


      

      
         


        
          

        

      

      
         


      

    


     

    
      	
               

            	
              exercised
      by the Employer in a nonfiduciary capacity without the approval or consent
      of any person in a fiduciary
capacity.

            


    

     

    
      	
              (d)

            	
              Appointment of Investment
      Manager. The Employer may appoint one or more investment managers,
      including any entities affiliated with the Trustee, who shall have the
      power to manage, acquire, or dispose of such portion of the assets of the
      Trust as the Employer shall determine subject to the
      following:

            


    

     

    
      	
               
      

            	
              (i)

            	
              An
      investment manager shall act in accordance with the provisions of an
      investment management agreement entered into between it and the Employer,
      an executed copy of which investment management agreement shall be filed
      with the Trustee;

            


    

     

    
      	
               
      

            	
              (ii)

            	
              Each
      such investment manager must be: (i) registered as an investment adviser
      under the Investment Advisers Act of 1940; (ii) if not registered as an
      investment adviser under such Act because of paragraph (1) of Section
      203A(a) of such Act, is registered as an investment adviser under the laws
      of the state (referred to in such paragraph (1)) in which it maintains its
      principal office and place of business and satisfied any applicable filing
      requirements; (iii) a bank, as defined in said Act; (iv) an insurance
      company qualified to manage, acquire and dispose of the assets of the Plan
      under the laws of more than one state of the United States; or (v) an
      independent third party that shall be designated or appointed by the
      Employer, and that shall provide investment advice on a discretionary or
      nondiscretionary basis with respect to that portion of the assets of the
      Trust as the Employer shall specify from time to time by written
      direction(s) to the Trustee;

            


    

     

    
      	 	
              (iii)

            	
              The
      indicia of ownership of the assets of the Trust shall be held by the
      Trustee at all times, unless another custodian is appointed by the
      Employer;

            


    

     

    
      	 	
              (iv)

            	
              Any
      entity affiliated with the Trustee may act as broker or dealer to execute
      transactions, including the purchase of any securities directly
      distributed, underwritten, or issued by an entity affiliated with the
      Trustee, at standard commission rates, mark-ups or concessions, and to
      provide other management or investment services with respect to such
      trust, including the custody of
assets;

            


    

     

    
      	
               
      

            	
              (v)

            	
              Any
      direction provided to the Trustee by an investment manager shall be
      provided in writing or given orally and confirmed in writing, or by
      telephonic or electronic methods acceptable to the Trustee as soon as
      practicable. Alternatively, an investment manager may provide investment
      instructions directly to the broker or dealer and receipt by the Trustee
      of a confirmation of the transaction from the broker or dealer shall be
      conclusive evidence of such transactions. In either case, the Trustee
      shall have the authority within twenty-four (24) hours of receipt of such
      direction from the investment manager or confirmation of a transaction to
      instruct the investment manager to rescind the transaction if the Trustee
      determines that the investment is inconsistent with its operational or
      administrative requirements; and

            


    

     

    
      	 	
              (vi)

            	
              The
      Trustee may pay any such investment manager for any such services from the
      assets of the Trust without reduction for any fees or compensation paid to
      the Trustee for its services as
trustee.

            


    

     

    Notwithstanding
any other provision of the Trust Agreement to the contrary, with respect to the
investment of the assets of the Trust managed by an investment manager, the
Trustee shall have only the duty to follow the directions of the investment
manager and the Trustee shall not be liable to anyone and shall be completely
indemnified and held harmless by the Employer:

     

    
      	
               
      

            	
              (I)

            	
              for
      an act or omission of the investment manager (including an act or omission
      by the Trustee pursuant to the direction of the investment manager) with
      respect to the investment of such
assets;

            


    

     

    
      	
               
      

            	
              (II)

            	
              for
      failing to act with respect to the investment or reinvestment of such
      assets absent direction from the investment manager;
  or

            


    

     

    
      	 	
              (III)

            	
              for
      failing to invest, periodically review, diversify or otherwise deal with
      the investment of such assets.

            


    

     

    In the
event the Employer is Insolvent for purposes of Section 3 and the Employer fails
to provide effective investment instructions to the Trustee as provided in
Section 5(a), the Trustee may appoint one or more investment advisers who are
registered
as investment advisers under the Investment Advisers Act of 1940, who may be
affiliates of the Trustee, to provide investment advice on a discretionary or
non-discretionary basis with respect to all or a specified portion of the assets
of the Trust.

    
       

      
        	
                (e)

              	
                Powers of Trustee.
      Subject to Section 5(a), the Trustee, or the Trustee's designee, is
      authorized and empowered:

              




    

    
      
         


      

      
         


        
          

        

      

      
         


      

    


     

    
      	
               
      

            	
              (i)

            	
              To
      invest and reinvest Trust assets, together with the income therefrom, in
      common stock, preferred stock, convertible preferred stock, bonds,
      debentures, convertible debentures and bonds, mortgages, notes, commercial
      paper and other evidences of indebtedness (including those issued by the
      Trustee), shares of mutual funds (which funds may be sponsored, managed or
      offered by an affiliate of the Trustee), guaranteed investment contracts,
      bank investment contracts, other securities, policies of life insurance,
      annuity contracts, options, options to buy or sell securities or other
      assets, and all other property of any type (personal, real or mixed, and
      tangible or intangible);

            


    

     

    
      	
               
      

            	
              (ii)

            	
              To
      deposit or invest all or any part of the assets of the Trust in savings
      accounts or certificates of deposit or other deposits in a bank or savings
      and loan association or other depository institution, including the
      Trustee or any of its affiliates, provided with respect to such deposits
      with the Trustee or an affiliate the deposits bear a reasonable interest
      rate;

            


    

     

    
      	 	
              (iii)

            	
              To
      hold, manage, improve, repair and control all property, real or personal,
      forming part of the Trust; to sell, convey, transfer, exchange, partition,
      lease for any term, even extending beyond the duration of this Trust, and
      otherwise dispose of the same from time to
time;

            


    

     

    
      	 	
              (iv)

            	
              To
      hold in cash, without liability for interest, such portion of the Trust as
      is pending investments, or payment of expenses, or the distribution of
      benefits;

            


    

     

    
      	
               
      

            	
              (v)

            	
              To
      take such actions as may be necessary or desirable to protect the Trust
      from loss due to the default on mortgages held in the Trust including the
      appointment of agents or trustees in such other jurisdictions as may seem
      desirable, to transfer property to such agents or trustees, to grant to
      such agents such powers as are necessary or desirable to protect the
      Trust, to direct such agent or trustee, or to delegate such power to
      direct, and to remove such agent or
trustee;

            


    

     

    
      	 	
              (vi)

            	
              To
      settle, compromise or abandon all claims and demands in favor of or
      against the Trust;

            


    

     

    
      	 	
              (vii)

            	
              To
      exercise all of the further rights, powers, options and privileges
      granted, provided for, or vested in trustees generally under the laws of
      the state in which the Trustee has its principal place of business so that
      the powers conferred upon the Trustee herein shall not be in limitation of
      any authority conferred by law, but shall be in addition
      thereto;

            


    

     

    
      	 	
              (viii)

            	
              To
      borrow money from any source and to execute promissory notes, mortgages or
      other obligations and to pledge or mortgage any trust assets as security;
      and

            


    

     

    
      	 	
              (ix)

            	
              To
      maintain accounts at, execute transactions through, and lend on an
      adequately secured basis stocks, bonds or other securities to, any
      brokerage or other firm, including any firm which is an affiliate of the
      Trustee.

            


    

     

    Section
6.  Additional Powers Of The Trustee

     

     

    To the
extent necessary or which it deems appropriate to implement its powers under
Section 5 or otherwise to fulfill any of its duties and responsibilities as the
Trustee of the Trust, the Trustee shall have the following additional powers and
authority:

     

    
      	
              (a)

            	
              To
      register securities, or any other property, in its name or in the name of
      any nominee, including the name of any affiliate or the nominee name
      designated by any affiliate, with or without indication of the capacity in
      which property shall be held, or to hold securities in bearer form and to
      deposit any securities or other property in a depository or clearing
      corporation;

            


    

     

    
      	
              (b)

            	
              To
      designate and engage the services of, and to delegate powers and
      responsibilities to, such agents, representatives, advisers, counsel and
      accountants as the Trustee considers necessary or appropriate, any of whom
      may be an affiliate of the Trustee or a person who renders services to
      such an affiliate, and, as part of its expenses under this Trust
      Agreement, to pay their reasonable expenses and
    compensation;

            


    

     

    
      	
              (c)

            	
              To
      make, execute and deliver, as the Trustee, any and all deeds, leases,
      mortgages, conveyances, waivers, releases or other instruments in writing
      necessary or appropriate for the accomplishment of any of the powers
      listed in this Trust Agreement; and

            


    

     

    
      
        	
                (d)

              	
                Generally
      to do all other acts which the Trustee deems necessary or appropriate for
      the protection of the Trust.

              


      

       

      Section
7.  Disposition of Income

       

    

    
 

    
      
         


      

      
         


        
          

        

      

      
         


      

    


    During
the term of this Trust Agreement, all income received by the Trust, net of
expenses and taxes, shall be accumulated and reinvested.

     

    Section
8.  Accounting By The Trustee

     

     

    The
Trustee shall keep accurate and detailed records of all investments, receipts,
disbursements, and all other transactions required to be made, including such
specific records as shall be agreed upon in writing between the Employer and the
Trustee. Within ninety (90) calendar days following the close of each calendar
year and within ninety (90) calendar days after removal or resignation of the
Trustee, the Trustee shall deliver to the Employer a written account of its
administration of the Trust during such year or during the period from the close
of the last preceding year to the date of such removal or resignation, setting
forth all investments, receipts, disbursements and other transactions effected
by it, including a description of all securities and investments purchased and
sold with the cost or net proceeds of such purchases or sales (accrued interest
paid or receivable being shown separately), and showing all cash, securities and
other property held in the Trust at the end of such year or as of the date of
such removal or resignation, as the case may be. The Trustee may satisfy its
obligation under this Section 8 by rendering to the Employer monthly statements
setting forth the information required by this Section separately for the month
covered by the statement.

     

    Section
9.  Responsibility And Indemnity Of The Trustee

     

     

    
      	
              (a)

            	
              Standard of Conduct.
      The Trustee shall act with the care, skill, prudence and diligence under
      the circumstances then prevailing that a prudent person acting in like
      capacity and familiar with such matters would use in the conduct of an
      enterprise of a like character and with like aims, provided, however, that
      the Trustee shall incur no liability to any person for any action taken
      pursuant to a direction, request or approval given by the Employer which
      is contemplated by, and in conformity with, the terms of the Plan and this
      Trust and is given in writing by the Employer or in such other manner
      prescribed by the Trustee. The Trustee shall also incur no liability to
      any person for any failure to act in the absence of direction, request or
      approval from the Employer which is contemplated by, and in conformity
      with, the terms of this Trust. In the event of a dispute between the
      Employer and a party, the Trustee may apply to a court of competent
      jurisdiction to resolve the
dispute.

            


    

     

    
      	
              (b)

            	
              Indemnification of
      Trustee. The Employer hereby indemnifies the Trustee and each of
      its affiliates (collectively, the “Indemnified Parties”) against, and
      shall hold them harmless from, any and all loss, claims, liability, and
      expense, including reasonable attorneys' fees, imposed upon or incurred by
      any Indemnified Party as a result of any acts taken, or any failure to
      act, in accordance with the directions from the Employer or any designee
      of the Employer, or by reason of the Indemnified Party's good faith
      execution of its duties with respect to the Trust, including, but not
      limited to, its holding of assets of the Trust. The Trustee is authorized
      to prosecute or defend actions, suits, claims or proceedings for the
      protection of Trust assets and of the Trustee in the performance of the
      duties of the Trustee and to represent the Trust in all actions, suits,
      claims or proceedings. The Trustee shall have the authority to pay,
      contest or settle any claim by or against the Trust by compromise,
      arbitration or otherwise; to release, in whole or in part, any claim
      belonging to the Trust to the extent that the claim is deemed
      uncollectible by the Trustee. Notwithstanding the foregoing, the Trustee
      may only pay or settle a claim assessed against the Trust by the Employer
      if it is compelled to do so by a final order of a court of competent
      jurisdiction which is not subject to appeal. The Employer agrees to
      indemnify the Trustee against the Trustee's costs, expenses and
      liabilities (including, without limitation, attorneys' fees and expenses)
      relating thereto. The Employer's obligations in the foregoing regard shall
      be satisfied promptly by the Employer, provided that in the event the
      loss, claim, liability or expense involved is determined by a no longer
      appealable final judgment entered in a lawsuit or proceeding to have
      resulted from the gross negligence or willful misconduct of the Trustee,
      the Trustee shall promptly on request thereafter return to the Employer
      any amount previously received by the Trustee under this Section with
      respect to such loss, claim, liability or expense. If the Employer does
      not pay such costs, expenses and liabilities in a reasonably timely
      manner, the Trustee may obtain payment from the Trust without direction
      from the Employer.

            


    

     

    
      	
              (c)

            	
              Legal Counsel. The
      Trustee may consult with legal counsel (who may also be counsel for the
      Employer generally) with respect to any of its duties or obligations
      hereunder,

            


    

     

    
      
        	
                (d)

              	
                Other Advisers. The
      Trustee may hire agents, accountants, actuaries, investment advisers,
      financial consultants or other professionals to assist it in performing
      any of its duties or obligations
hereunder.

              


      

       

      
        	
                (e)

              	
                Authority of
      Trustee. The Trustee shall have, without exclusion, all powers
      conferred on the Trustee by applicable law unless expressly provided
      otherwise herein, provided, however, that if an insurance policy is held
      as an asset of the 

              


      

       

    

    
 

    
      
         


      

      
         


        
          

        

      

      
         


      

    


    
      	
               

            	
              Trust,
      the Trustee shall have no power to name a beneficiary of the policy other
      than the Trust, to assign the policy (as distinct from conversion of the
      policy to a different form) other than to a successor Trustee, or to loan
      to any person the proceeds of any borrowing against such
      policy.

            


    

     

    
      	
              (f)

            	
              Limitation on
      Trustee. Notwithstanding any powers granted to the Trustee pursuant
      to this Trust Agreement or to applicable law, the Trustee shall not have
      any power that could give this Trust the objective of carrying on a
      business and dividing the gains therefrom, within the meaning of Section
      301.7701-2 of the Procedure and Administrative Regulations promulgated
      pursuant to the Internal Revenue
Code.

            


    

     

    Section
10.  Compensation And Expenses Of The Trustee

     

     

    The
Trustee is authorized, unless otherwise agreed by the Trustee, to withdraw from
the Trust without direction from the Employer the amount of its fees in
accordance with the fee schedule agreed to in writing by the Employer and the
Trustee. The Employer shall pay all administrative expenses, but if not so paid,
the expenses shall be paid from the Trust.

     

    Section
11.  Resignation And Removal Of The Trustee

     

     

    
      	
              (a)

            	
              Resignation of
      Trustee. The Trustee may resign at any time by written notice to
      the Employer, which shall be effective sixty (60) calendar days after
      receipt of such notice unless the Employer and the Trustee agree
      otherwise.

            


    

     

    
      	
              (b)

            	
              Removal of Trustee.
      The Trustee may be removed by the Employer on sixty (60) calendar days'
      written notice or upon shorter written notice accepted by the
      Trustee.

            


    

     

    
      	
              (c)

            	
              Transfer of Assets to
  Successor.

            


    

     

    
      	
               
      

            	
              (i)

            	
              Upon
      resignation or removal of the Trustee and appointment of a successor
      Trustee, all assets shall subsequently be transferred to the successor
      Trustee. The transfer shall be completed within 60 days after receipt of
      notice of resignation, removal or transfer, unless the Employer extends
      the time limit, provided that the Trustee is provided assurance by the
      Employer satisfactory to the Trustee that all fees and expenses reasonably
      anticipated will be paid.

            


    

     

    
      	
               
      

            	
              (ii)

            	
              Upon
      settlement of the account and transfer of the Trust assets to the
      successor Trustee, all rights and privileges under this Trust Agreement
      shall vest in the successor Trustee and all responsibility and liability
      of the Trustee with respect to the Trust and assets thereof shall
      terminate subject only to the requirement that the Trustee execute all
      necessary documents to transfer the Trust assets to the successor
      Trustee.

            


    

     

    Section
12.  Appointment Of Successor

     

     

    
      	
              (a)

            	
              Employer Appointment of
      Successor. If the Trustee resigns or is removed in accordance with
      Section 11(a) or Section 11(b), the Employer may appoint any third party,
      such as a bank trust department or other party that may be granted
      corporate trustee powers under state law, as a successor to replace the
      Trustee upon resignation or removal. The appointment shall be effective
      when accepted in writing by the new Trustee, who shall have all of the
      rights and powers of the former Trustee, including ownership rights in the
      Trust assets. The former Trustee shall execute any instrument necessary or
      reasonably requested by the Employer or the successor Trustee to evidence
      the transfer.

            


    

     

    
      	
              (b)

            	
              Court Appointment of
      Successor. If the Trustee resigns or is removed, a successor shall
      be appointed, in accordance with Section 12(a) hereof, by the effective
      date of resignation or removal under Section 11(a) or Section 11(b). If no
      such appointment has been made, the Trustee may apply to a court of
      competent jurisdiction for appointment of a successor or for instructions.
      All expenses of the Trustee in connection with the proceeding shall be
      allowed as administrative expenses of the
Trust.

            


    

     

    
      
        	
                (c)

              	
                Duty of Successor
      Trustee. The successor Trustee need not examine the records and
      acts of any prior Trustee and may retain or dispose of existing Trust
      assets, subject to Sections 8 and 9. The successor Trustee shall not be
      responsible for and the Employer shall indemnify and defend the successor
      Trustee from any claim or liability resulting from any action or inaction
      of any prior Trustee or from any other past event, or any condition
      existing at the time it becomes successor
  Trustee.

              


      

       

      Section
13.  Amendment Or Termination

       

       

      
        	
                (a)

              	
                Amendment. This Trust Agreement may be
      amended by a written instrument executed by the Trustee and the Employer.
      

              


      

       

    

    
 

    
      
         


      

      
         


        
          

        

      

      
         


      

    


    
      	
               

            	
              Notwithstanding
      the foregoing, no such amendment shall conflict with the terms of the Plan
      or shall make the Trust revocable, since the Trust is irrevocable in
      accordance with Section 1(b)
hereof.

            


    

     

    
      	
              (b)

            	
              Termination by
      Employer. The Trust shall not terminate until the date on which
      Plan participants and their beneficiaries are no longer entitled to
      benefits pursuant to the terms of the Plan. Upon termination of the Trust
      any assets remaining in the Trust shall be returned to the Employer.
      Notwithstanding the preceding sentence, if Parent Assets remain in the
      Trust at termination, such Parent Assets shall be returned to
      Parent.

            


    

     

    
      	
              (c)

            	
              Termination with
      Participant Approval. Upon written approval of participants or
      beneficiaries entitled to payment of benefits pursuant to the terms of the
      Plan, the Employer may terminate this Trust prior to the time all benefit
      payments under the Plan have been made. All assets in the Trust at
      termination shall be returned to the Employer. Notwithstanding the
      preceding sentence, if Parent Assets remain in the Trust at termination,
      such Parent Assets shall be returned to
Parent.

            


    

     

    Section
14.  Miscellaneous

     

     

    
      	
              (a)

            	
              Severability. Any
      provision of this Trust Agreement prohibited by law shall be ineffective
      to the extent of any such prohibition, without invalidating the remaining
      provisions hereof.

            


    

     

    
      	
              (b)

            	
              No Assignment of
      Benefits. Benefits payable to Plan participants and their
      beneficiaries under this Trust Agreement may not be anticipated, assigned
      (either at law or in equity), alienated, pledged, encumbered or subjected
      to attachment, garnishment, levy, execution or other legal or equitable
      process.

            


    

     

    
      	
              (c)

            	
              Governing Law. This
      Trust Agreement and its enforcement shall be governed by and construed in
      accordance with the laws of the State of New
  Jersey.

            


    

     

    
      	
              (d)

            	
              Survival. The
      provisions of Sections 2(d), 3(b)(iii), and 9(b) of this Trust Agreement
      shall survive termination of this Trust
  Agreement.

            


    

     

    
      	
              (e)

            	
              Conflict with Plan
      Document. The rights, duties, responsibilities, obligations and
      liabilities of the Trustee are as set forth in this Trust Agreement, and
      no provision of the Plan or any other documents shall affect such rights,
      responsibilities, obligations and liabilities. If there is a conflict
      between provisions of the Plan and this Trust Agreement with respect to
      any subject involving the Trustee, including but not limited to the
      responsibility, authority or powers of the Trustee, the provisions of this
      Trust Agreement shall be
controlling.

            


    

     

    
      	
              (f)

            	
              Shareholder Communications
      Act. The Employer agrees that the Trustee will not supply the
      Employer's name to issuers of any securities held in the Trust and,
      therefore, the Employer will not receive information regarding those
      securities directly from the issuer. Instead, the Employer will receive
      information from the Trustee, unless the Employer notifies the Trustee in
      writing otherwise.

            


    

     

    Section
15.  Arbitration

     

     

    By
signing this Trust Agreement, including this arbitration clause, the Employer
and the Trustee agree as follows:

     

    
      	
              ·

            	
              The
      Employer and the Trustee are giving up the right to sue each other in
      court, including the right to a trial by jury, except as provided by the
      rules of the arbitration forum in which a claim is
  filed.

            


    

     

    
      	
              ·

            	
              Arbitration
      awards are generally final and binding; a party's ability to have a court
      reverse or modify an arbitration award is very
  limited.

            


    

     

    
      	
              ·

            	
              The
      ability of the Employer and the Trustee to obtain documents, witness
      statements and other discovery generally more limited in arbitration than
      in court proceedings.

            


    

     

    
      	
              ·

            	
              The
      arbitrators do not have to explain the reason(s) for their
      award.

            


    

     

    
      	
              ·

            	
              The
      panel of arbitrators will typically include a minority of arbitrators who
      were or are affiliated with the securities industry.

            


    

     

    
      	
              ·

            	
              The
      rules of some arbitration forums may impose time limits for bringing a
      claim in arbitration. In some cases, a claim that is ineligible for
      arbitration may be brought in
court.

            


    

     

     

    
      
         


      

      
         


        
          

        

      

      
         


      

    


    
      	
              ·

            	
              The
      rules of the arbitration forum in which the claim is filed, and any
      amendments thereto, shall be incorporated into this
    agreement.

            


    

     

    The
undersigned Employer and Trustee agree that all controversies which may arise between the
Employer and the Trustee in connection with this Trust Agreement, including but
not limited to those involving any transaction related to the Plan or the Plan
accounts, or the construction, performance, or breach of this or any other
agreement between the Employer and the Trustee, whether entered into prior to,
on, or subsequent to the date hereof, shall be determined by
arbitration.

     

    Any
arbitration pursuant to this provision shall be conducted only before the
Financial Industry Regulatory Authority, Inc. (FINRA) or an arbitration facility
provided by any other exchange on which Merrill Lynch, Pierce, Fenner &
Smith, Incorporated ("MLPF & S") is a member, and in accordance with the
respective arbitration rules then in effect of FINRA or such other
exchange.

     

    The
Employer may elect in the first instance whether arbitration shall be conducted
before FINRA or another exchange of which MLPF & S is a member. If the
Employer fails to make such election by registered letter addressed
to:

     

    Director
- Non-Qualified Deferred Compensation Product

    Merrill
Lynch, Pierce, Fenner & Smith Incorporated Retirement Group

    1400
Merrill Lynch Drive, MSC 0602

    Pennington,
NJ 014534

     

    before
the expiration of five (5) days after receipt of a written request from the
Trustee to make such election, then the Trustee may make such election. Judgment
upon the award of arbitrators may be entered in any court, state or federal,
having jurisdiction. No person shall bring a putative or certified class action
to arbitration, nor seek to enforce any pre-dispute arbitration agreement
against any person: who has initiated in court a putative class action, or who
is a member of a putative class who has not opted out of the class with respect
to any claims encompassed by the putative class action until:

     

    (i)       
the class certification is denied;

    (ii)     
 the class is decertified; or

    (iii)      the
person is excluded from the class by the court.

     

    Such
forbearance to enforce an agreement to arbitrate shall not constitute a waiver
of any rights under this Trust Agreement except to the extent stated
herein.

     


    
      
         


      

      
         


        
          

        

      

      
         


      

    


    EMPLOYER
COPY

     

    BY
SIGNING THIS TRUST AGREEMENT, THE UNDERSIGNED EMPLOYER ACKNOWLEDGES (I) THAT, IN
ACCORDANCE WITH SECTION 15 ABOVE, THE UNDERSIGNED IS AGREEING ON BEHALF OF THE
PLAN IN ADVANCE TO ARBITRATE ANY CONTROVERSIES WHICH MAY ARISE WITH THE TRUSTEE
AND (2) RECEIPT OF A COPY OF THIS TRUST AGREEMENT.

     

    
      	
              Merrill
      Lynch Bank & Trust Co., FSB

            	
              Employer:
      Weingarten Realty Investors

            
	
              By:
      /s/ A. Scott Roberto

            	
              By:
      /s/ Mickey Townsell

            
	
              Name/Title:
      Trust Officer

            	
              Name/Title:
      VP HR

            
	
              Date:
      9/1/09

            	
              Date:
      6/22/09

            


    

     

    



    
      
         


      

      
         


        
          

        

      

      
         


      

    


     

    TRUSTEE
COPY

     

    BY
SIGNING THIS TRUST AGREEMENT, THE UNDERSIGNED EMPLOYER ACKNOWLEDGES (I) THAT, IN
ACCORDANCE WITH SECTION 15 ABOVE, THE UNDERSIGNED IS AGREEING ON BEHALF OF THE
PLAN IN ADVANCE TO ARBITRATE ANY CONTROVERSIES WHICH MAY ARISE WITH THE TRUSTEE
AND (2) RECEIPT OF A COPY OF THIS TRUST AGREEMENT.

     

    
      	
              Merrill
      Lynch Bank & Trust Co., FSB

            	
              Employer:
      Weingarten Realty Investors

            
	
              By:
      /s/ A. Scott Roberto

            	
              By:
      /s/ Mickey Townsell

            
	
              Name/Title:
      Trust Officer

            	
              Name/Title:
      VP HR

            
	
              Date:
      9/1/09

            	
              Date:
      6/22/09