FIRST AMENDMENT TO THE MASTER NONQUALIFIED PLAN TRUST AGREEMENT
FIRST
AMENDMENT TO THE
THIS
FIRST AMENDMENT (this “First Amendment”) to the Master Nonqualified Plan Trust
Agreement (the “Trust Agreement”) by and between Xxxxxxxxxx Realty Investors, a
real estate investment trust organized under the laws of the State of Texas (the
“Company”) and Reliance Trust Company, a trust company organized under the laws
of the State of Georgia (the “Trustee”) is hereby adopted as of the date set
forth on the signature page below.
W I T N E S S E T H:
WHEREAS,
the Company and the Trustee entered into the Trust Agreement on August 1, 2006;
and
WHEREAS,
Section 13(a) of the Trust Agreement provides for the amendment of the Trust
Agreement by written instrument executed by the Company and the Trustee;
and
WHEREAS,
the Company and the Trustee now desire to amend the Trust
Agreement;
NOW,
THEREFORE, the Company and the Trustee hereby amend the Trust Agreement,
effective as of the date set forth on the signature page of this First
Amendment, as follows:
1.
The
second sentence of Section 1(e) of the Trust Agreement is hereby amended to
delete the term “their Employer” and replace the term with “the
Company.”
2.
For
purposes of Section 2(f) of the Trust Agreement, the Company is hereby named an
Authorized Party for all purposes under the Trust Agreement and the names and
signatures of persons the Company has authorized to direct the Trustee are
attached here to as EXHIBIT
A.
3.
The directions provided to the Trustee
under the Certified Copy of Resolutions of the Trust Managers of Xxxxxxxxxx
Realty Investors included herewith as EXHIBIT B constitute
Authorized Instructions as defined in Section 2(g) for all purposes under the
Trust Agreement.
4.
Section 4 of the Trust Agreement is
hereby amended by adding the following additional sentence at the end of the
current text.
The
Company hereby acknowledges and agrees that the Authorized Instructions
described at EXHIBIT B to the First Amendment of this Trust Agreement constitute
a direction by the Company to the Trustee to invest Trust assets in an
obligation of the Company, as expressly permitted under Sections 5(b) and 5(d),
and that such investment
does not
constitute a return or diversion of any assets of Trust. The Company
agrees to indemnify fully the Trustee under Section 9 of this Trust Agreement
for any liability it may incur or that may arise in connection with the
Trustee’s compliance with these Authorized Instructions.
5.
The first sentence of Section 9(a) of
the Trust Agreement is hereby deleted in its entirety and replaced by the
following:
The
Trustee shall act with reasonable care, provided, however, that the Trustee
shall incur no liability to any person for any action taken pursuant to an
Authorized Instruction or any other written direction, request or approval from
the Company that is contemplated by, and in conformity with, the terms of this
Trust Agreement and the Participating Plans.
6.
The first
sentence of Section 9(b) is hereby deleted in its entirety and replaced by the
following:
The
Company hereby indemnifies the Trustee and each of its directors, officers,
employees, agents, successors and affiliates (individually, an “Indemnified
Party” and collectively, the “Indemnified Parties”) against, and shall hold them
harmless from, any and all losses, claims, liabilities, and expenses, including
reasonable attorneys’ fees, any or all of the Indemnified Parties
incur as a result of any acts taken, or any failure to act, in accordance with
the directions, including, without limitation, any Authorized Instructions, from
any Authorized Party, the Company, or any designee of the Company, or by reason
of the Indemnified Party’s good faith execution of its duties under this Trust
Agreement or the Trust, including, but not limited to, its holding of assets of
the Trust.
7.
Section
9(c) of the Trust Agreement is hereby deleted in its entirety and replaced by
the following:
The
Trustee shall incur no liability to anyone for any action that it or the
Custodian as its delegate takes pursuant to a direction, request or approval
(including, without limitation, any Authorized Instruction) from the Company,
Participants, the Investment Committee, the Administrator or by any other party
(including, without limitation, any Authorized Party and the Recordkeeper) to
whom authority to give such direction, request or approval is delegated under
the powers conferred upon the Company, Participants, the Investment Committee,
the Administrator or such other party under this Trust Agreement.
Except as
specifically amended hereby, the Trust Agreement shall remain in full force and
effect as prior to this First Amendment.
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IN
WITNESS WHEREOF, the Company and the Trustee have caused this First Amendment to
be duly executed as of the 12th day
of March, 2009.
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XXXXXXXXXX
REALTY INVESTORS
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By:
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/s/ Xxxxxxx X. Xxxxxxx | |
| Xxxxxxx X. Xxxxxxx | |||
| Its: | Executive Vice Pres., Chief Financial Officer | ||
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RELIANCE
TRUST COMPANY
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By:
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/s/ Xxxxxxxx Xxxx | |
| Xxxxxxxx Xxxx | |||
| Its: | Vice President | ||
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