Unassociated Document

0001193805-09-002163.txt : 20091106 0001193805-09-002163.hdr.sgml : 20091106 20091106104735 ACCESSION NUMBER: 0001193805-09-002163 CONFORMED SUBMISSION TYPE: 8-K PUBLIC DOCUMENT COUNT: 4 CONFORMED PERIOD OF REPORT: 20091103 ITEM INFORMATION: Results of Operations and Financial Condition ITEM INFORMATION: Amendments to Articles of Incorporation or Bylaws; Change in Fiscal Year ITEM INFORMATION: Regulation FD Disclosure ITEM INFORMATION: Other Events ITEM INFORMATION: Financial Statements and Exhibits FILED AS OF DATE: 20091106 DATE AS OF CHANGE: 20091106 FILER: COMPANY DATA: COMPANY CONFORMED NAME: Winthrop Realty Trust CENTRAL INDEX KEY: 0000037008 STANDARD INDUSTRIAL CLASSIFICATION: REAL ESTATE INVESTMENT TRUSTS [6798] IRS NUMBER: 346513657 STATE OF INCORPORATION: OH FISCAL YEAR END: 1231 FILING VALUES: FORM TYPE: 8-K SEC ACT: 1934 Act SEC FILE NUMBER: 001-06249 FILM NUMBER: 091163201 BUSINESS ADDRESS: STREET 1: 7 BULFINCH PLACE STREET 2: SUITE 500 PO BOX 9507 CITY: BOSTON STATE: MA ZIP: 02114 BUSINESS PHONE: 6175704614 MAIL ADDRESS: STREET 1: 7 BULFINCH PLACE STREET 2: SUITE 500 PO BOX 9507 CITY: BOSTON STATE: MA ZIP: 02114 FORMER COMPANY: FORMER CONFORMED NAME: FIRST UNION REAL ESTATE EQUITY & MORTGAGE INVESTMENTS DATE OF NAME CHANGE: 19920703 FORMER COMPANY: FORMER CONFORMED NAME: FIRST UNION REALTY DATE OF NAME CHANGE: 19691012 8-K 1 e606013_8k-wrt.htm Unassociated Document

SECURITIES AND EXCHANGE COMMISSION

Washington, DC 20549

FORM 8-K

Current Report Pursuant

to Section 13 or 15(d) of the

Securities Exchange Act of 1934

Date of report (Date of earliest event reported) November 3, 2009

WINTHROP REALTY TRUST

(Exact Name of Registrant as Specified in Its Charter)

	Ohio
	(State or Other Jurisdiction of Incorporation)


001-06249		34-6513657
(Commission File Number)		(I.R.S. Employer Identification No.)

7 Bulfinch Place, Suite 500, P.O. Box 9507, Boston, Massachusetts		02114
(Address of Principal Executive Offices)		(Zip Code)

	(617) 570-4614
(Registrant's Telephone Number, Including Area Code)

n/a

(Former Name or Former Address, if Changed Since Last Report)

Check the appropriate box below if the Form 8-K filing is intended to simultaneously satisfy the filing obligations of the registrant under any of the following provisions

o	Written communications pursuant to Rule 425 under the Securities Act (17 CFT\|R 230.425)

o	Soliciting material pursuant to Rule 14a-12 under the Exchange Act (17 CFR 240.14a-12)

o	Pre-commencement communications pursuant to Rule 14d-2(b) under the Exchange Act (17 CFR 240.14d-2(b))

o	Pre-commencement communications pursuant to Rule 13e-4(c) under the Exchange Act (17 CFR 240.13e-4(c))

Item 2.02.

Results of Operations and Financial Condition

On November 5, 2009, Winthrop Realty Trust (the “Trust”) issued a press release announcing its financial results for the three months and nine months ended September 30, 2009. A copy of the release is furnished as Exhibit 99.1 to this Report on Form 8-K.

The information in this section of this Report on Form 8-K and Exhibit 99.1 attached hereto shall not be deemed “filed” for the purposes of Section 18 of the Securities Exchange Act of 1934, nor shall it be deemed incorporated by reference in any filing under the Securities Act of 1933, except as shall be expressly set forth by specific reference in such filing.

Item 5.03.

Amendments to Articles of Incorporation or Bylaws: Change in Fiscal Year.

On November 3, 2009, the Board of Trustees of the Trust approved the adoption of an amended and restated Bylaws of the Trust. The substantive amendments to the prior By-laws consist of:

An amendment to Article I, Section 6 to clarify that in determining whether a quorum is present, the shares to be counted are those which are eligible to vote on the matters to be voted upon at the meeting.

An amendment to Article I, Section 7 to provide for a more detailed description of the information required to be submitted by a shareholder of the Trust who seeks either to nominate a person for election as a trustee of the Trust or to have a proposal included in the Trust’s proxy for an annual or special meeting of shareholders.

An amendment to Article II, Section 3 to provide that notices of trustee meetings can be made by electronic mail.

An amendment to Article II, Section 7 to provide that the age qualification can be waived by the Board.

An amendment to Article VI, Section 6 to conform the excess share provision in the By-laws to the excess share provision set forth in the Trust’s Certificate of Designations for its Series B-1 Cumulative Convertible Redeemable Preferred Shares and the Trust’s Certificate of Designations for its Series C Cumulative Convertible Redeemable Preferred Shares.

Item 7.01.

Regulation FD Disclosure.

On November 5, 2009, the Trust’s management discussed the Trust’s financial results on a conference call with analysts and investors. A transcript of the conference call is furnished herewith as Exhibit 99.2.

The information in this section of this Report on Form 8-K and Exhibit 99.2 attached hereto shall not be deemed “filed” for the purposes of Section 18 of the Securities Exchange Act of 1934, nor shall it be deemed incorporated by reference in any filing under the Securities Act of 1933, except as shall be expressly set forth by specific reference in such filing.

Item 8.01.

Other Events

On November 5, 2009, the Trust announced that its Board of Trustees has declared a regular quarterly dividend of $0.1625 per common share which dividend is payable on January 15, 2010 to common shareholders of record on December 31, 2009.

Item 9.01.

Financial Statements and Exhibits.

(c)

Exhibits

3.1

By-laws of Winthrop Realty Trust as amended and restated on November 3, 2009

99.1

Press Release dated November 5, 2009

99.2

Transcript of conference call held November 5, 2009

SIGNATURES

Pursuant to the requirements of the Securities Exchange Act of 1934, the Registrant has duly caused this report to be signed on its behalf by the undersigned hereunto duly authorized on this 6th day of November, 2009.

	WINTHROP REALTY TRUST


	By:	/s/ Michael L. Ashner
		Michael L. Ashner
		Chairman and Chief Executive Officer

EX-3.1 2 e606013_ex3-1.htm Unassociated Document

WINTHROP REALTY TRUST

BY-LAWS

As Amended and Restated on

November 3, 2009

INDEX

ARTICLE I MEETINGS OF BENEFICIARIES.			1
	Section 1.	Annual Meeting.	1
	Section 2.	Special Meetings.	1
	Section 3.	Place of Meeting.	1
	Section 4.	Notice of Meetings.	1
	Section 5.	Procedure at Meetings.	1
	Section 6.	Quorum.	1
	Section 7.	Nominations and Beneficiary Business.	1
ARTICLE II TRUSTEES.			4
	Section 1.	Regular Meetings.	4
	Section 2.	Special Meetings.	4
	Section 3.	Notice of and Participation in Meetings.	5
	Section 4.	Quorum.	5
	Section 5.	Compensation of Trustees.	5
	Section 6.	Committees of the Board of Trustees.	5
	Section 7.	Qualifications of Nominees - Age.	5
	Section 8.	Acquisitions and Dispositions.	5
ARTICLE III OFFICERS			6
	Section 1.	Designation of Officers.	6
	Section 2.	Tenure of Office.	6
	Section 3.	Delegation of Duties.	6
	Section 4.	Compensation.	6
	Section 5.	Signing Checks and Other Instruments.	6
	Section 6.	Control By Trustees.	6
ARTICLE IV SHARES IN TRUST			6
	Section 1.	Issue of Certificate of Beneficial Ownership.	6
ARTICLE V AMENDMENTS.			7
	Section 1.	Amendment of By-Laws.	7
ARTICLE VI MISCELLANEOUS PROVISIONS.			7
	Section 1.	Fiscal Year.	7
	Section 2.	Notice and Waiver of Notice.	7
	Section 3.	Checks for Money.	7
	Section 4.	Form of Certificate of Beneficial Interest.	7
	Section 5.	Regulations on Transfer of Shares to Prevent Disqualification of the Trust Under the Internal Revenue Code	8
	Section 6.	Restrictions on Issuance and Transfer of Securities.	8

ARTICLE I MEETINGS OF BENEFICIARIES.

Section 1. Annual Meeting.

The annual meeting of the Beneficiaries of the Trust for the transacting of such business as shall be specified in the notice of the meeting shall be held as provided in the Declaration of Trust.

Section 2. Special Meetings.

Special meetings may be called at any time as provided in the Declaration of Trust.

Section 3. Place of Meeting.

All meetings of the Beneficiaries shall be held at the office of the Trust, or at such other place within or without the State of Ohio as may be designated, in the case of an annual meeting, by the Trustees, or, in the case of a special meeting, by the Trustees calling such meeting or by the person or persons requesting such meeting pursuant to the Declaration of Trust.

Section 4. Notice of Meetings.

Written notice of each annual or special meeting of the Beneficiaries, stating the time, place and purpose thereof shall be given in accordance with the Declaration of Trust.

Section 5. Procedure at Meetings.

At each meeting of the Beneficiaries, the Trustees shall appoint one of their number or one of the Beneficiaries to preside thereat. The Trustees shall appoint a Secretary for each such meeting, who shall be duly sworn to the faithful discharge of his duties and to keep the minutes of such meeting, which minutes shall be signed and attested by him and filed with the records of the Trust.

Section 6. Quorum.

A majority of the outstanding shares of the Trust present in person or by proxy entitled to vote at such meeting shall constitute a quorum for any annual or special meeting of Beneficiaries.

Section 7. Nominations and Beneficiary Business.

(a) Annual and Special Meetings.

(1) Nominations of persons for election to the Board and the proposal of business to be considered by the Beneficiaries may be made at an Annual or Special Meeting of the Beneficiaries (a “Meeting”), as follows: (A) pursuant to the Trust’s notice of Meeting delivered pursuant to Section 4 of these Bylaws, (B) by or at the direction of the Board, or (C) by any Beneficiary of the Trust who is a Beneficiary of record at the time of giving of notice provided for in this Section 7, who is entitled to vote at the Meeting and who complies with the notice procedures and other requirements set forth in this Section 7.

(2) For nominations or other business to be properly brought before an Annual Meeting by a Beneficiary pursuant to clause (C) of subparagraph (a)(1) of this Section 7, the Beneficiary must have given timely notice thereof in writing to the Secretary of the Trust. A Beneficiary’s notice shall be timely if delivered to, or mailed and received at, the Secretary at the principal executive offices of the Trust (i) for an Annual Meeting, not less than 120 days prior to the anniversary date of the immediately preceding Annual Meeting of Beneficiaries, or Special Meeting held in lieu thereof; provided, however, that in the event that the date of the Annual Meeting is advanced or delayed by more than 30 days from such anniversary date, notice by the Beneficiary to be timely must be so delivered not less than 120 days prior to the Annual Meeting; and (ii) for a Special Meeting, not less than 120 days prior to the date requested for such Meeting. Nothing contained in this subparagraph (a) (2) shall be deemed to supersede the provisions of Section 7.2 of the Declaration of Trust relating to business that may be transacted at a Special Meeting.

(3) In no event will the public announcement of an adjourned or postponed Meeting commence a new time period (or extend any time period) for the giving of a Beneficiary’s notice as described above. Such Beneficiary’s notice shall set forth (A) as to each person whom the Beneficiary proposes to nominate for election or re-election as a Trustee (i) all information relating to such person that is required to be disclosed in solicitations of proxies for election of Trustees, or is otherwise required, in each case pursuant to Regulation 14A under the Securities Exchange Act of 1934, as amended (the “Exchange Act”) including, without limitation, the information required as to nominees by Item 401 of Regulation S-K, as may be amended from time to time, (ii) a certification of the proponent that such nominee meets the eligibility qualifications for Trustees as may be set forth in these Bylaws or in the Declaration of Trust, (iii) the written consent of such nominee to being named in the proxy statement as a nominee and to serving as a Trustee if elected), (iv) a description of all direct and indirect compensation and other material monetary agreements, arrangements, and understandings during the past three years, and any other material relationships, between or among the Beneficiary and respective affiliates and associates, or others acting in concert therewith, on the one hand, and each proposed nominee, and his or her respective affiliates and associates, or others acting in concert therewith, on the other hand, including, without limitation all information that would be required to be disclosed pursuant to Item 404 of Regulation S-K if the Beneficiary making the nomination or on whose behalf the nomination is made, if any, or any affiliate or associate thereof or person acting in concert therewith, were the "registrant" for purposes of Item 404 and the nominee were a trustee or executive officer of such registrant, (v) a completed and signed questionnaire, representation, and agreement required by Section 7(c), and (vi) such other information as may reasonably be required by the Trust to determine the eligibility of the proposed nominee to serve as an independent trustee of the Trust or that could be material to a reasonable shareholder's understanding of the independence, or lack thereof, of the nominee; (B) as to any other business that the Beneficiary proposes to bring before the Meeting, a brief description of the business desired to brought before the Meeting (including the text of any resolutions proposed for consideration and, in the event that such business includes a proposal to amend the Declaration of Trust of the Trust, the language of the proposed amendment), the reasons for conducting such business at the Meeting, any material interest in such business of such Beneficiary and the beneficial owner, if any, on whose behalf the proposal is made, and a description of all agreements, arrangements and understandings, direct and indirect, between the Beneficiary and/or the beneficial owner, if any, on whose behalf the proposal is made, and any other person or persons (including their names) in connection with the proposal of such business by the Beneficiary, and (C) as to the Beneficiary giving the notice and the beneficial owner, if any, on whose behalf the nomination or proposal is made (i) the name and address of such Beneficiary, as they appear on the Trust’s books, and of such beneficial owner, (ii) the class and number of shares of the Trust which are owned beneficially and of record by such Beneficiary and such beneficial owner, (iii) a representation that the Beneficiary is a holder of record of stock of the Trust entitled to vote at such Meeting and intends to appear in person or by proxy at the Meeting to propose such business or nomination, and (iv) a representation whether the Beneficiary or the beneficial owner, if any, intends or is part of a group which intends (x) to deliver a proxy statement and/or form of proxy to holders of at least the percentage of the Trust’s outstanding capital stock required to approve or adopt the proposal or elect the nominee and/or (y) otherwise to solicit proxies from Beneficiaries in support of such proposal or nomination. The Trust may require any proposed nominee to furnish such other information as it may reasonably require to determine the eligibility of such proposed nominee to serve as a Trustee of the Trust. The foregoing notice requirements shall be deemed satisfied by a Beneficiary if the Beneficiary has notified the Trust of his or her intention to present a proposal at an Annual Meeting in compliance with Rule 14a-8 (or any successor thereof) promulgated under the Exchange Act and such Beneficiary’s proposal has been included in a proxy statement that has been prepared by the Trust to solicit proxies for such Annual Meeting.

(b) General.

(1) Only such persons who are nominated in accordance with the procedures set forth in this Section 7 shall be eligible to serve as Trustees and only such business shall be conducted at a Meeting of Beneficiaries as shall have been brought before the Meeting in accordance with the procedures set forth in this Section 7. Except as otherwise provided by law, the Chairman of the Meeting shall have the power and duty to determine whether a nomination or any business proposed to be brought before the Meeting was made in accordance with the procedures set forth in this Section 7 and, if any proposed nomination or business is not in compliance with this Section 7, to declare that such defective proposal shall be disregarded. Notwithstanding the foregoing provisions of this Section 7, if the Beneficiary (or a person specifically designated in writing by the Beneficiary as the representative of the Beneficiary, to the satisfaction of the Trust) does not appear in person at the Annual or Special Meeting of Beneficiaries of the Trust to present a nomination or business, such nomination shall be disregarded and such proposed business shall not be transacted, notwithstanding that proxies in respect of such vote may have been received by the Trust.

(2) For purposes of this Section 7, “public announcement” shall mean disclosure in a press release reported by a national news service or in a document publicly filed or furnished by the Trust with the Securities and Exchange Commission pursuant to Section 13, 14 or 15(d) of the Exchange Act.

(3) Nothing contained in this Section 7 shall be deemed to supersede the provisions of Article VII of the Declaration of Trust relating to Meetings of Beneficiaries.

(4) Notwithstanding the foregoing provisions of this Section 7, a Beneficiary shall also comply with all applicable requirements of the Exchange Act and the rules and regulations thereunder with respect to the matters set forth in this Section 7. Nothing in this Section 7 shall be deemed to affect any rights of Beneficiaries to request inclusion of proposals in the Trust’s proxy statement pursuant to Rule 14a-8 under the Exchange Act.

(1) To be eligible to be a nominee for election or reelection as a trustee of the Trust by a Holder, a person must complete and deliver (in accordance with the time periods prescribed for delivery of notice under this Section 7) to the Secretary at the principal executive offices of the Trust a written questionnaire providing the information requested about the background and qualifications of such person and the background of any other person or entity on whose behalf the nomination is being made and a written representation and agreement (the questionnaire, representation and agreement to be in the form provided by the Secretary upon written request) that such person:

is not and will not become a party to:

any agreement, arrangement or understanding with, and has not given any commitment or assurance to, any person or entity as to how the person, if elected as a trustee of the Trust, will act or vote on any issue or question (a "Voting Commitment") that has not been disclosed to the Trust, or

ii.

any Voting Commitment that could limit or interfere with the person's ability to comply, if elected as a trustee of the Trust, with the person's fiduciary duties under applicable law,

is not and will not become a party to any agreement, arrangement or understanding with any person or entity other than the Trust with respect to any direct or indirect compensation, reimbursement, or indemnification in connection with service or action as a trustee that has not been disclosed therein, and

in the person's individual capacity and on behalf of any person or entity on whose behalf the nomination is being made, would be in compliance, if elected as a trustee of the Trust, and will comply with all applicable publicly disclosed corporate governance, conflict of interest, confidentiality, and stock ownership and trading policies and guidelines of the Trust.

ARTICLE II TRUSTEES.

Section 1. Regular Meetings.

Regular meetings of the Trustees may be held at such times and places within or without the State of Ohio as may be provided for in resolution adopted by the Trustees.

Section 2. Special Meetings.

Special meetings of the Trustees may be held at any time or place within or without the State of Ohio upon call of the Chairman of the Board or any two of the Trustees at the time and place designated in the notice of meeting.

Section 3. Notice of and Participation in Meetings.

Notice of each meeting, regular or special, shall be given by mailing, electronic mail or by sending to each Trustee (addressed to the address last furnished to the Trust by the Trustee) a letter at least two (2) days before the meeting, or a facsimile transmittal or electronic mail at least 24 hours before the meeting. Notice of any special or regular meeting, as provided in the Declaration of Trust, may be waived in writing or by facsimile transmittal by any Trustee either before or after such meeting, and such notice shall be deemed to have been waived by the Trustees attending such meeting. Except as provided in Article VI hereof, unless otherwise indicated in the notice thereof, any business may be transacted at any regular or special meeting. Meetings of the Trustees may be held through any communications equipment if all persons participating can hear each other and participation in a meeting pursuant to this sentence shall constitute presence at such meeting.

Section 4. Quorum.

At any meeting a majority of the Trustees then in office shall constitute a quorum.

Section 5. Compensation of Trustees.

The Trustees are authorized to fix a reasonable retainer for members of the Board of Trustees, committees of the Board of Trustees and the Chairman and a reasonable fee for attendance at meetings. In addition to such compensation there shall be reimbursement for expenses for traveling to and from such meetings.

Section 6. Committees of the Board of Trustees.

The Trustee may elect from their members committees of the Board and give them any or all powers of the Trustees during intervals between the meetings of the Trustees, except that such committees shall not be empowered to declare dividends. All actions of such committees shall be reported to the Trustees at their next meeting.

Section 7. Qualifications of Nominees - Age.

No nominee for Trustee shall be more than 80 years of age at the time of his election as Trustee, nor shall any Trustee nominated for a subsequent term be more than 80 years of age at the time of his election for such subsequent term, provided that any Trustee elected prior to attaining age 80 may continue to serve the remainder of his term despite attaining the age of 80 before the expiration of his term; provided, further, the provisions of this Section 7 may be waived by a vote of a majority of the Trustees excluding any Trustee who without the granting of such waiver would not be permitted to be nominated for Trustee pursuant to this Section 7.

Section 8. Acquisitions and Dispositions.

In addition to any other approvals required by the Conflicts Committee of the Board of Trustees, if any, all investments made by the Trust in excess of $5,000,000 (other than investments in government insured securities and publicly traded securities) and all dispositions made by the Trust in excess of $5,000,000 (other than dispositions of government insured securities and publicly traded securities) shall require the prior approval of a majority of the Trustees.

ARTICLE III OFFICERS

Section 1. Designation of Officers.

The Trustees shall elect a Chairman of the Board, a Chief Executive Officer, a President, a Chief Financial Officer, a Secretary, a Treasurer, and such Vice Presidents and other officers, or assistant officers, as they shall deem advisable. Each officer and assistant officer shall have such functions and duties as the Trustees shall from time to time designate, and, in the absence of such designation, such duties as are usually associated with such office. Except as otherwise determined by the Trustees, any two or more offices may be held by the same person.

Section 2. Tenure of Office.

The officers of the Trust shall hold office at the pleasure of the Trustees, and until successors are chosen and qualified. A vacancy in any office, however created, may be filled by election by the Trustees.

Section 3. Delegation of Duties.

The Trustees may delegate the duties of any officer to any other officer and generally may control the action of the officers and require the performance of duties in addition to those mentioned herein.

Section 4. Compensation.

The Trustees are authorized to determine or to provide the method of determining the compensation of officers.

Section 5. Signing Checks and Other Instruments.

The Trustees shall determine or provide the method of determining how checks, notes, bills of exchange and similar instruments issued by or on behalf of the Trust shall be signed, countersigned, or endorsed.

Section 6. Control By Trustees.

Nothing contained herein shall be interpreted to relieve the Trustees, in any manner, of their duty to control and manage the Trust property.

ARTICLE IV SHARES IN TRUST

Section 1. Issue of Certificate of Beneficial Ownership.

The Chief Executive Officer or President shall cause to be issued to each Beneficiary one or more certificates, under the seal of the Trust, signed as provided in Article III, Section 5 hereof, certifying the number of shares owned by such Beneficiary in the Trust. Such certificates shall be countersigned by the Transfer Agent and registered by the Registrar and shall be transferable on the books of the Trust as provided in the Declaration of Trust.

ARTICLE V AMENDMENTS.

Section 1. Amendment of By-Laws.

The Trustees, by the affirmative vote of a majority, may at any meeting, provided the substance of the proposed amendment shall have been stated in a notice of the meeting, alter, change, or amend in any respect, or supersede by new by-laws, in whole or in part, any of these by-laws.

ARTICLE VI MISCELLANEOUS PROVISIONS.

Section 1. Fiscal Year.

The fiscal year of the Trust shall be as determined from time to time by the Trustees.

Section 2. Notice and Waiver of Notice.

Whenever any notice is required by these by-laws to be given, personal notice is not required unless expressly so stated; and any notice so required shall be deemed to be sufficient if given (i) by letter, by depositing the same in a post-office box in a sealed post-paid wrapper, addressed to the person entitled thereto (at his last known post-office address as shown by the register of the Trust) and such notice shall be deemed to have been given on the day of such mailing; (ii) by facsimile transmittal if transmitted via facsimile with evidence of receipt by the sender, and such notice shall be deemed to have been given on the day of such facsimile transmittal.

Section 3. Checks for Money.

All checks, drafts or orders for the payment of money shall be signed by the Treasurer or Assistant Treasurer or by such other officer, officers, Trustee or Trustees as the Trustees may from time to time designate.

Section 4. Form of Certificate of Beneficial Interest.

The form of certificate of beneficial interest representing shares of $1 par value shall be substantially as follows:

No._______________________________ Shares

WINTHROP REALTY TRUST

THIS CERTIFIES THAT_________________________ is the registered holder of ______________ Fully Paid and Non-assessable Share of Beneficial Interest, $1 Par Value, in

WINTHROP REALTY TRUST

A Trust established in business trust from under the laws of the State of Ohio under a Declaration of Trust dated as of August 1, 1961, as amended from time to time, a copy of which is on file with the Transfer Agent of the Trust by all the terms and provisions of which the holder or transferee hereof by accepting this certificate agrees to be bound. The Trust is not a bank or trust company and does not and will not solicit, receive or accept deposits as a business. The shares represented hereby are transferable on the records of the Trust only by the registered holder hereof or by his agent duly authorized in writing on delivery to a Transfer Agent of the Trust of this certificate properly endorsed or accompanied by duly executed instrument of transfer together with such evidence of the genuineness thereof and such other matters as may reasonably be required. The transferability of the shares represented hereby is subject to such regulation as may from time to time be adopted by the Trustees of the Trust and set forth in the By-Laws to which reference is hereby made to prevent transfers of shares which would result in disqualification of the Trust for taxation as a real estate investment trust under the Internal Revenue Code an amended.

This certificate is not valid unless countersigned by a Transfer Agent and registered by a Registrar of the Trust.

IN WITNESS WHEREOF, the Trustees of this Trust have caused this certificate to be signed by facsimile signatures.

[ON REVERSE SIDE]

The By-Laws of the Trust provide, among other things, that no person may acquire Trust securities (including these securities) if, thereafter, he would beneficially own more than 9.8% of the Trust’s shares of beneficial interest. In applying this restriction, convertible securities of the Trust beneficially owned by such person (including convertible securities) are to be treated as if already converted into shares of beneficial interest. A copy of the By-Laws and information about the limitation on ownership may be obtained from the Secretary of the Trust.

Section 5. Regulations on Transfer of Shares to Prevent Disqualification of the Trust Under the Internal Revenue Code

Notification of the Trust Under the Internal Revenue Code.

The Chief Executive Officer of the Trust or an officer designated by him shall:

(a) From time to time cause to be prepared a list of holders of record (with their holdings) of shares of the Trust (preferred and common) and shall designate those holders which the officer acting shall have reason to believe are not also the beneficial owners of the holdings of record in their respective names;

(b) Review the list with counsel and impose such restrictions on transfer of shares as counsel shall advise should be imposed to prevent disqualification of the Trust as a Real Estate Investment Trust under Section 856 et seq. of the Internal Revenue Code.

Section 6. Restrictions on Issuance and Transfer of Securities.

(a) (1) For the purposes of this Section 6, the following terms shall have the following meanings:

“Beneficial Ownership” shall mean ownership of Capital Stock by a Person who would be treated as an owner of such shares of Capital Stock either directly or indirectly through the application of Section 544 of the Code as modified by Section 856(h)(1)(B) of the Code. The terms “Beneficial Owner,” “Beneficially Owns” and “Beneficially Owned” shall have correlative meanings.

“Beneficiary” shall mean a beneficiary of the Charitable Trust as determined pursuant to subparagraph (b)(5) of this Section 6.

“Board of Trustees” shall mean the Board of Trustees of the Trust.

“By-Laws” shall mean the By-Laws of the Trust.

“Capital Stock” shall mean shares of beneficial interest in the Trust which are classified as Common Stock, Excess Stock or Preferred Stock, if any.

“Charitable Trust” shall mean the trust created pursuant to subparagraph (b)(1) of this Section 6.

“Charitable Trustee” shall mean the Trust, acting as trustee for the Charitable Trust, or any successor trustee appointed by the Trust.

“Code” shall mean the Internal Revenue Code of 1986, as amended from time to time.

“Constructive Ownership” shall mean ownership of Capital Stock by a Person who would be treated as an owner of such shares of Capital Stock either directly or indirectly through the application of Section 318 of the Code, as modified by Section 856(d)(5) of the Code. The terms “Constructive Owner,” “Constructively Owns” and “Constructively Owned” shall have correlative meanings.

“Equity Stock” shall mean shares of beneficial interest in the Trust which are classified as Common Stock or Preferred Stock.

“Market Price” on any date shall mean, with respect to the Common Stock, the average of the daily market price for ten consecutive trading days immediately preceding the date. The market price for each such trading day shall be determined as follows: (A) if the Common Stock is listed or admitted to trading on any securities exchange or included for quotation on the NASDAQ-National Market System, the closing price, regular way, on such day, or if no such sale takes place on such day, the average of the closing bid and asked prices on such day, as reported by a reliable quotation source designated by the Trust; (B) if the Common Stock is not listed or admitted to trading on any securities exchange or included for quotation on the NASDAQ-National Market System, the last reported sale price on such day or, if no sale takes place on such day, the average of the closing bid and asked prices on such day, as reported by a reliable quotation source designated by the Trust; or (C) if the Common Stock is not listed or admitted to trading on any securities exchange or included for quotation on the NASDAQ-National Market System and no such last reported sale price or closing bid and asked prices are available, the average of the reported high bid and low asked prices on such day, as reported by a reliable quotation source designated by the Trust, or if there shall be no bid and asked prices on such day, the average of the high bid and low asked prices, as so reported, on the most recent day (not more than ten days prior to the date in question) for which prices have been so reported; provided that if there are no bid and asked prices reported during the ten days prior to the date in question, the Market Price of the Common Stock shall be determined by the Trust acting in good faith on the basis of such quotations and other information as it considers, in its reasonable judgment, appropriate.

“Ownership Limit” shall mean 9.8% of the value of the outstanding Equity Stock of the Trust.

“Person” shall mean an individual, corporation, partnership, estate, trust (including a trust qualified under Section 401(a) or 501(c)(17) of the Code), a portion of a trust permanently set aside for or to be used exclusively for the purposes described in Section 642(c) of the Code, association, private foundation within the meaning of Section 509(a) of the Code, joint stock company or other entity and also includes a group as that term is used for purposes of Section 13(d)(3) of the Securities Exchange Act of 1934, as amended.

“Purported Beneficial Transferee” shall mean, with respect to any purported Transfer that results in Excess Stock, the purported beneficial transferee for whom the Purported Record Transferee would have acquired shares of Equity Stock if such transfer had been valid under subparagraph (a)(2) of this Section 6.

“REIT” shall mean a Real Estate Investment Trust under Section 856 of the Code.

“Restriction Termination Date” shall mean the first day after the date hereof on which the Board of Trustees of the Trust determines that it is no longer in the best interests of the Trust to attempt to, or continue to, qualify as a REIT.

“Transfer” shall mean any sale, transfer, gift, hypothecation, pledge, assignment, devise or other disposition of Capital Stock (including (i) the granting of any option or entering into any agreement for the sale, transfer or other disposition of Equity Stock or (ii) the sale, transfer, assignment or other disposition of any securities or rights convertible into or exchangeable for Capital Stock), whether voluntary or involuntary, whether of record, constructively or beneficially and whether by operation of law or otherwise.

(2) (A) Except as provided in subparagraph (a)(9) of this Section 6, from the date hereof and prior to the Restriction Termination Date, no Person shall Beneficially Own or Constructively Own shares of the outstanding Equity Stock in excess of the Ownership Limit; (B) except as provided in subparagraph (a)(9) of this Section 6, from the date hereof and prior to the Restriction Termination Date, any Transfer that, if effective, would result in any Person Beneficially Owning or Constructively Owning Equity Stock in excess of the Ownership Limit shall be void ab initio as to the Transfer of that number of shares of Equity Stock which would be otherwise Beneficially or Constructively Owned by such Person in excess of the Ownership Limit; and the intended transferee shall acquire no rights in such excess shares of Equity Stock; (C) except as provided in subparagraph (a)(9) of this Section 6, from the date hereof and prior to the Restriction Termination Date, any Transfer that, if effective, would result in the Equity Stock’s being Beneficially Owned by fewer than 100 Persons (determined without reference to any rules of attribution) shall be void ab initio as to the Transfer of that number of shares which would be otherwise Beneficially or Constructively Owned by the transferee; and the intended transferee shall acquire no rights in such excess shares of Equity Stock; and (D) from the date hereof and prior to the Restriction Termination Date, any Transfer of shares of Equity Stock that, if effective, would result in the Trust’s being “closely held” within the meaning of Section 856(h) of the Code shall be void ab initio as to the Transfer of that number of shares of Equity Stock which would cause the Trust to be “closely held” within the meaning of Section 856(h) of the Code; and the intended transferee shall acquire no rights in such shares of Equity Stock.

(3) (A) If, notwithstanding the other provisions contained in this Section 6, at any time after the date hereof and prior to the Restriction Termination Date, there is a purported Transfer or other change in the capital structure of the Trust such that any Person would either Beneficially Own or Constructively Own Equity Stock in excess of the Ownership Limit, then, except as otherwise provided in subparagraph (a)(9), such shares of Equity Stock in excess of the Ownership Limit (rounded up to the nearest whole share) shall be automatically converted into an equal number of shares of Excess Stock (such conversion shall be effective as of the close of business on the business day prior to the date of the Transfer or change in capital structure); and (B) if, notwithstanding the other provisions contained in this Section 6, at any time after the date hereof and prior to the Restriction Termination Date, there is a purported Transfer or other change in the capital structure of the Trust which, if effective, would cause the Trust to become “closely held” within the meaning of Section 856(h) of the Code, then the shares of Equity Stock being Transferred or which are otherwise affected by the change in capital structure and which, in either case, would cause the Trust to be “closely held” within the meaning of Section 856(h) of the Code (rounded up to the nearest whole share) shall be automatically converted into an equal number of shares of Excess Stock. Such conversion shall be effective as of the close of business on the business day prior to the date of the transfer or change in capital structure.

(4) If the Board of Trustees or its designees at any time determine in good faith that a transfer has taken place in violation of subparagraph (a)(2) of this Section 6 or that a Person intends to acquire or has attempted to acquire Beneficial Ownership or Constructive Ownership of any shares of Equity Stock in violation of subparagraph (a)(2) of this Section 6, the Board of Trustees or its designees shall take such action as it or they deem advisable to refuse to give effect to or to prevent such Transfer, including, but not limited to, refusing to give effect to such transfer on the books of the Trust or instituting proceedings to enjoin such Transfer; provided, however, that any Transfers or attempted Transfers in violation of subparagraph (a)(2) of this Section 6 shall be void ab initio and automatically result in the conversion described in subparagraph (a)(3), irrespective of any action (or non-action) by the Board of Trustees or its designees.

(5) Any Person who acquires or attempts to acquire shares of Equity Stock in violation of subparagraph (a)(2) of this Section 6, or any Person who is a transferee such that Excess Stock results under subparagraph (a)(3) of this Section 6, shall immediately give written notice to the Trust of such event and shall provide to the Trust such other information as the Trust may request in order to determine the effect, if any, of such transfer or attempted transfer on the Trust’s status as a REIT.

(6) From the date hereof and prior to the Restriction Termination Date: (A) every Beneficial Owner or Constructive Owner of 5.0% or more (during any periods in which the number of such Beneficial Owners or Constructive Owners exceeds 1,999) or of more than 1% (during any periods in which the number of such Beneficial Owners or Constructive Owners is fewer than 2,000), or such lower percentages as required pursuant to regulations under the Code, of the outstanding Equity Stock of the Trust shall, within 30 days after January 1 of each year, give written notice to the Trust stating the name and address of such Beneficial Owner or Constructive Owner, the number of shares of Equity Stock Beneficially Owned or Constructively Owned, and a description of how such shares are held. Each such Beneficial Owner or Constructive Owner shall provide to the Trust such additional information as the Trust may request in order to determine the effect, if any, of such Beneficial Ownership on the Trust’s status as a REIT and to ensure compliance with the Ownership Limit; and (B) each Person who is a Beneficial Owner or Constructive Owner of Equity Stock and each Person (including the stockholder of record) who is holding Equity Stock for a Beneficial Owner or Constructive Owner shall provide to the Trust such information as the Trust may request in order to determine the Trust’s status as a REIT and to ensure compliance with the Ownership Limit.

(7) Nothing contained in this Section 6 shall limit the authority of the Board of Trustees to take such other action as it deems necessary or advisable to protect the Trust and the interests of its shareholders by preservation of the Trust’s status as a REIT and to ensure compliance with the Ownership Limit.

(8) In the case of an ambiguity in the application of any of the provisions of paragraph (a) of this Section 6, including any definition contained in subparagraph (a)(1), the Board of Trustees shall have the power to determine the application of the provisions of this paragraph (a) with respect to any situation based on the facts known to it.

(9) The Board of Trustees, upon receipt of a ruling from the Internal Revenue Service or an opinion of counsel or other evidence satisfactory to the Board of Trustees and upon such other conditions as the Board of Trustees may direct, in each case provided that the restrictions contained in subparagraph (a)(2)(C) and/or subparagraph (a)(2)(D) of this Section 6 will not be violated, may exempt a Person from the Ownership Limit.

(b) (1) Upon any purported Transfer that results in Excess Stock pursuant to subparagraph (a)(3) of this Section 6, such Excess Stock shall be deemed to have been transferred to the Trust, as Charitable Trustee of a Charitable Trust for the exclusive benefit of such Beneficiary or Beneficiaries to whom an interest in such Excess Stock may later be transferred pursuant to subparagraph (b)(5) of this Section 6. Shares of Excess Stock so held in trust shall be issued and outstanding shares of the Trust. The Purported Record Transferee shall have no rights in such Excess Stock except the right to designate a transferee of such Excess Stock upon the terms specified in subparagraph (b)(5) of this Section 6. The Purported Beneficial Transferee shall have no rights in such Excess Stock except as provided in subparagraph (b)(5) of this Section 6.

(2) Excess Stock shall not be entitled to any dividends. Any dividend or distribution paid prior to the discovery by the Trust that the shares of Equity Stock have been converted for Excess Stock shall be repaid to the Trust upon demand, and any dividend or distribution declared but unpaid shall be rescinded as void ab initio with respect to such shares of Equity Stock.

(3) Subject to the preferential rights of the Preferred Stock, if any, as may be determined by the Board of Trustees of the Trust pursuant to Article SIXTH of these By-laws, in the event of any voluntary or involuntary liquidation, dissolution or winding up of, or any distribution of the assets of, the Trust, each holder of shares of Excess Stock shall be entitled to receive, ratably with each other holder of Common Stock and Excess Stock, that portion of the assets of the Trust available for distribution to its shareholders as the number of shares of the Excess Stock held by such holder bears to the total number of shares of Common Stock and Excess Stock then outstanding. The Trust, as holder of the Excess Stock in trust or, if the Trust has been dissolved, any trustee appointed by the Trust prior to its dissolution, shall distribute ratably to the Beneficiaries of the Charitable Trust, when determined, any such assets received in respect of the Excess Stock in any liquidation, dissolution or winding up of, or any distribution of the assets of, the Trust.

(4) The holders of shares of Excess Stock shall not be entitled to vote on any matters (except as may be required by the Laws of the State of Ohio applicable to the Trust).

(5) (A) Excess Stock shall not be transferable. The Purported Record Transferee may freely designate a Beneficiary of its interest in the Charitable Trust (representing the number of shares of Excess Stock held by the Charitable Trust attributable to a purported transfer that resulted in the Excess Stock), if (i) the shares of Excess Stock held in the Charitable Trust would not be Excess Stock in the hands of such Beneficiary and (ii) the Purported Beneficial Transferee does not receive a price for designating such Beneficiary that reflects a price per share for such Excess Stock that exceeds (x) the price per share such Purported Beneficial Transferee paid for the Equity Stock in the purported Transfer that resulted in the Excess Stock, or (y) if the Purported Beneficial Transferee did not give value for such shares of Excess Stock (such as through a gift, devise or other transaction), a price per share equal to the Market Price on the date of the purported Transfer that resulted in the Excess Stock. Upon such transfer of an interest in the Charitable Trust, the corresponding shares of Excess Stock in the Charitable Trust shall be automatically converted for an equal number of shares of Equity Stock, and such shares of Equity Stock shall be transferred of record to the Beneficiary of the interest in the Charitable Trust designated by the Purported Record Transferee as described above if such Equity Stock would not be Excess Stock in the hands of such Beneficiary. Prior to any transfer of any interest in the Charitable Trust, the Purported Record Transferee must give advance notice to the Trust of the intended transfer, and the Trust must have waived in writing its purchase rights under subparagraph (b)(6) of this Section 6; (B) notwithstanding the foregoing, if a Purported Beneficial Transferee receives a price for designating a Beneficiary of an interest in the Charitable Trust that exceeds the amounts allowable under subparagraph (b)(5)(A) of this Section 6, such Purported Beneficial Transferee shall pay, or cause the Beneficiary of the interest in the Charitable Trust to pay, such excess to the Trust.

(6) Shares of Excess Stock shall be deemed to have been offered for sale to the Trust, or its designee at a price per share equal to the lesser of (i) the price per share in the transaction that created such Excess Stock (or, in the case of devise or gift, the Market Price at the time of such devise or gift) and (ii) the Market Price on the date the Trust, or its designee, accepts such offer. Subject to the satisfaction of any applicable requirements of Ohio law, the Trust shall have the right to accept such offer for a period of 90 days after the later of (i) the date of the transfer that resulted in such Excess Stock and (ii) the date the Board of Trustees determines in good faith that a Transfer resulting in Excess Stock has occurred, if the Trust does not receive a notice of such Transfer pursuant to subparagraph (a)(5) of this Section 6.

(c) Nothing contained in this Section 6 or in any other provision of these By-laws shall limit the authority of the Board of Trustees to take such other action as it, in its sole discretion, deems necessary or advisable to protect the Trust and the interests of the shareholders by maintaining the Trust’s eligibility to be, and preserving the Trust’s status as, a qualified REIT under the Code.

(d) If any of the foregoing restrictions on transfer of Excess Stock is determined to be void, invalid or unenforceable by any court of competent jurisdiction, the Purported Beneficial Transferee may be deemed, at the option of the Board of Trustees, to have acted as an agent of the Trust in acquiring such Excess Stock and to hold such Excess Stock on behalf of the Trust.

(e) Nothing in this Section 6 precludes the settlement of transactions entered into through the facilities of the New York Stock Exchange.

(f) The Ownership Limit shall not apply to FUR Investors, LLC and its manager (collectively, the “FUR Persons”) so long as (i) the FUR Persons do not own more than 33% of either the total outstanding Shares or the total outstanding shares of any class of preferred shares (in either case, without giving effect to the convertibility of any preferred shares owned by Exempt Persons), and (ii) no one individual owns, directly or constructively pursuant to the application of Section 544 of the Internal Revenue Code, as modified by Section 856(h)(1)(B) and Section 856(h)(3)(A) of the Internal Revenue Code (“Code Ownership”), more than 35% of the equity interests in FUR Investors, LLC and no two individuals have Code Ownership of more than 50% of the equity interests in FUR Investors, LLC.

EX-99.1 3 e606013_ex99-1.htm Unassociated Document

WINTHROP REALTY TRUST ANNOUNCES THIRD QUARTER 2009 RESULTS

AND DECLARES FOURTH QUARTER CASH DIVIDEND

FOR IMMEDIATE RELEASE

Boston, Massachusetts – November 5, 2009 – Winthrop Realty Trust (NYSE:FUR) announced today financial and operating results for the third quarter ended September 30, 2009. All per Common Share amounts are on a diluted basis, and the presentation for the period ended September 30, 2008 has been revised to reflect the effect of the reverse stock split in November 2008.

2009 Third Quarter Highlights and Recent Events

The Company reported net income of $15.2 million or $0.90 per share for the quarter ended September 30, 2009, compared with net income of $2.2 million or $0.14 per share for the quarter ended September 30, 2008.

In July 2009 the Company sold to an unrelated third party a $35.0 million 9.75% A Note at par with respect to the first mortgage loan collateralized by an office building located at 160 Spear Street in San Francisco, California.

In October 2009 the Company commenced a rights offering to its existing Common and Preferred Shareholders pursuant to which the Company will issue up to 4,974,911 of its Common Shares at a price of $9.05 per share resulting in potential net proceeds to the Company of approximately $45.0 million. The rights offering is scheduled to expire on November 19, 2009.

Holders of 544,000 Series B-1 Preferred Shares accepted the Company’s offer and elected to convert their Series B-1 Preferred Shares into an equivalent number of the Company’s newly-issued Series C Preferred Shares, leaving 852,000 Series B-1 Preferred Shares outstanding as of November 1, 2009.

Recorded an unrealized gain on securities held at September 30, 2009 of $12.6 million.

Sold securities with a cost basis of $4.3 million for sales proceeds of $6.1 million.

Retained liquid assets consisting of cash, cash equivalents, restricted cash and marketable securities of $105.6 million at September 30, 2009.

Declared a regular quarterly cash dividend of $0.25 per Common Share, which was paid on October 15, 2009 to Common Shareholders of record on September 30, 2009. Additionally declared a quarterly cash dividend of $0.40625 per Series B-1 Preferred Share, which was paid on October 31, 2009, to Preferred Shareholders of record on October 20, 2009.

Third Quarter 2009 Financial Results

Net income applicable to Common Shares was $15.2 million, or $0.90 per Common Share, compared with net income of $2.2 million, or $0.14 per Common Share for the quarter ended September 30, 2008. The increase in income from the prior period is primarily the result of a $12.6 million unrealized gain on REIT securities carried at fair value and $2.5 million received from interest and dividends.

The Company reported Funds from Operations (FFO) of $19.9 million, or $1.14 FFO per Common Share, compared with FFO of $5.3 million, or $0.34 FFO per Common Share, for the quarter ended September 30, 2008. Adjusting FFO for certain items that affect comparability which are listed in the table below, FFO for the quarter ended September 30, 2009 was $6.2 million or $0.35 per Common Share, compared with FFO of $6.3 million, or $0.40 per Common Share for the quarter ended September 30, 2008.

(Amounts in thousands)	For the Three Months Ended September 30,						For the Nine Months Ended September 30,
	2009			2008			2009			2008
	(Unaudited)						(Unaudited)

FFO applicable to Common Shares (1)	$	19,854		$	5,307		$	(68,393	)	$	(6,457	)
Per Common Share	$	1.14		$	0.34		$	(4.32	)	$	(0.44	)

Items that affect comparability (income) expense:
Non-cash asset write-downs:
Loan loss allowances	$	-		$	-		$	2,152		$	-
Impairment loss on real estate loan available for sale		-			-			203			-
Loan loss and impairments from partially owned entity – Concord		-			3,603			71,390			32,610
Available for sale securities		-			-			-			207
Impairment of equity investment in Concord		-			-			31,670			-
Preferred equity impairment		-			-			4,850			2,000
Net unrealized gain on securities		(12,578	)		-			(14,010	)		-
Net gain on sale of mortgage-backed securities		-			-			-			(454	)
Net gain on sale of securities		(676	)		-			(3,274	)		(2,029	)
Net gain on sale of preferred equity		-			-			(735	)		(959	)
Net gain on repurchase of Series B-1 Preferred Shares		(445	)		-			(5,682	)		-
Net gain on extinguishment of debt of partially owned entity – Concord		-			(2,601	)		-			6,349
Adjustment for dilution by Series B-1 Preferred Shares (2)		-			-			1,986			4,931

Total items that affect comparability	$	(13,699	)	$	1,002		$	88,550		$	29,958
Per Common Share	$	(0.79	)	$	0.06		$	5.05		$	1.61

FFO as adjusted for comparability	$	6,155		$	6,309		$	20,157		$	23,501

Per Common Share	$	0.35		$	0.40		$	1.15		$	1.26

(1)	See Funds From Operations table below for a reconciliation of net income to FFO for the three and nine months ended September 30, 2009 and 2008.

(2)

The Series B-1 Preferred Shares are anti-dilutive for basic FFO for the periods ended September 30, 2009 and 2008. However, after giving effect to the adjustments for comparability, the Series B-1 Preferred Shares are dilutive for the period. Accordingly, for the presentation we have adjusted for this dilution and increased dilutive weighted-average common shares outstanding.

Fourth Quarter 2009 Dividend Declaration

As we have reported previously, the Company endeavors to have its dividend track cash flow from operations. In light of the anticipated increase in the number of outstanding shares as of the record date resulting from the rights offering, the Company's Board of Trustees has declared a cash dividend for the fourth quarter of 2009 of $0.1625 per Common Share payable on January 15, 2010 to Common Shareholders of record on December 31, 2009. In December, the Trustees will determine whether a special dividend is warranted based on the actual annual cash flow for 2009. The Company also has declared the regular quarterly cash dividend of $0.40625 per Series B-1 Preferred Share and per Series C Preferred Share which is payable on January 29, 2010 to the holders of Series B-1 Preferred Shares or Series C Preferred Shares, as applicable, of record on December 31, 2009.

Michael Ashner, Winthrop Realty Trust’s Chairman and Chief Executive Officer, commented, “We continue to believe that the stress affecting real estate assets and related investments will provide the Company with a steady flow of opportunities of which our recent investments in real estate securities is one example.”

Conference Call Information

The Company will host a conference call to discuss its third quarter 2009 results today, Thursday, November 5, 2009 at 2:00 pm Eastern Time. Interested parties may access the live call by dialing (877) 407-9205 or (201) 689-8054, or via the Internet at www.winthropreit.com within the News and Events section.

A replay of the call will be available through December 5, 2009 by dialing (877) 660-6853; account #286, confirmation #331814. An online replay will also be available through December 5, 2009.

About Winthrop Realty Trust

Winthrop Realty Trust is a diversified real estate investment trust (REIT) that seeks to invest in real estate and related investments, both directly and through joint ventures. Winthrop Realty Trust is listed on the New York Stock Exchange and trades under the symbol “FUR.” The Company has executive offices in Boston, Massachusetts and Jericho, New York. For more information please visit www.winthropreit.com.

Forward-Looking Statements

“Safe Harbor” Statement under the Private Securities Litigation Reform Act of 1995. The statements in this release state the Company’s and management's hopes, intentions, beliefs, expectations or projections of the future and are forward-looking statements for which the Company claims the protections of the safe harbor for forward-looking statements under the Private Securities Litigation Reform Act of 1995. It is important to note that future events and the Company’s actual results could differ materially from those described in or contemplated by such forward-looking statements. Factors that could cause actual results to differ materially from current expectations include, but are not limited to, (i) general economic conditions, (ii) the inability of major tenants to continue paying their rent obligations due to bankruptcy, insolvency or general downturn in their business, (iii) local real estate conditions, (iv) increases in interest rates, (v) increases in operating costs and real estate taxes, (vi) changes in accessibility of debt and equity capital markets and (vii) defaults by borrowers on loans. Additional information concerning factors that could cause actual results to differ materially from those forward-looking statements is contained from time to time in the Company's filings with the Securities and Exchange Commission, copies of which may be obtained from the Company or the Securities and Exchange Commission. The Company refers you to the documents filed by the Company from time to time with the Securities and Exchange Commission, specifically the section titled "Risk Factors" in the Company's most recent Annual Report on Form 10-K, as may be updated or supplemented in the Company's Form 10-Q filings, which discuss these and other factors that could adversely affect the Company's results.

Condensed Financial Results

Financial results for the three and nine months ended September 30, 2009 and 2008 are as follows (in thousands except per common share amounts):

	For the Three Months Ended September 30,						For the Nine Months Ended September 30,
	2009			2008			2009			2008
	(Unaudited)						(Unaudited)

Revenue
Rents and reimbursements	$	10,642		$	10,873		$	32,074		$	32,533
Interest and dividends		2,496			379			6,462			1,262
		13,138			11,252			38,536			33,795
Expenses
Property operating		2,158			1,848			5,981			5,517
Real estate taxes		704			766			2,059			2,180
Depreciation and amortization		2,695			2,980			8,276			8,948
Interest		4,297			5,929			13,128			17,227
Impairment loss on available for sale securities		-			-			-			207
Provision for loss on loan receivable		-			-			2,152			-
General and administrative		1,825			1,566			5,149			5,119
State and local taxes		14			13			211			235
		11,693			13,102			36,956			39.433
Other income
Earnings (loss) from preferred equity investments		86			1,100			(2,108	)		2,518
Earnings (loss) from equity investments		211			2,323			(100,201	)		(16,198	)
Gain on sale of available for sale securities		-			-			-			2,029
Gain on sale of securities carried at fair value		676			-			3,274			-
Gain on sale of mortgage-backed securities available for sale		-			-			-			454
Gain on sale of other assets		-			24			-			24
Unrealized gain on securities carried at fair value		12,578			-			14,010			-
Impairment loss on real estate loan available for sale		-			-			(203	)		-
Gain on early extinguishment of debt		445			-			5,682			-
Interest income		31			761			145			1,425
		14,027			4,208			(79,401	)		(9,748	)
Consolidated income (loss) from continuing operations		15,472			2,358			(77,821	)		(15,386	)

Income from discontinued operations		-			49			-			134
Consolidated net income (loss)		15,472			2,407			(77,821	)		(15,252	)

Income attributable to non-controlling interests		(315	)		(178	)		(651	)		(264	)
Net income (loss) attributable to Winthrop Realty Trust	$	15,157		$	2,229		$	(78,472	)	$	(15,516	)

Comprehensive income (loss)
Net income (loss)	$	15,472		$	2,407		$	(77,821	)	$	(15,252	)
Change in unrealized gain (loss) on available for sale securities arising during the period		10			16			21			2,128
Change in unrealized gain on mortgage-backed securities available for sale arising during the period		-			-			-			190
Change in unrealized gain (loss) on interest rate derivatives arising during the period		141			41			406			(209	)
Change in unrealized gain (loss) from equity investments		-			(820	)		26,174			3,465
Less reclassification adjustment from gains included in net income		-			-			-			(2,483	)

Comprehensive income (loss)	$	15,623		$	1,644		$	(51,220	)	$	(12,161	)

Per Common Share Data – Basic
Income (loss) from continuing operations attributable to Winthrop Realty Trust	$	0.90		$	0.14		$	(4.96	)	$	(1.07	)
Income from discontinued operations attributable to Winthrop Realty Trust		-			-			-			0.01
Net income (loss) attributable to Winthrop Realty Trust	$	0.90		$	0.14		$	(4.96	)	$	(1.06	)

Per Common Share Data – Diluted
Income (loss) from continuing operations attributable to Winthrop Realty Trust	$	0.90		$	0.14		$	(4.96	)	$	(1.07	)
Income from discontinued operations attributable to Winthrop Realty Trust		-			-			-			0.01
Net income (loss) attributable to Winthrop Realty Trust	$	0.90		$	0.14		$	(4.96	)	$	(1.06	)

Basic Weighted-Average Common Shares		15,855			15,717			15,828			14,570
Diluted Weighted-Average Common Shares		15,855			15,725			15,828			14,570

Amounts attributable to Winthrop Realty Trust Common Shareholders
Income (loss) from continuing operations	$	14,318		$	2,180		$	(78,472	)	$	(15,650	)
Income from discontinued operations		-			49			-			134
Net income (loss)	$	14,318		$	2,229		$	(78,472	)	$	(15,516	)

Funds From Operations:

The following presents a reconciliation of our net income to our funds from operations for the three and nine months ended September 30, 2009 and 2008 (in thousands, except per common share amounts):

	For the Three Months Ended September 30,						For the Nine Months Ended September 30,
	2009			2008			2009			2008

Net income (loss) attributable to Winthrop Realty Trust applicable to Common Shares for earnings per share purposes	$	14,318		$	2,229		$	(78,472	)	$	(15,516	)
Real estate depreciation		1,637			1,705			4,984			5,006
Amortization of capitalized leasing costs		1,050			1,267			3,267			3,898
Real estate depreciation and amortization of unconsolidated interests		2,155			914			4,210			2,591

Less: Non-controlling interest share of real estate depreciation and amortization		(786	)		(808	)		(2,382	)		(2,436	)

Funds from operations		18,374			5,307			(68,393	)		(6,457	)
Interest expense on Series B-1 Preferred Shares (1)		1,480			-			-			-
Funds from operations applicable to Common Shares plus assumed conversions	$	19,854		$	5,307		$	(68,393	)	$	(6,457	)

Basic weighted-average Common Shares		15,855			15,717			15,828			14,570
Series B-1 Preferred Shares (1)		1,561			-			-			-
Stock options (1)		-			8			-			-
Diluted weighted-average Common Shares		17,416			15,725			15,828			14,570

Funds from operations per common share – diluted	$	1.14		$	0.34		$	(4.32	)	$	(0.44	)

(1)	The Trust’s convertible preferred shares and stock options were considered anti-dilutive for the nine months ended September 30, 2009 and 2008.

FFO is computed in accordance with the definition adopted by the Board of Governors of the National Association of Real Estate Investment Trusts (“NAREIT”). NAREIT defines FFO as net income or loss determined in accordance with Generally Accepted Accounting Principles (“GAAP”), excluding extraordinary items as defined under GAAP and gains or losses from sales of previously depreciated operating real estate assets, plus specified non-cash items, such as real estate asset depreciation and amortization, and after adjustments for unconsolidated partnerships and joint ventures. FFO and FFO per diluted share are used by management, investors and industry analysts as supplemental measures of operating performance of equity REITs. FFO and FFO per diluted share should be evaluated along with GAAP net income and income per diluted share (the most directly comparable GAAP measures), as well as cash flow from operating activities, investing activities and financing activities, in evaluating the operating performance of equity REITs. Management believes that FFO and FFO per diluted share are helpful to investors as supplemental performance measures because these measures exclude the effect of depreciation, amortization and gains or losses from sales of real estate, all of which are based on historical costs which implicitly assumes that the value of real estate diminishes predictably over time. Since real estate values instead have historically risen or fallen with market conditions, these non-GAAP measures can facilitate comparisons of operating performance between periods and among other equity REITs. FFO does not represent cash generated from operating activities in accordance with GAAP and is not necessarily indicative of cash available to fund cash needs as disclosed in the Company’s Consolidated Statements of Cash Flows. FFO should not be considered as an alternative to net income as an indicator of the Company’s operating performance or as an alternative to cash flows as a measure of liquidity. In addition to FFO, the Company also discloses FFO before certain items that affect comparability. Although this non-GAAP measure clearly differs from NAREIT’s definition of FFO, the Company believes it provides a meaningful presentation of operating performance. A reconciliation of net income to FFO is provided above. In addition, a reconciliation of FFO to FFO before certain items that affect comparability is provided earlier in this press release.

Consolidated Balance Sheets:

(in thousands, except share data)

	September 30, 2009			December 31, 2008
				(as adjusted)
ASSETS
Investments in real estate, at cost
Land	$	21,344		$	21,344
Buildings and improvements		247,129			246,362
		268,473			267,706
Less – accumulated depreciation		(30,521	)		(25,901	)
Investments in real estate, net		237,952			241,805

Cash and cash equivalents		35,147			59,238
Restricted cash held in escrows		8,745			14,353
Loans receivable, net of allowances of $1,341 and $2,445, respectively		9,570			22,876
Accounts receivable, net of allowances of $152 and $225, respectively		13,505			14,028
Securities carried at fair value		61,486			36,516
Available for sale securities, net		205			184
Preferred equity investment		4,094			50,624
Equity investments		76,214			92,202
Lease intangibles, net		23,701			25,929
Deferred financing costs, net		2,037			3,218
Deposit for purchase of Series B-1 Preferred Shares		-			17,081
Other assets		-			40
TOTAL ASSETS	$	472,656		$	578,094

LIABILITIES

Mortgage loans payable	$	225,454		$	229,737
Series B-1 Cumulative Convertible Redeemable Preferred Shares, $25 per share liquidation preference; 1,396,000 and 2,413,105 shares authorized and outstanding at September 30, 2009 and December 31, 2008, respectively		34,900			60,328
Note payable		-			9,800
Accounts payable and accrued liabilities		8,110			8,596
Dividends payable		3,965			5,934
Deferred income		53			795
Below market lease intangibles, net		3,034			3,696
TOTAL LIABILITIES		275,516			318,886

COMMITMENTS AND CONTINGENCIES

EQUITY

Winthrop Realty Trust Shareholders’ Equity:

Common Shares, $1 par, unlimited shares authorized; 15,861,231 and 15,754,495 outstanding at September 30, 2009 and December 31, 2008, respectively		15,861			15,754

Additional paid-in capital		461,896			460,956

Accumulated distributions in excess of net income		(291,984	)		(213,284	)

Accumulated other comprehensive loss		(222	)		(15,176	)

Total Winthrop Realty Trust Shareholders’ Equity		185,551			248,250

Non-controlling interests		11,589			10,958

Total Equity		197,140			259,208
TOTAL LIABILITIES AND EQUITY	$	472,656		$	578,094

Other Financial Information:

(in thousands)

	For the Three Months Ended September 30,						For the Nine Months Ended September 30,
Sources (Uses) of Cash	2009			2008			2009			2008
	(Unaudited)						(Unaudited)

Capital expenditures and leasing costs	$	(857	)	$	(1,020	)	$	(3,382	)	$	(2,784	)
Straight line rent adjustment	$	(1,091	)	$	(996	)	$	(514	)	$	(624	)

Further details regarding the Company’s results of operations, properties, joint ventures and tenants are available in the Company’s Form 10-Q for the quarter ended September 30, 2009 which will be filed with the Securities and Exchange Commission and will be available for download at the Company’s website www.winthropreit.com or at the Securities and Exchange Commission website www.sec.gov.

# # #

Contact Information:

AT THE COMPANY

Thomas Staples

Chief Financial Officer

(617) 570-4614

EX-99.2 4 e606013_ex99-2.htm Unassociated Document

MANAGEMENT DISCUSSION SECTION

Operator: Greetings and welcome to the Winthrop Realty Trust Third Quarter 2009 Earnings Call. At this time, all participants are in a listen-only mode. A brief question and answer session will follow the formal presentation. [Operator Instructions]. As a reminder, this conference is being recorded.

It is now my pleasure to introduce your host Ms. Beverly Bergman, Vice President and Director of Investor Relations for Winthrop Realty Trust. Thank you. Ms. Bergman, you may now begin.

Beverly Bergman, Vice President and Director of Investor Relations

Thank you, Jackie . Good afternoon everyone and welcome to the Winthrop Realty Trust conference call to discuss our third quarter 2009 financial results. With us today from senior management are Michael Ashner, Chairman and Chief Executive Officer; Carolyn Tiffany, President; Tom Staples, Chief Financial Officer and other members of the management team.

A press release was issued this morning November 5 and will be furnished on the Form 8-K with the SEC. These documents are available on Winthrop’s website at www.winthropreit.com in the Investor Relations section. Additionally, we are hosting a live webcast of today’s call, which you can access in the site’s News and Events section.

At this time, management would like me to inform you that certain statements made during this conference call, which are not historical, may constitute forward-looking statements within the meaning of the Private Securities Litigation Reform Act of 1995. Although Winthrop believes the expectations reflected in any forward-looking statements are based on reasonable assumptions, Winthrop can give no assurance that its expectations will be attained.

Factors and risks that could cause actual results to differ materially from those expressed or implied by forward-looking statements are detailed in the press release and from time-to-time in Winthrop’s filings with the SEC. Winthrop does not undertake the duty to update any forward-looking statements.

Please note that in the press release Winthrop has reconciled all non-GAAP financial measures to the most directly comparable GAAP measure in accordance with Reg G requirements. This can be found in the FFO table of the press release.

I’d now like to turn the call over to Michael Ashner for his opening remarks.

Michael L. Ashner, Chairman and Chief Executive Officer

Thank you, Beverly. Good afternoon, everyone, and thank you for joining us on our conference call. Today, we announced our financial results for the third quarter. By now, you should have all had an opportunity to review our earnings press release.

First, I would like to reiterate our view of the current state of the real estate investment environment by again emphasizing that we expect it’ll be characterized by continuing deteriorating operating fundamentals, the general absence of debt and equity liquidity on a relative basis, and higher capitalization rates all of which should contribute to an ongoing decline in value through the mid-term. We believe these conditions will prevail across all real estate asset classes and all geographic regions without exception and should not abate for some time even after stabilization and improvement occurs in the macroeconomic – macroeconomy as a whole. Consistent with this view is our belief that in this market a diversified and opportunistic approach to investing will yield the best risk-adjusted returns for the real estate investor.

The ability to invest across a spectrum of asset classes, geographic regions and formats allows the diversified investor to avoid the downside inherent in any specific asset class to take selective advantage of the different opportunities this environment will provide. Our only limitations on investment would be those which are self-imposed restrictions that we’ve described in the past.

This leads to my next point, a way to think about our company’s earnings particularly those traditionally regarded as non-recurring, for example, our unrealized and realized gains and securities. While we agree that these earnings are neither as steady nor as predictable as the cash flow generated from building ownership, we would suggest that in the context of our stated style of investing, which actively seeks these gains combines with a track record of their realization and appropriate valuation of the company should not treat these returns as aberration of profits as one might in the context of a REIT dedicated to investing in one asset class.

To the dividend. As you read in our press release, the board of trustees has elected to reduce the company’s dividend to $0.1625 per common share per quarter, or $0.65 per common share annually. This reduction is a direct result of the anticipated 30% increase in the company’s share count expected from the rights offering, which will increase uninvested cash on hand from $35 million to $80 million. The reconsideration of the quarterly dividend will be made by our board as the company invests this cash. We intend to maintain our policy of dividending only our predictable cash flow on a quarterly basis, supplemented with a year-end special dividend when warranted. We will not maintain a dividend not generated from profits simply for the sake of appearance.

As mentioned, the company presently has $35 million of uninvested cash together with approximately $62 million of real estate securities, which when added to the $45 million of proceeds from the rights offering and the company’s $35 million line of credit should provide it with approximately $175 million of investable cash in the near term.

We are hopeful of structuring one or more programmatic ventures with institutional partners in the near term, which would further expand the utility of our capital without burdening the company with leverage. We are all well aware, however, of the responsibility to protect our capital particularly in stressed market conditions such as these and intend to invest with great caution and deliberation. With opportunity obviously comes great risk. We believe the company has addressed those challenges that can be reasonably anticipated with respect to its existing portfolio in the near-term, both from the perspective of financial reporting and asset management.

Further, we continue to maintain the company’s one of the strongest REIT balance sheet and that as demonstrated in part by our earnings this quarter, we are moving forward decisively.

With that, I will now turn the call over to our Chief Financial Officer, Tom Staples to review Winthrop’s financial results. Tom?

Thomas Staples, Chief Financial Officer

Thank you, Michael. Good afternoon everyone. I will be providing an overview of Winthrop’s financial results as well as a review of our business segments operating results. Please note that our per share amounts are on a fully diluted basis unless otherwise stated and reflect the November 2008 one-for-five reverse stock split.

For the quarter ended September 30, 2009, the company reported net income of $15.2 million or $0.90 per common share compared with net income of $2.2 million or $0.14 per common share for the quarter ended September 30, 2008. The increase in income for the quarter ended September 30, 2009 was primarily the result of a $12.6 million unrealized gains on our REIT securities carried at fair value, $1.5 million received in interest and dividends from our REIT securities and $676,000 realized gain on sale of certain REIT securities.

For the nine months ended September 30, 2009, the net loss was $78.5 million or $4.96 per common share, compared with a net loss of $15.5 million or $1.06 per common share for the nine months ended September 30, 2008.

The increase in the loss for the nine months ended September 30, 2009 was primarily the result of a $98.7 million loss from our equity investments in the Lex-Win Concord, which represents an increase of $84.7 million over the loss allocated to Winthrop for the nine months ended September 30, 2008.

The loss from Lex-Win Concord represents our $67 million allocable share of the operating loss. In addition, we reported $31.7 million other than temporary impairment loss in 2009 to reduce our equity investments in Lex-Win Concord to zero. These losses were partially offset by realized and unrealized gains on our equity securities of $3.3 million and $14 million respectively as well as the extinguishment of debt gains of $5.7 million from the acquisition of our Series B-1 shares at a discount for the nine months ended September 30, 2009.

Total FFO for the third quarter 2009 was $19.9 million or $1.14 per common share, compared with FFO of $5.3 million or $0.34 per common share for the third quarter of 2008.

FFO for the nine months ended September 30, 2009 was a negative $68.4 million or a loss of $4.32 per common share, as compared with an FFO loss of $6.5 million or $0.44 per common share for the nine months ended September 30, 2008.

Excluding items that affect comparability, FFO for the third quarter of 2009 would have been $6.2 million or $0.35 per common share, as compared to FFO of $6.3 million or $0.40 per common share for the third quarter of 2008.

Similarly, excluding the items that affect comparability, FFO for the nine months ended September 30, 2009 would have been $20.2 million or $1.15 per common share, as compared to $23.5 million or $1.26 per common share for the nine months ended September 30, 2008.

I will now discuss our operating results by business segment. With respect to Winthrop’s Operating Properties business segment, net operating income was approximately $7.5 million for the three months ended September 30, 2009, compared with approximately $7.7 million for the three months ended September 30, 2008.

Rents and reimbursements from our consolidated properties decreased by $231,000 due primarily to a $340,000 decrease in rental income from our Plantation, Florida property as a result of the restructuring and 10 year extension of the BellSouth net lease agreement. A decrease of $253,000 at the Jacksonville, Florida property due to the loss of two tenants who occupied approximately 80% of the property and a $150,000 decrease due to an approximate 9% decrease in occupancy at one of our Lisle, Illinois, properties.

These decreases were partially offset by increases of $151,000 and $307,000 in rental income at our Ontario and River City properties respectively, due to increases in occupancy for the three months ended September 30, 2009.

Operating expenses increased by $310,000 due primarily to increased costs of $197,000 at our River City property as a result of its increased occupancy and $113,000 increase in legal and professional fees related to tenant resolution of these fees.

Our Operating Properties business segment also includes our equity investments in the Sealy properties in this quarter, 12 Marc Realty properties as a result of our restructuring of our agreement with Marc Realty as previously disclosed in the second quarter of 2009.

Losses from the Sealy portfolio decreased by $170,000 for the three months ended September 30, 2009 compared to the three months ended September 30, 2008 primarily as a result of savings and operating expenses in real estate taxes. We received $321,000 in cash distribution from our Sealy equity investments during the quarter ended September 30, 2009. Our Marc Realty portfolio generated net income of $122,000 during the quarter ended September 30, 2009 representing our 50% share of operations from our 12 Marc Realty equity investments.

We received $110,000 of cash distributions from the Marc investment during the three months ended September 30, 2009.

With respect to Winthrop’s Loan Assets and Loan Securities business segment, net operating income was $1.6 million for the three months ended September 30 2009 compared with net operating income of $4.4 million for the three months ended September 30, 2008. This decrease in operating income was primarily due to $2.4 million decrease in earnings from Lex-Win Concord and $1 million decrease in equity earnings from our preferred equity investment in Marc Reality primarily due to the restructuring of the investment mentioned earlier, which resulted in the majority of this investment subsequently being classified in the operating properties business segment. These decreases were partially offset by a $698,000 increase in interest income due primarily to the interest recognized on two loan assets acquired in June of 2009.

With respect to our REIT securities business segment, net operating income was $14.7 million for the three months ended September 30, 2009 compared with net operating income of approximately $37,000 for the prior year period. As previously mentioned, the increase in net operating income was a result of the $12.6 million unrealized gains on the securities carried at fair market value, as a result of the strong performance in the REIT securities sector during the quarter, a $676,000 realized gain on the sale of REIT securities and a $1.4 million increase in interest and dividend income received from our REIT securities investment portfolio as a result of the increased investment in REIT securities during 2009.

At September 30, 2009 Winthrop held REIT Securities with an aggregate fair value of $61.7 million, compared with $36.7 million at December 31, 2008. At September 30, 2009, Winthrop had cash and cash equivalents of $35.1 million compared to a balance of $59.2 million at December 31, 2008. The decrease in cash and cash equivalents was a result of cash used in financing activities of approximately $25 million consisting primarily of dividend payments to the common shareholders of $13.8 million and paydowns on our mortgage loans and notes payable of $14.1 million.

Investing activity used cash of $13 million primarily for acquiring REIT securities and the issuance and acquisition of loans receivables. These declines in cash and cash equivalents were partially offset by cash flow generated by our operating activities of approximately $13.9 million.

Lastly, concerning dividends, Winthrop paid a regular quarterly cash dividend of $0.25 per common share for the third quarter of 2009, which was paid on October 15, 2009. Winthrop has declared a $0.1625 per common share cash dividend for the fourth quarter of 2009, which will be paid on January 15, 2010 to the holders of record on December 31, 2009.

Now I’ll turn the call over to Carolyn Tiffany. Carolyn?

Carolyn Tiffany, President

Thanks Tom. Good afternoon. Last quarter we addressed the issue faced in the less productive assets in the Marc Realty portfolio and as Tom mentioned, we restructured this investment with a view towards improving our position. As you know as part of the restructuring, we exchanged our interest in several Chicago suburban properties which require longer term investment hold and riskier potential return for an increased overall interest in downtown Chicago properties, which we believe offers a superior risk-adjusted return.

The portfolio’s occupancy now comprised of 2.2 million square feet was 85% as of September 30, 2009 compared to 87% at September 30, 2008. While the restructuring required us to take charges against earnings and reduced our current value, we continue to believe that we will more than recover these amounts through the increased equity and the downtown properties and will ultimately receive proceeds in excess of our carrying value.

You will note that beginning this quarter in our 10-Q we include condensed income statements and balance sheets for our equity investment in the Marc properties and the Sealy properties. We continue to seek ways in which we can provide more transparency to our investors and believe this additional information will be meaningful.

Winthrop’s three Sealy venture properties comprising a total of about 2.1 million rentable square feet had a blended occupancy rate of 84% at September 30, 2009, compared with 87% at September 30, 2008. The decrease in occupancy for the comparable periods is mainly attributable to the soft Atlanta market in which the majority of the Sealy space is located. We continue to closely monitor the performance of these assets.

Winthrop’s consolidated portfolio of approximately 4.3 million square feet had a blended occupancy rate of 85% at September 30, 2009 compared to 96% at September 30, 2008. The decline in occupancy is primarily the result of the loss of two tenants as Tom mentioned at leased an aggregate of approximately 460,000 square feet, 80% of the Jacksonville, Florida property space. We are currently in negotiations with the new tenants for this vacant space and hope to have a lease in place by year-end.

The average occupancy rate for the nine months ended September 30, 2009 was 93%. Our consolidated portfolio consists largely of net leased properties notably the portfolio of net leased properties acquired from Finova in 2004.

As we discussed in the last call, the 1 million square foot Churchill, Pennsylvania property is subject to a lease with Viacom, which is scheduled to mature in December 2010. We have advised Viacom that given the current poor physical condition of the property, should they elect to vacate, we will seek to recover the costs necessary to bring the property to conditions required under its lease. Viacom is not required to provide notice of renewal until December of this year.

Overall our multi-tenanted properties’ operations while not immune to market conditions are fairing relatively well and are stabilized with no major lease rollovers in the near term.

Turning to Concord, while we wrote down our investment in the joint venture debt platform to zero during the second quarter for financial statement purposes, as we’ve discussed, we together with our partners, continue to manage our investment in Concord and work with its lenders to seek any potential equity recovery. During the third quarter, we received a distribution and recorded income of 500,000 from Concord representing our share of asset management fee income.

With respect to our debt exposure, inclusive of extension rights, none of our loans are scheduled to mature in 2009. For the fourth quarter 2009, there is approximately $1.9 million of scheduled principal payments on mortgage loans. After giving effect to extension rights, approximately $15.8 million is scheduled to be paid down on mature in 2010 and $207.8 million is scheduled to be paid down on mature in 2011 or later.

As Michael discussed, we commenced the rights offering for holders of record on October 22 of our common shares and preferred shares, enabling them to acquire an additional approximately 4.9 million common shares at a price of $9.05 per share. We expect the offerings to be fully subscribed resulting in net proceeds to the company of approximately $45 million. The offer expires November 19, 2009.

Separately, in a private transaction, holders of the Series B-1 Preferred Shares elected to convert 544,000 Series B-1 Preferred Shares into an equivalent number of our newly issued Series C Preferred Shares. Although the Series C preferred shares have substantially the same rights as the Series B-1 Preferred Shares including dividend rate, liquidation preference and mandatory redemption date, they’re junior in right of payment to the Series B-1 Preferred Shares and permit Winthrop to issue additional preferred shares, which are on par with the Series C Preferred Shares subject to certain limitations without the consent of the holders of the Series C Preferred Shares.

Winthrop is not permitted to issue additional Preferred Shares, which are on par with the Series B-1 shares. In exchange to the initial conversion price of the Series C Preferred Shares is $14, (1.786 common shares per Series C share), which is a reduction from the $22.50 conversion price, (1.111 common shares) on the Series B-1 Preferred Shares. We believe that in a market such as this it is important for the company to be able to avail itself of all capital resources.

With that, let’s open it up to questions. Operator?

QUESTION AND ANSWER SECTION

Operator: Thank you. [Operator Instructions] Thank you. Our first question is coming from David Fick of Stifel Nicolaus.

<Q – David Fick>: Good afternoon. Carolyn, I guess, given that you’ve written down the value of Concord fully to zero, there only – the only further earnings impact would be any upside recovery or fees that you’re about to recognize, but there’s no more allocable losses below zero, right, since there is no recourse to you?

<A – Carolyn Tiffany>: That’s correct; that’s correct. But there are suspended losses, because we won’t write it down below zero. There may in fact to be earnings that are allocated to us, if Concord were to have earnings that we would not recognize, but at this point the – any cash that we receive will be recognized as earnings.

<Q – David Fick>: Okay. Secondly, the rights offering – I like rights offerings theoretically, I am just wondering given that you’ve got 105 million of existing liquidity, what’s the intent there?

<A – Michael Ashner>: Well, I think the need is to – for the rights offering is to establish a strong enough war chest that we can make a pool of diversified investments some, which might be smaller – some which would be larger. But, I do not believe that the amount of capital, while the amount of capital on balance sheet is significant. I don’t believe it’s unlimited, I believe the opportunities out there currently exceed even the $170 million of capital that we’ll have after the rights offering.

<Q – David Fick>: Okay. Just following on that and I know you don’t talk about deals until they’re consummated. But...

<A – Michael Ashner>: Because my mother told me not to.

<Q – David Fick>: Conceptually, you haven’t done a whole lot, obviously it’s been a unsettled period what – do you think you have things in hand – if you’re going to – you’re talking about the next 90, 180 days or is [audio skip] just a concept at this point that things have to be cheap enough that I’m going to find opportunity?

<A – Michael Ashner>: Well, I think there is couple of answers. First of all, we created over the last 90 to 120 days an infrastructure for how we’re approaching the opportunities in the market. We don’t want to do it in an undisciplined manner. We don’t want to wait for people to call us. We have certain programs out in which source for us – investments that’s -- that took awhile to set out. Separately, we – I want to get a better sense of pricing in the market, we were - -- bid in the escrows very wide during the first quarter; it’s narrowed a bit now. I don’t want to go out and price opportunities and then look back and say that I overpaid by 20%. And there is no way to do that unless you continually test the market, which is to some extent what we were doing for the last six months and that’s an ongoing process.

Third, we had been moving forward and hopefully we’ll consummate more than one programmatic venture in which we will invest – through which we will be investing capital and as to which I indicated upfront allows us to expand the utility of our capital. So we’ve been doing a lot of things right now, but we are doing them in the sense that -- in the context of the best result in the future with respect to the opportunities we see at hand.

<Q – David Fick>: And Michael, do you see those coming down on the side of direct real estate investment or in entity – I know you are willing to go almost anywhere.

<A – Michael Ashner>: I will -- I mean that’s a good question. I think as a general rule the debt today is the equity. Debt is equity, I mean when you did something, if you are looking at it, it may sound like equity, the format may be equity, but I am sorry; it may sound like debt, it may – format may be debt, but it’s really equity.

Having said that, there are one or two equity investors that we are looking at even in this market, on the other hand or to add supplement that, the extent that we’re involved in recapitalizations of the existing assets arguably since we are restructuring debt, one could say that it’s a debt investment, but from our standpoint it’s an equity investment. I really think the overarching principle is that anything you are doing is really – whether you characterize it as debt or equity, is equity investing, but perhaps at a – but a senior level in the capital stack, which makes it look like you’re doing debt investing.

<Q – David Fick>: Okay. Just exploring a little bit further the rationale for converting the B-1s into Cs, did you – what did you gain there, did they give up their put rights – was your – what was...

<A – Michael Ashner>: The gain was greater flexibility with our capital structure. It was our view and we’re advised that it would have been very difficult if we wanted to at some later date issue preferred stock to do so with 35 or $36 million of senior preferreds out there. And so the idea behind it was to create a new class of preferred, which allows us to issue preferred pari passu with that, which is what we did.

<Q – David Fick>: Okay. And then my last question relates to the Florida vacancy under negotiation. I actually have two questions, tenant-specific questions. Can you talk to us about the parameters on that old rent to new rent, should you execute the transaction where it’s currently under conversation?

<A – Carolyn Tiffany>: Well, it’s still in negotiations, I don’t really want to comment on the rent, it would be for all of the space that’s currently vacant at that property. It would be premature to comment beyond that.

<Q – David Fick>: Okay. And then I know you probably have the same kind of sensitivity around Viacom. Has there been any response from your letter so far?

<A – Carolyn Tiffany>: No.

<Q – David Fick>: Okay. Thank you.

Operator: Thank you. [Operator Instructions] Thank you. Our next question is coming from Raymond Hal of Comprehensive Financial.

<Q>: Good afternoon. Could you touch on – is there been any discussions with Kroger yet about those leases?

<A – Michael Ashner>: Yes, we have some -- we have engaged Kroger. Do you want to give more detail, Carolyn?

<A – Carolyn Tiffany>: They have not actually given us their final notice yet. They are exercising a purchase option on one of the stores. It’s still in discussion, but we don’t think that there will be a material change to our financial statements either way, the way those negotiations work out.

<Q>: And those are individual leases, correct, not --

<A – Carolyn Tiffany>: Excuse me?

<Q>: Those are individual leases --

<A – Carolyn Tiffany>: They’re individual leases. We expect it on some of them they’ll renew; on some they won’t renew and on some they’ll try to purchase.

<Q>: Okay. And what about – have I lost track of this, South Burlington property is that, didn’t that lease come up in December?

<A – Carolyn Tiffany>: Yeah. There are actually a couple of leases that relates to Verizon, two properties, one in Andover, Massachusetts, and one in Burlington.

<Q>: Right.

<A – Carolyn Tiffany>: We are currently in negotiations on the Burlington property with the subtenant at that property. And we are marketing the Andover property both for lease and for sale.

<Q>: Okay.

<A – Carolyn Tiffany>: At this time both of those properties are actually carried on our books for less then the debt.

<Q>: Right. I may have misread this, but I thought in the prospectus for the rights offering. It looked to me that you’ve looked at the dividend I think you said you thought the maximum dividend cut would be $0.06. Can you provide a little color on the greater dividend cut?

<A – Carolyn Tiffany>: Well I think what we like to do is, we look at what we know – we’re comfortable with where the recurring cash flow is. We looked at where we are today in terms of, we don’t have tenant yet in on the Winn-Dixie property or the Andover property. And we have said historically, we like to track our cash flow. And as Michael said, in December when we know our actual cash flow, we will – we’ll look at a special dividends, if it’s warranted.

<A – Michael Ashner>: But the basis the – the bulk of the dividend cut just reflect the fact that we’re increasing the share count by close to 20% and we have all of this cash in our balance sheet, which is earning net cash of 45 million would be earning for a period of time 30, 35 basis points and we have another 35 million already in our balance sheet, which is earning 30, 35 basis points. As that cash is invested accretively we’ll of course reconsider our dividend but otherwise...

<Q>: What about the fixed income security here and my guess is those are probably getting pretty close to par is that?

<A – Michael Ashner>: Well let’s see you can split them in to two groups the bonds are getting very close to par and the preferreds which are still high yielding and are not yet close to par. As we invest our capital we’ll first of course invest cash, which is in Treasury that’s our lowest yielding asset and then we’ll sell the bonds because they – their coupons are lowest coupon and then from there we’ll sell via prefers and invest that cash.

<Q>: And lastly how much cash flow did you receive from Marc Reality portfolio this quarter I thought Tom said that but.

<A – Thomas Staples>: It was a 100 – maybe that was $110,000 we received in distributions.

<Q>: And help me out because I know that’s been restructured but is that still I guess in the form of a mezzanine – most of the mezzanine loans. I mean are those how exactly did the cash flow work on that venture?

<A – Carolyn Tiffany>: Yes. Technically they are mezzanine loans but it’s really treated now as equity. We only get paid our mezzanine loan interest after the cash flow from the properties, after TI, after CapEx and only if then there is cash flow available to pay not just us but also the Marc Reality partners.

<Q>: Okay.

<A – Carolyn Tiffany>: An equal amount.

<Q>: Okay.

<A – Carolyn Tiffany>: So I would also say that for the quarter that amount, the restructuring happened at the beginning of the quarter so there’s been a bit of a transition period, I don’t – I would not use that as necessarily being representative of the quarterly amount we expect to get, but that is what we received this quarter.

<Q>: Okay. Thank you.

Operator: [Operator Instructions] Thank you. Our next question is coming from Brian Bradford, private investor.

<Q>: Hi there. I was wondering if you could comment a little bit about stuff in the last 10-Q. I was particularly curious about your -- the assets you purchased from Concord, whether those are going to continue, whether you think you’re going to buy up more assets from them. And also if you could additionally just comment on the lawsuits going on with that entity.

<A – Michael Ashner>: Well, that’s the two-part question. The extent that Concord -- the extent that assets can be acquired from Concord at fair prices, we will be a bidder; that’s clear. And we’ve done it in the past and will continue to do so in the future. I said that though in the context that of course the agreements provide and even if they didn’t provide, it will be our view that we welcome the participation of Lexington and Inland in any purchase of assets from Concord.

But to the extent those assets are available and can be bought at a price which is – which achieves our returns, we will be a bidder for those assets.

Separately, I assume the lawsuit you are discussing is the lawsuit with Inland, and there are ongoing discussions between the parties and hopefully there will be a resolution of it, but only time can tell.

<Q>: Thank you.

Operator: Thank you. [Operator Instructions] Thank you. There are no further questions. I would like to hand the floor back over to management for any closing comments.

Michael L. Ashner, Chairman and Chief Executive Officer

Yeah; got some. Again, we thank you all for joining us this afternoon. As I mentioned earlier we believe that our balance and liquidity position allows Winthrop to take advantage of dislocation of the market and to make more favorable risk adjusted investment than it’s been able to make in the past.

As always, we appreciate your continuous support and we welcome your input and questions concerning the company and its business. If you would like to receive additional information about us, please contact Beverly and our offices. You can also find additional information about us on our website at www.winthropreit.com. In addition please feel free to contact myself or any other member of management with any questions you may have at your convenience. Thank you all and have a good afternoon.

Operator: This concludes today’s teleconference. You may disconnect your lines at this time. Thank you for your participation.

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