250 West 57th St. Associates L.L.C.

December 31, 2008




FORM 10-K/A

SECURITIES AND EXCHANGE COMMISSION

Washington, D.C. 20549


[X] ANNUAL REPORT PURSUANT TO SECTION 13 OR 15(d) OF

THE SECURITIES EXCHANGE ACT OF 1934


For the fiscal year ended December 31, 2008


[ ]  TRANSITION REPORT PURSUANT TO SECTION 13 OR 15(d)

OF THE SECURITIES EXCHANGE ACT OF 1934

For the transition period from ______________ to ________________


Commission file number O-2666


250 WEST 57th ST. ASSOCIATES L.L.C.

(Exact name of Registrant as specified in its charter)


A New York Limited Liability Company

13-6083380

(State or other jurisdiction of

     (I.R.S. Employer

incorporation or organization)

Identification No.)


One Grand Central Place

60 East 42nd Street

New York, New York 10165

(Address of principal executive offices)


 (212) 687-8700

(Registrant's telephone number, including area code)


Securities registered pursuant to Section 12(b) of the Act:

None

Securities registered pursuant to section 12(g) of the Act:

$3,600,000 of Participations in LLC Member Interests

Indicate by check mark whether the Registrant (1) has filed all reports required to be filed by Section 13 or 15(d) of the Securities Exchange Act of 1934 during the preceding 12 months (or for such shorter period that the Registrant was required to file reports), and (2) has been subject to such filing requirements for the past 90 days.  Yes [ x ]  No [   ]


Indicate by check mark whether the Registrant is a shell company (as defined in rule 12b-2 of the Exchange Act).   Yes [   ]  No [ x  ]


 

The aggregate market of the voting stock held by non-affiliates of the Registrant:  Not applicable, but see Items 5 and 10 of this report.


Indicate by check mark if disclosure of delinquent filers pursuant to Item 405 of Regulation S-K is not contained herein, and will not be contained, to the best of Registrant's knowledge, in

definitive proxy or information statements incorporated by reference in Part III of this Form 10-K or any amendment to this Form 10-K.


Indicate by check mark whether the Registrant is a well-known seasoned issuer, as defined in Rule 405 of the Securities Act. Yes [  ]  No [ X ] .


Indicate by check mark whether the Registrant is a large accelerated filer, an accelerated filer, a non-accelerated filer, or a smaller reporting company.


Large Accelerated Filer [ ]  Accelerated Filer [ ]  Non-Accelerated Filer [ ]  

Smaller Reporting Company [X]



Explanatory Note



This Amendment No. 1 to the Annual Report on Form 10-K of 250 West 57 th St. Associates L.L.C for the fiscal year ended December 31, 2008 is filed to include the corrected income statement of 250 West 57 th St. Associates L.L.C. for the year ended December 31, 2008 as the original filing included an error due to converting data from the financial statements to the Edgar format. The error was that interest expense was reflected as $22,070,135 when it should have been only $2,070,135, resulting in a net loss rather than net income of $2,902,949. Also included is a revised Item 9a Controls and Procedures expressly stating that Malkin Holdings as Supervisor of Registrant determined the effectiveness of disclosure controls and procedures and the effectiveness of internal controls over financial reporting, and revised Certifications of Mark Labell, Pursuant to Section 302 of the Sarbanes-Oxley Act of 2002.

There are no changes to the original Form 10-K other than those described above. This amendment speaks as of the filing date of the original Form 10-K and does not reflect events that have occurred after that date.


 

Item 15.            Exhibits, Financial Statement Schedules and Report on Form 10-K.

                         (a) (1) Financial Statements:

                         

                                    Report of Independent Registered Public Accounting Firm of Margolin Winer Evens LLP, dated

                                    May 4, 2009.      

                   

                              (3) Exhibits:  See Exhibit Index.

 

                                    31.1        Certification pursuant to Section 302 of the Sarbanes-Oxley Act of Mark Labell, Senior Vice

                                                    President, Finance

 

                                    31.2        Certification pursuant to Section 302 of the Sarbanes-Oxley Act of Mark Labell, Senior Member

                                                    of Financial/Accounting staff

 

                                    32.1        Certification pursuant to Section 906 of the Sarbanes-Oxley Act of Mark Labell, Senior Vice

                                                    President, Finance


                                                32.2        Certification pursuant to Section 906 of the Sarbanes-Oxley Act of Mark Labell, Senior Vice

                                                    President, Finance

 


 

                                                                                                                                                                                       



250 West 57th St. Associates L.L.C.

December 31, 2008

 


Item 15.



INDEX TO FINANCIAL STATEMENTS AND SCHEDULES


250 WEST 57th ST. ASSOCIATES L.L.C.


(A Limited Liability Company)



Report of Margolin, Winer & Evens LLP -- Independent Registered Public Accounting Firm


Balance Sheets as of December 31, 2008 and 2007


Statements of Income for the Years Ended December 31, 2008 and 2007


Statements of Members’ Deficiency for the Years Ended December 31, 2008 and 2007


Statements of Cash Flows for the Years Ended December 31, 2008 and 2007


Notes to Financial Statements




SCHEDULE III - Real Estate and Accumulated Depreciation as of December 31, 2008


All other schedules are omitted as the information is not required, is not material or is otherwise provided.













                                                                                                                                                                                                                                               

 



250 West 57th St. Associates L.L.C.

December 31, 2008






[LETTERHEAD OF MARGOLIN, WINER & EVENS LLP]





REPORT OF INDEPENDENT REGISTERED PUBLIC ACCOUNTING FIRM



To the Participants in 250 West 57th St. Associates L.L.C.

(a Limited Liability Company)

New York, New York



We have audited the accompanying balance sheet of 250 West 57th St. Associates L.L.C. ("Associates") as of December 31, 2008 and 2007, and the related statements of income, members' deficiency and cash flows for the years then ended, and the supporting financial statement schedule, Schedule III - Real Estate and Accumulated Depreciation for the years ended December 31, 2008 and 2007, also included in this Form 10-K.  These financial statements and schedule are the responsibility of Associates' management.  Our responsibility is to express an opinion on these financial statements and financial statement schedule based on our audits.


We conducted our audits in accordance with the standards of the Public Company Accounting Oversight Board (United States).  Those standards require that we plan and perform the audit to obtain reasonable assurance about whether the financial statements are free of material misstatement.  An audit includes examining, on a test basis, evidence supporting the amounts and disclosures in the financial statements.  An audit also includes assessing the accounting principles used and significant estimates made by management, as well as evaluating the overall financial statement presentation.  We believe that our audits provide a reasonable basis for our opinion.


In our opinion, the financial statements referred to above present fairly, in all material respects, the financial position of 250 West 57th St. Associates L.L.C. as of December 31, 2008 and 2007 and the results of its operations and its cash flows for the years then ended in conformity with accounting principles generally accepted in the United States of America, and the related financial statement schedule for the years ended December 31, 2008 and 2007, when considered in relation to the basic financial statements taken as a whole, presents fairly, in all material respects, the information set forth therein.




/s/  Margolin, Winer & Evens LLP



Garden City, New York

May 4, 2009




                                                                                                                                                                                       



 

250 West 57th St. Associates L.L.C.

December 31, 2008



250 WEST 57TH ST. ASSOCIATES L.L.C.

(A Limited Liability Company)

 

 

 

 

 

 

 

BALANCE SHEETS

 

 

 

 

 

 

 

ASSETS

 

 

 

 

 

 

 

 

 December 31,

 

 

 

 

2008

 

2007

Real Estate at 250-264 West 57th Street,

 

 

 

 

New York, N.Y.:

 

 

 

 

Building

 

 $      4,940,682

 

 $     4,940,682

 

Less: Accumulated depreciation

         4,940,682

 

        4,940,682

 

 

 

 

                      0

 

                    0

 

 

 

 

 

 

 

 

Building improvements

       33,524,035

 

      33,173,876

 

Less: Accumulated depreciation

         4,183,607

 

        3,346,608

 

 

 

 

       29,340,428

 

      29,827,268

 

 

 

 

 

 

 

 

Building improvements in progress

             45,383

 

                   -   

 

Land

 

         2,117,435

 

        2,117,435

 

 

TOTAL REAL ESTATE, NET

       31,503,246

 

      31,944,703

 

 

 

 

 

 

 

 

 

 

 

 

 

 

Cash and cash equivalents:

 

 

 

 

Cash in Bank

            322,193

 

             87,856

 

Distribution account held by Wien & Malkin LLC,

 

 

 

 

 

a related party

             60,000

 

             60,000

 

Fidelity U.S. Treasury Income Portfolio

         3,129,434

 

        5,043,295

 

 

 

TOTAL CASH AND CASH EQUIVALENTS

         3,511,627

 

        5,191,151

 

 

 

 

 

 

 

Leasing commissions, less accumulated amortization

 

 

 

 

of $638,141 in 2008 and $446,177 in 2007

            904,605

 

        1,076,569

 

 

 

 

 

 

 

Mortgage refinancing costs, less accumulated amortization

 

 

 

 

of $455,692 in 2008 and $320,132 in 2007

            826,901

 

           962,461

 

 

 

 

 

 

 

 

 

 

TOTAL ASSETS

 $    36,746,379

 

 $    39,174,884

 

 

 

 

 

 

 

LIABILITIES AND MEMBERS' DEFICIENCY

 

 

 

Liabilities:

 

 

 

 

 

Mortgage payable

       39,672,417

 

      37,301,770

 

Accrued interest

            181,168

 

           168,639

 

Building improvement costs payable

            555,200

 

        3,282,693

 

Payable to lessee, a related party

            672,853

 

        2,449,340

 

Prepaid rent

            239,418

 

                   -   

 

 

 

TOTAL LIABILITIES

       41,321,056

 

      43,202,442

 

 

 

 

 

 

 

 

Commitments and contingencies

 

 

 

 

Member's deficiency

        (4,574,677)

 

       (4,027,558)

 

 

 

TOTAL LIABILITIES AND MEMBERS'

 

 

 

 

 

 

DEFICIENCY

 $    36,746,379

 

 $    39,174,884

 

 

 

 

 

 

 


See accompanying notes to financial statements.



                                                                                                                                                                                             



250 West 57th St. Associates L.L.C.

December 31, 2008




 

250 WEST 57TH ST. ASSOCIATES L.L.C.

(A Limited Liability Company)

 

 

 

 

 

 

STATEMENTS OF INCOME

 

 

 

 

 

 

 

 

 

Year ended December 31

 

 

 

2008

 

2007

Revenues:

 

 

 

 

Rent income, from a related party

 $     6,439,332

 

 $    6,588,071

 

Miscellaneous income

                 962

 

             1,200

 

Interest and dividend income

            80,760

 

          110,986

 

 

 

 

 

 

 

 

TOTAL REVENUES

        6,521,054

 

       6,700,257

 

 

 

 

 

 

 

 

 

 

 

 

Expenses:

 

 

 

 

Interest on mortgages

      2,070,135

 

       1,926,775

 

Supervisory services, to a related party

          363,341

 

          369,528

 

Depreciation of building improvements

          837,000

 

          807,017

 

Amortization of leasing commission

          171,964

 

          171,920

 

Amortization of mortgage refinancing costs

          135,561

 

          135,560

 

Professional fees

            39,780

 

            64,691

 

Miscellaneous

                 325

 

                509

 

 

TOTAL EXPENSES

      3,618,105

 

       3,476,000

 

 

 

 

 

 

 

 

NET INCOME

2,902,949

 

3,224,257

 

 

 

 

 

 

 

Earnings per $5,000 participation unit, based

 

 

 

 

  on 720 participation units outstanding during each

 

 

 

  year

 $           4,032

 

 $           4,478

 

 

 

 

 

 



See accompanying notes to financial statements.



                                                                                                                                                                   



250 West 57th St. Associates L.L.C.

December 31, 2008



250 WEST 57th ST. ASSOCIATES L.L.C.

(A Limited Liability Company)


STATEMENT OF MEMBERS' DEFICIENCY



 

Members'


Share of

 

Members'

Deficiency

 

Deficiency

Net Income

 

December 31,

 

January 1, 2008

for year

Distributions

           2008      

Year ended December 31, 2008:

Anthony E. Malkin  Joint Venture #1

$(402,757)

$290,295

$345,006

$(457,468)

 

 

 

 

 

Anthony E. Malkin Joint Venture #2

(402,757)

290,295

345,006

(457,468)

 

 

 

 

 

Anthony E. Malkin Joint Venture #3

(402,754)

290,295

345,007

(457,466)

 

 

 

 

 

Anthony E. Malkin Joint Venture #4

(402,754)

290,294

345,007

(457,467)

 

 

 

 

 

Peter L. Malkin Joint Venture #1

(402,754)

290,295

345,007

(457,466)

 

 

 

 

 

Peter L. Malkin Joint Venture #2

(402,755)

290,295

345,007

(457,467)

 

 

 

 

 

Peter L. Malkin Joint Venture #3

(402,756)

290,295

345,007

(457,468)

 

 

 

 

 

Peter L. Malkin Joint Venture #4

(402,757)

290,295

345,007

(457,469)

 

 

 

 

 

Peter L. Malkin Joint Venture #5

(402,756)

290,295

345,007

(457,468)

 

 

 

 

 

Peter L. Malkin Joint Venture #6

  (402,758)

     290,295

    345,007

    (457,470)

 

 

 

 

 

TOTALS

$(4,027,558)

$2,902,949

$3,450,068

$(4,574,677)




 






See accompanying notes to financial statements .



                                                                                                                                                                                       



250 West 57th St. Associates L.L.C.

December 31, 2008



250 WEST 57th ST. ASSOCIATES L.L.C.

(A Limited Liability Company)


STATEMENT OF MEMBERS' DEFICIENCY


 

 

 

 

Members'

 

Members'

Share of

 

Deficiency

 

Deficiency

Net Income

 

December 31,

 

January 1, 2007

for year

Distributions

2007

Year ended December 31, 2007:

Anthony E. Malkin  Joint Venture #1

$  (374,607)

$322,425

$350,575

$  (402,757)

 

 

 

 

 

Anthony E. Malkin Joint Venture #2

(374,607)

322,425

350,575

(402,757)

 

 

 

 

 

Anthony E. Malkin Joint Venture #3

(374,604)

322,425

350,575

(402,754)

 

 

 

 

 

Anthony E. Malkin Joint Venture #4

(374,605)

322,426

350,575

(402,754)

 

 

 

 

 

Peter L. Malkin Joint Venture #1

(374,605)

322,426

350,575

(402,754)

 

 

 

 

 

Peter L. Malkin Joint Venture #2

(374,605)

322,426

350,576

(402,755)

 

 

 

 

 

Peter L. Malkin Joint Venture #3

(374,606)

322,426

350,576

(402,756)

 

 

 

 

 

Peter L. Malkin Joint Venture #4

(374,607)

322,426

350,576

(402,757)

 

 

 

 

 

Peter L. Malkin Joint Venture #5

(374,606)

322,426

350,576

(402,756)

 

 

 

 

 

Peter L. Malkin Joint Venture #6

     (374,608)

   322,426

     350,576

     (402,758)

 

 

 

 

 

TOTALS

$(3,746,060)

$3,224,257

$3,505,755

$(4,027,558)






 



See accompanying notes to financial statements .



 


250 West 57th St. Associates L.L.C.

December 31, 2008



250 WEST 57TH ST. ASSOCIATES L.L.C.

(A Limited Liability Company)

 

 

 

 

 

 

 

STATEMENTS OF CASH FLOWS

 

 

 

 

 

 

 

 

 

 

 

Year ended December 31

 

 

 

 

2008

 

2007

Cash flows from operating activities:

 

 

 

 

Net income

 $    2,902,949

 

 $  3,224,257

 

Adjustments to reconcile net income

 

 

 

 

 to net cash provided by operating activities:

 

 

 

 

 

Depreciation of building improvements

          837,000

 

         807,017

 

 

Amortization of leasing commissions

          171,964

 

         171,920

 

 

Amortization of mortgage refinancing costs

          135,560

 

         135,560

 

 

 

 

 

 

 

 

 

Changes in operating assets and liabilities:

 

 

 

 

 

 

Leasing commissions paid

                   -   

 

         (82,336)

 

 

 

Accrued mortgage interest

            12,529

 

           16,721

 

 

 

Change in prepaid rent

          239,418

 

                  -   

 

 

 

 

 

 

 

 

 

 

  Net cash provided by operating activities

       4,299,420

 

      4,273,139

 

 

 

 

 

 

 

Cash flows from investing activities:

 

 

 

 

Purchase of building improvements

        (395,543)

 

    (2,397,298)

 

Change in building improvement costs payable

     (2,727,493)

 

                  -   

 

Change in restricted cash for payment of building

 

 

 

 

  improvement costs

                   -   

 

             215,174

 

 

 

 

 

 

 

 

 

 

Net cash used in investing activities

     (3,123,036)

 

    (2,182,124)

 

 

 

 

 

 

 

Cash flows from financing activities:

 

 

 

 

Proceeds from mortgage payable

       3,000,000

 

      3,750,000

 

Repayment of mortgage payable

        (629,353)

 

       (548,230)

 

Advances from and other payments by (repayments

 

 

 

 

  to) net lessee and others for building improvement

 

 

 

 

  costs payable

     (1,776,487)

 

      2,127,661

 

Cash distributions to participants

     (3,450,068)

 

    (3,505,755)

 

 

 

 

 

 

 

 

 

 

Net cash provided by (used in) financing activities

     (2,855,908)

 

      1,823,676

 

 

 

 

 

 

 

 

 

 

Net increase (decrease) in cash and cash equivalents

       (1,679,524)

 

       3,914,691

 

 

 

 

 

 

 

Cash and cash equivalents, beginning of year

       5,191,151

 

      1,276,460

 

 

 

 

 

 

 

CASH AND CASH EQUIVALENTS, END OF YEAR

 $    3,511,627

 

 $   5,191,151

 

 

 

 

 

 

 

Supplemental disclosures of cash flow information:

 

 

 

 

Cash paid during year for interest

 $    2,057,606

 

 $   1,910,053

 

 

 

 

 

 

 

Supplemental disclosure of non-cash investing and financing

 

 

 

activities:

 

 

 

 

 

 

 

 

 

 

 

Short-term debt payable to Lessee and others incurred for the

 

 

 

purchase of building improvements

 $                -   

 

 $   2,260,497

 

 

 

 

 

 

 

See accompanying notes to financial statements

.

                                                                                                                                                                                                                                 

 

250 West 57th St. Associates L.L.C.

December 31, 2008

 


250 WEST 57th ST. ASSOCIATES L.L.C.

(A Limited Liability Company)

NOTES TO FINANCIAL STATEMENTS


1.

Business Activity


250 West 57th St. Associates L.L.C. ("Associates") is a New York State limited liability company owning commercial property at 250 West 57th Street, New York, N.Y.  The property is leased (the “Lease”) to Fisk Building Associates L.L.C. (the "Lessee").


2.

Summary of Significant Accounting Policies

   

      a. Cash and Cash Equivalents:

Cash and cash equivalents include investments in money market funds and all highly liquid debt instruments with an original maturity of three months or less when acquired.

        

    

      b.  Land, Building, Building Improvements and Depreciation:

Land, building and building improvements are stated at cost. Building improvements are depreciated on the straight-line basis over their estimated useful life of 39 years. The building with a cost of $4,940,682 and building improvements with a cost of $688,000 at December 31, 2008 have been fully depreciated.

In connection with the building improvements program which began in 1999 (Note 11), costs totaling $32,836,036 have been incurred through December 31, 2008 for new building improvements which have been put into service.

           c.   Mortgage Refinancing Costs, Leasing Commissions, and Amortization:

Mortgage refinancing costs are being amortized ratably over the respective terms of the   mortgages.


Leasing commissions (incurred in connection with the building improvements program) represent reimbursements to the Lessee for commissions incurred for new tenants. They are being amortized over the terms of the individual tenant leases.

d.

Revenue Recognition:

Basic rental income, as defined in the Lease, is equal to the sum of the mortgage charges plus a fixed amount. Associates records basic rental income as earned ratably on a monthly basis. Primary overage rent represents the operating profit, as defined, of the  Lessee for the previous lease year up to a specified maximum amount and is recorded ratably over the twelve month period. Secondary overage rent is based on the net profits of the Lessee in each lease year and is recorded by Associates when such amounts become determinable.

 

e.

Valuation of Long-Lived Assets:

Associates assesses the carrying amount of long-lived assets whenever events or changes in circumstances indicate that their carrying amount may not be recoverable. When Associates determines that the carrying amount of long-lived assets is impaired, the measurement of any impairment is based on a discounted cash flow method.

  

f.  Use of Estimates:

In preparing financial statements in conformity with accounting principles generally accepted in the United States of America, management makes estimates and assumptions that affect the reported amounts of assets and liabilities and disclosures of contingent assets and liabilities at the date of the financial statements, as well as the reported amounts of revenue and expenses during the reporting period.  Actual results could differ from those estimates.


The real estate industry has historically been cyclical and sensitive to changes in economic conditions such as interest rates, credit availability and unemployment levels. Changes in these economic conditions could affect the assumptions used by management in preparing the accompanying financial statements.


     g. Income Taxes

Associates is organized as a limited liability company and is taxed as a partnership for income tax purposes. Accordingly, Associates is not subject to federal and state income taxes and makes no provision for income taxes in its financial statements. Associates taxable income or loss is reportable by its members.


At December 31, 2008 and 2007, the reported amounts of Associates’ net assets and liabilities exceeded their tax bases by approximately $810,000 and $533,000, respectively.

 

 


3.  Mortgage Indebtedness and Building Improvements Program

 

On December 29, 2004 the First Mortgage (the “First Mortgage”) was placed on the property in the amount of $30,500,000 with Prudential Insurance Company of America. At closing, $3,000,000 was drawn and the remaining $27,500,000 was drawn during 2005. These draws paid off the pre-existing first mortgage of $15,500,000 with Emigrant Savings Bank on September 1, 2005 and were used to finance capital improvements as needed.  The initial draw of $3,000,000 and all subsequent draws required constant equal monthly payments of interest only, at the rate of 5.33% per annum until January 5, 2007. Commencing February 5, 2007, Associates is required to repay the full $30,500,000 in equal monthly payments of $184,213 applied to interest and principal calculated on a 25 year amortization schedule. The First Mortgage matures on December 5, 2014. The First Mortgage may be prepaid at any time, in whole only, upon payment of a prepayment penalty based on a yield maintenance formula. There is no prepayment penalty if the mortgage is paid in full during the last 90 days of the term.

 

 


On May 25, 2006, a Second Mortgage (the “Second Mortgage”) was placed on the property in the amount of $12,410,000 with the Prudential Insurance Company. $2,100,000 was drawn at closing and an additional $8,250,000 had been drawn as of December 31, 2008. The remaining $2,060,000 must be drawn through April 5, 2009 and will be used to finance capital improvements as needed. The initial draw of $2,100,000 and all subsequent draws require constant equal monthly payments of interest only, at the rate of 6.13% per annum until March 5, 2009. Commencing April 5, 2009, constant monthly payments of interest and principal of $80,947 will be required. The Second Mortgage matures on January 5, 2015. The Second Mortgage may be prepaid at any time, in whole only, upon payment of a prepayment penalty based on a yield maintenance formula. There is no prepayment penalty if the Second Mortgage is paid in full during the last 60 days of the term.


The following is a schedule of principal payments on the Mortgages in each of the five years subsequent to December 31, 2008 and thereafter:


                                            Year ending

                                            December 31,

    2009

$921,635

    2010

1,062,781

    2011

1,123,890

    2012

1,188,529

    2013

1,256,906

   Thereafter

34,118,676

   Total

$39,672,417



The real estate is pledged as collateral for the mortgage.


The estimated fair value of Associates’ mortgage debt, based on the available market information was approximately $38,065,000 and $37,510,000 at December 31, 2008 and December 31, 2007, respectively.


  

4.  Related Party Transactions - Rental Income


Associates does not operate the property (Note 1). It leases the property to the Lessee pursuant to an operating lease, as modified, which is currently set to expire on September 30, 2028.  The participants in Associates have consented to the granting of options to the Lessee to extend the lease for three additional twenty-five year renewal terms expiring in 2103.  There is no change in the terms of the lease during the renewal periods. Basic annual rent income is equal to the sum of $28,000 for supervisory services plus installment payments for interest and amortization (not including any balloon payment due at maturity) on all mortgages currently payable (adjusted for the effects of any refinancings).


 


Lessee is required to make a monthly payment to Associates, as an advance against primary overage rent (“Primary Overage Rent”), of an amount equal to its operating profit for its previous lease year ending September 30 th in the maximum amount of $752,000 per annum. Primary Overage Rent is advanced by the Lessee and recorded in revenues by Associates in equal monthly installments of $62,667 throughout each year.


 Lessee is also required to make annual payment to Associates of secondary overage rent (“Secondary Overage Rent”) subsequent to September 30 th of the amount representing 50% of the excess of the net operating profit of the Lessee for the lease year ending September 30 th over the Primary Overage Rent of $752,000, less the amount representing interest earned and retained by Associates on funds borrowed for the building improvements program described in Note 11. Since it is not practicable to estimate Secondary Overage Rent for the lease year ending on the ensuing September 30 th which would be allocable to the first nine months of the lease year until the Lessee, pursuant to the Lease, renders to Associates a report on the operation of the property, Associates recognizes Secondary Overage Rent when earned from the Lessee, at the close of the lease year ending September 30 th.


Rent income was comprised as follows:


                              Year ended December 31,

     

     2008                  2007    

 

Basic minimum annual rent

$2,730,283

$2,554,250

Primary Overage rent

752,000

752,000

Secondary Overage rent

 2,957,049

 3,281,821

Total Overage rent

 3,709,049

 4,033,821

Rent income

$6,439,332

$6,588,071



Secondary Overage Rent represents 50% of the excess of the Lessee's net operating profit of  $6,900,822 and $7,472,951 in 2008 and 2007, respectively, over $752,000 in each year, less $117,360 and $78,653 in 2008 and 2007, respectively, of dividends earned and retained by Associates on funds borrowed for the improvement program.


As a result of its revenue recognition policy, rental income for the year ending December 31 st includes the advances of Primary Overage Rent received from October 1st to December 31 st, but does not include any portion of Secondary Overage Rent based on the Lessee’s operations during that period.


The Lessee may surrender the lease at the end of any month, upon 60 days prior written notice; the liability of the Lessee will end on the effective date of such surrender.


The following is a schedule of future minimum rental income (assuming that the Lessee does not surrender the Lease):


 

 


Year ending

December 31,

 

2009

$3,080,000

2010

3,210,000

2011

3,210,000

2012

3,210,000

2013

3,210,000

Thereafter

    3,410,000

 

$19,330,000

 

 


Real estate taxes paid directly by the Lessee for the years ended December 31, 2008 and 2007 totaled $3,348,089 and $3,288,093, respectively.


5.  Related Party Transactions - Supervisory  and Other Services


(a) Rental Income

All rental income is received by Associates from the Lessee, a related party.  


(b) Supervisory and Other Services

Supervisory and other services are provided to Associates by Wien & Malkin LLC (“Wien & Malkin” or the “Supervisor”), a related party.  Beneficial interests in Associates and Lessee are held directly or indirectly by one or more persons at Wien & Malkin and/or their family members.  


Basic fees for services are $40,000 per annum. Wien & Malkin also received $56,524 during 2007 for services rendered in connection with tender offers from unrelated third parties. All of the fees were computed on an hourly basis. Wien & Malkin receives an additional payment equal to 10% of all distributions received by the participants in Associates in excess of 15% per annum on the original cash investment of $3,600,000. Fees for supervisory services (including disbursements and costs of accounting services) were $363,341 and $369,528 for 2008 and 2007, respectively. For tax purposes, such additional payment is recognized as a profits interest and the Supervisor is treated as a partner, all without modifying each Participant’s distributive share of reportable income and cash distributions. Distributions in respect of Wien & Malkin’s profits interest totaled $323,341 and $329,528 for 2008 and 2007, respectively.


Wien & Malkin also serves as supervisor for the Lessee, for which it receives a basic annual fee of $48,000. For the years ended December 31, 2008 & 2007, Wien & Malkin received $67,296 and $30,771, respectively, from the Lessee in other service fees. Wien & Malkin receives a payment from Lessee in respect of its profits interest equal to 10% of distributions in excess of $100,000 a year. Distributions in respect of Wien & Malkin’s profits interest from the Lessee totaled $312,960 and $162,960 for the years ended December 31, 2008 and 2007, respectively.


 

 


Under separate agreements to which Lessee is not a party, certain of Lessee’s participants pay Wien & Malkin and members of Peter L. Malkin’s immediate family a percentage of distributions above an annual threshold. These third party payments (which totaled $291,092 and $116,436 to Wien & Malkin and such Malkin family members in 2008 and 2007, respectively) do not impose any obligation upon Lessee or affect its assets and liabilities.


6. Number of Participants

 

There were approximately 609 participants in the various joint ventures as of December 31, 2008 and 607 participants as of December 31, 2007, respectively.

 


7. Determination of Distributions to Participants

Distributions to participants during each year represent mainly the excess of rent income received over the mortgage requirements and cash expenses.


 

8. Distributions and Amount of Income per $5,000 Participation Unit

Distributions and amount of income per $5,000 participation unit during the years ended December 31, 2008 and 2007, based on 720 participation units outstanding during each year, consisted of the following:

 

   Year ended December 31,  

 

 

 

 

 

 

Income

2008 

  $4,032

2007  

$4,478

 

 

Return of capital

       760

             391

 

 

  Total distributions per unit

 $4,792

  $4,869

 


 

9.  Concentration of Credit Risk

 

Associates maintains cash and cash equivalents in a bank, a money market fund (Fidelity U.S. Treasury Income Portfolio) and a distribution account held by Wien & Malkin. The Federal Deposit Insurance Corporation (“FDIC”) insures each account up to $250,000, effective October 3, 2008. In addition, under the FDIC’s Transaction Account Guarantee Program, through December 31, 2009, all noninterest-bearing accounts are fully guaranteed by the FDIC for the entire amount in the account. At December 31, 2008, the bank account, other than the distribution account, is fully insured. The money market funds extended their participation to April 30, 2009 in the Temporary Guarantee Program for Money Market Funds established by the U.S. Treasury Department under which the U.S. Treasury guarantees that investors receive $1 for each money market fund share held up to the amount held as of September 19, 2008. As the funds in the money market account at September 19, 2008 were greater than at December 31, 2008, the entire amount at December 31, 2008 is subject to the U.S. Treasury’s guarantee. The funds ($60,000 at December 31, 2008) held by Wien & Malkin in the distribution account were paid to the participants on January 1, 2009.  


 

 


10.

Contingencies


Wien & Malkin and Peter L. Malkin, a member in Associates, were engaged in a proceeding with Lessee’s former managing agent, Helmsley-Spear, Inc. commenced in 1997, concerning the management, leasing, and supervision of the property that is subject to the Lease to  Lessee.  In this connection, certain costs for legal and professional fees and other expenses were paid by Wien & Malkin and Mr. Malkin.  Wien & Malkin and Mr. Malkin have represented that such costs will be recovered only to the extent that (a) a competent tribunal authorizes payment or (b) an investor voluntarily agrees that his or her proportionate share be paid.  Accordingly, Associates’ allocable share of such costs is as yet undetermined, and Associates has not provided for the expense and related liability with respect to such costs in these financial statements.  As a result of the August 29, 2006 settlement agreement which included termination of this proceeding, Associates will not recognize any gains or losses from this proceeding other than the possible charges for the aforementioned fees and expenses.



 

11.  Building Improvements Program and Agreement to Extend Lease


In 1999, the Participants in Associates and the members in Lessee consented to a building improvements program (the "Program") estimated to cost approximately $12,200,000. In 2004, the Participants and the Lessee approved an increase in the Program from $12,200,000 to approximately $31,400,000 under substantially the same conditions as had previously been approved.  To induce the Lessee to approve the Program, Associates agreed to grant to the Lessee, upon completion of the Program, the right to further extensions of the Lease beyond 2103, based on the net present benefit to Associates of the improvements made. The Program was further increased in 2006 from $31,400,000 to up to $82,300,000. The Participants in Associates and the members in Lessee have approved increased refinancing of $20,990,000 from the total of $42,910,000 provided by the First and Second Mortgages to up to $63,900,000. Such increase would extend the lease beyond 2103, based on the net present benefit to Associates of the improvements made. As of December 31, 2008, Associates had incurred or accrued costs related to the Program of $32,836,036 and estimates that costs upon completion will be approximately $82,300,000. The balance of the costs of the Program will be financed primarily by the remaining $2,060,000 that may be drawn under the Second Mortgage and the additional $20,990,000 of loans previously approved.


The Lessee is financing the Program and billing Associates for amounts so advanced. The Program (1) grants the ownership of the improvements to Associates and acknowledges its intention to finance them through an increase in the mortgage ( Note 3), and (2) allows for the increased mortgage charges to be paid by Associates from an equivalent increase in the basic rent paid by the Lessee to Associates. Since any Secondary Overage Rent will be decreased by one-half of that amount, the net effect of the lease modification is to have Associates and the Lessee share the costs of the Program equally, assuming Secondary Overage Rent continues to be earned.

                                                                                                                                                                                                                                                       


 

 

 

 


SCHEDULE III

250 WEST 57th ST. ASSOCIATES L.L.C.

(A Limited Liability Company)

Real Estate and Accumulated Depreciation

December 31, 2008

Column

A

Description

 

 

 

 

Office building and land located at

250-264 West 57th Street, New York, New York, known as the "Fisk Building".

 

 

 

 

B

 

Encumbrances Prudential Insurance Co.

Balance at December 31, 2008

 


$39,672,417

 

 

 

 

C

 

Initial cost to company

 

 

 

  Land

 

$ 2,117,435

 

 

  Building

 

$ 4,940,682

 

 

 

 

D

 

Costs capitalized subsequent to acquisition

 

 

 

Building improvements and tenant installations

and improvements (net of $249,791 written off in 2003)

 


$33,524,035

 

 

Carrying costs

 

NONE

 

 

 

 

E

 

Gross amount at which carried at close of period

 

 

 

  Land

 

$  2,117,435

 

 

  Building and building improvements and

  tenant installations and improvements

 


  38,510,101

 

 

  Total

 

$40,627,536(a)

 

 

 

 

F

 

Accumulated depreciation (net of $249,791 written off in 2003)

 


$9,124,289(b)

 

 

 

 

G

 

Date of construction

 

1921


 

 

H

 

Date acquired

 

September 30, 1953

 

 

 

 

 

I

 

Life on which depreciation in latest income statements is computed         39 years

 

 

(a)

Gross amount of real estate

 

 

 

 

  Balance at January 1, 2007

 

    $37,834,697

 

 

  Purchase of building improvements and building

  improvements in progress (expenditures advanced

  by Lessee, a related party, and recorded by the Company):

 

 

 

 

 

 

 

 

 

F/Y/E 12/31/07

$2,397,296

 

 

 

12/31/08

    395,543

      2,792,839

Balance at December 31, 2008

                                                

                 $40,627,536

The costs for federal income tax purposes are the same as for financial statement purposes.

 

(b) Accumulated depreciation

 

 

Balance at January 1, 2007

    $7,480,272

 

 

 

 

Depreciation:

 

 

 

           F/Y/E  12/31/07

$807,017

 

 

            12/31/08

837,000

      1,644,017

 

                       Balance at December 31, 2008

    $9,124,289

 

 

 




                                                                                                                                                                                                                                            

         



Item 9.

Changes in and Disagreements with Accountants on Accounting and Financial Disclosure.


None


Item 9a.           Controls and Procedures.


 

(a)  Evaluation of disclosure controls and procedures. The Supervisor after evaluating the effectiveness of Registrant’s  “disclosure controls and procedures” (as defined in the Securities Exchange Act of 1934 Rules 13a-15(e) and 15d-15(e)) as of December 31, 2008, the end of the period covered by this report, has concluded that as of that date that Registrant’s disclosure controls and procedures were effective and designed to ensure that material information relating to Registrant would be made known to him by others within those entities on a timely basis.


(b)

Changes in internal controls over financial reporting. There were no changes in Registrant’s internal controls over financial reporting that occurred during the most recent fiscal quarter that have materially affected, or are reasonably likely to affect, the Registrant’s internal controls over financial reporting.


Management’s Annual Report on Internal Control Over Financial Reporting


Registrant’s Supervisor is responsible for establishing and maintaining on behalf of management adequate internal control over financial reporting (as defined in Rule 13a-15(f) of the Securities Exchange Act of 1934).


Registrant’s internal control over financial reporting is a process designed to provide reasonable assurance regarding the reliability of financial reporting and the preparation of financial statements for external purpose in accordance with U.S. generally accepted accounting principles. Registrant’s internal control over financial reporting includes those policies and procedures that (1) pertain to maintenance of records that, in reasonable detail, accurately and fairly reflect the transactions and dispositions of Registrant’s assets; (2) provide reasonable assurance that transactions are recorded as necessary to permit preparation of financial statements in accordance with U.S. generally accepted accounting principles, and that Registrant’s receipts and expenditures are being made only in accordance with authorizations of management and directors; and (3) provide reasonable assurance regarding prevention or timely detection of unauthorized acquisition, use, or disposition of Registrant’s assets that could have a material effect on the financial statements.


Because of its inherent limitations, internal control over financial reporting may not prevent or detect misstatements. Also, projections of any evaluation of effectiveness to future periods are subject to the risk that controls may become inadequate because of changes in conditions, or that the degree of compliance with the policies or procedures may deteriorate. Under the supervision of and with the participation of the Supervisor, an assessment was conducted of the effectiveness of Registrant’s internal control over financial reporting based on the framework and criteria established in Internal Control – Integrated Framework, issued by the Committee of Sponsoring Organizations of the Treadway Commission.  Based on this assessment Registrant’s Supervisor has concluded that, as of December 31, 2008, Registrant’s internal control over financial reporting was effective.


This annual report does not include an attestation report of Registrant’s current registered public accounting firm regarding internal control over financial reporting. Such report was not subject to attestation by Registrant’s current registered public accounting firm pursuant to temporary rules of the Securities and Exchange Commission that permit Registrant to provide only its report in this annual report.

                                                                                                                                                                                       



Exhibit 31.1

CERTIFICATIONS


I, Mark Labell, certify that:


1.

I have reviewed this annual report on Form 10-K of 250 West 57th St. Associates L.L.C.;


2.

Based on my knowledge, this report does not contain any untrue statement of a material fact or omit to state a material fact necessary to make the statements made, in light of the circumstances under which such statements were made, not misleading with respect to the period covered by this report;


3.

Based on my knowledge, the financial statements, and other financial information included in this report, fairly present in all material respects the financial condition, results of operations and cash flows of the Registrant as of, and for, the periods presented in this report;


4.

The Registrant’s other certifying officer(s) and I are responsible for establishing and maintaining disclosure controls and procedures (as defined in Exchange Act Rules 13a-15(e) and 15d-15(e)) and internal control over financial reporting (as defined in Exchange Act Rules 13a-15(f) and 15d-15(f))for the Registrant and we have:


(a)

Designed such disclosure controls and procedures or caused such disclosure controls and procedures to be designed under our supervision, to ensure that material information relating to the Registrant is made known to us by others within those entities, particularly during the period in which this report is being prepared;


(b)

Designed such internal control over financial reporting, or caused such internal control over financial reporting to be designed under our supervision, to provide reasonable assurance regarding the reliability of financial reporting and the preparation of financial statements for external purposes in accordance with generally accepted accounting principles;


(c)

Evaluated the effectiveness of the Registrant’s disclosure controls and procedures and presented in this report our conclusions about the effectiveness of the disclosure controls and procedures, as of the end of the period covered by this report based on such evaluation; and

 

(d)

Disclosed in this report any change in the Registrant’s internal control over financial reporting that occurred during the Registrant’s most recent fiscal quarter (the Registrant’s fourth fiscal quarter in the case of an annual report) that has materially affected, or is reasonably likely to materially affect, the Registrant’s internal control over financial reporting; and


5.

The Registrant’s other certifying officer(s) and I have disclosed, based on our most recent evaluation of internal control over financial reporting, to the Registrant’s auditors and the audit committee of the Registrant’s board of directors (or persons performing the equivalent functions):


(a)

All significant deficiencies and material weaknesses in the design or operation of internal controls over financial reporting which are reasonably likely to adversely affect the Registrant’s ability to record, process, summarize and report financial information; and


(b)

Any fraud, whether or not material, that involves management or other employees who have a significant role in the Registrant’s internal controls over financial reporting.




Date: February 1, 2010


 


             /s/ Mark Labell

                 Name: Mark Labell

Title: Senior Vice President, Finance

Malkin Holdings LLC, Supervisor of 250 West 57th St. Associates L.L.C.


Registrant’s organizational documents do not provide for a Chief Executive Officer or other officer with equivalent rights and duties.  As described in the Report, Registrant is a limited liability company which is supervised by Malkin Holdings LLC.  Accordingly, this Chief Executive Officer certification is being signed by a senior executive of Registrant’s supervisor.

                                                                                                                                                                                                                                                                   


 

 

Exhibit 31.2

CERTIFICATIONS


I, Mark Labell, certify that:


1.      I have reviewed this annual report on Form 10-K of 250 West 57th St. Associates L.L.C.;

2.

Based on my knowledge, this report does not contain any untrue statement of a material fact or omit to state a material fact necessary to make the statements made, in light of the circumstances under which such statements were made, not misleading with respect to the period covered by this report;


3.

Based on my knowledge, the financial statements, and other financial information included in this report, fairly present in all material respects the financial condition, results of operations and cash flows of the Registrant as of, and for, the periods presented in this report;


4.

The Registrant’s other certifying officer(s) and I are responsible for establishing and maintaining disclosure controls and procedures (as defined in Exchange Act Rules 13a-14 and 15d-14) and internal control over financial reporting (as defined in Exchange Act Rules 13a-15(f) and 15d-15(f)) for the Registrant and we have:


(a)

Designed such disclosure controls and procedures or caused such disclosure controls and procedures to be designed under our supervision, to ensure that material information relating to the Registrant is made known to us by others within those entities, particularly during the period in which this report is being prepared;


(b) Designed such internal control over financial reporting, or caused such internal control over financial reporting to be designed under our supervision, to provide reasonable assurance regarding the reliability of financial reporting and the preparation of financial statements for external purposes in accordance with generally accepted accounting principles;

(c) Evaluated the effectiveness of the Registrant’s disclosure controls and procedures and presented in this report our conclusions about the effectiveness of the disclosure controls and procedures, as of the end of the period covered by this report based on such evaluation; and

(d) Disclosed in this report any change in the Registrant’s internal control over financial reporting that occurred during the Registrant’s most recent fiscal quarter (the Registrant’s fourth fiscal quarter in the case of an annual report) that has materially affected, or is reasonably likely to materially affect, the Registrant’s internal control over financial reporting; and

 

 


5.

The Registrant’s other certifying officer(s) and I have disclosed, based on our most recent evaluation of internal control over financial reporting, to the Registrant’s auditors and the audit committee of the Registrant’s board of directors (or persons performing the equivalent functions):


(a)

All significant deficiencies and material weaknesses in the design or operation of internal controls over financial reporting which are reasonably likely to adversely affect the Registrant’s ability to record, process, summarize and report financial information; and


(b)

Any fraud, whether or not material, that involves management or other employees who have a significant role in the Registrant’s internal controls over financial reporting.




Date: February 1, 2010



             /s/ Mark Labell

                 Name: Mark Labell

Title: Senior Vice President, Finance

Malkin Holdings LLC, Supervisor of 250 West 57th St. Associates L.L.C.  


Registrant’s organizational documents do not provide for a Chief Financial Officer or other officer with equivalent rights and duties.  As described in the Report, Registrant is a limited liability company which is supervised by Malkin Holdings LLC.  Accordingly, this Chief Financial Officer certification is being signed by a senior member of the financial/accounting staff of Registrant’s supervisor.  

 

 


 

                                                                                                                                                                                                                                                                 

Exhibit 32.1

 

Certification Pursuant to 18 U.S.C., Section 1350 as adopted

Pursuant to Section 906

of Sarbanes – Oxley Act of 2002

 

The undersigned, Mark Labell, is signing this Chief Executive Officer certification as Senior Vice President, Finance of Malkin Holdings LLC, the Supervisor* of 250 West 57 th St. Associates L.L.C. (“Registrant”) to certify that:

 

1.      the Annual Report on Form 10-K of Registrant for the period ended December 31, 2008 (the “Report”) fully complies with the requirements of Section 13(a) or 15(d) of the Securities Exchange Act of 1934 (15 U.S.C.78m or 78o(d)); and

 

2.      the information contained in the Report fairly presents, in all material respects, the financial condition and results of operations of Registrant.

 

 

Dated: February 1, 2010

 

 

By /s/ Mark Labell

Mark Labell   

Senior Vice President, Finance

Malkin Holdings LLC, Supervisor

 

 

 

*Registrant’s organizational documents do not provide for a Chief Executive Officer or other officer with equivalent rights and duties.   As described in the Report, Registrant is a limited liability company which is supervised by Malkin Holdings LLC.   Accordingly, this Chief Executive Officer certification is being signed by a senior executive of Registrant’s supervisor.  

 

                                                                                                                                                                                                    



         

                                                                                                                                        Exhinit 32.2

 

Certification Pursuant to 18 U.S.C., Section 1350 as adopted

Pursuant to Section 906

of Sarbanes – Oxley Act of 2002

 

The undersigned, Mark Labell, is signing this Chief Financial Officer certification as a senior member of the financial/accounting staff of Malkin Holdings LLC, the Supervisor* of 250 West 57 th St. Associates L.L.C. (“Registrant”), to certify that:

 

1.      the Annual Report on Form 10-K of Registrant for the period ended December 31, 2008 (the “Report”) fully complies with the requirements of Section 13(a) or 15(d) of the Securities Exchange Act of 1934 (15 U.S.C.78m or 78o(d)); and

 

2.      the information contained in the Report fairly presents, in all material respects, the financial condition and results of operations of Registrant.

 

 

Dated: February 1, 2010

 

By /s/ Mark Labell

Mark Labell

Senior Vice President, Finance

Malkin Holdings LLC, Supervisor

 

 

*Registrant’s organizational documents do not provide for a Chief Financial Officer or other officer with equivalent rights and duties.   As described in the Report, Registrant is a limited liability company which is supervised by Malkin Holdings LLC.   Accordingly, this Chief Financial Officer certification is being signed by a senior member of the financial/accounting staff of Registrant’s supervisor.