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. | ||||||
(A Limited Liability Company) | ||||||
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BALANCE SHEETS | ||||||
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ASSETS |
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| December 31, | ||
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2008 |
| 2007 |
Real Estate at 250-264 West 57th Street, |
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New York, N.Y.: |
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Building |
| $ 4,940,682 |
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$ 4,940,682 | |
| Less: Accumulated depreciation |
4,940,682 |
| 4,940,682 | ||
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0 |
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0 |
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Building improvements |
33,524,035 |
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33,173,876 | ||
| Less: Accumulated depreciation |
4,183,607 |
| 3,346,608 | ||
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29,340,428 |
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29,827,268 |
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Building improvements in progress |
45,383 |
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- | ||
| Land |
| 2,117,435 |
| 2,117,435 | |
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TOTAL REAL ESTATE, NET |
31,503,246 |
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31,944,703 | |
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Cash and cash equivalents: |
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Cash in Bank |
322,193 |
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87,856 | ||
| Distribution account held by Wien & Malkin LLC, |
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a related party |
60,000 |
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60,000 | |
| Fidelity U.S. Treasury Income Portfolio |
3,129,434 |
| 5,043,295 | ||
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| TOTAL CASH AND CASH EQUIVALENTS |
3,511,627 |
| 5,191,151 |
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Leasing commissions, less accumulated amortization |
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| of $638,141 in 2008 and $446,177 in 2007 |
904,605 |
| 1,076,569 | ||
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Mortgage refinancing costs, less accumulated amortization |
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of $455,692 in 2008 and $320,132 in 2007 |
826,901 |
| 962,461 | ||
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TOTAL ASSETS |
$ 36,746,379 |
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$ 39,174,884 |
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LIABILITIES AND MEMBERS' DEFICIENCY |
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Liabilities: |
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| Mortgage payable |
39,672,417 |
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37,301,770 | ||
| Accrued interest |
181,168 |
| 168,639 | ||
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Building improvement costs payable |
555,200 |
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3,282,693 | ||
| Payable to lessee, a related party |
672,853 |
| 2,449,340 | ||
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Prepaid rent |
239,418 |
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- | ||
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| TOTAL LIABILITIES |
41,321,056 |
| 43,202,442 |
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| Commitments and contingencies |
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Member's deficiency |
(4,574,677) |
| (4,027,558) | ||
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TOTAL LIABILITIES AND MEMBERS' |
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| DEFICIENCY |
$ 36,746,379 |
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$ 39,174,884 |
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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) | |||||
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STATEMENTS OF INCOME | |||||
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| Year ended December 31 | ||
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2008 |
| 2007 |
Revenues: |
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Rent income, from a related party |
$ 6,439,332 |
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$ 6,588,071 | |
| Miscellaneous income |
962 |
| 1,200 | |
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Interest and dividend income |
80,760 |
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110,986 | |
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TOTAL REVENUES |
6,521,054 |
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6,700,257 |
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Expenses: |
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Interest on mortgages |
2,070,135 |
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1,926,775 | |
| Supervisory services, to a related party |
363,341 |
| 369,528 | |
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Depreciation of building improvements |
837,000 |
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807,017 | |
| Amortization of leasing commission |
171,964 |
| 171,920 | |
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Amortization of mortgage refinancing costs |
135,561 |
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135,560 | |
| Professional fees |
39,780 |
| 64,691 | |
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Miscellaneous |
325 |
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509 | |
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TOTAL EXPENSES | 3,618,105 |
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3,476,000 |
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| NET INCOME |
2,902,949 |
| 3,224,257 |
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Earnings per $5,000 participation unit, based |
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on 720 participation units outstanding during each |
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year | $ 4,032 |
| $ 4,478 | |
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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) |
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Anthony E. Malkin Joint Venture #2 |
(402,757) |
290,295 |
345,006 |
(457,468) |
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Anthony E. Malkin Joint Venture #3 |
(402,754) |
290,295 |
345,007 |
(457,466) |
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Anthony E. Malkin Joint Venture #4 |
(402,754) |
290,294 |
345,007 |
(457,467) |
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Peter L. Malkin Joint Venture #1 |
(402,754) |
290,295 |
345,007 |
(457,466) |
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Peter L. Malkin Joint Venture #2 |
(402,755) |
290,295 |
345,007 |
(457,467) |
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Peter L. Malkin Joint Venture #3 |
(402,756) |
290,295 |
345,007 |
(457,468) |
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Peter L. Malkin Joint Venture #4 |
(402,757) |
290,295 |
345,007 |
(457,469) |
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Peter L. Malkin Joint Venture #5 |
(402,756) |
290,295 |
345,007 |
(457,468) |
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Peter L. Malkin Joint Venture #6 |
(402,758) | 290,295 |
345,007 |
(457,470) |
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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
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| Members' |
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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) |
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Anthony E. Malkin Joint Venture #2 |
(374,607) |
322,425 |
350,575 |
(402,757) |
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Anthony E. Malkin Joint Venture #3 |
(374,604) |
322,425 |
350,575 |
(402,754) |
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Anthony E. Malkin Joint Venture #4 |
(374,605) |
322,426 |
350,575 |
(402,754) |
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Peter L. Malkin Joint Venture #1 |
(374,605) |
322,426 |
350,575 |
(402,754) |
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Peter L. Malkin Joint Venture #2 |
(374,605) |
322,426 |
350,576 |
(402,755) |
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Peter L. Malkin Joint Venture #3 |
(374,606) |
322,426 |
350,576 |
(402,756) |
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Peter L. Malkin Joint Venture #4 |
(374,607) |
322,426 |
350,576 |
(402,757) |
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Peter L. Malkin Joint Venture #5 |
(374,606) |
322,426 |
350,576 |
(402,756) |
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Peter L. Malkin Joint Venture #6 |
(374,608) |
322,426 |
350,576 |
(402,758) |
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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. | ||||||
(A Limited Liability Company) | ||||||
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STATEMENTS OF CASH FLOWS | ||||||
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Year ended December 31 | ||
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| 2008 |
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2007 |
Cash flows from operating activities: |
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Net income |
$ 2,902,949 |
| $ 3,224,257 | ||
| Adjustments to reconcile net income |
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to net cash provided by operating activities: |
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Depreciation of building improvements |
837,000 |
| 807,017 | |
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| Amortization of leasing commissions |
171,964 |
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171,920 | |
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Amortization of mortgage refinancing costs |
135,560 |
| 135,560 | |
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Changes in operating assets and liabilities: |
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Leasing commissions paid |
- |
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(82,336) |
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| Accrued mortgage interest |
12,529 |
| 16,721 |
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Change in prepaid rent |
239,418 |
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Net cash provided by operating activities |
4,299,420 |
| 4,273,139 |
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Cash flows from investing activities: |
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Purchase of building improvements |
(395,543) |
| (2,397,298) | ||
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Change in building improvement costs payable |
(2,727,493) |
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| Change in restricted cash for payment of building |
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improvement costs |
- |
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215,174 | ||
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Net cash used in investing activities |
(3,123,036) |
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(2,182,124) |
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Cash flows from financing activities: |
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| Proceeds from mortgage payable |
3,000,000 |
| 3,750,000 | ||
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Repayment of mortgage payable |
(629,353) |
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(548,230) | ||
| Advances from and other payments by (repayments |
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to) net lessee and others for building improvement |
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| costs payable |
(1,776,487) |
| 2,127,661 | ||
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Cash distributions to participants |
(3,450,068) |
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(3,505,755) | ||
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Net cash provided by (used in) financing activities |
(2,855,908) |
| 1,823,676 |
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| Net increase (decrease) in cash and cash equivalents |
(1,679,524) |
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3,914,691 |
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Cash and cash equivalents, beginning of year |
5,191,151 |
| 1,276,460 | |||
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CASH AND CASH EQUIVALENTS, END OF YEAR |
$ 3,511,627 |
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$ 5,191,151 | |||
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Supplemental disclosures of cash flow information: |
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| Cash paid during year for interest |
$ 2,057,606 |
| $ 1,910,053 | ||
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Supplemental disclosure of non-cash investing and financing |
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activities: |
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Short-term debt payable to Lessee and others incurred for the |
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purchase of building improvements |
$ - |
| $ 2,260,497 | |||
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See accompanying notes to financial statements
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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 Lessees 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 Participants distributive share of reportable income and cash distributions. Distributions in respect of Wien & Malkins 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 & Malkins 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 Lessees participants pay Wien & Malkin and members of Peter L. Malkins 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 FDICs 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. Treasurys 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 Lessees 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 Registrants 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 Registrants 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 Registrants internal controls over financial reporting that occurred during the most recent fiscal quarter that have materially affected, or are reasonably likely to affect, the Registrants internal controls over financial reporting.
Managements Annual Report on Internal Control Over Financial Reporting
Registrants 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).
Registrants 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. Registrants 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 Registrants 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 Registrants 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 Registrants 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 Registrants 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 Registrants Supervisor has concluded that, as of December 31, 2008, Registrants internal control over financial reporting was effective.
This annual report does not include an attestation report of Registrants current registered public accounting firm regarding internal control over financial reporting. Such report was not subject to attestation by Registrants 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 Registrants 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 Registrants 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 Registrants internal control over financial reporting that occurred during the Registrants most recent fiscal quarter (the Registrants fourth fiscal quarter in the case of an annual report) that has materially affected, or is reasonably likely to materially affect, the Registrants internal control over financial reporting; and
5. |
The Registrants other certifying officer(s) and I have disclosed, based on our most recent evaluation of internal control over financial reporting, to the Registrants auditors and the audit committee of the Registrants 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 Registrants 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 Registrants 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.
Registrants 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 Registrants 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 Registrants 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 Registrants 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 Registrants internal control over financial reporting that occurred during the Registrants most recent fiscal quarter (the Registrants fourth fiscal quarter in the case of an annual report) that has materially affected, or is reasonably likely to materially affect, the Registrants internal control over financial reporting; and
5. |
The Registrants other certifying officer(s) and I have disclosed, based on our most recent evaluation of internal control over financial reporting, to the Registrants auditors and the audit committee of the Registrants 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 Registrants 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 Registrants 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.
Registrants 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 Registrants 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 |
*Registrants 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 Registrants 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 |
*Registrants 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 Registrants supervisor.