FORM 10-K
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, 2005
[ ] 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)
New York 13-6083380
State or other jurisdiction of (I.R.S. Employer
incorporation or organization Identification No.)
60 East 42nd Street, New York, New York 10165
(Address of principal executive offices) (Zip Code)
Registrant's telephone number, including area code (212) 687-8700
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.
An Exhibit Index is located on pages 34 through 36 hereof.
Number of pages (including exhibits) in this filing: 47
PART I
Item 1. Business.
(a) General
Registrant is a New York limited liability company which was organized as a joint venture on May 25, 1953. On September 30, 1953, Registrant acquired fee title to The Fisk Building LLC, 250-264 West 57th Street, New York, New York (the "Building") and to the land there under (collectively, the "Property"). On November 30, 2001, Registrant converted to a limited liability company under New York law and is now known as 250 West 57th St. Associates L.L.C. The conversion does not change any aspect of the assets and operations of Registrant other than to protect its participants from any future liability to a third party. Registrant's members are Peter L. Malkin and Anthony E. Malkin (collectively, the "Agents") each of whom also acts as an agent for holders of participations in his respective member interests in Registrant (the "Participants").
Registrant leases the Property to Fisk Building Associates L.L.C. (the "Net Lessee"), under a long-term net operating lease dated May 1, 1954 (the "Net Lease"), the current term of which expires on September 30, 2028. Net Lessee is a New York limited liability company, and entities created by Peter L. Malkin for family members are beneficial owners of interests in the Net Lessee. In addition, both of the Agents hold senior positions at Wien & Malkin LLP, 60 East 42nd Street, New York, New York, which provides supervisory and other services to Registrant and the Net Lessee ("Supervisor"). See Items 10, 11, 12 and 13 hereof for a description of the on-going services rendered by, and compensation paid to, Supervisor and for a discussion of certain relationships which may pose actual or potential conflicts of interest among Registrant, Net Lessee and certain of their respective affiliates.
As of December 31, 2005, the Building was approximately 87% occupied by approximately 256 tenants, a majority of whom are engaged in the practices of law, dentistry and accounting, and the businesses of publishing, insurance and entertainment. Registrant does not maintain a full-time staff. See Item 2 hereof for additional information concerning the Building.
(b) Net Lease
Under the Net Lease, effective May 1, 1975, between 250 West 57th St. Associates, as lessor, and Fisk Building Associates LLC, as net lessee, basic rent was equal to mortgage principal and interest payments plus $28,000 payable to Wien & Malkin LLP for supervisory services. The lease modification dated November 17, 2000 between 250 West 57th St. Associates, as lessor, and Fisk Building Associates LLC, as net lessee, provides that the basic rent will be equal to the sum of $28,000 plus the installment payments for interest and amortization (not including any balloon payment due at maturity) required annually under the new $30,500,000 subordinate mortgage loan (which provided for funding to prepay the pre-existing $15,500,000 first mortgage; as such, herein referred to as the "First Mortgage") from Prudential Insurance Company. Basic rent is payable in monthly installments on the first day of each calendar month in an amount equal to $2,333.33 plus the projected debt service due on the First Mortgage on the first day of the ensuing calendar month (with a reconciliation to be made as soon as practicable thereafter). Basic rent shall be adjusted on a dollar-for-dollar basis by changes in the annual debt service on the First Mortgage.
Net Lessee is required to make a monthly payment to Registrant, as an advance against Primary Overage Rent, of an amount equal to its operating profit for its previous lease year in the maximum amount of $752,000 per annum. Net Lessee currently advances $752,000 each year, which permits Registrant to make regular monthly distributions at 20% per annum on the Participants' remaining original cash investment.
For the lease year ended September 30, 2005, Net Lessee reported net operating profit of $4,319,162 after deduction of Basic Rent. Net Lessee paid Primary Overage Rent of $752,000, together with Secondary Overage Rent of $1,729,364 for the fiscal year ended September 30, 2005. The Secondary Overage Rent of $1,729,364 represents 50% of the excess of the net operating profit of $4,319,162 over $752,000, less $54,215 representing interest earned and retained by Registrant on funds borrowed for the improvement program. Secondary overage rent payable of $1,729,364 plus $54,215 of interest income was available for distribution to the Participants. After deducting $178,308 to Supervisor as an additional payment for supervisory services and annual New York State limited liability company filing fees of $500, the balance of $1,604,771 was distributed to the Participants on November 30, 2005.
Secondary Overage Rent income is recognized when earned from Net Lessee, at the close of the lease year ending September 30. Such income is not determinable until Net Lessee, pursuant to the Net Lease, renders to Registrant a report on the Net Lessee's operation of the Property. The Net Lease requires that this report be delivered to Registrant annually within 60 days after the end of each such lease year.Accordingly, all Secondary Overage Rent income and related supervisory service expense can only be determined after the receipt of such report. The Net Lease does not provide for the Net Lessee to render interim reports to Registrant, so no income is reflected for the period between the end of the lease year and the end of Registrant's fiscal year. See Note 4 of Notes to Financial Statements filed under Item 8 hereof (the "Notes") regarding Secondary Overage Rent payments by Net Lessee for the fiscal years ended December 31, 2005, 2004 and 2003.
The Participants in Registrant have consented to the granting of options to the Net Lessee to extend the Net Lease for three additional 25-year renewal terms on or before the expiration of the then applicable renewal term.
(c) Mortgage Loan Refinancing
On December 29, 2004 a mortgage was placed on the property in the amount of $30,500,000 with Prudential Insurance Company of America, of which $15,500,000 was used to pay off the first mortgage on December 1, 2005 and the remainder is being used to finance capital improvements as needed. At closing $3,000,000 was drawn down and the remaining $27,500,000 was drawn down during 2005. The initial drawdown and all subsequent drawdowns require constant equal monthly payments of interest only, at the rate of5.33% per annum until August 5, 2007. On September 5, 2007 equal monthly payments are required to be applied to interest and principal calculated on a twenty-five year amortization schedule. The mortgagematures on December 5, 2014.
The mortgage may be prepaid at any time, in whole only, upon payment of a prepayment penalty based on a yield maintenance formula. There will be no prepayment penalty if the mortgage is paid in full during the last 90 days of the term.
(d) Competition
The average annual base rental rate payable to Net Lessee for leases being done at this time is $26.21 per square foot (exclusive of electricity charges and escalation).
Current asking rents for the building range from $35 to $40 per square foot.
(e) Tenant Leases
Net Lessee operates the Building free from any federal, state or local government restrictions involving rent control or other similar rent regulations which may be imposed upon residential real estate in Manhattan. Any increase or decrease in the amount of rent payable by a tenant is governed by the provisions of the tenant's particular lease. With respect to the retail leases, the tenants are required to pay electricity charges and taxes, and some tenants are required to pay cost of living increases in rent. In one particular instance, percentage rent was included in the tenant's lease in lieu of cost of living increases.
Item 2. Properties.
As stated in Item 1 hereof, Registrant owns the Building located at 250-264 West 57th Street, New York, New York, known as the "Fisk Building LLC", and the land thereunder. Registrant's fee title to the Property is encumbered by the First Mortgage which, at December 31, 2005, had unpaid principal balance of $30,500,000. For a description of the terms of the First Mortgage see Note 3 of the Notes.
The Building, erected in 1921 and containing 26 floors, occupies the entire block front on the south side of West 57th Street between Broadway and Eighth Avenue, New York, New York. The Building has ten passenger and three freight elevators and is equipped with a combination of central and individual window unit air-conditioning.
The Building is net leased to Net Lessee under the Net Lease. The Net Lessee has exercised its option to renew the Net Lease for a period of 25 years from October 1, 2003 through September 30, 2028. The Participants in Registrant have consented to the granting of options to the Net Lessee to extend the Net Lease for three additional 25-year renewal terms on or before the expiration of the then applicable renewal term. See Item 1 hereof.
A majority of the Building's tenants are engaged in the entertainment business, insurance business, publishing, and the practice of law, accounting and dentistry. In addition, there are several commercial tenants located on the street level of the Building, including a restaurant and several retail stores.
Item 3. Legal Proceedings.
The Property of Registrant is the subject of the following pending litigation:
Wien & Malkin and Peter L. Malkin, a member in Registrant, have been engaged in a proceeding with Sublessee's managing agent, Helmsley-Spear, Inc. commenced in 1997, concerning the management, leasing, and supervision of the property that is subject to the net sublease to the operating sublessee. In this connection, certain legal and professional fees and other expenses have been paid and incurred by Wien & Malkin and Mr. Malkin, and additional costs are expected to be incurred. Wien & Malkin and Mr. Malkin have represented that such costs will be recovered only to the extent that (a) competent tribunal authorizes payment or (b) an investor voluntarily agrees that his or her proportionate share be paid. Accordingly, Registrants' allocable share of such costs is as yet undetermined, and Registrant has not provided for the expense and related liability with respect to such costs in these consolidated financial statements.
The original action was commenced in June 1997 and was referred to arbitration. The March 30, 2001 decision of the Arbitrators, which was confirmed by the court, (i) reaffirmed the right of the investors in the sublessee to vote to terminate Helmsley-Spear, Inc. without cause, (ii) dismissed Helmsley-Spear, Inc.'s claims against Wien & Malkin LLP and Peter L. Malkin, and (iii) rejected the termination of Helmsley-Spear, Inc. for cause. The parts of the decision under appeal were initially affirmed by the Appellate Division, and the New York Court of Appeals declined to review such ruling. On October 6, 2003, the United States Supreme Court granted Wien & Malkin's petition, vacated the judgment of the Appellate Division and remanded the case to the New York court for further consideration of the issues raised by Wien & Malkin's appeal.
On October 14, 2004, the Appellate Division issued a unanimous decision reversing the Arbitrators. The Appellate Division decided (i) that there was a covert assignment without Sublessee's knowledge or consent and (ii) that the corporation controlled by Irving Schneider and now named "Helmsley-Spear," which has represented itself to be Sublessee's managing agent since September 1997, in fact never received a valid assignment to become Sublessee's managing agent. Sublessee's previously authorized managing agent, the original corporation named "Helmsley-Spear," was owned by Harry B. Helmsley and is no longer active. On May 10, 2005, Helmsley-Spear was granted leave to appeal the Appellate Division's decision and on February 21, 2006 the Court of Appeals reversed the decision of the Appellate Division and reinstated the decision of the Arbitrators, including items (i), (ii) and (iii) in the preceding paragraph. Wien & Malkin and Peter Malkin are reviewing possible app eal of this ruling.
In January 1998, Irving Schneider, who is one of the controlling principals of Helmsley-Spear and has no record or beneficial interest in the Sublessee, brought litigation
against Sublessee's supervisor, Wien & Malkin, and member, Peter L. Malkin, claiming misconduct and seeking damages and disqualification from performing services for the Sublessee. In March 2002, the court dismissed Mr. Schneider's claims. Although Mr. Schneider thereafter appealed this dismissal, the claim has now been withdrawn and is no longer pending.
At the Net Lessee's May 20, 2002 special meeting, a vote of the investors was conducted on proposals for the removal without cause of Helmsley-Spear as managing and leasing agent and its replacement by a designated independent firm, including payment by the Net Lessee of the expenses for the preparation of the solicitation statement, the solicitation of votes, and the implementation of the new program. On May 21, 2002, the proponents of the proposals, Peter L. Malkin and Wien & Malkin, filed a court application to determine and confirm all investors' votes for removal without cause and replacement and to set the final date for Helmsley-Spear's termination. Helmsley-Spear filed objections, and on September 10, 2002 the court confirmed such votes and ruled that Helmsley-Spear has been discharged. Helmsley-Spear's subsequent appeals since 2002 have been denied, and the proponents believe the time has expired for further Helmsley-Spear appeal, so that the court's confirmation of the May 20, 2002 vote to replace Helmsley-Spear may now be considered final. Helmsley-Spear has indicated it believes it has further appeal rights but has not to date filed any further appeal. Since November 20, 2002, Helmsley-Spear is not the managing and leasing agent and has been replaced by Cushman & Wakefield, Inc.
In accord with the Net Lessee's approval, the expenses for the preparation of the solicitation statement, the solicitation of votes, and the implementation of the new program are being paid by the Net Lessee. Such payments have totaled $ 290,179 from inception through December 31, 2004 (including fees of $75,000 plus disbursements of $11,077 to Wien & Malkin LLP).
Item 4. Submission of Matters to a Vote of Participants.
In March 2006, Participants in Registrant and the Lessee were requested to approve a further increase in borrowing for the Building Improvement Program to a maximum debt of up to $63,900,000 plus refinancing costs under substantially the same conditions as had previously been approved. See Item 1.
PART II
Item 5. Market for Registrant's Common Equity
and Related Security Holder Matters.
Registrant was a joint venture pursuant to an agreement entered into among various individuals dated May 1, 1954. As of November 30, 2001, Registrant is a limited liability company.
Registrant has not issued any common stock. The securities registered by it under the Securities Exchange Act of 1934, as amended, consist of participations in the member interests of the Agents in Registrant (each, individually, a "Participation" and, collectively, "Participations") and are not shares of common stock or their equivalent. The Participations represent each Participant's fractional share in the Agents' undivided interest in Registrant and are divided approximately equally among the members. Each unit of the Participations was originally offered at a purchase price of $5,000; fractional units were also offered at proportionate purchase prices. Registrant has not repurchased Participations in the past and it is not likely to change its policy in the future.
- The Participations are neither traded on an established securities market nor are readily tradable on a secondary market or the substantial equivalent thereof. Based on Registrant's transfer records, Participations are sold by the holders thereof from time to time in privately negotiated transactions and, in many instances, Registrant is not aware of the prices at which such transactions occur. Registrant was advised of 36 transfers of Participations during 2005. In two instances, the indicated purchase price was equal to 4.16 times the face amount of the Participation transferred, i.e., $10,400 for a $2,500 Participation. In all other cases, no consideration was indicated.
- Total expenses increased for the year ended December 31, 2005 as compared with the year ended December 31, 2004. The increase was the net result of an increase in mortgage interest expense, supervisory services, amortization expense, depreciation expense and miscellaneous expense and a decrease in professional fees. See Notes 3 and 5 of the Notes. Total expenses increased for the year ended December 31, 2004 as compared with the year ended December 31, 2003. The increase was the net result of an increase in mortgage interest expense, depreciation expense and professional fees and a decrease in the additional payment for supervisory services payable with respect to a decreased amount of Secondary Overage Rent received by Registrant in 2004.
(b) As of December 31, 2005, there were 607 holders of Participations of record.
(c) Registrant does not pay dividends. During the years ended December 31, 2005 and 2004, Registrant made regular monthly distributions of $83.33 for each $5,000 Participation ($1,000 per annum for each $5,000 Participation). On November 30, 2005 and November 30, 2004, Registrant made additional distributions for each $5,000 Participation of $2,229 and $1,697, respectively. Such distributions represented the balance of Secondary Overage Rent paid by Net Lessee in accordance with the terms of the Net Lease after deducting the Additional Payment and certain fees to Supervisor. There are no restrictions on Registrant's present or future ability to make distributions; however, the amount of such distributions depends on the ability of Net Lessee to make payments of Basic Rent, Primary Overage Rent and Secondary Overage Rent to Registrant in accordance with the terms of the Net Lease. (See Item 1 hereof). Registrant expects to make distributions so long as it receives the payments provided for under the Net Lease. See Item 7 hereof.
Item 6.
SELECTED FINANCIAL DATA
(Unaudited)
The following table presents selected financial data for each of the last five years ended December 31, 2005. This information is unaudited and has been prepared on the same basis as the audited consolidated financial statements included in this Annual Report on Form 10-K. This data should be read together with the consolidated financial statements and the notes thereto included in this Annual Report on Form 10-K.
Year ended December 31,
2005 2004 2003 2002 2001
Basic rent income | $ 1,266,162 | $ 828,250 | $ 788,022 | $ 629,656 | $ 553,770 | |
Primary overage rent income | 752,000 | 752,000 | 752,000 | 752,000 | 752,000 | |
Secondary overage rent income | 1,729,364 | 1,353,749 | 2,330,161 | 1,152,633 | 2,732,389 | |
Total revenues | $ 3,747,526 | $2,933,999 | $3,870,183 | $2,534,289 | $4,038,159 | |
Net income | $ 1,633,312 | $1,464,767 | $2,501,788 | $ 1,496,439 | $3,058,314 | |
Earnings per $5,000 participation unit, based on 720 participation units outstanding during each year |
$ 2,268 |
$ 2,034 |
$ 3,475 |
$ 2,078 |
$ 4,248 | |
Total assets | $31,189,475 | $22,324,243 | $16,698,804 | $12,183,062 | $8,405,356 | |
Long-term obligations | $30,500,000 | $18,500,000 | $15,500,000 | $12,000,000 | $7,000,000 | |
Distributions per $5,000 participation unit, Based on 720 participation units outstanding During each year: | ||||||
Income | $2,268 | $2,034 | $ 3,475 | $2,078 | $ 4,248 | |
Return of capital | 961 | 663 | 441 | 506 | 167 | |
Total distributions | $3,229 | $2,697 | $ 3,916 | $2,584 | $ 4,415 |
Item 7.
QUARTERLY RESULTS OF OPERATIONS
(Unaudited)
The following table presents the Company's operating results for each of the eight fiscal quarters in the period ended December 31, 2005. The information for each of these quarters is unaudited and has been prepared on the same basis as the audited financial statements included in this Annual Report on From 10-K. In the opinion of management, all necessary adjustments, which consist only of normal and recurring accruals, have been included to present fairly the unaudited quarterly results. This data should be read together with the financial statements and the notes thereto included in this Annual Report on Form 10-K.
Three Months Ended
March 31, | June 30, | September 30, | December 31, | |
2005 | 2005 | 2005 | 2005 | |
Statement of Income Data: | ||||
Basic rent income | $251,380 | $283,652 | $339,710 | $391,420 |
Advance of primary overage rent income | 188,000 | 188,000 | 188,000 | 188,000 |
Secondary overage rent income | - | - | 1,729,364 | - |
Dividend and interest income | 6,476 | 17,071 | 27,716 | 48,745 |
Total revenues | 445,856 | 488,723 | 2,284,790 | 628,165 |
Interest on mortgage | 241,158 | 276,549 | 338,151 | 379,200 |
Supervisory services | 15,000 | 15,000 | 193,308 | 15,000 |
Professional fees and miscellaneous | 595 | 3,750 | 6,820 | - |
Depreciation of building improvements | 100,312 | 107,832 | 114,827 | 122,016 |
Amortization of leasing commissions | 15,054 | 58,177 | 23,184 | 24,526 |
Amortization of mortgage refinancing costs | 40,809 | 40,809 | 65,661 | 16,484 |
Total expenses | 412,928 | 502,117 | 741,951 | 557,226 |
Net income (loss) | $32,928 | $(13,394) | $1,542,839 | $ 70,939 |
Earnings (loss) per $5,000 participation unit, based on 720 participation units outstanding during each period |
$ 46 |
$ (19) |
$ 2,143 |
$ 98 |
Item 7.
QUARTERLY RESULTS OF OPERATIONS
(Unaudited)
Three Months Ended
March 31, | June 30, | September 30, | December 31, | |
2004 | 2004 | 2004 | 2004 | |
Statement of Income Data: | ||||
Basic rent income | $207,236 | $205,479 | $206,216 | $209,319 |
Advance of primary overage rent income | 188,000 | 188,000 | 188,000 | 188,000 |
Secondary overage rent income | - | - | 1,353,749 | - |
Dividend and interest income | 7,002 | 6,790 | 2,903 | 2,952 |
Total revenues | 402,238 | 400,269 | 1,750,868 | 400,271 |
Interest on mortgage | 200,236 | 198,479 | 199,216 | 204,754 |
Supervisory services | 15,000 | 15,000 | 150,729 | 15,000 |
Professional fees and miscellaneous | 500 | - | 5,250 | 52,103 |
Depreciation of building improvements | 71,801 | 73,027 | 74,676 | 86,552 |
Amortization of leasing commissions | - | - | - | 23,807 |
Amortization of mortgage refinancing costs | 25,687 | 25,687 | 25,687 | 25,688 |
Total expenses | 313,224 | 312,193 | 455,558 | 407,904 |
Net income (loss) | $89,014 | $88,076 | $1,295,310 | $(7,633) |
Earnings (loss) per $5,000 participation unit, based on 720 participation units outstanding during each period |
$124 |
$122 |
$1,799 |
$(11) |
Item 7. Management's Discussion and Analysis of Financial Condition and Results of Operation.
Forward Looking Statements
Readers of this discussion are advised that the discussion should be read in conjunction with the financial statements of Registrant (including related notes thereto) appearing elsewhere in this Form 10-K. Certain statements in this discussion may constitute "forward-looking statements" within the meaning of the Private Securities Litigation Reform Act of 1995. Forward-looking statements reflect Registrant's current expectations regarding future results of operations, economic performance, financial condition and achievements of Registrant, and do not relate strictly to historical or current facts. Registrant has tried, wherever possible, to identify these forward-looking statements by using words such as "believe", "expect", "anticipate", "intend", "plan", "estimate" or words of similar meaning.
Although Registrant believes that the expectations reflected in such forward-looking statements are based on reasonable assumptions, such statements are subject to risks and uncertainties, which may cause the actual results to differ materially from those projected. Such factors include, but are not limited to, the following: general economic and business conditions, which will, among other things, affect demand for rental space, the availability of prospective tenants, lease rents and the availability of financing; adverse changes in Registrant's real estate market, including, among other things, competition with other real estate owners, risks of real estate development and acquisitions; governmental actions and initiatives; and environmental/safety requirements.
SIGNIFICANT ACCOUNTING POLICIES AND ESTIMATES
The Securities and Exchange Commission ("SEC") issued disclosure guidance for "Critical Accounting Policies". The SEC defines Critical Accounting guidance for Critical Accounting Policies as those that require the application of Management's most difficult, subjective, or complex judgments, often because of the need to make estimates about the effect of matters that are inherently uncertain and may change in subsequent periods.
Our discussion and analysis of our financial condition and results of operations are based upon our financial statements, the preparation of which takes into account estimates based on judgments and assumptions that affect certain amounts and disclosures. Accordingly, actual results could differ from these estimates. The accounting policies and estimates used and outlined in Note 2 to our financial statements, which are presented elsewhere in this annual report, have been applied consistently as at December 31, 2005 and 2004, and for the years ended December 31, 2005, 2004 and 2003. We believe that the following accounting policies or estimates require the application of Management's most difficult, subjective, or complex judgments:
Valuation of Long-Lived Assets: Registrant periodically assesses the carrying value of long-lived assets whenever events or changes in circumstances indicate that their carrying amount may not be recoverable. When Registrant determines that the carrying value of long-lived assets may be impaired, the measurement of any impairment is based on a projected discounted cash flows method determined by Registrant's management. While we believe our discounted cash flow methods are reasonable, different assumptions regarding such cash flows may significantly affect the measurement of impairment.
Revenue Recognition: Basic rental income, as defined in a long-term lease, is equal to the current mortgage requirements for interest and amortization plus a fixed amount. Associates records basic rental income as earned on a monthly basis. Primary additional rent represents the lesser of a base amount or the net profits of the Net Lessee as defined and is recorded ratably over the twelve month period. Secondary additional rent is based on the net profits of the Net Lessee and is recorded by Associates when such amounts become determinable.
Financial Condition and Results of Operations
Registrant was organized solely for the purpose of owning the Property described in Item 2 hereof subject to a net operating lease of the Property held by Net Lessee. Registrant is required to pay, from Basic Rent, the charges on the Mortgage Loan and amounts for supervisory services, and then to distribute the balance of such Basic Rent to holders of Participations. Pursuant to the Net Lease, Net Lessee has assumed responsibility for the condition, operation, repair, maintenance and management of the Property. Accordingly, Registrant need not maintain substantial reserves or otherwise maintain liquid assets to defray any operating expenses of the Property.
Registrant's results of operations are affected primarily by the amount of rent payable to it under the Net Lease. The amounts of Primary Overage Rent and Secondary Overage Rent are affected by the New York City economy and its real estate market. It is difficult to forecast the New York City economy and real estate market.
The following summarizes the material factors for the three most recent years affecting Registrant's results of operations for such periods:
(a) Total income increased for the year ended December 31, 2005 as compared with the year ended December 31, 2004. The increase was the net result of an increase in Secondary Overage Rent received by Registrant in 2005, an increase in Basic rent and dividend income and a decrease in interest income. Total income decreased for the year ended December 31, 2004 as compared with the year ended December 31, 2003. The decrease was the net result of a decrease in Secondary Overage Rent received by Registrant in 2004, a decrease in interest income and an increase in Basic rent. See Note 4 of the Notes.
Liquidity and Capital Resources
Registrant's liquidity increased December 31, 2005, as compared to December 31, 2004 as a result of additional draws on the Prudential mortgage. Costs relating to the improvement program are funded from proceeds of the first mortgage of $30,500,000, all of which has been drawn down at December 31, 2005. Registrant may from time to time set aside cash for the payment of contingent liabilities.
Amortization payments are due under the First Mortgage commencing September 5, 2007, calculated on a twenty-five year amortization schedule. The First mortgage matures on December 5, 2014 and Registrant does not maintain any reserve to cover the payment of such Mortgage indebtedness at maturity. Therefore, repayment of the First Mortgage will depend on Registrant's ability to arrange a refinancing. Assuming that the Property continues to generate an annual net profit in future years comparable to that in past years, and assuming further that current real estate trends continue in the geographic area in which the Property is located, Registrant anticipates that the value of the Property would be in excess of the amount of the First Mortgage balance at maturity.
Registrant anticipates that funds for working capital for the Property will be provided by rental payments received from Net Lessee and, to the extent necessary, from additional capital investment by the members in Net Lessee and/or external financing.
Inflation
Inflationary trends in the economy do not directly affect Registrant's operations since Registrant does not actively engage in the operation of the Property. Inflation may impact the operations of Net Lessee. Net Lessee is required to pay Basic Rent, regardless of the results of its operations. Inflation and other operating factors affect the amount of Primary and Secondary Overage Rent payable by Net Lessee, which is based on Net Lessee's net operating profit.
Item 8. Financial Statements and Supplementary Data.
The financial statements, together with the accompanying report by J.H. Cohn LLP immediately following, are being filed in response to this item.
Item 9. Disagreements on Accounting and Financial Disclosure.
Not applicable.
Item 9a. Controls and Procedures.
- Evaluation of disclosure controls and procedures. The person(s) who functions in the capacity of Registrant's chief executive officer and Registrant's chief financial officer, 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, 2005 the end of the period covered by this report have concluded that Registrant's disclosure controls and procedures were adequate and designed to ensure that material information relating to Registrant would be made known to them by others within those entities on a timely basis.
- 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.
PART III
Item 10. Directors and Executive Officers of the Registrant.
Registrant has no directors or officers or any other centralization of management. There is no specific term of office for any Agent in Registrant. The table below sets forth as to each individual who served as an Agent in Registrant as of December 31, 2005 the following: name, age, nature of any family relationship with any other Agent, business experience during the past five years and principal occupation and employment during such period, including the name and principal business of any corporation or any organization in which such occupation and employment was carried on and the date such individual became an Agent in Registrant:
Name |
Age | Nature of FamilyRelationship |
BusinessExperience | Principal Occupationand Employment | Date Individual became anagent |
Peter L. Malkin | 72 | Father of Anthony E. Malkin | Real Estate Supervision | Senior Partner and Chairman Wien & Malkin LLP | 1982 |
Anthony E. Malkin | 44 | Son of Peter L. Malkin | Real Estate Supervision and Management | President, Supervisory Services of Wien & Malkin LLP and President of W&M Properties, L.L.C. | 1998 |
As stated in Item 1 hereof, all of the Agents are members of Supervisor. See Items 11, 12 and 13 hereof for a description of the services rendered by, and the compensation paid to, Supervisor and for a discussion of certain relationships which may pose actual or potential conflicts of interest among Registrant, Net Lessee and certain of their respective affiliates.
The names of entities which have a class of securities registered pursuant to Section 12 of the Securities Exchange Act of 1934 or are subject to the requirements of Section 15(d) of that Act, and in which the Agents are also either a director, member or general partner are as follows:
Peter L. Malkin is a member in 60 East 42nd St. Associates L.L.C. and Empire State Building Associates L.L.C..
Anthony E. Malkin is a member in 60 East 42nd St. Associates L.L.C. and Empire State Building Associates L.L.C.
Item 11. Executive Compensation.
As stated in Item 10 hereof, Registrant has no directors or officers or any other centralization of management.
No remuneration was paid during the fiscal year ended December 31, 2005 by Registrant to any of the Agents as such. Registrant pays Supervisor for supervisory services and disbursements: (i) $40,000 per annum (the "Basic Payment"); and (ii) an additional payment of 10% of all distributions to Participants in any year in excess of the amount representing a return to them at the rate of 15% per annum on their remaining cash investment (the "Additional Payment"). For tax purposes, such 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.
At December 31, 2005, the Participants' remaining cash investment was $3,600,000. Of the Basic Payment, $28,000 is payable from Basic Rent and $12,000 is payable from Primary Overage Rent received by Registrant. See Item 1 hereof. Pursuant to such fee arrangements, Registrant paid Supervisor $238,308 during the fiscal year ended December 31, 2005. See Item 1. The supervisory services provided to Registrant by Supervisor include, but are not limited to, providing or coordinating counsel services to Registrant, maintaining all of its entity and Participant records, performing physical inspections of the Building, reviewing insurance coverage, conducting annual supervisory review meetings, receipt of monthly rent from Net Lessee, payment of monthly and additional distributions to the Participants, payment of all other disbursements, confirmation of the payment of real estate taxes, and active review of financial statements submitted to Registrant by Net Lessee and financial statements audi ted by and tax information prepared by Registrant's independent certified public accountant, and distribution of such materials to the Participants. Supervisor also prepares quarterly, annual and other periodic filings with the Securities and Exchange Commission and applicable state authorities.
Registrant also pays Supervisor for other services at hourly rates.
Item 12. Security Ownership of Certain Beneficial Owners and Management.
(a) Registrant has no voting securities. See Item 5 hereof. At December 31, 2005, no person owned of record or was known by Registrant to own beneficially more than 5% of the outstanding Participations in the undivided Agent interests in Registrant.
(b) At December 31, 2005, the Agents (see Item 10 hereof) did not beneficially own, directly or indirectly, any Participations in Registrant.
At such date, certain of the Agents held additional Participations as follows:
Anthony E. Malkin owned of record as co-trustee an aggregate of $8,333 of Participations. Mr. Anthony E. Malkin disclaims any beneficial ownership of such Participations.
Entities for the benefit of members of Peter L. Malkin's family owned of record and beneficially $88,333 of Participations. Mr. Malkin disclaims any beneficial ownership of such Participations, except that trusts related to such entities are required to complete scheduled payments to Mr. Malkin.
Peter L. Malkin owned of record as co-trustee an aggregate of $17,500 of Participations. Mr. Peter L. Malkin disclaims any beneficial ownership of such Participations.
(c) Not applicable.
Item 13. Certain Relationships and Related Transactions.
(a) As stated in Item 1 hereof, each member acts as agent for his respective group of Participants. As a consequence of both Agents holding senior positions at Supervisor (which supervises Registrant and Net Lessee), certain actual or potential conflicts of interest may arise with respect to the management and administration of the business of Registrant. However, under the respective participating agreements pursuant to which the members act as agents for the Participants, certain transactions require the prior consent from Participants owning a specified interest under the Agreements in order for the agents to act on their behalf. Such transactions include modifications and extensions of the Net Lease or the Mortgage Loan, or a sale or other disposition of the Property or substantially all of Registrant's other assets.
Reference is made to Items 1 and 2 hereof for a description of the terms of the Net Lease between Registrant and Net Lessee. The respective interest, if any, of each Agent in Registrant and in Net Lessee arises solely from ownership of Participations in Registrant and member interests or participations in Net Lessee. The Agents receive no extra or special benefit not shared on a pro rata basis with all other Participants in Registrant or members and participants in Net Lessee. However, each of the Agents hold senior positions at Supervisor and, by reason of his position at Supervisor, may receive income attributable to supervisory or other remuneration paid to Supervisor for services rendered to Registrant and Net Lessee. See Item 11 hereof for a description of the remuneration arrangements between Registrant and Supervisor relating to supervisory services provided by Supervisor.
Reference is also made to Items 1 and 10 hereof for a description of the relationship between Registrant and Supervisor. The respective interest of the members in any remuneration paid or given by Registrant to Supervisor arises and arises solely from such member's interest in Supervisor. See Item 11 hereof for a description of the remuneration arrangements between Registrant and Supervisor relating to supervisory services provided by Supervisor.
(b) Reference is made to Paragraph (a) above.
(c) Not applicable.
- Not applicable.
Item 14. PRINCIPAL ACCOUNTANT FEES AND SERVICES
The fees paid by Registrant and Wien & Malkin LLP, the Agent of Registrant, to J.H. Cohn LLP for professional services for the years ended December 31, 2005 and December 31, 2004 were as follows:
Fee Category | 2005 | 2004 |
Audit Fees | $33,500 | $22,850 |
Audit-Related Fees | 2,500 | 5,000 |
Tax Fees | 6,000 | 4,000 |
All other Fees | - | 450 |
$42,000 | $32,300 |
Audit Fees. Consist of fees billed for professional services rendered for the audit of Registrant's financial statements and review of the interim financial statements included in quarterly reports.
Audit-Related Fees. Consists of fees billed for assurance and related services that are reasonably related to the performance of the audit or review of Registrant's financial statements and are not reported under "Audit Fees." In 2005 and 2004, these services include accounting consultation, review of Sarbanes-Oxley requirements as they pertain to Registrant and other audit-related services.
Tax Fees. Consists of fees billed for professional services for tax compliance, tax advice and preparation of tax returns.
All Other Fees. In 2004, these services include filing of Federal tax returns electronically.
POLICY ON AUDIT COMMITTEE PRE-APPROVAL OF AUDIT SERVICES
AND PERMISSIBLE NON-AUDIT SERVICES OF INDEPENDENT AUDITORS
Registrant has no audit committee as such. Registrant's policy is to pre-approve all audit and permissible non-audit services performed by the independent public accountants. These services may include audit services, audit related services, tax services and other services. For audit services, the independent auditor provides an engagement letter in advance of the services provided, outlining the scope of the audit and related audit fees. If agreed to by Registrant, this engagement letter is formally accepted by Registrant.
For all services, Registrant's senior management submits from time to time to the Agents of Registrant for approval services that it recommends the Registrant engage the independent auditor to provide for the fiscal year. In addition, the Agents of Registrant pre-approve specific non-audit services that the independent auditor can provide from time-to-time during the year. All fee proposals for those non-audit services must be approved in advance in writing by the member of the Registrant's supervisor acting in the capacity of Chief Financial Officer. The Agents of Registrant will be informed routinely as to the non-audit services actually provided by the independent auditor pursuant to this pre-approval process.
PART IV
Item 15. Exhibits, Financial Statement Schedules and
Reports on Form 10-K.
(a)(1) Financial Statements:
Report of Independent Registered Public Accounting Firm of J.H. Cohn LLP, dated March 24, 2006.
Balance Sheets at December 31, 2005 and at December 31, 2004 (Exhibit A).
Statements of Income for the fiscal years ended December 31, 2005, 2004 and 2003 (Exhibit B).
Statement of Members' Deficiency for the fiscal year ended December 31, 2005 (Exhibit C-1).
Statement of Members' Deficiency for the fiscal year ended December 31, 2004 (Exhibit C-2).
Statement of Members' Deficiency for the fiscal year ended December 31, 2003 (Exhibit C-3).
Statements of Cash Flows for the fiscal years ended December 31, 2005, 2004 and 2003 (Exhibit D).
Notes to Financial Statements for the fiscal years ended December 31, 2005, 2004 and 2003.
(2) Financial Statement Schedules:
List of Omitted Schedules.
Real Estate and Accumulated Depreciation - December 31, 2005 (Schedule III).
(3) Exhibits: See Exhibit Index.
(b) No report on Form 8-K was filed by Registrant during the last quarter of the period covered by this report.
SIGNATURE
Pursuant to the requirements of Section 13 or 15(d) of the Securities Exchange Act of 1934, the Registrant has duly caused this report to be signed on its behalf by the undersigned, thereunto duly authorized.
The individual signing this report on behalf of Registrant is Attorney-in-Fact for Registrant and each of the Agents in Registrant, pursuant to a Power of Attorney, dated October 14, 2003 (collectively, the "Power").
250 WEST 57TH ST. ASSOCIATES L.L.C.
(Registrant)
By /s/ Mark Labell
Mark Labell, Attorney-in-Fact*
Date: April 24, 2006
Pursuant to the requirements of the Securities Exchange Act of 1934, this report has been signed by the undersigned as Attorney-in-Fact for each of the Agents in Registrant, pursuant to the Power, on behalf of the Registrant and as an Agent in Registrant on the date indicated.
By /s/ Mark Labell
Mark Labell, Attorney-in-Fact*
Date: April 24, 2006
________________________
* Mr. Labell supervises accounting functions for Registrant.
Exhibit 31.1
CERTIFICATIONS
I, Mark Labell, certify that:
- I have reviewed this Annual Report on Form 10-K of 250 West 57th St. Associates L.L.C.;
- 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;
- 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;
- 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)) for the registrant and we have:
- 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;
- 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
- 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
- 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):
- 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
- 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: April 24, 2006
By /s/ Mark Labell
Name: Mark Labell
Title: Member of Wien & Malkin LLP, Supervisor of 250 West 57th St. Associates L.L.C.
Exhibit 31.2
CERTIFICATIONS
I, Mark Labell, certify that:.
- I have reviewed this Annual Report on Form 10-K of 250 West 57th St. Associates L.L.C.;
- 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;
- 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;
- 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) for the registrant and we have:
- 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;
- 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
- 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
- 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):
- 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
- 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: April 24, 2006
By /s/ Mark Labell
Name: Mark Labell
Title: Senior Member of Financial/Accounting Staff of Wien & Malkin LLP, Supervisor of 250 West 57th St. Associates L.L.C.
EXHIBIT INDEX
Number | Document | Page* |
3 (a) | Registrant's Joint Venture Agreement, dated May 25, 1953, which was filed as Exhibit No. 3(a) to Registrant's Registration Statement on Form S-1 (the "Registration Statement"), is incorporated by reference as an exhibit hereto. | |
3 (b) | Amended Business Certificate of Registrant filed with the Clerk of New York County on July 24, 1998 reflecting a change in the Partners of Registrant which was filed as Exhibit 3(b) to Registrant's Amended Quarterly Report on 10-Q for the period ended September 30, 1998 and is incorporated by reference as an exhibit hereto. | |
3 (c) | Registrant's Consent and Operating Agreement dated as of November 30, 2001 | |
3 (d) | Registrant's Consent and Operating Agreement dated as of November 30, 2001 | |
3 (e) | Certificate of Conversion of Registrant to a limited liability company dated November 30, 2001 filed with the New York Secretary of State on December 5, 2001. | |
4 | Registrant's form of Participation Agreement, which was filed as Exhibit No. 4(a) to the Registration Statement, is incorporated by reference as an exhibit hereto. | |
10 (a) | Net Lease between Registrant and Fisk Building Associates LLC dated September 30, 1957, which was filed as Exhibit No. 2(d) to the Registration Statement, is incorporated by reference as an exhibit hereto. | |
10 (b) | Modification of Net Lease dated November 10, 1961, was filed by letter dated November 21, 1961 as Exhibit B to Registrant's Statement of Registration on Form 8-K for the month of October, 1961, is incorporated by reference as an exhibit hereto. |
EXHIBIT INDEX
(cont.)
Number | Document | Page* |
10 (c) | Second Modification Agreement of Net Lease dated June 10, 1965 between Registrant and Fisk Building Associates LLC which was filed by letter dated December 29, 1981 as Exhibit 10(c to Registrant's Annual Report on Form 10-K for the year ended September 30, 1981 is incorporated by reference as an exhibit hereto. | |
10 (d) | Fourth Lease Modification Agreement dated November 12, 1985 between Registrant and Fisk Building Associates LLC, which was filed by letter dated January 13, 1986 as Exhibit 10(g) to Registrant's Annual Report on Form 10-K for the year ended, September 30, 1985 is incorporated herein by reference as an exhibit hereto. | |
10 (e) | Modification of Mortgage dated as of March 1, 1995 between Registrant and the Apple Bank for Savings, which was filed on March 30, 1995 as Exhibit 10(e) to Registrant's Annual Report on Form 10-K, is incorporated herein by reference as an exhibit hereto. | |
13 (a) | Letter to Participants dated April 30, 2004 and supplementary financial reports for the fiscal year ended December 31, 2003. The foregoing material shall not be deemed "filed" with the Commission or otherwise subject to the liabilities of Section 18 of the Securities Exchange Act of 1934. | |
13 (b) | Letter to Participants dated November 30, 2005 and supplementary financial reports for the lease year ended September 30, 2005. The foregoing material shall not be deemed "filed" with the Commission or otherwise subject to the liabilities of Section 18 of the Securities Exchange Act of 1934. |
EXHIBIT INDEX
(cont.)
Number | Document | Page* |
24 | Powers of Attorney dated October 14, 2003 between Partners in Registrant and Mark Labell which is filed as Exhibit 24 to Registrant's 10-Q for the quarter ended September 30, 2003 and is incorporated by reference as an exhibit hereto. | |
31.1 | Certification of Mark Labell, Pursuant to Section 302 of the Sarbanes-Oxley Act of 2002 | |
31.2 | Certification of Mark Labell, Pursuant to Section 302 of the Sarbanes-Oxley Act of 2002 | |
32.1 | Certification of Mark Labell, Pursuant to 18 U.S.C. Section 1350, as adopted pursuant to Section 906 of the Sarbanes-Oxley Act of 2002 | |
32.2 | Certification of Mark Labell, Pursuant to 18 U.S.C. Section 1350, as adopted pursuant to Section 906 of the Sarbanes-Oxley Act of 2002 |
_______________________
*Page references are based on a sequential numbering system.
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 a member of Wien & Malkin LLP, the supervisor* of 250 West 57th St. Associates L.L.C.("Registrant") to certify that:
- the Annual Report on Form 10-K of Registrant for the period ended December 31, 2005 (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
- the information contained in the Report fairly presents, in all material respects, the financial condition and results of operations of Registrant.
Dated: April 24, 2006
By /s/ Mark Labell
Mark Labell
Wien & Malkin LLP, 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 Wien & Malkin LLP. Accordingly, this Chief Executive Officer certification is being signed by a member of Registrant's supervisor.
Exhibit 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 Wien & Malkin LLP, the supervisor* of 250 West 57th St. Associates L.L.C.("Registrant"), to certify that:
- the Annual Report on Form 10-K of Registrant for the period ended December 31, 2005 (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
- the information contained in the Report fairly presents, in all material respects, the financial condition and results of operations of Registrant.
Dated: April 24, 2006
By /s/ Mark Labell
Mark Labell
Wien & Malkin LLP, 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 Wien & Malkin LLP. Accordingly, this Chief Financial Officer certification is being signed by a senior member of the financial/accounting staff of Registrant's supervisor.