AGREEMENT

Exhibit (E)(12)

AGREEMENT dated as of December 26, 2012 among Xxxxxx Xxxxxxxx LLC, as supervisor of the Subject Entities defined below (the “Supervisor”), with its address at One Grand Central Place, 00 Xxxx 00^xx Xxxxxx, Xxx Xxxx, XX 00000, and MPF Xxxxxxxxx Xxxx 0, XX, XXX Income Fund 26, LLC, MPF Income Fund 18, LLC, MPF Flagship Fund 14, LLC, Mackenzie Flagship Fund 15, LLC, MPF Dewaay Premier Fund 2, LLC, MPF Dewaay Premier Fund 4, LLC, MPF Flagship Fund 13, LLC, MPF Flagship Fund 10, LLC, MPF Blue Ridge Fund I, LLC, which are affiliated with MacKenzie Capital Management, LP (collectively, the “Offerors”), with their address at c/o MacKenzie Capital Management, LP, 0000 Xxxxxx Xxxxxx, Xxxxxx, Xxxxxxxxxx 00000.

WHEREAS, the Offerors have commenced three tender offers (the “Offers”) to acquire units of participation interests in Empire State Building Associates L.L.C., 00 Xxxx 00^xx Xx. Associates L.L.C., and 000 Xxxx 00^xx Xx. Associates L.L.C. (collectively, the “Subject Entities”);

WHEREAS, in the Schedules TO with respect to the Offers, the Offerors stated that they expect to vote in favor of the consolidation proposal and the voluntary reimbursement to Supervisor of certain expenses, but did not state their position as to the third-party portfolio proposal;

WHEREAS, the Supervisor is the supervisor of the Subject Entities and has discussed the terms of the Offers with the Offerors to clarify their intent;

WHEREAS, the Supervisor has delivered to the Offerors a copy of Amendment No. 6 to the Registration Statement on Form S-4 dated December 21, 2012 (the “Form S-4”) ; and

WHEREAS, the Supervisor has advised the Offerors (a) that it has requested the agreements contained herein for the benefit of the participants in the Subject Entities and (b) that it will recommend against the Offers while acknowledging that participants who have a need for immediate and certain liquidity may want to consider the Offer.

NOW, THEREFORE, intending to be legally bound thereby, and knowing that the agreements contained herein will be relied on by the Subject Entities and other persons, the parties hereto agree as follow:

1. The Offerors agree that they will vote and deliver consents relating to any and all participation interests in the Subject LLCs which they acquire pursuant to the Offers, or otherwise can vote, in favor of the consolidation and third-party portfolio proposals set forth in the Form S-4, all on the basis that they agree not to revoke such consent at any time.

2. Each of the Subject LLCs agrees to direct its transfer agent to proceed with processing a transfer upon receipt of (a) a fully executed assignment on its

standard form (of which a copy is attached hereto for each Subject LLC) and (b) a consent to such proposals properly signed by the assignee in the form provided in the Form S-4 as then in effect, all on the basis that after receipt of such items (a) and (b), such transfer agent will (i) communicate with both the assignor and assignee regarding any additional documents required to finalize the transfer, (ii) accept any such additional document which is required from assignor if signed either by the assignor or by the assignor’s attorney-in-fact who is appropriately designated for such purpose under an executed power of attorney in proper form, and (iii) confirm to both the assignor and assignee when all documents have been delivered to satisfy such transfer agent’s requirements for the transfer to be effective.

3. If the Offerors fail to vote or consent in accordance with Section 1, the Offerors irrevocably appoint the Supervisor and its designees as their proxies, with full power of substitution, to vote and deliver consents in accordance with Section 1. Such proxy is coupled with an interest.

4. This Agreement constitutes the entire agreement among the parties and shall be binding upon and inure to the benefit of the parties hereto and their respective legal representatives successors and permitted assigns. This Agreement may not be amended or supplemented in any respect except by an agreement in writing signed by the parties hereto. This Agreement supersedes all prior written or oral agreements among the parties hereto.

5. No waiver shall be effective unless it is in writing and signed by an authorized representative of the waiving party. The failure in any one or more instances of a party to insist upon performance of any of the terms hereof, to exercise any right hereunder, or the waiver by said party of any breach hereof, shall not be construed as a subsequent waiver of any terms or right hereunder, but the same shall continue in full force and effect as if no such forbearance or waiver had occurred..

6. This Agreement may be executed in multiple counterparts, each of which shall be deemed to be an original, and all such counterparts shall constitute but one instrument.

7. The invalidity of any provision of this Agreement shall not affect the validity of any other provision of this Agreement or the remaining portion of the applicable provision.

8. Without limiting the remedies the Supervisor may have in the event of a breach of this Agreement by Offerors, the Supervisor shall have the right to an injunction, specific performance or other equitable remedies, all without the requirement of posting a bond.

9. This Agreement and all questions relating to its validity, interpretation, performance and enforcement shall be governed by and construed, interpreted and enforced in accordance with the laws of the State of New York without regard to

conflicts of laws or provisions thereof to the contrary. The parties agree that any action brought by any party against any other in connection with this Agreement or any transaction contemplated hereby shall be instituted properly in a New York court of competent jurisdiction with venue only in New York County. Each party hereby agrees to submit personally to the jurisdiction of a court of competent subject matter jurisdiction located in such state. In any action or proceeding to enforce rights under this Agreement, the prevailing party shall be entitled to recover costs and attorneys’ fees.

10. The parties hereto acknowledge and agree that each party has participated with its counsel in the preparation and review of this Agreement and that any rule of construction to the effect that ambiguities are to be resolved against the drafting party shall not be applied to the interpretation of this Agreement. No inference in favor of, or against, any party shall be drawn from the fact that one party has drafted any portion hereof.

IN WITNESS WHEREOF, the parties hereto have executed this Agreement as of the date first above written.


XXXXXX XXXXXXXX LLC

By:		/s/ Xxxxxx X. Xxxxxxx Xx.
		Authorized Signatory

MACKENZIE CAPITAL MANAGEMENT, LP
		As authorized agent for each of the Offerors named above

By:		/s/ Xxxx Xxxxxxxxx
		Authorized Signatory

A S S I G N M E N T

IN CONSIDERATION of the sum of (***), paid to (***), Assignor, residing at (***), by (***), Assignee, with an address at (***), receipt of which is hereby acknowledged, said Assignor hereby assigns, transfers, grants and releases unto said Assignee, an interest representing an original capital contribution of $(***), as a Participant, in and to the interest of the joint venture in the Master Leasehold on the Empire State Building located at 000 Xxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx, in and to EMPIRE STATE BUILDING ASSOCIATES L.L.C. (the “LLC”), a limited liability company supervised by Xxxxxx Xxxxxxxx LLC (f/k/a Wien & Malkin LLC), and its successors (the “Supervisor”), having its office at, One Grand Central Place, 60 East 42nd Street, New York, New York, and in and to that certain joint venture created by that certain Participating Agreement, dated as of January 1, 1962, among (***), and others as Participants, (the “Participating Agreement”).

Assignor warrants and represents that neither the aforesaid interest, nor any part thereof has been previously assigned, transferred, pledged or otherwise disposed of by Assignor, and that said interest is owned by Assignor free and clear of any lien or encumbrance.

Assignor hereby confirms, and Assignee hereby agrees, that no claim by any holder of the aforesaid interest has arisen or now exists against the aforesaid joint venture, LLC, Agent or Supervisor (or their predecessors, successors and affiliates) for breach of any agreement or duty at any time prior the date of this assignment.

Assignee hereby accepts this assignment and agrees to be bound by the Participating Agreement and any amendments thereto, by all established prior practices of the aforesaid joint venture, the LLC, Agent and Supervisor (and their predecessors, successors and affiliates), and by all consents and authorizations heretofore given by Participants thereunder, including without limitation the agreement of Assignor or Assignor’s predecessors for additional compensation payments to Supervisor as described in Xxxxx X. Xxxxxx’x letters to Participants dated September 13, 1991 and September 14, 2001, and/or in Xxxxx X. Xxxxxx’x and Xxxxxxx E, Xxxxxx’x letter to Participants dated June 9, 2008, and their respective accompanying statements.

NOT ASSIGNEE IS AN INDIVIDUAL OR IS OR BECOMES A NON-RESIDENT Of NEW YORK STATE, Assignee acknowledges that unreimbursed New York State estimated income tax which is payable by Assignor to the LLC, if any, may be withheld from any future distribution to Assignee in order that the LLC may recoup such payment in full.

Assignor and Assignee each represents and warrants to each other that (i) neither of them nor any person who owns any direct or indirect beneficial interest in either of them, is listed on the current list maintained and published by the United States Department of the Treasury, Office of Foreign Assets Control (commonly known as the OFAC List) or otherwise qualifies as a person with whom business by a United States citizen or resident is prohibited (a “specifically designated national and blocked person”) and (ii) neither of them nor any person who owns any direct or indirect beneficial interest in either of them or in whom either of them has an interest is in violation of any anti-money laundering or anti-terrorism statute, including, without limitation, the Uniting and Strengthening America by Providing Appropriate Tools Required to Intercept and Obstruct Terrorism Act of 2001, U.S. Public Law 107-56 (commonly known as the USA PATRIOT Act) and the related regulations issued thereunder, including temporary regulations, all as amended from time to time. The representations and covenants being made in this paragraph shall inure to the benefit of any person at any time preparing this or any other instrument of assignment and/or facilitating the transfer of the interest being transferred hereby.

Assignee agrees that it shall not further sell, assign, convey or otherwise dispose of the interest being assigned hereby or any interest therein to any specifically designated national and blocked person who may hereafter from time to time be so designated.

Assignor and Assignee hereby agree to indemnify and hold harmless the LLC and the Agent and Supervisor (and their predecessors, successors and affiliates) against any claim or liability, including reasonable attorneys’ fees, relating to or arising out of this assignment.

All terms of this assignment shall be enforceable by and for the benefit of each of Assignor, Assignee, and the aforesaid joint venture, LLC, Agent and Supervisor (and their predecessors, successors, and affiliates), it being understood that each of them is relying upon such terms in accepting and effecting the assignment hereunder. The transfer of the aforesaid interest shall be governed by the terms of this assignment, which shall be controlling and shall supercede any contrary terms of any other assignment agreement made at any time by the parties hereto.


Dated: (***),

Witness for Assignor:


				*(),**
				Assignor

Witness for Assignee:


				*(),**
				Assignee

A S S I G N M E N T

IN CONSIDERATION of the sum of (***), paid to (***), Assignor, residing at (***), by (***), Assignee, with an address at 00 Xxxx 00^xx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000, receipt of which is hereby acknowledged, said Assignor hereby assigns, transfers, grants and releases unto said Assignee, pursuant to the terms of a certain Participating Agreement, dated as of December 1, 1954, as modified on July 23, 1956 and October 1, 1958, among (***), as Agent and others as Participants, an interest which represents an original capital contribution of (***), as a Participant under said Agreement, in and to the joint venture created thereby, in and to the premises known as Xxx Xxxxx Xxxxxxx Xxxxx, 00 Xxxx 00xx Xxxxxx, and premises 000 Xxxxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx, and in and to 00 XXXX 00XX XX. ASSOCIATES L.L.C. (the “LLC”), a limited liability company supervised by Xxxxxx Xxxxxxxx LLC (f/k/a Wien & Malkin LLC), and its successors, having its office at One Grand Central Place, 00 Xxxx 00xx Xxxxxx, Xxx Xxxx, Xxx Xxxx.

Assignor warrants and represents that the interest assigned hereby has not been previously assigned, transferred, pledged or otherwise disposed of, and that said interest is owned by Assignor free and clear of any liens or encumbrances.

Assignor hereby confirms and Assignee hereby agrees that no claim by any holder of the aforesaid interest has arisen or now exists against the aforesaid joint venture, LLC, Agent, or supervisor (or their predecessors or affiliates) for breach of any agreement or duty at any time prior the date of this assignment.

Assignee hereby accepts this assignment and transfer, and agrees to be bound by the aforesaid joint venture agreement and any amendments thereto, by all established prior practices of the aforesaid joint venture, LLC, Agent, and supervisor (and their predecessors and affiliates), and by all consents heretofore given by Participants thereunder.

IF AND ONLY IF ASSIGNEE IS AN INDIVIDUAL AND IS OR BECOMES A NON-RESIDENT OF NEW YORK STATE: Assignee (i) agrees that the LLC will pay on behalf of Assignee New York State estimated income tax attributable to the aforesaid interest, as required by applicable law, and Assignee will reimburse the LLC on demand for any such payment and, (ii) authorizes Agent and the LLC to withhold from Assignee’s future distributions on the aforesaid interest any such unreimbursed estimated tax paid by the LLC on behalf of Assignee. WHETHER OR NOT ASSIGNEE IS AN INDIVIDUAL OR IS OR BECOMES A NON-RESIDENT Of NEW YORK STATE, Assignee (iii) acknowledges that any unreimbursed New York State estimated income tax which may be payable by Assignor to the LLC, will be withheld from a future distribution to Assignee in order that the LLC may recoup such payment in full.

Assignor and Assignee each represent and warrant to each other that (i) neither of them nor any person who owns any direct or indirect beneficial interest in either of them, is listed on the current list maintained and published by the United States Department of the Treasury, Office of Foreign Assets Control (commonly known as the OFAC List) or otherwise qualifies as a person with whom business by a United States citizen or resident is prohibited (a “specifically designated national and blocked person”) and (ii) neither of them nor any person who owns any direct or indirect beneficial interest in either of them or in who either of them has an interest is in violation of any anti-money laundering or anti-terrorism statute, including, without limitation, the Uniting and Strengthening America by Providing Appropriate Tools Required to Intercept and Obstruct Terrorism Act of 2001, U.S. Public Law 107-56 (commonly known as the USA PATRIOT Act), and the related regulations issued thereunder, including temporary regulations, all as amended from time to time. The representations and covenants being made in this paragraph shall inure to the benefit of any person who is now or shall in the future prepare this or any other instrument of assignment and/or facilitate the transfer of the membership interest being transferred hereby.

Assignee agrees that it shall not further sell, assign, convey or otherwise dispose of the membership interest being assigned hereby or any interest therein to any specifically designated national and blocked person who may hereafter from time to time be so designated.

Assignor and Assignee hereby agree to indemnify and hold harmless the LLC, its Agent and supervisor against any claim or liability, including reasonable attorneys’ fees, relating to or arising out of this Agreement and Assignment.

All terms of this assignment shall be enforceable by and for the benefit of each of Assignor, Assignee, and the aforesaid joint venture, LLC, Agent, and supervisor (and their predecessors, successors, and affiliates), it being understood that each of them is relying upon such terms in accepting and effecting the assignment hereunder. The transfer of the aforesaid interest shall be governed by the terms of this assignment, which shall be controlling and shall supercede any contrary terms of any other assignment agreement made at any time by the parties hereto.


Dated: *(),**

Witness for Assignor:


				*(),**
				Assignor

Witness for Assignee:


				*(),**
				Assignee
				Social Security #

A S S I G N M E N T

IN CONSIDERATION of the sum of (***), paid to (***), Assignor, residing at (***), by (***), Assignee, residing at (***), receipt of which is hereby acknowledged, said Assignor hereby assigns, transfers, grants and releases unto said Assignee, all of Assignor’s right, title and interest, representing an original capital contribution of (***), as a Participant, in and to the premises known as Xxxx Building, located at 1767-69 Broadway, 000 Xxxx 00xx Xxxxxx and 000-000 Xxxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx, and in and to 000 XXXX 00XX XX. ASSOCIATES L.L.C. (the “LLC”), a limited liability company supervised by Xxxxxx Xxxxxxxx LLC (f/k/a Wien & Malkin LLC), and its successors (the “Supervisor”), having its office at One Grand Central Place, 00 Xxxx 00xx Xxxxxx, Xxx Xxxx, Xxx Xxxx, together with all rights to overage rent, if any, for a period prior to the date of this assignment, and in an to that certain joint venture agreement, dated as of September 30, 1953, among (***), and others, as a Participants (the “Participating Agreement”).

Assignor warrants and represents that neither the aforesaid interest nor any part thereof, has been previously assigned, transferred, pledged or otherwise disposed of, and that said interest is owned by Assignor free and clear of any liens or encumbrances.

Assignor hereby confirms and Assignee hereby agrees that no claim by any holder of the aforesaid interest has arisen or now exists against the joint venture, the LLC, Agent, or Supervisor (and their predecessors, successors and affiliates) for breach of any agreement or duty at any time prior to the date of this assignment.

Assignee hereby accepts this assignment and agrees to be bound by the Participating Agreement and any amendments thereto, by all established prior practices of the joint venture, the LLC, Agent, and Supervisor (and their predecessors, successors and affiliates), and by all consents heretofore given by Participants thereunder.

Assignor and Assignee each represents and warrants to each other that (i) neither of them nor any person who owns any direct or indirect beneficial interest in either of them, is listed on the current list maintained and published by the United States Department of the Treasury, Office of Foreign Assets Control (commonly known as the OFAC List) or otherwise qualifies as a person with whom business by a United States citizen or resident is prohibited (a “specifically designated national and blocked person”) and (ii) neither of them nor any person who owns any direct or indirect beneficial interest in either of them or in whom either of them has an interest is in violation of any anti-money laundering or anti-terrorism statute, including, without limitation, the Uniting and Strengthening America by Providing Appropriate Tools Required to Intercept and Obstruct Terrorism Act of 2001, U.S. Public Law 107-56 (commonly known as the USA PATRIOT Act), and the related regulations issued thereunder, including temporary regulations, all as amended from time to time. The representations and covenants being made in this paragraph shall inure to the benefit of any person who is now or shall in the future prepare this or any other instrument of assignment and/or facilitate the transfer of the membership interest being transferred hereby.

Assignor and Assignee hereby agree to indemnify and hold harmless the joint venture, the LLC, Agent and Supervisor against any claim or liability, including reasonable attorneys’ fees, relating to or arising out of this assignment and the terms hereof.

All terms of this assignment shall be enforceable by and for the benefit of each of Assignor, Assignee, the joint venture, the LLC, Agent, and Supervisor (and their predecessors, successors, and affiliates), it being understood that each of them is relying upon such terms in accepting and effecting the assignment hereunder. The transfer of the aforesaid interest shall be governed by the terms of this assignment, which shall be controlling and shall supercede any contrary terms of any other assignment agreement made at any time by the parties hereto.


Dated: *(),**

Witness for Assignor:


				*(),**
				Assignor

Witness for Assignee:


				*(),**
				Assignee
				SOCIAL SECURITY#

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AGREEMENT

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