Exhibit 10.4


 


FORM
OF AMENDED AND RESTATED VOTING AGREEMENT


 


AMENDED AND RESTATED VOTING
AGREEMENT, dated as of December     , 2002, by and among
Krupp Government Income Trust, a Massachusetts business trust (“GIT”), Krupp
Government Income Trust II, a Massachusetts business trust (“GIT II” and,
collectively with GIT, the “TRUSTS”), and Berkshire Income Realty, Inc.
(“BIR”), a Maryland corporation.


 


WHEREAS, BIR intends to
commence exchange offers pursuant to which it will seek to acquire shares of
beneficial interest, no par value, of each of the Trusts (the “SHARES”) in
exchange for shares of BIR’s Series A Cumulative Redeemable Preferred Stock
(collectively, the “EXCHANGE OFFERS”);


 


WHEREAS, in order to address
concerns that might be raised by the holders of Shares, who decide not to
tender their Shares in the Exchange Offers, that BIR might use the voting power
of the Shares acquired by it in the Exchange Offers in a manner that may not be
consistent with the interests of such holders, the parties entered into the
Voting Agreement, dated as of November 1, 2002 (the “ORIGINAL AGREEMENT”); and


 


WHEREAS, the parties hereto
wish to amend and restate the Original Agreement in its entirety.


 


NOW, THEREFORE, in
consideration of the above recitals and the mutual covenants and agreements
made herein, the parties hereto agree as follows:


 


1. VOTING AGREEMENT. Subject
to Section 2 below, BIR hereby agrees, so long as it or any of its affiliates
has voting power with respect to any Shares (regardless of whether such Shares
have been acquired in the Exchange Offers or otherwise) (the “BIR SHARES”),
that, at any meeting of the holders of Shares of GIT or GIT II, however called,
or in connection with a written consent of the holders of Shares of GIT or GIT
II, BIR shall vote or consent (or cause to be voted or consented) with respect
to any matter brought before such holders of Shares, all of the BIR Shares in
proportion to the votes cast by the other holders of Shares of GIT and GIT II,
respectively.


 


2. EFFECTIVENESS. This
Agreement shall not be effective unless and until the Exchange Offers have been
completed and BIR has acquired Shares pursuant thereto (the “EFFECTIVE DATE”).


 


3. THIRD PARTY
BENEFICIARIES; TERMINATION. Each holder of Shares other than BIR or any affiliate
of BIR (each, an “UNAFFILIATED HOLDER”) is intended to be and is expressly made
a third party beneficiary of this Agreement, and each Unaffiliated Holder is
expressly permitted to enforce all of the provisions hereunder as if each was a
party hereto. This Agreement may not be terminated by the parties after the
Effective Date without the consent of the holders of a majority of the Shares
(exclusive of any Shares not held by Unaffiliated Holders).


 

















 


4. AMENDMENTS. From and
after the Effective Date, no amendment of Section 1 of this Agreement shall be
valid and binding unless the same shall be in writing and signed by (1) each of
the Trusts, whose execution may only be authorized with the approval of a
majority of the independent trustees of the Board of Trustees of each of the
Trusts, (2) the holders of a majority of the Shares (exclusive of any Shares
not held by Unaffiliated Holders), and (3) BIR. 


 


5. ASSIGNMENT. This
Agreement may not be assigned by a party without the consent of the other
parties hereto. This Agreement shall be binding upon and inure to the benefit
of the parties hereto and their respective successors and permitted assigns.


 


6. ENTIRE AGREEMENT. This
Agreement constitutes the entire agreement among the parties hereto with
respect to the subject matter hereof, and supersedes any and all prior
discussions or agreements, whether written or oral, with respect thereto.


 


7. COUNTERPARTS. This
Agreement may be executed in any number of counterparts, each of which shall be
deemed an original, but all of which together shall constitute but one and the
same instrument.


 


8. HEADINGS. The headings
contained in this Agreement are for convenience purposes only and shall not in
any way affect the meaning or interpretation hereof.


 


9. GOVERNING LAW. This
Agreement shall be governed by and construed in accordance with the domestic
substantive laws of The Commonwealth of Massachusetts, without giving effect to
any choice or conflict of law provision or rule that would cause the
application of the laws of any other jurisdiction. 


 


IN WITNESS WHEREOF, each of
the undersigned has executed this Agreement as of the date first above written.


 


 


	
   

  	
  KRUPP GOVERNMENT INCOME
  TRUST

  
	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
   

  	
   

  
	
   

  	
   

  	
  Name: Douglas Krupp

  
	
   

  	
   

  	
  Title: Chairman

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  KRUPP GOVERNMENT INCOME
  TRUST II

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
   

  	
   

  
	
   

  	
   

  	
  Name: Douglas Krupp

  
	
   

  	
   

  	
  Title: Chairman

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  BERKSHIRE INCOME REALTY,
  INC.

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
   

  	
   

  
	
   

  	
   

  	
  Name: David Quade

  
	
   

  	
   

  	
  Title: President

  



 


2