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


  
						





 




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