**Exhibit 10.4**

 

FORMOF AMENDED AND RESTATED VOTING AGREEMENT

 

AMENDED AND RESTATED VOTINGAGREEMENT, dated as of December     , 2002, by and amongKrupp Government Income Trust, a Massachusetts business trust (“GIT”), KruppGovernment 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 tocommence exchange offers pursuant to which it will seek to acquire shares ofbeneficial interest, no par value, of each of the Trusts (the “SHARES”) inexchange for shares of BIR’s Series A Cumulative Redeemable Preferred Stock(collectively, the “EXCHANGE OFFERS”);

 

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

 

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

 

NOW, THEREFORE, inconsideration of the above recitals and the mutual covenants and agreementsmade herein, the parties hereto agree as follows:

 

1. VOTING AGREEMENT. Subjectto Section 2 below, BIR hereby agrees, so long as it or any of its affiliateshas voting power with respect to any Shares (regardless of whether such Shareshave 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 GITII, BIR shall vote or consent (or cause to be voted or consented) with respectto any matter brought before such holders of Shares, all of the BIR Shares inproportion to the votes cast by the other holders of Shares of GIT and GIT II,respectively.

 

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

 

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

 

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4. AMENDMENTS. From andafter the Effective Date, no amendment of Section 1 of this Agreement shall bevalid and binding unless the same shall be in writing and signed by (1) each ofthe Trusts, whose execution may only be authorized with the approval of amajority of the independent trustees of the Board of Trustees of each of theTrusts, (2) the holders of a majority of the Shares (exclusive of any Sharesnot held by Unaffiliated Holders), and (3) BIR. 

 

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

 

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

 

7. COUNTERPARTS. ThisAgreement may be executed in any number of counterparts, each of which shall bedeemed an original, but all of which together shall constitute but one and thesame instrument.

 

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

 

9. GOVERNING LAW. ThisAgreement shall be governed by and construed in accordance with the domesticsubstantive laws of The Commonwealth of Massachusetts, without giving effect toany choice or conflict of law provision or rule that would cause theapplication of the laws of any other jurisdiction. 

 

IN WITNESS WHEREOF, each ofthe 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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