EXHIBIT 10.12
VOTING AGREEMENT
VOTING AGREEMENT, dated as of November 1, 2002, by and among ▇▇▇▇▇
Government Income Trust, a Massachusetts business trust ("GIT"), ▇▇▇▇▇
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"); and
WHEREAS, BIR desires to enter into this Agreement in order to address
concerns that might be raised by the holders of Shares who decide not to tender
their Shares in the Exchange Offer that BIR might use the voting power of the
Shares acquired by it in the Exchange Offer in a manner that may not be
consistent with the interests of such holders.
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.
3. ASSIGNMENT; NO THIRD-PARTY BENEFICIARY. 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. Except as expressly
provided herein, this Agreement is for the sole benefit of the parties and their
successors and permitted assignees and nothing herein expressed or implied shall
give or be construed to give any other person, any legal or equitable rights
hereunder.
4. AMENDMENTS. No amendment of this Agreement shall be valid and
binding unless the same shall be in writing and signed by 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, and by BIR.
5. 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.
2
6. 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.
7. HEADINGS. The headings contained in this Agreement are for
convenience purposes only and shall not in any way affect the meaning or
interpretation hereof.
8. 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.
▇▇▇▇▇ GOVERNMENT INCOME TRUST
By: /s/ ▇▇▇▇▇▇▇ ▇▇▇▇▇
-----------------------------------
Name: ▇▇▇▇▇▇▇ ▇▇▇▇▇
Title: Chairman
▇▇▇▇▇ GOVERNMENT INCOME TRUST II
By: /s/ ▇▇▇▇▇▇▇ ▇▇▇▇▇
-----------------------------------
Name: ▇▇▇▇▇▇▇ ▇▇▇▇▇
Title: Chairman
BERKSHIRE INCOME REALTY, INC.
By: /s/ ▇▇▇▇▇ ▇▇▇▇▇
-----------------------------------
Name: ▇▇▇▇▇ ▇▇▇▇▇
Title: President
