EXHIBIT 10.3
AMENDED AND RESTATED VOTING AGREEMENT
AMENDED AND RESTATED VOTING AGREEMENT, dated as of December 5, 2002, by and
among Xxxxx Government Income Trust, a Massachusetts business trust ("GIT"),
Xxxxx 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.
XXXXX GOVERNMENT INCOME TRUST
By: /s/ Xxxxxxx Xxxxx
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Name: Xxxxxxx Xxxxx
Title: Chairman
XXXXX GOVERNMENT INCOME TRUST II
By: /s/ Xxxxxxx Xxxxx
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Name: Xxxxxxx Xxxxx
Title: Chairman
BERKSHIRE INCOME REALTY, INC.
By: /s/ Xxxxx Xxxxx
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Name: Xxxxx Xxxxx
Title: President
