EXHIBIT 3
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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:
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.
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").
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
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without the consent of the holders of a majority of the Shares (exclusive of any
Shares not held by Unaffiliated Holders).
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.
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.
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.
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.
HEADINGS. The headings contained in this Agreement are for
convenience purposes only and shall not in any way affect the meaning or
interpretation hereof.
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
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BERKSHIRE INCOME REALTY, INC.
By: /s/ Xxxxx Xxxxx
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Name: Xxxxx Xxxxx
Title: President
