<PAGE>
EXHIBIT 10.4
CORPORATE PROPERTY ASSOCIATES 16 - GLOBAL INCORPORATED
50 ROCKEFELLER PLAZA
NEW YORK, NY 10020
AMENDED AND RESTATED SALES AGENCY AGREEMENT
______ ____, 2004
Carey Financial Corporation
50 Rockefeller Plaza
New York, NY 10020
Ladies and Gentlemen:
Corporate Property Associates 16 - Global Incorporated, a
Maryland
corporation (the "Company"), hereby
confirms its agreement with you as follows:
1. Introduction. This Sales Agency Agreement (the "Agreement")
sets
forth the understandings and agreements
between the Company and you whereby you
will offer and sell on a best efforts basis
for the account and risk of the
Company, along with a group of selected
dealers (the "Selected Dealers") and
registered investment advisors (the
"Selected Investment Advisors") to be formed
with your assistance, up to 120,000,000
shares of common stock of the Company,
par value $0.001 per share (the "Shares"),
registered on Form S-11 at $10 per
share (subject to certain volume
discounts). The Shares are more fully described
in the Registration Statement referred to
below.
2. Representations and Warranties of the Company
The Company represents, warrants and agrees that:
(a) Registration Statement and Prospectus. The Company has filed
with
the Securities and Exchange Commission (the
"Commission") a registration
statement on Form S-11 (File No.
333-_______), containing a related preliminary
prospectus, for the registration of the
Shares under the Securities Act of 1933,
as amended (the "Securities Act") and the
regulations thereunder (the
"Regulations"), and will prepare and file
with the Commission any amendments to
the registration statement necessary for
them to become effective, including an
amended preliminary prospectus. The
registration statement, as amended, and the
amended prospectus on file with the
Commission at the time the registration
statement becomes effective (including
financial statements, exhibits and all
other documents related thereto filed as a
part thereof or incorporated
therein), and any registration statement
filed under Rule 462(b) of the
Securities Act, are herein called the
"Registration Statement" and the
"Prospectus," respectively, except that if
the Registration Statement is amended
by a post-effective amendment, the term
"Registration Statement" shall, from and
after the declaration of effectiveness of
such post-effective
1
<PAGE>
amendment, refer to the Registration
Statement as so amended and the term
"Prospectus" shall refer to the prospectus
as so amended, and if the Prospectus
filed by the Company pursuant to Rule
424(b) or 424(c) of the Regulations shall
differ from the Prospectus on file at the
time the Registration Statement or any
post-effective amendment shall become
effective, the term "Prospectus" shall
refer to the Prospectus filed pursuant to
either of such Rules from and after
the date on which it shall have been mailed
for filing with the Commission.
Further, if a separate prospectus is filed
and becomes effective with respect
solely to the Distribution Reinvestment and
Stock Purchase Plan ("DRIP")(a "DRIP
Prospectus"), the term "Prospectus" shall
refer to such DRIP Prospectus from and
after the declaration of effectiveness of
such DRIP Prospectus.
(b) Compliance with the Securities Act. The Registration Statement
has
been prepared and filed by the Company in
conformity with the Securities Act and
the applicable instructions and
Regulations. The Commission has not issued any
order preventing or suspending the use of
any prospectus or preliminary
prospectus filed with the Registration
Statement or any amendments thereto. At
the time the Registration Statement becomes
effective (the "Effective Date") and
at the time that any post-effective
amendments thereto become effective and at
all times subsequent thereto up to the
Termination Date (as defined in Section
3(d) hereof), the Registration Statement
and Prospectus (as amended or as
supplemented) will contain all statements
which are required to be stated
therein in accordance with the Securities
Act and the Regulations and will in
all respects conform to the requirements of
the Securities Act and the
Regulations, and will not include any
untrue statement of a material fact or
omit to state any material fact required to
be stated therein or necessary to
make the statements therein, in the light
of the circumstances under which they
were made, not misleading, and each
preliminary prospectus filed as part of the
Registration Statement as originally filed
or as part of any amendment thereto,
or filed pursuant to Rule 424 under the
Securities Act, complied when so filed
in all material respects with the
Securities Act and Regulations and did not
contain an untrue statement of a material
fact or omit to state a material fact
required to be stated therein or necessary
in order to make the statements
therein, in light of the circumstances
under which they were made, not
misleading.
(c) The Company. The Company has been duly incorporated and
validly
exists as a corporation in good standing
under the laws of the State of Maryland
with full power and authority to conduct
the business in which it is engaged in
as described in the Prospectus. The Company
is duly qualified to do business as
a foreign corporation and is in good
standing in each other jurisdiction in
which it owns or leases property of a
nature, or transacts business of a type
that would make such qualification
necessary.
(d) The Shares. The Shares, when issued, will be duly and
validly
issued, fully paid and non-assessable and
will conform to the description
thereof contained in the Prospectus; no
holder thereof will be subject to
personal liability for the obligations of
the Company solely by reason of being
such a holder; such Shares are not subject
to the preemptive rights of any
shareholder of the Company; and all
corporate action required to be taken for
the authorization, issue and sale of such
Shares has been validly and
sufficiently taken.
(e) Violations. The Company is not in violation of its Articles
of
Incorporation ("Articles") or Bylaws or in
default in the performance or
observance of any material obligation,
2
<PAGE>
agreement, covenant or condition contained
in any contract, indenture, mortgage,
loan agreement, note, lease or other
agreement or instrument to which it is a
party or by which it or any of its
properties is bound.
(f) Taxes. The Company has filed all Federal, state and foreign
income
tax returns which have been required to be
filed on or before the due date
(taking into account all extensions of time
to file) and has paid or provided
for the payment of all taxes indicated by
said returns and all assessments
received by the Company to the extent that
such taxes or assessment have become
due.
(g) Pending Action. There is no action, suit or proceeding pending
or,
to the best of the knowledge, information
and belief of the Company, threatened
to which the Company is a party, before or
by any court or governmental agency
or body.
(h) Financial Statements. The financial statements of the Company
filed
as part of the Registration Statement and
those included in the Prospectus
present fairly the financial position of
the Company as of the date indicated
and the results of its operations for the
periods specified; said financial
statements have been prepared in conformity
with generally accepted accounting
principles applied on a consistent basis;
and PricewaterhouseCoopers LLP, whose
report is filed with the Commission as a
part of the Registration Statement, are
independent accountants as required by the
Securities Act and the Regulations.
(i) No Subsequent Material Events. Since the respective dates as
of
which information is given in the
Registration Statement and the Prospectus,
except as may otherwise be stated in or
contemplated by the Registration
Statement and the Prospectus, (a) there has
not been any material adverse change
in the condition (financial or otherwise)
of the Company or in the earnings,
affairs or business prospects of the
Company, whether or not arising in the
ordinary course of business, and (b) there
have not been any material
transactions entered into by the Company
except in the ordinary course of
business.
(j) Investment
Company Act. The Company does not intend to conduct its
business so as to be an "investment
company" as that term is defined in the
Investment Company Act of 1940, as amended
and the rules and regulations
thereunder, and it will exercise reasonable
diligence to ensure that it does not
become an "investment company" within the
meaning of the Investment Company Act
of 1940.
(k) Authorization of Agreement. This Agreement and the Advisory
Agreement (the "Advisory Agreement")
between the Company and Carey Asset
Management Corp. (the "Advisor") have been
duly and validly authorized, executed
and delivered by the Company and constitute
the valid agreements of the Company
enforceable in accordance with their terms.
The execution and delivery of this
Agreement and the Advisory Agreement, the
consummation of the transactions
herein and therein contemplated and the
compliance with the terms of this
Agreement and the Advisory Agreement by the
Company will not conflict with or
constitute a default under the Articles or
bylaws or any indenture, mortgage,
deed of trust, lease or other agreement or
instrument to which the Company is a
party, or any law, order, rule or
regulation, writ, injunction or decree of any
government, governmental instrumentality or
court, domestic or
3
<PAGE>
foreign, having jurisdiction over the
Company, or any of its property, except to
the extent that the enforceability of the
indemnity and/or contribution
provisions contained in Section 8 of this
Agreement may be limited under
applicable securities law; and no consent,
approval, authorization or order of
any court or other governmental agency or
body has been or is required for the
performance of this Agreement or the
Advisory Agreement by the Company, or for
the consummation of the transactions
contemplated hereby and thereby (except
such as have been obtained under the
Securities Act or as may be required under
state securities or "blue sky" laws in
connection with the distribution of the
Shares).
(l) Description of Agreements. The Company is not a party to or
bound
by any contract or other instrument of a
character required to be described in
the Registration Statement or the
Prospectus or to be filed as an exhibit to the
Registration Statement that is not
described and filed as required.
(m) Qualification as a Real Estate Investment Trust. The
Company
intends to satisfy the requirements of the
Internal Revenue Code of 1986 as
amended (the "Code") for qualification of
the Company as a real estate
investment trust. The Company has elected
to be treated as a real estate
investment trust under the Code and will
direct the investment of the proceeds
of the offering of the Shares in such a
manner, and will otherwise operate the
business of the Company, so as to comply
with such requirements.
(n) Description of Properties. On the Effective Date and at all
times
subsequent thereto up to the Termination
Date, the section of the Prospectus
entitled "Description of Properties" will
include, among other things, the
location and general character of all
materially important real properties held
or intended to be acquired by the Company,
the nature of the Company's title to
or other interest in such properties and
the nature and amount of all material
mortgages or other liens or encumbrances
against such properties and the
principal terms of any lease of any such
properties and the lessee thereof and
such descriptions will be correct in all
material respects.
(o)
Gramm-Leach-Bliley Act and USA Patriot Act. The Company
complies
with the applicable privacy provision of
the Gramm-Leach-Bliley Act and the
applicable provisions of the USA Patriot
Act, in all material respects.
3. Sales of Shares. On the basis of the representations, warranties
and
covenants herein contained, but subject to
the terms and conditions herein set
forth, the Company hereby appoints you as
its sales agent ("Sales Agent") to
solicit purchasers, along with the Selected
Dealers and Selected Investment
Advisors (as defined in Section 3(c)), for
the Shares during the period (the
"Effective Term") from the Effective Date
to the Termination Date, including the
Shares pursuant to the DRIP, each in the
manner described in the Registration
Statement. Subject to the performance by
the Company of all obligations to be
performed by it hereunder and the
completeness and accuracy of all of its
representations and warranties, you agree
to use your best efforts as Sales
Agent, promptly following written or
telegraphic receipt of notice of the
Effective Date from the Company, to offer
and sell such number of Shares as
contemplated by this Agreement at the price
stated in the Prospectus.
4
<PAGE>
(a) Purchase of Shares. The purchase of Shares must be made during
the
offering period described in the
Prospectus, or after such offering period in
the case of purchases made pursuant to the
DRIP (each such purchase hereinafter
defined as an "Order"). Persons desiring to
purchase Shares are required to (i)
deliver to you, the appropriate Selected
Dealer or Selected Investment Advisor a
check in the amount of $10 per Share
purchased (subject to certain volume
discounts or other discounts as described
in the prospectus, or such other per
share price as may be applicable pursuant
to the DRIP) payable to Deutsche Bank
Trust Company Americas, as escrow agent
(the "Escrow Agent"), or (ii) authorize
a debit of such amount to the account such
purchaser maintains with you, the
appropriate Selected Dealer or Selected
Investment Advisor. For investors
residing in certain states, an order form
in the form attached to the Prospectus
(each an "Order Form") must be completed
and submitted to the Company. On a
daily basis, you will submit all checks
received from investors and transfer,
via Federal Reserve bank wire, the total
amount debited from investor accounts
for the purchase of Shares along with a
list including the name, address and
telephone number of, the social security
number or taxpayer identification
number of, the brokerage account number of
(if applicable), the number of Shares
purchased by, any election to participate
in the DRIP by, and the total dollar
amount of investment by, each investor on
whose behalf checks are submitted or
the wire transfer is made. You also will
forward all Order Forms to the Company.
You shall use your best efforts to wire
such funds or transmit checks to the
Escrow Agent not later than noon of the
next business day after receipt by you
from your customer of each Order. You will
advise the Escrow Agent whether the
funds you are submitting are attributable
to individual retirement accounts,
Keogh plans, or any other employee benefit
plan subject to Title I of the
Employee Retirement Income Security Act of
1974 or from some other type of
investor.
All Orders solicited by you will be strictly subject to review
and
acceptance by the Company and the Company
reserves the right in its absolute
discretion to reject any Order or to accept
or reject Orders in the order of
their receipt by the Company or otherwise.
Within 30 days of receipt of an
Order, the Company must accept or reject
such Order. If the Company elects to
reject such Order, within 10 business days
after such rejection, it will notify
the purchaser of such fact and cause the
return of such purchaser's funds
submitted with such application and any
interest earned thereon. If you receive
no notice of rejection within the foregoing
time limits or if funds submitted by
the purchaser are released from escrow to
the Company within the foregoing time
limits, the Order shall be deemed accepted.
You agree to make every reasonable
effort to determine that the purchase of
Shares is a suitable and appropriate
investment for each potential purchaser of
Shares based on information provided
by such purchaser regarding such
purchaser's financial situation and investment
objectives. You agree to maintain, for at
least six years, records of the
information used by you to determine
whether an investment in Shares is suitable
and appropriate for a potential purchaser
of Shares.
(b) Closing Dates and Delivery of Shares. In no event shall a sale
of
shares to an investor be completed until at
least five business days after the
date the investor receives a copy of the
Prospectus. On the date Shares are
first issued to Shareholders (such date
being herein referred to as the "Initial
Closing Date"), the Escrow Agent will at
such time and place as instructed by
you and the Company (which instruction
shall be subject to the satisfaction on
such date of the conditions contained
herein), deliver to the Company or its
designee immediately available funds in an
amount equal to the Escrow Funds on
deposit in the Escrow Account prior to the
date
5
<PAGE>
designated by the Company. If, after the
Initial Closing Date, additional sales
of Shares are made, on each such date (each
such date being referred to as an
"Additional Closing Date") and at each such
time and place as instructed by you
and the Company (which instruction shall be
subject to the satisfaction on each
such date of the conditions contained
herein), the Escrow Agent shall be
required to deliver to the Company or its
designee immediately available funds
in an amount equal to the Escrow Funds on
deposit in the Escrow Account prior to
the date specified by the Company. The
Initial Closing Date and each Additional
Closing Date are each herein referred to as
a "Closing Date." Closing dates for
purchases made pursuant to the DRIP will be
as set forth in the DRIP.
(c) Selected Dealers and Selected Investment Advisors. The
Shares
offered and sold under this Agreement,
other than sales made by the Company
directly to its officers and directors,
shall be offered and sold only by you as
Sales Agent and by a selling group of
brokers or dealers (the "Selected
Dealers"), all of whom must be members in
good standing of the National
Association of Securities Dealers, Inc.
(the "NASD"), who execute Selected
Dealer Agreements with you substantially in
the form attached hereto as Exhibit
A, and Selected Investment Advisors, who
execute Selected Investment Advisor
Agreements substantially in the form
attached hereto as Exhibit B, all of whom
are acceptable to the Company and you
(which acceptance shall not be
unreasonably withheld by you). You will
assist the Company in forming the
selling group of Selected Dealers and
Selected Investment Advisors. No firm
shall be invited to join the selling group
of Selected Dealers or Selected
Investment Advisors if it is (i) currently
subject to any suspension or
expulsion pursuant to the rules and
regulations of the Commission, the state
securities commissions of any of the fifty
states, the New York Stock Exchange,
Inc. or the American Stock Exchange, Inc.
as those rules and regulations relate
to broker-dealers and registered investment
advisors, or the rules and
regulations of the NASD or (ii) a "discount
broker" as that term is commonly
understood in the brokerage industry. The
Company and the Advisor or an
affiliate thereof agree to participate in
your marketing efforts to the extent
that you may reasonably request and,
without limiting the generality of the
foregoing, agree to visit the offices of
Selected Dealers and Selected
Investment Advisors as you may reasonably
designate.
(d) Compensation. In consideration for your execution of this
Agreement, and for the performance of your
obligations hereunder, the Company
agrees to pay or cause to be paid to you a
selling commission (the "Selling
Commission") of six and one-half percent
($0.65) of the price of each Share
(except for Shares sold pursuant to the
DRIP) sold by you or by a Selected
Dealer, provided that no commissions shall
be paid for shares sold by Selected
Investment Advisors; provided further,
however, that your Selling Commission
shall be reduced with respect to volume
sales of Shares to single purchasers (as
defined in the Prospectus). In the case of
such volume sales to single
purchasers, on orders of $250,000 or more
your Selling Commission shall be
reduced by the amount of the Share purchase
price discount. In the case of such
volume sales to single purchasers, your
selling commission will be reduced for
each incremental share purchase in the
total volume ranges set forth in the
table below. Such reduced share price will
not affect the amount received by the
Company for investment. The following table
sets forth the reduced Share
purchase price and Selling Commission
payable to you:
6
<PAGE>
<TABLE>
<CAPTION>
PURCHASE PRICE PER SELLING
COMMISSION PER
VOLUME
DISCOUNT
SHARE FOR INCREMENTAL
SHARE ON TOTAL SALE FOR
RANGE FOR
A
SHARE IN VOLUME INCREMENTAL
SHARE IN
SINGLE
PURCHASER
DISCOUNT RANGE
VOLUME DISCOUNT RANGE
----------------
--------------
---------------------
<S>
<C>
<C>
$
2,000 -
$ 250,000
$10.00
$0.65
$
250,001 - $ 500,000
$9.85
$0.50
$
500,001 - $ 750,000
$9.70
$0.35
$
750,001 - $1,000,000
$9.60
$0.25
$1,000,001
- $5,000,000
$9.50
$0.15
</TABLE>
As an example, a single purchaser would receive 50,380 Shares
rather
than 50,000 Shares for his/her or its
investment of $500,000 and the Selling
Commission would be $28,940. On the first
$250,000 of the investment there would
be no discount and the purchaser would
receive 25,000 shares at $10 per share.
On the remaining $250,000, the per share
price would be $9.85 and the purchaser
would receive 25,380 shares.
A refund will be made to the purchaser for any fractional Shares
based
on the public offering price if such refund
is in excess of $1.00. In the
foregoing example, $7.00 would be refunded
for the fractional Share.
Selling
Commissions for purchases of $5,000,000 or more are negotiable
but in no event will the proceeds to the
Company be less than $9.35 per Share.
Selling Commissions paid will in all cases
be the same for the same level of
sales.
Notwithstanding the foregoing, Selling Commissions for all
purchases
made by an investor pursuant to the DRIP
shall be five percent of the purchase
price of each Share purchased pursuant to
the DRIP.
The Company will pay to you for reallowance to Selected Dealers
only,
the amount of any due diligence expense
reimbursement paid to the Selected
Dealers which you have agreed to pay in the
amount of up to one-half percent of
the price of each Share sold by each
Selected Dealer to which you have agreed to
pay such a fee.
From your total commissions, you agree to reallow to each
Selected
Dealer with whom you have entered into a
Selected Dealer Agreement (no such
reallowance will be made for Selected
Investment Advisors) an amount of up to
$0.65 commission per Share (except in the
case of Shares purchased under the
DRIP in which case the commission
reallowance will be an amount up to $0.50 per
Share) for Shares sold by the Company
pursuant to Orders solicited by such
Selected Dealer and up to the full amount
of any Selected Dealer Fee paid to you
by the Company on behalf of any Selected
Dealer. The Company will also reimburse
you for the amount of the Selected Dealer
Fee paid to Selected Dealers, if any,
which fee will be up to two percent of the
price of each Share sold by the
Selected Dealer. Additionally, the Company
may pay to you the Selected Dealer
Fee of up to two percent for Shares sold
directly by you. No payment of
commissions will be made by the Company
with respect to Orders placed by the
Selected Investment Advisors and Orders (or
portions thereof), which are
rejected by the
7
<PAGE>
Company. Selling Commissions will be paid
on any Closing Date with respect to
the Shares sold to purchasers whose Shares
are issued on such Closing Date. The
Company will not pay a Selected Dealer Fee
for Shares sold through the DRIP.
The Company represents that neither it nor any of its Affiliates
have
offered or sold any Shares pursuant to this
Offering, other than directly to the
Company's officers and directors, and
agrees that, through the date on which the
Offering is terminated (the "Termination
Date"), the Company will not offer or
sell any Shares otherwise than through you
as herein provided, except to its
officers and directors.
(e) Finders Fee. Neither the Company, any Selected Dealer nor
any
Selected Investment Advisor participating
in the Offering shall, directly or
indirectly, pay or award any finder's fees,
commissions or other compensation to
any person engaged by a potential investor
for investment advice as an
inducement to such advisor to advise the
purchase of Shares; provided, however,
that normal Selling Commissions payable to
a registered broker-dealer or other
properly licensed person for selling Shares
shall not be prohibited hereby.
(f) Wholesaling Activities. You hereby agree to provide the
following
additional services for the Company:
(1) developing and preparing sales literature to be used by the
Company
in the offer and sale of the Shares, which
sales literature shall comply with
the Securities Act and the Regulations
thereunder, the Rules of Fair Practice of
the National Association of Securities
Dealers, Inc. (the "RFP") and the "blue
sky" laws of any jurisdiction in which such
material is used ("Blue Sky Law").
The sales literature may include, but not
be limited to, a slide presentation, a
property acquisition report, a brochure and
seminar invitations for presentation
and distribution to the public and an audio
program, a video program and a
brochure for presentation and distribution
to broker-dealers;
(2) assisting broker-dealers and registered investment advisors
participating in the Offering by
coordinating broker-dealer and registered
investment advisor seminars, informational
meetings, preparing and distributing
brochures and other sales literature
designed for broker-dealers and registered
investment advisors and providing
information and answering any questions with
regard to the Offering; and
(3) assisting the Company in enlisting broker-dealers and
registered
investment advisors to participate in the
Offering as selected dealers.
4. Covenants. The Company covenants to you and each Selected
Dealer
that it will:
(a) Commission Orders. Use its best efforts to cause the
Registration
Statement and any subsequent amendments
thereto, to become effective as promptly
as possible, and will notify you
immediately, and confirm the notice in writing,
(i) when the Registration Statement and any
post-effective amendment thereto
become effective, (ii) of the issuance by
the Commission of any stop order or of
the initiation, or the threatening, of any
proceedings for that purpose or of
the suspension of the qualification of the
Shares for offering or sale in any
jurisdiction or of the
8
<PAGE>
institution or threatening of any
proceedings for any of such purposes, (iii) of
the receipt of any comments from the
Commission with respect to the Registration
Statement, and (iv) of any request by the
Commission for any amendment to the
Registration Statement as filed or any
amendment or supplement to the Prospectus
or for additional information relating
thereto. The Company will make every
reasonable effort to prevent the issuance
by the Commission of a stop order or a
suspension order and if the Commission
shall enter a stop order or suspension
order at any time, the Company will make
every reasonable effort to obtain the
lifting of such order at the earliest
possible moment.
(b) Registration Statement. Deliver to you, Selected Dealers
and
Selected Investment Advisors without charge
such number of copies of each
preliminary prospectus filed with the
Registration Statement and each amendment
thereto, and as soon as the Registration
Statement or any amendment or
supplement thereto become
