TENTH AGREEMENT FOR THE IMPLEMENTATION OF AMENDMENTS TO THE CORPORATE SERVICES MASTER AGREEMENT
Exhibit 4.13
TRADUCCIÓN
PÚBLICA
SWORN
TRANSLATION
[Some
pages carry illegible signatures.]
TENTH AGREEMENT FOR THE IMPLEMENTATION OF AMENDMENTS
TO
THE CORPORATE SERVICES MASTER AGREEMENT
Agreement
made in the Autonomous City of Buenos Aires on the 29th day of June of 2018
by and between:
(i)
CRESUD S.A.C.I.F. y A.,
domiciled at Xxxxxx 877, Piso 23 in the Autonomous City of Buenos
Aires, represented hereat by the undersigned attorneys-in-fact
(hereinafter “CRESUD”) as party of the one
part;
(ii)
IRSA Propiedades Comerciales
S.A., domiciled at Xxxxxx 877, Piso 22 in the Autonomous
City of Buenos Aires, represented hereat by the undersigned
attorneys-in-fact (hereinafter “IRSAPC”), as party of
the second part, and
(iii)
IRSA Inversiones y Representaciones
Sociedad Anónima, domiciled at Bol’var 108, Piso
1º in the Autonomous City of Buenos Aires and having
established domicile for purposes hereof at Xxxxxx 877, Piso 22 in
the Autonomous City of Buenos Aires, represented hereat by the
undersigned attorneys-in-fact, as party of the third part
(hereinafter “IRSA” and collectively with CRESUD and
IRSAPC designated as “THE PARTIES”).
WHEREAS:
(i) On
June 30, 2004 THE PARTIES executed a Master Agreement for the
Exchange of Corporate Services (hereinafter “the Master
Agreement”);
(ii) On
August 23, 2007 THE PARTIES executed the First Agreement for the
Implementation of Amendments to the Corporate Services Master
Agreement (hereinafter the “First Agreement”), whereby
certain amendments were introduced to the Areas of Exchange of
Corporate Services and the Cost Distribution Bases, and new
Individually Responsible Persons were appointed;
(iii)
On August 14, 2008 and November 27, 2009, THE PARTIES executed the
Second Agreement for the Implementation of Amendments to the
Corporate Services Master Agreement (hereinafter the "Second
Agreement”) and the Third Agreement for the Implementation of
Amendments to the Corporate Services Master Agreement (hereinafter
the “Third Agreement”), respectively, whereby new
amendments were introduced to the Areas of Exchange of Corporate
Services and the Cost Distribution Bases;
(iv) On
March 12, 2010, THE PARTIES executed an Addendum to the Master
Agreement for the Exchange of Corporate Services (hereinafter the
“Addendum”) whereby THE PARTIES agree to unify in
CRESUD the services of the Areas of Exchange of Corporate Services,
to the effect of which the employment agreements of most of the
employees of such areas were transferred and the procedure to
allocate the costs of potential labor expenses arising from
retirement of employees was established;
(v) On
July 11, 2011, THE PARTIES executed the Fourth Agreement for the
Implementation of Amendments to the Corporate Services Master
Agreement (hereinafter the "Fourth Agreement”), on October
15, 2012, THE PARTIES executed the Fifth Agreement for the
Implementation of Amendments to the Corporate Services Master
Agreement (hereinafter the "Fifth Agreement"), on November 12,
2013, THE PARTIES executed the Sixth Agreement for the
Implementation of Amendments to the Corporate Services Master
Agreement (hereinafter the “Sixth Agreement”) and on
February 18, 2015, THE PARTIES executed the Seventh Agreement for
the Implementation of Amendments to the Corporate Services Master
Agreement (hereinafter the “Seventh Agreement” and
together with the First Agreement, the Second Agreement, the Third
Agreement, the Fourth Agreement, the Fifth Agreement and the Sixth
Agreement, the “Agreements”), whereby new amendments
were introduced to the Areas of Exchange of Corporate Services and
the Cost Distribution Bases;
(vi)
Pursuant to the structuring process of a new organizational model
of division of areas by business, an agreement was reached to
transfer to IRSA and/or IRSAPC the employment agreements of those
employees who render services related to the Technical,
Infrastructure and Services, Purchases, Architecture and Design and
Works Development Area, Real Estate Business Management, Real
Estate Business Human Resources, Safety and Real Estate Areas, all
of them related to the real estate business. On February 24, 2014
THE PARTIES executed a Second Addendum to the Master Agreement for
the Exchange of Corporate Services (hereinafter the “Second
Addendum”) whereby the mechanisms to be used for the
allocation of the costs of potential labor expenses that such
process would involve were established.
(vii)
On November 12, 2015, THE PARTIES executed the Eighth Agreement for
the Implementation of Amendments to the Corporate Services Master
Agreement (hereinafter the “Eighth
Agreement”)
(vii)
On May 5, 2017, THE PARTIES executed the Ninth Agreement for the
Implementation of Amendments to the Corporate Services Master
Agreement (hereinafter the “Ninth
Agreement”).
(viii)
THE PARTIES have been performing the Master Agreement based on an
Implementation Manual originally drafted by Deloitte & Co.
S.R.L., (hereinafter “Deloitte”), updated in due
time;
(ix) In
accordance with the recommendations made by Deloitte on its
semi-annual reports, new operational changes have been implemented
in the Areas of Exchange of Corporate Services and the Cost
Distribution Bases starting in July 2017, which THE PARTIES wish to
acknowledge in writing;
(x) THE
PARTIES have disclosed the content of the TENTH AGREEMENT FOR THE IMPLEMENTATION OF
AMENDMENTS TO THE CORPORATE SERVICES MASTER AGREEMENT
(hereinafter the “Tenth Agreement”) to their respective
Audit Committees; and
(xi)
The Boards of Directors of IRSAPC, CRESUD and IRSA approved the
Tenth Agreement at their respective meetings held on June 29,
2018;
NOW IN CONSIDERATION OF THE FOREGOING, THE PARTIES hereby
agree to execute this Tenth Agreement subject to the following
terms and conditions:
ONE: THE PARTIES ratify that the Areas (as defined in the
Master Agreement) and the calculation method applicable to the
Exchange of Operational Services (also as defined in the Master
Agreement) have been changed as from the dates listed below,
amending therefore Exhibits I and II, as amended by the Agreements,
to the Master Agreement as per the following detail:
(i)
Starting in July 2017, the Legal Affairs-Corporate area
incorporated to it the Insurance Sector. As a consequence, Exhibit
I and Exhibit II were modified to reflect these
changes.
(ii)
Starting in July 2017, the Finance area was renamed to
“Administration and Finance” and incorporated to it the
Corporate Accounting and Reporting Sector and the Corporate Taxes
Sector. As a consequence, Exhibit I and Exhibit II were modified to
reflect these changes.
(iii)
Starting in September 2017, the Compliance area incorporated to it
the Internal Audit Sector. As a consequence, Exhibit I and Exhibit
II were modified to reflect these changes.
(iv)
Starting in July 2017, the Board of Directors to be distributed
sector was renamed to “Bol’var”. As a
consequence, Exhibit I and Exhibit II were modified to reflect
these changes.
(v)
Starting in January 2018, the Real Estate area was renamed to
“Investments” and incorporated to it the Architecture
and Design and Works Development Sector. As a consequence, Exhibit
I and Exhibit II were modified in a manner such that as from those
dates, the areas would be as described in the new Exhibit I and
Exhibit II.
(vi)
Starting in January 2018, the Technical, Infrastructure and
Services, Architecture and Design and Works Development area was
renamed to “Technical, Infrastructure and Services”. As
a consequence, Exhibit I and Exhibit II were modified in a manner
such that as from those dates, the areas would be as described in
the new Exhibit I and Exhibit II.
(vii)
Starting in April 2018, the SOX Regulation area was renamed to
“Internal Control”. As a consequence, Exhibit I and
Exhibit II were modified to reflect these changes.
(viii)
Starting in May 2018, the Audit Committee sector was renamed to
“Corporate Governance”, which comprises the Compliance
area. As a consequence, Exhibit I and Exhibit II were modified to
reflect these changes.
In
consideration of the foregoing, the PARTIES hereby put on record
that, subject to the clarifications detailed in the preceding
clauses and for purposes of updating Exhibits I and II, they shall
be read as hereto attached for the periods and as from the dates
indicated.
TWO: THE PARTIES agree that the costs related to the
employees acting in the new Areas included pursuant to this Tenth
Agreement, shall be governed in accordance with the terms and
conditions set forth in the Master Agreement, the Addendum and the
Second Addendum.
THREE: THE PARTIES represent that all the sections of the
Master Agreement, the Agreements, the Addendum and the Second
Addendum that have not been amended pursuant to this Tenth
Agreement continue to be fully in force.
In
witness whereof, this Agreement is executed in three (3) copies of
the same tenor and to a single effect in the place and on the date
first written.
CRESUD S.A.C.I.F.y A.
[Illegible
signature] [Seal:] Ag. Eng. Xxxxxxxxx X. Xxxxxxxxx –
Attorney-in-fact / [Illegible signature]
Attorneys-in-fact
IRSA Inversiones y Representaciones Sociedad
Anónima
[Illegible
signature] [Seal:] Xxxxxxxx X. Elsztain / [Illegible
signature]
Attorneys-in-fact
IRSA Propiedades Comerciales S.A.
[Illegible
signature] [Illegible seal] / [Illegible signature] [Seal:]
Xxxxxxxx Xxxxxxx – Attorney-in-fact
Attorneys-in-fact
Exhibit I
Description of Corporate Services Exchange
Areas
Corporate Human Resources
The Human Resources sector renders to THE PARTIES the service
consisting in Human Resources Administration; Human Resources
Management, and Organizational Culture Management. Within the main
activities of the sector we may mention labor relationships,
selection of managerial positions, leadership training and
interpersonal skills, remunerations and benefits, internal
communications, etc.
Administration and Finance
The Administration and Finance sector renders to THE PARTIES the
service consisting in Investor Relations, Capital Markets,
Financial Risk and Management of Financial
Transactions.
In addition, it renders to THE PARTIES the service consisting in
planning and defining the companies’ fiscal
policies and the service consisting
in consolidating the financial statements of IRSA Inversiones y
Representaciones S.A. and in defining the companies’
accounting policies.
Planning
The Planning area is responsible for medium- and long-term
planning, for aligning THE PARTIES’ objectives and individual
goals, for coordinating THE PARTIES’ investment analysis,
controlling corporate management, expenditure budgeting control and
the Shared Services Center and for coordinating all the management
information flowing through the businesses and submitted to the
respective Boards of Directors.
Institutional Relations
The Institutional Relations sector renders to THE PARTIES the
service consisting in the development and control of advertising,
broadcasting actions, relations with the media, preparation of
articles, brochures and related activities.
Compliance
The Compliance sector is responsible for information security and
Internal Control, controlling the proper management of the
different processes that constitute the administrative and
accounting system and participating in their continuous
improvement. In addition, it is in charge of verifying compliance
with controls defined in the processes as well as with the
regulations, principles and procedures that govern the governing
bodies of the Parties. As regards the Audit Committee, it provides
support and assistance for the compliance with its
duties.
Shared Services Center
The Shared Services Center provides THE PARTIES with all the
transactional and operational services associated to income and
expense management, to the services inherent in managing human
resources benefits and payroll processing, in commercial contract
management, in errand running services and in general services. And
it is equally responsible for managing, maintaining and providing
support to systems, technology and processes and the
companies’ tax calculation processes.
Safety
The Safety sector renders to THE PARTIES the surveillance
service.
Legal Affairs - Corporate
The Legal Affairs - Corporate sector renders to THE PARTIES the
service consisting in aid to the preparation, analysis and response
to legal briefs, agreements, official letters, etc. In addition, it
renders to THE PARTIES the service consisting in managing their
assets’ coverage by negotiating, acquiring and monitoring
insurance policies, dealing with claims in terms of coverage,
collection, etc.
Technical, Infrastructure and Services
The Technical, Infrastructure and Services sector renders to THE
PARTIES the services consisting in operation, maintenance and
preservation of real estate assets and land reserves of the
Companies.
Purchases and Hirings
The Purchases and Hirings sector renders to THE PARTIES the
services consisting in procuring the most appropriate goods and/or
service for the purpose for which they will be used. Quality, costs
and terms of delivery are essential when taking the decision to
hire. In addition, this sector deals with the necessary means to
obtain appropriate funding of the purchases from
suppliers.
Proceedings and Permits
The Proceedings and Permits sector renders to IRSA and IRSA PC the
service consisting in management of national and municipal permits
and licenses before the controlling entities.
Corporate Environment
The Corporate Environment Sector assesses the environmental impact
of projects and activities in order to define preventive and
corrective actions. This sector seeks to minimize potential
impacts, following the working methodology set forth in an
Environmental Management System. This area also manages the
environmental records that are required by operation of
law.
Investments
The Investments sector renders to IRSA and IRSA PC the services
consisting in sales and acquisitions of real estate. In addition,
it renders to such companies, services consisting in real estate
business’ office commercial management and Architecture and
Design, and Works Development.
Governmental Affairs
The Governmental Affairs sector takes part in the businesses of
IRSA and IRSA PC arising from governmental grants (exploitation
concessions and private initiatives).
Hotels
The Hotels sector renders to IRSA the services consisting in the
integration of the different areas of hotels along with their
business relations. It carries out activities to optimize and
control hotels’ management and organization.
Bolívar
Bol’var includes the employees performing activities of
support and assistance to the Parties’ Board of
Directors.
Real Estate Business Board of Directors to be
Distributed
The Real Estate Business Board of Directors to be Distributed
sector includes the employees performing activities of support and
assistance to the Board of Directors of IRSA and
IRSAPC.
Attorneys-in-Fact
The Attorneys-in-Fact sector groups the employees who perform
activities consisting in representing THE PARTIES before different
governmental agencies.
General Management Department to be Distributed
The General Management Department to be Distributed sector includes
employees performing activities of support and assistance to the
Parties’ General Management Departments.
Board of Directors’ Safety
The Board of Directors’ Safety sector renders to the Parties
the service consisting in comprehensive safety for the main
officers acting in their Board of Directors.
Real Estate Business Management
The Real Estate Business Management sector renders the following
services to IRSA and IRSAPC: budget and management control,
accounting and reporting, analysis of new businesses, IT support to
shopping centers, marketing and leadership agreements for the
business legal aspects.
Real Estate Business HHRR
The Real Estate Business HHRR sector renders to IRSA and IRSAPC the
service consisting in Human Resource Administration; Human Resource
Management; Workplace Safety, Hygiene and Environment;
Organizational Culture Management and Project Management. The main
sector activities include, among others: personnel management,
recruitment and training, compensation and benefits, internal
communication, etc.
Fraud Prevention
The Fraud Prevention sector renders to THE PARTIES corporate Fraud
Prevention services.
Exhibit II
Cost Distribution Bases
|
Corporate
Departments
|
Department
|
Division
/ Subdivision
|
Distribution
Method
|
|
Corporate Human Resources
|
Human
Resources Management
|
|
By
headcount (non-corporate personnel) and weighting the percentages
of other areas (corporate personnel).
|
|
|
Culture
Management
|
|
|
|
|
Administration
and Labor Relations
|
|
|
|
Administration and Finance
|
Finance
Department
|
|
The
percentages of all the sectors making up the area are
weighted.
|
|
Capital
Markets
|
|
Capital Markets: Amount of financial transactions conducted
in the period weighted at 70% and the remaining 30% corresponds to
updates of offering memoranda and “horizontal” works
(20F, annual reports, Press Release, etc.)
|
|
|
Relations
with Investors
|
|
Investors Relations: Number of business highlights during
the semester, number of earnings releases, number of meetings with
investors (current or potential) to discuss the companies’
business and strategy, number of active coverages, number of
earnings release conferences, the complexity of the website of each
company, number of material events published in the Argentine
Securities Commission and the US Securities and Exchange
Commission, and number of Roadshows (Deal or Non-Deal). All items involved are weighted in equal
parts.
|
|
|
Financial
Risk
|
|
Financial Risk: Time invested in the duties
performed.
|
|
|
Financial
Administration
|
|
Financial Administration: Total assets weighted at 40% and
total liabilities weighted at 60%. The resulting percentage shall
be weighted at 80% over the total. The remaining 20% will
correspond to the percentage that each company consummates over the
total inquiries for special transactions.
|
|
Corporate
Departments
|
Department
|
Division
/ Subdivision
|
Distribution
Method
|
|
|
Corporate
Tax
|
|
Salaries
are weighted by position and by tasks performed (by company and in
equal parts)
|
|
|
Corporate
Accounting and Reporting
|
|
Tasks
performed and time invested in each.
|
|
Planning
|
Planning
Department
|
|
Each
one of the sectors making up the area is weighted.
|
|
Corporate
Budget and Management Control
|
|
Overhead
expenses for the previous half year are pro-rated.
|
|
|
Strategic
Analysis
|
|
Tasks
performed and the time spent in each.
|
|
|
Institutional Relations
|
|
|
Tasks
performed and the time spent in each.
|
|
Compliance
|
Compliance
Department
|
|
Each
one of the sectors making up the Area is weighted.
|
|
Internal
Audit
|
|
Time
estimated/projected in the annual plan.
|
|
|
Information
security
|
|
Time
spent in each task is weighted
|
|
|
Internal
Control
|
|
Distribution
of key control % per front / company
|
|
|
Corporate
Governance
|
|
Weighting
of tasks performed.
|
|
|
Shared Services Center (CSC)
|
CSC Department
|
|
The
percentage corresponding to each sector falling within the scope of
the CSC area is weighted on the basis of the impact exerted by the
relevant sector’s projected salaries on the total salaries of
the CSC.
|
|
Revenues
Administration
|
|
Number
of Revenue Transactions performed for each Company + Direct
Allocation of Resources
|
|
|
Expenses
Administration
|
|
Number
of Expense Transactions performed for each Company + Direct
Allocation of Resources
|
|
|
Customer
Administration
|
|
Direct
Allocation of Resources
|
|
|
Collections
Administration
|
|
Direct
Allocation of Resources
|
|
|
Treasury
Administration
|
|
Number
of Treasury Transactions performed by each Company.
|
|
|
Own
Account Administration
|
|
Number
of Transactions performed by each Company.
|
|
|
Technology
|
|
Weighting
of time spent in each task (related to the services).
|
|
|
IT
Services
|
|
Number
of CASTI incidents processed for each Company.
|
|
|
Master
Data
|
|
Number
of Transactions processed by each Company.
|
|
|
Systems
and Applications
|
|
Hours
devoted to each task.
|
|
|
Project
Systems
|
|
Hours
devoted to each task.
|
|
|
Commercial
Transactions
|
|
Hours
devoted to each task.
|
|
|
Data
Management
|
|
Hours
devoted to each task.
|
|
|
Process
Quality
|
|
Weighting
of time spent in each task.
|
|
|
CSC
Human Resources
|
|
50%
weighting of % of CSC sectors; 50% weighting of Corporate
sectors.
|
|
|
Errand
Running Service
|
|
Number
of errands run.
|
|
|
Back
office
|
|
Hours
spent in each task.
|
|
|
General
Services
|
|
Hours
spent in each task.
|
|
|
Administrative
operations
|
|
The
percentage of each sector served is weighted.
|
|
|
Services
Control
|
|
Number
of documents controlled by company
|
|
|
CSC
Taxes
|
|
Salaries
are weighted by position and by tasks performed (by company and in
equal parts)
|
|
|
Real Estate Business Management
|
Real
Estate Business Department
|
|
Each of
the Departments comprising the Area is weighted. It does not render
services to Cresud.
|
|
Real
Estate Business Analysis
|
|
Hours
devoted to reviewed projects as applicable to IRSA PC or
IRSA.
|
|
|
Real
Estate Legal Affairs
|
|
Weighting
of hours and salaries.
|
|
|
Real
Estate Budget and Management Control
|
|
Actual
revenues per company.
|
|
|
Real
Estate Business Accounting and Reporting
|
|
Number
of Real Estate Business accounting vouchers.
|
|
|
|
Real
Estate Business IT Services
|
|
100%
IRSA PC
|
|
Real Estate Business Board of Directors to be
Distributed
|
|
|
Proportional
between IRSA and IRSAPC. Excludes Cresud.
|
|
Real Estate Business HHRR
|
|
|
By
payroll
|
|
Safety
|
|
|
Per
hour
|
|
Legal Affairs - Corporate
|
|
|
Weighted
between number of minutes analyzed and premium amount of the annual
insurance program.
|
|
Corporate
Departments
|
Department
|
Division
/ Subdivision
|
Distribution
Method
|
|
Corporate Environment and Quality
|
|
|
Tasks
performed and time devoted to them.
|
|
Technical, Infrastructure and Services
|
Technical,
Infrastructure and Services
(IRSAPC
– IRSA: Weighted average from the Departments reporting to it
less the percentage allocated to CRESUD. CRESUD: a percentage is
calculated based on the hours spent in the tasks
performed/planned)
|
Technical,
Infrastructure and Services Department
|
An
average is calculated of the departments reporting to
it
|
|
Planning
and Control
|
By
allocation of resources
|
||
|
Logistics
|
Weighted
between directly assigned personnel and centralized personnel
distributed per square meter of the real property (IRSA and IRSAPC)
and time spent in tasks (CRESUD).
|
||
|
Distributed
Operations
|
Square
meters of real property held, operated and to which maintenance
services are provided (IRSA and IRSAPC) and time spent in tasks
(CRESUD).
|
||
|
Third
parties' services
|
Distribution
of resource allocation.
|
||
|
Traveling
Personnel
|
Maintenance
hours (IRSA and IRSAPC) and time spent in tasks
(CRESUD).
|
||
|
Engineering
and Maintenance
|
Square
meters of real property held, to which maintenance, engineering and
other services are provided (IRSA and IRSAPC) and time spent in
tasks (CRESUD).
|
||
|
Buildings
Personnel To be distributed
|
|
By
number of buildings in each company.
|
|
|
Purchases and Hirings
|
|
|
Purchase
orders through a weighting of their volume and amount.
|
|
Proceedings and Permits
|
|
|
Tasks
performed and time spent in each
|
|
Investments
|
Real Estate
|
|
By
total book value of the properties in each company.
|
|
Rentals – Offices
|
|
By
total book value of the properties in each company
|
|
|
Architecture and Design and Works Development
|
Architecture
and design
|
IRSA/IRSAPC:
Personnel distributed per surface area and number of
stores.
|
|
|
Works
development
|
Tasks
performed and time spent in each.
|
||
|
Governmental Affairs
|
|
|
Weighting
of allocated projects.
|
|
Hotels
|
|
|
100%
IRSA.
|
|
Fraud Prevention
|
|
|
Proportional
among the three companies.
|
|
Bolívar
|
|
|
Proportional
among the three companies.
|
|
Attorneys-in-fact
|
|
|
Proportional
among the three companies.
|
|
Audit Committee
|
|
|
Weighting
of tasks performed.
|
|
Board of Directors’ Safety
|
|
|
Proportional
among the three companies.
|
THIS DOCUMENT IS A TRUE AND
ACCURATE TRANSLATION into English of the document in Spanish
I have had before me in Buenos Aires, on this 17th day of September,
2018.
[For authentication purposes
only:]
ES TRADUCCIÓN FIEL xx
xxxxxx del documento adjunto redactado en español que he
tenido ante m’ y al cual me remito en Buenos Aires, a los 17
d’as de septiembre de 2018.
