EIGHTH AGREEMENT FOR THE IMPLEMENTATION OF
TRADUCCIÓN PÚBLICA
SWORN TRANSLATION
EIGHTH
AGREEMENT FOR THE IMPLEMENTATION OF
AMENDMENTS
[Except
for the signature page, all the pages that make up the source
document in Spanish carry six illegible initials.]
Agreement made in
the Autonomous City of Buenos Aires on the 12th day of November of
2015 by and between:
(i)
CRESUD S.A.C.I.F. y A.,
domiciled at ▇▇▇▇▇▇ 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 ▇▇▇▇▇▇ 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 Bolívar 108, Piso
1º in the Autonomous City of Buenos Aires and having
established domicile for purposes hereof at ▇▇▇▇▇▇ 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;
1
(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)
THE PARTIES have implemented the Master Agreement based on an
Implementation Manual updated by Deloitte & Co. S.R.L.,
(hereinafter “Deloitte”) on February 11,
2008;
(viii)
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 on June 11, 2015, which THE PARTIES
wish to acknowledge in writing;
(ix)
THE PARTIES have disclosed the content of the EIGHTH AGREEMENT FOR THE IMPLEMENTATION OF
AMENDMENTS TO THE CORPORATE SERVICES MASTER AGREEMENT
(hereinafter the “Eighth Agreement”) to their
respective Audit Committees; and
(x) The
Board of Directors of IRSAPC, CRESUD and IRSA approved the Eighth
Agreement at the meeting held on November 12, 2015;
NOW IN CONSIDERATION OF THE FOREGOING,
THE PARTIES hereby agree to execute this Eighth Agreement subject
to the following terms and conditions:
2
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 2014, in relation to the Finance Area, a decision
was made (a) to exclude the Planning Department for it to be
incorporated into the Areas of Exchanges; and (b) to modify its
distribution method, thereby introducing changes into Exhibit I and
Exhibit II in a manner such that as from July 2014 the components
of said method shall be as detailed in new Exhibit I and Exhibit
II.
(ii)
Starting in July 2014, a decision was made to exclude the Shared
Services Center Department from the Administration and Control Area
and for the Shared Services Center Department to become covered by
the Areas of Exchange. In addition, as from July 2014 a decision
was made to change the distribution method of the Master Data
Sector.
In
January 2015 and in connection with the Shared Services Center
Area, there were two additions, namely: (a) the Back Office sector
was added and (b) the General Services sector was
added.
As a
result of the decision adopted in this clause, it was further
decided to modify Exhibit I and Exhibit II such that as from
January 2015 they shall be made up as detailed in the new Exhibit I
and Exhibit II.
(iii)
Starting in July 2014 and in connection with the Administration and
Control Area, a decision was made to (a) modify the distribution
method applicable to the Accounting and Reporting Department; (b)
modify the distribution method applicable to the Global Budget and
Management Control Department; and (c) modify the distribution
method applicable to the SOX Regulation Department thereby
modifying Exhibit II which as from that date shall be made up as
detailed in the new Exhibit II.
(iv)
Starting in July 2014, a decision was made to exclude the
Governmental Affairs Department from the Real Estate Area, to
incorporate the Governmental Affairs Department into the Areas of
Exchange and to modify its distribution method. Therefore, Exhibit
I and Exhibit II were amended accordingly so that as from such
date, they shall be made up as detailed in the new Exhibit I and
Exhibit II.
(v)
Starting in July 2014, a decision was made to incorporate the Real
Estate Accounting and Reporting Department into the Real Estate
Management Area. Therefore, Exhibit I and Exhibit II were amended
accordingly so that as from such date, they shall be made up as
detailed in the new Exhibit I and Exhibit II.
(vi)
Starting in July 2014 and in connection with the Human Resources
Area, a decision was made to (a) change the name of the department
known as “Project Management Department”, which shall
from now bear the following designation “Human Resources
Management Department”; (b) change the name of the department
known as “Safety and Hygiene Department”, which shall
from now on bear the following designation “Administration
and Labor Relations Department” and; (c) change the name of
the department known as Project Quality Department, which shall
from now on bear the following designation “Culture
Management Department”. Therefore, Exhibit II was amended
accordingly so that as from such date, it shall be made up as
detailed in the new Exhibit II.
3
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
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 Eighth 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
Eighth 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:] ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ - Attorney-in-fact /
[illegible signature] [Seal:] CRESUD S.A.C.I.F. y A. Agronomic
Engineer ▇▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇ - Attorney-in-fact
IRSA
Inversiones y Representaciones Sociedad
Anónima
[illegible
signature] [Seal:] ▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇▇▇ –
Attorney-in-fact / [illegible signature] ▇▇▇▇▇▇
▇▇▇▇▇▇▇
IRSA
Propiedades Comerciales S.A.
[illegible
signature] [Seal:] ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇ Attorney-in-fact / [illegible
signature][Seal:] ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇, Attorney-in-fact.
4
Exhibit I
Description of Corporate Services Areas of
Exchanges
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
communication, etc.
Finance
The Finance sector renders to THE PARTIES the service consisting in
Investor Relations, Capital Markets, Financial Risk, Management of
Financial Transactions, Financial Analysis.
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 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 and marketing actions, relations with the media,
preparation of articles, brochures and related
activities.
Administration and Control
The Administration and Control sector is responsible for the
PARTIES’ management control, budget of structure expenses,
and SOX controls.
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.
Insurance
The Insurance sector is in charge of managing THE PARTIES’
assets’ coverage by negotiating, acquiring and monitoring
insurance policies, dealing with claims in terms of coverage,
collection, etc.
Safety
The Safety sector renders to THE PARTIES the surveillance
service.
Contracts
The Contracts sector renders to THE PARTIES the service consisting
in aid to the preparation, analysis and response to legal briefs,
agreements, official letters, etc.
Technical, Infrastructure and Services, Architecture and Design,
and Works Development
5
The Technical, Infrastructure and Services, Architecture and
Design, and Works Development sector renders to THE PARTIES the
services consisting in operational coordination of the following
sectors: Architecture and Design; Works Development; and Technical,
Infrastructure and Services.
Purchases and Hirings
The Purchases and Hirings sector bears the responsibility of
obtaining the most appropriate goods and/or services 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.
Environment and Quality
The Environment and Quality sector renders to the PARTIES the
services consisting in management of national and municipal permits
and licenses before the controlling entities. In addition, it
assesses the environmental impact of projects and activities in
order to define preventive and corrective actions for minimizing
such impacts, following the working methodology set forth in an
Environmental Management System.
Real Estate
The Real Estate sector renders to THE PARTIES the services
consisting in sales and acquisitions of real estate, except for
real estate assigned to the agricultural business.
Governmental Affairs
The Governmental Affairs sector takes part in the businesses
arising from governmental grants (exploitation concessions and
private initiatives).
Hotels
The Hotels sector renders to THE PARTIES 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.
Board of Directors to be Distributed
The Board of Directors to be Distributed sector 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.
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.
Audit Committee
The Audit Committee sector includes the employees performing tasks
of support and assistance to THE PARTIES' Audit
Committees.
6
Real Estate Business Management
The Real Estate Business Management sector renders the following
services to IRSA and IRSAPC: budget and control management,
accounting and reporting, analysis of new businesses, analysis of
the business clients’ credit risk, 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, third party control, etc.
Fraud Prevention
The Fraud Prevention sector renders to THE PARTIES corporate Fraud
Prevention services.
Internal Audit
The Internal Audit sector renders to THE PARTIES internal audit
services.
7
Exhibit II
Cost Distribution Bases
|
Corporate
Departments
|
Department
|
Division /
Subdivision
|
Distribution
Method
|
|
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
|
| |
|
Finance
|
Capital
Markets
|
|
Weighting is as
follows:
Capital
Markets 25%
Relations with
Investors 25%
Financial Analysis
12.5%
Financial Risk
12.5%
Financial
Administration 25%
Investors Relations: Number of business
highlights during the semester, number of result announcements,
number of meetings with investors (current or potential) to discuss
the companies’ business and strategy, number of active
coverages, number of result conferences, the complexity of the
website of each company, number of relevant facts published in the
Argentine Securities and Exchange Commission and the US Securities
and Exchange Commission, and number of Roadshows (Deal or Non-Deal). All items involved are weighted in equal
parts.
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.)
Financial Risk: Time invested in the
duties performed.
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.
Financial Analysis: Time devoted to the
tasks performed.
|
|
Relations with
Investors
|
| ||
|
Financial
Risk
|
| ||
|
Financial
Administration
|
| ||
|
Financial
Analysis
|
| ||
|
Planning
|
|
|
Proportional among
the three companies.
|
|
Institutional
Relations
|
|
|
Tasks
performed and the time spent in each.
|
8
|
Administration and Control Each one of
the sectors comprising the Department is weighted.
|
Accounting and
Reporting
|
|
Tasks
conducted and hours spent in each task
|
|
Taxes
|
|
Salaries are
weighted according to the position and tasks performed (per company
and in equal shares)
| |
|
Budget
and Global Management Control
|
|
The
preceding half year’s structure expenses are
pro-rated.
| |
|
SOX
Regulation
|
|
Distribution of key
control % per front / company
| |
|
Shared
Services Center (CSC)
(The
percentages of all the sectors reporting to the CSC are weighted
according to projected salaries of the sector in question over CSC
total salaries).
|
Expenses
Administration
|
|
Number
of Expense Transactions performed by each Company + Direct
Allocation of Resources
|
|
Revenues
Administration
|
|
Number
of Revenue Transactions performed by 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.
|
|
|
Maintenance
Systems
|
|
Hours
devoted to each task.
|
|
|
Project
Systems
|
|
Hours
devoted to each task.
|
|
|
Commercial
Transactions
|
|
Hours
devoted to each task.
|
|
|
IT
Security
|
|
Weighting of time
spent in 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.
|
|
Real
Estate Business Management
(each
of the Departments comprising the Area are weighted. It does not
render services to Cresud)
|
Real
Estate IT Services
|
|
70%
IRSAPC, 30% to be distributed IRSAPC and IRSA based on supervised
projects.
|
|
Real
Estate Business Analysis
|
|
Hours
devoted to reviewed projects as applicable to IRSA PC or
IRSA.
| |
|
Real
Estate Credit Risk
|
|
Hours
worked for each company.
| |
|
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
|
|
Real
Estate Business accounting voucher weighting.
|
|
Real
Estate Business Board of Directors to be Distributed
|
|
|
Proportional
between IRSA and IRSAPC. Excludes Cresud.
|
|
Real
Estate Business HHRR
|
|
|
Based
on payroll.
|
|
Insurance
|
|
|
Based
on the amount of premiums under the annual insurance
program.
|
|
Safety
|
|
|
Per
hour
|
|
Contract
Department
|
Contracts
|
|
Number
of contracts executed.
|
|
Technical,
Infrastructure and Services, Architecture and Design, and Works
Development Department
An
average is obtained from the Departments reporting to
it
|
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)
|
Planning and
Control
|
Weighted average of
the areas under the supervision of the TIS Department of IRSA and
IRSAPC, excluding CRESUD.
|
|
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).
| ||
|
Architecture
|
IRSA/IRSAPC:
Personnel distributed per surface area and number of
stores.
| ||
|
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).
| ||
|
Works
Development
|
|
Tasks
performed and time spent in each.
| |
|
Architecture and
Design
|
|
Completed
projects.
| |
|
Purchases
and Hirings
|
|
|
Weighted volume and
amounts of purchase orders.
|
|
Environment
and Quality
|
|
|
The
distribution of corporate costs of the Environment, Farming Quality
and Standardization area will be made according to the hours
devoted to each global topic by person and company during the
period.
|
|
Real
Estate
|
|
|
Tasks
performed and time spent in each.
|
|
Governmental
Affairs
|
|
|
Weighting of
allocated projects.
|
|
Hotels
|
|
|
100%
IRSA.
|
|
Internal
Audit
|
|
|
Times
estimated/forecast in the annual plan.
|
|
Fraud
Prevention
|
|
|
Proportional among
the three companies
|
|
Board
of Directors to be Distributed
|
|
|
Proportional among
the three companies
|
|
Audit
Committee
|
|
|
Weighting of tasks
performed.
|
|
General
Management Department to be Distributed
|
|
|
Proportional among
the three companies
|
|
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 27th day of September,
2016.
[For authentication purposes
only:]
ES TRADUCCIÓN FIEL ▇▇
▇▇▇▇▇▇ del documento adjunto redactado en idioma ▇▇▇▇▇▇▇▇▇▇
que he tenido ante mí y al cual me remito en Buenos Aires, a
los ▇▇ ▇▇▇▇ ▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇ ▇▇▇▇.
9