DRAFT OF THE LIMITED GUARANTEE (TO BE EXECUTED ON THE AUCTION DATE)

Transcription

1 DRAFT OF THE LIMITED GUARANTEE (TO BE EXECUTED ON THE AUCTION DATE) This LIMITED GUARANTEE is dated as of [Auction Date] (this Limited Guarantee ), and is by each of Blackstone Capital Partners V L.P., a Delaware limited partnership and Blackstone Capital Partners (Cayman) V L.P., a Cayman Islands exempted limited partnership (each, a Guarantor and collectively, the Guarantors ), in favor of the minority shareholders registered in the Tender Offer who validly receive the Tender Offer Price (the Guaranteed Parties ). Except if expressly defined in this Limited Guarantee, capitalized terms not defined herein shall have the meaning ascribed to them in the Tender Offer Notice of Companhia Providência Indústria e Comércio. 1. Limited Guarantee. Each of the Guarantors, intending to be legally bound, hereby absolutely, irrevocably and unconditionally guarantees to the Guaranteed Parties, on the terms and subject to the conditions set forth herein, the due and punctual payment, within a period of five (5) Business Days after the receipt of the relevant notice by the Collection Agent (as defined below) regarding the default of each and every portion of the Deferred Purchase Price due by the Offeror to the Guaranteed Parties under the Tender Offer (the Obligations ). For the avoidance of doubt, the Obligations include solely the guarantee of the payment of the Deferred Purchase Price and not the other portions of the Tender Offer Price, nor do they include any guarantee of payment of the Alternative Price. In no event shall the Guarantor s aggregate liability under this Limited Guarantee to the Guaranteed Parties exceed US$[amount to be determined at the Auction Date, depending on the number of minority shareholders that decide to tender their shares for the Tender Offer Price] (the Cap ). In the event the Offeror pays any portion of the Obligations, the amount of the Cap will automatically be reduced by the amount of any such payment. All payments hereunder shall be made in lawful money of Brazil, by means of interbank wire transfer of immediately available funds - TED in favor of the Collection Agent in a bank account designated by it in a notice delivered to the Guarantor at least one (1) Business Day in advance when the payment is due. This Limited Guarantee shall become effective as of the Settlement Date. 2. Nature of Guarantee. The Guaranteed Parties shall not be obligated to file any claim relating to the Obligations in the event that the Offeror becomes subject to a bankruptcy, reorganization or similar proceeding, and the failure of the Guaranteed Parties to so file shall not affect the Guarantor s obligations hereunder. In the event that any payment to the Guaranteed Parties in respect of the Obligations is rescinded or must otherwise be returned, for any reason whatsoever (other than as set forth in the last sentence of Section 8 hereof), the Guarantor shall remain liable hereunder with respect to the Obligations as if such payment had not been rescinded or returned. This Limited Guarantee is an unconditional guarantee of payment and not of collection.

2 3. Changes in Obligations, Certain Waivers. Each of the Guarantors agree that its obligations hereunder shall not be released or discharged, in whole or in part, or otherwise affected by (a) the failure or delay on the part of the Guaranteed Parties to assert any claim or demand or to enforce any right or remedy against the Offeror; (b) any change in the time, place or manner of payment of any of the Obligations or any rescission, waiver, compromise, consolidation or other amendment to or modification of any of the terms or provisions of the Tender Offer Notice made in accordance with the terms thereof or any other agreement evidencing, securing or otherwise executed in connection with any of the Obligations; (c) any insolvency, bankruptcy, reorganization or other similar proceeding affecting the Offeror, or any other Person now or hereafter liable with respect to any of the Obligations or otherwise interested in the transactions contemplated by the Tender Offer Notice. 4. No Waiver; Cumulative Rights. No failure on the part of the Guaranteed Parties to exercise, and no delay in exercising, any right, remedy or power hereunder shall operate as a waiver thereof; nor shall any single or partial exercise by any Guaranteed Party of any right, remedy or power hereunder preclude any other or future exercise of any right, remedy or power hereunder. Each and every right, remedy and power hereby granted to the Guaranteed Parties shall be cumulative and not exclusive of any other right, remedy or power, and may be exercised by the Guaranteed Parties at any time or from time to time. The Guaranteed Parties shall not have any obligation to proceed at any time or in any manner against, or exhaust any or all of the Guaranteed Parties rights against, the Offeror prior to proceeding against the Guarantors hereunder. For the avoidance of doubt, and notwithstanding anything to the contrary contained herein, the Guaranteed Parties expressly hereby acknowledge that the only manner in which the Guaranteed Parties can obtain any form of money damages or other remedy against the Guarantors or any of their affiliates (other than the Offeror) is pursuant to the express provisions of this Limited Guarantee. 5. Representations and Warranties. Each of the Guarantors hereby represents and warrants that: (a) the execution, delivery and performance of this Limited Guarantee have been duly and validly authorized by all necessary action, and do not contravene any provision of either Guarantor s charter, partnership agreement, operating agreement or similar organizational documents or any legal requirement, regulation, rule, decree, order, judgment or contractual restriction binding on either Guarantor or its assets; (b) all consents, approvals, authorizations, permits of, filings with and notifications to any Governmental Authority necessary for the due execution, delivery and performance of this Limited Guarantee by each Guarantor have been obtained or made and all conditions thereof have been duly complied with, and no other action by, and no notice to or filing with, any Governmental Authority or regulatory body is required in connection with the execution, delivery or performance of this Limited Guarantee;

3 (c) this Limited Guarantee constitutes a legal, valid and binding obligation of each Guarantor enforceable against each Guarantor in accordance with its terms, subject to (i) the effects of bankruptcy, insolvency, fraudulent conveyance, reorganization, moratorium or other similar legal requirements affecting creditors rights generally, and (ii) general equitable principles (whether considered in a proceeding in equity or at law); and (d) each of the Guarantors has the financial capacity to pay and perform its obligations under this Limited Guarantee, and all funds necessary for such Guarantor to fulfill its obligations under this Limited Guarantee shall be available to each Guarantor (or its permitted assignee pursuant to Section 6 hereof) for so long as this Limited Guarantee shall remain in effect in accordance with Section 8 hereof; and (e) under each Guarantor s Limited Partnership Agreement, other applicable governing documents and applicable law, each Guarantor cannot complete a dissolution and winding up of its affairs while any of its obligations, including the obligations hereunder, are outstanding. 6. No Assignment. This Limited Guarantee may not be assigned by either Guarantor or any Guaranteed Party (except by operation of applicable law) without the prior written consent of the other party. Any attempted assignment in violation of this section shall be null and void. 7. Notices. All notices, requests, claims, demands and other communications hereunder shall be in writing, in English, and shall be delivered in person, by recognized international courier service, by registered mail, by facsimile transmission or (in all cases with written confirmation of receipt), as follows: if to the Guarantor: c/o The Blackstone Group 345 Park Avenue New York, NY Attn.: Jason Giordano Giordano@Blackstone.com with a copy to (which alone shall not constitute notice): and Machado Meyer Sendacz Opice Advogados Av. Brigadeiro Faria Lima, 3144, 11th floor , São Paulo, SP Attn.: Carlos José Rolim de Mello and Guilherme Malouf crolim@machadomeyer.com.br; gmalouf@machadomeyer.com.br

4 Simpson Thacher & Bartlett LLP Av. Presidente Juscelino Kubitschek, 1455, 12th floor Attn.: Peter Martelli and Grenfel S. Calheiros if to the Guaranteed Parties, by means of the Collecting Agent: Citibank, N.A. Agency & Trust 388 Greenwich Street, 14 th Floor New York, NY Attn.: Patricia Gallagher 8. Continuing Guarantee. Except as set forth below, this Limited Guarantee may not be revoked or terminated and shall remain in full force and effect and shall be binding on each Guarantor, its successors and permitted assigns until the Obligations payable under this Limited Guarantee have been paid in full. Notwithstanding the foregoing, this Limited Guarantee shall terminate and each Guarantor shall have no further obligations under this Limited Guarantee as of the earliest to occur of (i) the date Obligations equal to the Cap have been paid in full, (ii) at the sole discretion of the Guarantors, the deposit of an amount equal to the remaining Deferred Purchase Price, adjusted pursuant to the Tender Offer Notice through the date of such deposit, into an escrow account to support the Obligations pursuant to an escrow agreement in form and substance similar to the Escrow Agreement executed in connection with the Tender Offer Notice (iii) the obtaining of a letter of credit or bank guaranty, provided, however, that, any commercial bank listed in Schedule A hereto shall be deemed to be a commercial bank that satisfies the requirements of this Section 8; and (iv) 11:59 p.m. on the Outside Date (defined below), so long as the Guarantors shall have previously taken such actions described in clause (ii) or (iii) above prior to such time. Notwithstanding the foregoing, in the event that the Guaranteed Parties or any of their respective affiliates or their respective successors and assigns asserts in any litigation or other proceeding that the provisions of Section 1 hereof limiting the Guarantors liability to the Cap or that any other provisions of this Limited Guarantee are illegal, invalid or unenforceable in whole or in part, or asserting any theory of liability against the Guarantors or any affiliates (other than the Offeror) of the Guarantor with respect to the transactions contemplated by the Tender Offer Notice other than liability of the Guarantors under this Limited Guarantee (as limited by the provisions of Section 1), then (i) the obligations of the Guarantors under this Limited Guarantee shall terminate ab initio and shall thereupon be null and void and (ii) if any Guarantor has previously made any payments under this Limited Guarantee, it shall be entitled to recover such payments from the Guaranteed Parties. Formatted: Indent: Left: 1.48" Formatted: Font: Not Bold Deleted: Oliveira Trust Rua Joaquim Floriano, 1052, 13th floor Sala 132 Edifício Bertolucci, Itaim Bibi, , São Paulo, SP Attn.: Michel Camargo sqescrituracao@oliveiratrust.com.br Av. das Américas, 500 Bl. 13 Gr. 205 Cond. Downtown, Barra da Tijuca, , Rio de Janeiro, RJ Attn.: Hígor Barbosa ou Mauricio sqescrituracao@oliveiratrust.com.b r Formatted: Portuguese (Brazil)

5 Outside Date means the earlier of (i) twelve months after the Fund Termination Date and (ii) the date of the winding up and liquidation of either Guarantor, provided that such date shall be deemed to occur on the date that the only remaining assets or liabilities (contingent or otherwise, including under this Limited Guarantee), of such Guarantor relate to the Company. Fund Termination Date means (i) December 31, 2016 or (y) if later, the date that the term of each Guarantor as may be extended pursuant to its limited partnership agreement, expires, it being agreed and understood that such term shall not include any period after the commencement of the dissolution, winding up or termination of a Guarantor. 9. No Recourse. Notwithstanding anything that may be expressed or implied in this Limited Guarantee or any document or instrument delivered in connection herewith, by its acceptance of the benefits of this Limited Guarantee, each of the Guaranteed Parties covenants, agrees and acknowledges that no Person other than Guarantor has any liabilities, obligations, commitments (whether known or unknown or whether contingent or otherwise) hereunder and that, notwithstanding that Guarantor or its general partner may be a partnership or limited liability company, the Guaranteed Parties have no right of recovery under this Limited Guarantee, or any claim based on such liabilities, obligations, commitments against, and no personal liability shall attach to, the former, current or future equity holders, controlling persons, directors, officers, employees, agents, affiliates, members, managers or general or limited partners of any of Guarantor or the Buyer or any former, current or future stockholder, controlling person, director, officer, employee, general or limited partner, member, manager, affiliate (other than the Offeror) or agent of any of the foregoing (collectively, but not including the Offeror, each a Non-Recourse Party ), through the Offeror or otherwise, whether by or through attempted piercing of the corporate veil, by or through a claim by or on behalf of the Buyer against any Non-Recourse Party, by the enforcement of any assessment or by any legal or equitable proceeding, by virtue of any statute, regulation or otherwise. Each Guaranteed Party further covenants, agrees and acknowledges that the only rights of recovery that such Guaranteed Parties has in respect of the Tender Offer Notice or the transactions contemplated thereby are its rights to recover from the Offeror under and to the extent expressly provided in the Tender Offer Notice and its right to recover from each Guarantor (but not any Non-Recourse Party) under and to the extent expressly provided in this Limited Guarantee and subject to the Cap and the other limitations described herein. Recourse against each Guarantor under and pursuant to the terms of this Limited Guarantee shall be the sole and exclusive remedy of the Guaranteed Parties and all of their affiliates, against each Guarantor and the Non-Recourse Parties in respect of any liabilities or obligations arising under, or in connection with the Tender Offer Notice or the transactions contemplated thereby, including by piercing of the corporate veil or by a claim by or on behalf of the Offeror. Each Guaranteed Party hereby covenants and agrees that it shall not institute, and it shall cause its affiliates not to institute, any proceeding or bring any other claim arising under, or in connection with the Tender Offer Notice or the transactions contemplated thereby, against each Guarantor or any Non-Recourse Party except for claims against each Guarantor under this Limited Guarantee.

6 10. Governing Law; Submission to Jurisdiction; Waiver of Jury Trial. (a) This Limited Guarantee shall be construed and interpreted in accordance with the laws of the State of New York. The courts sitting in the Borough of Manhattan of the City of New York, New York, are hereby elected by the Parties as the courts with jurisdiction to settle any dispute arising out of this Limited Guarantee. EACH OF THE PARTIES IRREVOCABLY AND UNCONDITIONALLY WAIVES ANY OBJECTION TO THE LAYING OF VENUE OF ANY ACTION, SUIT OR PROCEEDING ARISING OUT OF OR RELATING TO THIS AGREEMENT OR THE TRANSACTIONS CONTEMPLATED HEREBY IN THE COURTS SITTING IN THE BOROUGH OF MANHATTAN OF THE CITY OF NEW YORK, NEW YORK AND WAIVES ANY CLAIM THAT SUCH SUIT OR PROCEEDING HAS BEEN BROUGHT IN AN INCONVENIENT FORUM. (b) EACH PARTY ACKNOWLEDGES AND AGREES THAT ANY CONTROVERSY WHICH MAY ARISE UNDER THIS AGREEMENT IS LIKELY TO INVOLVE COMPLICATED AND DIFFICULT ISSUES AND, THEREFORE, EACH SUCH PARTY IRREVOCABLY AND UNCONDITIONALLY WAIVES ANY RIGHT IT MAY HAVE TO A TRIAL BY JURY IN RESPECT OF ANY LEGAL ACTION ARISING DIRECTLY OR INDIRECTLY OUT OF OR RELATING TO THIS AGREEMENT OR THE TRANSACTIONS CONTEMPLATED HEREBY. EACH PARTY TO THIS AGREEMENT CERTIFIES AND ACKNOWLEDGES THAT (A) NO REPRESENTATIVE OF ANY OTHER PARTY HAS REPRESENTED, EXPRESSLY OR OTHERWISE, THAT SUCH OTHER PARTY WOULD NOT SEEK TO ENFORCE THE FOREGOING WAIVER IN THE EVENT OF A LEGAL ACTION, (B) SUCH PARTY HAS CONSIDERED THE IMPLICATIONS OF THIS WAIVER, (C) SUCH PARTY MAKES THIS WAIVER VOLUNTARILY, AND (D) SUCH PARTY HAS BEEN INDUCED TO ENTER INTO THIS AGREEMENT BY, AMONG OTHER THINGS, THE MUTUAL WAIVERS AND CERTIFICATIONS IN THIS SECTION Counterparts. This Limited Guarantee may be executed in any number of counterparts (including by facsimile), each such counterpart when executed shall be deemed to be an original instrument, and all such counterparts shall together constitute one and the same agreement. 12. Collection Agent. Each of the Guaranteed Parties hereby agrees to irrevocably and irretrievably appoint and authorize and constitute as its lawful attorneyin-fact CITIBANK, N.A., a national banking association organized and existing under the laws of the United States of America (the Collection Agent ) to enter into and to act as their agent and attorney-in-fact in connection with this Limited Guarantee and to perform all such actions in the capacity of agent on their behalf and to exercise such powers as provided in this Limited Guarantee. Without limiting the generality of the foregoing, each of the Guaranteed Parties hereby grants to the Collection Agent powers to, in accordance with the terms and conditions hereof, exercise any and all Guaranteed Parties rights hereunder, to collect the Obligations, to give receipts and releases, to settle, to waive rights, to novate, to agree on terms and to receive service of process in connection to the Limited Guarantee and to bring suit on behalf of the Guaranteed Parties in connection with this Limited Guarantee. Deleted: s Deleted: [ ]

7 13. No Third Party Beneficiaries. Except as provided in Section 9 hereof, the parties hereby agree that their respective representations, warranties and covenants set forth herein are solely for the benefit of the other party hereto and its successors and permitted assigns, in accordance with and subject to the terms of this Limited Guarantee, and this Limited Guarantee is not intended to, and does not, confer upon any Person other than the parties hereto and their respective successors and permitted assigns any rights or remedies hereunder, including, the right to rely upon the representations and warranties set forth herein. 14. Service of Process. Each Guarantor irrevocably consents and agrees to the service of any and all legal process, summons, notices and documents out of any of the aforesaid courts in any such action, suit or proceeding by hand delivery to it at the address set forth above in Section 7 or to any other address of which each Guarantor shall have given notice pursuant to Section 7. Service upon each Guarantor as provided for herein will, to the fullest extent permitted by law, constitute valid and effective personal service upon it. 15. Miscellaneous. (a) Any term or provision hereof that is prohibited, invalid or unenforceable in any situation in any jurisdiction shall be, as to such jurisdiction, ineffective solely to the extent of such prohibition, invalidity or unenforceability without invalidating the remaining provisions hereof, and any such prohibition or unenforceability in any situation in any jurisdiction shall not invalidate or render unenforceable such provision in any other jurisdiction; provided, however, that this Limited Guarantee may not be enforced without giving effect to the limitation of the amount payable hereunder to the Cap provided in Section 1 hereof and the provisions of Section 8, Section 9 and this Section 15(a) hereof. (b) The descriptive headings herein are inserted for convenience of reference only and are not intended to be part of or to affect the meaning or interpretation of this Limited Guarantee. [SIGNATURE PAGES START ON THE NEXT PAGE]

8 [Signature Page of the Limited Guarantee executed by Blackstone Capital Partners V L.P. and by Blackstone Capital Partners (Cayman) V L.P. on [ ] [ ], 2015] Blackstone Capital Partners V L.P. Blackstone Capital Partners (Cayman)