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06 – Proposal Extension of

the Cooperation and

Support Agreement

 

 

 

NINTH AMENDMENT 

to the

COOPERATION AND SUPPORT AGREEMENT

 

 

NINTH Amendment to the Cooperation and Support Agreement

 

This Ninth Amendment to the Cooperation and Support Agreement (the “Ninth Amendment”) is made this _____day of _____ 2016, by and between:

 

Telecom Italia S.p.A., an Italian corporation, with its head office located in the City of Milan, Italy, at Via Gaetano Negri, 1, 20123, registered with the Italian Register of Companies under number 00488410010 (hereinafter referred to as “TI”);

and

Tim Celular S.A., a corporation organized under the laws of the Federative Republic of Brazil, with its head office located in the City of São Paulo, State of São Paulo, at Avenida Giovanni Gronchi, nº 7143, Vila Andrade, Brazil, registered with Nacional Register of Legal Entities (CNPJ) under number 04.206.050/0001-80, (hereinafter referred to as “TIM CELULAR”), Intelig Telecomunicações Ltda, a corporation organized under the laws of the Federative Republic of Brazil, with its head office located in the City of Rio de Janeiro, State of Rio de Janeiro, at Rua Fonseca Teles, nº 18, A30, bloco B, térreo, São Cristóvão, Brazil, registered with Nacional Register of Legal Entities (CNPJ) under number 02.421.421/0001-11, (hereinafter referred to as “INTELIG”), and Tim Participações S.A., a corporation organized under the laws of the Federative Republic of Brazil, with its head office located in the City of Rio de Janeiro, State of Rio de Janeiro, at Avenida das Américas, nº 3434, 7º floor, Barra da Tijuca, Brazil, registered with Nacional Register of Legal Entities (CNPJ) under number 02.558.115/0001-21, (hereinafter referred to as “TIM PART”);
For the purposes hereof TI, TIM CELULAR, INTELIG and TIM PART shall each individually be referred to as a “Party” and collectively be referred to as the “Parties”.”

WHEREAS, TI, TIM CELULAR, TIM PART and TIM Nordeste S.A., as of the 30th of May 2007, executed the Cooperation and Support Agreement (the “Cooperation and Support Agreement”) for the provision of different kind of services and/or the granting of software licenses, by TI to TIM CELULAR and TIM Nordeste S.A., in the areas of inter alia Network, Information Technology and Marketing and Sales;

WHEREAS, on the 8th April 2008, the 22nd April 2009, the 25th of May 2010, the 6th of May 2011, the 24th of April, 2012, and the 2nd of January 2014, 14th April 2015 TI, TIM CELULAR, TIM Nordeste S.A. (this latter only with respect to the First Amendment and the Second Amendment) INTELIG, TIM Fiber SP Ltda, TIM Fiber RJ S.A. (these last three companies only with respect to the Fifth Amendment) and TIM Part entered into, respectively, a First Amendment, Second Amendment, Third Amendment, Fourth Amendment, Fifth Amendment, Sixth Amendment, Seventh Amendment and the Eighth Amendment to the Cooperation and Support Agreement, whereby they agreed upon to extend the Term of the Cooperation and Support Agreement from its Initial Term until 30th of April 2016 and determined the Road Map applicable for the years 2008, 2009, 2010, 2011, 2012, 2013, 2014, and 2015 ( and partially 2016);

WHEREAS, effective as of the 30th of December, 2009, INTELIG became a wholly owned subsidiary of TIM PART and therefore a company indirectly controlled by TI;

WHEREAS, effective as of the 31st of December, 2009, TIM Nordeste S.A. has been merged into its direct controlling company TIM CELULAR;

WHEREAS, on the 31st of October, 2011, TIM CELULAR acquired the full Control over TIM Fiber SP Ltda. and TIM Fiber RJ S.A., which became therefore companies indirectly controlled by TI;

WHEREAS, on the 29th of August, 2012, TIM Fiber SP Ltda and TIM Fiber RJ S.A. have been merged into their controlling company TIM CELULAR;

WHEREAS, according to the Eighth Amendment to the Cooperation and Support Agreement, the Term of the Agreement expired on the 30th of April 2016;

WHEREAS, TIM CELULAR, INTELIG and TIM PART are willing to continue availing of TI’s support and expertise, being provided by TI with services support and license in some core areas of the telecommunication business also beyond the above mentioned expiration date, by further extending the Term of the Cooperation and Support Agreement for an additional  twelve months period;

WHEREAS, the further extension of the Term of the Cooperation and Support Agreement as contemplated herein has been duly authorised by each Party’s corporate bodies and competent officers, in compliance with the best corporate governance rules and practice to them applicable;  

NOW, THEREFORE, the Parties hereto, in consideration of the foregoing premises which form an integral and substantial part of this instrument, agreed to execute this Ninth Amendment to the Cooperation and Support Agreement under the following terms and conditions.

1.         Definitions and Interpretation.

1.1       The definitions contained in the Cooperation and Support Agreement and its Annexes shall apply to this Ninth Amendment (except where any term is specifically defined herein or the context otherwise requires).

1.2       This Ninth Amendment modifies the Cooperation and Support Agreement according to the terms and conditions set forth below.  Except as expressly provided in this Ninth Amendment, no other term or condition set forth in the Cooperation and Support Agreement and its Annexes is modified, amended or altered by this Ninth Amendment.

1.3.      Each reference in the Cooperation and Support Agreement or hereunder to “this Agreement”, “hereunder”, “hereof”, “herein” or words of like import referring to the Cooperation and Support Agreement, shall mean and be a reference to the Cooperation and Support Agreement as amended pursuant to this Ninth Amendment.

1.4       Each reference in the Agreement to “Company” or “Companies” shall mean a reference, individually or collectively, as the case may be, to TIM CELULAR, INTELIG and TIM PART.

1.5       Each reference in the Agreement to “Party” or “Parties” shall mean a reference, individually or collectively, as the case may be, to TI, TIM CELULAR, INTELIG and TIM PART.

2.         Amendment to the Agreement.

2.1.1 Extension of the Term of the Agreement. The Parties hereby agree to extend the Term of the Agreement, which expired on the 30th of April 2016, by establishing that the Agreement shall continue in full force and effect for a further twelve months period, until 30th of April 2017 (the “Extended Term”).

2.2       Projects’ Price Cap for the Extended Term. The Parties agree to amend sub-section 5.1 of the Agreement setting forth that, during the Extended Term the Projects to be agreed upon between the Parties in connection with the Agreement shall not exceed the total amount of € 11.751.000 (eleven million, seven hundred and fifty one thousand Euros) (the “Projects’ Price Cap for the Extended Term).

2.3       Road Map for the Extended Term. Prior to the execution of this Ninth Amendment, the Companies have been provided by TI with a new Road Map which relates to the Extended Term, aiming at allowing the identification and evaluation of the possible Projects that the Companies may elect to pursue during the Extended Term. Such new Road Map for the Extended Term, has been further implemented in consultation between TI and the Companies and, by the execution of this Ninth Amendment, it is finally agreed between the Parties in the version which is enclosed hereto as Annex I (“Road Map for the Extended Term”). The Road Map for the Extended Term will be used for the purposes set out in Section 3.1.1 of the Agreement.

2.4       For the Extended Term agreed herein, each reference in the Agreement to the terms “Projects’ Price Cap”, “Road Map”, “Term” and “Annex VII”, shall be intended as a reference made to “Projects’ Price Cap for the Extended Term”, “Road Map for the Extended Term”, “Extended Term” and “Annex I”, respectively, as defined in this Ninth Amendment.

2.5       Notwithstanding anything to the contrary contained in the Cooperation and Support Agreement and in particular in Section 3.8 thereof, the Parties hereby acknowledge and agree that certain Projects may be performed by certain TI’s Affiliates and/or certain third parties (other than the Companies) and their personnel, as subcontractors of TI, provided however that TI will remain fully and entirely responsible for any and all activities performed by such Affiliates and/or such third parties.

2.6       The Parties acknowledge and agree that, for all that is not expressly provided in this Ninth Amendment to the contrary, the provisions contained in the Agreement shall remain in full force and effect and shall apply.

3.         Governing Law.

This Ninth Amendment shall be governed by the laws of Italy.  The provisions of Section 10 of the Cooperation and Support Agreement shall apply to this Ninth Amendment and are incorporated herein by reference, mutatis mutandis.

 

________________________________________
TELECOM ITALIA S.P.A.
By:
Title:

________________________________________
TIM CELULAR S.A.
By:
Title:

_______________________________________
INTELIG TELECOMUNICAÇÕES LTDA
By:
Title:

________________________________________
TIM PARTICIPAÇÕES S.A.
By:
Title:

 

Witnesses:

­_________________________ By

­_________________________ By

 

Annex I

 

ROADMAP FOR THE EXTENDED TERM