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Exhibit 4.2


EXECUTION VERSION


LETTER LOAN AGREEMENT


February 7, 2020.


TIM
S.A.


Rua
Fonseca Teles, 18-30


Rio de Janeiro – RJ, 20940-200 


Attention: Bruno de Abreu e Lima Bordin 


Re:      Senior Term
Loan Facility


Ladies and Gentlemen:


BANK OF AMERICA, N.A. (the
“Bank”) is pleased to make available to TIM S.A., a corporation duly
constituted and domiciled in the Federative Republic of Brazil and enrolled
with the CNPJ under number 02.421.421/0001-11 with domicile at Rua Fonseca
Teles 18-30, Rio de Janeiro – RJ, 20940-200 (the “Borrower”), a term
loan facility on the terms and subject to the conditions set forth below.


1.         Certain Definitions. 
As used herein, the following terms shall have the corresponding meanings.


“Agreement” means this
Agreement.


“Anti-Terrorism Laws” means
the regulations administered by OFAC, the Bank Secrecy Act (31 U.S.C. §§ 5311
et seq.), the Money Laundering Control Act of 1986 (18 U.S.C. §§ 1956 et seq.),
the PATRIOT Act and any similar law or regulation enacted in the United States,
or any similar regulation or sanction enacted, administered or enforced by the
United Nations Security Council, any institution of the European Union, Her
Majesty’s Treasure or any government authority, including (without limitation)
regulations or sanctions relating to restrictive measures against Iran.


“Banking Day” means any day
on which commercial banks are not authorized or required to close in New York
City or Sao Paulo and which is also a day on which dealings in Euro deposits
are carried out in the London interbank market.


“Beneficial Ownership
Certification”: a certification regarding beneficial ownership required by
the Beneficial Ownership Regulation.


“Beneficial Ownership Regulation”:
means 31 C.F.R. § 1010.230.


“Borrower’s Economic Group”
means TIM Participações S.A. and TIM S.A..


“Brazil” shall mean the
Federative Republic of Brazil.






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“Brazilian
Note” means the promissory note of the Borrower payable to the Bank
governed by Brazilian Law, in the form of Exhibit A hereto.


“Change of Control” means at
any moment Telecom Italia S.p.A. ceases to be, in relation to the Borrower, the
holder, directly or indirectly, of at least (i) 50% plus one of the shares
representative of the voting capital stock of the Borrower; or (ii) portion of
the capital stock of the Borrower assuring it to have the rights to elect the
board of directors of the Borrower or manage and guide the operations and
corporate activities of the Borrower unless the new direct or indirect
controlling shareholder(s) are(a) company(ies) with a minimum rating equivalent
to or better than a rating classification by Moody’s of Bal or by S&P of
BB+.


“Code” means the Internal
Revenue Code of 1986, as amended.


“Commitment” means
€89,473,684.21.


“Comparable Indebtedness”
means (i) any Indebtedness incurred by the Borrower, or with respect to which
the Borrower is an obligor, which has a maturity date equal to or shorter than
18 months and/or (ii) any Indebtedness incurred by the Borrower, or with
respect to which the Borrower is an obligor, that has a principal amount lower
than the Commitment; provided that the following transactions shall not be
considered “Indebtedness” for purposes of this definition: (a) any local or
foreign long term capital market transactions and (b) any subsidized loans owed
by the Borrower to any local or foreign development bank.


“Connection Taxes” means
Taxes imposed as a result of a present or former connection between the Bank
and the jurisdiction imposing such Tax (other than connections arising from the
Bank having executed, delivered, become a party to, performed its obligations
under, received payments under, received or perfected a security interest
under, engaged in any other transaction pursuant to or enforced any Loan
Document, or sold or assigned an interest in any Loan or Loan Document).


“Default Rate” means, in
respect of any amount not paid when due, a rate per annum during the
period commencing on the due date until such amount is paid in full equal to a
fixed rate of 1.00% per annum above the Fixed Interest Rate.


“Designated Jurisdiction”
means any country or territory to the extent that such country or territory
itself is the subject of any Sanction.


“Designated Person” means a
person: (a) listed in the annex to, or otherwise subject to the provisions of, the
regulations administered by OFAC; (b) named as a “Specially Designated National
and Blocked Person” on the most current list published by OFAC at its official
website or any replacement website or other replacement official publication of
such list; (c) publicly designated by the U.S. Secretary of the Treasury to be
owned or controlled by, or acting for or on behalf of, any person referred to
in clause (a) or (b) above, or otherwise determined by the U.S.
Secretary of State to be subject to the terms of the regulations administered
by OFAC; (d) or entity publicly designated by the U.S. Secretary of State to
have committed, or to pose a significant risk of committing, acts of “terrorism” as defined in the regulations
administered by OFAC that threaten the security of U.S. nationals or the
national security, foreign policy, or economy of the
United States; or (e) which otherwise is, by public designation of the United
Nations Security Council or U.S. or E.U. government authority, the subject of
any Sanction.




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“Drawdown Date” means
February 18, 2020, the day on which the Bank makes the Loan to the Borrower.


“EBITDA” means net income
plus amortization and depreciation (excluding any amortization and/or
depreciation of right-of-use assets with respect to operating leases required
under IFRS16), interest expense (excluding any interest component attributed to
fixed rent on operating leases required under IFRS16) and received results of
equity investments, results of non-operational income, income Tax and social
contribution.


“Euros” and “€” shall
mean the lawful currency of the member states of the European Monetary Union
that have adopted the single currency in accordance with the Treaty
Establishing the European Community, as amended from time to time.


“Event of Default” shall
have the meaning set forth in Section 10 hereof.


“Excluded Taxes” means any
of the following Taxes imposed on or required to be withheld or deducted from a
payment to the Bank, (a) Taxes imposed on or measured by net income (however denominated),
franchise Taxes and branch profits Taxes, in each case (i) imposed as a result
of the Bank being organized under the laws of, or having its principal office
or, its lending office located in, the jurisdiction imposing such Tax (or any
political subdivision thereof) or (ii) that are other Connection Taxes, and (b)
any U.S. federal withholding Taxes imposed pursuant to FATCA.


“Export-Control Laws” means
with respect to the Borrower, (i) any laws, statutes, decrees, regulations or
ordinances of Brazil which regulates the export of goods (whether directly or
indirectly) to or for the rendering of services in a certain country or
countries and (ii) the U.S. Export Administration Regulations.


“FATCA” means Sections 1471
through 1474 of the Code, as of the date of this Agreement (or any amended or
successor version that is substantively comparable and not materially more
onerous to comply with), any current or future regulation s or official
interpretations thereof and any agreements entered into pursuant to Section
1471 (b) (1) of the Code.


“Fixed Interest Rate” shall
mean 0.2790% per annum.


“Governmental Authority”
means the government of the United States or Brazil or any other nation, or of
any political subdivision thereof, whether state or local, and any agency,
authority, instrumentality, regulatory body, court, central bank or other
entity exercising executive, legislative, judicial, taxing, regulatory or
administrative powers or functions of or pertaining to government (including
any supra-national bodies such as the European Union or the European Central
Bank).


“Indebtedness” means, with
respect to any Person, any amount payable by such Person pursuant to an
agreement or instrument involving or evidencing money borrowed or received, the
advance of credit, debt capital markets transactions
(including bonds and debentures), derivative transactions (including any swap
agreement, cap agreement, collar agreement, futures contract, forward contract
or similar arrangement with respect to interest rates, currencies or commodity
prices), a lease, a conditional sale or a transfer with recourse or with an
obligation to repurchase, pursuant to a lease with substantially the same
economic effect as any such agreement or instrument, or any such agreement,
instrument or arrangement secured by any lien or other encumbrance upon any
property owned by such Person, even though such Person has not assumed or
become liable for the payment of any money under such agreement, instrument or
arrangement, to which such Person is a party as debtor, borrower or guarantor.




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“Interest Period” for the
Loan means each of the following interest payment dates: May 18, 2020; August
18, 2020; November 18, 2020; February 18, 2021; May 18, 2021 and August 18,
2021, provided that:


(x)       any
Interest Period that would otherwise end on a day that is not a Banking Day
shall be extended to the next succeeding Banking Day unless such Banking Day
falls in another calendar month, in which case such Interest Period shall end
on the next preceding Banking Day; and


(y)       any
Interest Period which begins on the last Banking Day of a calendar month (or on
a day for which there is no numerically corresponding day in the calendar month
at the end of such Interest Period) shall end on the last Banking Day of the
calendar month at the end of such Interest Period.


“Loan” shall have the
meaning set forth in Section 2.


“Loan Documents” means this
Agreement, the Brazilian Note and any other agreement, instrument or document
executed or delivered in connection herewith or therewith.


“Maturity Date” means August
18, 2021.


“Moody’s” means Moody’s
Investors Service, Inc. and its successors.


“OFAC” means the Office of
Foreign Assets Control of the United States Department of the Treasury.


“Other Taxes” means all
present or future stamp, court or documentary, intangible, recording, filing or
similar Taxes that arise from any payment made under, from the execution,
delivery, performance, enforcement or registration of, from the receipt or
perfection of a security interest under, or otherwise with respect to, any Loan
Document but excluding any such Taxes that are Connection Taxes imposed with
respect to an assignment by the Bank.


“PATRIOT Act” means Title
III of Pub.L. 107-56 signed into law on October 26, 2001.


“Person” means any
corporation, natural person, firm, joint venture, partnership, trust,
unincorporated organization or government, or any political subdivision,
department or agency of any government.






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“Regulatory
Change” means the occurrence, after the date of this Agreement, of any of
the following: (a) the adoption or taking effect of any law, rule, regulation
or treaty, (b) any change in any law, rule, regulation or treaty or in the
administration, interpretation, implementation or application thereof by any
governmental authority or (c) the making or issuance of any request, rule,
guideline or directive (whether or not having the force of law) by any
governmental authority; provided that notwithstanding anything herein to the
contrary, (x) the Dodd-Frank Wall Street Reform and Consumer Protection Act and
all requests, rules, guidelines or directives thereunder or issued in
connection therewith and (y) all requests, rules, guidelines or directives
promulgated by the Bank for International Settlements, the Basel Committee on
Banking Supervision (or any successor or similar authority) or the United
States or foreign regulatory authorities, in each case pursuant to Basel III,
shall in each case be deemed to be a “Regulatory Change”, regardless of the
date enacted, adopted or issued.


“Sanction” means any
international economic sanction administered or enforced by OFAC, the United
Nations Security Council or the European Union.


“Subsidiary” means, with
respect to the Borrower, at any time, any entity of which more than fifty percent
(50%) of the outstanding voting stock or other equity interest entitled
ordinarily to vote in the election of the directors or other governing body
(however designated) of such entity is at the time beneficially owned or
controlled directly or indirectly by the Borrower.


“S&P” means Standard
& Poor’s Ratings Group, a division of McGraw Hill, Inc. and its successors.


“Taxes” means all present or
future taxes, levies, imposts, duties, deductions, withholdings (including
back-up withholding), assessments, fees or other charges imposed by any
Governmental Authority, including any interest, additions to tax or penalties
applicable thereto.


“Total Net Debt” means the
sum of (a) all financial debt, including loans, advances on foreign exchange
contracts, exchange acceptances, derivative contracts of every order, including
options, futures and forwards, and finance leases (but excluding, for the
avoidance of doubt, operating leases as required under IFRS16); all obligations
arising from the issuance of debt securities (whether issued domestically or
abroad), including debentures, bonds, promissory notes or other securities
representing debt minus (b) free and unencumbered cash position which includes
marketable securities, cash and cash equivalents.


2.         The Loan.


(a)       The Bank agrees, on the
terms and conditions of this Agreement, to make one loan (the “Loan”) to
the Borrower on the Drawdown Date in an aggregate principal amount up to but
not exceeding the aggregate amount of the Commitment.


(b)       The Borrower may borrow
the Loan by giving the Bank notice by 11:00 a.m., New York City time in a form
reasonably requested by the Bank (the “Notice of Borrowing”), at least
three Banking Days prior to Drawdown Date.  Upon receipt of the Notice of
Borrowing, the Bank shall disburse the Loan in Euros
into the account designated by the Borrower in such Notice of Borrowing.




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(c)       Amounts that are prepaid
or repaid may not be reborrowed.


(d)       The Borrower promises to
pay interest on the unpaid balance of the Loan from and including the date of
the Loan but excluding the date such Loan is due at a rate per annum
equal to the Fixed Interest Rate, subject to the provisions of Section 3(c)
hereof.  Accrued interest shall be payable on each Interest Period and the
Maturity Date, provided that (a) interest payable at the Default Rate (as
defined below) pursuant to Section 3(c) hereof shall be payable upon
demand and (b) if the time for any payment is extended by operation of law or
otherwise, interest shall continue to accrue for such extended period.


(e)       All payments hereunder
shall be made in Euros and in immediately available funds, without deduction,
set-off or counterclaim.  The Bank shall maintain on its books records setting
forth the amounts of principal, interest and other sums paid or payable by the
Borrower from time to time hereunder.  In the event of any dispute, action or
proceeding relating to this Agreement, such records shall be conclusive in the
absence of manifest error.


3.         Payments;
Prepayments; Fees.


(a)       Place and Time of
Payment.  All payments of principal of and interest and all other amounts
payable hereunder shall be made by deposit to Bank of America N.A., Frankfurt,
Germany; Swift Code: BOFADEFX; Reference: REF.: LOAN #; IBAN No.
DE85500109000018681013; In favor of Bank of America Merrill Lynch Banco
Múltiplo S.A.; Swift code: MLBOBRSP, not later than 12:00 p.m. (New York time)
on the dates due, or to such other account as the Bank may designate in writing
to the Borrower.


(b)       Payments to be made on
Banking Days.  Whenever any payment hereunder shall be stated to be due on
a day other than a Banking Day, such payment shall be made on the next
succeeding Banking Day (unless such next succeeding Banking Day would fall in
the succeeding calendar month, in which case such payment shall be made on the
next preceding Banking Day), and any such extension or reduction of time shall
in such case be reflected in the computation of payment of interest.


(c)       Interest on Overdue
Principal and Other Amounts.  In the event that any principal hereof, any
interest hereon or any other amount payable by the Borrower hereunder is not
paid when due (by reason of demand or otherwise) in accordance with the terms
of this Agreement, the Borrower will pay, to the extent permitted by applicable
law, interest on such past-due amount from the date such amount becomes due
until the date the same is paid in full, at a rate per annum equal to
the Default Rate in effect from time to time.


(d)       Voluntary Prepayments. 
The Borrower may, upon three Banking Days’ notice to the Bank, prepay the Loan
on any Banking Day; provided, however, that (x) the minimum
amount of any such prepayment shall be €5,000,000.00 or any larger multiple
thereof and (y) such prepayment is made together with accrued interest and any
break-funding amounts due pursuant to Section 5(c).






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(e)       Repayment. 
The Borrower promises to pay the outstanding principal amounts of the Loan,
together with all accrued interest thereon, in full on the Maturity Date.


4.         Interest.  All computations
of interest hereon shall be made on the basis of a year of 360 days for the
actual number of days (including the first day but excluding the last day)
occurring in the period for which interest is payable.


5.         Additional Costs,
Etc.; Illegality; Break-Funding Amounts


(a)       If any Regulatory Change
shall: (i) impose, modify or deem applicable any reserve, special deposit,
compulsory loan, insurance charge or similar requirement against assets of,
deposits with or for the account of, or credit extended or participated in by,
the Bank, (iii) subject the Bank to any Taxes on its loans, loan principal,
letters of credit, commitments, or other obligations, or its deposits,
reserves, other liabilities or capital attributable thereto, (iii) impose on
the Bank or the London interbank market any other condition, cost or expense
affecting this Agreement or the Loan; and the result of any of the foregoing
shall be to increase the cost to such Bank of making or maintaining the Loan,
or to reduce the amount of any sum received or receivable by the Bank hereunder
(whether of principal, interest or any other amount) or (iv) reduce the rate of
return on the Bank’s capital or on the capital of the Bank’s holding company,
if any, as a consequence of this Agreement, the Commitment or the Loan, to a
level below that which the Bank or the Bank’s holding company could have
achieved but for such Regulatory Change (taking into consideration the Bank’s
policies and the policies of the Bank’s holding company with respect to capital
adequacy) then, upon request of the Bank, the Borrower will pay to the Bank
such additional amount or amounts as will compensate the Bank for such
additional costs incurred or reduction suffered; provided that (A) before the
Bank makes such request, the Bank agrees to use reasonable efforts (consistent
with its internal policy and legal and regulatory restrictions) to designate a
different office (lending branch) if such designation would (i) avoid the need
of the Bank for making such request for compensation, (ii) allow the Bank to
make and maintain the Loan hereunder and (iii) not, in the reasonable judgment
of the Bank, be materially disadvantageous (economically or otherwise) to the
Bank and (B) if the Bank makes such request to the Borrower, the Bank will
provide to the Borrower, together with such written demand, information in
connection to the circumstances giving rise to, and the amount of, such
compensation and, where practicable, the details of the calculation of the
amount of such compensation, which shall be conclusive absent manifest error. 
If any event or additional cost occurs the Borrower will be able to prepay the
Loan (excluding any break-funding amounts pursuant under Section 5(c))
within 60 days from the written notice of the Bank.


(b)       Notwithstanding any other
provision of this Agreement, if any Regulatory Change shall make it (or be
asserted by it to be) unlawful for the Bank to honor its obligation to make or
maintain its Loan hereunder (and, in the opinion of the Bank, the designation
of a different applicable Bank office would either not avoid such unlawfulness
or would be disadvantageous to the Bank), then the Bank shall promptly notify
the Borrower, following which notice: (i) the Bank’s commitment (if still
available) shall be suspended until such time as the Bank may again make and
maintain its Loans or (ii) if such applicable law shall so mandate, the Bank’s
Loans shall be prepaid by the Borrower, together with accrued and unpaid
interest thereon and all other amounts payable to the Bank by the Borrower
under the Loan Documents (excluding any break- funding amounts under Section
5(c)), on or before such date as shall be mandated by such applicable law; provided that if it is lawful for the Bank
to maintain its Loan until the Maturity Date (and not otherwise deemed
undesirable by the Bank in its sole discretion), then such payment shall be
made on the Maturity Date.  Any such funds so prepaid may not be reborrowed.




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(c)       The Borrower shall pay to
the Bank, upon the request of the Bank, such amount or amounts as shall be
sufficient (in the reasonable opinion of the Bank) to compensate it for any
reasonably documented loss, cost or expense which the Bank determines is
attributable to any prepayment of any Loan, provided that the Bank previously
delivers to the Borrower information in reasonable detail relating to such cost
or expense.


(d)       The Borrower shall pay
the Bank any amounts due under this Section 5 within 10 days following
demand therefor.  The agreements in this Section 5 shall survive the
termination of the Commitment and the repayment, satisfaction or discharge of
all of the Obligations of the Borrower under the Loan Documents.


6.         Taxes.  (a) Any
and all payments by or on account of any obligation of the Borrower under any
Loan Document shall be made without deduction or withholding for any Taxes,
except as required by applicable law.  If any applicable law requires the
deduction or withholding of any Tax from any such payment by the Borrower, then
the Borrower shall (A) be entitled to make such deduction or withholding, (B)
shall timely pay the full amount withheld or deducted to the relevant
Governmental Authority in accordance with applicable law, and (C) to the extent
that the withholding or deduction is made on account of Indemnified Taxes, the
sum payable by the Borrower to the Bank shall be increased as necessary so that
after any required withholding or the making of all required deductions
(including deductions applicable to additional sums payable under this Section
6 the Bank receives an amount equal to the sum it would have received had
no such withholding or deduction been made.


(b)       Without limiting the
provisions of Section 6(a) above, the Borrower shall timely pay to the
relevant Governmental Authority in accordance with applicable law, or at the
option of the Bank timely reimburse it for the payment of, any Other Taxes.


(c)       The Borrower shall, and
does hereby, indemnify the Bank, and shall make payment in respect thereof
within 10 day s after demand therefor, for the full amount of any Indemnified
Taxes (including Indemnified Taxes imposed or asserted on or attributable to
amounts payable under this Section 6 payable or paid by the Bank or
required to be withheld or deducted from a payment to the Bank, and any penalties,
interest and expenses arising therefrom or with respect thereto, whether or not
such Indemnified Taxes were correctly or legally imposed or asserted by the
relevant Governmental Authority.  A certificate as to the amount of such
payment or liability delivered to the Borrower by the Bank shall be conclusive
absent manifest error.


(d)       After any payment of any
Taxes (including any Other Taxes) by the Borrower to a Governmental Authority
as provided in this Section 6, the Borrower shall deliver to the Bank
the original or a certified copy of a receipt issued by such Governmental
Authority evidencing such payment, a copy of any return required by applicable
Laws to report such payment or other evidence of such payment reasonably
satisfactory to the Bank.






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7.         Conditions
Precedent to the Loan.


In addition to having received a
Notice of Borrowing as set forth in Section 2(b) hereto, the obligation
of the Bank to make the Loan hereunder is subject to the condition precedent
that all of the following conditions shall have been fulfilled to the
satisfaction of the Bank and its counsel on or before the Drawdown Date:


(a)       Corporate Documents. 
The Bank shall have received certified copies of the charter and by-laws (or
equivalent documents) of the Borrower and of all corporate authority for the
Borrower (including, without limitation, board of director resolutions, powers
of attorney and evidence of the incumbency of officers) with respect to the
execution, delivery and performance of this Agreement and each other document
to be delivered by the Borrower in connection herewith.


(b)       Documents Supporting
the Loan.  The Bank shall have received this Agreement and the Brazilian
Note duly executed by the Borrower.


(c)       Process Agent
Acceptance.  The Borrower irrevocably appoints Telecom Italia Sparkle of
North America, Inc. as its agent of process.  The Bank shall have received an
executed letter, in form and substance satisfactory to the Bank, from Telecom
Italia Sparkle of North America, Inc. acceptable to the Bank, acknowledging
such agent’s acceptance of its appointment as agent for service of process with
respect to the Borrower for a period of time ending no earlier than the date
six months after the Maturity Date and that all of the fees payable to such
process agent, if any, shall have been paid in full.


(d)       No Material Adverse
Change.  Since September 30, 2019, there shall not have occurred any event
which has had or could reasonably be expected to have a material adverse change
in the business, economic or financial condition of the Borrower.


(e)       No Event of Default;
Accuracy of Representations and Warranties.  On the date of this Agreement,
(x) no Event of Default or event that with notice or lapse of time or both
would become an Event of Default shall have occurred and be continuing; and (y)
the representations and warranties made by the Borrower in Section 8
hereof shall be true and correct on and as of the Drawdown Date.


(f)       Government Approvals. 
The Bank shall have received the Financial Transaction Registration (ROF)
issued by the Central Bank of Brazil.


(g)       KYC and AML
Documentation.  Upon the reasonable request of the Bank, the Borrower shall
have provided to the Bank, and the Bank shall be reasonably satisfied with, the
documentation and other information so requested in connection with applicable
“know your customer” and anti-money-laundering rules and regulations,
including, without limitation, the PATRIOT Act.


(h)       Beneficial Ownership
Certification.  If qualified as a “legal entity customer” under the Beneficial
Ownership Regulation, the Borrower shall deliver to the Bank a Beneficial
Ownership Certification in relation to the Borrower.






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(i)        Incumbency
and Closing Certificates.  The Bank shall have received (i) an incumbency
certificate in form acceptable to the Bank evidencing the identity, authority
and capacity of each officer of the Borrower authorized to act on behalf of the
Borrower in connection with this Agreement and each other document to be
delivered by the Borrower in connection herewith and (ii) a certificate in form
acceptable to the Bank signed by a legal representative of the Borrower (A)
confirming (1) that no Default or Event of Default shall have occurred and be
continuing and (2) the accuracy of all representations and warranties, (B) certifying
that (1) this Agreement constitutes a direct, unconditional unsecured
obligation of the Borrower and (2) the Loan under this Agreement, when made,
will constitute a direct, unconditional unsecured obligation of the Borrower,
ranking in priority of payment at least pari passu with all other
senior unsecured debt of the Borrower, and (C) accompanied by true, correct and
complete notarial certified copies of organizational documents and all
corporate authority (including, without limitation, resolutions and powers of
attorney) of the Borrower, and its legal representatives with respect to the
execution, delivery and performance of this Agreement and each other document
to be delivered by the Borrower in connection herewith.


(j)        Legal Opinion. 
The Bank shall have received favorable opinion s of counsel to the Borrower
(which shall cover, among other things, due authorization, execution and
delivery, legality, validity, binding effect and enforceability of this
Agreement and the Loan Documents, choice of law, submission to jurisdiction,
and such other matters as the Bank may reasonably request).


(j)        Other Documents. 
The Bank shall have received such other documents as the Bank or its counsel
may reasonably request.


The delivery of the Notice
of Borrowing by the Borrower shall be deemed a representation and warranty by
the Borrower that all of the conditions referred to above have been met.


8.         Representations and
Warranties.  The Borrower represents and warrants to the Bank as follows:


(a)       Incorporation and Existence. 
The Borrower is a company duly organized and validly existing under the laws of
Brazil and has the power and authority to execute and deliver this Agreement
and each other document to be delivered by the Borrower in connection herewith,
to incur the obligations to be incurred by it hereunder and to perform and
observe the provisions hereof.


(b)       Corporate Power and
Authority.  The Borrower has taken all necessary action to authorize the
execution and delivery of this Agreement and all other documents to be executed
and delivered by it in connection herewith and the performance of its
obligations hereunder.


(c)       Legally Enforceable
Agreement.  This Agreement has been duly executed and delivered by the
Borrower and constitutes a legal, valid and binding obligation of the Borrower,
enforceable against the Borrower in accordance with its terms, subject to
applicable bankruptcy, insolvency, moratorium and similar laws affecting
creditors’ rights generally, and subject, as to enforceability, to general principles
of equity (regardless of whether enforcement is sought in a proceeding in
equity or at law).






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(d)       Governmental
Authorizations.  All governmental authorizations, including, without
limitation, Financial Transaction Registration (ROF) issued by the Central Bank
of Brazil, and actions of any kind necessary for the due execution, delivery
and performance of this Agreement by the Borrower or required for the validity
or enforceability against the Borrower of this Agreement, have been obtained or
performed and are valid and subsisting in full force and effect.


(e)       Consent and Approvals. 
No consent or approval of, or notice to, any creditor of the Borrower is
required by the terms of any agreement or instrument evidencing any
Indebtedness of the Borrower for the execution or delivery of, or the
performance of the obligations of the Borrower under, this Agreement, and such
execution, delivery and performance will not result in any breach or violation
of, or constitute a default under, the charter or by-laws of the Borrower or
any agreement, instrument, judgment, order, statute, rule or regulation
applicable to the Borrower or to any of its property.


(f)       Pari Passu Status. 
The payment obligations of the Borrower under this Agreement rank at least pari
passu with all of its other senior unsecured Indebtedness, whether now
existing or hereafter outstanding, except for obligations accorded preference
by mandatory provisions of law.


(g)       Absence of Litigation. 
There are no actions, proceedings (judicial or administrative) or claims
pending or, to the knowledge of the Borrower, threatened, the adverse
determination of which could reasonably be expected to have a material adverse
effect on the financial condition of the Borrower or impair its ability to
perform its obligations under, or affect the validity or enforceability of,
this Agreement.


(h)       IBF Language.  The
Borrower, an entity located outside the United States of America, understands
that it is the policy of the Board of Governors of the Federal Reserve System
of the United States that extensions of credit by international banking
facilities, such as the Loan hereunder, may be used only to finance the
non-U.S. operations of the Borrower or the Borrower’s affiliates locate d
outside the United States.


(i)        Waiver of Sovereign
Immunity; Commercial Activity.  Neither the Borrower nor its property has
any right of immunity on the grounds of sovereignty or otherwise from
jurisdiction, attachment (before or after judgment) or execution in respect or
any action or proceeding relating in any way to this Agreement that may be
brought in the courts of Brazil or New York and the Borrower hereby irrevocably
waives any right to immunity.  The execution, delivery and performance of this
Agreement by the Borrower constitute commercial transactions.


(j)        Use of Proceeds. 
The proceeds of the Loan shall be used for working capital purposes and only to
finance the non-U.S. operations of the Borrower or the Borrower’s affiliates
located outside the United States.  The Borrower will not use the proceeds of
the Loan, or lend, contribute or otherwise make available such proceeds to any
subsidiary, joint venture partner or other Person, to fund any activities of or
business with any Person, or in any country or territory, that, at the time of
such funding, is the subject of Sanctions, or in any other manner that will
result in a violation by any Person (including any Person participating in the
transaction, whether as underwriter, advisor, investor or otherwise) of
Sanctions.






11


 







 

(k)       Absence
of Event Default.  No Event of Default exists or has occurred and is
continuing and no Event of Default will occur as a result of the execution of
this Agreement and disbursement of the Loan.


(l)        No Violation of Laws. 
The execution, delivery and performance by the Borrower of this Agreement does
not and will not violate any provision of any law, regulation, order, writ,
judgment, injunction, decree, determination or award presently in effect having
applicability to the Borrower.


(m)      Compliance with Laws. 
The Borrower is in compliance in all material respects with all laws applicable
to it.


(n)       Margin Stock.  The
Borrower will not use the proceeds of borrowings made hereunder, directly or
indirectly, or immediately, incidentally or ultimately, for the purpose of
purchasing or carrying any securities listed in a public exchange market or to
extend credit to others for the purpose of purchasing or carrying equity
securities or to refinance or refund indebtedness originally incurred for such
purpose.


(o)       Operating Company. 
The Borrower is an operating company and not a holding company.  The Borrower
is not or does not hold itself out as being engaged primarily, or proposing to
engage primarily, in the business of investing, reinvesting, or trading in
securities.  The Borrower is not engaged or proposing to engage in the business
of investing, reinvesting, owning, holding, or trading in securities nor does
it own or propose to acquire investment securities having a value exceeding 40%
of the value of such Borrower’s total assets (exclusive of government
securities and cash items) on an unconsolidated basis.


(p)       Form of Documents. 
This Agreement and the Brazilian Note attached hereto as Exhibit A are
in proper legal form under the laws of Brazil for the enforcement thereof
against the Borrower, under such laws.  Under the laws of Brazil, (A) the
choice of the laws of the State of New York as set forth in this Agreement is a
valid choice of law, and (B) the irrevocable submission to jurisdiction and
consent to service of process and appointment of an agent for service of
process by the Borrower, in each case, as set forth herein is legal, valid,
binding and effective.


(q)       Anti-Terrorism. 
Neither the Borrower, nor any of its directors, officers, employees,
affiliates, legal representatives, brokers or other agents:


(i)       is
in violation of any Anti-Terrorism Law or Export-Control Law;


(ii)      is
a Designated Person;


(iii)     deals
in any property or interest in property blocked pursuant to any Anti-Terrorism
Law or Export-Control Law; or


(iv)     is
located, incorporated or ordinarily resident in a Designated Jurisdiction.


Anything to the contrary in this Section
8(q) notwithstanding, the Borrower and the Bank agree that the Borrower’s
existing international roaming agreements entered into with companies located in Iran, Sudan and Cuba shall not be deemed to
constitute a violation of any Anti-Terrorism Law or any Export-Control Law, but
only to the extent that (x) each such agreement was entered into on
arms’-length terms and conditions, (y) each such agreement was entered into by
the Borrower in the ordinary course of its business, and (z) the Borrower did
not and does not breach or evade any Anti-Terrorism Law or any Export-Control
Law.




12


 







 



(r)       Anti-Corruption Laws. 
The Borrower and its Subsidiaries have conducted their businesses in compliance
with the United States Foreign Corrupt Practices Act of 1977, the UK Bribery
Act 2010, and other similar anti-corruption legislation in other jurisdictions
and have instituted and maintained policies and procedures designed to promote
and achieve compliance with such laws.


(s)       Beneficial Ownership
Certification.  The information included m the Beneficial Ownership
Certification, if applicable, is true and correct in all respects.


9.         Covenants.  From
the date hereof, the Borrower covenants as follows:


(a)       Lines of Business. 
The Borrower will at all times continue to engage in the same or similar lines
of business engaged in by the Borrower on the date hereof, and will not (i)
engage to any substantial extent in any line or lines of business activity
other than such current lines of business, or (ii) change its main corporate
purpose (objeto social).


(b)       Limitation on
Fundamental Changes.  The Borrower will not convey, sell, lease, transfer
or otherwise dispose of, in one transaction or in a series of transactions, its
property, or create, assume or suffer or permit to exist any sale-lease back
transactions except:


I.          in the ordinary course of its business;


II.         of obsolete or unused assets;


III.       within the Borrower’s Economic Group in arm’s length
transaction; or


IV.       any other disposal for an aggregate consideration not
exceeding 30% of Borrower’s total assets (as stated in its most recent annual
or quarterly financial statements disclosed).


(c)       Financial Information. 
The Borrower shall deliver, upon written request, to the Bank (i) within 120
days following the end of each fiscal year of the Borrower, its annual audited
financial statements; and (ii) within 120 days following the end of each fiscal
year of TIM Participações S.A., the annual audited consolidated financial
statements of TIM Participações S.A.; (iii) within 60 days following the end of
each fiscal quarter of TIM Participações S.A., the quarterly audited
consolidated financial statements of TIM Participações S.A.; all in accordance
with Brazilian GAAP or IFRS standards.


(d)       Corporate Existence,
Approvals.  The Borrower shall maintain and keep in full force and effect
its legal and corporate existence, rights (including without limitation all
real and intellectual property rights), privileges, licenses, franchises and
all approvals and consents required by third parties
and/or any governmental authority for the incurrence of the Loan and conduct of
its business, as applicable.




13


 







 



(e)       Compliance.  The
Borrower will do or cause to be done all things from time to time necessary to
comply and, as applicable, cause each of its Subsidiaries to comply in all
material respects with all applicable laws, rules, orders and regulations.


(f)       Notice of Event of
Default.  The Borrower will notify the Bank in writing as soon as it
becomes aware of the occurrence of any event that results or may result in the
nonperformance or default by the Borrower of any obligation under this
Agreement.


(g)       Insurance.  The
Borrower will maintain its property duly insured with reputable insurance
companies or association s in such amounts and covering such risks as are
usually carried by companies engaged in similar businesses and owning similar
properties in Brazil.


(h)       Transactions with
Affiliates.  The Borrower will not enter, directly or indirectly, into any
transaction with an affiliate, except (A) in the ordinary course of and
pursuant to the reasonable requirements of its business and upon commercially
reasonable terms that are no less favorable to it than those which might be
obtained in a comparable arm’s-length transaction at the time from a Person
which is not such an affiliate, and (B) for intercompany loans which, in the
aggregate, do not and will not result in the Borrower being in a materially
weaker economic and financial condition.  For purposes hereof, “materially
weaker economic and financial condition” means the ratio of Total Net Debt to
EBITDA of the Borrower exceeding 3.5x, based on its most recent financial
statements.


(i)        Additional
Information and Documents.  The Borrower will deliver to the Bank such
other information and/or documentation respecting the Borrower or the
Borrower’s business properties or the condition or operations, financial or otherwise,
of the Borrower, as the Bank may from time to time reasonably request.


(j)        Ranking.  The
Borrower will take any and all actions necessary such that its payment
obligations hereunder as of the date hereof shall rank at least pari passu
in all respects with all other senior unsecured Indebtedness of the Borrower,
whether now existing or hereafter outstanding,


(k)       Mergers Etc.  With
the exception of any incorporation, merger, consolidation, division, transfer
or reorganization occurring among companies within the Borrower’s Economic
Group, the Borrower will not be incorporated, or merge or transfer all or
substantially all its assets to another entity or as another entity if, by the
time of such incorporation, merger, consolidation, division, transfer or
reorganization, the resulting entity, survivor or transferee, after such
action, (1) does not assume all the obligations stipulated in this Agreement or
any other document in connection herewith in which it is a party or to which
its predecessor has been a party, by order of law or by means of an agreement
reasonably satisfactory to the Bank; and/or (2) has a materially weaker
economic and financial condition than the Borrower, as appropriate and if
applicable, prior to such merger, consolidation, division, transfer or
reorganization.  For purposes of item (2) of this Section, “materially weaker
economic and financial condition” means the resulting
entity, survivor or transferee presents a ratio of the Total Net Debt to EBITDA
exceeding 3.5x, based on its pro-forma consolidated financial statements.




14


 







 



(l)        Dividends.  The
Borrower will not distribute or pay dividends, interest on own capital or any
other profit participation established in contract or in corporate
documentation, above the minimum amount determined by law or in corporate
documentation in effect on any such date unless at the time of such
distribution or payment there shall not exist, and shall not thereby arise or
result from such distribution or payment, any Event of Default or other event or
condition which upon notice, lapse of time or both would, unless cured or
waived, become an Event of Default.


(m)      Capital Expenditures,
Investments, Loans and Advances.  In case of any Event of Default or event
or condition which upon notice, lapse of time or both would, unless cured or
waived, become an Event of Default the Borrower will not, and will not permit
any subsidiary to, make any capital expenditure, investment, loan or advance
other than in the ordinary course of business consistent with past practices in
relation to its existing business.


(n)       Anti-Terrorism/Sanctions
Covenants.


(i)       The
Borrower shall not engage in any transaction that violates any of the
applicable prohibitions set forth in any Anti-Terrorism Law or Export-Control
Law.


(ii)      (i)
none of the funds or assets of the Borrower that are used to repay the Loan
shall constitute property of, or shall be beneficially owned directly or
indirectly by, any Designated Person and (ii) no Designated Person shall have
any direct or indirect interest in the Borrower that would constitute a
violation of any Anti-Terrorism Laws or Export-Control Laws.


(iii)     The
Borrower shall not fund all or part of any payment under this Agreement out of
proceeds derived from transactions that violate the applicable prohibitions set
forth in any Anti-Terrorism Law or Export-Control Law.


(iv)     The
Borrower shall not, directly or indirectly, use the proceeds of the Loan to
lend, contribute or otherwise make available such proceeds to any Subsidiary,
joint venture partner or other person to fund activities of or business with
any Designated Person or any person or business located in a Designated
Jurisdiction.


(v)       No
U.S. Subsidiary or any officer, director, employee or agent of the Borrower
that is a U.S. citizen, shall participate in or facilitate transactions or
business planning involving any Designated Person or any Designated
Jurisdiction.


Anything to the contrary in this Section
9(n) notwithstanding, the Borrower and the Bank agree that the Borrower’s
existing international roaming agreements entered into with companies located
in Iran, Sudan and Cuba shall not be deemed to constitute a breach of any
Anti-Terrorism Law or any Export-Control Law, but only to the extent that (x)
each such agreement was entered into on arms’-length terms and conditions, (y)
each such agreement was entered into by the Borrower in the ordinary course of
its business, and (z) the Borrower did not and does not breach or evade any
Anti-Terrorism Law or any Export-Control Law.






15


 







 

(o)       Process
Agent Acceptance.  The Borrower shall appoint an agent of process located
in New York and acceptable to the Bank.  If Telecom Italia Sparkle of North
America, Inc., for any reason, ceases to act as its agent of process, the Bank
shall receive an executed letter, in form and substance satisfactory to the
Bank, acknowledging a replacement agent’s acceptance of its appointment as
agent for service of process with respect to the Borrower for a period of time
ending no earlier than the date six months after the Maturity Date and
confirming that all of the fees payable to such process agent, if any, have
been paid in full.  The appointment shall take place within 3 Business Days
after Italia Sparkle of North America, Inc. ceases to act as its an agent of
process.


(p)       Most Favored Nation. 
If any Comparable Indebtedness incurred by the Borrower after the date hereof
(including, but not limited to Comparable Indebtedness incurred by the
Borrower, or with respect to which the Borrower is an obligor) has the benefit
of any financial covenants (understood as the obligation to maintain certain
financial ratios), then this Agreement shall be deemed to be automatically
without further act by any party amended, modified or supplemented to the
extent necessary to incorporate such more favorable provision or provisions for
the benefit of the Bank, as appropriate in the discretion of the Bank, and if
requested by the Bank, the Borrower will take all such acts and do all such
things as required by the Bank to effectuate any such amendment, modification
or supplement.


(q)       Beneficial Ownership
Information.  Promptly following any request therefor, the Borrower shall
provide information and documentation reasonably requested by the Bank for
purposes of compliance with applicable “know your customer” and
anti-money-laundering rules and regulations, including, without limitation, the
PATRIOT Act and the Beneficial Ownership Regulation.


10.       Events of Default. 
If any of the following events (“Events of Default”) shall occur and be
continuing:


(a)       The Borrower fails to pay
any principal, interest or any portion thereof within two (2) Business Days
from the date such amount becomes due and payable (whether at stated maturity
or otherwise), provided that such two (2) Business Days cure
period does not affect the Borrower’s obligation to pay overdue interest on any
interest or other amount in accordance with Section 3(c) – Interest on
Overdue Principal and Other Amounts hereof; or


(b)       The Borrower fails to
perform or observe any covenant or agreement contained in Section 5(c)
or Section 9 hereof or any representation or warranty of the Borrower in
this Agreement or in any Loan Document proves to have been incorrect,
incomplete or misleading in any material respect at the time it was made or
repeated or deemed to have been made or repeated; or


(c)       The Borrower fails to
perform or observe any other covenant or agreement (not specified in Section
10(b) above) contained in any Loan Document on its part to be performed or
observed and such failure continues for more than 30 days; or


(d)       The Borrower shall (i) be
in default, event of default or other similar condition or event (however
described) under one or more agreements or instruments in respect of any Indebtedness entered into between the Borrower and the
Bank or its affiliates; or (ii) be in default, event of default or other
similar condition or event (however described) under one or more instruments or
agreements in respect of any Indebtedness entered into between the Borrower and
any party, other than the Bank or its affiliates, which default, event of
default, other condition or event causes, involves or may cause or involve, in
accordance with the provisions of such agreements or instruments, the early
maturity or acceleration of Indebtedness in an aggregate amount exceeding
US$100,000,000.00 (one hundred million United States dollars) (or its
equivalent in other currencies); or




16


 







 



(e)       The Borrower (i) is
dissolved, (ii) commences a voluntary case in bankruptcy or any other action or
proceeding for any other relief under any law affecting creditors’ rights that
is similar to a bankruptcy, debt rehabilitation or reorganization proceeding,
law or (iii) consents by answer or otherwise to the commencement against it of
an involuntary case in bankruptcy or any other such action or proceeding, or a
proceeding is commenced in an involuntary case in bankruptcy in respect of the
Borrower or any material Subsidiary or any property of the Borrower or any such
material Subsidiary; or


(f)       One or more final
non-appealable, judgments or orders against the Borrower or any of its material
Subsidiaries is entered for the payment of money in an aggregate amount (as to
all such judgments) exceeding US$100,000,000.00 (one hundred million United
States dollars) (or its equivalent in other currencies) and such judgment or
order remains unsatisfied without procurement of a stay of execution within 10
calendar days after the date of entry of judgment; or


(g)       A moratorium is enacted
by Brazil or the central bank or any agency or political subdivision of Brazil
affecting the Borrower’s right and obligation to effect payment under this
Agreement or otherwise to perform its obligations hereunder; or


(h)       The Borrower suffers
protest of bills (Protesto) in an individual or aggregate amount
exceeding US$100,000,000.00 (one hundred million United States dollars) (or its
equivalent in other currencies), and such protest(s) is(are) not cancelled
within 15 (fifteen) Sao Paulo business days; or


(i)        This Agreement shall, at
any time and for any reason, cease to be in full force and effect or shall be
declared to be null and void, or the validity or enforceability thereof shall
be contested by the Borrower, or the Borrower shall deny that it has any or
further liability or obligation hereunder or thereunder; or


(j)        A Change of Control
occurs;


THEN, in any such case, if
the Bank shall elect by notice to the Borrower, the unpaid principal amount of
this Agreement, together with accrued interest, shall become forthwith due and
payable; provided that in the case of an Event of Default under clause (d)
above, the unpaid principal amount of this Agreement, together with accrued
interest, shall immediately become due and payable without any notice or other
action by the Bank.






17


 







 

11.       Notices. 
All notices, requests, demands or communications hereunder shall be m writing
and shall be given to or made upon the respective parties hereto at the
following addresses:


	
  If to the Borrower:

  TIM S.A

  Av. João Cabral de Melo Neto 850

  7° andar, Bloco 1

  Rio de Janeiro – RJ, 2277 5-057,
  Brasil

  Attn.: Bruno de Abreu e Lima Bordin /
  Glaucia Crahim Ferreira (Gerência de Tesouraria)

  Telefone: +55 (21) 4109-3101

  Email: babordin@timbrasil.com.br
  /

  gcrahim@timbrasil.com.br

  	
  If to the Bank:

  Bank of America, N.A.

  50 Rockefeller Plaza

  New York NY 10020
  -1605 – EUA

  Attn.: Portia Poindexter

  Telefone: + 1.646-855-0870

  Email: portia.poindexter@bofa.com

  
	
   

  	
  With a copy to:

  BANK OF AMERICA MERRILL LYNCH BANCO MÚLTIPLO S.A.

  Avenida Brigadeiro Faria Lima, n°
  3400, 18° andar

  São Paulo, SP – 04538-132 – Brasil

  Att.: Arthur Roberto Penna

  Telefone: + 55 (11) 2 188 4548

  Email: arthur.penna@bofa.com

  c/c: Departamento Júridico

  Attn.: Daniel Fazzolari / Fernanda
  Iacia

  Telefone: + 55 (11) 2188-4405 / + 55
  (11) 2188-4134

  Email:  daniel.fazzolari@bofa.com

  fernanda.iacia@bofa.com

  




 


12.       Miscellaneous.  


(a)       The Borrower waives
presentment, notice of dishonor, protest and any other formality with respect
to this Agreement.


(b)       This Agreement sets forth
the entire agreement between the parties hereto, supersedes all prior
communications and understandings of any nature and may not be amended,
supplemented or altered except in a writing signed by both parties hereto.


(c)       The Borrower agrees to
reimburse the Bank in full on demand, whenever an Event of Default has
occurred, for all reasonable costs, expenses and charges including reasonable
attorneys’ fees incurred by the Bank during or as a result of such Event of
Default, or incurred by the Bank in enforcing its rights and remedies under
this Agreement or in accordance with applicable law provided that the Bank
previously delivers to the Borrower information relating to such costs,
expenses and/or charges.






18


 







 

(d)       This
Agreement shall be binding on the Borrower and its successors and assigns and
shall inure to the benefit of the Bank and its successors and assigns, except
that the Borrower may not delegate any obligations hereunder without the prior
written consent of the Bank.  The Bank may at any time, without consent from
the Borrower, assign or otherwise transfer or sell participations in this
Agreement or any of its rights with respect thereto to any third party,
including, but not limited, to any Federal Reserve Bank or to any banks,
financial institutions or any affiliates of the Bank (including, any entity (whether
a corporation, partnership, trust or otherwise) that is engaged in making,
purchasing, holding or otherwise investing in bank loans and similar extensions
of credit in the ordinary course of its business and is administered or managed
by the Bank or an affiliate of the Bank).  If the Bank decides to assign or
otherwise transfer any of its rights with respect to this Agreement to any
third party that is not an affiliate of the Bank, the Borrower shall have the
right to prepay the Loan under the conditions set forth in Section 3(d)
hereto, by delivering a notice of voluntary prepayment within five Banking
Days’ after receiving the relevant notification of assignment from the Bank.


(e)       The Bank agrees (on
behalf of itself and each of its affiliates, directors, officers, employees and
representatives) to use reasonable precautions to keep confidential, in
accordance with safe and sound banking practices, any non-public information
supplied to it by the Borrower pursuant to this Agreement which is identified
by the Borrower as being confidential at the time the same is delivered to the
Bank, provided that nothing herein shall limit the disclosure of any such
information (A) to any subsidiaries or affiliates of the Bank, (B) to the
extent required by statute, rule, regulation or judicial process, (C) to
counsel for the Bank, (D) to bank examiners, auditors or accountants, (E) in
connection with the exercise of any remedies hereunder or any suit, action or
proceeding relating to this Agreement or the enforcement of rights hereunder,
(F) to any actual or prospective assignee or participant, or (G) to any actual
or prospective counterparty (or its advisors) to any swap or derivative
transaction relating to the Borrower and its obligations; provided, further, that
in no event shall the Bank be obligated or required to return any materials
furnished by the Borrower.


(f)       Any suit, action or
proceeding against the Borrower with respect to this Agreement or on any
judgment entered by any court in respect thereof may be brought in the Supreme
Court of the State of New York, County of New York, or in the United States
District Court for the Southern District of New York or in the courts of
Brazil, as the Bank may elect in its sole discretion, and the Borrower submits
to the nonexclusive jurisdiction of such courts for the purpose of any such
suit, action or proceeding or judgment.  The Borrower hereby waives any
objection which it may now or hereafter have to the laying of the venue of any
suit, action or proceeding arising out of or relating to this Agreement brought
in such courts, and hereby further irrevocably waives any claim that any such
suit, action or proceeding brought in any such court has been brought in an
inconvenient forum.  The Borrower irrevocably appoints Telecom Italia Sparkle
of North America, Inc. with offices at 1 William Street, 3rd Floor,
New York, NY 10004, as its agent to receive service of process or other legal
summons for purposes of any such suit, action or proceeding, and agrees that
the failure of such agent to give any notice of any such process or summons to
the Borrower shall not impair or affect the validity of such service or of any
judgment based thereon.  So long as the Borrower has any obligation under this
Agreement, it will maintain a duly appointed agent in New York City for the
service of such process or summons.






19


 







 

  



(g)       TO THE EXTENT PERMITTED BY APPLICABLE LAW, THE BORROWER WAIVES ITS RESPECTIVE RIGHTS TO A TRIAL BY JURY OF ANY CLAIM OR CAUSE OF ACTION BASED UPON OR ARISING OUT OF OR RELATED TO THIS AGREEMENT AND THE TRANSACTIONS CONTEMPLATED HEREBY.


(h)       This Agreement shall be governed by and interpreted and construed in accordance with the law of the State of New York, without regard to principles of conflicts of laws.  For purposes solely of article 9 of Brazilian Decree-Law No. 4.657 dated September 4, 1942, the transactions contemplated hereby have been proposed to the Borrower by the Bank.  For any purposes hereof, including, but not limited to, the enforcement, collection and payment of the Loan in Brazil, in the Bank’s sole discretion, the parties hereto agree that (i) the Loan shall be deemed as an enforceable out­- of-court debt instrument (título executivo extra-judicial), pursuant to Section 784, II, of the Brazilian Civil Procedure Code (Law 13,105/2015); (ii) all amounts (including, without limitation, the principal, interests, expenses and Taxes) owed by the Borrower herein shall be deemed as a net and certain debt (dívida liquida e certa) to the extent that the Bank is required to enforce, collect or defend them before any Brazilian Courts and authorities against the Borrower.  The Borrower further acknowledges and consents that any discussion or enforcement and collection of the Loan and related amounts in Brazil shall be made through an expedited enforcement claim (ação de execução) or any other means elected by the Bank, at its sole discretion; and (iii) in accordance with Section 784, § 3rd, of the Brazilian Civil Procedure Code (Law 13,105/2015), this Agreement complies with all the requirements of, and contains all the formalities of, the place where it has been executed.  The Borrower agrees that any evidence of payment of the principal amount due under this Agreement in the amount set forth herein, shall constitute valid and sufficient evidence of the validity and enforceability of this Agreement before any Brazilian Courts, as the case may be.  Finally, the Borrower agrees that the Bank shall be waived of any requirement to present any bonds or security, including, but not limited to, the one set forth in Article 835 of the Brazilian Civil Code or any other similar law, for the discussion or enforcement of this Agreement and/or the Loan before any Brazilian Courts, it being agreed that the Borrower hereby expressly waives any right to request the Bank to post any bond required to initiate or file lawsuits against the Borrower in any jurisdiction.


(i)        To the extent that the Borrower may now or hereafter be entitled, in any jurisdiction in which judicial proceedings may at any time be commenced with respect to this Agreement, to claim for itself or its revenues or properties any immunity from the jurisdiction of any court or from legal process (whether from service or notice, attachment prior to judgment, attachment in aid of execution of judgment, execution of judgment or otherwise), and to the extent that in any such jurisdiction there may be attributed to the Borrower any such immunity (whether or not claimed), the Borrower hereby irrevocably agrees not to claim, and hereby waives, such immunity in respect of its obligations under this Agreement.


(j)        Each reference in this Agreement to Euros is of the essence.  The obligation of the Borrower in respect of any amount due under the Agreement shall, notwithstanding any payment in any other currency (whether pursuant to a judgment or otherwise), be discharged only to the extent of the amount in Euros that the Bank may, in accordance with normal banking procedures, purchase with the sum paid in such other currency (after any premium and costs of exchange) on the Banking Day immediately following the day on which the Bank receives such payment.  If the amount in Euros that may be so purchased for any reasons falls short of the amount originally 

due, the Borrower shall pay such
additional amounts, in Euros, as may be necessary to compensate for such a
shortfall.  Any obligation of the Borrower not discharged by such payment shall
be due as a separate and independent obligation and, until discharged as
provided herein, shall continue in full force and effect.




20


 









 




(k)       The Borrower acknowledges
that the Bank may have and may in the future have investment and commercial
banking, trust and other relationships with other companies in respect of which
the Borrower may have conflicting interests regarding the transactions
described herein and otherwise.  The Borrower acknowledges that the Bank may
perform its functions in connection with such fiduciary or other relationships
without regard to its relationship with the Borrower hereunder.  The Bank will
not use confidential information obtained from Borrower by virtue of the
transactions contemplated by this Agreement or its other relationships with the
Borrower in connection with the performance by the Bank of services for other
companies, and the Bank will not furnish any such information to other
companies.  The Borrower also acknowledges that the Bank has no obligation to
use in connection with the transactions contemplated by this Agreement, or to
furnish to the Borrower, confidential information obtained from other
companies.


(l)        The Borrower hereby
agrees to indemnify, protect, save and keep harmless the Bank, its officers,
directors, shareholders, employees, affiliates, successors, assigns, agents and
servants (each, an “Indemnified Party”) from and against, and to pay to
the Bank promptly upon demand the amount of, any and all liabilities,
obligations, losses, damages, penalties, claims, actions, suits, costs, expenses
or disbursements of any kind or nature whatsoever that may be imposed on,
incurred by or asserted against any Indemnified Party in any way relating to or
arising out of this Agreement or any action taken or omitted by such
Indemnified Party under this Agreement, provided, however, that
the Borrower shall not be liable for any portion of such liabilities,
obligations, losses, damages, penalties, actions, judgments, suits, costs,
expenses or disbursements resulting from such Indemnified Party’s gross
negligence or willful misconduct as found in a final, non-appealable judgment
by a court of competent jurisdiction.


(m)      All payments made under
this Agreement shall be made in Euros (the “Agreement Currency”), and,
if for any reason any payment made hereunder is made in a currency (the “Other
Currency”) other than the applicable Agreement Currency, then to the extent
that the payment actually received by the Bank, when converted into the
applicable Agreement Currency at the Rate of Exchange (as defined below) on the
date of payment (or, if conversion on such date is not practicable, as soon
thereafter as it is practicable for the Bank to purchase the applicable
Agreement Currency) falls short of the amount due under the terms of this
Agreement or any Loan Document, the Borrower shall, as a separate and
independent obligation of the Borrower, indemnify the Bank and hold the Bank
harmless from and against the amount of such shortfall.  As used in this
Section, the term “Rate of Exchange” means the rate at which the Bank is
able on the relevant date to purchase the applicable Agreement Currency with
the Other Currency and shall include any premiums and costs of exchange payable
in connection with the purchase of or conversion into, the applicable Agreement
Currency.


(n)       The Bank hereby notifies
the Borrower that pursuant to the requirements of the PATRIOT Act, the Bank is
required to obtain, verify and record information that identifies the Borrower,
which information includes the name and address of the Borrower and other 
information that will allow the Bank to identify the Borrower in accordance with the PATRIOT Act.  The Borrower shall, promptly following a request by the Bank, provide all documentation and other information that the Bank requests in order to comply with its ongoing obligations under applicable “know your customer” and anti-money laundering rules and regulations, including the PATRIOT Act.




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(o)       The agreements in this Section 12 shall survive the termination of the Commitment and the repayment, satisfaction or discharge of all the other obligations and liabilities of the Borrower under this Agreement.


Please indicate your acceptance of the Commitment on the foregoing terms and conditions by returning an executed copy of this Agreement to the undersigned not later than February 7, 2020.




	

   BANK OF AMERICA, N.A.

	

   By:
	

   /s/ Fernando Mattos

	

   Name:  Fernando Mattos

	

   Title:  Director





 


Accepted and agreed to as of the date first written above:




	

   TIM S.A.

	

   By:
	

   /s/ Adrian Calaza

	

   Name:  Adrian Calaza

	

   Title:  Chief Financial Officer
            TIM S.A.





 




	

   By:
	

   /s/ Glaucia Crahim

	

   Name:  Glaucia Crahim

	

   Title:  TIM-Finance





 




	

   WITNESSES:
	

    
	

    

	

   /s/ Marco Moura
	

    
	

   /s/ Gisele Moreira Alves De Souza

	

   Name: Marco Moura
	

    
	

   Name: Gisele Moreira Alves De Souza

	

   Id.:      TIM-Finance
	

    
	

   Id.:      





 




22


 









 


EXHIBIT A


FORM OF BRAZILIAN PROMISSORY NOTE


NOTA PROMISSÓRIA


Valor: €89.473.684,21 (oitenta e nove
milhões, quatrocentos e setenta e três mil, seiscentos e oitenta e quatro euros
e vinte e um centavos)


Vencimento: à vista


Praça de Pagamento: São Paulo, Estado de São
Paulo, Brasil


No dia do vencimento acima indicado,
pagaremos por esta única via de NOTA PROMISSÓRIA, de forma irrevogável e
incondicional, ao Bank of America, N.A., ou à ordem, a quantia em Reais
equivalente a Valor: €89.473.684,21 (oitenta e nove milhões, quatrocentos e
setenta e três mil, seiscentos e oitenta e quatro euros e vinte e um centavos),
apurada pela taxa média de venda de euros no mercado de câmbio, divulgada pelo
Banco Central do Brasil, em sua página na internet, taxa essa referente ao dia
útil imediatamente anterior ao do efetivo pagamento deste título, ou qualquer
outra taxa de cambio que venha, por medida do Banco Central do Brasil, a
substituir a referida taxa de câmbio.


A emitente expressamente concorda que a
apresentação para pagamento à vista desta nota promissória poderá ser feita até
18 de agosto de 2022, de acordo com o estabelecido no Decreto n° 57.663/66 e
Código Civil.


Esta nota promissória será regida e
constituída de acordo com as leis da República Federativa do Brasil. O
pagamento desta nota promissória deverá ser feito na Comarca da Cidade de São
Paulo, Estado de São Paulo, Brasil. Fica eleito como foro competente a Comarca
da Cidade de São Paulo, Estado de São Paulo, Brasil.


Lugar e Data: São Paulo, 07 de fevereiro de 2020.


EMITENTE:
TIM S.A.


CNPJ/MF:
02.421.421/0001-11


Endereço: Rua Fonseca Teles, 18-30, Rio de
Janeiro/RJ, 20940-200


	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
  Nome:

  	
   

  	
  Nome:

  
	
  Cargo:

  	
   

  	
  Cargo:

  




 


 


 


 








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