Delaware
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98-0212790
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(State or other jurisdiction of incorporation or organization)
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(I.R.S. Employer Identification Number)
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Large accelerated filer
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☒
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Accelerated filer
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☐
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Non-accelerated filer
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☐
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Smaller reporting company
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☐
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Emerging growth company
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☐
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Title of Each Class of Securities to be Registered
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Amount to be
Registered
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Proposed Maximum Offering
Price per Security/Proposed
Maximum Aggregate
Offering Price
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Amount of
Registration Fee
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Guaranteed debt securities(1)
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(2)
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(2)
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(3)
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(1)
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Guarantees to be issued by the Additional Registrants. Pursuant to Rule 457(n) under the Securities Act of 1933, as amended, no separate filing fee is being paid for the guarantees. No separate consideration will be received for the guarantees.
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(2)
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An indeterminate aggregate initial offering price and number or amount of the securities is being registered as may periodically be offered at prices to be determined.
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(3)
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In accordance with Rules 456(b) and 457(r) under the Securities Act of 1933, as amended, the Registrant is deferring payment of the entire registration fee.
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Exact name of Additional
Registrant as specified in its
charter*
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State or other jurisdiction of
incorporation or organization
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I.R.S. Employer
Identification
Number
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Address and telephone number of principal
executive offices
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MercadoLibre S.R.L.
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Argentina
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98-1045729
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Av. Caseros 3039, 2nd. floor, Buenos Aires City,
Argentina. C1264AAK.
(+54) 11 5 168 3000
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Ibazar.com Atividades de
Internet Ltda.
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Brazil
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N/A
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Avenida das Nações Unidas, 3.003, Bonfim, Osasco, São Paulo. 06233-903.
(+55) (11) 2543-4177
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EBazar.com.br Ltda.
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Brazil
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N/A
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Avenida das Nações Unidas, 3.003, Bonfim,
Osasco, São Paulo. 06233-903.
(+55) (11) 2543-4177
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Mercado Envios Serviços de Logistica Ltda.
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Brazil
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N/A
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Avenida das Nações Unidas, 3.003, Bonfim,
Osasco, São Paulo. 06233-903.
(+55) (11) 2543-4177
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MercadoPago.com
Representações Ltda.
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Brazil
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N/A
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Avenida das Nações Unidas, 3.003, Bonfim,
Osasco, São Paulo. 06233-903.
(+55) (11) 2543-4177
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MercadoLibre Chile Ltda.
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Chile
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N/A
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Av. Apoquindo N° 4800, Tower 2, Floor 21,
Las Condes, Santiago, Chile. 7560969.
(+56) 224112701
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MercadoLibre, S. de R.L. de C.V.
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Mexico
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98-1244779
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Av. Insurgentes Sur 1602, Floor 9 Col. Crédito
Constructor, Ciudad de México. 03940.
(+52) 55 49737300
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DeRemate.com de México, S. de R.L. de C.V.
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Mexico
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98-1246148
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Av. Insurgentes Sur 1602, Floor 9 Col. Crédito
Constructor, Ciudad de México. 03940.
(+52) 55 49737300
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MercadoLibre Colombia Ltda.
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Colombia
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N/A
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Carrera 17, Number 93 - 09 Floor 3. Bogotá D.C.,
Colombia. 110221.
(+57) (1) 7053050
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*
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Each Additional Registrant has the same agent for service as MercadoLibre, Inc.
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•
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our Annual Report on Form 10-K for the fiscal year ended December 31, 2019 filed with the SEC on February 14, 2020, as amended by Amendment No.1 to our Form 10-K for the fiscal year ended December 31, 2019, filed with the SEC on December 23, 2020 (together, the “2019 Form 10-K”);
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•
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our Quarterly Report on Form 10-Q for the quarter ended June 30, 2020, filed with the SEC on August 10, 2020;
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our Quarterly Report on Form 10-Q for the quarter ended September 30, 2020, filed with the SEC on November 5, 2020; and
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•
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our Current Reports on Form 8-K filed with the SEC on February 5, 2020, May 5, 2020, June 2, 2020, June 10, 2020, August 13, 2020, September 1, 2020 and November 12, 2020, except, in any such cases, the portions furnished and not filed pursuant to Item 2.02, 7.01 or 9.01 or otherwise.
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our expectations regarding the continued growth of online commerce and Internet usage in Latin America;
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our ability to expand our operations and adapt to rapidly changing technologies;
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our ability to attract new customers, retain existing customers and increase revenues;
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the impact of government and central bank regulations on our business;
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litigation and legal liability;
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systems interruptions or failures;
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our ability to attract and retain qualified personnel;
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consumer trends;
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security breaches and illegal uses of our services;
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competition;
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reliance on third-party service providers;
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enforcement of intellectual property rights;
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seasonal fluctuations;
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political, social and economic conditions in Latin America; and
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the current and potential impact of COVID-19 on our net revenues, gross profit margins, operating margins and liquidity due to future disruptions in operations as well as the macroeconomic instability caused by the pandemic.
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(in millions)
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September 30,
2020
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December 31,
2019
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Current assets(*)(**)
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4,379.9
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3,405.3
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Non-current assets(***)
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725.7
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906.4
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Current liabilities(****)
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2,719.8
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1,587.9
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Non-current liabilities
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868.9
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864.7
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(*)
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Includes restricted cash and cash equivalents of $ 455.2 million and $ 29.3 million and guarantees in short-term investments of $663.6 million and $522.8 million as of September 30, 2020 and December 31, 2019, respectively.
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(**)
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Includes Current assets from non-guarantor subsidiaries of $84.4 million and $47.0 million as of September 30, 2020 and December 31, 2019, respectively.
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(***)
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Includes Non-current assets from non-guarantor subsidiaries of $51.3 million and $30.2 million as of September 30, 2020 and December 31, 2019, respectively.
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(****)
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Includes Current liabilities to non-guarantor subsidiaries of $58.6 million and $34.6 million as of September 30, 2020 and December 31, 2019, respectively.
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(in millions)
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Nine-month
period ended
September 30,
2020
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Year ended
December 31,
2019
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Net revenues(*)
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2,458.4
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2,177.6
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Gross profit(**)
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1,054.1
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994.2
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Net income (loss)(***)
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6.6
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(183.1)
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(*)
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Includes Net revenues from transactions with non-guarantor subsidiaries of $38.6 million and $32.7 million for the nine-month period ended September 30, 2020 and for the year ended December 31, 2019, respectively.
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(**)
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Includes charges from transactions with non-guarantor subsidiaries of $126.3 million and $58.0 million for the nine-month period ended September 30, 2020 and for the year ended December 31, 2019, respectively.
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(***)
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In addition to the charges included in Gross profit, Net income (loss) includes charges from transactions with non-guarantor subsidiaries of $95.7 million and $80.4 million for the nine-month period ended September 30, 2020 and for the year ended December 31, 2019, respectively.
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•
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was or is insolvent or rendered insolvent by reason of our entry into such guarantee;
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•
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was or is engaged in business or transactions for which the assets remaining with the Guarantor constituted unreasonably small capital; or
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intended to incur or incurred, or believed or believe that the Guarantor would incur, debts beyond the Guarantor’s ability to pay such debts as they mature; and
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in each case, intended to receive or received less than the reasonably equivalent value or fair consideration therefor,
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incur additional indebtedness;
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repurchase our equity securities or make distributions to our shareholders;
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•
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repay indebtedness; and
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make investments.
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First, the Trustee can enforce your rights against us if we default on our obligations under the terms of the applicable indenture or the debt securities. There are some limitations to the extent to which the Trustee acts on your behalf, described in the applicable prospectus supplement; and
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Second, the Trustee performs administrative duties for us, such as sending you interest payments, transferring your debt securities to a new holder if you sell them and sending you notices.
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the title of the series (which shall distinguish the series from all other series of debt securities);
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any limit on the aggregate principal amount of the series that may be authenticated and delivered under the Indenture;
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the person to whom any interest on a security of the series shall be payable, if other than the person in whose name that debt security is registered at close of business on the record date for such interest;
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the date or dates on which the principal of and any premium on the securities of the series is payable or the method by which such date or dates shall be determined;
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the rate or rates (or method for establishing the rate or rates) at which the securities of the series shall bear interest, if any, the date or dates from which such interest shall accrue, the dates on which such interest shall be payable and the record date for the interest payable (or the method for establishing such date or dates);
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•
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the place or places where the principal of (and premium, if any) and interest on the securities of the series shall be payable;
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•
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the period or periods within which, the price or prices at which and the terms and conditions upon which the securities of the series may be redeemed, in whole or in part, at our option;
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our obligation, if any, to redeem or purchase the securities of the series pursuant to any sinking fund or analogous provisions or at our option or the option of a holder thereof and the period or periods within which, the price or prices at which and the terms and conditions upon which the securities of the series shall be redeemed or purchased, in whole or in part, pursuant to such obligation or option;
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•
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if other than denominations of U.S.$200,000 and integral multiples of U.S.$1,000 in excess thereof, the denominations in which the securities of the series shall be issuable;
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if other than the full principal amount thereof, the portion of the principal amount of securities of the series which shall be payable upon acceleration of maturity or the method by which such portion shall be determined;
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if other than U.S. dollars, the currency, currencies, currency unit or currency units in which the principal of, and any premium and interest on the securities of the series shall be payable;
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if the principal of (and premium, if any) and interest on the securities of the series are to be payable, at our election or at the election of any holder, in a currency or currencies (including composite currencies) other than that in which the securities of the series are stated to be payable, the period or periods within which, and the terms and conditions, upon which, such election may be made;
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if the amounts of payments of principal (and premium, if any) and interest on the securities of the series may be determined with reference to an index, the manner in which such amounts shall be determined;
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whether the securities of the series shall be issued in whole or in part in the form of one or more global securities and, in such case, the depository for such global security or global securities;
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any additional or different events of default that apply to the securities of the series, and any change in the right of the Trustee or the holders of such series of securities to declare the principal thereof due and payable;
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if the securities of such series are to be guaranteed by any subsidiary guarantor or by any other guarantees on the securities of such series, if different from, or in addition to, any other guarantees by any subsidiary guarantor, an express determination to that effect;
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any additional or different covenants or events of default that apply to the securities of the series;
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the form of the securities of the series; and
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any other terms of the series (which terms shall not contradict the provisions of the Indenture).
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the sale, exchange, disposition or other transfer (including by way of consolidation or merger) of the Subsidiary Guarantor or the sale or disposition of all or substantially all the assets of the Subsidiary Guarantor (other than to the Company or a Subsidiary) otherwise permitted by the Indenture;
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defeasance or discharge of the debt securities pursuant to the Indenture;
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the release or discharge of the guarantee by such Subsidiary Guarantor of the Triggering Indebtedness or the repayment of the Triggering Indebtedness, in each case, that resulted in the obligation of such Subsidiary to become a Subsidiary Guarantor; provided that in no event shall the Subsidiary Guarantee of an Initial Subsidiary Guarantor terminate pursuant to this provision; or
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such Subsidiary Guarantor becoming an Excluded Subsidiary or ceasing to be a Subsidiary.
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how it handles securities payments and notices;
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whether it imposes fees or charges;
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whether and how you can instruct it to exchange or convert a debt security for or into other property;
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how it would handle a request for the holders’ consent, if ever required;
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whether and how you can instruct it to send you debt securities registered in your name so you can be a holder, if that is permitted in the future;
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how it would exercise the rights under the debt securities if there were a default or other event triggering the need for holders to act to protect their interests; and
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if the global debt securities are in book-entry form, how the depository’s rules and procedures will affect these matters.
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The Depository Trust Company, New York, New York, which is known as “DTC”;
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a financial institution holding the debt securities on behalf of Euroclear Bank S.A./N.V., as operator of the Euroclear system, which is known as “Euroclear”;
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a financial institution holding the debt securities on behalf of Clearstream Banking, société anonyme, Luxembourg, which is known as “Clearstream”; and
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any other clearing system or financial institution named in the applicable prospectus supplement.
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an investor cannot cause the debt securities to be registered in his or her own name, and cannot obtain non-global certificates for his or her interest in the debt securities, except in the special situations we describe below;
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an investor will be an indirect holder and must look to his or her own bank or broker for payments on the debt securities and protection of his or her legal rights relating to the debt securities, as we describe above under “—Who Is the Legal Owner of a Registered Debt Security?”;
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an investor may not be able to sell interests in the debt securities to some insurance companies and other institutions that are required by law to own their debt securities in non-book-entry form;
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an investor may not be able to pledge his or her interest in a global security in circumstances where certificates representing the debt securities must be delivered to the lender or other beneficiary of the pledge in order for the pledge to be effective;
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the depositary’s policies will govern payments, deliveries, transfers, exchanges, notices and other matters relating to an investor’s interest in a global security, and those policies may change from time to time. We and the Trustee will have no responsibility for any aspect of the depositary’s policies, actions or records of ownership interests in a global security. We and the Trustee also do not supervise the depositary in any way;
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the depositary will require that those who purchase and sell interests in a global security within its book-entry system use immediately available funds and your broker or bank may require you to do so as well; and
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financial institutions that participate in the depositary’s book-entry system and through which an investor holds its interest in the global securities, directly or indirectly, may also have their own policies affecting payments, deliveries, transfers, exchanges, notices and other matters relating to the debt securities, and those policies may change from time to time. For example, if you hold an interest in a global security through Euroclear or Clearstream, when DTC is the depositary, Euroclear or Clearstream, as applicable, will require those who purchase and sell interests in that security through them to use immediately available funds and comply with other policies and procedures, including deadlines for giving instructions as to transactions that are to be effected on a particular day. There may be more than one financial intermediary in the chain of ownership for an investor. We do not monitor and are not responsible for the policies or actions or records of ownership interests of any of those intermediaries.
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if the depositary notifies us that it is unwilling, unable or no longer qualified to continue as depositary for that global security and we do not appoint another institution to act as depositary within 60 days;
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if we notify the Trustee that we wish to terminate that global security; or
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in the case of a global security representing debt securities issued under the Indenture, if an event of default has occurred with regard to these debt securities and has not been cured or waived.
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at a fixed price or prices, which may be changed from time to time;
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at market prices prevailing at the time of sale;
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at prices related to such prevailing market prices; or
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at negotiated prices.
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Item 14.
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Other Expenses of Issuance and Distribution.
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Securities and Exchange Commission registration fee
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**
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Printing expenses
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*
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Expenses of the trustee and transfer agent
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*
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Legal fees and expenses
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*
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Accounting fees and expenses
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*
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Rating agency fees
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*
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Miscellaneous
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*
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Total
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*
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*
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An estimate of the aggregate amount of these expenses will be reflected in the applicable prospectus supplement.
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**
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Deferred in accordance with Rules 456(b) and 457(r) under the Securities Act of 1933.
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Item 15.
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Indemnification of Directors and Officers.
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(a)
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A corporation shall have power to indemnify any person who was or is a party or is threatened to be made a party to any threatened, pending or completed action, suit or proceeding, whether civil, criminal, administrative or investigative (other than an action by or in the right of the corporation) by reason of the fact that the person is or was a director, officer, employee or agent of the corporation, or is or was serving at the request of the corporation as a director, officer, employee or agent of another corporation, partnership, joint venture, trust or other enterprise, against expenses (including attorneys’ fees), judgments, fines and amounts paid in settlement actually and reasonably incurred by the person in connection with such action, suit or proceeding if the person acted in good faith and in a manner the person reasonably believed to be in or not opposed to the best interests of the corporation, and, with respect to any criminal action or proceeding, had no reasonable cause to believe the person’s conduct was unlawful. The termination of any action, suit or proceeding by judgment, order, settlement, conviction, or upon a plea of nolo contendere or its equivalent, shall not, of itself, create a presumption that the person did not act in good faith and in a manner which the person reasonably believed to be in or not opposed to the best interests of the corporation, and, with respect to any criminal action or proceeding, had reasonable cause to believe that the person’s conduct was unlawful.
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(b)
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A corporation shall have power to indemnify any person who was or is a party or is threatened to be made a party to any threatened, pending or completed action or suit by or in the right of the corporation to procure a judgment in its favor by reason of the fact that the person is or was a director, officer, employee or agent of the corporation, or is or was serving at the request of the corporation as a director, officer, employee or agent of another corporation, partnership, joint venture, trust or other enterprise against expenses (including attorneys’ fees) actually and reasonably incurred by the person in connection with the defense or settlement of such action or suit if the person acted in good faith and in a manner the person reasonably believed to be in or not opposed to the best interests of the corporation and except that no indemnification shall be made in respect of any claim, issue or matter as to which such person shall have been adjudged to be liable to the corporation unless and only to the extent that the Court of Chancery or the court in which such action or suit was brought shall determine upon application that, despite the adjudication of liability but in view of all the circumstances of the case, such person is fairly and reasonably entitled to indemnity for such expenses which the Court of Chancery or such other court shall deem proper.
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(c)
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To the extent that a present or former director or officer of a corporation has been successful on the merits or otherwise in defense of any action, suit or proceeding referred to in subsections (a) and (b) of this section, or in defense of any claim, issue or matter therein, such person shall be indemnified against expenses (including attorneys’ fees) actually and reasonably incurred by such person in connection therewith.
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(d)
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Any indemnification under subsections (a) and (b) of this section (unless ordered by a court) shall be made by the corporation only as authorized in the specific case upon a determination that indemnification of the present or former director, officer, employee or agent is proper in the circumstances because the person has met the applicable standard of conduct set forth in subsections (a) and (b) of this section. Such determination shall be made, with respect to a person who is a director or officer at the time of such determination, (1) by a majority vote of the directors who are not parties to such action, suit or proceeding, even though less than a quorum, or (2) by a committee of such directors designated by majority vote of such directors, even though less than a quorum, or (3) if there are no such directors, or if such directors so direct, by independent legal counsel in a written opinion, or (4) by the stockholders.
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(e)
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Expenses (including attorneys’ fees) incurred by an officer or director in defending any civil, criminal, administrative or investigative action, suit or proceeding may be paid by the corporation in advance of the final disposition of such action, suit or proceeding upon receipt of an undertaking by or on behalf of such director or officer to repay such amount if it shall ultimately be determined that such person is not entitled to be indemnified by the corporation as authorized in this section. Such expenses (including attorneys’ fees) incurred by former directors and officers or other employees and agents may be so paid upon such terms and conditions, if any, as the corporation deems appropriate.
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(f)
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The indemnification and advancement of expenses provided by, or granted pursuant to, the other subsections of this section shall not be deemed exclusive of any other rights to which those seeking indemnification or advancement of expenses may be entitled under any by-law, agreement, vote of stockholders or disinterested directors or otherwise, both as to action in such person’s official capacity and as to action in another capacity while holding such office.
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(g)
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A corporation shall have power to purchase and maintain insurance on behalf of any person who is or was a director, officer, employee or agent of the corporation, or is or was serving at the request of the corporation as a director, officer, employee or agent of another corporation, partnership, joint venture, trust or other enterprise against any liability asserted against such person and incurred by such person in any such capacity, or arising out of such person’s status as such, whether or not the corporation would have the power to indemnify such person against such liability under this section.
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(h)
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For purposes of this section, references to “the corporation” shall include, in addition to the resulting corporation, any constituent corporation (including any constituent of a constituent) absorbed in a consolidation or merger which, if its separate existence had continued, would have had power and authority to indemnify its directors, officers, and employees or agents, so that any person who is or was a director, officer, employee or agent of such constituent corporation, or is or was serving at the request of such constituent corporation as a director, officer, employee or agent of another corporation, partnership, joint venture, trust or other enterprise, shall stand in the same position under this section with respect to the resulting or surviving corporation as such person would have with respect to such constituent corporation if its separate existence had continued.
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(i)
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For purposes of this section, references to “other enterprises” shall include employee benefit plans; references to “fines” shall include any excise taxes assessed on a person with respect to any employee benefit plan; and references to “serving at the request of the corporation” shall include any service as a director, officer, employee or agent of the corporation which imposes duties on, or involves services by, such director, officer, employee, or agent with respect to an employee benefit plan, its participants or beneficiaries; and a person who acted in good faith and in a manner such person reasonably believed to be in the interest of the participants and beneficiaries of an employee benefit plan shall be deemed to have acted in a manner “not opposed to the best interests of the corporation” as referred to in this section.
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(j)
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The indemnification and advancement of expense proved by, or granted pursuant to, Section 145 of the Delaware General Corporation Law shall, unless otherwise provided when authorized or ratified, continue as to a person who has ceased to be a director, officer, employee or agent and shall inure to the benefit of the heirs, executors and administrators of such a person.
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Item 16.
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Exhibits.
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Exhibit
Number
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Description
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1.1
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Underwriting Agreement*
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Form of Indenture
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Form of debt security (included in Exhibit 4.1)
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Opinion of Cleary Gottlieb Steen & Hamilton LLP, counsel to the Company, as to the validity of debt securities and guarantees
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Opinion of Marval O'Farrell Mairal as to the validity of guarantees under Argentine law
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Opinion of Veirano Advogados as to the validity of guarantees under Brazilian law
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Opinion of Nader, Hayaux y Goebel, S.C. as to the validity of guarantees under Mexican law
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Opinion of Claro & Cia. as to the validity of guarantees under Chilean law
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Opinion of Brigard & Urrutia Abogados SAS as to the validity of guarantees under Colombian law
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List of Subsidiary Guarantors
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Consent of Deloitte & Co. S.A.
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Consent of Cleary Gottlieb Steen & Hamilton LLP (included in opinion filed as Exhibit 5.1)
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Consent of Marval O'Farrell Mairal (included in opinion filed as Exhibit 5.2)
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Consent of Veirano Advogados (included in opinion filed as Exhibit 5.3)
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Consent of Nader, Hayaux y Goebel, S.C. (included in opinion filed as Exhibit 5.4)
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Consent of Claro & Cia. (included in opinion filed as Exhibit 5.5)
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Consent of Brigard & Urrutia Abogados SAS (included in opinion filed as Exhibit 5.6)
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Power of attorney — MercadoLibre, Inc.
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| |
Power of attorney — MercadoLibre S.R.L.
|
|
|
| |
|
| |
Power of attorney — Ibazar.com Atividades de Internet Ltda.
|
|
|
| |
|
| |
Power of attorney — EBazar.com.br Ltda.
|
|
|
| |
|
| |
Power of attorney — Mercado Envios Serviços de Logistica Ltda.
|
|
|
| |
|
| |
Power of attorney — MercadoPago.com Representações Ltda.
|
|
|
| |
|
| |
Power of attorney — MercadoLibre Chile Ltda.
|
|
|
| |
|
| |
Power of attorney — MercadoLibre, S. de R.L. de C.V.
|
|
|
| |
|
Exhibit
Number
|
| |
Description
|
| |
Power of attorney — DeRemate.com de México, S. de R.L. de C.V.
|
|
|
| |
|
| |
Power of attorney — MercadoLibre Colombia Ltda.
|
|
|
| |
|
| |
Form T-1 Statement of Eligibility under the Trust Indenture Act of 1939, as amended, of The Bank of New York Mellon, as trustee, under the Indenture (to be filed in accordance with the Trust Indenture Act of 1939, as amended)
|
*
|
To be filed by amendment or as an exhibit to a Current Report on Form 8-K and incorporated by reference in the registration statement.
|
Item 17.
|
Undertakings
|
(1)
|
To file, during any period in which offers or sales are being made, a post-effective amendment to this registration statement:
|
(i)
|
to include any prospectus required by Section 10(a)(3) of the Securities Act of 1933, as amended;
|
(ii)
|
to reflect in the prospectus any facts or events arising after the effective date of the registration statement (or the most recent post-effective amendment thereof) which, individually or in the aggregate, represent a fundamental change in the information set forth in this registration statement. Notwithstanding the foregoing, any increase or decrease in volume of securities offered (if the total U.S. dollar value of securities offered would not exceed that which was registered) and any deviation from the low or high end of the estimated maximum offering range may be reflected in the form of prospectus filed with the Commission pursuant to Rule 424(b) if, in the aggregate, the changes in volume and price represent no more than 20 percent change in the maximum aggregate offering price set forth in the “Calculation of Registration Fee” table in the effective registration statement; and
|
(iii)
|
to include any material information with respect to the plan of distribution not previously disclosed in this registration statement or any material change to such information in this registration statement;
|
(2)
|
That, for the purpose of determining any liability under the Securities Act of 1933, as amended, each such post-effective amendment shall be deemed to be a new registration statement relating to the securities offered therein, and the offering of such securities at that time shall be deemed to be the initial bona fide offering thereof.
|
(3)
|
To remove from registration by means of a post-effective amendment any of the securities being registered which remain unsold at the termination of the offering.
|
(4)
|
That, for the purpose of determining liability under the Securities Act of 1933, as amended, to any purchaser:
|
(i)
|
Each prospectus filed by the Registrant pursuant to Rule 424(b)(3) shall be deemed to be part of the registration statement as of the date the filed prospectus was deemed part of and included in the registration statement; and
|
(ii)
|
Each prospectus required to be filed pursuant to Rule 424(b)(2), (b)(5) or (b)(7) as part of a registration statement in reliance on Rule 430B relating to an offering made pursuant to Rule 415(a)(1)(i), (vii) or (x) for the purpose of providing the information required by Section 10(a) of the Securities Act of 1933, as amended, shall be deemed to be part of and included in the registration statement as of the earlier of the date such form of prospectus is first used after
|
(5)
|
That, for the purpose of determining liability of the Registrant under the Securities Act of 1933, as amended, to any purchaser in the initial distribution of the securities, the undersigned Registrant undertakes that in a primary offering of securities of the undersigned Registrant pursuant to this registration statement, regardless of the underwriting method used to sell the securities to the purchaser, if the securities are offered or sold to such purchaser by means of any of the following communications, the undersigned Registrant will be a seller to the purchaser and will be considered to offer or sell such securities to such purchaser:
|
(i)
|
Any preliminary prospectus or prospectus of the undersigned Registrant relating to the offering required to be filed pursuant to Rule 424;
|
(ii)
|
Any free writing prospectus relating to the offering prepared by or on behalf of the undersigned Registrant or used or referred to by the undersigned Registrant;
|
(iii)
|
The portion of any other free writing prospectus relating to the offering containing material information about the undersigned Registrant or its securities provided by or on behalf of the undersigned Registrant; and
|
(iv)
|
Any other communication that is an offer in the offering made by the undersigned Registrant to the purchaser.
|
(6)
|
The undersigned Registrant hereby undertakes, for purposes of determining any liability under the Securities Act of 1933, as amended, each filing of the Registrant’s annual report pursuant to Section 13(a) or 15(d) of the Securities Exchange Act of 1934, as amended (and, where applicable, each filing of an employee benefit plan’s annual report pursuant to Section 15(d) of the Securities Exchange Act of 1934, as amended), that is incorporated by reference in this registration statement shall be deemed to be a new registration statement relating to the securities offered therein, and the offering of such securities at that time shall be deemed to be the initial bona fide offering thereof.
|
|
| |
MERCADOLIBRE, INC.
|
|||
|
| |
|
| |
|
|
| |
By:
|
| |
/S/ PEDRO ARNT
|
|
| |
Name:
|
| |
Pedro Arnt
|
|
| |
Title:
|
| |
Attorney-in-Fact
|
Signature
|
| |
Title
|
| |
Date
|
*
|
| |
|
| |
|
Marcos Galperin
|
| |
Chief Executive Officer and Director (Principal Executive Officer)
|
| |
December 30, 2020.
|
|
| |
|
| |
|
/S/ PEDRO ARNT
|
| |
|
| |
|
Pedro Arnt
|
| |
Chief Financial Officer
(Principal Financial Officer and Principal Accounting Officer)
|
| |
December 30, 2020.
|
|
| |
|
| |
|
*
|
| |
|
| |
|
Mario Vazquez
|
| |
Director
|
| |
December 30, 2020.
|
|
| |
|
| |
|
*
|
| |
|
| |
|
Susan Segal
|
| |
Director
|
| |
December 30, 2020.
|
|
| |
|
| |
|
*
|
| |
|
| |
|
Nicolás Aguzin
|
| |
Director
|
| |
December 30, 2020.
|
|
| |
|
| |
|
*
|
| |
|
| |
|
Nicolás Galperin
|
| |
Director
|
| |
December 30, 2020.
|
|
| |
|
| |
|
*
|
| |
|
| |
|
Emiliano Calemzuk
|
| |
Director
|
| |
December 30, 2020.
|
|
| |
|
| |
|
*
|
| |
|
| |
|
Meyer Malka
|
| |
Director
|
| |
December 30, 2020.
|
|
| |
|
| |
|
*
|
| |
|
| |
|
Roberto Balls Sallouti
|
| |
Director
|
| |
December 30, 2020.
|
*By:
|
| |
/s/ PEDRO ARNT
|
| |
|
|
| |
Pedro Arnt
Attorney-in-Fact
|
| |
|
|
| |
MERCADOLIBRE S.R.L.
|
|||
|
| |
|
| |
|
|
| |
By:
|
| |
/S/ PEDRO ARNT
|
|
| |
Name:
|
| |
Pedro Arnt
|
|
| |
Title:
|
| |
Attorney-in-Fact
|
Signature
|
| |
Title
|
| |
Date
|
*
|
| |
|
| |
|
Stelleo Passos Tolda
|
| |
President
|
| |
December 30, 2020.
|
|
| |
|
| |
|
*
|
| |
|
| |
|
Juan Martin de la Serna
|
| |
Vice-president
|
| |
December 30, 2020.
|
|
| |
|
| |
|
*
|
| |
|
| |
|
Daniel Rabinovich
|
| |
Manager
|
| |
December 30, 2020.
|
|
| |
|
| |
|
*
|
| |
|
| |
|
Marcelo Daniel Melamud
|
| |
Manager
|
| |
December 30, 2020.
|
|
| |
|
| |
|
*
|
| |
|
| |
|
Martín Ramón Lawson
|
| |
Manager
|
| |
December 30, 2020.
|
|
| |
|
| |
|
*
|
| |
|
| |
|
Hernán Jacobo Cohen Imach
|
| |
Manager
|
| |
December 30, 2020.
|
|
| |
|
| |
|
*
|
| |
|
| |
|
Ramiro Javier Cormenzana
|
| |
Manager
|
| |
December 30, 2020.
|
|
| |
|
| |
|
*
|
| |
|
| |
|
Sebastián Luis Fernández Silva
|
| |
Manager
|
| |
December 30, 2020.
|
|
| |
|
| |
|
*
|
| |
|
| |
|
Gerardo Loureiro
|
| |
Manager
|
| |
December 30, 2020.
|
|
| |
|
| |
|
*
|
| |
|
| |
|
Ariel Szarfsztejn
|
| |
Manager
|
| |
December 30, 2020.
|
|
| |
|
| |
|
*
|
| |
|
| |
|
Germán Spataro
|
| |
Manager
|
| |
December 30, 2020.
|
|
| |
|
| |
|
Signature
|
| |
Title
|
| |
Date
|
*
|
| |
|
| |
|
Guillermo Schmiegelow
|
| |
Manager
|
| |
December 30, 2020.
|
*By:
|
| |
/s/ PEDRO ARNT
|
| |
|
|
| |
Pedro Arnt
Attorney-in-Fact
|
| |
|
|
| |
IBAZAR.COM ATIVIDADES DE INTERNET LTDA.
|
|||
|
| |
|
| |
|
|
| |
By:
|
| |
/S/ PEDRO ARNT
|
|
| |
Name:
|
| |
Pedro Arnt
|
|
| |
Title:
|
| |
Attorney-in-Fact
|
Signature
|
| |
Title
|
| |
Date
|
*
|
| |
|
| |
|
Ricardo Lagreca
|
| |
Administrator
|
| |
December 30, 2020.
|
*By:
|
| |
/s/ PEDRO ARNT
|
| |
|
|
| |
Pedro Arnt
Attorney-in-Fact
|
| |
|
|
| |
EBAZAR.COM.BR LTDA.
|
|||
|
| |
|
| |
|
|
| |
By:
|
| |
/S/ PEDRO ARNT
|
|
| |
Name:
|
| |
Pedro Arnt
|
|
| |
Title:
|
| |
Attorney-in-Fact
|
Signature
|
| |
Title
|
| |
Date
|
*
|
| |
|
| |
|
Ricardo Lagreca
|
| |
Administrator
|
| |
December 30, 2020.
|
*By:
|
| |
/s/ PEDRO ARNT
|
| |
|
|
| |
Pedro Arnt
Attorney-in-Fact
|
| |
|
|
| |
MERCADO ENVIOS SERVICOS DE LOGISTICA LTDA.
|
|||
|
| |
|
| |
|
|
| |
By:
|
| |
/S/ PEDRO ARNT
|
|
| |
Name:
|
| |
Pedro Arnt
|
|
| |
Title:
|
| |
Attorney-in-Fact
|
Signature
|
| |
Title
|
| |
Date
|
*
|
| |
|
| |
|
Ricardo Lagreca
|
| |
Administrator
|
| |
December 30, 2020.
|
*By:
|
| |
/s/ PEDRO ARNT
|
| |
|
|
| |
Pedro Arnt
Attorney-in-Fact
|
| |
|
|
| |
MERCADOPAGO.COM REPRESENTAÇÕES LTDA.
|
|||
|
| |
|
| |
|
|
| |
By:
|
| |
/S/ PEDRO ARNT
|
|
| |
Name:
|
| |
Pedro Arnt
|
|
| |
Title:
|
| |
Attorney-in-Fact
|
Signature
|
| |
Title
|
| |
Date
|
*
|
| |
|
| |
|
Túlio Xavier de Oliveira
|
| |
Administrator
|
| |
December 30, 2020.
|
|
| |
|
| |
|
*
|
| |
|
| |
|
Ricardo Lagreca Siqueira
|
| |
Administrator
|
| |
December 30, 2020.
|
*By:
|
| |
/s/ PEDRO ARNT
|
| |
|
|
| |
Pedro Arnt
Attorney-in-Fact
|
| |
|
|
| |
MERCADOLIBRE CHILE LTDA.
|
|||
|
| |
|
| |
|
|
| |
By:
|
| |
MERCADOLIBRE, INC., MANAGING PARTNER
|
|
| |
|
| |
|
|
| |
By:
|
| |
/S/ PEDRO ARNT
|
|
| |
Name:
|
| |
Pedro Arnt
|
|
| |
Title:
|
| |
Attorney-in-Fact
|
Signature
|
| |
Title
|
| |
Date
|
*
|
| |
|
| |
|
Marcos Galperin
|
| |
Director
|
| |
December 30, 2020.
|
|
| |
|
| |
|
*
|
| |
|
| |
|
Emiliano Calemzuk
|
| |
Director
|
| |
December 30, 2020.
|
|
| |
|
| |
|
*
|
| |
|
| |
|
Nicolás Galperin
|
| |
Director
|
| |
December 30, 2020.
|
|
| |
|
| |
|
*
|
| |
|
| |
|
Susan Segal
|
| |
Director
|
| |
December 30, 2020.
|
|
| |
|
| |
|
*
|
| |
|
| |
|
Meyer Malka
|
| |
Director
|
| |
December 30, 2020.
|
|
| |
|
| |
|
*
|
| |
|
| |
|
Nicolas Aguzin
|
| |
Director
|
| |
December 30, 2020.
|
|
| |
|
| |
|
*
|
| |
|
| |
|
Mario Vazquez
|
| |
Director
|
| |
December 30, 2020.
|
|
| |
|
| |
|
*
|
| |
|
| |
|
Roberto Balls Sallouti
|
| |
Director
|
| |
December 30, 2020.
|
*By:
|
| |
/s/ PEDRO ARNT
|
| |
|
|
| |
Pedro Arnt
Attorney-in-Fact
|
| |
|
|
| |
MERCADOLIBRE, S. DE R.L. DE C.V.
|
|||
|
| |
|
| |
|
|
| |
By:
|
| |
/S/ PEDRO ARNT
|
|
| |
Name:
|
| |
Pedro Arnt
|
|
| |
Title:
|
| |
Attorney-in-Fact
|
Signature
|
| |
Title
|
| |
Date
|
*
|
| |
|
| |
|
Roberto Hiriart Madrazo
|
| |
Manager
|
| |
December 30, 2020.
|
*By:
|
| |
/s/ PEDRO ARNT
|
| |
|
|
| |
Pedro Arnt
Attorney-in-Fact
|
| |
|
|
| |
DEREMATE.COM DE MÉXICO, S. DE R.L. DE C.V.
|
|||
|
| |
|
| |
|
|
| |
By:
|
| |
/S/ PEDRO ARNT
|
|
| |
Name:
|
| |
Pedro Arnt
|
|
| |
Title:
|
| |
Attorney-in-Fact
|
Signature
|
| |
Title
|
| |
Date
|
*
|
| |
|
| |
|
David Geisen
|
| |
Manager
|
| |
December 30, 2020.
|
*By:
|
| |
/s/ PEDRO ARNT
|
| |
|
|
| |
Pedro Arnt
Attorney-in-Fact
|
| |
|
|
| |
MERCADOLIBRE COLOMBIA LTDA.
|
|||
|
| |
|
| |
|
|
| |
By:
|
| |
/S/ PEDRO ARNT
|
|
| |
Name:
|
| |
Pedro Arnt
|
|
| |
Title:
|
| |
Attorney-in-Fact
|
Signature
|
| |
Title
|
| |
Date
|
*
|
| |
|
| |
|
Diana Paola Sáenz Chaparro
|
| |
Alternate Legal Representative
|
| |
December 30, 2020.
|
*By:
|
| |
/s/ PEDRO ARNT
|
| |
|
|
| |
Pedro Arnt
Attorney-in-Fact
|
| |
|
Signature
|
| |
Title
|
/S/ DONALD J. PUGLISI
|
| |
|
Donald J. Puglisi
|
| |
Authorized Representative in the United States
|
Section of
Trust Indenture Act of 1939 |
Section(s) of
Indenture
|
|
§310 (a)(1)
|
7.10
|
|
(a)(2)
|
7.10
|
|
(a)(3)
|
Not Applicable
|
|
(a)(4)
|
Not Applicable
|
|
(a)(5)
|
7.10
|
|
(b)
|
7.8, 7.10
|
|
§311 (a)
|
7.11
|
|
(b)
|
7.11
|
|
(c)
|
Not Applicable
|
|
§312 (a)
|
2.4
|
|
(b)
|
10.2
|
|
§313 (a)
|
7.6
|
|
(b)
|
7.6
|
|
(c)
|
7.6
|
|
(d)
|
7.6
|
|
§314 (a)
|
4.2, 4.7
|
|
(b)
|
Not Applicable
|
|
(c)(1)
|
10.3
|
|
(c)(2)
|
10.3
|
|
(c)(3)
|
Not Applicable
|
|
(d)
|
Not Applicable
|
|
(e)
|
10.4
|
|
§315 (a)
|
7.1(b)
|
|
(b)
|
7.5
|
|
(c)
|
7.1(a)
|
|
(d)
|
7.1(c)
|
|
(d)(1)
|
7.1(c)(1)
|
|
(d)(2)
|
7.1(c)(2)
|
|
(d)(3)
|
7.1(c)(3)
|
|
(e)
|
6.14
|
|
§316 (a)(1)(A)
|
6.12
|
|
(a)(1)(B)
|
6.13
|
|
(a)(2)
|
Not Applicable
|
|
(a)(last sentence)
|
2.10
|
|
(b)
|
6.8
|
|
§317 (a)(1)
|
6.3
|
|
(a)(2)
|
6.4
|
|
(b)
|
2.6
|
|
§318 (a)
|
10.19
|
TABLE OF CONTENTS
|
|||
Page
|
|||
ARTICLE I. DEFINITIONS AND INCORPORATION BY REFERENCE
|
1
|
||
Section 1.1.
|
Definitions
|
1
|
|
Section 1.2.
|
Other Definitions
|
7
|
|
Section 1.3.
|
Rules of Construction
|
7
|
|
ARTICLE II. THE SECURITIES
|
8
|
||
Section 2.1.
|
Issuable in Series
|
8
|
|
Section 2.2.
|
Establishment of Terms of Series of Securities
|
8
|
|
Section 2.3.
|
Execution and Authentication
|
11
|
|
Section 2.4.
|
Paying Agent, Registrar and Transfer Agent
|
12
|
|
Section 2.5.
|
Paying Agent to Hold Money in Trust
|
13
|
|
Section 2.6.
|
Securityholder Lists
|
13
|
|
Section 2.7.
|
Transfer and Exchange
|
13
|
|
Section 2.8.
|
Mutilated, Destroyed, Lost and Stolen Securities
|
14
|
|
Section 2.9.
|
Outstanding Securities
|
15
|
|
Section 2.10.
|
Treasury Securities
|
15
|
|
Section 2.11.
|
Temporary Securities
|
15
|
|
Section 2.12.
|
Cancellation
|
16
|
|
Section 2.13.
|
Defaulted Interest
|
16
|
|
Section 2.14.
|
Global Securities
|
17
|
|
Section 2.15.
|
Form of Face of Security
|
19
|
|
Section 2.16.
|
Form of Reverse of Security
|
21
|
|
Section 2.17.
|
Form of Trustee’s Certificate of Authentication
|
23
|
|
Section 2.18.
|
CUSIP Numbers
|
24
|
|
Section 2.19.
|
Guarantees
|
24
|
|
ARTICLE III. GUARANTEES
|
24
|
||
Section 3.1.
|
Guarantee
|
24
|
|
Section 3.2.
|
Limitation on Guarantor Liability
|
26
|
|
Section 3.3.
|
Execution and Delivery of Guarantee
|
26
|
|
Section 3.4.
|
Releases
|
27
|
|
ARTICLE IV. REDEMPTION
|
28
|
||
Section 4.1.
|
Notice to Trustee; No Liability for Calculations
|
28
|
|
Section 4.2.
|
Selection of Securities to be Redeemed
|
28
|
|
Section 4.3.
|
Notice of Redemption
|
28
|
|
Section 4.4.
|
Effect of Notice of Redemption
|
30
|
|
Section 4.5.
|
Deposit of Redemption Price
|
30
|
|
Section 4.6.
|
Securities Redeemed in Part
|
30
|
|
ARTICLE V. COVENANTS
|
30
|
||
Section 5.1.
|
Payment of Principal, Premium and Interest
|
30
|
|
Section 5.2.
|
Compliance Certificate
|
30
|
|
Section 5.3.
|
Stay, Extension and Usury Laws
|
31
|
|
Section 5.4.
|
Additional Amounts
|
31
|
|
Section 5.5.
|
Reports
|
32
|
ARTICLE VI. SUCCESSORS
|
32
|
||
Section 6.1.
|
Consolidation, Amalgamation, Merger and Sale of Assets
|
32
|
|
ARTICLE VII. DEFAULTS AND REMEDIES
|
35
|
||
Section 7.1.
|
Events of Default
|
35
|
|
Section 7.2.
|
Acceleration of Maturity; Rescission and Annulment
|
36
|
|
Section 7.3.
|
Collection of Indebtedness and Suits for Enforcement by Trustee
|
37
|
|
Section 7.4.
|
Trustee May File Proofs of Claim
|
38
|
|
Section 7.5.
|
Trustee May Enforce Claims Without Possession of Securities
|
38
|
|
Section 7.6.
|
Application of Money Collected
|
38
|
|
Section 7.7.
|
Limitation on Suits
|
39
|
|
Section 7.8.
|
Unconditional Right of Holders to Receive Principal and Interest
|
39
|
|
Section 7.9.
|
Restoration of Rights and Remedies
|
39
|
|
Section 7.10.
|
Rights and Remedies Cumulative
|
40
|
|
Section 7.11.
|
Delay or Omission Not Waiver
|
40
|
|
Section 7.12.
|
Control by Holders
|
40
|
|
Section 7.13.
|
Waiver of Past Defaults
|
41
|
|
Section 7.14.
|
Undertaking for Costs
|
41
|
|
ARTICLE VIII. TRUSTEE
|
41
|
||
Section 8.1.
|
Duties of Trustee
|
41
|
|
Section 8.2.
|
Rights of Trustee
|
42
|
|
Section 8.3.
|
May Hold Securities
|
44
|
|
Section 8.4.
|
Trustee’s Disclaimer
|
44
|
|
Section 8.5.
|
Notice of Defaults
|
44
|
|
Section 8.6.
|
Reports by Trustee to Holders
|
45
|
|
Section 8.7.
|
Compensation and Indemnity
|
45
|
|
Section 8.8.
|
Replacement of Trustee
|
46
|
|
Section 8.9.
|
Successor Trustee by Merger, etc.
|
48
|
|
Section 8.10.
|
Eligibility; Disqualification
|
48
|
|
Section 8.11.
|
Preferential Collection of Claims Against Company
|
48
|
|
ARTICLE IX. DISCHARGE OF INDENTURE
|
48
|
||
Section 9.1.
|
Legal Defeasance and Covenant Defeasance
|
48
|
|
Section 9.2.
|
Application of Trust Money
|
51
|
|
Section 9.3.
|
Repayment to Company
|
51
|
|
Section 9.4.
|
Reinstatement
|
52
|
|
Section 9.5.
|
Satisfaction and Discharge
|
52
|
|
ARTICLE X. AMENDMENTS AND WAIVERS
|
53
|
||
Section 10.1.
|
Without Consent of Holders
|
53
|
|
Section 10.2.
|
With Consent of Holders
|
54
|
|
Section 10.3.
|
Form of Amendments
|
55
|
|
Section 10.4.
|
Revocation and Effect of Consents
|
55
|
|
Section 10.5.
|
Notation on or Exchange of Securities
|
56
|
|
Section 10.6.
|
Trustee Protected
|
56
|
ARTICLE XI. MISCELLANEOUS
|
56
|
||
Section 11.1.
|
Notices
|
56
|
|
Section 11.2.
|
Communication by Holders with Other Holders
|
58
|
|
Section 11.3.
|
Certificate and Opinion as to Conditions Precedent
|
58
|
|
Section 11.4.
|
Statements Required in Certificate or Opinion
|
58
|
|
Section 11.5.
|
Rules by Trustee and Agents
|
59
|
|
Section 11.6.
|
Legal Holidays
|
60
|
|
Section 11.7.
|
No Personal Liability of Directors, Officers, Employees and Certain Others
|
60
|
|
Section 11.8.
|
FATCA.
|
60
|
|
Section 11.9.
|
Counterparts
|
60
|
|
Section 11.10.
|
Governing Laws
|
60
|
|
Section 11.11.
|
No Adverse Interpretation of Other Agreements
|
61
|
|
Section 11.12.
|
Successors and Assigns
|
61
|
|
Section 11.13.
|
Severability
|
61
|
|
Section 11.14.
|
Table of Contents, Headings, Etc.
|
61
|
|
Section 11.15.
|
Judgment Currency
|
61
|
|
Section 11.16.
|
English Language
|
62
|
|
Section 11.17.
|
Submission to Jurisdiction; Appointment of Agent
|
62
|
|
Section 11.18.
|
Waiver of Immunity
|
62
|
|
Section 11.19.
|
Waiver of Jury Trial
|
63
|
|
Section 11.20.
|
Trust Indenture Act Controls
|
63
|
TERM
|
DEFINED IN
SECTION
|
|
“Additional Amounts”
|
5.4
|
|
“Defaulted Interest”
|
2.13
|
|
“FATCA”
|
11.8
|
|
“Judgment Currency”
|
11.15
|
|
“New York Banking Day”
|
11.15
|
|
“Paying Agent”
|
2.4
|
|
“Process Agent”
|
11.17
|
|
“Registrar”
|
2.4
|
|
“Related Proceeding”
|
11.17
|
|
“Required Currency”
|
11.15
|
|
“Transfer Agent”
|
2.4
|
No. .........
|
|
CUSIP No. .............
|
|
ISIN .............
|
|
Common Code .............
|
U.S.$ ........
|
MERCADOLIBRE, INC.
|
||
By:
|
||
Name:
|
||
Title:
|
TEN COM - as tenants in common
|
UNIF GIFT MIN ACT—____________
|
TEN ENT - as tenants by the
|
(Cust)
|
entireties
|
Custodian _____________ under Uniform
|
JT TEN - as joint tenants with right
|
(Minor)
|
of survivorship and not as
|
Gifts to Minors Act ______________
|
tenants in common
|
(State)
|
Additional abbreviations may also be used
|
|
though not in the above list.
|
Date of
Transfer
or
Exchange
|
Amount of
decrease in
Principal Amount
of this Global
Note
|
Amount of
increase in
Principal Amount
of this Global
Note
|
Principal Amount
of this Global
Note following
such decrease or
increase
|
Signature of
authorized
signatory of
Trustee or Note
Custodian
|
||||
The Bank of New York Mellon,
|
|
as Trustee
|
|
By: _______________________
|
|
Authorized Signatory
|
|
1. |
an Officer’s Certificate (which shall include the statements set forth in Section 11.4) stating that, in the opinion of the signer, all conditions precedent, if any,
provided for in this Indenture relating to the proposed action have been complied with; and
|
|
2. |
an Opinion of Counsel (which shall include the statements set forth in Section 11.4 hereof) stating that, in the opinion of such counsel, all such conditions
precedent have been complied with.
|
|
1. |
a statement that the Person making such certificate or opinion has read such covenant or condition;
|
|
2. |
a brief statement as to the nature and scope of the examination or investigation upon which the statements or opinions contained in such certificate or opinion are
based;
|
|
3. |
a statement that, in the opinion of such Person, he or she has made such examination or investigation as is necessary to enable such Person to express an informed
view or opinion as to whether or not such covenant or condition has been complied with; and
|
|
4. |
a statement as to whether or not, in the opinion of such Person, such condition or covenant has been complied with.
|
MERCADOLIBRE, INC.
|
||
By:
|
||
Name:
|
||
Title:
|
MERCADOLIBRE S.R.L.
|
||
By:
|
||
Name:
|
||
Title:
|
EBAZAR.COM.BR LTDA.
|
||
By:
|
||
Name:
|
||
Title:
|
IBAZAR.COM ATIVIDADES DE INTERNET LTDA.
|
||
By:
|
||
Name:
|
||
Title:
|
MERCADOENVIOS SERVICOS DE LOGISTICA LTDA.
|
||
By:
|
||
Name:
|
||
Title:
|
MERCADOPAGO.COM REPRESENTAÇÕES LTDA.
|
||
By:
|
||
|
Name:
|
|
|
Title:
|
DEREMATE.COM DE MEXICO, S. DE R.L. DE C.V.
|
||
By:
|
||
|
Name:
|
|
|
Title:
|
MERCADOLIBRE, S. DE R.L. DE C.V.
|
||
By:
|
||
Name:
|
||
Title:
|
MERCADOLIBRE CHILE LTDA.
|
||
By:
|
||
Name:
|
||
Title:
|
MERCADOLIBRE COLOMBIA LTDA.
|
||
By:
|
||
Name:
|
||
Title:
|
THE BANK OF NEW YORK MELLON,
As Trustee, Registrar, Paying Agent and Transfer Agent |
||
By:
|
||
Name:
|
||
Title:
|
|
(a) |
the Registration Statement; and
|
|
(b) |
a form of the Indenture, filed as an exhibit to the Registration Statement, including the form of Debt Security.
|
|
1. |
The Debt Securities to be issued under the applicable supplemental Indenture, when issued and sold by the Company in the manner contemplated in the Registration Statement and upon due execution and delivery of the Debt Securities in
accordance with the terms of the applicable supplemental Indenture, will be the valid, binding and enforceable obligations of the Company, entitled to the benefits of the applicable supplemental Indenture.
|
|
2. |
The Guarantees of the Debt Securities of any series, when such Debt Securities have been issued and sold in the manner contemplated in the Registration Statement, will be valid, binding and enforceable obligations of the Guarantors.
|
Very truly yours,
|
||
CLEARY GOTTLIEB STEEN & HAMILTON LLP
|
||
By:
|
/s/ Nicolas Grabar
|
|
Nicolas Grabar, a Partner
|
|
(a) |
the Registration Statement;
|
|
(b) |
a form of the Indenture, filed as an exhibit to the Registration Statement, including the form of the Debt Security;
|
|
(c) |
certified copy of the by-laws of the Guarantor;
|
|
(d) |
certified copy of the partners meeting dated December 4, 2020 approving the execution of the Guarantee;
|
|
(e) |
certified copy of the managers meeting dated December 2, 2020, approving the execution of the Guarantee; and
|
|
(f) |
such other documents, records and matters of law as we have deemed necessary.
|
|
1. |
The Guarantor is validly existing, has the power to grant the Guarantees and has taken the required steps to authorize entering into the Guarantees under the law of the Republic of Argentina.
|
|
2. |
The Guarantee to be issued under the applicable supplemental Indenture, when issued and granted by the Guarantor in the manner contemplated in the Registration Statement, will be valid, binding and enforceable obligations of the Guarantor.
|
|
(A) |
The ability of the Guarantor to perform obligations payable in non-Argentine currency (and the ability of any person to remit out of the Republic of Argentina the proceeds of any judgment awarded in non-Argentine currency) will be subject
to the exchange regulations which may be in effect at the time of payment (or such remittance). As of the date of this opinion, the purchase of non-Argentine currency and transfer of such funds outside of the Republic of Argentina in
compliance of the Guarantor´s obligations under the Guarantee (or in compliance of a foreign judgment), is not
|
|
|
permitted by the Central Bank of the Republic of Argentina. Moreover, the rules related to these restrictions and authorizations may vary over the time. In the future, the Argentine government may impose additional restrictions affecting
the payment of obligations in foreign currency and/or the issuance of a judgment or order in foreign currency by an Argentine court or otherwise.
|
|
(B) |
Enforcement of foreign judgments against the Guarantor in Argentina, in case no international treaty is applicable, is subject to compliance with the requirements of Section 517 to 519 of the Civil and Commercial Procedural Code of
Argentina, namely that:
|
|
(i) |
the judgment, which must be final in the jurisdiction where rendered, was issued by a court competent in accordance with Argentine laws regarding conflicts of laws and jurisdiction and other principles and rules of international law, and
results from a personal action, or an in rem action with respect to personal property, as opposed to real property, which was transferred to Argentine territory during or after the prosecution of the
foreign action;
|
|
(ii) |
the defendant against whom enforcement of the judgment is sought was personally served with the summons and, in accordance with due process of law, was given an opportunity to defend against the foreign action;
|
|
(iii) |
the judgment must be valid in the jurisdiction where rendered and its authenticity must be established in accordance with the requirements of Argentine law;
|
|
(iv) |
the judgment does not violate the principles of public policy of Argentine law (including Argentine Law No. 24,871);
|
|
(v) |
the judgment is not contrary to a prior or simultaneous judgment of an Argentine court; and
|
|
(vi) |
in respect of any document in a language other than Spanish (including, without limitation, the foreign judgment and other documents related thereto), a duly legalised translation by a sworn public translator into the Spanish language is
submitted to the relevant court.
|
|
(C) |
Enforcement of any of the Indenture and the Securities in Argentina would be on the same terms as are available to residents and citizens of Argentina and will further require (i) that the particular Argentine courts before whom
enforcement is sought be competent under the applicable laws of Argentina to solve the disputes brought before them in connection with the Indenture and the Securities, (ii) compliance with the appropriate procedural requirements for
enforcement thereof (which requirements in all material respects are non-discretionary and administrative in nature), including, without limitation, exhaustion of mandatory mediation procedures if it is not excepted by the applicable local
regulation, and payment of court taxes, which must be paid by the person filing a claim in court and which rates vary from one jurisdiction to another, and (iii) that Indenture and the Securities do not violate public policy as defined under
the applicable laws of Argentina (including Argentine Law No. 24,871). The enforceability by Argentine courts of documents not governed by Argentine law is subject to the validity and enforceability thereof under the applicable laws that
govern such foreign law-governed documents. Furthermore, enforcement of foreign judgments may be limited by the Enforceability Exceptions (defined below).
|
|
(E) |
The rights and obligations of the Guarantor are subject to the effect of any applicable bankruptcy, liquidation, winding up, dissolution, insolvency, fraudulent transfer, receivership, reorganization, out-of-court debt-restructuring
agreements, suspension
|
|
|
of payments, moratorium or similar laws and regulations now or hereafter in effect relating to or affecting the enforcement of creditors’ rights generally and to general principles of equity, including without limitation concepts of
materiality, reasonableness, good faith and fair dealing (collectively, the “Enforceability Exceptions”). In particular, in the case of a bankruptcy declared against the Guarantor, certain secured creditors (including without
limitation, certain creditors of the bankrupt party with a pledge or mortgage or with a preferred payment right created by the Argentine Bankruptcy Law N° 24,522, as amended (the “Argentine Bankruptcy Law”) and creditors under and in
connection with taxes, court related expenses, salaries and social security charges) are granted a preferential treatment. Also, in the case of bankruptcy declared against the Guarantor, the allowance of creditors whose claims are payable
outside Argentina and which do not belong to a foreign bankruptcy proceeding is conditional upon submission of evidence that, reciprocally, a creditor whose claim is payable in Argentina may be allowed and paid pari passu in bankruptcy proceedings commenced in the country where the claim of the former is payable, provided that if the Guarantor is also declared bankrupt outside Argentina,
the creditors that belong to the foreign bankruptcy will be entitled to claim only on the balance of assets in Argentina remaining after the claims of all creditors in the Argentine bankruptcy proceeding have been satisfied. In case of
bankruptcy, un-der Section 127 of the Argentine Bankruptcy Law, the debtor’s obligations would be expressed in Argentine Pesos, at the exchange rate determined by the bankruptcy court to be in effect on the date the bankruptcy was declared
by the bankruptcy court or, at the creditor’s option, on the maturity date of each such obligation, if earlier.
|
|
(F) |
The Argentine Bankruptcy Law provides that certain transactions entered into or performed by the bankrupt party within the period of time running from the date on which bankruptcy is declared by the court (or, if applicable, the date of
the filing of the reorganization proceedings -concurso preventivo-) and the time on which insolvency is determined by such court as having commenced, which period may not reach back longer than two
years (the “Review Period”) shall not be valid vis a vis other creditors of the bankrupt party.
|
|
(i) |
ipso iure (automatic) reviewable or invalid transactions vis a vis other creditors of the bankrupt party under Section 118 of the Argentine Bankruptcy Law, which transactions are exclusively the following: (a) transactions without
consideration, (b) prepayments of non-matured debt before the date on which bankruptcy is declared, and (c) the granting of security or any other kind of priority right in respect of previous non-matured unsecured debt; and
|
|
(ii) |
other transactions harmful or detrimental to other creditors of the bankrupt party made with knowledge of such party’s insolvency, which may be nullified or declared invalid by the court under Section 119 of the Argentine Bankruptcy Law,
upon request of the bankruptcy trustee and/or any such creditor of the bankrupt party.
|
|
(H) |
Under Section 118 of the Argentine Bankruptcy Law, lack of adequate consideration in exchange for granting a guarantee or security (the “Security”) to secure another person’s obligations during the Review Period, will result in
the Security being considered ineffective with respect to the other creditors of the third party guarantor or grantor of security. If a bankruptcy court finds the Security to be ineffective with respect to such other creditors, the
bankruptcy court may order that all proceeds resulting from enforcement of the Security be returned to the guarantor or grantor.
|
|
(I) |
Pursuant to Argentine law, the lack of validity of a principal obligation would cause the accessory or ancillary obligations, to lack validity as well.
|
Very truly yours,
|
|
|
/s/ Juan M. Diehl Moreno
|
||
|
Marval O’Farrell Mairal
|
|
|
(a) |
the Registration Statement;
|
|
(b) |
a form of the Indenture, filed as an exhibit to the Registration Statement, including the form of Debt Security;
|
|
(c) |
the Guarantors’ articles of association; and
|
|
(d) |
such other documents, records and matters of law as we have deemed necessary.
|
|
1. |
The Guarantors are validly existing, have the powers to grant the Guarantees and have taken the required steps to authorize entering into the Guarantees under the laws of Brazil.
|
|
2. |
The Guarantees to be issued under the applicable supplemental Indenture, when issued and granted by the Guarantors in the manner contemplated in the Registration Statement, will be valid, binding and enforceable obligations of the
Guarantors.
|
|
/s/ Alexandre Verri
|
|
|
Veirano Advogados
|
|
|
Sincerely,
|
|
|
Nader, Hayaux y Goebel, S.C.
|
|
By
|
/s/ Javier Arreola E.
|
|
Partner
|
|
(a) |
the Registration Statement;
|
|
(b) |
a form of the Indenture, filed as an exhibit to the Registration Statement, including the form of Debt Security;
|
|
(c) |
the constituting organizational deeds (estatutos) of the Guarantor; and
|
|
(d) |
the corporate resolution of the partners of the Guarantor listed on Schedule 1 hereto.
|
|
1. |
The Guarantor has been duly organized and is validly existing as a sociedad de responsabilidad limitada under the laws of the Republic of Chile, has full right, power and authority to execute and
deliver the Guarantees and has taken the required steps to authorize entering into the Guarantees under the laws of the Republic of Chile.
|
|
2. |
The Guarantees to be issued under the applicable supplemental Indenture, when issued and granted by the Guarantor in the manner contemplated in the Registration Statement, will be valid and legally binding obligations of the Guarantor,
enforceable against it in accordance with their terms.
|
|
(a) |
The opinions expressed in this letter are limited to questions arising under the laws of the Republic of Chile as currently in effect, and we do not purport to express an opinion on any question arising under the laws of any other
jurisdiction.
|
|
(b) |
The opinions expressed in this opinion letter are subject to the effect of (i) applicable bankruptcy, liquidation, insolvency, reorganization, moratorium or similar laws now or hereafter in effect relating to or affecting creditors’ rights
generally, and (ii) general principles of equity, including, without limitation, concepts of materiality, reasonableness, good faith and fair dealing (regardless of whether considered in a proceeding in equity or at law).
|
|
(c) |
The Guarantees granted by the Guarantor may be considered as gratuitous acts for purposes of Chilean law.
|
|
(d) |
We express no opinion on any section of the Guarantees requiring a party to indemnify other parties against any loss incurred by them as a result of any judgment or order being given or made in a currency other than the currency in which
payment is due under the Guarantees.
|
|
(e) |
This opinion is effective only as of the date hereof. We expressly disclaim any responsibility to advise you of any development or circumstance of any kind including any change of law or fact that may occur after the date of this letter
even though such development, circumstance or change may affect the legal analysis, a legal conclusion or any other matter set forth in or relating to this letter. Accordingly, any person relying on this letter at any time after the date
hereof should seek advice of its counsel as to the proper application of this letter at such time.
|
Very truly yours,
|
|
/s/ Luisa Núñez P. | |
Luisa Núñez P.
|
- |
Acuerdo de Socios y Poder Especial executed by public deed dated December 23, 2020 in the Notarial Office of Santiago of Mr. Eduardo Javier Diez Morello.
|
|
(a) |
the Registration Statement;
|
|
(b) |
a form of the Indenture, filed as an exhibit to the Registration Statement, including the form of Debt Security;
|
|
(c) |
the Guarantor bylaws;
|
|
(d) |
minute No. 69 of the Board of Partners of the Guarantor; and
|
|
(e) |
existence, good standing and incumbency certificate of the Guarantor, issued by the Chamber of Commerce on December 14, 2020.
|
|
(a) |
the authenticity, accuracy and completeness of all documents submitted to us as originals, and the conformity with the originals of all documents submitted to us as certified or otherwise satisfactorily identified copies,
|
|
(b) |
the genuineness of all signatures,
|
|
(c) |
that all documents submitted to us remain in full force and effect (other than with respect to the Guarantor) and have not been amended or affected by any subsequent action not disclosed to us,
|
|
(d) |
that no application has been made regarding insolvency proceedings with regard to the Guarantor,
|
|
(e) |
that the parties other than the Guarantor have been duly incorporated and are in good standing in accordance with the law of their respective places of incorporation,
|
|
(f) |
the valid and due execution and delivery, pursuant to due authorization, of each of the Transaction Documents by each of the parties thereto (other than the Guarantor),
|
|
(g) |
that there has not been any action by any of the parties to the Transaction Documents, any third party or any governmental authority to revoke, terminate or declare null or void the Transaction Documents, or requesting any indemnification
or damages under the Transaction Documents,
|
|
(h) |
that the Debt Securities will conform to the forms thereof that we have reviewed, and
|
|
(i) |
that the Guarantee will be substantially as described in the Registration Statement.
|
|
1. |
The Guarantor is validly existing, has the power to grant the Guarantee and has taken the required steps to authorize entering into the Guarantee under the laws of the Republic of Colombia.
|
|
2. |
The Guarantee to be issued under the applicable supplemental Indenture, when issued and granted by the Guarantor in the manner contemplated in the Registration Statement, will be valid, binding and enforceable obligations of the Guarantor
in accordance with their terms, subject to the enforceability exceptions set forth in the qualifications, exceptions and limitations section of this opinion.
|
|
3. |
To ensure the legality, validity, enforceability, priority or admissibility in evidence in the Republic of Colombia of the Guarantee, no registration, recordation, enrollment or other filing with any Colombian Governmental Authority is
required, except for:
|
|
a. |
Pursuant to article 251 of Law 1564 of 2012 (Código General del Proceso), in order for a document written in a foreign language to be admissible as evidence before a Colombian court, it must be translated into Spanish, either by a
translator authorized by the Colombian Ministry of Foreign Affairs or by a judge appointed translator. To the extent applicable for the purposes of a judicial proceeding, preparation of translations authorized by the Colombian Ministry of
Foreign Affairs or by a judge appointed translator into Spanish of the Transaction Documents originally executed in English will be required;
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|
b. |
To the extent applicable, in connection with public or official documents executed outside of the Republic of Colombia compliance with the Hague Apostille Convention or with legalization and proceedings in front of the Consulate to ensure
the admissibility in evidence of the respective document will be required; and
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c. |
To the extent applicable, observance of the exequatur proceedings described in this opinion.
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4. |
Pursuant to Articles 605 and 606 of Law 1564 of 2012 (Código General del Proceso), the courts of the Republic of Colombia would give effect to and enforce a judgment obtained in a court outside of the Republic of Colombia without re-trial
or re-examination of the merits of the case provided (1) that there exists a treaty or convention relating to recognition and enforcement of foreign judgments between the
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|
|
Republic of Colombia and the country of origin of the judgment or, in the absence of such treaty, that proper evidence is provided to the Supreme Court of Colombia to the effect that the courts of the country of the subject judgment
would recognize and enforce Colombian judgments, and (2) that the subject judgment fulfills the requirements listed in the qualifications section of this opinion.
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(1) |
The effect of any applicable workout, bankruptcy, insolvency, re-structuring proceeding, fraudulent conveyance, reorganization, public policy or similar Colombian or foreign laws or regulations relating to or limiting creditors’ rights
generally, including priority of payments, are applicable to the Guarantor.
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(2) |
The initiation of a reorganization proceeding provides the suspension of the current judicial procedures of collections and the provisional suspension of the Guarantee execution. If the reorganization process is not successful and the
debtor initiates a liquidation proceeding, the Guarantee will be executed according to the terms of the insolvency proceeding.
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(3) |
According to article 16 of Law 1116 of 2006, any provision in a contract which directly or indirectly hinders or creates obstacles for the commencement of a reorganization proceeding by imposing negative effects to the company which is
admitted to the process, will be deemed ineffective ipso iure.
|
|
(4) |
Per articles 61 and 82 of Law 1116 of 2006, the shareholders, agents, administrators and employees will be liable for the debts that remain unpaid in the insolvency proceeding, if the insolvency state was diminished because of their
intended or negligent behavior. The controlling entities will also have joint and several liabilities over the obligations of their subsidiary, when the insolvency situation of the subsidiary was caused by a decision of the controlling
entity. Additionally, per article 24 of Decree 1749 of 2011, in the event the company in insolvency is part of a corporate group, the other members of the corporate group may be liable for the disposition of the assets within the group that
have no juridical or economic justification.
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(5) |
Colombian insolvency laws and regulations are considered public order laws (normas de orden público) and therefore cannot be modified or waived by private agreements. As a consequence, any waivers
made by the parties to such documents in respect of Colombia’s insolvency rules may be rendered unenforceable and a Colombian Court may disregard any contractual subordination provision relating to the Transaction Documents.
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(6) |
Any proceeding for enforcement in the Republic of Colombia would be subject to the applicable statute of limitations and service of process must be made in accordance with the provisions of the Código
General del Proceso.
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(7) |
The enforcement of the Transaction Documents in the Republic of Colombia may be limited by applicable statute of limitations. Pursuant to article 2535 of Colombia’s Civil Code (“Código Civil”), in
order for the statute of limitations to run and extinguish enforcement rights it is necessary that the party entitled to exercise an enforce actions fails to do so during a period commencing on the date in which the relevant right became
enforceable and ending 5 or 10 years after, as the case may be (depending on the relevant statute of limitations). Pursuant to Section 2514 of Código Civil, a waiver to the statute of limitations can
only be granted once the relevant statute of limitations has elapsed.
|
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(8) |
Under Colombian law, in rem rights over property located in the Republic of Colombia, including the transfer of ownership, the granting of liens or security interests, and any proceeding to enforce
a judicial decision by means of seizure, attachment or execution against assets or property, or against any right or interest in assets or properties located in the Republic of Colombia, must be governed by the laws of the Republic of
Colombia and any collection proceeding over each assets located in the Republic of Colombia will be subject to the jurisdiction of Colombian courts.
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(9) |
Article 869 of Colombia’s Code of Commerce provides that any agreement executed abroad containing obligations to be performed by the parties thereof in Colombia must be governed by Colombian laws, regardless of whether or not such parties
are Colombian residents. Considering that pursuant to Law 33 of 1992, payment obligations under credit transactions are deemed to be held and performed in the place of payment, we believe that the Transaction Documents contain provisions
that, if observed, will make the main obligations thereunder to be performed outside Colombia considering payment obligations are to be paid abroad, and, therefore, parties are not subject to Colombian law as set forth by Article 869 of the
Colombia’s Code of Commerce and may validly choose the law of the State of New York as the governing law of the Transaction Documents.
|
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(10) |
In any proceeding in the Republic of Colombia in which a law of a foreign country were to be applied, there should be evidence of the law sought to be applied, through a copy
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of such law duly issued and promulgated by the competent authorities, and when a written law does not exist, through the deposition or affidavit of two or more lawyers admitted in the relevant
jurisdiction regarding such applicable law.
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(11) |
In accordance with article 902 of Código de Comercio, if a provision of an agreement is declared void, that would only cause all the document to be void if the parties would not have entered into
the agreement in the absence of the provision that has been declared void.
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(12) |
We express no opinion on the ability of the holders of the Debt Securities to initiate a collection proceeding before the Colombian courts based on the Transaction Documents without complying with the exequatur
proceeding or providing proof of foreign applicable laws.
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(13) |
The provisions of the Transaction Documents which treat certain determinations as conclusive may be subject to review in a proceeding in the Republic of Colombia to determine the correctness of such determinations.
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(14) |
Indemnification provisions may be limited by the judicial determination of legal costs, fees and judicial amounts determined by Colombian courts.
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(15) |
Pursuant to and subject to the limitations provided for in article 594 of the Código General del Proceso, assets listed in said article are not subject to any attachment.
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(16) |
In accordance with article 1506 of Código Civil, any contractual provision in favor of a third party is revocable until such third party accepts such provision whether expressly or by course of
action.
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(17) |
According with applicable procedural rules: (i) waivers of immunity and service of process by private companies within the Republic of Colombia may not be allowed, (ii) advanced waivers of any immunity from proceedings (jurisdiction,
execution or attachment), which might be available in the future under Colombian law, may not be allowed, and (iii) equitable remedies or injunctive relief are unavailable, except for fundamental constitutional rights, specific performance of
contracts and precautionary measures and remedies in unfair trade practice actions.
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(18) |
Pursuant to article 13 of the Código General del Proceso, civil procedure rules are considered public order laws (normas de orden público) and therefore
cannot be modified or waived by contractual arrangements. To the extent that the parties to the Transaction Documents commence enforcement actions before Colombian courts instead of commencing them at foreign courts (which final ruling may
subsequently be enforced in the Republic of Colombia through exequatur proceedings as described herein), any waivers made by the parties to the Transaction Documents in respect of Colombia’s rules of
civil procedure may be rendered unenforceable.
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(19) |
Pursuant to articles 15 and 16 of Código Civil, the waiver of rights is permissible provided that said waiver only affects the rights of the waiving party. Under Colombian law, any immunity from
proceedings, which might be available in the future cannot be validly waived in advance.
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(20) |
According to Colombian laws, the laws applicable to a given agreement are those in existence at the time of execution of such agreement, even if those laws change in the future, provided that the changes are not related to, or do not
affect, public order laws (normas de orden público), in which case public order laws become immediately effective. We consider Colombian exchange control regulations to be public order laws (normas de orden público). Therefore, the ability of the parties to perform their
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obligations payable in foreign currency (and the ability of any person to remit out of the Republic of Colombia the proceeds of any sale of assets) will be subject to foreign exchange regulations and securities regulations in effect at
the time of the relevant transaction.
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(21) |
Under Colombian law, charging interest on interest (whether accrued or unpaid) is not permitted unless those interests are charged as permitted under article 886 of Código de Comercio.
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(22) |
Additionally, the Supreme Court of Colombia, in the exequatur proceeding, must examine whether the following requirements set forth in article 606 of the Código
General del Proceso have been fulfilled:
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a. |
That the judgment does not refer to in-rem rights over assets located in the Republic of Colombia at the time of the commencement of the foreign proceedings;
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b. |
That, if the judgment was rendered in a contentious matter, the defendant was afforded due service of process in accordance with the laws of the judgment’s country of origin, which shall be presumed if the judgment is executory;
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c. |
That the judgment is final and executory in accordance with the laws of the country of origin of the judgment, and that a duly authenticated and legalized copy be filed with the plaintiff’s request for exequatur;
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d. |
That the judgment is not contrary to Colombian public order (mandatory) provisions, except for rules of civil procedure;
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e. |
That the matter of the judgment is not subject to the exclusive jurisdiction of the Colombian courts; and
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f. |
That there are no pending proceedings in the Republic of Colombia or any final judgments rendered by Colombian courts in connection with the same subject matter and between the same parties.
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g. |
In the course of the exequatur proceedings, both the plaintiff and the defendant are allowed the opportunity to request that evidence be collected in connection with the issues listed above; and
before the judgment is rendered, each party may file final allegations in support of such party’s position.
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(23) |
Performance by the Guarantor shall abide to applicable foreign exchange regulations in the Republic of Colombia. For these purposes, in compliance with Section 6.1 of External Circular DCIN-83 issued by the Central Bank, in case of an
effective call of the Guarantee, the Guarantor shall register the Guarantee in the Colombian Central Bank by means of filing a Form no. 7 «Information of foreign indebtedness granted to non-residents» to a foreign exchange intermediary before
or in the same moment in which payment by the Guarantor is due. Every transfer of currencies associated with the Guarantee shall be completed through the Colombian foreign exchange market and reported to the Colombian Central Bank, for which
the Guarantor must provide the information of the minimum data of foreign exchange operations for foreign indebtedness (Foreign Exchange Declaration – formerly known as Form no. 3) through a foreign exchange intermediary or through a
compensation account held by the Guarantor.
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(24) |
If the full and unconditional Guarantee provided by the Guarantor in respect of the Debt Securities is not considered an economic compensation from the Company to the Guarantor, in the case of the effective call of the Guarantee, the
Colombian Tax
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|
Authority (DIAN) may calculate an income due to the Guarantor for income tax purposes applying current transfer pricing legislation (Decree 1625 of 2016 and Section 260-1 through Section 260-11 of the Colombian Tax Code), following both
OECD guidelines and local rulings, considering that the entities are related and the transaction can be considered as an intercompany transaction. If transfer pricing rules are not complied with, the expenses incurred in by the Guarantor
related to the Guarantee may be considered as non-deductible for income tax purposes.
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Very truly yours,
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/s/ Luis Gabriel Morcillo M.
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Brigard & Urrutia Abogados S.A.S.
|
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Name of the entity
|
State or other jurisdiction of incorporation
or organization
|
MercadoLibre S.R.L.
|
Argentina
|
Ibazar.com Atividades de Internet Ltda.
|
Brazil
|
EBazar.com.br Ltda.
|
Brazil
|
Mercado Envios Serviços de Logística Ltda.
|
Brazil
|
MercadoPago.com Representações Ltda.
|
Brazil
|
MercadoLibre Chile Ltda.
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Chile
|
MercadoLibre, S. de R.L. de C.V.
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Mexico
|
DeRemate.com de México, S. de R.L. de C.V.
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Mexico
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MercadoLibre Colombia Ltda.
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Colombia
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Signature
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| |
Title
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Date
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/S/ MARCOS GALPERIN
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| |
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| |
|
Marcos Galperin
|
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Chief Executive Officer and Director
(Principal Executive Officer)
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December 30, 2020.
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/S/ PEDRO ARNT
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Pedro Arnt
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Chief Financial Officer
(Principal Financial Officer and Principal Accounting Officer) |
December 30, 2020.
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/S/ MARIO VAZQUEZ
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| |
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Mario Vazquez
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Director
|
December 30, 2020.
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/S/ SUSAN SEGAL
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| |
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| |
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Susan Segal
|
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Director
|
December 30, 2020.
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/S/ NICOLÁS AGUZIN
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| |
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Nicolás Aguzin
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| Director |
December 30, 2020.
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/S/ NICOLÁS GALPERIN
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| |
|
| |
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Nicolás Galperin
|
| Director |
December 30, 2020.
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/S/ EMILIANO CALEMZUK
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| |
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| |
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Emiliano Calemzuk
|
|
Director
|
December 30, 2020.
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/S/ MEYER MALKA
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| |
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| |
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Meyer Malka
|
|
Director
|
December 30, 2020.
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|||
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| |
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| |
|
/S/ ROBERTO BALLS SALLOUTI
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| |
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| |
|
Roberto Balls Sallouti
|
Director
|
December 30, 2020.
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||||
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Signature
|
| |
Title
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| |
Date
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|
/S/ STELLEO PASSOS TOLDA
|
| |
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| |
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Stelleo Passos Tolda
|
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President
|
December 30, 2020.
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||||
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/S/ JUAN MARTIN DE LA SERNA
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| |
|
| |
|
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Juan Martin de la Serna
|
|
Vice-president
|
December 30, 2020.
|
||||
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/S/ DANIEL RABINOVICH
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| |
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| |
|
|
Daniel Rabinovich
|
|
Manager
|
December 30, 2020.
|
||||
|
| |
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| |||
/S/ MARCELO DANIEL MELAMUD
|
| |
|
| |
|
|
Marcelo Daniel Melamud
|
|
Manager
|
December 30, 2020.
|
||||
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/S/ MARTÍN RAMÓN LAWSON
|
| |
|
| |
|
|
Martín Ramón Lawson
|
| Manager |
December 30, 2020.
|
||||
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| |
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| |
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/S/ HERNÁN JACOBO COHEN IMACH
|
| |
|
| |
|
|
Hernán Jacobo Cohen Imach
|
|
Manager
|
December 30, 2020.
|
||||
|
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/S/ RAMIRO JAVIER CORMENZANA
|
| |
|
| |
|
|
Ramiro Javier Cormenzana
|
|
Manager
|
December 30, 2020.
|
|
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|
|
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| |
|
| |
|
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/S/ SEBASTIÁN LUIS FERNÁNDEZ SILVA
|
| |
|
| |
|
|
Sebastián Luis Fernández Silva | Manager |
December 30, 2020.
|
|||||
|
|
||||||
|
Signature
|
| |
Title
|
| |
Date
|
/S/ GERARDO LOUREIRO
|
| |
|
| |
|
Gerardo Loureiro
|
| Manager |
December 30, 2020.
|
|||
|
| |
|
| |
|
/S/ ARIEL SZARFSZTEJN
|
| |
|
| |
|
Ariel Szarfsztejn
|
|
Manager
|
December 30, 2020.
|
|||
|
| |
|
| |
|
/S/ GERMÁN SPATARO
|
| |
|
| |
|
Germán Spataro
|
| Manager |
December 30, 2020.
|
|||
|
| |
|
| |
|
/S/ GUILLERMO SCHMIEGELOW
|
| |
|
| |
December 30, 2020.
|
Guillermo Schmiegelow
|
Manager
|
|||||
|
Signature
|
| |
Title
|
| |
Date
|
/s/ RICARDO LAGRECA
|
| |
|
| |
|
Ricardo Lagreca
|
Administrator |
December 30, 2020.
|
||||
|
Signature
|
| |
Title
|
| |
Date
|
/s/ RICARDO LAGRECA
|
| |
Administrator
|
| |
December 30, 2020.
|
Ricardo Lagreca
|
||||||
|
Signature
|
| |
Title
|
| |
Date
|
/s/ RICARDO LAGRECA
|
| |
Administrator
|
| |
December 30, 2020.
|
Ricardo Lagreca
|
Signature
|
| |
Title
|
| |
Date
|
/s/ TÚLIO XAVIER DE OLIVEIRA
|
| |
|
| |
December 30, 2020.
|
Túlio Xavier de Oliveira
|
|
Administrator
|
||||
|
| |
|
| |
|
/s/ RICARDO LAGRECA SIQUEIRA
|
| |
Administrator
|
| |
December 30, 2020.
|
Ricardo Lagreca Siqueira | ||||||
|
Signature
|
| |
Title
|
| |
Date
|
/s/ MARCOS GALPERIN
|
| |
|
| |
December 30, 2020.
|
Marcos Galperin
|
|
Director
|
||||
|
| |
|
| |
|
/s/ EMILIANO CALEMZUK
|
| |
|
| |
December 30, 2020.
|
Emiliano Calemzuk
|
|
Director
|
||||
|
| |
|
| |
|
/s/ NICOLÁS GALPERIN
|
| |
|
| |
December 30, 2020.
|
Nicolás Galperin
|
|
Director
|
||||
|
| |
|
| |
|
/s/ SUSAN SEGAL
|
| |
|
| |
December 30, 2020.
|
Susan Segal
|
| Director | ||||
|
| |
|
| |
|
/s/ MEYER MALKA
|
| |
|
| |
December 30, 2020.
|
Meyer Malka
|
| Director | ||||
|
| |
|
| |
|
/s/ NICOLAS AGUZIN
|
| |
|
| |
December 30, 2020.
|
Nicolas Aguzin
|
|
Director
|
||||
|
| |
|
| |
|
/s/ MARIO VAZQUEZ
|
| |
|
| |
December 30, 2020.
|
Mario Vazquez
|
|
Director
|
||||
|
| |
|
| |
|
/s/ ROBERTO BALLS SALLOUTI
|
| |
Director
|
| |
December 30, 2020.
|
Roberto Balls Sallouti
|
||||||
|
Signature
|
| |
Title
|
| |
Date
|
/s/ ROBERTO HIRIART MADRAZO
|
| |
Manager
|
| |
December 30, 2020.
|
Roberto Hiriart Madrazo
|
Signature
|
| |
Title
|
| |
Date
|
/s/ DAVID GEISEN
|
| |
Manager
|
| |
December 30, 2020.
|
David Geisen
|
Signature
|
| |
Title
|
| |
Date
|
/s/ DIANA PAOLA SÁENZ CHAPARRO
|
| |
Alternate Legal Representative
|
| |
December 30, 2020.
|
Diana Paola Sáenz Chaparro
|
New York
(Jurisdiction of incorporation
if not a U.S. national bank)
|
13-5160382
(I.R.S. Employer Identification No.)
|
240 Greenwich Street, New York, N.Y.
(Address of principal executive offices)
|
10286
(Zip code)
|
Delaware
(State or other jurisdiction of
incorporation or organization)
|
98-0212790
(I.R.S. Employer Identification No.)
|
Pasaje Posta 4789, 6th floor
Buenos Aires, Argentina
(Address of principal executive offices)
|
C1430EKG
(Zip code)
|
Exact name of Guarantor as specified in its charter
|
State or other jurisdiction of incorporation or organization
|
I.R.S. Employer Identification Number
|
Address and telephone number of principal executive offices
|
MercadoLibre S.R.L.
|
Argentina
|
98-1045729
|
Av. Caseros 3039, 2nd. floor, Buenos Aires City, Argentina. C1264AAK.
(+54) 11 5 168 3000
|
Ibazar.com Atividades de Internet Ltda.
|
Brazil
|
N/A
|
Avenida das Nações Unidas, 3.003, Bonfim, Osasco, São Paulo. 06233-903.
(+55) (11) 2543-4177
|
EBazar.com.br Ltda.
|
Brazil
|
N/A
|
Avenida das Nações Unidas, 3.003, Bonfim, Osasco, São Paulo. 06233-903.
(+55) (11) 2543-4177
|
Mercado Envios Serviços de Logistica Ltda.
|
Brazil
|
N/A
|
Avenida das Nações Unidas, 3.003, Bonfim, Osasco, São Paulo. 06233-903.
(+55) (11) 2543-4177
|
MercadoPago.com Representações Ltda.
|
Brazil
|
N/A
|
Avenida das Nações Unidas, 3.003, Bonfim, Osasco, São Paulo. 06233-903.
(+55) (11) 2543-4177
|
MercadoLibre Chile Ltda.
|
Chile
|
N/A
|
Av. Apoquindo N° 4800, Tower 2, Floor 21, Las Condes, Santiago, Chile. 7560969.
(+56) 224112701
|
MercadoLibre, S. de R.L. de C.V.
|
Mexico
|
98-1244779
|
Av. Insurgentes Sur 1602, Floor 9 Col. Crédito Constructor, Ciudad de México. 03940.
(+52) 55 49737300
|
DeRemate.com de México, S. de R.L. de C.V.
|
Mexico
|
98-1246148
|
Av. Insurgentes Sur 1602, Floor 9 Col. Crédito Constructor, Ciudad de México. 03940.
(+52) 55 49737300
|
MercadoLibre Colombia Ltda.
|
Colombia
|
N/A
|
Carrera 17, Number 93 - 09 Floor 3. Bogotá D.C., Colombia. 110221.
(+57) (1) 7053050
|
|
(a) |
Name and address of each examining or supervising authority to which it is subject.
|
Name
|
Address
|
Superintendent of the Department of Financial Services of the State of New York
|
One State Street
New York, N.Y. 10004-1417, and Albany, N.Y. 12223
|
Federal Reserve Bank of New York
|
33 Liberty Street
New York, N.Y. 10045
|
Federal Deposit Insurance Corporation
|
550 17th Street, NW
Washington, D.C. 20429
|
The Clearing House Association L.L.C.
|
100 Broad Street
New York, N.Y. 10004
|
|
(b) |
Whether it is authorized to exercise corporate trust powers.
|
2. |
Affiliations with Obligor.
|
16. |
List of Exhibits.
|
|
1. |
A copy of the Organization Certificate of The Bank of New York Mellon (formerly known as The Bank of New York, itself formerly Irving Trust Company) as now in effect, which contains the
authority to commence business and a grant of powers to exercise corporate trust powers. (Exhibit 1 to Amendment No. 1 to Form T-1 filed with Registration Statement No. 33-6215, Exhibits 1a and 1b to Form T-1 filed with Registration Statement
No. 33-21672, Exhibit 1 to Form T-1 filed with Registration Statement No. 33-29637, Exhibit 1 to Form T-1 filed with Registration Statement No. 333-121195 and Exhibit 1 to Form T-1 filed with Registration Statement No. 333-152735).
|
|
4. |
A copy of the existing By-laws of the Trustee (Exhibit 4 to Form T-1 filed with Registration Statement No. 333-229494).
|
|
6. |
The consent of the Trustee required by Section 321(b) of the Act (Exhibit 6 to Form T-1 filed with Registration Statement No. 333-229519).
|
|
7. |
A copy of the latest report of condition of the Trustee published pursuant to law or to the requirements of its supervising or examining authority.
|
THE BANK OF NEW YORK MELLON
|
||
By:
|
/s/ Rita Duggan
|
|
Name: Rita Duggan
|
||
Title: Vice President
|
ASSETS
|
Dollar amounts in thousands
|
|||
Cash and balances due from depository institutions:
|
||||
Noninterest-bearing balances and currency and coin
|
3,375,000
|
|||
Interest-bearing balances
|
125,187,000
|
|||
Securities:
|
||||
Held-to-maturity securities
|
46,090,000
|
|||
Available-for-sale securities
|
105,272,000
|
|||
Equity securities with readily determinable fair values not held for trading
|
59,000
|
|||
Federal funds sold and securities purchased under agreements to resell:
|
||||
Federal funds sold in domestic offices
|
0
|
|||
Securities purchased under agreements to resell
|
12,267,000
|
|||
Loans and lease financing receivables:
|
||||
Loans and leases held for sale
|
0
|
|||
Loans and leases held for investment
|
25,615,000
|
|||
LESS: Allowance for loan and lease losses
|
282,000
|
|||
Loans and leases held for investment, net of allowance
|
25,333,000
|
|||
Trading assets
|
5,862,000
|
|||
Premises and fixed assets (including capitalized leases)
|
3,088,000
|
|||
Other real estate owned
|
1,000
|
|||
Investments in unconsolidated subsidiaries and associated companies
|
1,682,000
|
|||
Direct and indirect investments in real estate ventures
|
0
|
|||
Intangible assets
|
6,994,000
|
|||
Other assets
|
14,222,000
|
|||
Total assets
|
349,432,000
|
LIABILITIES
|
||||
Deposits:
|
||||
In domestic offices
|
183,179,000
|
|||
Noninterest-bearing
|
76,884,000
|
|||
Interest-bearing
|
106,295,000
|
|||
In foreign offices, Edge and Agreement subsidiaries, and IBFs
|
117,493,000
|
|||
Noninterest-bearing
|
7,195,000
|
|||
Interest-bearing
|
110,298,000
|
|||
Federal funds purchased and securities sold under agreements to repurchase:
|
||||
Federal funds purchased in domestic offices .
|
39,000
|
|||
Securities sold under agreements to repurchase
|
6,963,000
|
|||
Trading liabilities
|
2,599,000
|
|||
Other borrowed money:
(includes mortgage indebtedness and obligations under capitalized leases)
|
1,111,000
|
|||
Not applicable
|
||||
Not applicable
|
||||
Subordinated notes and debentures
|
0
|
|||
Other liabilities
|
8,968,000
|
|||
Total liabilities
|
320,352,000
|
|||
EQUITY CAPITAL
|
||||
Perpetual preferred stock and related surplus
|
0
|
|||
Common stock
|
1,135,000
|
|||
Surplus (exclude all surplus related to preferred stock)
|
11,538,000
|
|||
Retained earnings
|
16,605,000
|
|||
Accumulated other comprehensive income
|
-198,000
|
|||
Other equity capital components
|
0
|
|||
Total bank equity capital
|
29,080,000
|
|||
Noncontrolling (minority) interests in consolidated subsidiaries
|
0
|
|||
Total equity capital
|
29,080,000
|
|||
Total liabilities and equity capital
|
349,432,000
|
Thomas P. Gibbons
Samuel C. Scott
Joseph J. Echevarria
|
Directors
|
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