Mercadolibre Inc 8-K, filed Sep 14, 2026
Mercadolibre Inc (MELI)
8-K
2026-09-14
For: 2026-09-14
View Original
Added on
September 15, 2026
About this 8-K
Mercadolibre Inc filed this 8-K on September 14, 2026.
Items reported
- Item 8.01: Other events
- Item 9.01: Financial statements and exhibits
UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
FORM 8-K
CURRENT REPORT
PURSUANT TO SECTION 13 OR 15(d) OF THE SECURITIES EXCHANGE ACT OF 1934
Date of Report (Date of earliest event Reported): September 14, 2026
(Exact name of Registrant as specified in Charter)
Commission file number 001-33647
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(State or other jurisdiction of incorporation )
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(I.R.S. Employer Identification Number)
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WTC Free Zone
(Address of registrant’s principal executive offices) (Zip Code)
(+598 ) 2-927-2770
(Registrant’s telephone number, including area code)
(Former name or former address, if changed since last report)
Check the appropriate box below if the Form 8-K filing is intended to simultaneously satisfy the filing obligation of the registrant under any of the following
provisions:
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Written communications pursuant to Rule 425 under the Securities Act (17 CFR 230.425)
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Soliciting material pursuant to Rule 14a-12 under the Exchange Act (17 CFR 240.14a-12)
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Pre-commencement communications pursuant to Rule 14d-2(b) under the Exchange Act (17 CFR 240.14d-2(b))
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Pre-commencement communications pursuant to Rule 13e-4(c) under the Exchange Act (17 CFR 240.13e-4(c))
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Securities registered pursuant to Section 12(b) of the Act:
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Title of Class
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Trading Symbol(s)
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Name of each exchange on which registered
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Indicate by check mark whether the registrant is an emerging growth company as defined in Rule 405 of the Securities Act of 1933 (17 CFR §230.405) or Rule 12b-2 of the
Securities Exchange Act of 1934 (17 CFR §240.12b-2). Emerging growth company ☐
If an emerging growth company, indicate by check mark if the registrant has elected not to use the extended transition period for complying with any new or revised
financial accounting standards provided pursuant to Section 13(a) of the Exchange Act.
| Item 8.01. |
Other Events.
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On September 14, 2026, MercadoLibre, Inc. (the “Company” or “we”) closed its underwritten public offering of $1,000,000,000 aggregate principal amount
of 5.850% Notes due 2036 (the “Notes”) pursuant to the Company’s Registration Statement on Form S-3 (File No. 333-291604). The Notes were issued pursuant to an indenture (the “Indenture”), dated as of January 14, 2021, among the Company, the
guarantors party thereto and The Bank of New York Mellon, as trustee (the “Trustee”), as supplemented by the fifth supplemental indenture (the “Fifth Supplemental Indenture”), dated as of September 14, 2026, among the Company and MercadoLibre
S.R.L., Mercado Livre Brasil Ltda., DeRemate.com de México, S. de R.L. de C.V., MP Agregador, S. de R.L. de C.V., MercadoLibre Chile Ltda. and MercadoLibre Colombia Ltda., as guarantors and the Trustee.
The foregoing description of the Indenture and Fifth Supplemental Indenture is qualified in its entirety by the terms of such agreements, which are
filed hereto as Exhibits 4.1 and 4.2, respectively, and incorporated herein by reference. The foregoing description of the Notes is qualified in its entirety by reference to the full text of the respective form of Notes filed hereto as Exhibit 4.3,
incorporated herein by reference.
In connection with the offering, the legal opinions as to the validity of the Notes are attached hereto as Exhibits 5.1, 5.2, 5.3, 5.4, 5.5 and 5.6 and
are incorporated herein by reference.
This report on Form 8-K shall be deemed to be incorporated by reference in the registration statement on Form S-3 (Registration Nos. 333-291604, 333-291604-01, 333-291604-03, 333-291604-04, 333-291604-05, 333-291604-07, 333-291604-08) of MercadoLibre, Inc., and to be part thereof from the date on which this
report is furnished, to the extent not superseded by documents or reports subsequently filed or furnished.
| Item 9.01 |
Financial Statements and Exhibits.
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(d) Exhibits
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Exhibit
Number
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Description
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Indenture, dated January 14, 2021, between MercadoLibre, Inc., MercadoLibre S.R.L., Ibazar.com Atividades de Internet Ltda., eBazar.com.br Ltda., Mercado Envios Servicos de
Logistica Ltda., MercadoPago.com Representações Ltda., MercadoLibre Chile Ltda., MercadoLibre, S. de R.L. de C.V., DeRemate.com de México, S. de R.L. de C.V. and MercadoLibre Colombia Ltda. and The Bank of New York Mellon, as trustee
(incorporated herein by reference to Exhibit 4.1 to MercadoLibre Inc.’s Current Report on Form 8-K filed with the Commission on January 14, 2021).
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Fifth Supplemental Indenture, dated September 14, 2026, between MercadoLibre, Inc., MercadoLibre S.R.L., Mercado Livre Brasil Ltda., DeRemate.com de México, S. de R.L. de C.V., MP
Agregador, S. de R.L. de C.V., MercadoLibre Chile Ltda. and MercadoLibre Colombia Ltda. and The Bank of New York Mellon, as trustee.
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Form of Global Note representing the Registrant’s Notes.
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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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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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Cover Page Interactive Data File (embedded within the Inline XBRL document).
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SIGNATURES
Pursuant to the requirements of the Securities Exchange Act of 1934, the registrant has duly caused this report to be signed on its behalf by the
undersigned hereunto duly authorized.
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MercadoLibre, Inc.
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Dated: September 14, 2026
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By:
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/s/ Martín de los Santos
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Name:
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Martín de los Santos
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Title:
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Chief Financial Officer
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Exhibit 4.2
MercadoLibre, Inc.
$1,000,000,000 5.850% Notes due 2036
Guaranteed by
MercadoLibre S.R.L.
Mercado Livre Brasil Ltda.
DeRemate.com de México, S. de R.L. de C.V.
MP Agregador, S. de R.L. de C.V.
MercadoLibre Chile Ltda.
MercadoLibre Colombia Ltda.
FIFTH SUPPLEMENTAL INDENTURE
Dated as of September 14, 2026
The Bank of New York Mellon,
as Trustee, Registrar, Paying Agent
and Transfer Agent
Fifth Supplemental Indenture (this “Fifth Supplemental Indenture”) dated as of
September 14, 2026 by and among MercadoLibre, Inc. (the “Company”), the Subsidiary Guarantors (as defined herein), and The Bank of New York Mellon, as trustee (the “Trustee”),
registrar, paying agent, and transfer agent.
RECITALS
A. The Company and the Trustee, executed and delivered an Indenture, dated as of January 14, 2021 (the “Base Indenture”), to provide for the issuance by the Company from time to time of debentures, notes or other debt instruments evidencing its indebtedness. The Base Indenture, as supplemented and amended by this
Fifth Supplemental Indenture, is herein referred to as the “Indenture.”
B. The Company has authorized the issuance of U.S.$1,000,000,000 principal amount of 5.850% Notes due 2036 (the “Notes”).
C. The Company and the Subsidiary Guarantors desire to enter into this Fifth Supplemental Indenture pursuant to Section 2.1 and Section 10.1
of the Base Indenture to (i) establish the terms of the Notes and in accordance with Section 2.2 of the Base Indenture, (ii) establish the form of the Notes in accordance with Section 2.2.12 and Section 2.3, each of the Base Indenture, (iii)
establish the terms and form of the Note Guarantees (as defined herein) in accordance with Section 2.2.22 and Section 2.19, each of the Base Indenture and (iv) change certain provisions of the Base Indenture with respect to the Notes.
D. All things necessary to make this Fifth Supplemental Indenture a valid and legally binding agreement according to its terms have been done.
NOW, THEREFORE, for and in consideration of the foregoing premises, the Company, the Subsidiary Guarantors and the Trustee mutually covenant and agree
for the equal and proportionate benefit of the Holders from time to time of the Notes as follows:
ARTICLE I
Section 1.1. Additional Defined Terms.
As used herein, the following defined terms shall have the following meanings with respect to the Notes only:
“Additional Amounts” has the meaning assigned to it in Section 2.7.2.
“Additional Subsidiary Guarantor” has the meaning assigned to it in Section
2.5.1.
“Additional Note Guarantee” has the meaning assigned to it in Section 2.5.1.
“Acquired Indebtedness” means Indebtedness of a Person or any of its
subsidiaries existing at the time such Person becomes a Subsidiary of the Company or at the time it merges or consolidates with the Company or any of its Subsidiaries or is assumed in connection with the acquisition of assets from such Person.
Acquired Indebtedness will be deemed to have been Incurred at the time such Person becomes a Subsidiary or at the time it merges or consolidates with the Company or a Subsidiary or at the time such Indebtedness is assumed in connection with the
acquisition of assets from such Person.
“Applicable Procedures” means, with respect to any transfer or exchange of or
for beneficial interests in any Global Note, the rules and procedures of the Depositary that apply to such transfer or exchange at the relevant time.
“Attributable Debt” means, with respect to a Sale and Lease-Back Transaction,
at the time of determination, the present value of the total net amount of rent required to be paid under such lease during the remaining term thereof (including any period for which such lease has been extended), discounted at the applicable rate
of interest set forth or implicit in the terms of such lease (or, if not practicable to determine such rate, the weighted average interest rate per annum borne by the Securities of all Series then outstanding under this Indenture).
“Capitalized Lease Obligations” means, as to any Person, the obligations of
such Person under a lease that are required to be classified and accounted for as capital lease obligations under GAAP. For purposes of this definition, the amount of such obligations at any date will be the capitalized amount of such obligations
at such date, determined in accordance with GAAP. Notwithstanding the foregoing, the obligations of any Person that are or would have been treated as operating leases for purposes of GAAP prior to the issuance by the Financial Accounting Standards
Board on February 25, 2016 of an Accounting Standards Update (the “ASU”) shall continue to be accounted for as operating leases for purposes of all financial definitions and
calculations for purpose of the Indenture (whether or not such operating lease obligations were in effect on such date) notwithstanding the fact that such obligations are required in accordance with the ASU (on a prospective or retroactive basis or
otherwise) to be treated as Capitalized Lease Obligations.
“Certificated Note” means a definitive note in registered non-global
certificated form.
“Change of Control” means the occurrence of one or more of the following
events:
(1) the direct or indirect sale, conveyance, assignment, transfer, lease or other disposition (other than by way of merger or consolidation),
in one or more transactions or series of related transactions, of all or substantially all of the assets of the Company and its Subsidiaries, determined on a consolidated basis, to any “person” (as that term is used in Section 13(d)(3) of the
Exchange Act); or
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(2) the consummation of any transaction (including, without limitation, any merger or consolidation) the result of which is that any person
(including any “person” or “group” (as such terms are used for purposes of Sections 13(d) and 14(d) of the Exchange Act)) is or becomes the “beneficial owner” (as defined in Section 13(d)(3) of the Exchange Act) of more than 50% of the Voting Stock
of the Company (including any Surviving Entity) measured by voting power rather than number of shares.
Notwithstanding the foregoing, a transaction will not be deemed to involve a Change of Control if (i)(A) the Company becomes a wholly-owned Subsidiary
of a holding company and (B) the Holders of the Voting Stock of such holding company immediately following that transaction are substantially the same as the Holders of the Company’s Voting Stock immediately prior to that transaction, (ii) pursuant
to a transaction in which the shares of the Voting Stock of the Surviving Entity immediately after giving effect to such transaction are substantially the same as the Holders of the Company’s Voting Stock immediately prior to that transaction or
(iii) the “person” referenced in clause (2) of the preceding sentence previously became the beneficial owner of the Company’s Voting Stock so as to have constituted a Change of Control in respect of which a Change of Control Offer was made (or
otherwise would have if not for the waiver of such requirement by the Holders of the Notes).
“Change of Control Notice” means notice of a Change of Control Offer made
pursuant to Section 2.1, which shall be sent to each record Holder as shown on the Note Register within 30 days following the date upon which a Change of Control Repurchase Event occurred, with a copy to the Trustee, in the manner provided for in
Section 11.1 of the Base Indenture and which notice shall govern the terms of the Change of Control Offer and shall state:
(1) that a Change of Control Repurchase Event has occurred, the circumstances or events causing such Change of Control Repurchase Event and
that a Change of Control Offer is being made pursuant to Section 2.1, and that all Notes that are timely tendered shall be accepted for payment;
(2) the Change of Control Payment, and the Change of Control Payment Date;
(3) that any Notes or portions thereof not tendered or accepted for payment shall continue to accrue interest;
(4) that, unless the Company defaults in the payment of the Change of Control Payment with respect thereto, all Notes or portions thereof
accepted for payment pursuant to the Change of Control Offer shall cease to accrue interest from and after the Change of Control Payment Date;
(5) that any Holder electing to have any Notes or portions thereof purchased pursuant to a Change of Control Offer shall be required to tender
such Notes, with the form entitled “Option of Holder to Elect Purchase” on the reverse of such Notes completed, to the Paying Agent at the address specified in the notice prior to the close of business on the third Business Day preceding the Change
of Control Payment Date;
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(6) that any Holder shall be entitled to withdraw such election if the Paying Agent receives, not later than the close of business on the
fifth Business Day preceding the Change of Control Payment Date, a facsimile transmission or letter, setting forth the name of the Holder, the principal amount of Notes delivered for purchase, and a statement that such Holder is withdrawing such
Holder’s election to have such Notes or portions thereof purchased pursuant to the Change of Control Offer;
(7) that any Holder electing to have Notes purchased pursuant to the Change of Control Offer must specify the principal amount that is being
tendered for purchase, which principal amount must be U.S.$50,000 or an integral multiple of U.S.$1,000 in excess thereof;
(8) that any Holder of Certificated Notes whose Certificated Notes are being purchased only in part shall be issued new Certificated Notes
equal in principal amount to the unpurchased portion of the Certificated Note or Notes surrendered, which unpurchased portion shall be equal in principal amount to U.S.$50,000 or an integral multiple of U.S.$1,000 in excess thereof;
(9) that the Trustee shall return to the Holder of a Global Note that is being purchased in part, such Global Note with a notation on the
schedule of increases and decreases thereof adjusting the principal amount thereof to be equal to the unpurchased portion of such Global Note; and
(10) that the Company will have the right, upon prior notice, to redeem all of the Notes at 101% of the principal amount thereof, plus accrued
and unpaid interest, if any, to, but not including, the Redemption Date (subject to the right of Holders of Notes on a relevant record date to receive interest on an interest payment date occurring on or prior to the Redemption Date), following the
consummation of a Change of Control Repurchase Event if at least 90% of the Outstanding Notes prior to such consummation are purchased pursuant to a Change of Control Offer with respect to such Change of Control Repurchase Event in accordance with
Section 2.1.6.
“Change of Control Offer” has the meaning assigned to it in Section 2.1.2.
“Change of Control Payment” has the meaning assigned to it in Section 2.1.1.
“Change of Control Payment Date” means a Business Day at least 30 days but no
more than 60 days subsequent to the date on which the Change of Control Notice is given (other than as may be required by applicable law).
“Change of Control Repurchase Event” means the occurrence of both a Change of
Control and a Rating Downgrade Event.
“Code” has the meaning assigned to it in Section 2.7.3.8.
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“Common Stock” means, with respect to any Person, any and all shares,
interests or other participations in, and other equivalents (however designated and whether voting or non-voting) of such Person’s common equity interests, whether outstanding on the Issue Date or issued after the Issue Date, and includes, without
limitation, all series and classes of such common equity interests.
“Consolidated Total Assets” means, at any date of determination, the total
assets of the Company and its Subsidiaries and VIEs on a consolidated basis, as shown on the most recent quarterly financial statements of the Company provided to the Trustee pursuant to Section 5.5 of the Base Indenture (or required to be provided
thereunder), calculated in accordance with GAAP and on a pro forma basis to give effect to any acquisition or disposition of companies, divisions, lines of businesses or operations or assets by the Company and its Subsidiaries and VIEs subsequent
to such date and on or prior to the date of determination.
“Disqualified Capital Stock” means that portion of any Capital Stock which, by
its terms (or by the terms of any security into which it is convertible or for which it is exchangeable at the option of the holder thereof), or upon the happening of any event, matures or is mandatorily redeemable, pursuant to a sinking fund
obligation or otherwise, or is redeemable at the sole option of the holder thereof, in whole or in part, on or prior to the date that is 91 days after the date on which the Notes mature; provided, however, that only the portion of Capital Stock which so matures or is mandatorily redeemable, is so convertible or exchangeable or is so redeemable at the option of the holder thereof prior to such date will be deemed
to be Disqualified Capital Stock; provided, further, however, that, if such Capital Stock is issued
to any employee or to any plan for the benefit of employees of the Company, any direct or indirect parent of the Company, or the Company’s Subsidiaries or by any such plan to such employees, such Capital Stock will not constitute Disqualified
Capital Stock solely because it may be required to be repurchased by the Company in order to satisfy applicable statutory or regulatory obligations or as a result of such employee’s termination, death or disability; provided, further, that any
class of Capital Stock of such Person that by its terms authorizes such Person to satisfy its obligations thereunder by delivery of Capital Stock that is not Disqualified Capital Stock will not be deemed to be Disqualified Capital Stock.
“Global Note Legend” means the legend set forth in Section 1.4 hereof, which
is required to be placed on all Global Notes issued under the Indenture.
“Global Notes” means, individually and collectively, each of the global notes,
substantially in the form of Exhibit A hereto and that bears the Global Note Legend, issued in accordance with Section 2.1 of the Base Indenture and Section 1.3 hereof.
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“Excluded Subsidiary” means any Subsidiary that: (i) is not or ceases to be a
Wholly Owned Subsidiary of the Company as a consequence of a third party investing in or acquiring Capital Stock of such Subsidiary for fair market value, as determined in good faith by the Company; (ii) is prohibited or restricted by applicable
law or regulation from being or becoming a Subsidiary Guarantor or, if the guarantee of the Notes would require governmental (including regulatory) consent, approval, license or authorization, or is or becomes a regulated entity that is subject to
net worth or net capital or similar capital and surplus restrictions, and in each case, the Company reasonably determines that the granting or maintenance of a Note Guarantee by such Subsidiary is prohibited by, or would be unduly burdensome under,
applicable laws or regulations; (iii) in the case of any Subsidiary other than an Initial Subsidiary Guarantor, the Company reasonably determines that the granting or maintenance of a Note Guarantee by such Subsidiary would result in adverse tax
consequences to the Company or any of its Subsidiaries, or (iv) is MPFS, S. de R.L. de C.V.
“Fair Market Value” means, with respect to any asset, the price (after taking
into account any liabilities relating to such assets) which could be negotiated in an arm’s-length free market transaction, for cash, between a willing seller and a willing and able buyer, neither of which is under any compulsion to complete the
transaction; provided that the Fair Market Value of any such asset or assets will be determined conclusively by the Board of Directors of the Company acting in good faith, and will be evidenced by a Board Resolution.
“Fitch” means Fitch Ratings, Inc., and its subsidiaries, and any successors
thereto.
“Guarantee” means any obligation, contingent or otherwise, of any Person
directly or indirectly guaranteeing any Indebtedness of any other Person:
(1) to purchase or pay, or advance or supply funds for the purchase or payment of, such Indebtedness of such other Person, whether arising by
virtue of partnership arrangements, or by agreement to keep-well, to purchase assets, goods, securities or services, to take-or-pay, or to maintain financial statement conditions or otherwise; or
(2) entered into for purposes of assuring in any other manner the obligee of such Indebtedness of the payment thereof or to protect such
obligee against loss in respect thereof, in whole or in part;
provided that “Guarantee” will
not include endorsements for collection or deposit in the ordinary course of business. “Guarantee,” when used as a verb, has a corresponding meaning. The term “Guarantee” shall not apply to a guarantee of intercompany indebtedness among the
Company, the Subsidiary Guarantors and the Subsidiaries or among the Subsidiary Guarantors or the Subsidiaries.
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“Hedging Obligations” means, with respect to any Person, the obligations of
such Person with respect to (1) any rate swap transactions, basis swaps, credit derivative transactions, forward rate transactions, commodity options, forward commodity contracts, equity or equity index swaps or options, bond or bond price or bond
index swaps or options or forward bond or forward bond price or forward bond index transactions, interest rate options, forward foreign exchange transactions, cap transactions, floor transactions, collar transactions, currency swap transactions,
cross-currency rate swap transactions, currency options, spot contracts, or any other similar transactions or any combination of any of the foregoing (including any options to enter into any of the foregoing), whether or not any such transaction is
governed by or subject to any master agreement, and (2) any and all transactions of any kind, and the related confirmations, which are subject to the terms and conditions of, or governed by, any form of master agreement published by the
International Swaps and Derivatives Association, Inc., any International Foreign Exchange Master Agreement, or any other master agreement (any such master agreement, together with any related schedules, a “Master Agreement”), including any such obligations or liabilities under any Master Agreement.
“Incur” means, with respect to any Indebtedness or other obligation of any
Person, to create, issue, incur (including by conversion, exchange or otherwise), assume, guarantee or otherwise become liable in respect of such Indebtedness (and “Incurrence”
and “Incurred” will have meanings correlative to the foregoing), provided that (1) any Indebtedness
of a Person existing at the time such Person becomes a Subsidiary of the Company will be deemed to be Incurred by such Subsidiary at the time it becomes a Subsidiary of the Company and (2) neither the accrual of interest nor the accretion of
original issue discount nor the payment of dividends on Disqualified Capital Stock or Preferred Stock in the form of additional shares of the same class of Disqualified Capital Stock or Preferred Stock will be considered an Incurrence of
Indebtedness.
“Indebtedness” means, with respect to any Person, without duplication:
(1) the principal amount (or, if less, the accreted value) of all obligations of such Person for borrowed money;
(2) the principal amount (or, if less, the accreted value) of all obligations of such Person evidenced by bonds, debentures, notes or other
similar instruments;
(3) all Capitalized Lease Obligations of such Person;
(4) all obligations of such Person issued or assumed as the deferred purchase price of property, all conditional sale obligations and all
obligations under any title retention agreement (but excluding trade accounts or other short term obligations to suppliers payable within 180 days, in each case in the ordinary course of business);
(5) all reimbursement obligations in respect of letters of credit, banker’s acceptances or similar credit transactions (except to the extent
incurred in the ordinary course of business and such obligation is satisfied within 20 Business Days of Incurrence);
(6) guarantees and other contingent obligations of such Person in respect of Indebtedness referred to in clauses (1) through (5) above;
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(7) all Indebtedness of any other Person of the type referred to in clauses (1) through (6) above which is secured by any Lien on any property
or asset of such Person, the amount of such Indebtedness being deemed to be the lesser of the Fair Market Value of such property or asset and the amount of the Indebtedness so secured; and
(8) all Disqualified Capital Stock issued by such Person with the amount of Indebtedness represented by such Disqualified Capital Stock being
equal to the greater of its voluntary or involuntary liquidation preference and its maximum fixed repurchase price, but excluding accrued dividends, if any; provided that:
(a) if the Disqualified Capital Stock does not have a fixed repurchase price, such maximum fixed repurchase price will be calculated
in accordance with the terms of the Disqualified Capital Stock as if the Disqualified Capital Stock were purchased on any date on which Indebtedness will be required to be determined pursuant to the Indenture; and
(b) if the maximum fixed repurchase price is based upon, or measured by, the fair market value of the Disqualified Capital Stock,
the fair market value will be the Fair Market Value thereof.
The amount of Indebtedness of any Person at any date will be deemed to be: (i) with respect to contingent obligations, the maximum liability upon the
occurrence of the contingency giving rise to the obligations, provided that with respect to contingent obligations related to Permitted Securitization Financings, the amount
that would appear as a liability on the balance sheet of such Person in accordance with GAAP; (ii) with respect to any Indebtedness issued with original issue discount, the face amount of such Indebtedness less the remaining unamortized portion of
the original issue discount of such Indebtedness; and (iii) otherwise, the outstanding principal amount thereof. Notwithstanding the foregoing, the following shall not constitute Indebtedness: (i) Hedging Obligations and (ii) Non-Recourse
Indebtedness.
“Indirect Participant” means any entity that, with respect to the Depositary,
clears through or maintains a direct or indirect custodial relationship with a Participant.
“Initial Subsidiary Guarantors” mean MercadoLibre S.R.L., Mercado Livre Brasil
Ltda., DeRemate.com de México, S. de R.L. de C.V., MP Agregador, S. de R.L. de C.V., MercadoLibre Chile Ltda., and MercadoLibre Colombia Ltda.
“Interest Payment Date” means the stated due date of an installment of
interest on the Notes set forth in the Notes.
“Lien” means any lien, mortgage, deed of trust, pledge, security interest,
charge or encumbrance of any kind (including any conditional sale or other title retention agreement, any lease in the nature thereof and any agreement to give any security interest); provided that the lessee in respect of a Capitalized Lease Obligation or Sale and Lease-Back Transaction will be deemed to have Incurred a Lien on the property leased thereunder; provided that in no event shall an operating lease be deemed to constitute a Lien.
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“Maturity Date” means, when used with respect to any Note, the date on which
the principal of such Note becomes due and payable as therein or herein provided, whether at Stated Maturity or by declaration of acceleration, call for redemption, exercise of the repurchase right or otherwise.
“Moody’s” means Moody’s Investors Service, Inc., and its subsidiaries, and any
successors thereto.
“Non-Recourse Indebtedness” means any Indebtedness of the Company or any
Subsidiary for which the holder of such Indebtedness has no recourse, directly or indirectly, to the Company or such Subsidiary for the principal of, premium, if any, and interest on such Indebtedness, and for which the Company or such Subsidiary
is not, directly or indirectly, obligated or otherwise liable for the principal of, premium, if any, and interest on such Indebtedness, except pursuant to security interests or collateral documents or other recourse, obligations or liabilities, in
respect of specific assets of the Company or such Subsidiary securing such Indebtedness; provided, that, recourse, obligations or liabilities solely for indemnities, breaches of warranties or representations that are contained in such security
interests or collateral documents or other documentation in respect of Indebtedness, will not prevent that Indebtedness from being classified as Non-Recourse Indebtedness.
“Note Guarantee” means the Guarantee by a Subsidiary Guarantor of the
Company’s obligations under the Indenture and the Notes, pursuant to the provisions of the Indenture.
“Participant” means, with respect to the Depositary, a Person who has an
account with the Depositary.
“Permitted Liens” means any of the following Liens:
(1) Liens existing on the Issue Date and any extension, renewal or replacement thereof, so long as the principal amount of Indebtedness
secured thereby does not exceed the principal amount of Indebtedness so secured at the time of such extension, renewal or replacement (except that, where an additional principal amount of Indebtedness is incurred to provide funds for the completion
of a specific project, the additional principal amount, and any related financing costs, may be secured by the Lien as well) and the Lien is limited to the same property subject to the Lien so extended, renewed or replaced (and any improvements on
such property);
(2) statutory Liens of landlords and Liens of carriers, warehousemen, mechanics, suppliers, materialmen, repairmen and other Liens imposed by
law incurred in the ordinary course of business for sums not yet delinquent or being contested in good faith by appropriate proceedings;
(3) (a) licenses, sublicenses, leases or subleases granted by the Company or any of its Subsidiaries to other Persons not materially
interfering with the conduct of the business of the Company or any of its Subsidiaries and (b) any interest or title of a lessor, sublessor or licensor under any lease or license agreement permitted by the Indenture to which the Company or any
Subsidiary is a party;
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(4) Liens Incurred or deposits made in the ordinary course of business in connection with workers’ compensation, unemployment insurance and
other types of social security, including any Lien securing letters of credit issued in the ordinary course of business in connection therewith, or to secure the performance of tenders, statutory obligations, surety and appeal bonds, customs
duties, bids, leases, government performance and return-of-money bonds and other similar obligations (exclusive of obligations for the payment of borrowed money);
(5) Liens upon specific items of inventory or other goods and proceeds of any Person securing such Person’s obligations in respect of bankers’
acceptances issued or created for the account of such Person to facilitate the purchase, shipment or storage of such inventory or other goods;
(6) Liens on patents, trademarks, service marks, trade names, copyrights, technology, know-how and processes to the extent such Liens arise
from the granting of license to use such patents, trademarks, service marks, trade names, copyrights, technology, know-how and processes to any Person in the ordinary course of business of the Company or any of its Subsidiaries;
(7) Liens securing reimbursement obligations with respect to commercial letters of credit which encumber documents and other property relating
to such letters of credit and products and proceeds thereof;
(8) Liens encumbering deposits made to secure obligations arising from statutory, regulatory, contractual, or warranty requirements of the
Company or a Subsidiary, including rights of offset and set-off;
(9) (i) Liens for taxes, assessments or other governmental charges, and (ii) attachment or judgment Liens, in each case, which are being
contested in good faith by appropriate proceedings, provided that reserves or other appropriate provisions, if any, as may be required pursuant to GAAP have been made in
respect thereof;
(10) encumbrances, ground leases, easements or reservations of, or rights of others for, licenses, rights of way, sewers, electric lines,
telegraph and telephone lines and other similar purposes, or zoning, building codes or other restrictions (including, without limitation, minor defects or irregularities in title and similar encumbrances) as to the use of real properties or Liens
incidental to the conduct of the business of the Company or any of its Subsidiaries or to the ownership, lease or sublease of properties which do not in the aggregate materially adversely affect the value of said properties or materially impair
their use in the operation of the business of the Company or any of its Subsidiaries;
(11) deposits in the ordinary course of business securing liability for reimbursement obligations of insurance carriers providing insurance to
the Company or its Subsidiaries and any Liens thereon;
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(12) Liens arising solely by virtue of any statutory or common law provisions relating to banker’s Liens, rights of set-off or similar rights
and remedies as to deposit accounts or other funds maintained with a depositary institution;
(13) Liens in favor of the government of Argentina, Brazil, Mexico, Chile, Colombia and the United States or any political subdivision thereof,
to secure payments pursuant to any contract with such government or to any statute to which the Company or any of its Subsidiaries is subject;
(14) Liens securing the Notes or any guarantees of the Notes;
(15) Liens securing Indebtedness or other obligations of a Subsidiary owing to the Company or another Subsidiary;
(16) Liens securing Acquired Indebtedness not incurred in connection with, or in anticipation or contemplation of, the relevant acquisition,
merger or consolidation; provided that:
(a) such Liens secured such Acquired Indebtedness at the time of and prior to the Incurrence of such Acquired Indebtedness by the
Company or a Subsidiary and were not granted in connection with, or in anticipation of the Incurrence of such Acquired Indebtedness by the Company or a Subsidiary; and
(b) such Liens do not extend to or cover any property of the Company or any Subsidiary other than the property that secured the
Acquired Indebtedness prior to the time such Indebtedness became Acquired Indebtedness of the Company or a Subsidiary and are no more favorable to the lienholders than the Liens securing the Acquired Indebtedness prior to the Incurrence of such
Acquired Indebtedness by the Company or a Subsidiary.
(17) purchase money Liens securing Purchase Money Indebtedness or Capitalized Lease Obligations Incurred (or guarantees in respect thereof) to
finance the acquisition or leasing of property of the Company or a Subsidiary; provided that:
(a) the related Purchase Money Indebtedness does not exceed the cost of such property and will not be secured by any property of the
Company or any Subsidiary other than the property so acquired; and
(b) the Lien securing such Indebtedness will be created within 365 days of such acquisition;
(18) Liens granted to secure Indebtedness from, directly or indirectly, any international or multilateral development bank, government-sponsored
agency, export-import bank or agency, or official export-import credit insurer;
(19) Liens incurred in connection with a Permitted Securitization Financing; or
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(20) Liens incurred in connection with Non-Recourse Indebtedness; or
(21) Liens securing an amount of Indebtedness or Attributable Debt outstanding at any one time not to exceed the greater of (a) U.S.$15,406
million (or the equivalent in other currencies) or (b) 30 % of Consolidated Total Assets.
For purposes of determining compliance with this covenant, (i) a Lien need not be incurred solely by reference to one category of Permitted Liens
described above but are permitted to be incurred in part under any combination thereof and of any other available exemption, and (ii) in the event that a Lien (or any portion thereof) meets the criteria of one or more of the categories of Permitted
Liens, the Company shall, in its sole discretion, classify or reclassify such Lien (or any portion thereof) in any manner that complies with the categories of Permitted Liens.
“Permitted Securitization Financing” means any of one or more financing
facilities in respect of accounts receivables, credit card receivables, credit loans or any rights to receive payments in the ordinary course of business (whether in the form of a securitization, factoring, discounting, individual or global/bulk
assignment or other similar financing transaction) the obligations of which are non-recourse to the Company or any Subsidiary (other than a Securitization Subsidiary or other Person that is not a Subsidiary), except for customary representations,
warranties, covenants, indemnities, legal or regulatory obligations with respect to the validity or existence of the assigned, discounted or secured right, and other customary carve outs or guarantees in connection with such facilities, as amended,
supplemented, modified, extended, renewed, restated or refunded from time to time.
“Preferred Stock” means, with respect to any Person, any Capital Stock of such
Person that has preferential rights over any other Capital Stock of such Person with respect to dividends, distributions or redemptions or upon liquidation.
“Prospectus” means the prospectus or supplemental prospectus of the Notes.
“Purchase Money Indebtedness” means Indebtedness Incurred for the purpose of
financing all or any part of the purchase price, or other cost of construction or improvement of any property; provided that the aggregate principal amount of such
Indebtedness does not exceed such purchase price or cost, including any Refinancing of such Indebtedness that does not increase the aggregate principal amount (or accreted amount, if less) thereof as of the date of the Refinancing.
“Qualified Capital Stock” means any Capital Stock that is not Disqualified
Capital Stock and any warrants, rights or options to purchase or acquire Capital Stock that is not Disqualified Capital Stock that are not convertible into or exchangeable into Disqualified Capital Stock.
“Rating Agency” means (1) each of Fitch, Moody’s and S&P; and (2) if any
of Fitch, Moody’s or S&P ceases to rate the Notes or fails to make a rating of the Notes publicly available for reasons outside of our control, a “nationally recognized statistical rating organization” within the meaning of Rule
15c3-1(c)(2)(vi)(F) under the Exchange Act, selected by us as a replacement agency for Fitch, Moody’s or S&P, as the case may be.
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“Rating Downgrade Event” means the rating on the Notes is lowered from their
rating then in effect as a result of any event or circumstance comprised of or arising as a result of, or in respect of, a Change of Control (or pending Change of Control) by at least two of the Rating Agencies on any date during the period (the “Trigger Period”) commencing on the earlier of (i) the occurrence of a Change of Control and (ii) the first public notice of the intention by the Company to effect a Change of
Control, and ending 60 days thereafter (which Trigger Period shall be extended so long as the rating of the Notes is under publicly announced consideration for possible downgrade by any of the Rating Agencies). In the event that less than two
Rating Agencies are providing a rating for the Notes at the commencement of any Trigger Period, then a “Rating Downgrade Event” shall be deemed to have occurred during that Trigger Period. Notwithstanding the foregoing, no Rating Downgrade Event
will be deemed to have occurred as a result of any event or circumstance comprised of or arising as a result of, or in respect of, a Change of Control unless and until such Change of Control has actually been consummated.
“Redemption Date” means, when used with respect to any Note to be redeemed,
the date fixed for such redemption by or pursuant to the Indenture.
“Refinance” means, in respect of any Indebtedness, to issue any Indebtedness
in exchange for or to refinance, replace, defease or refund such Indebtedness in whole or in part. “Refinanced” and “Refinancing” have correlative meanings.
“Relevant Jurisdiction” has the meaning assigned to it in Section 2.7.2.
“S&P” means S&P Global Ratings, a division of S&P Global, Inc., or
any successor thereto.
“Sale and Lease-Back Transaction” means any direct or indirect arrangement
with any Person or to which any such Person is a party providing for the leasing to the Company or a Subsidiary of any property, whether owned by the Company or any Subsidiary at the Issue Date or later acquired, which has been or is to be sold
or transferred by the Company or such Subsidiary to such Person or to any other Person by whom funds have been or are to be advanced on the security of such Property for a sale price of U.S.$200 million (or its equivalents in other currencies) or
more.
“Securitization Subsidiary” means a Subsidiary of the Company
(1) that is designated a “Securitization Subsidiary” by the Board of Directors;
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(2) that does not engage in, and whose charter prohibits it from engaging in, any activities other than Permitted Securitization Financings
and any activity necessary, incidental or related thereto;
(3) no portion of the Indebtedness or any other obligation, contingent or otherwise, of which
(a) is Guaranteed by the Company or any other Subsidiary of the Company,
(b) is recourse to or obligates the Company or any other Subsidiary of the Company in any way, or
(c) subjects any property or asset of the Company or any other Subsidiary of the Company, directly or indirectly, contingently or
otherwise, to the satisfaction thereof; and
(4) with respect to which neither the Company nor any other Subsidiary of the Company has any obligation to maintain or preserve its financial
condition or cause it to achieve certain levels of operating results;
provided that, in respect of
clauses (3) and (4), customary recourse pursuant to the definition of Permitted Securitization Financing shall be allowed.
“Subsidiary Guarantor” means the Initial Subsidiary Guarantors and any other
Subsidiary (other than an Excluded Subsidiary) that becomes a guarantor in respect of Triggering Indebtedness.
“Tax” has the meaning assigned to it in Section 2.7.1.
“Triggering Indebtedness” means (i) any U.S. Dollar or Euro debt securities of
the Company (other than the Notes) issued in the international capital markets, or (ii) any U.S. Dollar or Euro bilateral or syndicated credit facility extended by any financial institutions to the Company that has an aggregate principal amount at
any one time outstanding in excess of U.S.$300 million.
“VIE” means a variable interest entity which the Company consolidates by
virtue of having both the power to direct the activities that most significantly impact the entity’s economic performance and the obligation to absorb losses or the right to receive benefits from the entity that could potentially be significant to
the variable interest entity. For the purposes of this Indenture, a variable interest entity is an entity (i) that has insufficient equity to permit the entity to finance its activities without additional subordinated financial support, (ii) that
has equity investors who lack the characteristics of a controlling financial interest or (iii) in which the voting rights of some equity investors are disproportionate to their obligation to absorb losses or their right to receive returns and
substantially all of the entity’s activities are conducted on behalf of the equity investors with disproportionately few voting rights.
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“Wholly Owned Subsidiary” means, with respect to a Subsidiary of a Person, a
Subsidiary of such Person all of the outstanding Capital Stock of which (other than (x) director’s qualifying shares, and (y) shares issued to foreign nationals to the extent required by applicable law) are owned by such Person and/or by one or
more wholly owned Subsidiaries of such Person.
Section 1.2. Terms of the Notes.
The following terms relate to the Notes:
(1) The Notes shall constitute a separate Series of Securities under the Base Indenture having the title “5.850% Notes due 2036”.
(2) The aggregate principal amount of the Notes issued on the Issue Date (the “Initial Notes”) that may be initially authenticated and delivered under the Indenture shall be U.S.$1,000,000,000 of such Notes. The Company may from time to time, without the consent of the Holders of such Notes, in one or more
transactions, issue additional Notes (in any such case, “Additional Notes”) having substantially identical terms (other than issue price, Issue Date and date from which the
interest will accrue) as the Initial Notes, and will carry the same right to receive accrued and unpaid interest as such Initial Notes previously outstanding. Any such Additional Notes together with the Initial Notes, shall each consolidate and
form a single Series of Securities under the Indenture, including, among other things, the right to vote together with Holders of the relevant Notes issued on the Issue Date as one class, and all references to the “Notes” shall include the Initial
Notes and the Additional Notes, as applicable, unless the context otherwise requires; provided, however, that a separate CUSIP or ISIN shall be issued for the Additional
Notes, unless such Additional Notes are issued pursuant to a “qualified reopening” of the relevant original Series of Securities, are otherwise treated as part of the same “issue” of debt instruments as the original Series of Securities or are
issued with no more than a de minimis amount of original issue discount, in each case for U.S.
federal income tax purposes. Such Additional Notes will also be guaranteed by the Subsidiary Guarantors (with the same ranking as the Note Guarantee for the initial Notes of such Series). The aggregate principal amount of the Additional Notes that
may be issued shall be unlimited.
(3) The Notes shall mature on September 14, 2036 unless earlier redeemed in accordance with the terms of the Notes and the Indenture.
(4) Interest on the Notes will accrue at the rate of 5.850% per year and shall be payable semi-annually in arrears on March 14 and September
14 of each year, commencing on March 14, 2027. Payments will be made to the persons who are registered Holders at the close of business on March 1 and September 1, as the case may be, immediately preceding the applicable Interest Payment Date
(whether or not a Business Day). Interest on the Notes will accrue from the most recent date to which interest has been paid or, if no interest has been paid, from and including the Issue Date. Interest will be computed on the basis of a 360-day
year comprised of twelve 30-day months.
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(5) The Notes will be issued in the form of one or more Global Notes without coupons and registered in the name of a nominee of The Depository
Trust Company (“DTC”), as Depositary. The Notes shall be substantially in the form attached hereto as Exhibit A, the terms of which are herein incorporated by reference. The
Notes shall be denominated and payable in U.S. Dollars and will be issuable in minimum denominations of U.S.$50,000 and any integral multiple of U.S.$1,000 in excess thereof.
(6) The Notes may be redeemed prior to their respective Maturity Date, as provided in Section 2.1, Article IV of the Base Indenture and under
the captions “Optional Redemption” and “Mandatory Repurchase Provisions” in the Notes.
(7) The Notes will not be entitled to the benefit of any mandatory sinking fund.
(8) Except as provided in Section 1.3, Section 1.5 and Article II hereof and under the captions “Optional Redemption” and “Mandatory
Repurchase Provisions” in the Notes, the Holders of the Notes shall have no special rights in addition to those provided in the Base Indenture upon the occurrence of any particular events.
(9) The Notes will:
(a) be senior unsecured obligations of the Company;
(b) rank equal in right of payment with all other existing and future senior unsecured indebtedness of the Company;
(c) rank senior in right of payment to all existing and future subordinated indebtedness of the Company, if any;
(d) be effectively subordinated to all existing and future secured indebtedness of the Company to the extent of the value of the
assets securing such indebtedness;
(e) be effectively subordinated to obligations of the Company preferred by statute or by operation of law;
(f) be guaranteed by each Subsidiary Guarantor with such Note Guarantee ranking equal in right of payment with all other existing
and future senior unsecured indebtedness of such Subsidiary Guarantor, except for statutory priorities under applicable local law; and
(g) be effectively subordinated to all existing and future indebtedness of any Subsidiary that does not provide a Note Guarantee.
(10) The Notes are not convertible into Common Stock or other securities of the Company.
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(11) The covenants set forth in Articles V and VI of the Base Indenture and the Events of Default and other provisions set forth in Article VII
of the Base Indenture, as supplemented by this Fifth Supplemental Indenture, shall be applicable to the Notes.
(12) The Notes shall be issued as Unrestricted Securities.
Section 1.3. Transfer and Exchange.
1.3.1 Transfer and Exchange of Global Notes. This Section 1.3.1 replaces the second paragraph of Section 2.14.2 of the Base Indenture with respect to the Notes only.
Except as provided in Section 2.14.2 of the Base Indenture, a Global Note may not be transferred except as a whole by the Depositary with respect to
such Global Note to a nominee of such Depositary, by a nominee of such Depositary to such Depositary or another nominee of such Depositary or by the Depositary or any such nominee to a successor Depositary or a nominee of such a successor
Depositary; however, beneficial interests in a Global Note may be transferred and exchanged as provided in Section 2.7 of the Base Indenture, as amended by Section 1.3.5.
1.3.2 Transfer and Exchange of Beneficial Interests in the Global Notes. This Section 1.3.2 shall apply with respect to the Notes only.
The transfer and exchange of beneficial interests in the Global Notes will be effected through the Depositary, in accordance with the provisions of
the Indenture and the Applicable Procedures. Transfers of beneficial interests in the Global Notes also will require compliance with either subparagraph (a) or (b) below, as applicable, as well as one or more of the other following subparagraphs,
as applicable.
(a) Transfer of Beneficial Interests in the Same Global Note.
Beneficial interests in any Global Note may be transferred to Persons who take delivery thereof in the form of a beneficial interest in the same Global Note. No written orders or instructions shall be required to be delivered to the Registrar to
effect the transfers described in this Section 1.3.2(a).
(b) All Other Transfers and Exchanges of Beneficial Interests in Global Notes.
In connection with all transfers and exchanges of beneficial interests that are not subject to Section 1.3.2(a) above, the transferor of such beneficial interest must deliver to the Registrar either:
(a) both:
(1) a written order from a Participant or an Indirect Participant given to the Depositary in accordance with the
Applicable Procedures directing the Depositary to credit or cause to be credited a beneficial interest in another Global Note in an amount equal to the beneficial interest to be transferred or exchanged; and
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(2) instructions given by the Depositary in accordance with the Applicable Procedures containing information regarding the
Participant account to be credited with such increase; or
(b) both:
(1) a written order from a Participant or an Indirect Participant given to the Depositary in accordance with the
Applicable Procedures directing the Depositary to cause to be issued a Certificated Note in an amount equal to the beneficial interest to be transferred or exchanged; and
(2) instructions given by the Depositary to the Registrar containing information regarding the Person in whose name such
Certificated Note shall be registered.
Upon satisfaction of all of the requirements for transfer or exchange of beneficial interests in Global Notes contained in the Indenture and the Notes, the Trustee shall
adjust the principal amount of the relevant Global Note(s) pursuant to Section 1.3.4 of this Fifth Supplemental Indenture.
1.3.3 Transfer and Exchange of Certificated Notes for Certificated Notes. This Section 1.3.3 shall apply with respect to the Notes only.
Upon request by a Holder of Certificated Notes and such Holder’s compliance with the provisions of this Section 1.3.3, the Registrar will register the
transfer or exchange of Certificated Notes. Prior to such registration of transfer or exchange, the requesting Holder must present or surrender to the Registrar the Certificated Notes duly endorsed or accompanied by a written instruction of
transfer in form satisfactory to the Registrar duly executed by such Holder or by its attorney, duly authorized in writing. In addition, the requesting Holder must provide any additional certifications, documents and information, as applicable,
reasonably required by the Registrar.
1.3.4 Cancellation and/or Adjustment of Global Notes. This Section 1.3.4 shall apply with respect to the Notes only.
At such time as all beneficial interests in a particular Global Note have been exchanged for Certificated Notes or a particular Global Note has been
redeemed, repurchased or canceled in whole and not in part, each such Global Note will be returned to or retained and canceled by the Trustee in accordance with Section 2.12 of the Base Indenture. At any time prior to such cancellation, if any
beneficial interest in a Global Note is exchanged for or transferred to a Person who will take delivery thereof in the form of a beneficial interests in another Global Note or for Certificated Notes, the principal amount of Notes represented by
such Global Note will be reduced accordingly and an endorsement will be made on such Global Note by the Trustee or by the Depositary at the direction of the Trustee to reflect such reduction; and if the beneficial interest is being exchanged for or
transferred to a Person who will take delivery thereof in the form of a beneficial interest in another Global Note, such other Global Note will be increased accordingly and an endorsement will be made on such Global Note by the Trustee or by the
Depositary at the direction of the Trustee to reflect such increase.
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1.3.5 General Provisions Relating to Transfers and Exchanges. This Section 1.3.5 shall replace Section 2.7 of the Base Indenture with respect to the Notes only.
(a) To permit registrations of transfers and exchanges, the Company will execute and the Trustee will authenticate Global
Notes and Certificated Notes upon receipt of a Company Order in accordance with Section 2.3 of the Base Indenture.
(b) No service charge will be made to a holder of a beneficial interest in a Global Note, a Holder of a Global Note or to a
Holder of a Certificated Note for any registration of transfer or exchange, but the Company may require payment of a sum sufficient to cover any stamp duty, stamp duty reserve tax, documentary, transfer tax or similar governmental charge payable in
connection therewith (other than any such transfer taxes or similar governmental charge payable upon exchange or transfer pursuant to Section 2.7 or Section 4.6, each of the Base Indenture).
(c) The Registrar will not be required to register the transfer of or exchange of any Note selected for redemption in whole
or in part, except the unredeemed portion of any Note being redeemed in part.
(d) All Global Notes and Certificated Notes issued upon any registration of transfer or exchange of Global Notes or
Certificated Notes will be the valid obligations of the Company, evidencing the same debt, and entitled to the same benefits under the Indenture, as the Global Notes or Certificated Notes surrendered upon such registration of transfer or exchange.
(e) Neither the Registrar nor the Company will be required:
(f) to issue, to register the transfer of or to exchange any Notes during a period beginning at the opening of business 15
days before the day of any selection of Notes for redemption under Section 4.2 of the Base Indenture, as amended by this Fifth Supplemental Indenture, and ending at the close of business on the day of selection;
(g) to register the transfer of or to exchange any Note selected for redemption in whole or in part, except the unredeemed
portion of any Note being redeemed in part; or
(h) to register the transfer of or to exchange a Note between a record date and the next succeeding Interest Payment Date.
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1.3.6 Holders. This Section 1.3.6 shall replace Section 2.14.6 of the Base Indenture with respect to the Notes only.
Prior to due presentment for the registration of a transfer of any Note, the Trustee, any Agent and the Company may deem and treat the Person in whose
name any Note is registered as the absolute owner of such Note for the purpose of receiving payment of principal of, premium, if any, and interest and Additional Amounts, if any, on such Notes and for all other purposes, and none of the Trustee,
any Agent or the Company shall be affected by notice to the contrary.
Section 1.4. Legend. This Section 1.4 shall replace Section 2.14.3 of the Base Indenture with respect to the Notes only.
The following legend will appear in substantially the following form on the face of each Global Note issued under the Indenture unless specifically
stated otherwise in the applicable provisions of the Indenture.
“THIS GLOBAL NOTE IS HELD BY THE DEPOSITARY (AS DEFINED IN THE INDENTURE GOVERNING THIS NOTE) OR ITS NOMINEE IN CUSTODY FOR THE BENEFIT OF THE
BENEFICIAL OWNERS HEREOF, AND IS NOT TRANSFERABLE TO ANY PERSON UNDER ANY CIRCUMSTANCES EXCEPT THAT (1) THE TRUSTEE MAY MAKE SUCH NOTATIONS HEREON AS MAY BE REQUIRED PURSUANT TO SECTION 1.3 OF THE FIFTH SUPPLEMENTAL INDENTURE, (2) THIS GLOBAL NOTE
MAY BE EXCHANGED IN WHOLE BUT NOT IN PART PURSUANT TO SECTION 1.3 OF THE FIFTH SUPPLEMENTAL INDENTURE, (3) THIS GLOBAL NOTE MAY BE DELIVERED TO THE TRUSTEE FOR CANCELLATION PURSUANT TO SECTION 2.12 OF THE BASE INDENTURE AND (4) THIS GLOBAL NOTE MAY
BE TRANSFERRED TO A SUCCESSOR DEPOSITARY WITH THE PRIOR WRITTEN CONSENT OF THE COMPANY.
UNLESS AND UNTIL IT IS EXCHANGED IN WHOLE OR IN PART FOR NOTES IN DEFINITIVE FORM, THIS NOTE MAY NOT BE TRANSFERRED EXCEPT TO A CUSTODIAN OR A NOMINEE
OF SUCH CUSTODIAN, BY A CUSTODIAN OR A NOMINEE OF SUCH CUSTODIAN TO A DEPOSITARY OR TO ANOTHER NOMINEE OR CUSTODIAN OF SUCH DEPOSITARY, OR BY SUCH CUSTODIAN OR DEPOSITARY OR ANY SUCH NOMINEE TO A SUCCESSOR DEPOSITARY OR CUSTODIAN OR A NOMINEE
THEREOF. ACCORDINGLY, UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE DEPOSITORY TRUST COMPANY (140 58TH STREET, BROOKLYN, NY 11220) (“DTC”), TO THE COMPANY OR ITS AGENT FOR REGISTRATION OF TRANSFER, EXCHANGE OR PAYMENT,
AND ANY CERTIFICATE ISSUED IS REGISTERED IN THE NAME OF CEDE & CO. OR SUCH OTHER NAME AS MAY BE REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC (AND ANY PAYMENT IS MADE TO CEDE & CO. OR SUCH OTHER ENTITY AS MAY BE REQUESTED BY AN
AUTHORIZED REPRESENTATIVE OF DTC), ANY TRANSFER, PLEDGE OR OTHER USE HEREOF FOR VALUE OR OTHERWISE BY OR TO ANY PERSON IS WRONGFUL INASMUCH AS THE REGISTERED OWNER HEREOF, CEDE & CO., HAS AN INTEREST HEREIN.”
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Section 1.5. Note Guarantee.
1.5.1 Guarantee. This Section 1.5.1 shall replace Section 3.1(f)(2) of the Base Indenture with respect to the Notes only.
(a) Any rights and
benefits arising from Articles 775, 776, 777, 829, 830 and 831 (other than with respect to defenses or motions based on documented payment (pago), reduction (quita), extension (espera) or release or remission (remisión), 1583, 1584, 1585 and 1589 (beneficios de excusión y división), 1587, 1588, 1594, 1592, 1596, and 1598 of the Argentine Civil and
Commercial Code;
1.5.2 This Section 1.5.2 supplements Section
3.1 of the Base Indenture with respect to the Notes only.
(g) Each Subsidiary Guarantor fully understands it is of the essence of the Notes and the transactions contemplated
hereunder that any and all payments made by any Subsidiary Guarantor under any Guaranteed Obligation is made exclusively in Dollars. Thus, each Subsidiary Guarantor hereby expressly, unconditionally and irrevocably waives any right (including
without limitation any right under Section 765 of the Argentine Civil and Commercial Code) it may have in any jurisdiction to pay any amount under any of the Guaranteed Obligations in a currency other than Dollars.
(h) Each Subsidiary Guarantor irrevocably and unconditionally waives the right to invoke any defense in relation to its
obligations of paying any amounts due under any of the Guaranteed Obligations, including without limitation, defenses of impossibility, impracticability, frustration of purpose, force majeure, act of God, the theory of unpredictability (teoría de la imprevisión), the sharing efforts principle (principio del esfuerzo compartido) and any other
defenses or principles of law existing as of the date hereof or established in the future, for the purpose or avoiding full and timely compliance with its obligations under the Guaranteed Obligations (including, without limitation, Sections 10,
955, 956, 1031, 1032, 1090, 1091, 1730, 1732 and 1733 of the Argentine Civil and Commercial Code).
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Section 1.6. Amendments and Waivers.
1.6.1 With Consent of Holders. This section 1.6.1 supplements the first paragraph of Section 10.2 of the Base Indenture with respect to the Notes only.
(a) Other modifications to, amendments of, and supplements to, the Indenture, the Notes or the Note Guarantees may be made
with the consent of the Holders of a majority in principal amount of the then-outstanding Notes issued under the Indenture, except that, without the consent of each Holder affected thereby, no amendment may:
(1) reduce the premium payable upon a Change of Control Repurchase Event or, at any time after a Change of Control
Repurchase Event has occurred, (i) amend, change or modify in any material respect the obligation of the Company to make and consummate a Change of Control Offer relating thereto, or (ii) change the time at which the Change of Control Offer
relating thereto must be made or at which the Notes of such series must be repurchased pursuant to such Change of Control Offer; or
(2) make any change to the provisions of the Indenture or the Notes of such series that adversely affects the ranking of
the Notes of such series (for the avoidance of doubt, a change to the covenants detailed in Section 2.2 and Section 2.3 shall not be deemed to adversely affect the ranking of the Notes).
ARTICLE II
COVENANTS
Section 2.1. Change of Control.
2.1.1 Upon the occurrence of a Change of
Control Repurchase Event, each Holder of Notes of a Series will have the right to require that the Company purchase all or a portion (in integral multiples of U.S.$1,000, provided
that the remaining principal amount of such Holder’s Note shall not be less than U.S.$50,000) of the Holder’s Notes at a purchase price equal to 101% of the principal amount thereof, plus any accrued and unpaid interest thereon through the
purchase date (the “Change of Control Payment”).
2.1.2 Within 30 days following the date upon
which the Change of Control Repurchase Event occurs, the Company must send a notice to each Holder, with a copy to the Trustee, offering to purchase the Notes as described above (a “Change of Control Offer”). The Change of Control Offer will state, among other things, the Change of Control Payment Date.
2.1.3 On the Business Day immediately
preceding the Change of Control Payment Date, the Company will, to the extent lawful, deposit with the Paying Agent funds in an amount equal to the Change of Control Payment, in respect of all Notes or portions thereof so tendered.
22
2.1.4 On the Change of Control Payment Date, as
applicable, the Company will, to the extent lawful:
(a) accept for payment all Notes or portions thereof properly tendered and not withdrawn pursuant to the Change of Control
Offer; and
(b) deliver or cause to be delivered to the Trustee the Notes so accepted together with an Officer’s Certificate stating
the aggregate principal amount of Notes or portions thereof being purchased by the Company.
2.1.5 If only a portion of a Note is purchased
pursuant to a Change of Control Offer, a new Note in a principal amount equal to the portion thereof not purchased will be issued in the name of the Holder thereof upon cancellation of the original Note (or appropriate adjustments to the amount
and beneficial interests in a Global Note will be made, as appropriate). Notes (or portions thereof) purchased pursuant to a Change of Control Offer will be cancelled and cannot be reissued.
2.1.6 The Company will have the right to
redeem all of the Notes of a Series at 101% of the principal amount thereof, plus accrued and unpaid interest, if any, to, but not including, the Redemption Date (subject to the right of Holders of Notes of a Series on a relevant record date to
receive interest on an interest payment date occurring on or prior to the Redemption Date), following the consummation of a Change of Control Repurchase Event if at least 90% of the Outstanding Notes of a Series prior to such consummation are
purchased pursuant to a Change of Control Offer with respect to such Change of Control Repurchase Event.
2.1.7 The Company will comply with the
requirements of Rule 14e-1 under the Exchange Act and any other applicable securities laws and regulations thereunder in connection with the purchase of Notes in connection with a Change of Control Offer. To the extent that the provisions of
any applicable securities laws or regulations conflict with this Section 2.1, the Company will comply with such securities laws and regulations and shall not be deemed to have breached its obligations under this Indenture by doing so.
2.1.8 The Company will not be required to make
a Change of Control Offer upon a Change of Control Repurchase Event if (i) a third party makes the Change of Control Offer in the manner, at the times and otherwise in compliance with the requirements of this Indenture applicable to a Change of
Control Offer made by the Company and purchases all Notes validly tendered and not withdrawn under such Change of Control Offer or (ii) prior to the date the Change of Control Offer is required to be made, the Company has given notice of
redemption in respect of all of the Outstanding Notes in accordance with this Indenture.
2.1.9 Holders will not be entitled to require
the Company to purchase their Notes in the event of a takeover, recapitalization, leveraged buyout or similar transaction which is not a Change of Control.
23
Section 2.2. Limitation on Liens.
2.2.1 The Company will not, and will not cause
or permit any of its Subsidiaries to, directly or indirectly, Incur any Liens of any kind (except for Permitted Liens) against or upon any of their respective properties or assets, whether owned on the Issue Date or acquired after the Issue
Date, or any proceeds therefrom, to secure any Indebtedness, unless contemporaneously therewith effective provision is made to secure the Notes, the Note Guarantees and all other amounts due under this Indenture equally and ratably with such
Indebtedness (or, in the event that such Indebtedness is subordinated in right of payment to the Notes or the Note Guarantees prior to such Indebtedness) with a Lien on the same properties and assets securing such Indebtedness for so long as
such Indebtedness is secured by such Lien. The preceding sentence will not require the Company or any Subsidiary to equally and ratably secure the Notes if the Lien consists of a Permitted Lien.
Section 2.3. Limitations on Sale and Lease-Back Transactions.
2.3.1 The Company will not, and will not
permit any of its Subsidiaries to, enter into any Sale and Lease-Back Transaction with respect to any property of such Person, unless either:
(a) the Company or that Subsidiary would be entitled pursuant to Section 2.2 of this Indenture (including any exception to
the restrictions set forth therein) to issue, assume or guarantee Indebtedness secured by a Lien on any such property at least equal in amount to the Attributable Debt with respect to such Sale and Lease-Back Transaction, without equally and
ratably securing the Notes, or
(b) the Company or that Subsidiary shall apply or cause to be applied, in the case of a sale or transfer for cash, an
amount equal to the net proceeds thereof and, in the case of a sale or transfer otherwise than for cash, an amount equal to the fair market value of the property so leased, to (1) the retirement, within 12 months after the effective date of the
Sale and Lease-Back Transaction, of any of the Company’s Indebtedness ranking at least pari passu
with the Notes or Indebtedness of any Subsidiary, in each case owing to a Person other than the Company or any of its Subsidiaries or (2) to the acquisition, purchase, construction or improvement of real property or personal property used or to be
used by the Company or any of its Subsidiaries in the ordinary course of business.
2.3.2 These restrictions will not apply to:
(a) transactions providing for a lease term, including any renewal, of not more than three years; or
(b) transactions between the Company and any of its Subsidiaries or between the Company’s Subsidiaries.
Section 2.4. [Reserved.]
24
Section 2.5. Additional Note Guarantees.
2.5.1 The Company covenants and agrees that,
if at any time after the date hereof, (i) any Subsidiary becomes a guarantor of Triggering Indebtedness, and (ii) such Subsidiary is not an Excluded Subsidiary, the Company shall, after becoming aware of such event, cause such Subsidiary (an “Additional Subsidiary Guarantor”) to become a Subsidiary Guarantor on terms substantially similar to other Note Guarantees, subject to modifications as determined by the
Company in good faith to take into account any legal requirements or limitations applicable to such Subsidiary Guarantor (promptly following the determination in accordance with the terms of this Indenture that such Subsidiary is a Subsidiary
Guarantor) by executing a supplemental indenture substantially in the form of Exhibit B hereto and providing the Trustee with an Officer’s Certificate and Opinion of Counsel, in each case within 60 Business Days of such event, and to comply in
all respects with the provisions of this Indenture and the Notes, as applicable; provided, however, that each Additional Subsidiary Guarantor will be automatically and
unconditionally released and discharged from its obligations under such additional note guarantee (“Additional Note Guarantee”) only in accordance with Section 1.5; and provided further that no Officer’s Certificate shall be required solely pursuant to this 2.5.1 on the
Issue Date.
2.5.2 The Company shall notify, in accordance
with Section 11.1 of the Base Indenture, the Holders of any execution of a supplemental indenture pursuant to and in accordance with Section 2.5; provided that no notice
shall be required solely pursuant to this Section 2.5.2 as a result of the execution of any supplemental indenture pursuant to and in accordance with Section 2.5.1 on the Issue Date.
2.5.3 If a Subsidiary ceases to be an Excluded
Subsidiary and still guarantees any Triggering Indebtedness, then the Company shall promptly cause such Subsidiary to become a Subsidiary Guarantor by executing a supplemental indenture. Further, to the extent a Subsidiary Guarantor becomes an
Excluded Subsidiary, the Note Guarantee of such Subsidiary Guarantor shall be released pursuant to Section 1.5.4.
2.5.4 Other than as set forth herein or in any
supplemental indenture, the Company shall have the right to designate, in its sole discretion, any Subsidiary as a Subsidiary Guarantor of the Notes as set forth in the Base Indenture. For the avoidance of doubt, the Company shall have the
right to release any Subsidiary Guarantor of the Notes pursuant to Section 3.4 of the Base Indenture.
Section 2.6. [Reserved].
Section 2.7. Additional Amounts. This Section 2.7 supplements Section 5.4 of the Base Indenture with respect to the Notes only.
2.7.1 All payments made by the Company or on
its behalf in respect of the Notes will be made free and clear of and without withholding or deduction for or on account of any present or future taxes, duties, levies, imposts, assessments or governmental charges of whatever nature (each, a “Tax”), unless the withholding or deduction of such Tax is required by law or by official interpretation or administration thereof.
25
2.7.2 If the Company is obligated by law of
any jurisdiction where a Subsidiary Guarantor is incorporated, resident or doing business for tax purposes or from or through which any such payment is made or any political subdivision thereof (each, a “Relevant Jurisdiction”), or by any taxing authority of a Relevant Jurisdiction to deduct any withholding Taxes from payments of interest to investors (or if a Subsidiary Guarantor is obligated to deduct any
withholding Taxes from payments made under a Subsidiary Guarantee) we will (or, with respect to a Subsidiary Guarantee, such Subsidiary Guarantor will) pay such additional amounts (“Additional Amounts”) as may be necessary so that the net amount received by such Holder, after withholding or deduction for or on account of such Taxes, will be equal to the amount such Holder would have received in the
absence of such withholding or deduction.
2.7.3 The Company, and each Subsidiary
Guarantor, as applicable, will not be required to pay Additional Amounts to any Holder for or on account of any of the following:
2.7.3.1 any Taxes that would
not have been imposed but for any present or former connection between the Holder (or a fiduciary, settlor, beneficiary, member or shareholder of the Holder) and the Relevant Jurisdiction (other than the mere receipt of a payment or the
ownership or holding of a Note), including being a resident of such jurisdiction for tax purposes;
2.7.3.2 any estate,
inheritance, capital gains, excise, personal property tax, sales, transfer, gift or similar Taxes;
2.7.3.3 any Taxes that would
not have been imposed but for the failure of the Holder or any other Person to comply with any certification, identification or other reporting requirement concerning the nationality, residence, identity or connection with the Relevant
Jurisdiction, for tax purposes, of the Holder or any beneficial owner of the Note if compliance is required by law, regulation or by an applicable income tax treaty to which the Relevant Jurisdiction is a party, as a precondition to exemption
from, or reduction in the rate of, the Tax (including withholding taxes payable on interest payments under the Notes) and the Company has given the Holders at least 30 days’ notice that Holders will be required to provide such certification,
identification or information;
2.7.3.4 any Taxes payable
otherwise than by deduction or withholding from payments on or in respect of the Notes;
2.7.3.5 any Taxes with respect
to a Note presented for payment, where presentation is required, more than 30 days after the date on which the payment became due and payable or the date on which payment thereof is duly provided for, whichever occurs later, except to the
extent that the Holder of such Note would have been entitled to such Additional Amounts on presenting such Note for payment on any date during such 30-day period;
26
2.7.3.6 any Taxes required to
be withheld by any paying agent of the Company from any payment of the principal of, or premium or interest on any Note, if such Taxes result from the presentation of any Note for payment and the payment can be made without such withholding or
deduction by the presentation of the Note for payment by at least one other reasonably available paying agent of the Company;
2.7.3.7 any Taxes imposed by
the United States, any state thereof, the District of Columbia or any political subdivision of the foregoing;
2.7.3.8 any Taxes imposed
under Sections 1471 through 1474 of the United States Internal Revenue Code (the “Code”) (or any amended or successor version that is substantively comparable and not
materially more onerous to comply with), any current or future regulations or official interpretations thereof, any agreements entered into pursuant to Section 1471(b)(1) of the Code and any fiscal or regulatory legislation, rules or practices
adopted pursuant to any intergovernmental agreement, treaty or convention among governmental authorities and implementing such Sections of the Code;
2.7.3.9 any payment on the
Note to a Holder that is a fiduciary, a partnership, a limited liability company or a person other than the sole beneficial owner of any such payment, to the extent that a beneficiary or settlor with respect to such fiduciary, a member of such
a partnership, an interest holder in such a limited liability company or the beneficial owner of the payment would not have been entitled to the Additional Amounts had the beneficiary, settlor, member or beneficial owner been the Holder of the
Note; or
2.7.3.10 in the case of any
combination of the items listed above.
2.7.4 The Company will provide the Trustee with
documentation reasonably satisfactory to the Trustee evidencing the payment of taxes in respect of which the Company has paid any Additional Amount. Copies of such documentation will be made reasonably available to the Holders of the Notes or
the relevant paying agent upon request.
2.7.5 Whenever in this Indenture or the Notes
there is mentioned, in any context, the payment of amounts based upon the principal amount of the Notes or of principal, premium, interest or of any other amount payable in respect of the Notes by the Company, such mention shall be deemed to
include mention of the payment of Additional Amounts to the extent that, in such context, Additional Amounts are, were or would be payable in respect thereof.
27
ARTICLE III
DEFAULTS AND REMEDIES
Section 3.1. This Section 3.1 replaces
Section 7.1(a)(3) of the Base Indenture with respect to the Notes only.
(3) the failure by the Company or any Significant Subsidiary to comply with any other covenant or agreement contained in the
Indenture or the Notes for 90 days or more after written notice to the Company thereof from the Trustee or the Holders of at least 25% in aggregate principal amount of the outstanding Notes.
Section 3.2. This Section 3.2 replaces
Section 7.1(a)(4) of the Base Indenture with respect to the Notes only.
(4) default by the Company or any Significant Subsidiary under any Indebtedness for borrowed money, if such default results in the
acceleration of such Indebtedness for borrowed money prior to its Stated Maturity and the aggregate principal or accreted amount of all Indebtedness for borrowed money so accelerated at the relevant time is U.S.$200 million (or the equivalent in
other currencies) or more.
Section 3.3. This Section 3.3 replaces
Section 7.1(a)(5) of the Base Indenture with respect to the Notes only.
(5) failure by the Company or any of its Significant Subsidiaries to pay one or more final judgments against any of them,
aggregating U.S.$200 million (or the equivalent in other currencies) or more, which are not paid, discharged or stayed for a period of 90 days or more (to the extent not covered by a reputable and creditworthy insurance company).
ARTICLE IV
MISCELLANEOUS
Section 4.1. Definitions.
Capitalized terms used but not defined in this Fifth Supplemental Indenture shall have the meanings ascribed thereto in the Base Indenture. Unless
otherwise stated or the context otherwise requires, all Section references in this Supplemental Indenture shall be to the corresponding Sections herein.
Section 4.2. Confirmation of Indenture.
The Base Indenture, as supplemented and amended by this Fifth Supplemental Indenture, is in all respects ratified and confirmed, and the Base
Indenture, this Fifth Supplemental Indenture and any applicable indentures supplemental thereto shall be read, taken and construed as one and the same instrument with respect to the Notes.
28
Section 4.3. Governing Law.
THIS FIFTH SUPPLEMENTAL INDENTURE, THE NOTES AND THE NOTE GUARANTEES, INCLUDING ANY CLAIM OR CONTROVERSY ARISING OUT OF OR RELATING
TO THIS FIFTH SUPPLEMENTAL INDENTURE, THE NOTES OR THE NOTE GUARANTEES, SHALL BE GOVERNED BY THE LAWS OF THE STATE OF NEW YORK WITHOUT REGARD TO CONFLICT OF LAW PRINCIPLES THAT WOULD RESULT IN THE APPLICATION OF ANY LAW OTHER THAN THE LAW OF THE
STATE OF NEW YORK.
Section 4.4. Severability.
In case any provision in this Fifth Supplemental Indenture or in the Notes shall be invalid, illegal or unenforceable, the validity, legality and
enforceability of the remaining provisions shall not in any way be affected or impaired thereby.
Section 4.5. Counterparts.
This Fifth Supplemental Indenture may be executed in any number of counterparts and by the parties hereto in separate counterparts, each of which when
so executed shall be deemed to be an original and all of which taken together shall constitute one and the same agreement. Delivery of an executed counterpart of a signature page of this Fifth Supplemental Indenture by facsimile or in electronic
format shall be effective as delivery of a manually executed counterpart of this Fifth Supplemental Indenture.
Section 4.6. No Benefit.
Nothing in this Fifth Supplemental Indenture, express or implied, shall give to any Person other than the parties hereto and their successors or
assigns, and the Holders of the Notes, any benefit or legal or equitable rights, remedy or claim under this Fifth Supplemental Indenture or the Base Indenture.
Section 4.7. No Responsibility of the Trustee.
The Trustee shall not be responsible in any manner whatsoever for or in respect of the validity or sufficiency of the Notes, the Note Guarantees or
this Fifth Supplemental Indenture. The recitals contained herein shall be taken as the statements solely of the Company or the Subsidiary Guarantors, and the Trustee assumes no responsibility for correctness thereof.
29
IN WITNESS WHEREOF, the parties hereto have caused this Fifth Supplemental Indenture to be duly executed all as of the day and year first above
written.
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MERCADOLIBRE, INC.
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By:
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/s/ Martín de los Santos
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Name: Martín de los Santos
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Title: Chief Financial Officer
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MERCADO LIVRE BRASIL LTDA.
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By:
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/s/ Martín de los Santos
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Name: Martín de los Santos
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Title: Attorney-in-fact
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DEREMATE.COM DE MÉXICO, S. DE R.L. DE C.V.
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By:
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/s/ Martín de los Santos
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Name: Martín de los Santos
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Title: Attorney-in-fact
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MP AGREGADOR, S. DE R.L. DE C.V.
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By:
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/s/ Martín de los Santos
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Name: Martín de los Santos
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Title: Attorney-in-fact
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[Signature Page to Fifth Supplemental Indenture]
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MERCADOLIBRE CHILE LTDA.
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By:
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/s/ Martín de los Santos
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Name: Martín de los Santos
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Title: Attorney-in-fact
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MERCADOLIBRE COLOMBIA LTDA.
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By:
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/s/ Martín de los Santos
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Name: Martín de los Santos
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Title: Attorney-in-fact
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[Signature Page to Fifth Supplemental Indenture]
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THE BANK OF NEW YORK MELLON, As Trustee, Registrar, Paying Agent and Transfer Agent
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By:
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/s/ Glenn G. McKeever
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Name: Glenn G. McKeever
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Title: Vice President
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[Signature Page to Fifth Supplemental Indenture]
EXHIBIT A
FORM OF 5.850% NOTES DUE 2036
THIS GLOBAL NOTE IS HELD BY THE DEPOSITARY (AS DEFINED IN THE INDENTURE GOVERNING THIS NOTE) OR ITS NOMINEE IN CUSTODY FOR THE BENEFIT OF THE BENEFICIAL OWNERS
HEREOF, AND IS NOT TRANSFERABLE TO ANY PERSON UNDER ANY CIRCUMSTANCES EXCEPT THAT (1) THE TRUSTEE MAY MAKE SUCH NOTATIONS HEREON AS MAY BE REQUIRED PURSUANT TO SECTION 1.3 OF THE FIFTH SUPPLEMENTAL INDENTURE, (2) THIS GLOBAL NOTE MAY BE
EXCHANGED IN WHOLE BUT NOT IN PART PURSUANT TO SECTION 1.3 OF THE FIFTH SUPPLEMENTAL INDENTURE, (3) THIS GLOBAL NOTE MAY BE DELIVERED TO THE TRUSTEE FOR CANCELLATION PURSUANT TO SECTION 2.12 OF THE BASE INDENTURE AND (4) THIS GLOBAL NOTE MAY
BE TRANSFERRED TO A SUCCESSOR DEPOSITARY WITH THE PRIOR WRITTEN CONSENT OF THE COMPANY.
UNLESS AND UNTIL IT IS EXCHANGED IN WHOLE OR IN PART FOR NOTES IN DEFINITIVE FORM, THIS NOTE MAY NOT BE TRANSFERRED EXCEPT TO A CUSTODIAN OR A NOMINEE OF SUCH CUSTODIAN, BY A CUSTODIAN OR A NOMINEE OF SUCH
CUSTODIAN TO A DEPOSITARY OR TO ANOTHER NOMINEE OR CUSTODIAN OF SUCH DEPOSITARY, OR BY SUCH CUSTODIAN OR DEPOSITARY OR ANY SUCH NOMINEE TO A SUCCESSOR DEPOSITARY OR CUSTODIAN OR A NOMINEE THEREOF. ACCORDINGLY, UNLESS THIS CERTIFICATE IS
PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE DEPOSITORY TRUST COMPANY (140 58TH STREET, BROOKLYN NY, 11220) (“DTC”), TO THE COMPANY OR ITS AGENT FOR REGISTRATION OF TRANSFER, EXCHANGE OR PAYMENT, AND ANY CERTIFICATE ISSUED IS REGISTERED IN
THE NAME OF CEDE & CO. OR SUCH OTHER NAME AS MAY BE REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC (AND ANY PAYMENT IS MADE TO CEDE & CO. OR SUCH OTHER ENTITY AS MAY BE REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC), ANY TRANSFER,
PLEDGE OR OTHER USE HEREOF FOR VALUE OR OTHERWISE BY OR TO ANY PERSON IS WRONGFUL INASMUCH AS THE REGISTERED OWNER HEREOF, CEDE & CO., HAS AN INTEREST HEREIN.
A-1
5.850% NOTES DUE 2036
| No. R-[ ] |
$[ ]
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CUSIP: 58733R AJ1
ISIN: US58733RAJ14
MERCADOLIBRE, INC.
promises to pay to Cede & Co., or registered assigns, the principal sum of [ ] Dollars on September 14, 2036 (as modified by the Schedule of Increases and Decreases in the Global Note attached hereto).
Interest Payment Dates: March 14 and September 14, commencing March 14, 2027.
Record Dates: March 1 and September 1 (whether or not a Business Day)
Each holder of this Note (as defined below), by accepting the same, agrees to and shall be bound by the provisions hereof and of the Indenture described herein, and authorizes and directs the Trustee described
herein on such holder’s behalf to be bound by such provisions. Each holder of this Note hereby waives all notice of the acceptance of the provisions contained herein and in the Indenture and waives reliance by such holder upon said provisions.
This Note shall not be entitled to any benefit under the Indenture, or be valid or become obligatory for any purpose, until the Certificate of Authentication hereon shall have been signed by or on behalf of the
Trustee. The provisions of this Note are continued on the reverse side hereof, and such continued provisions shall for all purposes have the same effect as though fully set forth at this place.
A-2
IN WITNESS WHEREOF, the Company has caused this instrument to be duly executed.
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Date: [●]
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MERCADOLIBRE, INC.
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By:
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Name:
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Title:
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A-3
CERTIFICATE OF AUTHENTICATION
This is one of the 5.850% Notes due 2036 issued by MercadoLibre, Inc. referred to in the within-mentioned Indenture.
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Date: [●]
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THE BANK OF NEW YORK MELLON
as Trustee
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By:
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Name:
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Title: Authorized Signatory
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A-4
MercadoLibre, Inc.
5.850% Notes due 2036
This note is one of a duly authorized Series of debt securities of MercadoLibre, Inc., a Delaware corporation (the “Company”), issued or to be issued in one or more Series
under and pursuant to an Indenture for the Company’s debentures, notes or other debt instruments evidencing its indebtedness, dated as of January 14, 2021 (the “Base Indenture”), duly executed and
delivered by and between the Company, the Subsidiary Guarantors and The Bank of New York Mellon as trustee (the “Trustee”), registrar, paying agent and transfer agent, as supplemented and amended by the
Fifth Supplemental Indenture, dated as of September 14, 2026 (the “Fifth Supplemental Indenture”), by and among the Company, the Subsidiary Guarantors (as defined therein) and the Trustee. The Base
Indenture as supplemented and amended by the Fifth Supplemental Indenture is referred to herein as the “Indenture.” By the terms of the Base Indenture, the debt securities issuable thereunder are
issuable in Series that may vary as to amount, date of maturity, rate of interest and in other respects as provided in the Base Indenture. This note is one of the Series designated on the face hereof (individually, a “Note,” and collectively, the “Notes”), and reference is hereby made to the Indenture for a description of the rights, limitations of rights, obligations, duties and immunities of the
Trustee, the Company and the Holders of the Notes (the “Holders”). Capitalized terms used herein and not otherwise defined shall have the meanings given them in the Indenture.
1. Interest. Interest on the Notes will accrue at the rate of 5.850% per year, and shall be payable semi-annually in arrears on March 14 and September 14 of each year, commencing on March 14, 2027.
Payments shall be made to the persons who are registered Holders at the close of business on March 1 and September 1, as the case may be, immediately preceding the applicable Interest Payment Date (whether or not a Business Day) and at
maturity. Interest on the Notes will accrue from the most recent date to which interest has been paid or, if no interest has been paid, from and including the Issue Date. Interest will be computed on the basis of a 360-day year comprised of
twelve 30-day months.
2. Method of Payment. The Company will pay interest on the Notes (except defaulted interest), if any, to the persons in whose name such Notes are registered at the close of business on the regular
record date referred to on the facing page of this Note for such interest payment. In the event that the Notes or a portion thereof are called for redemption and the Redemption Date is subsequent to a regular record date with respect to any
Interest Payment Date and prior to such Interest Payment Date, interest on such Notes will be paid upon presentation and surrender of such Notes as provided in the Indenture. The principal of and the interest on the Notes shall be payable in
U.S. Dollars, at the office of the Paying Agent maintained for that purpose in accordance with the Indenture, or at the Company’s option, by check mailed to the address of the registered Holder or, with respect to any Global Note or upon
application by the Holder of a Certificated Note to the specified office of any Paying Agent not less than 15 days before the due date of any payment, by wire transfer to a U.S. dollar account.
A-5
3. Registrar, Paying Agent, and Transfer Agent. Initially, The Bank of New York Mellon will act as Registrar; the initial Paying Agent will be The Bank of New York Mellon, in New York; the initial
Transfer Agent will be The Bank of New York Mellon, in New York. The Company may change or appoint any Registrar, Paying Agent or Transfer Agent without notice to any Holder.
4. Indenture. The Notes are senior unsecured obligations of the Company and constitute the Series designated on the face hereof as the “5.850% Notes due 2036”,
initially limited to $1,000,000,000 in aggregate principal amount. The Company will furnish to any Holders upon written request and without charge a copy of the Base Indenture and the Fifth Supplemental Indenture. Requests may be made to:
MercadoLibre Inc., WTC Free Zone, Dr. Luis Bonavita 1294, Of. 1733, Tower II, Montevideo, Uruguay, 11300, Attention: General Counsel.
5. Optional Redemption.
(a) Optional Redemption with a Make-Whole Premium. At the Company’s option, the Notes may be redeemed or purchased, in each case, in whole or in part at
any time or from time to time prior to the Stated Maturity of the Notes, as provided in Article IV of the Base Indenture, Section 1.2 of the Fifth Supplemental Indenture and in this Section 5.
Prior to June 14, 2036 (the date that is three months prior to the maturity of the Notes) (the “Par Call Date”), the Company may redeem the Notes at its
option, in whole or in part, at any time and from time to time, at a redemption price (expressed as a percentage of principal amount and rounded to three decimal places) equal to the greater of:
(i) 100% of the principal amount of the Notes to be redeemed, and
(ii) (a) the sum of the present values of the remaining scheduled payments of principal and interest thereon discounted to the redemption date (assuming the Notes matured on the Par Call
Date) on a semi-annual basis (assuming a 360-day year consisting of twelve 30-day months) at the Treasury Rate plus 20 basis points, less (b) interest accrued to the date of redemption,
plus, in either case, accrued and unpaid interest on the Notes being redeemed to, but excluding, the redemption date.
On or after the Par Call Date, the Company may redeem the Notes, in whole or in part, at any time and from time to time, at a redemption price equal to 100% of the principal amount of the Notes
being redeemed plus accrued and unpaid interest thereon to the redemption date.
A-6
“Treasury Rate” means, with respect to any redemption date, the yield determined by the Company in accordance with the following two paragraphs.
The Treasury Rate shall be determined by the Company or the Company’s designee (which will not be the Trustee) after 4:15 p.m., New York City time (or after such time as yields on U.S. government
securities are posted daily by the Board of Governors of the Federal Reserve System), on the third business day preceding the redemption date based upon the yield or yields for the most recent day that appear after such time on such day in the
most recent statistical release published by the Board of Governors of the Federal Reserve System designated as “Selected Interest Rates (Daily) - H.15” (or any successor designation or publication) (“H.15”) under the caption “U.S. government
securities–Treasury constant maturities–Nominal” (or any successor caption or heading) (“H.15 TCM”). In determining the Treasury Rate, the Company shall select, as applicable: (1) the yield for the Treasury constant maturity on H.15 exactly
equal to the period from the redemption date to the Par Call Date (the “Remaining Life”); or (2) if there is no such Treasury constant maturity on H.15 exactly equal to the Remaining Life, the two yields – one yield corresponding to the
Treasury constant maturity on H.15 immediately shorter than and one yield corresponding to the Treasury constant maturity on H.15 immediately longer than the Remaining Life – and shall interpolate to the Par Call Date on a straight-line basis
(using the actual number of days) using such yields and rounding the result to three decimal places; or (3) if there is no such Treasury constant maturity on H.15 shorter than or longer than the Remaining Life, the yield for the single Treasury
constant maturity on H.15 closest to the Remaining Life. For purposes of this paragraph, the applicable Treasury constant maturity or maturities on H.15 shall be deemed to have a maturity date equal to the relevant number of months or years, as
applicable, of such Treasury constant maturity from the redemption date.
If on the third business day preceding the redemption date H.15 TCM is no longer published, the Company shall calculate the Treasury Rate based on the rate per annum equal to the semi-annual
equivalent yield to maturity at 11:00 a.m., New York City time, on the second business day preceding such redemption date of the United States Treasury security maturing on, or with a maturity that is closest to, the Par Call Date, as
applicable. If there is no United States Treasury security maturing on the Par Call Date but there are two or more United States Treasury securities with a maturity date equally distant from the Par Call Date, one with a maturity date preceding
the Par Call Date and one with a maturity date following the Par Call Date, the Company shall select the United States Treasury security with a maturity date preceding the Par Call Date. If there are two or more United States Treasury
securities maturing on the Par Call Date or two or more United States Treasury securities meeting the criteria of the preceding sentence, the Company shall select from among these two or more United States Treasury securities the United States
Treasury security that is trading closest to par based upon the average of the bid and asked prices for such United States Treasury securities at 11:00 a.m., New York City time. In determining the Treasury Rate in accordance with the terms of
this paragraph, the semi-annual yield to maturity of the applicable United States Treasury security shall be based upon the average of the bid and asked prices (expressed as a percentage of principal amount) at 11:00 a.m., New York City time,
of such United States Treasury security, and rounded to three decimal places.
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Calculation of the foregoing will be made by the Company or on the Company’s behalf by such Person as the Company shall designate; provided, however, that such calculation shall not be a duty or
obligation of the Trustee. The Company’s actions and determinations in determining the redemption price shall be conclusive and binding for all purposes, absent manifest error.
(b) Optional Redemption Upon Tax Event. If the Company determines that, as a result of any amendment to, or change in, the laws or treaties (or any rules or regulations, or if applicable,
rulings promulgated thereunder) of any Relevant Jurisdiction, any taxing authority thereof or therein affecting taxation, or any amendment to, or change in an official interpretation or application (including judicial or administrative
interpretation or application, as applicable) of such laws, treaties, rules, regulations or rulings, which amendment to, or change in such laws, treaties, rules, regulations or rulings is legislated or promulgated or, in the case of a change in
official interpretation or application (including judicial or administrative interpretation or application, as applicable), is announced or otherwise made available on or after the later of the Issue Date and the date a Relevant Jurisdiction
becomes a Relevant Jurisdiction, the Company or a Subsidiary Guarantor would be obligated, to pay any Additional Amounts, provided that the Company, in its business judgment, determines that such
obligation cannot be avoided by the Company taking reasonable measures available to it, including, without limitation, taking reasonable measures to change the Paying Agent, then, at the Company’s option, all, but not less than all, of the
Notes may be redeemed at any time at a redemption price equal to 100% of the outstanding principal amount, plus any accrued and unpaid interest to the Redemption Date due thereon up to but not including the Redemption Date; provided that (1) no notice of redemption for tax reasons may be given earlier than 90 days prior to the earliest date on which the Company (or a Subsidiary Guarantor) would be obligated to pay these
Additional Amounts if a payment on the Notes were then due, and (2) at the time such notice of redemption is given such obligation to pay such Additional Amounts remains in effect.
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Prior to the giving of any notice of redemption pursuant to this provision, the Company will deliver to the Trustee:
(i) an Officer’s Certificate stating that the Company is entitled to effect the redemption and setting forth a statement of facts showing that the conditions precedent to the Company’s
right to redeem have occurred; and
(ii) an Opinion of Counsel from legal counsel in a Relevant Jurisdiction (which may be the Company’s counsel) of recognized standing to the effect that the Company has or will become
obligated to pay such Additional Amounts as a result of such change or amendment.
(c) Redemption at Par. The Notes will be redeemable, at any time and from time to time, in whole or in part, at the Company’s option beginning on the Par Call Date, at a redemption price equal to
100% of the outstanding principal amount of the Notes to be redeemed, plus accrued and unpaid interest on the principal amount of the Notes being redeemed to, but not including, the Redemption Date.
Notwithstanding the foregoing, payments of interest on the Notes that are due and payable on or prior to a date fixed for redemption of the Notes shall be payable to the Holders of those Notes
registered as such at the close of business on the relevant record dates according to the terms and provisions of the Indenture.
(d) Optional Redemption Procedures.
(i) Notice of any redemption shall be sent in the manner provided for in Section 11.1 of the Base Indenture at least 10 but not more than 30 days before the Redemption Date to Holders
of Notes to be redeemed.
(ii) The Company may make any redemption or redemption notice subject to the satisfaction of conditions precedent. If such redemption or notice is subject to the satisfaction of one or
more conditions precedent, such notice shall state that, in the Company’s discretion, the Redemption Date may be delayed until such time (but no more than 60 days after the date of the notice of redemption) as any or all such conditions shall
be satisfied, or such redemption may not occur and such notice may be rescinded in the event that any or all such conditions shall not have been satisfied by the redemption date, or by the redemption date as so delayed. In addition, the Company
may provide in such notice that payment of the redemption price and performance of the Company’s obligations with respect to such redemption may be performed by another person.
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(iii) Notes called for redemption will become due on the date fixed for redemption. The Company will pay the redemption price for the Notes called for redemption including accrued and
unpaid interest thereon to but not including the Redemption Date. On and after the Redemption Date, interest will cease to accrue on such Notes as long as the Company has deposited with the paying agent funds in satisfaction of the applicable
redemption price including accrued and unpaid interest thereon pursuant to the Indenture. Upon redemption of the Notes by the Company, the redeemed Notes will be cancelled and cannot be reissued.
(iv) If fewer than all of the Notes are being redeemed, the Notes to be redeemed shall be selected as follows: (1) if the Notes are listed on an exchange, in compliance with the
requirements of such exchange, (2) if the Notes are not so listed but are in global form, then by lot or otherwise in accordance with the procedures of DTC or the applicable depositary or (3) if the Notes are not so listed and are not in global
form, on a pro rata basis to the extent practicable, or, if the pro rata basis is not practicable for any reason, by lot or by such other method as the Trustee in its sole discretion shall deem fair and appropriate; provided that the remaining
principal amount of such Holder’s Note will not be less than U.S.$50,000. Upon surrender of any Note redeemed in part, the Holder will receive a new Note equal in principal amount to the unredeemed portion of the surrendered Note. Once notice
of redemption is sent to the Holders, Notes called for redemption become due and payable at the redemption price on the Redemption Date, and, commencing on the Redemption Date, Notes redeemed will cease to accrue interest (unless the Company
defaults in the payment of the redemption price).
6. Mandatory Repurchase Provisions. Upon the occurrence of a Change of Control Repurchase Event, each Holder of Notes will have the right to require that the Company purchase all or a portion (in
integral multiples of U.S.$1,000, provided that the remaining principal amount of such Holder’s Note will not be less than U.S.$50,000) of the Holder’s Notes at a purchase price equal to 101% of the
principal amount thereof, plus any accrued and unpaid interest thereon through the Change of Control Payment.
The Company will have the right to redeem all of the Notes at 101% of the principal amount thereof, plus accrued and unpaid interest, if any, to, but not including, the Redemption Date (subject to the right of
Holders of Notes on a relevant record date to receive interest on an interest payment date occurring on or prior to the Redemption Date), following the consummation of a Change of Control Repurchase Event if at least 90% of the Outstanding
Notes prior to such consummation are purchased pursuant to a Change of Control Offer with respect to such Change of Control Repurchase Event.
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Within 30 days following the date upon which the Change of Control Repurchase Event occurs, the Company must make a Change of Control Offer pursuant to a Change of Control Notice. As more fully described in the
Indenture, the Change of Control Notice shall state, among other things, the Change of Control Payment Date, which must be at least 30 days but not more than 60 days from the date the notice is given, other than as may be required by applicable
law.
7. Denominations, Transfer, Exchange. The Notes are in registered form in minimum denominations of U.S.$50,000 and integral multiples of U.S.$1,000 in excess thereof. The transfer of Notes may be
registered and Notes may be exchanged as provided in the Indenture. The Registrar and the Trustee may require a Holder, among other things, to furnish appropriate endorsements and transfer documents and the Company may require a Holder to pay
any taxes and fees required by law or permitted by the Indenture. The Company need not exchange or register the transfer of any Note or portion of a Note selected for redemption, except for the unredeemed portion of any Note being redeemed in
part. Also, the Company need not exchange or register the transfer of any Notes for a period of 15 days before a selection of Notes to be redeemed or during the period between a record date and the next succeeding Interest Payment Date.
8. Persons Deemed Owners. The registered Holder of a Note may be treated as the owner of it for all purposes. Only registered Holders have rights under the Indenture.
9. Repayment to the Company. The Trustee and the Paying Agent shall promptly pay to the Company upon written request any excess money or Government Obligations (or proceeds therefrom) held by them
at any time upon the written request of the Company.
Subject to the requirements of any applicable abandoned property laws, the Trustee and the Paying Agent shall pay to the Company upon written request any money held by them for the payment of principal, premium (if
any), interest or any Additional Amounts that remains unclaimed for two years after the date upon which such payment shall have become due. After payment to the Company, Holders entitled to the money must look to the Company for payment as
general creditors unless an applicable abandoned property law designates another Person, and all liability of the Trustee and the Paying Agent with respect to such money shall cease.
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10. Amendment, Supplements and Waivers.
(a) Subject to certain exceptions set forth in the Indenture, without the consent of any Holder, the Company, the Subsidiary Guarantors and the Trustee may, among other things, amend or
supplement the Indenture, the Note Guarantees or the Notes to cure any ambiguity, omission, defect or inconsistency; to provide for the assumption by a Surviving Entity of the obligations of the Company or a Subsidiary Guarantor under the
Indenture; to add Note Guarantees or additional guarantees with respect to the Notes or release a Note Guarantee in accordance with the terms of the Indenture; to secure the Notes; to add to the covenants of the Company for the benefit of the
Holders or to surrender any right or power thereby conferred upon the Company; to provide for the issuance of Additional Notes; to conform the text of the Indenture, the Note Guarantees or the Notes to any provision of the Prospectus; to
evidence the replacement of the Trustee as provided for under the Indenture; if necessary, in connection with any release of any security permitted under the Indenture; to provide for uncertificated Notes in addition to or in place of
certificated Notes; or to make any other changes which do not adversely affect the rights of any of the Holders in any material respect.
(b) Subject to certain exceptions set forth in the Indenture, (i) the Indenture, the Notes or the Note Guarantees may be amended or supplemented with the written consent of the Holders of at
least a majority in principal amount of the then Outstanding Notes and (ii) any Default or Event of Default and its consequences under the Indenture (other than regarding a Default or Event of Default in the payment of the principal of,
premium, if any, or interest or Additional Amounts, if any, on the Notes, except a payment Default resulting from an acceleration that has been rescinded) or compliance with any provision of, the Indenture, or the Notes, or the Notes Guarantees
may be waived with the written consent of the Holders of a majority in principal amount of the then Outstanding Notes, except that, without the consent of each Holder affected thereby, no amendment may (with respect to any Notes held by a
non-consenting Holder of Notes):reduce the percentage of the principal amount of the outstanding Notes whose Holders must consent to an amendment, supplement or waiver; reduce the rate of or change or have the effect of changing the time for
payment of interest on any Notes; change any place of payment where the principal of or interest on the Notes is payable; reduce the principal of or change or have the effect of changing the fixed maturity of any Notes, or change the date on
which any Notes may be subject to redemption, or reduce the redemption price therefor; make any Notes payable in money other than that stated in the Notes; make any change in the provisions of the Indenture entitling each Holder to receive
payment of principal of, premium, if any, and interest on the Notes on or after the due date thereof or to bring suit to enforce such payment, or permitting Holders of a majority in principal amount of outstanding Notes to waive Defaults or
Events of Default; reduce the premium payable upon a Change of Control Repurchase Event or, at any time after a Change of Control Repurchase Event has occurred, (i) amend, change or modify in any material respect the obligation of the Company
to make and consummate a Change of Control Offer relating thereto or (ii) change the time at which the Change of Control Offer relating thereto must be made or at which the Notes must be repurchased pursuant to such Change of Control Offer;
eliminate or modify in any manner a Subsidiary Guarantor’s obligations with respect to its Note Guarantee which adversely affects Holders in any material respect, except as contemplated in the Indenture; make any change in the Additional
Amounts provisions of the Indenture that adversely affects the rights of any Holder or amend the terms of the Notes in a way that would result in a loss of exemption from any applicable taxes; or make any change to the provisions of the
Indenture or the Notes that adversely affects the ranking of the Notes (for the avoidance of doubt, a change to the covenants described in Section 2.2 and Section 2.3 of the Fifth Supplemental Indenture shall not be deemed to adversely affect
the ranking of the Notes).
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11. Defaults and Remedies. If an Event of Default for the Company’s Notes occurs and is continuing (other than an Event of Default referred to in Section 7.1(a)(6) of the Base Indenture), the Trustee
or the Holders of at least 25% in principal amount of the outstanding Notes may declare the unpaid principal of and premium, if any, and accrued and unpaid interest on all such Notes to be immediately due and payable by notice in writing to the
Company (if given by the Trustee or the Holders) and the Trustee (if given by the Holders) specifying the Event of Default and that it is a “notice of acceleration”. If an Event of Default referred to in Section 7.l(a)(6) of the Base Indenture
occurs with respect to the Company the then unpaid principal of and premium, if any and accrued and unpaid interest on the Company’s Notes will become immediately due and payable without any declaration or other act on the part of the Trustee
or any Holder.
12. Trustee May Hold Notes. The Trustee in its individual or any other capacity may become the owner or pledgee of Notes and may otherwise deal with the Company or any of its Affiliates with the same
rights it would have if it were not Trustee. Any Agent may do the same with like rights and duties. However, the Trustee is subject to Section 8.10 and Section 8.11 of the Base Indenture.
13. No Personal Liability of Directors, Officers, Employees and Certain Others. No director, officer, employee, incorporator or similar founder, stockholder or member of the Company or any
Subsidiary Guarantor will have any liability for or any obligations of the Company or any Subsidiary Guarantor under the Indenture or the Notes, or the Note Guarantee or for any claims based on, in respect of or by reason of, such obligations
or their creation. Each Holder of Notes by accepting a Note waives and releases all such liability. The waiver and release are part of the consideration for issuance of the Notes. The waiver may not be effective to waive liabilities under the
U.S. federal securities laws or under corporate law of the State of Delaware.
14. Discharge of Indenture. The Indenture contains certain provisions pertaining to discharge and defeasance, which provisions shall for all purposes have the same effect as if set forth herein.
15. Authentication. This Note shall not be valid until the Trustee signs, by manual, facsimile or electronic signature, the certificate of authentication attached to the other side of this Note.
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16. Additional Amounts. The Company is obligated to pay Additional Amounts on this Note to the extent provided in the Indenture.
17. Abbreviations. Customary abbreviations may be used in the name of a Holder or an assignee, such as: TEN COM(= tenants in common), TEN ENT(= tenants by the entireties), JT TEN (= joint tenants
with right of survivorship and not as tenants in common), CUST (= custodian), and U/G/M/A (= Uniform Gifts to Minors Act).
Governing Law. THE INDENTURE, THIS NOTE AND THE NOTE GUARANTEES, INCLUDING ANY CLAIM OR CONTROVERSY ARISING OUT OF OR
RELATING TO THE INDENTURE, THE NOTES OR THE NOTE GUARANTEES, SHALL BE GOVERNED BY THE LAWS OF THE STATE OF NEW YORK WITHOUT REGARD TO CONFLICT OF LAW PRINCIPLES THAT WOULD RESULT IN THE APPLICATION OF ANY LAW OTHER THAN THE LAW OF THE STATE
OF NEW YORK.
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ASSIGNMENT FORM
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To assign this Note, fill in the form below: (I) or (we) assign and transfer this Note to:
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(Insert assignee’s legal name)
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(Insert assignee’s soc. Sec. or tax I.D. no.)
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(Print or type assignee’s name, address and zip code)
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and irrevocably appoint
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agent to transfer this Note on the books of the Company. The agent may substitute another to act for him.
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| Date: |
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Your Signature:
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(Sign exactly as your name appears on the face of this Note)
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| Signature Guarantee: | ||
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(Signature must be guaranteed by a participant in a recognized Signature Guarantee Medallion Program (or other signature guarantor acceptable to the Trustee))
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SCHEDULE OF INCREASES AND DECREASES IN THE GLOBAL NOTE
The following increases and decreases in this Global Note have been made:
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Date of
Increase or
Decrease
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Amount of
decrease in
Principal
Amount of this
Global Note
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Amount of
increase in
Principal
Amount of this
Global Note
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Principal
Amount of this
Global Note
following such
decrease (or
increase)
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Signature of
authorized
officer of
Registrar
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OPTION OF HOLDER TO ELECT PURCHASE
If you want to elect to have part of this Note purchased by the Company pursuant to Section 2.1 of the Fifth Supplemental Indenture, state the principal amount (which must be an integral multiple of U.S.$1,000,
provided that the principal amount is not less than U.S.$50,000) that you want to have purchased by the Company:
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U.S.$
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Date:
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Your Signature:
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(Sign exactly as your name appears on the other side of the Note)
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Tax Identification No.:
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Signature Guarantee:
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(Signature must be guaranteed)
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The signature(s) should be guaranteed by an eligible guarantor institution (banks, stockbrokers, savings and loan associations and credit unions with membership in an approved signature guarantee medallion
program), pursuant to Exchange Act Rule 17Ad-15.
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EXHIBIT B
FORM OF SUPPLEMENTAL INDENTURE
FOR ADDITIONAL NOTE GUARANTEE
This Supplemental Indenture, dated as of [__________] (this “Supplemental Indenture”), among [name of Subsidiary], a
[________________] [corporation][limited liability company] (the “Additional Subsidiary Guarantor”), MercadoLibre, Inc., a Delaware Corporation (together with its successors and assigns, the “Company”) and The Bank of New York Mellon, as Trustee under the Indenture referred to below.
W I T N E S S E T H:
WHEREAS, the Company, the Trustee and the Subsidiary Guarantors named therein (each a “Subsidiary Guarantor” and together the “Subsidiary
Guarantors”) have heretofore executed and delivered an Indenture, dated as of January 14, 2021 (the “Base Indenture,” and as amended and supplemented by the Fifth Supplemental Indenture, dated
as of [ ], 2026 (the “Fifth Supplemental Indenture,” the “Indenture”), providing for the issuance of $[ ] [ ]% Notes due 20[•] (the “Notes”); and
WHEREAS, pursuant to Section 10.1 of the Base Indenture, the Trustee and the Company are authorized to execute and deliver this Supplemental Indenture to supplement the Indenture, without the consent of any Holder;
NOW, THEREFORE, in consideration of the foregoing and for other good and valuable consideration, the receipt of which is hereby acknowledged, the Additional Subsidiary Guarantor, the Company and the Trustee
mutually covenant and agree for the equal and ratable benefit of the Holders of the Notes as follows:
ARTICLE I
DEFINITIONS
Section 1.1 Defined Terms. Unless otherwise defined in this Supplemental Indenture, terms defined in the Indenture are used herein as therein defined.
ARTICLE II
AGREEMENT TO BE BOUND; GUARANTEE
Section 2.1 Agreement to be Bound. The Additional Subsidiary Guarantor hereby becomes a party to the Indenture as a Subsidiary Guarantor and as such shall have all of the rights and be subject to
all of the obligations and agreements of a Subsidiary Guarantor under the Indenture. The Additional Subsidiary Guarantor hereby agrees to be bound by all of the provisions of the Indenture applicable to a Subsidiary Guarantor and to perform all
of the obligations and agreements of a Subsidiary Guarantor under the Indenture.
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Section 2.2 Note Guarantees.
(a) The Additional Subsidiary Guarantor hereby fully and unconditionally guarantees to each Holder of a Note authenticated and delivered by the Trustee and to the Trustee and its
successors and assigns, irrespective of the validity and enforceability of the Indenture, the Notes or the obligations of the Company hereunder or thereunder, that (i) the principal of, premium on, if any, and interest, if any, on, the Notes
and all other amounts payable by the Company under the Indenture will be promptly paid in full when due, whether at Stated Maturity, by acceleration, redemption or otherwise, and interest on the overdue principal of, premium on, if any, and
interest, if any, on, the Notes, if lawful, and all other obligations of the Company to the Holders or the Trustee hereunder or thereunder (such guaranteed obligations, the “Guaranteed Obligations”) will
be promptly paid in full or performed, all in accordance with the terms hereof and thereof; and (ii) in case of any extension of time of payment or renewal of any Notes or any of such other obligations, that same will be promptly paid in full
when due or performed in accordance with the terms of the extension or renewal, whether at Stated Maturity, by acceleration or otherwise.
(b) Failing payment when due of any amount so guaranteed or any performance so guaranteed for whatever reason, the Additional Subsidiary Guarantor, together with the Subsidiary
Guarantors, will be obligated to pay the same immediately. The Additional Subsidiary Guarantor agrees that its Note Guarantee is a guarantee of payment and not a guarantee of collection.
(c) The Additional Subsidiary Guarantor hereby agrees that its obligations under its Note Guarantee are unconditional, irrespective of the validity, regularity or enforceability of the
Notes or the Indenture, the absence of any action to enforce the same, any waiver or consent by any Holder of the Notes or the Trustee with respect to any provisions hereof or thereof, the recovery of any judgment against the Company, any
action to enforce the same or any other circumstance which might otherwise constitute a legal or equitable discharge or defense of such Subsidiary Guarantor. The Additional Subsidiary Guarantor hereby waives diligence, presentment, demand of
payment, filing of claims with a court in the event of insolvency or bankruptcy of the Company, any right to require a proceeding first against the Company, protest, notice and all demands whatsoever and covenants that its Note Guarantee will
not be discharged with respect to the Notes except by complete performance of the obligations contained in the Notes and the Indenture.
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(d) If any Holder or the Trustee is required by any court or otherwise to return to the Company, the Subsidiary Guarantors or any custodian, trustee, liquidator or other similar officer
acting in relation to either the Company or the Subsidiary Guarantors, any amount paid either to the Trustee or such Holder, each Subsidiary Guarantor’s Note Guarantee, to the extent theretofore discharged, will be reinstated in full force and
effect.
(e) The Additional Subsidiary Guarantor agrees that it will not be entitled to any right of subrogation in relation to the Holders with respect to the Notes in respect of any obligations
guaranteed hereby until payment in full of all obligations guaranteed hereby with respect to the Notes. The Subsidiary Guarantor further agrees that, as between the Subsidiary Guarantors, on the one hand, and the Holders and the Trustee, on the
other hand, (1) the maturity of the obligations guaranteed hereby may be accelerated as provided in Article VII of the Base Indenture for the purposes of the Subsidiary Guarantors’ Note Guarantees, notwithstanding any stay, injunction or other
prohibition preventing such acceleration in respect of the obligations guaranteed hereby, and (2) in the event of any declaration of acceleration of such obligations as provided in Article VII of the Base Indenture, such obligations (whether or
not due and payable) will forthwith become due and payable by any Subsidiary Guarantor for the purpose of such Subsidiary Guarantor’s Note Guarantee.
(d) The Additional Subsidiary Guarantors further expressly waives irrevocably and unconditionally:
(i) Any right it may have to first require any Holder to proceed against, initiate any actions before a court of law or any other judge or authority, or enforce any other rights or
security or claim payment from the Company or any other Person (including any Subsidiary Guarantor or any other guarantor) before claiming from it under this Indenture;
(ii) Any rights and benefits arising from Articles 775, 776, 777, 829, 830 and 831 (other than with respect to defenses or motions based on documented payment (pago), reduction (quita), extension (espera) or release or remission (remisión), 1583, 1584, 1585 and
1589 (beneficios de excusión y división), 1594, 1592, 1596 and 1598 of the Argentine Civil and Commercial Code;
(iii) Any rights to the benefits of orden, excusión, división,
quita and espera arising from Articles 2814, 2815, 2817, 2818, 2819, 2820, 2821, 2822, 2823, 2826, 2837, 2839, 2840, 2845, 2846, 2847 and any other related or
applicable Articles that are not explicitly set forth herein because of the Subsidiary Guarantor’s knowledge thereof, of the Código Civil Federal of Mexico and the Código
Civil of each State of the Mexican Republic and for the Federal District of Mexico;
(iv) Any rights to the benefits of ordem arising from Article 827 and any other related or applicable Articles that are not explicitly set forth herein because of the Guarantor’s
knowledge thereof, of the Brazilian Civil Code (Código Civil Brasileiro);
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(v) Any rights to the beneficio de excusión contemplated in Section 2357 of the Chilean Civil Code (Código
Civil de Chile), the beneficio de división contemplated in Section 2367 of the Chilean Civil Code; the right granted to any Guarantor incorporated under the laws of Chile under Section 2355 of
the Chilean Civil Code; the right or possibility of withdraw upon the non-existence of the primary obligation, as contemplated by Section 2339 of the Chilean Civil Code and the right granted to any Guarantor incorporated under the laws of Chile
by Section 1649 of the Chilean Civil Code in the case of mere extension of the term of the Securities;
(vi) Any right to which it may be entitled to have the assets of the Company or any other Person (including any Subsidiary Guarantor or any other guarantor) first be used, applied or
depleted as payment of the Company’s or the Additional Subsidiary Guarantors’ obligations hereunder, prior to any amount being claimed from or paid by the Additional Subsidiary Guarantors hereunder; and
(vii) Any right to which it may be entitled to have claims hereunder divided among the Subsidiary Guarantors and the Additional Subsidiary Guarantor.
Section 2.3 Limitation on Liability; Termination, Release and Discharge.
(a) The Additional Subsidiary Guarantor, and by its acceptance of Notes, each Holder, hereby confirm that it is the intention of all such parties that the Guarantee of the Additional Subsidiary Guarantor
not constitute a fraudulent transfer or conveyance for purposes of Bankruptcy Law, the Uniform Fraudulent Conveyance Act, the Uniform Fraudulent Transfer Act or any similar federal or state law to the extent applicable to this Guarantee. To
effectuate the foregoing intention, the Trustee, the Holders and the Additional Subsidiary Guarantor hereby irrevocably agree that the obligations of the Additional Subsidiary Guarantor will be limited to the maximum amount that will, after
giving effect to such maximum amount and all other contingent and fixed liabilities of the Additional Subsidiary Guarantor that are relevant under such laws, result in the obligations of the Additional Subsidiary Guarantor under this Guarantee
not constituting a fraudulent transfer or conveyance.
(b) The Note Guarantee of an Additional Subsidiary Guarantor shall be automatically and unconditionally released and discharged and shall thereupon terminate and be of no further force and effect, and no
further action by such Additional Subsidiary Guarantor, the Company or the Trustee is required for the release of such Additional Subsidiary Guarantor’s Note Guarantee upon:
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(1) the sale, exchange, disposition or other transfer (including by way of consolidation or merger) of the Additional Subsidiary Guarantor or the sale or disposition of all or
substantially all the assets of the Additional Subsidiary Guarantor (other than to the Company or a Subsidiary) otherwise permitted by the Indenture;
(2) a Legal Defeasance or a Covenant Defeasance of the Notes pursuant to Article IX of the Base Indenture;
(3) a satisfaction and discharge of this Indenture pursuant to Section 9.5 of the Base Indenture;
(4) the release or discharge of the Note Guarantee by such Additional 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; or
(5) such Additional Subsidiary Guarantor becoming an Excluded Subsidiary or ceasing to be a Subsidiary;
provided, in each case, such transactions are carried out pursuant to and in accordance with all applicable covenants and provisions thereof. At the option of the Company, the release of a Subsidiary Guarantor may
be evidenced by the delivery of an Officer's Certificate to the Trustee.
Section 2.4 Right of Contribution. If the Additional Subsidiary Guarantor makes a payment or distribution under its Note Guarantee, it will be entitled to a contribution from each other Subsidiary
Guarantor in a pro rata amount, based on the net assets of each Subsidiary Guarantor and the Additional Subsidiary Guarantor determined in accordance with GAAP. The provisions of this Section 2.4 shall in no respect limit the obligations and
liabilities of the Additional Subsidiary Guarantor to the Trustee and the Holders and the Additional Subsidiary Guarantor shall remain liable to the Trustee and the Holders for the full amount guaranteed by the Additional Subsidiary Guarantor
hereunder.
Section 2.5 No Subrogation. The Additional Subsidiary Guarantor agrees that it shall not be entitled to any right of subrogation in respect of any Guaranteed Obligations until payment in full in
cash or Cash Equivalents of all Guaranteed Obligations. If any amount shall be paid to the Additional Subsidiary Guarantor on account of such subrogation rights at any time when all of the Guaranteed Obligations shall not have been paid in full
in cash or Cash Equivalents, such amount shall be held by the Additional Subsidiary Guarantor in trust for the Trustee and the Holders, segregated from other funds of the Additional Subsidiary Guarantor, and shall, forthwith upon receipt by the
Additional Subsidiary Guarantor, be turned over to the Trustee in the exact form received by the Additional Subsidiary Guarantor (duly endorsed by the Additional Subsidiary Guarantor to the Trustee, if required), to be applied against the
Guaranteed Obligations.
B-5
ARTICLE III
MISCELLANEOUS
Section 3.1 Notices. Any notice or communication delivered to the Company under the provisions of the Indenture shall constitute notice to the Additional Subsidiary Guarantor.
Section 3.2 Parties. Nothing expressed or mentioned herein is intended or shall be construed to give any Person, firm or corporation, other than the Holders and the Trustee, any legal or equitable
right, remedy or claim under or in respect of this Supplemental Indenture or the Indenture or any provision herein or therein contained.
Section 3.3 Governing Law, etc. This Supplemental Indenture shall be governed by the provisions set forth in Section 11.10 of the Base Indenture.
Section 3.4 Severability. In case any provision in this Supplemental Indenture shall be invalid, illegal or unenforceable, the validity, legality and enforceability of the remaining provisions shall
not in any way be affected or impaired thereby and such provision shall be ineffective only to the extent of such invalidity, illegality or unenforceability.
Section 3.5 Ratification of Indenture; Supplemental Indenture Part of Indenture. Except as expressly amended hereby, the Indenture is in all respects ratified and confirmed and all the
terms, conditions and provisions thereof shall remain in full force and effect. This Supplemental Indenture shall form a part of the Indenture for all purposes, and every holder of Notes heretofore or hereafter authenticated and delivered shall
be bound hereby. The Trustee makes no representation or warranty as to the validity or sufficiency of this Supplemental Indenture.
Section 3.6 Duplicate and Counterpart Originals. The parties may sign any number of copies of this Supplemental Indenture. One signed copy is enough to prove this Supplemental Indenture. This
Supplemental Indenture may be executed in any number of counterparts, each of which so executed shall be an original, but all of them together represent the same agreement. Delivery of an executed counterpart of a signature page of this
Supplemental Indenture by facsimile or in electronic format shall be effective as delivery of a manually executed counterpart of this Supplemental Indenture.
Section 3.7 Headings. The headings of the Articles and Sections in this Supplemental Indenture have been inserted for convenience of reference only, are not intended to be considered as a part
hereof and shall not modify or restrict any of the terms or provisions hereof.
B-6
Section 3.8 The Trustee. The recitals in this Supplemental Indenture are made by the Company and the Additional Subsidiary Guarantor only and not by the Trustee, and all of the provisions contained
in the Base Indenture in respect of the rights, privileges, immunities, powers and duties of the Trustee shall be applicable in respect of this Supplemental Indenture as fully and with like effect as if set forth herein in full. The Trustee
makes no representations or warranties as to the correctness of the recitals contained herein, which shall be taken as statements of the Company, or the validity or sufficiency of this Supplemental Indenture and the Trustee shall not be
accountable or responsible for or with respect to nor shall the Trustee have any responsibility for provisions thereof. The Trustee represents that it is duly authorized to execute and deliver this Supplemental Indenture and perform its
obligations hereunder.
B-7
IN WITNESS WHEREOF, the parties hereto have caused this Supplemental Indenture to be duly executed as of the date first above written.
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MERCADOLIBRE, INC.
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By:
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Name:
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Title:
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[NAME OF ADDITIONAL SUBSIDIARY
GUARANTOR],
as Additional Subsidiary Guarantor
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By:
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Name:
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Title:
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THE BANK OF NEW YORK MELLON,
as Trustee
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By:
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Name:
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Title:
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B-8
Exhibit 4.3
THIS GLOBAL NOTE IS HELD BY THE DEPOSITARY (AS DEFINED IN THE INDENTURE GOVERNING THIS NOTE) OR ITS NOMINEE IN CUSTODY FOR THE BENEFIT OF THE BENEFICIAL OWNERS HEREOF, AND IS NOT TRANSFERABLE TO ANY PERSON
UNDER ANY CIRCUMSTANCES EXCEPT THAT (1) THE TRUSTEE MAY MAKE SUCH NOTATIONS HEREON AS MAY BE REQUIRED PURSUANT TO SECTION 1.3 OF THE FIFTH SUPPLEMENTAL INDENTURE, (2) THIS GLOBAL NOTE MAY BE EXCHANGED IN WHOLE BUT NOT IN PART PURSUANT TO
SECTION 1.3 OF THE FIFTH SUPPLEMENTAL INDENTURE, (3) THIS GLOBAL NOTE MAY BE DELIVERED TO THE TRUSTEE FOR CANCELLATION PURSUANT TO SECTION 2.12 OF THE BASE INDENTURE AND (4) THIS GLOBAL NOTE MAY BE TRANSFERRED TO A SUCCESSOR DEPOSITARY WITH THE
PRIOR WRITTEN CONSENT OF THE COMPANY.
UNLESS AND UNTIL IT IS EXCHANGED IN WHOLE OR IN PART FOR NOTES IN DEFINITIVE FORM, THIS NOTE MAY NOT BE TRANSFERRED EXCEPT TO A CUSTODIAN OR A NOMINEE OF SUCH CUSTODIAN, BY A CUSTODIAN OR A NOMINEE OF SUCH CUSTODIAN
TO A DEPOSITARY OR TO ANOTHER NOMINEE OR CUSTODIAN OF SUCH DEPOSITARY, OR BY SUCH CUSTODIAN OR DEPOSITARY OR ANY SUCH NOMINEE TO A SUCCESSOR DEPOSITARY OR CUSTODIAN OR A NOMINEE THEREOF. ACCORDINGLY, UNLESS THIS CERTIFICATE IS PRESENTED BY AN
AUTHORIZED REPRESENTATIVE OF THE DEPOSITORY TRUST COMPANY (140 58TH STREET, BROOKLYN NY, 11220) (“DTC”), TO THE COMPANY OR ITS AGENT FOR REGISTRATION OF TRANSFER, EXCHANGE OR PAYMENT, AND ANY CERTIFICATE ISSUED IS REGISTERED IN THE NAME OF CEDE
& CO. OR SUCH OTHER NAME AS MAY BE REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC (AND ANY PAYMENT IS MADE TO CEDE & CO. OR SUCH OTHER ENTITY AS MAY BE REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC), ANY TRANSFER, PLEDGE OR OTHER USE
HEREOF FOR VALUE OR OTHERWISE BY OR TO ANY PERSON IS WRONGFUL INASMUCH AS THE REGISTERED OWNER HEREOF, CEDE & CO., HAS AN INTEREST HEREIN.
5.850% NOTES DUE 2036
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No. R-[ ]
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$[ ]
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CUSIP: 58733R AJ1
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ISIN: US58733RAJ14
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MERCADOLIBRE, INC.
promises to pay to Cede & Co., or registered assigns, the principal sum of [ ] Dollars on September 14, 2036 (as modified by the Schedule of Increases and Decreases in the Global Note attached hereto).
Interest Payment Dates: March 14 and September 14, commencing March 14, 2027.
Record Dates: March 1 and September 1 (whether or not a Business Day)
Each holder of this Note (as defined below), by accepting the same, agrees to and shall be bound by the provisions hereof and of the Indenture described herein, and authorizes and directs the Trustee described herein
on such holder’s behalf to be bound by such provisions. Each holder of this Note hereby waives all notice of the acceptance of the provisions contained herein and in the Indenture and waives reliance by such holder upon said provisions.
This Note shall not be entitled to any benefit under the Indenture, or be valid or become obligatory for any purpose, until the Certificate of Authentication hereon shall have been signed by or on behalf of the
Trustee. The provisions of this Note are continued on the reverse side hereof, and such continued provisions shall for all purposes have the same effect as though fully set forth at this place.
2
IN WITNESS WHEREOF, the Company has caused this instrument to be duly executed.
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Date: [ ]
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MERCADOLIBRE, INC.
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By:
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Name:
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Title:
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3
CERTIFICATE OF AUTHENTICATION
This is one of the 5.850% Notes due 2036 issued by MercadoLibre, Inc. referred to in the within-mentioned Indenture.
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Date: [ ]
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THE BANK OF NEW YORK MELLON
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as Trustee
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By:
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Name:
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Title:
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Authorized Signatory | ||
4
MercadoLibre, Inc.
5.850% Notes due 2036
This note is one of a duly authorized Series of debt securities of MercadoLibre, Inc., a Delaware corporation (the “Company”), issued or to be issued in one or more Series
under and pursuant to an Indenture for the Company’s debentures, notes or other debt instruments evidencing its indebtedness, dated as of January 14, 2021 (the “Base Indenture”), duly executed and
delivered by and between the Company, the Subsidiary Guarantors and The Bank of New York Mellon as trustee (the “Trustee”), registrar, paying agent and transfer agent, as supplemented and amended by the
Fifth Supplemental Indenture, dated as of September 14, 2026 (the “Fifth Supplemental Indenture”), by and among the Company, the Subsidiary Guarantors (as defined therein) and the Trustee. The Base
Indenture as supplemented and amended by the Fifth Supplemental Indenture is referred to herein as the “Indenture.” By the terms of the Base Indenture, the debt securities issuable thereunder are issuable
in Series that may vary as to amount, date of maturity, rate of interest and in other respects as provided in the Base Indenture. This note is one of the Series designated on the face hereof (individually, a “Note,”
and collectively, the “Notes”), and reference is hereby made to the Indenture for a description of the rights, limitations of rights, obligations, duties and immunities of the Trustee, the Company and the
Holders of the Notes (the “Holders”). Capitalized terms used herein and not otherwise defined shall have the meanings given them in the Indenture.
1. Interest. Interest on the Notes will accrue at the rate of 5.850% per year, and shall be payable semi-annually in arrears on March 14 and September 14 of each year, commencing on March 14, 2027.
Payments shall be made to the persons who are registered Holders at the close of business on March 1 and September 1, as the case may be, immediately preceding the applicable Interest Payment Date (whether or not a Business Day) and at maturity.
Interest on the Notes will accrue from the most recent date to which interest has been paid or, if no interest has been paid, from and including the Issue Date. Interest will be computed on the basis of a 360-day year comprised of twelve 30-day
months.
2. Method of Payment. The Company will pay interest on the Notes (except defaulted interest), if any, to the persons in whose name such Notes are registered at the close of business on the regular
record date referred to on the facing page of this Note for such interest payment. In the event that the Notes or a portion thereof are called for redemption and the Redemption Date is subsequent to a regular record date with respect to any
Interest Payment Date and prior to such Interest Payment Date, interest on such Notes will be paid upon presentation and surrender of such Notes as provided in the Indenture. The principal of and the interest on the Notes shall be payable in U.S.
Dollars, at the office of the Paying Agent maintained for that purpose in accordance with the Indenture, or at the Company’s option, by check mailed to the address of the registered Holder or, with respect to any Global Note or upon application
by the Holder of a Certificated Note to the specified office of any Paying Agent not less than 15 days before the due date of any payment, by wire transfer to a U.S. dollar account.
3. Registrar, Paying Agent, and Transfer Agent. Initially, The Bank of New York Mellon will act as Registrar; the initial Paying Agent will be The Bank of New York Mellon, in New York; the initial
Transfer Agent will be The Bank of New York Mellon, in New York. The Company may change or appoint any Registrar, Paying Agent or Transfer Agent without notice to any Holder.
5
4. Indenture. The Notes are senior unsecured obligations of the Company and constitute the Series designated on the face hereof as the “5.850% Notes due 2036”,
initially limited to $1,000,000,000 in aggregate principal amount. The Company will furnish to any Holders upon written request and without charge a copy of the Base Indenture and the Fifth Supplemental Indenture. Requests may be made to:
MercadoLibre Inc., WTC Free Zone, Dr. Luis Bonavita 1294, Of. 1733, Tower II, Montevideo, Uruguay, 11300, Attention: General Counsel.
5. Optional Redemption.
(a) Optional Redemption with a Make-Whole Premium. At the Company’s option, the Notes may be redeemed or purchased, in each case, in whole or in part at any
time or from time to time prior to the Stated Maturity of the Notes, as provided in Article IV of the Base Indenture, Section 1.2 of the Fifth Supplemental Indenture and in this Section 5.
Prior to June 14, 2036 (the date that is three months prior to the maturity of the Notes) (the “Par Call Date”), the Company may redeem the Notes at its
option, in whole or in part, at any time and from time to time, at a redemption price (expressed as a percentage of principal amount and rounded to three decimal places) equal to the greater of:
(i) 100% of the principal amount of the Notes to be redeemed, and
(ii) (a) the sum of the present values of the remaining scheduled payments of principal and interest thereon discounted to the redemption date (assuming the Notes matured on the Par Call
Date) on a semi-annual basis (assuming a 360-day year consisting of twelve 30-day months) at the Treasury Rate plus 20 basis points, less (b) interest accrued to the date of redemption,
plus, in either case, accrued and unpaid interest on the Notes being redeemed to, but excluding, the redemption date.
On or after the Par Call Date, the Company may redeem the Notes, in whole or in part, at any time and from time to time, at a redemption price equal to 100% of the principal amount of the Notes
being redeemed plus accrued and unpaid interest thereon to the redemption date.
“Treasury Rate” means, with respect to any redemption date, the yield determined by the Company in accordance with the following two paragraphs.
6
The Treasury Rate shall be determined by the Company or the Company’s designee (which will not be the Trustee) after 4:15 p.m., New York City time (or after such time as yields on U.S. government
securities are posted daily by the Board of Governors of the Federal Reserve System), on the third business day preceding the redemption date based upon the yield or yields for the most recent day that appear after such time on such day in the
most recent statistical release published by the Board of Governors of the Federal Reserve System designated as “Selected Interest Rates (Daily) - H.15” (or any successor designation or publication) (“H.15”) under the caption “U.S. government
securities–Treasury constant maturities–Nominal” (or any successor caption or heading) (“H.15 TCM”). In determining the Treasury Rate, the Company shall select, as applicable: (1) the yield for the Treasury constant maturity on H.15 exactly equal
to the period from the redemption date to the Par Call Date (the “Remaining Life”); or (2) if there is no such Treasury constant maturity on H.15 exactly equal to the Remaining Life, the two yields – one yield corresponding to the Treasury
constant maturity on H.15 immediately shorter than and one yield corresponding to the Treasury constant maturity on H.15 immediately longer than the Remaining Life – and shall interpolate to the Par Call Date on a straight-line basis (using the
actual number of days) using such yields and rounding the result to three decimal places; or (3) if there is no such Treasury constant maturity on H.15 shorter than or longer than the Remaining Life, the yield for the single Treasury constant
maturity on H.15 closest to the Remaining Life. For purposes of this paragraph, the applicable Treasury constant maturity or maturities on H.15 shall be deemed to have a maturity date equal to the relevant number of months or years, as
applicable, of such Treasury constant maturity from the redemption date.
If on the third business day preceding the redemption date H.15 TCM is no longer published, the Company shall calculate the Treasury Rate based on the rate per annum equal to the semi-annual
equivalent yield to maturity at 11:00 a.m., New York City time, on the second business day preceding such redemption date of the United States Treasury security maturing on, or with a maturity that is closest to, the Par Call Date, as applicable.
If there is no United States Treasury security maturing on the Par Call Date but there are two or more United States Treasury securities with a maturity date equally distant from the Par Call Date, one with a maturity date preceding the Par Call
Date and one with a maturity date following the Par Call Date, the Company shall select the United States Treasury security with a maturity date preceding the Par Call Date. If there are two or more United States Treasury securities maturing on
the Par Call Date or two or more United States Treasury securities meeting the criteria of the preceding sentence, the Company shall select from among these two or more United States Treasury securities the United States Treasury security that is
trading closest to par based upon the average of the bid and asked prices for such United States Treasury securities at 11:00 a.m., New York City time. In determining the Treasury Rate in accordance with the terms of this paragraph, the
semi-annual yield to maturity of the applicable United States Treasury security shall be based upon the average of the bid and asked prices (expressed as a percentage of principal amount) at 11:00 a.m., New York City time, of such United States
Treasury security, and rounded to three decimal places.
7
Calculation of the foregoing will be made by the Company or on the Company’s behalf by such Person as the Company shall designate; provided, however, that such calculation shall not be a duty or
obligation of the Trustee. The Company’s actions and determinations in determining the redemption price shall be conclusive and binding for all purposes, absent manifest error.
(b) Optional Redemption Upon Tax Event. If the Company determines that, as a result of any amendment to, or change in, the laws or treaties (or any rules or regulations, or if applicable,
rulings promulgated thereunder) of any Relevant Jurisdiction, any taxing authority thereof or therein affecting taxation, or any amendment to, or change in an official interpretation or application (including judicial or administrative
interpretation or application, as applicable) of such laws, treaties, rules, regulations or rulings, which amendment to, or change in such laws, treaties, rules, regulations or rulings is legislated or promulgated or, in the case of a change in
official interpretation or application (including judicial or administrative interpretation or application, as applicable), is announced or otherwise made available on or after the later of the Issue Date and the date a Relevant Jurisdiction
becomes a Relevant Jurisdiction, the Company or a Subsidiary Guarantor would be obligated, to pay any Additional Amounts, provided that the Company, in its business judgment, determines that such
obligation cannot be avoided by the Company taking reasonable measures available to it, including, without limitation, taking reasonable measures to change the Paying Agent, then, at the Company’s option, all, but not less than all, of the Notes
may be redeemed at any time at a redemption price equal to 100% of the outstanding principal amount, plus any accrued and unpaid interest to the Redemption Date due thereon up to but not including the Redemption Date; provided that (1) no notice of redemption for tax reasons may be given earlier than 90 days prior to the earliest date on which the Company (or a Subsidiary Guarantor) would be obligated to pay these Additional Amounts if a
payment on the Notes were then due, and (2) at the time such notice of redemption is given such obligation to pay such Additional Amounts remains in effect.
Prior to the giving of any notice of redemption pursuant to this provision, the Company will deliver to the Trustee:
(i) an Officer’s Certificate stating that the Company is entitled to effect the redemption and setting forth a statement of facts showing that the conditions precedent to the Company’s
right to redeem have occurred; and
(ii) an Opinion of Counsel from legal counsel in a Relevant Jurisdiction (which may be the Company’s counsel) of recognized standing to the effect that the Company has or will become
obligated to pay such Additional Amounts as a result of such change or amendment.
(c) Redemption at Par. The Notes will be redeemable, at any time and from time to time, in whole or in part, at the Company’s option beginning on the Par Call Date, at a redemption price equal to
100% of the outstanding principal amount of the Notes to be redeemed, plus accrued and unpaid interest on the principal amount of the Notes being redeemed to, but not including, the Redemption Date.
8
Notwithstanding the foregoing, payments of interest on the Notes that are due and payable on or prior to a date fixed for redemption of the Notes shall be payable to the Holders of those Notes
registered as such at the close of business on the relevant record dates according to the terms and provisions of the Indenture.
(d) Optional Redemption Procedures.
(i) Notice of any redemption shall be sent in the manner provided for in Section 11.1 of the Base Indenture at least 10 but not more than 30 days before the Redemption Date to Holders of
Notes to be redeemed.
(ii) The Company may make any redemption or redemption notice subject to the satisfaction of conditions precedent. If such redemption or notice is subject to the satisfaction of one or
more conditions precedent, such notice shall state that, in the Company’s discretion, the Redemption Date may be delayed until such time (but no more than 60 days after the date of the notice of redemption) as any or all such conditions shall be
satisfied, or such redemption may not occur and such notice may be rescinded in the event that any or all such conditions shall not have been satisfied by the redemption date, or by the redemption date as so delayed. In addition, the Company may
provide in such notice that payment of the redemption price and performance of the Company’s obligations with respect to such redemption may be performed by another person.
(iii) Notes called for redemption will become due on the date fixed for redemption. The Company will pay the redemption price for the Notes called for redemption including accrued and
unpaid interest thereon to but not including the Redemption Date. On and after the Redemption Date, interest will cease to accrue on such Notes as long as the Company has deposited with the paying agent funds in satisfaction of the applicable
redemption price including accrued and unpaid interest thereon pursuant to the Indenture. Upon redemption of the Notes by the Company, the redeemed Notes will be cancelled and cannot be reissued.
9
(iv) If fewer than all of the Notes are being redeemed, the Notes to be redeemed shall be selected as follows: (1) if the Notes are listed on an exchange, in compliance with the
requirements of such exchange, (2) if the Notes are not so listed but are in global form, then by lot or otherwise in accordance with the procedures of DTC or the applicable depositary or (3) if the Notes are not so listed and are not in global
form, on a pro rata basis to the extent practicable, or, if the pro rata basis is not practicable for any reason, by lot or by such other method as the Trustee in its sole discretion shall deem fair and appropriate; provided that the remaining
principal amount of such Holder’s Note will not be less than U.S.$50,000. Upon surrender of any Note redeemed in part, the Holder will receive a new Note equal in principal amount to the unredeemed portion of the surrendered Note. Once notice of
redemption is sent to the Holders, Notes called for redemption become due and payable at the redemption price on the Redemption Date, and, commencing on the Redemption Date, Notes redeemed will cease to accrue interest (unless the Company
defaults in the payment of the redemption price).
6. Mandatory Repurchase Provisions. Upon the occurrence of a Change of Control Repurchase Event, each Holder of Notes will have the right to require that the Company purchase all or a portion (in
integral multiples of U.S.$1,000, provided that the remaining principal amount of such Holder’s Note will not be less than U.S.$50,000) of the Holder’s Notes at a purchase price equal to 101% of the
principal amount thereof, plus any accrued and unpaid interest thereon through the Change of Control Payment.
The Company will have the right to redeem all of the Notes at 101% of the principal amount thereof, plus accrued and unpaid interest, if any, to, but not including, the Redemption Date (subject to the right of
Holders of Notes on a relevant record date to receive interest on an interest payment date occurring on or prior to the Redemption Date), following the consummation of a Change of Control Repurchase Event if at least 90% of the Outstanding Notes
prior to such consummation are purchased pursuant to a Change of Control Offer with respect to such Change of Control Repurchase Event.
Within 30 days following the date upon which the Change of Control Repurchase Event occurs, the Company must make a Change of Control Offer pursuant to a Change of Control Notice. As more fully described in the
Indenture, the Change of Control Notice shall state, among other things, the Change of Control Payment Date, which must be at least 30 days but not more than 60 days from the date the notice is given, other than as may be required by applicable
law.
7. Denominations, Transfer, Exchange. The Notes are in registered form in minimum denominations of U.S.$50,000 and integral multiples of U.S.$1,000 in excess thereof. The transfer of Notes may be
registered and Notes may be exchanged as provided in the Indenture. The Registrar and the Trustee may require a Holder, among other things, to furnish appropriate endorsements and transfer documents and the Company may require a Holder to pay any
taxes and fees required by law or permitted by the Indenture. The Company need not exchange or register the transfer of any Note or portion of a Note selected for redemption, except for the unredeemed portion of any Note being redeemed in part.
Also, the Company need not exchange or register the transfer of any Notes for a period of 15 days before a selection of Notes to be redeemed or during the period between a record date and the next succeeding Interest Payment Date.
8. Persons Deemed Owners. The registered Holder of a Note may be treated as the owner of it for all purposes. Only registered Holders have rights under the Indenture.
10
9. Repayment to the Company. The Trustee and the Paying Agent shall promptly pay to the Company upon written request any excess money or Government Obligations (or proceeds therefrom) held by them
at any time upon the written request of the Company.
Subject to the requirements of any applicable abandoned property laws, the Trustee and the Paying Agent shall pay to the Company upon written request any money held by them for the payment of principal, premium (if
any), interest or any Additional Amounts that remains unclaimed for two years after the date upon which such payment shall have become due. After payment to the Company, Holders entitled to the money must look to the Company for payment as
general creditors unless an applicable abandoned property law designates another Person, and all liability of the Trustee and the Paying Agent with respect to such money shall cease.
10. Amendment, Supplements and Waivers.
(a) Subject to certain exceptions set forth in the Indenture, without the consent of any Holder, the Company, the Subsidiary Guarantors and the Trustee may, among other things, amend or supplement
the Indenture, the Note Guarantees or the Notes to cure any ambiguity, omission, defect or inconsistency; to provide for the assumption by a Surviving Entity of the obligations of the Company or a Subsidiary Guarantor under the Indenture; to add
Note Guarantees or additional guarantees with respect to the Notes or release a Note Guarantee in accordance with the terms of the Indenture; to secure the Notes; to add to the covenants of the Company for the benefit of the Holders or to
surrender any right or power thereby conferred upon the Company; to provide for the issuance of Additional Notes; to conform the text of the Indenture, the Note Guarantees or the Notes to any provision of the Prospectus; to evidence the
replacement of the Trustee as provided for under the Indenture; if necessary, in connection with any release of any security permitted under the Indenture; to provide for uncertificated Notes in addition to or in place of certificated Notes; or
to make any other changes which do not adversely affect the rights of any of the Holders in any material respect.
11
(b) Subject to certain exceptions set forth in the Indenture, (i) the Indenture, the Notes or the Note Guarantees may be amended or supplemented with the written consent of the Holders of at least
a majority in principal amount of the then Outstanding Notes and (ii) any Default or Event of Default and its consequences under the Indenture (other than regarding a Default or Event of Default in the payment of the principal of, premium, if
any, or interest or Additional Amounts, if any, on the Notes, except a payment Default resulting from an acceleration that has been rescinded) or compliance with any provision of, the Indenture, or the Notes, or the Notes Guarantees may be waived
with the written consent of the Holders of a majority in principal amount of the then Outstanding Notes, except that, without the consent of each Holder affected thereby, no amendment may (with respect to any Notes held by a non-consenting Holder
of Notes):reduce the percentage of the principal amount of the outstanding Notes whose Holders must consent to an amendment, supplement or waiver; reduce the rate of or change or have the effect of changing the time for payment of interest on any
Notes; change any place of payment where the principal of or interest on the Notes is payable; reduce the principal of or change or have the effect of changing the fixed maturity of any Notes, or change the date on which any Notes may be subject
to redemption, or reduce the redemption price therefor; make any Notes payable in money other than that stated in the Notes; make any change in the provisions of the Indenture entitling each Holder to receive payment of principal of, premium, if
any, and interest on the Notes on or after the due date thereof or to bring suit to enforce such payment, or permitting Holders of a majority in principal amount of outstanding Notes to waive Defaults or Events of Default; reduce the premium
payable upon a Change of Control Repurchase Event or, at any time after a Change of Control Repurchase Event has occurred, (i) amend, change or modify in any material respect the obligation of the Company to make and consummate a Change of
Control Offer relating thereto or (ii) change the time at which the Change of Control Offer relating thereto must be made or at which the Notes must be repurchased pursuant to such Change of Control Offer; eliminate or modify in any manner a
Subsidiary Guarantor’s obligations with respect to its Note Guarantee which adversely affects Holders in any material respect, except as contemplated in the Indenture; make any change in the Additional Amounts provisions of the Indenture that
adversely affects the rights of any Holder or amend the terms of the Notes in a way that would result in a loss of exemption from any applicable taxes; or make any change to the provisions of the Indenture or the Notes that adversely affects the
ranking of the Notes (for the avoidance of doubt, a change to the covenants described in Section 2.2 and Section 2.3 of the Fifth Supplemental Indenture shall not be deemed to adversely affect the ranking of the Notes).
11. Defaults and Remedies. If an Event of Default for the Company’s Notes occurs and is continuing (other than an Event of Default referred to in Section 7.1(a)(6) of the Base Indenture), the Trustee
or the Holders of at least 25% in principal amount of the outstanding Notes may declare the unpaid principal of and premium, if any, and accrued and unpaid interest on all such Notes to be immediately due and payable by notice in writing to the
Company (if given by the Trustee or the Holders) and the Trustee (if given by the Holders) specifying the Event of Default and that it is a “notice of acceleration”. If an Event of Default referred to in Section 7.l(a)(6) of the Base Indenture
occurs with respect to the Company the then unpaid principal of and premium, if any and accrued and unpaid interest on the Company’s Notes will become immediately due and payable without any declaration or other act on the part of the Trustee or
any Holder.
12. Trustee May Hold Notes. The Trustee in its individual or any other capacity may become the owner or pledgee of Notes and may otherwise deal with the Company or any of its Affiliates with the same
rights it would have if it were not Trustee. Any Agent may do the same with like rights and duties. However, the Trustee is subject to Section 8.10 and Section 8.11 of the Base Indenture.
12
13. No Personal Liability of Directors, Officers, Employees and Certain Others. No director, officer, employee, incorporator or similar founder, stockholder or member of the Company or any
Subsidiary Guarantor will have any liability for or any obligations of the Company or any Subsidiary Guarantor under the Indenture or the Notes, or the Note Guarantee or for any claims based on, in respect of or by reason of, such obligations or
their creation. Each Holder of Notes by accepting a Note waives and releases all such liability. The waiver and release are part of the consideration for issuance of the Notes. The waiver may not be effective to waive liabilities under the U.S.
federal securities laws or under corporate law of the State of Delaware.
14. Discharge of Indenture. The Indenture contains certain provisions pertaining to discharge and defeasance, which provisions shall for all purposes have the same effect as if set forth herein.
15. Authentication. This Note shall not be valid until the Trustee signs, by manual, facsimile or electronic signature, the certificate of authentication attached to the other side of this Note.
16. Additional Amounts. The Company is obligated to pay Additional Amounts on this Note to the extent provided in the Indenture.
17. Abbreviations. Customary abbreviations may be used in the name of a Holder or an assignee, such as: TEN COM(= tenants in common), TEN ENT(= tenants by the entireties), JT TEN (= joint tenants with
right of survivorship and not as tenants in common), CUST (= custodian), and U/G/M/A (= Uniform Gifts to Minors Act).
Governing Law. THE INDENTURE, THIS NOTE AND THE NOTE GUARANTEES, INCLUDING ANY CLAIM OR CONTROVERSY ARISING OUT OF OR RELATING TO THE INDENTURE, THE NOTES OR THE NOTE
GUARANTEES, SHALL BE GOVERNED BY THE LAWS OF THE STATE OF NEW YORK WITHOUT REGARD TO CONFLICT OF LAW PRINCIPLES THAT WOULD RESULT IN THE APPLICATION OF ANY LAW OTHER THAN THE LAW OF THE STATE OF NEW YORK.
13
ASSIGNMENT FORM
|
To assign this Note, fill in the form below: (I) or (we) assign and transfer this Note to:
|
|
|
(Insert assignee’s legal name)
|
|
|
(Insert assignee’s soc. Sec. or tax I.D. no.)
|
|
|
(Print or type assignee’s name, address and zip code)
|
|
|
and irrevocably appoint
|
|
|
agent to transfer this Note on the books of the Company. The agent may substitute another to act for him.
|
|
|
Date:
|
||
|
Your Signature:
|
||
|
(Sign exactly as your name appears on the face of this Note)
|
||
14
|
Signature Guarantee:
|
||
|
(Signature must be guaranteed by a participant in a recognized Signature Guarantee Medallion Program (or other signature guarantor acceptable to the Trustee))
|
||
SCHEDULE OF INCREASES AND DECREASES IN THE GLOBAL NOTE
The following increases and decreases in this Global Note have been made:
|
Date of
Increase or
Decrease
|
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
officer of
Registrar
|
15
OPTION OF HOLDER TO ELECT PURCHASE
If you want to elect to have part of this Note purchased by the Company pursuant to Section 2.1 of the Fifth Supplemental Indenture, state the principal amount (which must be an integral multiple of U.S.$1,000,
provided that the principal amount is not less than U.S.$50,000) that you want to have purchased by the Company:
|
U.S.$
|
|||||
|
Date:
|
Your Signature:
|
||||
|
(Sign exactly as your name appears on the other side of the Note)
|
||
|
Tax Identification No.:
|
||
|
Signature Guarantee:
|
||
|
(Signature must be guaranteed)
|
The signature(s) should be guaranteed by an eligible guarantor institution (banks, stockbrokers, savings and loan associations and credit unions with membership in an approved signature guarantee medallion program),
pursuant to Exchange Act Rule 17Ad-15.
16
Exhibit 5.1
| CLEARY GOTTLIEB STEEN & HAMILTON LLP |
||
| AMERICAS |
One Liberty Plaza |
EUROPE & MIDDLE EAST |
| NEW YORK |
New York, NY 10006-1470 |
ABU DHABI |
| SAN FRANCISCO |
T: +1 212 225 2000 |
BRUSSELS |
| SÃO PAULO | F: +1 212 225 3999 |
COLOGNE |
| SILICON VALLEY |
LONDON |
|
| WASHINGTON, D.C. |
MILAN |
|
| PARIS |
||
| ASIA |
ROME |
|
| HONG KONG |
||
| SEOUL |
||
|
D: +1 212 225 2374
|
||
|
schapman@cgsh.com
|
||
September 14, 2026
MercadoLibre, Inc.
Dr. Luis Bonavita 1294, Of. 1733, Tower II
Montevideo, Uruguay, 11300
Ladies and Gentlemen:
We have acted as special United States counsel to MercadoLibre, Inc., a Delaware corporation (the “Company”), MercadoLibre S.R.L.,
a limited liability company (sociedad de responsabilidad limitada) organized under the laws of Argentina, Mercado Livre Brasil Ltda. (formerly known as eBazar.com.br Ltda.), a limited liability company (sociedade limitada) organized under the laws of Brazil, MercadoLibre Chile Ltda., a limited liability company (sociedad de responsabilidad limitada) organized under the
laws of Chile, DeRemate.com de México, S. de R.L. de C.V. and MP Agregador, S. de R.L. de C.V., each a limited liability company (sociedad de responsabilidad limitada de capital variable) organized under the
laws of Mexico, and MercadoLibre Colombia Ltda., a limited liability company (sociedad de responsabilidad limitada), organized under the laws of Colombia (the “Guarantors”) in connection with the
preparation and filing with the Securities and Exchange Commission (the “Commission”) under the Securities Act of 1933, as amended (the “Securities Act”), of a registration statement on Form S-3 (Registration Nos. 333-291604,
333-291604-01, 333-291604-03, 333-291604-04, 333-291604-05, 333-291604-07, 333-291604-08) (including the documents incorporated by reference therein, but excluding Exhibit 25.1, is herein called the “Registration Statement”) and the
prospectus, dated November 17, 2025, as supplemented by the prospectus supplement, dated September 9, 2026 (together, the “Prospectus”), relating to the Company’s offering of $1,000,000,000 aggregate principal amount of 5.850% Notes due 2036
(the “Debt Securities”) and the Guarantors’ guarantees relating to the Debt Securities (the “Guarantees,” and together with the Debt Securities, the “Securities”).
The Securities were issued pursuant to an indenture dated as of January 14, 2021 (the “Base Indenture”), as amended and supplemented
by the fifth supplemental indenture dated as of September 14, 2026 (the “Fifth Supplemental Indenture”) entered into among the Company, the Additional Registrants and The Bank of New York Mellon, as trustee, registrar, paying agent and
transfer agent (the “Trustee”). As used herein, “Indenture” means the Base Indenture, as supplemented by the Fifth Supplemental Indenture.
Cleary Gottlieb Steen & Hamilton LLP or an affiliated entity has an office in each of the locations listed above.
MercadoLibre Inc., p. 2
In arriving at the opinions expressed below, we have reviewed the following documents:
| (a) |
the Registration Statement;
|
| (b) |
the Prospectus and the documents incorporated by reference therein;
|
| (c) |
executed copies of the Base Indenture and the Fifth Supplemental Indenture;
|
| (d) |
executed copies of the Offer No. INMLA 01/2021, dated January 14, 2021, executed by the Company and the Trustee and the acceptance to such offer, dated January 14, 2021,
executed by MercadoLibre S.R.L., relating to the Base Indenture;
|
| (e) |
executed copies of the Offer No. INMLA 02/2026, dated September 14, 2026, executed by the Company and the Trustee and the acceptance to such offer, dated September 14,
2026, executed by MercadoLibre S.R.L., relating to the Fifth Supplemental Indenture; and
|
| (f) |
facsimile copies of the Debt Securities in global form as executed by the Company and authenticated by the Trustee.
|
In addition, we have reviewed the originals or copies certified or otherwise identified to our satisfaction of all such corporate records
of the Company and such other documents, and we have made such investigations of law, as we have deemed appropriate as a basis for the opinions expressed below.
In rendering the opinions expressed below, we have assumed the authenticity of all documents submitted to us as originals and the
conformity to the originals of all documents submitted to us as copies. In addition, we have assumed and have not verified the accuracy as to factual matters of each document we have reviewed.
Based on the foregoing, and subject to the further assumptions and qualifications set forth below, it is our opinion that:
| 1. |
The Debt Securities have been validly issued and are valid, binding and enforceable obligations of the Company, entitled to the benefits of the Indenture.
|
| 2. |
The Guarantees of the Debt Securities have been validly issued and are valid, binding and enforceable obligations of the Guarantors.
|
MercadoLibre Inc., p. 3
Insofar as the foregoing opinions relate to the validity, binding effect or enforceability of any agreement or obligation of the Company
or the Guarantors, (a) we have assumed that the Company, the Guarantors and each other party to such agreement or obligation has satisfied those legal requirements that are applicable to it to the extent necessary to make such agreement or
obligation enforceable against it (except that no such assumption is made as to the Company and the Guarantors regarding matters of the federal law of the United States of America, the law of the State of New York or the General Corporation Law of
the State of Delaware that in our experience normally would be applicable to general business entities with respect to such agreement or obligation) and (b) such opinions are subject to applicable bankruptcy, insolvency and similar laws affecting
creditors’ rights generally and to general principles of equity and to the effect of judicial application of foreign laws or foreign governmental actions affecting creditors’ rights.
We express no opinion as to the subject matter jurisdiction of any United States federal court to adjudicate any action relating to the
Indenture or the Securities where jurisdiction based on diversity of citizenship under 28 U.S.C. §1332 does not exist.
We note that the designation in Section 11.17 of the Base Indenture of the federal courts located in The Borough of Manhattan in the City
of New York as a venue for actions or proceedings relating to the Indenture and the Securities is (notwithstanding the waiver in Section 11.17 of the Base Indenture) subject to the power of such courts to transfer actions pursuant to 28 U.S.C.
§1404(a) or to dismiss such actions or proceedings on the grounds that such a federal court is an inconvenient forum for such an action or proceeding.
We note that the enforceability of the waiver of immunities in Section 11.18 of the Base Indenture is subject to the limitations imposed
by the U.S. Foreign Sovereign Immunities Act of 1976.
We express no opinion as to the enforceability of Section 11.15 of the Base Indenture relating to currency indemnity.
The waiver of defenses contained in Section 3.1(b) of the Base Indenture may be ineffective to the extent that any such defense involves a
matter of public policy in New York.
The foregoing opinions are limited to the federal law of the United States of America, the law of the State of New York and the General
Corporation Law of the State of Delaware.
We hereby consent to the use of our name in the Prospectus under the heading “Legal Matters”, as counsel for the Company and the
Guarantors that has passed on the validity of the Securities, and to the filing of this opinion as Exhibit 5.1 to the Company’s Current Report on Form 8-K dated September 14, 2026. In giving such consent, we do not thereby admit that we are within
the category of persons whose consent is required under Section 7 of the Securities Act or the rules and regulations of the Commission thereunder. The opinions expressed herein are rendered on and as of the date hereof, and we assume no obligation
to advise you or any other person, or to make any investigations, as to any legal developments or factual matters arising subsequent to the date hereof that might affect the opinions expressed herein.
|
Very truly yours,
|
||
|
CLEARY GOTTLIEB STEEN & HAMILTON LLP
|
||
|
By:
|
/s/ Synne D. Chapman
|
|
|
Synne D. Chapman, a Partner
|
||
Exhibit 5.2
September 14, 2026
MercadoLibre, Inc.
Dr. Luis Bonavita 1294, Of. 1733, Tower II
Montevideo, Uruguay, 11300
Ladies and Gentlemen:
We have acted as special Argentine legal counsel to MercadoLibre S.R.L., a limited liability company organized
under the laws of Argentina (the “Guarantor”), a subsidiary of MercadoLibre, Inc., a Delaware corporation (the “Company”),
in connection with the preparation and filing with the Securities and Exchange Commission (the “Commission”) under the Securities Act of 1933, as amended (the “Securities Act”), of a registration statement on Form S-3 (Registration Nos. 333-291604, 333-291604-01, 333-291604-03, 333-291604-04, 333-291604-05, 333-291604-07 and 333-291604-08)
(including the documents incorporated by reference therein, but excluding Exhibit 25.1, the “Registration Statement”) (including
the documents incorporated by reference therein, the “Incorporated Documents”) filed by the Company and the additional registrants identified therein, including the Guarantor
(the “Additional Registrants”) and the prospectus dated November 17, 2025 as supplemented by the prospectus supplement dated September 9, 2026 (together, the “Prospectus”) relating to the Company’s offering of $ 1,000,000,000 aggregate principal amount of 5.850% Notes due 2036 (the “Debt
Securities”) and the Additional Registrants, guarantees relating to the Debt Securities (the “Guarantees”, and together with the Debt Securities, the “Securities”).
The Securities may be issued pursuant to an indenture dated as of January 14, 2021 (the “Base Indenture”), entered into among the Company, the guarantors party there to and The Bank of New York Mellon, as trustee, registrar, paying agent and transfer agent (the “Trustee”), as amended and supplemented by the fifth supplemental indenture dated as of September 14, 2026 (the “Fifth Supplemental Indenture”
and together with the Base Indenture, the “Indenture”) entered into among the Company, the Additional Registrants and the Trustee.
In arriving at the opinions expressed below, we have reviewed the following documents:
| (a) |
the Registration Statement;
|
| (b) |
The Prospectus and the documents incorporated by reference therein;
|
| (c) |
Executed copies of the Indenture;
|
| (d) |
executed copies of the Offer No. INMLA 01/2021, dated January 14, 2021 executed by the Company and the Trustee and the acceptance to such offer, dated January 14,
2021, executed by the Guarantor, relating to the Base Indenture;
|
| (e) |
executed copies of the Offer No. INMLA 02/2026, dated September 14, 2026, executed by the Company and the Trustee and the acceptance to such offer, dated September 14, 2026, executed by the Guarantor, relating to the Fifth Supplemental Indenture;
|
| (f) |
facsimile copies of the Debt Securities in global form as executed by the Company and authenticated by the Trustee;
|
| (g) |
certified copy of the by-laws of the Guarantor;
|
| (h) |
certified copy of the partners meeting dated August
31, 2026, approving the execution of the Guarantee;
|
| (i) |
certified copy of the managers meeting dated August
31, 2026, approving the execution of the Guarantee; and
|
| (j) |
such other documents, records and matters of law as we have deemed necessary.
|
In rendering the opinions expressed below, we have assumed the authenticity of all documents submitted to us as originals and the
conformity to the originals of all documents submitted to us as copies. In addition, we have assumed and have not verified (i) the accuracy as to factual matters of each document we have reviewed, (ii) the existence of commercial relationships
between the Guarantor and the Company as required by the bylaws of the Guarantor and (iii) the adequacy of the consideration received by the Guarantor from the Company to grant the Guarantee.
Based on the foregoing, and subject to the further assumptions and qualifications set forth below, it is our opinion that:
| 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 Guarantees have been validly issued under the Indenture and are valid, binding and enforceable obligations of the Guarantor.
|
We have assumed that the Guarantor have satisfied the legal requirements that are applicable to them under
applicable law other than the law of the Republic of Argentina to the extent necessary to make the Indenture, the Debt Securities and the Guarantee, as the case may be, enforceable against them. We have also assumed that each of the Company and the
Trustee has satisfied the legal requirements that are applicable to it under applicable law other than the law of the Republic of Argentina to the extent necessary to make the Indenture enforceable against it.
The foregoing opinions are limited to the laws of the Republic of Argentina and subject to the following
qualifications:
| (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 (as 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, under 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.
|
The Argentine Bankruptcy Law contemplates two types of reviewable or invalid transactions:
| (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.
|
We hereby consent to the use of our name in the Prospectus under the heading “Legal Matters”, as counsel for the
Guarantor that has passed on the validity of its Guarantee under Argentine law, and to the filing of this opinion as Exhibit 5.2 to the Company’s Current Report on Form 8-K dated September 14, 2026. In giving such consent, we do not thereby admit
that we are within the category of persons whose consent is required under Section 7 of the Securities Act or the rules and regulations of the Commission thereunder. The opinions expressed herein are rendered on and as of the date hereof, and we
assume no obligation to advise you or any other person, or to make any investigations, as to any legal developments or factual matters arising subsequent to the date hereof that might affect the opinions expressed herein. Cleary Gottlieb Steen
& Hamilton LLP may rely upon this opinion in rendering their opinion to the Company and the Additional Registrants.
|
Very truly yours,
|
||
|
Marval O’Farrell Mairal
|
||
|
/s/ Juan M. Diehl Moreno
|
||
|
Juan M. Diehl Moreno
|
Exhibit 5.3
September 14, 2026
MercadoLibre, Inc.
Dr. Luis Bonavita 1294, Of. 1733, Tower II
Montevideo, Uruguay, 11300
Ladies and Gentlemen:
We have acted as special Brazilian counsel to Mercado
Livre Brasil Ltda. (formerly known as Ebazar.Com.Br Ltda.), a limited liability company (Ltda.) organized under the laws of Brazil (the “Guarantor”), a subsidiary of MercadoLibre, Inc., a Delaware corporation (the “Company”), in connection with the preparation and filing with the Securities and Exchange Commission (the “Commission”) under the Securities Act of 1933, as
amended (the “Securities Act”), of a
registration statement on Form S-3 (Registration Nos. 333-291604, 333-291604-01, 333-291604-03, 333-291604-04, 333-291604-05, 333-291604-07, 333-291604-08) (including the documents incorporated by reference therein, but excluding Exhibit 25.1,
the “Registration Statement”) filed
by the Company and the additional registrants identified therein, including the Guarantor (the “Additional Registrants”) and the prospectus November 17, 2025, as supplemented by the prospectus supplement dated September 9, 2026 (together, the “Prospectus”), relating to the Company’s offering of USD1,000,000,000 aggregate principal amount of 5.850% Notes due 2036 (the “Debt Securities”) and the Additional Registrants’
guarantees relating to the Debt Securities (the “Guarantee,” and together with the Notes, the “Securities”).
The Securities were issued pursuant to an indenture dated as of January 14, 2021 (the “Base Indenture”) entered into among the Company, the guarantors party thereto and The Bank of New York Mellon, as trustee, registrar, paying agent and transfer agent (the “Trustee”), as amended and supplemented by the fifth supplemental indenture dated as of September 14, 2026 (the “Fifth Supplemental Indenture”,
and together with the Base Indenture, the “Indenture”) entered into among the Company, the Additional Registrants and the Trustee.
In arriving at the opinions expressed below, we have reviewed the following documents:
|
(a)
|
the Registration Statement;
|
|
(b)
|
the Prospectus and the documents incorporated by reference therein;
|
|
(c)
|
executed copies of the Base Indenture and the Fifth Supplemental Indenture;
|
1
|
(d)
|
facsimile copies of the Debt Securities in global form as executed by the Company and authenticated by the Trustee;
|
|
(e)
|
the Guarantor’s articles of association; and
|
|
(f)
|
such other documents, records and matters of law as we have deemed necessary.
|
In rendering the opinions expressed below, we have assumed the authenticity of all documents submitted to us as
originals and the conformity to the originals of all documents submitted to us as copies. In addition, we have assumed and have not verified the accuracy as to factual matters of each document we have reviewed.
Based on the foregoing, and subject to the further assumptions and qualifications set forth below, it is our opinion
that:
|
1.
|
The Guarantor is validly existing, have the powers to grant the Guarantee and has taken the required steps to authorize entering into the
Guarantee under the laws of Brazil.
|
|
2.
|
The Guarantee has been validly issued under the Indenture and is valid, binding and enforceable obligations of the Guarantor.
|
We have assumed that the Guarantor has satisfied the legal requirements that are applicable to it under applicable
law other than the law of Brazil to the extent necessary to make the Indenture, the Debt Securities and the Guarantee, as the case may be, enforceable against it. We have also assumed that each of the Company and the Trustee has satisfied the legal
requirements that are applicable to it under applicable law other than the law of Brazil to the extent necessary to make the Indenture enforceable against it.
The foregoing opinions are limited to the laws of Brazil.
We hereby consent to the use of our name in the Prospectus under the heading “Legal Matters”, as counsel for the
Guarantor that has passed on the validity of its Guarantee under Brazilian law, and to the filing of this opinion as Exhibit 5.3 to the Company’s Current Report on Form 8-K dated September 14, 2026. In giving such consent, we do not thereby admit
that we are within the category of persons whose consent is required under Section 7 of the Securities Act or the rules and regulations of the Commission thereunder. The opinions expressed herein are rendered on and as of the date hereof, and we
assume no obligation to advise you or any other person, or to make any investigations, as to any legal developments or factual matters arising subsequent to the date hereof that might affect the opinions expressed herein. Cleary Gottlieb Steen
& Hamilton LLP may rely upon this opinion in rendering their opinion to the Company and the Additional Registrants.
/s/Alexandre Verri
Veirano Advogados
2
Exhibit 5.4
September 14, 2026
MercadoLibre, Inc.
Dr. Luis Bonavita 1294, Of. 1733, Tower II
Montevideo, Uruguay, 11300
Ladies and Gentlemen:
We have acted as special Mexican counsel to DeRemate.com de México, S. de R.L. de C.V. and MP Agregador, S. de R.L. de C.V. (jointly, the “Mexican Guarantors”), each of them a sociedad de responsabilidad limitada de capital variable organized under the laws of the United Mexican States (“Mexico”), and a subsidiary of MercadoLibre, Inc., a Delaware corporation (the “Company”), in connection with the preparation and filing with the Securities
and Exchange Commission (the “Commission”) under the Securities Act of 1933, as amended (the “Securities Act”), of a registration statement on Form S-3
(Registration No. 333-291604, 333-291604-01, 333-291604-03, 333-291604-04, 333-291604-05, 333-291604-07, 333-291604-08) (including the documents incorporated by reference therein, but excluding Exhibit 25.1, the “Registration
Statement”) filed by the Company and the additional registrants identified therein, including the Mexican Guarantors (the “Additional Registrants”) and the prospectus, dated November 17,
2025, as supplemented by the prospectus supplement, dated September 9, 2026 (together, the “Prospectus”), relating to the Company’s offering of U.S.$1,000,000,000 aggregate principal amount of 5.850%
Notes due 2036 (the “Debt Securities”) and the Additional Registrants’ guarantees relating to the Debt Securities (the “Guarantees,” and together with the
Debt Securities, the “Securities”).
The Securities were issued pursuant to an indenture dated as of January 14, 2021 (the “Base Indenture”) entered into among the
Company, the guarantors party thereto and The Bank of New York Mellon Trust Company, N.A., as trustee, registrar, paying agent and transfer agent (the “Trustee”), as amended and supplemented by the
fifth supplemental indenture dated as of September 14, 2026 (the “Fifth Supplemental Indenture”, and together with the Base Indenture, the “Indenture”)
entered into among the Company, the Additional Registrants and the Trustee.
In arriving at the opinions expressed below, we have reviewed the following documents:
1. the Registration Statement;
2. the Prospectus and the documents incorporated by reference therein;
 |
3. executed copies of the Base Indenture and the Fifth Supplemental Indenture;
4. facsimile copies of the Debt Securities in global form as executed by the Company and
authenticated by the Trustee;
5. the Mexican Guarantors’ by-laws; and
6. such other documents, records and matters of law as we have deemed necessary.
The documents in items (1) to (4) are referred to herein as the “Transaction Documents”.
In rendering the opinions expressed below, we have assumed the authenticity of all documents submitted to us as originals and the conformity to the originals of all documents
submitted to us as copies. As to matters of fact, we have assumed the truthfulness of the representations made or otherwise incorporated in the Transaction Documents and representations and statements made in certificates of public officials and
officers of the parties thereto, and that: (i) the Company, the Trustee and the non-Mexican Additional Registrants (collectively, the “Foreign Parties”) are
entities duly organized and validly existing under the laws of the jurisdiction of its organization; (ii) each Foreign Party has the power to execute, deliver and perform its respective obligations under the
Transaction Documents; and (iii) the delivery and performance by each Foreign Party of the Transaction Documents, by each Foreign Party, has been duly authorized by all necessary action (corporate or
otherwise) and does not contravene its by-laws or articles of incorporation or any other of its organizational documents.
Based on the foregoing, and subject to the further assumptions, qualifications and exceptions set forth below, it is our opinion that:
1. Each Mexican 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 Mexico.
2. The Guarantees issued under the Base Indenture as amended and supplemented by the Fifth
Supplemental Indenture granted by the Mexican Guarantors are valid, binding and enforceable obligations of the Mexican Guarantors.
We have assumed that the Mexican Guarantors have satisfied the legal requirements that are applicable to them under applicable law other than the law of Mexico to the extent
necessary to make the Indenture, the Debt Securities and the Guarantees, as the case may be, enforceable against them. We have also assumed that each of the Foreign Parties has satisfied the legal requirements that are applicable to it under
applicable law other than the law of Mexico to the extent necessary to make the Indenture and the Debt Securities enforceable against it.
|
In rendering the opinions expressed above, we have further assumed that the Debt Securities were offered, issued, sold and delivered in compliance with applicable law.
The opinions set forth above are subject to the following qualifications and exceptions:
1. The enforceability of the Guarantees may be limited by bankruptcy, insolvency, reorganization,
moratorium, a Mexican reorganization proceeding (concurso mercantil), bankruptcy (quiebra) or other laws relating to,
affecting or limiting the enforcement of creditors’ rights generally.
2. Public and procedural rights, such as the right to seek compensation in court or the right to
appear in a suit, may not be waived under applicable laws.
3. Pursuant to the Mexican Insolvency Law (Ley de Concursos
Mercantiles), if a transaction entered into by a person (legal entity or individual) declared insolvent and subject to a Mexican reorganization proceeding (concurso mercantil) is deemed to
constitute a fraudulent conveyance (acto en fraude de acreedores), the court could set such transaction aside (i.e., ineffective vis-à-vis
the bankruptcy estate) if the transaction took place within the 270 (two hundred seventy) calendar days prior to the insolvency ruling (declaración de concurso) and, in some cases, up to 3 (three) years.
The following are presumed to be fraudulent: (i) gratuitous transactions; (ii) transactions under which the debtor pays consideration of a substantially higher
value, or receives consideration of a substantially lower value than that of its counterparty; (iii) transactions in which conditions or terms significantly differ from then-prevailing market conditions or
trade usage or commercial practices; (iv) any debt remission made by the debtor; (v) any payment of un-matured obligations; and (vi)
the discount of debtor’s payables by such debtor. For a transaction to be deemed a fraudulent conveyance, the insolvent party must have a deliberate fraudulent intent and the third party must know of such fraud. The latter is not required for
gratuitous transactions.
4. Covenants and other agreements to perform an act other than payment of money and covenants
and other agreements not to perform an act may not be specifically enforceable in Mexico, although any breach thereof may give rise to an action for monetary damages.
5. Any provisions in the Guarantees to the effect that invalidity and illegality of any part
thereof will not invalidate the remaining obligations of such Guarantees may be unenforceable in Mexico to the extent such provision constitutes an essential element of the relevant Guarantee, respectively.
|
6. Provisions permitting sole determination by one party and comparable provisions vesting in one
party the sole power to determine the validity or performance of an obligation or purporting to be “self-help” enforcement mechanisms are not enforceable in Mexico. Provisions of the Guarantees granting discretionary authority to the parties
thereto cannot be exercised in a manner inconsistent with relevant facts nor defeat any requirements from a competent authority to produce satisfactory evidence as to the basis of any determination. In addition, under Mexican law, the parties
will have the right to contest in court any notice or certificate purporting to be conclusive and binding.
7. In any proceedings brought to the courts of Mexico for the enforcement of any Guarantee
against any of the Mexican Guarantors or a foreign judgment or award thereunder, a Mexican court would apply Mexican procedural law in such proceedings, as well as Mexican law on statute of limitations and lapsing (prescripción y caducidad). We express no opinion as to the enforceability of a foreign judgment arising from any suit brought once the Mexican statute of limitation or lapsing periods have elapsed.
8. Under the Mexican Bankruptcy Law (Ley de Concursos
Mercantiles) any provision in an agreement that makes the obligations of a party more onerous due to the fact of a filing for insolvency or bankruptcy shall be considered null and void.
9. This opinion letter is limited strictly to the matters stated herein and is not to be read
as extending by implication to any other matter.
The foregoing opinions are limited to the laws of Mexico in effect as of the date hereof, and we do not express any opinion as to the laws of any other jurisdiction. In
particular, we have made no investigation of the laws of the United States of America or of the State of New York in particular or any other relevant jurisdiction outside of Mexico as a basis for the opinions stated herein and we do not express or
imply any opinion on, or based on, the criteria or standards provided for in any such laws.
We hereby consent to the use of our name in the Prospectus under the heading “Legal Matters”, as counsel for the Mexican Guarantors that have passed on the validity of their
respective Guarantee under Mexican law, and to the filing of this opinion as Exhibit 5.4 to the Company’s Current Report on Form 8-K dated September 14, 2026. In giving such consent, we do not thereby admit that we are within the category of
persons whose consent is required under Section 7 of the Securities Act or the rules and regulations of the Commission thereunder. The opinions expressed herein are rendered on and as of the date hereof, and we assume no obligation to advise you or
any other person, or to make any investigations, as to any legal developments or factual matters arising subsequent to the date hereof that might affect the opinions expressed herein. Cleary Gottlieb Steen & Hamilton LLP may rely upon this
opinion in rendering their opinion to the Company and the Additional Registrants.
|
|
Sincerely,
|
||
|
Nader, Hayaux y Goebel, S.C.
|
||
| By |
/s/ Javier Arreola E.
|
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Javier Arreola E.
|
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| Partner | ||
Exhibit 5.5
September 14, 2026
MercadoLibre, Inc.
Dr. Luis Bonavita 1294, Of. 1733, Tower II
Montevideo, Uruguay, 11300
Ladies and Gentlemen:
We have acted as special Chilean counsel to MercadoLibre Chile Ltda. a limited liability partnership (sociedad de
responsabilidad limitada) organized and existing under the laws of the Republic of Chile (the “Guarantor”), a subsidiary of MercadoLibre, Inc., a Delaware corporation (the “Company”), in connection with the preparation and
filing with the Securities and Exchange Commission (the “Commission”) under the Securities Act of 1933, as amended (the “Securities Act”), of a registration statement on Form S-3 (Registration Nos. 333-291604, 333-291604-01,
333-291604-03, 333-291604-04, 333-291604-05, 333-291604-07, 333-291604-08) (including the documents incorporated by reference therein, but excluding Exhibit 25.1, the “Registration Statement”) filed by the Company and the additional
registrants identified therein, including the Guarantor (the “Additional Registrants”) and the prospectus, dated November 17, 2025, as supplemented by the prospectus supplement, dated September 9, 2026 (together, the “Prospectus”)
relating to the Company’s offering of $1,000,000,000 aggregate principal amount of 5.850% Notes due 2036 (the “Debt Securities”) and the Additional Registrants’ guarantees relating to the Debt Securities (the “Guarantees,” and
together with the Debt Securities, the “Securities”).
The Securities were issued pursuant to an indenture dated as of January 14, 2021 (the “Base Indenture”) entered into among the Company, the guarantors
party thereto and The Bank of New York Mellon Trust Company, N.A., as trustee, registrar, paying agent and transfer agent (the “Trustee”), as amended and supplemented by the fifth supplemental indenture dated as of September 14, 2026 (the “Fifth
Supplemental Indenture”, and together with the Base Indenture, the “Indenture”) entered into among the Company, the Additional Registrants and the Trustee.
In connection with the opinions expressed herein, we have examined originals or copies certified or otherwise identified to our satisfaction of the following
documents:
| (a) |
the Registration Statement;
|
| (b) |
the Prospectus and the documents incorporated by reference therein;
|
| (c) |
executed copies of the Base Indenture and the Fifth Supplemental Indenture;
|
| (d) |
the Guaranty granted by the Guarantor (the “Chilean Guaranty”) as set forth in the Indenture;
|
| (e) |
facsimile copies of the Debt Securities in global form as executed by the Company and authenticated by the Trustee;
|
| (f) |
the constituting organizational deeds (estatutos) of the Guarantor; and
|
| (g) |
the corporate resolution of the partners of the Guarantor listed on Schedule 1 hereto.
|
 |
 |
 |
In addition, we have reviewed and, as to questions of fact, relied to the extent we have deemed appropriate, upon such other documents, instruments and other certificates of public
officials, officers and representatives of the Guarantor, except to the extent that such representations cover matters of law as to which we expressly opine herein, and we have made such investigations of law, as we have deemed necessary or
appropriate as a basis for the opinions expressed below.
In rendering the opinions expressed below, we have assumed without verification: (i) the authenticity of all documents and records submitted to us as originals and the conformity to
the originals of all documents and records submitted to us as copies, (ii) the authenticity and genuineness of all signatures on the documents reviewed by us in connection therewith, (iii) the legal capacity of all natural persons, and (iv) the due
organization and existence of each of the parties to the Registration Statement, the Indenture and the Securities (except for the Guarantor).
Based on the foregoing, and subject to the further assumptions and qualifications set forth below, it is our opinion that:
| 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 Chilean Guaranty and has taken the required steps to authorize entering into the Chilean Guaranty under the laws of the Republic of Chile.
|
| 2. |
The Chilean Guaranty has been validly issued under the Indenture and are valid and legally binding obligations of the Guarantor, enforceable against it in accordance with their terms.
|
We have assumed that the Guarantor has satisfied the legal requirements that are applicable to it under applicable law other than the laws of the Republic of Chile to the extent
necessary to make the Indenture, the Debt Securities and the Chilean Guaranty, as the case may be, enforceable against it. We have also assumed that each of the Company and the Trustee has satisfied the legal requirements that are applicable to it
under applicable law other than the laws of the Republic of Chile to the extent necessary to make the Indenture enforceable against it.
The foregoing opinions are subject to the following qualifications:
| (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 Chilean Guaranty granted by the Guarantor may be considered as gratuitous act for purposes of Chilean law.
|
2
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| (d) |
We express no opinion on any section of the Chilean Guarantor 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 Chilean Guaranty.
|
| (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.
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This opinion letter is given solely for your benefit in connection with the above-described transaction. This opinion letter may not be used, circulated, quoted or relied upon by
you for any other purpose or relied by any other person without our prior written consent; provided that we hereby consent to the use of our name in the Prospectus under the heading “Legal Matters”, as
Chilean counsel for the Guarantor that has passed on the validity of the Chilean Guaranty under Chilean law, and to the filing of this opinion as Exhibit 5.5 to the Company’s Current Report on Form 8-K dated September 14, 2026. In giving such
consent, we do not thereby admit that we are within the category of persons whose consent is required under Section 7 of the Securities Act or the rules and regulations of the Commission thereunder. Cleary Gottlieb Steen & Hamilton LLP may rely
upon this opinion in rendering their opinion to the Company and the Additional Registrants.
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Very truly yours,
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||
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/s/ Luisa Núñez P.
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Claro & Cia.
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Luisa Núñez P.
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3
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Schedule 1
| - |
Acuerdo de Socios y Poder Especial executed by public deed dated August 31, 2026, in the Notarial Office of
Santiago of of Magdalena Sofía Latorre Larraín.
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Schedule 1 – Page 1
Exhibit 5.6
 |
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September 14, 2026
MercadoLibre, Inc.
Dr. Luis Bonavita 1294, Of. 1733, Tower II
Montevideo, Uruguay, 11300
Ladies and Gentlemen,
We have acted as special Colombian counsel to MercadoLibre Colombia Ltda., a limited liability company organized under the laws of the Republic of Colombia
(the “Guarantor”), a subsidiary of MercadoLibre, Inc., a Delaware corporation (the “Company”), in connection with the preparation and filing with the Securities and Exchange Commission (the “Commission”) under the Securities
Act of 1933, as amended (the “Securities Act”), of a registration statement on Form S-3 (Registration Nos. 333-291604, 333-291604-01, 333-291604-03, 333-291604-04, 333-291604-05, 333-291604-07, 333-291604-08) (including the documents
incorporated by reference therein, but excluding Exhibit 25.1, the “Registration Statement”) filed by the Company and the additional registrants identified therein, including the Guarantor (the “Additional Registrants”) and the
prospectus, dated November 17, 2025, as supplemented by the prospectus supplement, dated September 9, 2026 (together, the “Prospectus”) relating to the Company’s offering of $1,000,000,000 aggregate principal amount of 5.850% Notes due 2036
(the “Debt Securities”) and the Additional Registrants’ guarantees relating to the Debt Securities (the “Guarantees,” and together with the Debt Securities, the “Securities”).
The Securities were issued pursuant to an indenture dated as of January 14, 2021 (the “Base Indenture”) entered into among the Company, the guarantors party thereto and The Bank of New
York Mellon, as trustee, registrar, paying agent and transfer agent (the “Trustee”), as amended and supplemented by the fifth supplemental indenture dated as of September 14, 2026 (the “Fifth Supplemental Indenture”, and together with
the Base Indenture, the “Indenture”) entered into among the Company, the Additional Registrants and the Trustee.
In order to render this opinion, we have examined the following documents:
| (1) |
The Registration Statement;
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| (2) |
the Prospectus;
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| (3) |
executed copies of the Base Indenture and the Fifth Supplemental Indenture;
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| (4) |
facsimile copies of the Debt Securities in global form as executed by the Company and authenticated by the Trustee;
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| (5) |
The Guarantor bylaws;
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1
 |
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| (6) |
Minute No. 132 of August 31, 2026 of the Guarantor’s Board of Partners, approving the Guarantor to act as guarantor with respect to the Notes;
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| (7) |
Existence, good standing and incumbency certificate of the Guarantor, issued by the Chamber of Commerce on August 26th, 2026.
|
Documents (1) through (5) above are hereinafter referred to as the “Transaction Documents”.
In rendering the opinions expressed below, we have assumed, the authenticity of all documents submitted to us as originals and the conformity to the originals of all documents submitted to us as copies. In addition,
we have assumed, without any independent investigation or verification of any kind:
| (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), and
|
| (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.
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We have not conducted due diligence on the Guarantor’s business and affairs, except for our review of the legal and corporate authorizations required to act as Guarantor of the Debt Securities,
pursuant to its bylaws.
We have relied, as to factual matters, on representations, statements and warranties contained in the documents and certificates of officers and representatives issued by the Guarantor, and
contained in the documents described herein. We have made no independent investigations as to whether the representations, statements and warranties related to factual matters in the documents we have reviewed are accurate or complete.
2
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|
|
The opinions are limited in all respects to the laws of the Republic of Colombia as they stand as of the date hereof and as they are currently interpreted and as the documents described herein as
of the date hereof. We do not express any opinion on the laws of any jurisdiction other than the Republic of Colombia.
Based on the foregoing, and subject to the further assumptions and qualifications set forth below, it is our opinion that:
(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 laws of the Republic of Colombia.
(2) The Guarantees have been validly issued under the Indenture, and are 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 (the 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;
|
| 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
|
| c. |
To the extent applicable, observance of the exequatur proceedings described in this legal opinion.
|
(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 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.
3
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|
|
We have assumed that the Guarantor has satisfied the legal requirements that are applicable to it under applicable law other than the law of the Republic of Colombia to the extent necessary to
make the Indenture, the Debt Securities and the Guarantees, as the case may be, enforceable against it. We have also assumed that (i) each of the Company and the Trustee has satisfied the legal requirements that are applicable to it under
applicable law other than the law of the Republic of Colombia to the extent necessary to make the Indenture enforceable against it and (ii) the Securities were offered, issued, sold and delivered in compliance with applicable law other than the law
of the Republic of Colombia.
In addition to the qualifications, exceptions and limitations contained in the foregoing opinions, these are also subject to the following qualifications, exceptions and limitations:
| (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.
|
| (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.
|
| (3) |
According to article 16 of Law 1116 of 2006, contractual provisions —such as early termination clauses — that directly or indirectly impose adverse effects on the debtor due to the commencement of the
reorganization proceeding may not be enforceable. Furthermore, enforcement of such provisions by creditors may be subject to sanctions. These sanctions may be (i) postponement of claims: the postponement of claims means that the sanctioned
creditor will be paid only after all other claims have been paid in the reorganization proceeding, (ii) reversal of effects from enforcement of ineffective contractual provisions: the Superintendence of Companies may order, among others,
the reversal of transactions and of the effects stemming from the enforcement of an ineffective contractual provision, or (iii) cancellation of the collateral: the cancellation of the collateral entails cancelling all creditors’ rights
related to any security interest or lien.
|
4
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|
|
| (4) |
According to article 61 of Law 1116 of 2006, the controlling entities may also be held jointly and severally liable for the obligations of their subsidiaries when the subsidiary’s insolvency has been caused by a
decision of the controlling entity. The controlling company´s liability shall be ruled by a Colombian court through a parallel legal proceeding. According to Article 82 of Law 1116 of 2006, shareholders, directors, statutory auditors, and
employees may be held 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 directors´ liability shall be ruled by a Colombian court
through a parallel legal proceeding.
|
| (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.
|
| (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. Contractual provisions regarding service of notice procedures will not be enforceable.
|
| (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.
|
| (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 Colombia and any collection proceeding over each assets located in the Republic of Colombia will be subject to the jurisdiction of Colombian courts.
|
| (9) |
Article 869 of Colombia’s Code of Commerce (“Código de Comercio”) 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.
|
5
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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 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.
|
| (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 obligations payable in foreign currency (and the ability of any person to remit out 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 defendant was afforded due service of process in accordance with the laws of the country of origin of the judgment, provided that the judgment was rendered in respect of a contentious matter which will be
presumed if the judgment is final and binding;
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| b. |
That the judgment is final and binding 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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| c. |
That the judgment is not contrary to Colombian public order laws (normas de orden público), except for rules of civil procedural laws;
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| d. |
That the matter of the judgment is not subject to exclusive jurisdiction of the courts of Colombia;
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| e. |
That the judgment does not refer to in rem rights over assets located in Colombia at the time of initiation of the proceeding;
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| f. |
That there are no proceedings in Colombia, or any final judgments rendered by Colombian courts in connection with the same subject matter; and
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| g. |
That the requirement of exequatur has been fulfilled.
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| h. |
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. The recognition of a judgment of a foreign court will be analyzed in a case-by-case basis. Under Colombian
law, in rem rights over property located in Colombia, including the transfer of ownership, the granting of liens or security interest, 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 Colombia, must be governed by the laws of Colombia and any collection proceeding over each asset located in Colombia will be subject to the jurisdiction
of Colombian courts.
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| (23) |
Performance by the Guarantor shall abide by applicable foreign exchange regulations in Colombia. For these purposes, in compliance with Section 6.1 of External Circular DCIP-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 «Information of foreign indebtedness granted to non-residents» (“Informe de Crédito Externo Otorgado a no Residentes”) 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 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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| (25) |
As of the date hereof, the stamp tax rate in Colombia is 0%. Accordingly, no stamp tax is currently applicable to the execution, delivery or performance of the Transaction Documents.
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This opinion is limited to matters of the Republic of Colombian law in force on the date hereof. We express no opinion with respect to the law of any other jurisdiction. We express no opinion as
to the effect on the opinions set forth herein of any failure by any party to comply with laws and regulations pertaining to banks, trustees or other financial institutions or affiliates thereof, if applicable, or other laws or regulations
applicable to any party by reason of such party's status or the nature of its business or assets. This opinion is specific as to the transactions and the documents referred to herein and is based upon the law as of the date hereof. Our opinions are
limited to those expressly set forth herein, and we express no opinions by implication.
We hereby consent to the use of our name in the Prospectus under the heading “Legal Matters”, as counsel for the Guarantor that has passed on the validity of its Guarantees under Colombian law,
and to the filing of this opinion as Exhibit 5.6 to the Company’s Current Report on Form 8-K dated September 14, 2026. In giving such consent, we do not thereby admit that we are within the category of persons whose consent is required under
Section 7 of the Securities Act or the rules and regulations of the Commission thereunder. The opinions expressed herein are rendered on and as of the date hereof, and we assume no obligation to advise you or any other person, or to make any
investigations, as to any legal developments or factual matters arising subsequent to the date hereof that might affect the opinions expressed herein. Cleary Gottlieb Steen & Hamilton LLP may rely upon this opinion in rendering their opinion to
the Company and the Additional Registrants. This opinion is not to be transmitted to anyone else nor is to be relied upon by anyone else for any purpose, nor is to be quoted or referred to in any public document without our express written consent
except that it may be disclosed without such consent: (a) to any person to whom disclosure is required to be made by applicable law or court order or pursuant to the rules or regulations of any supervisory or regulatory body (including the rules of
any applicable stock exchange or any other applicable supervisory or regulatory authority having jurisdiction over the addressees or any of the addressees’ affiliates) or in connection with any judicial proceedings; (b) in seeking to establish any
defense in any legal or regulatory proceeding or investigation relating to the matters set out herein; and/or (c) in connection with any actual or potential dispute or claim to which you may be a party and which relates to the matters set out
herein.
Very truly yours,
/s/. Luis Gabriel Morcillo
BRIGARD & URRUTIA ABOGADOS S.A.S.
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