Attached files
| file | filename |
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| EX-5.5 - EXHIBIT 5.5 - MERCADOLIBRE INC | nt10017308x18_ex5-5.htm |
| EX-5.4 - EXHIBIT 5.4 - MERCADOLIBRE INC | nt10017308x18_ex5-4.htm |
| EX-5.3 - EXHIBIT 5.3 - MERCADOLIBRE INC | nt10017308x18_ex5-3.htm |
| EX-5.2 - EXHIBIT 5.2 - MERCADOLIBRE INC | nt10017308x18_ex5-2.htm |
| EX-5.1 - EXHIBIT 5.1 - MERCADOLIBRE INC | nt10017308x18_ex5-1.htm |
| EX-4.4 - EXHIBIT 4.4 - MERCADOLIBRE INC | nt10017308x18_ex4-4.htm |
| EX-4.3 - EXHIBIT 4.3 - MERCADOLIBRE INC | nt10017308x18_ex4-3.htm |
| EX-4.2 - EXHIBIT 4.2 - MERCADOLIBRE INC | nt10017308x18_ex4-2.htm |
| EX-4.1 - EXHIBIT 4.1 - MERCADOLIBRE INC | nt10017308x18_ex4-1.htm |
| 8-K - 8-K - MERCADOLIBRE INC | nt10017308x18_8k.htm |
Exhibit 5.6
January 14, 2021
MercadoLibre, Inc.
Pasaje Posta 4789, 6th floor,
Buenos Aires, Argentina,
C1430EKG
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. 333-251835, 333-251835-01, 333-251835-02, 333-251835-03, 333-251835-04, 333-251835-05, 333-251835-05, 333-251835-06, 333-251835-07, 333-251835-08, 333-251835-09) (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 December 30, 2020, as supplemented by the prospectus supplement, dated January 7, 2021 (together, the “Prospectus”) relating to the Company’s offering of $400,000,000 aggregate principal amount of 2.375%
Sustainability Notes due 2026 (the “Sustainability Notes”) and $700,000,000 aggregate principal amount of 3.125% Notes due 2031 (the “2031 Notes” and together with the Sustainability Notes, the “Debt
Securities”) and the Additional Registrants’ guarantees relating to the Debt Securities (the “Guarantees,” and together with the Notes, 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 first supplemental indenture dated as of January 14, 2021
(the “First Supplemental Indenture”, and together with the Base Indenture, the “Indenture”) entered into among the Company, the Additional Registrants and The Bank of New York Mellon Trust Company, N.A., as
trustee, registrar, paying agent and transfer agent (the “Trustee”).
In arriving at the opinions expressed below, we have reviewed the following documents:
| (a) |
the Registration Statement;
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| (b) |
the Prospectus;
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| (c) |
executed copies of the Base Indenture and the First Supplemental Indenture;
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| (d) |
facsimile copies of the Debt Securities in global form as executed by the Company and authenticated by the Trustee;
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| (e) |
the Guarantor bylaws;
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| (f) | minute No. 69 of the Board of Partners of the Guarantor; and |
| (g) | existence, good standing and incumbency certificate of the Guarantor, issued by the Chamber of Commerce on December 14, 2020. |
Documents (a) and (b) 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,
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| (b) |
the genuineness of all signatures,
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| (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,
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| (d) |
that no application has been made regarding insolvency proceedings with regard to the Guarantor,
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| (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,
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| (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
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| (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 corporative 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.
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 of 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.
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| 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.
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| 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:
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| a. |
Pursuant to article 251 of Law 1564 of 2012 (Código General del Proceso), in order for a document written in a foreign language to be admissible as evidence before a Colombian court, it must be translated into Spanish, either by a
translator authorized by the Colombian Ministry of Foreign Affairs or by a judge appointed translator. To the extent applicable for the purposes of a judicial proceeding, preparation of translations authorized by the Colombian Ministry of
Foreign Affairs or by a judge appointed translator into Spanish of the Transaction Documents originally executed in English will be required;
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| b. |
To the extent applicable, in connection with public or official documents executed outside of the Republic of Colombia compliance with the Hague Apostille Convention or with legalization and proceedings in front of the Consulate to ensure
the admissibility in evidence of the respective document will be required; and
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| c. |
To the extent applicable, observance of the exequatur proceedings described in this opinion.
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| 4. |
Pursuant to Articles 605 and 606 of Law 1564 of 2012 (Código General del Proceso), the courts of the Republic of Colombia would give effect to and enforce a judgment obtained in a court outside of the Republic of Colombia without re-trial
or re-examination of the merits of the case provided (1) that there exists a treaty or convention relating to recognition and enforcement of foreign judgments between the Republic of Colombia and the country of origin of the judgment or, in
the absence of such treaty, that proper evidence is provided to the Supreme Court of Colombia to the effect that the courts of the country of the subject judgment would recognize and enforce Colombian judgments, and (2) that the subject
judgment fulfills the requirements listed in the qualifications section of this opinion.
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We have assumed that the Guarantors have satisfied the legal requirements that are applicable to them 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 them. 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.
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| (2) |
The initiation of a reorganization proceeding provides the suspension of the current judicial procedures of collections and the provisional suspension of the Guarantee execution. If the reorganization process is not successful and the
debtor initiates a liquidation proceeding, the Guarantee will be executed according to the terms of the insolvency proceeding.
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| (3) |
According to article 16 of Law 1116 of 2006, any provision in a contract which directly or indirectly hinders or creates obstacles for the commencement of a reorganization proceeding by imposing negative effects to the company which is
admitted to the process, will be deemed ineffective ipso iure.
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| (4) |
Per articles 61 and 82 of Law 1116 of 2006, the shareholders, agents, administrators and employees will be liable for the debts that remain unpaid in the insolvency proceeding, if the insolvency state was diminished because of their
intended or negligent behavior. The controlling entities will also have joint and several liabilities over the obligations of their subsidiary, when the insolvency situation of the subsidiary was caused by a decision of the controlling
entity. Additionally, per article 24 of Decree 1749 of 2011, in the event the company in insolvency is part of a corporate group, the other members of the corporate group may be liable for the disposition of the assets within the group that
have no juridical or economic justification.
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| (5) |
Colombian insolvency laws and regulations are considered public order laws (normas de orden público) and therefore cannot be modified or waived by private agreements. As a consequence, any waivers
made by the parties to such documents in respect of Colombia’s insolvency rules may be rendered unenforceable and a Colombian Court may disregard any contractual subordination provision relating to the Transaction Documents.
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| (6) |
Any proceeding for enforcement in the Republic of Colombia would be subject to the applicable statute of limitations and service of process must be made in accordance with the provisions of the Código
General del Proceso.
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| (7) |
The enforcement of the Transaction Documents in the Republic of Colombia may be limited by applicable statute of limitations. Pursuant to article 2535 of Colombia’s Civil Code (“Código Civil”), in
order for the statute of limitations to run and extinguish enforcement rights it is necessary that the party entitled to exercise an enforce actions fails to do so during a period commencing on the date in which the relevant right became
enforceable and ending 5 or 10 years after, as the case may be (depending on the relevant statute of limitations). Pursuant to Section 2514 of Código Civil, a waiver to the statute of limitations can
only be granted once the relevant statute of limitations has elapsed.
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| (8) |
Under Colombian law, in rem rights over property located in the Republic of Colombia, including the transfer of ownership, the granting of liens or security interests, and any proceeding to enforce
a judicial decision by means of seizure, attachment or execution against assets or property, or against any right or interest in assets or properties located in the Republic of Colombia, must be governed by the laws of the Republic of
Colombia and any collection proceeding over each assets located in the Republic of Colombia will be subject to the jurisdiction of Colombian courts.
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| (9) |
Article 869 of Colombia’s Code of Commerce provides that any agreement executed abroad containing obligations to be performed by the parties thereof in Colombia must be governed by Colombian laws, regardless of whether or not such parties
are Colombian residents. Considering that pursuant to Law 33 of 1992, payment obligations under credit transactions are deemed to be held and performed in the place of payment, we believe that the Transaction Documents contain provisions
that, if observed, will make the main obligations thereunder to be performed outside Colombia considering payment obligations are to be paid abroad, and, therefore, parties are not subject to Colombian law as set forth by Article 869 of the
Colombia’s Code of Commerce and may validly choose the law of the State of New York as the governing law of the Transaction Documents.
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| (10) |
In any proceeding in the Republic of Colombia in which a law of a foreign country were to be applied, there should be evidence of the law sought to be applied, through a copy of such law duly issued and promulgated by the competent
authorities, and when a written law does not exist, through the deposition or affidavit of two or more lawyers admitted in the relevant jurisdiction regarding such applicable law.
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| (11) |
In accordance with article 902 of Código de Comercio, if a provision of an agreement is declared void, that would only cause all the document to be void if the parties would not have entered into
the agreement in the absence of the provision that has been declared void.
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| (12) |
We express no opinion on the ability of the holders of the Debt Securities to initiate a collection proceeding before the Colombian courts based on the Transaction Documents without complying with the exequatur
proceeding or providing proof of foreign applicable laws.
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| (13) |
The provisions of the Transaction Documents which treat certain determinations as conclusive may be subject to review in a proceeding in the Republic of Colombia to determine the correctness of such determinations.
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| (14) |
Indemnification provisions may be limited by the judicial determination of legal costs, fees and judicial amounts determined by Colombian courts.
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| (15) |
Pursuant to and subject to the limitations provided for in article 594 of the Código General del Proceso, assets listed in said article are not subject to any attachment.
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| (16) |
In accordance with article 1506 of Código Civil, any contractual provision in favor of a third party is revocable until such third party accepts such provision whether expressly or by course of
action.
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| (17) |
According with applicable procedural rules: (i) waivers of immunity and service of process by private companies within the Republic of Colombia may not be allowed, (ii) advanced waivers of any immunity from proceedings (jurisdiction,
execution or attachment), which might be available in the future under Colombian law, may not be allowed, and (iii) equitable remedies or injunctive relief are unavailable, except for fundamental constitutional rights, specific performance of
contracts and precautionary measures and remedies in unfair trade practice actions.
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| (18) |
Pursuant to article 13 of the Código General del Proceso, civil procedure rules are considered public order laws (normas de orden público) and therefore
cannot be modified or waived by contractual arrangements. To the extent that the parties to the Transaction Documents commence enforcement actions before Colombian courts instead of commencing them at foreign courts (which final ruling may
subsequently be enforced in the Republic of Colombia through exequatur proceedings as described herein), any waivers made by the parties to the Transaction Documents in respect of Colombia’s rules of
civil procedure may be rendered unenforceable.
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| (19) |
Pursuant to articles 15 and 16 of Código Civil, the waiver of rights is permissible provided that said waiver only affects the rights of the waiving party. Under Colombian law, any immunity from
proceedings, which might be available in the future cannot be validly waived in advance.
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| (20) |
According to Colombian laws, the laws applicable to a given agreement are those in existence at the time of execution of such agreement, even if those laws change in the future, provided that the changes are not related to, or do not
affect, public order laws (normas de orden público), in which case public order laws become immediately effective. We consider Colombian exchange control regulations to be public order laws (normas de orden público). Therefore, the ability of the parties to perform their obligations payable in foreign currency (and the ability of any person to remit out of the Republic of Colombia the proceeds
of any sale of assets) will be subject to foreign exchange regulations and securities regulations in effect at the time of the relevant transaction.
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| (21) |
Under Colombian law, charging interest on interest (whether accrued or unpaid) is not permitted unless those interests are charged as permitted under article 886 of Código de Comercio.
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| (22) |
Additionally, the Supreme Court of Colombia, in the exequatur proceeding, must examine whether the following requirements set forth in article 606 of the Código
General del Proceso have been fulfilled:
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| a. |
That the judgment does not refer to in-rem rights over assets located in the Republic of Colombia at the time of the commencement of the foreign proceedings;
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| b. |
That, if the judgment was rendered in a contentious matter, the defendant was afforded due service of process in accordance with the laws of the judgment’s country of origin, which shall be presumed if the judgment is executory;
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| c. |
That the judgment is final and executory in accordance with the laws of the country of origin of the judgment, and that a duly authenticated and legalized copy be filed with the plaintiff’s request for exequatur;
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| d. |
That the judgment is not contrary to Colombian public order (mandatory) provisions, except for rules of civil procedure;
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| e. |
That the matter of the judgment is not subject to the exclusive jurisdiction of the Colombian courts; and
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| f. |
That there are no pending proceedings in the Republic of Colombia or any final judgments rendered by Colombian courts in connection with the same subject matter and between the same parties.
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| g. |
In the course of the exequatur proceedings, both the plaintiff and the defendant are allowed the opportunity to request that evidence be collected in connection with the issues listed above; and
before the judgment is rendered, each party may file final allegations in support of such party’s position.
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| (23) |
Performance by the Guarantor shall abide to applicable foreign exchange regulations in the Republic of Colombia. For these purposes, in compliance with Section 6.1 of External Circular DCIN-83 issued by the Central Bank, in case of an
effective call of the Guarantee, the Guarantor shall register the Guarantee in the Colombian Central Bank by means of filing a Form no. 7 «Information of foreign indebtedness granted to non-residents» to a foreign exchange intermediary before
or in the same moment in which payment by the Guarantor is due. Every transfer of currencies associated with the Guarantee shall be completed through the Colombian foreign exchange market and reported to the Colombian Central Bank, for which
the Guarantor must provide the information of the minimum data of foreign exchange operations for foreign indebtedness (Foreign Exchange Declaration – formerly known as Form no. 3) through a foreign exchange intermediary or through a
compensation account held by the Guarantor.
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| (24) |
If the full and unconditional Guarantee provided by the Guarantor in respect of the Debt Securities is not considered an economic compensation from the Company to the Guarantor, in the case of the effective call of the Guarantee, the
Colombian Tax 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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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 Exhibit 5.6 to the Company’s Current Report on Form 8-K dated January 14, 2021. 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.
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Very truly yours,
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/s/ Luis Gabriel Morcillo M.
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BRIGARD & URRUTIA ABOGADOS S.A.S.
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