Exhibit 5(a)
December 5, 2003
The Board of Directors
Popular, Inc.,
209 Munoz Rivera Avenue,
San Juan, Puerto Rico 00918.
The Board of Directors
Popular International Bank, Inc.,
209 Munoz Rivera Avenue,
San Juan, Puerto Rico 00918.
The Board of Directors
Popular North America, Inc.,
209 Munoz Rivera Avenue,
San Juan, Puerto Rico 00918.
Ladies and Gentlemen:
In connection with the registration under the Securities Act
of 1933 (the "Act") of $1,930,027,000 aggregate initial offering price of (i)
senior debt securities (the "Popular Senior Debt Securities") of Popular, Inc.,
a Puerto Rico corporation (the "Corporation"), subordinated debt securities (the
"Popular Subordinated Debt Securities") of the Corporation, shares of preferred
stock, without par value (the "Popular Preferred Stock"), of the Corporation and
the Popular Senior Debt Securities, Popular Subordinated Debt Securities and
shares of Popular Preferred Stock initially issuable upon conversion or exchange
of any shares of Popular Preferred Stock that are convertible into or
exchangeable for Popular Senior Debt Securities, Popular Subordinated Debt
Securities or shares of Popular Preferred Stock of another series, (ii) senior
debt securities (the "PNA Senior Debt Securities") of Popular North America,
Inc., a Delaware corporation ("PNA"), bearing the unconditional guarantees (the
"PNA Senior Debt Guarantees") of the Corporation, subordinated debt securities
(the "PNA Subordinated Debt Securities") of PNA bearing the unconditional
guarantees (the "PNA Subordinated Debt Guarantees") of the Corporation, shares
of preferred stock, par value $.01 per share
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Popular International Bank, Inc.
Popular North America, Inc.
(the "PNA Preferred Stock"), of PNA bearing the unconditional guarantees (the
"PNA Preferred Stock Guarantees") of the Corporation, and the PNA Senior Debt
Securities, PNA Subordinated Debt Securities and shares of PNA Preferred Stock
initially issuable upon conversion or exchange of any shares of PNA Preferred
Stock that are convertible into or exchangeable for PNA Senior Debt Securities,
PNA Subordinated Debt Securities or shares of PNA Preferred Stock of another
series, and (iii) senior debt securities (the "PIB Senior Debt Securities") of
Popular International Bank, Inc., a Puerto Rico corporation ("PIB"), bearing the
unconditional guarantees (the "PIB Senior Debt Guarantees") of the Corporation,
subordinated debt securities (the "PIB Subordinated Debt Securities") of PIB
bearing the unconditional guarantees (the "PIB Subordinated Debt Guarantees") of
the Corporation, shares of preferred stock, par value $25.00 per share (the "PIB
Preferred Stock"), of PIB bearing the unconditional guarantees (the "PIB
Preferred Stock Guarantees") of the Corporation, and the PIB Senior Debt
Securities, PIB Subordinated Debt Securities and shares of PIB Preferred Stock
initially issuable upon conversion or exchange of any shares of PIB Preferred
Stock that are convertible into or exchangeable for PIB Senior Debt Securities,
PIB Subordinated Debt Securities or shares of PIB Preferred Stock of another
series (the Popular Senior Debt Securities, the Popular Subordinated Debt
Securities, the PNA Senior Debt Securities, the PNA Subordinated Debt
Securities, the PIB Senior Debt Securities and the PIB Subordinated Debt
Securities are sometimes collectively referred to herein as the "Debt
Securities"; the PNA Senior Debt Guarantees, the PNA Subordinated Debt
Guarantees, the PNA Preferred Stock Guarantees, the PIB Senior Debt Guarantees,
the PIB Subordinated Debt Guarantees and the PIB Preferred Stock Guarantees are
sometimes collectively referred to herein as the "Guarantees"; and the Debt
Securities, the Guarantees, the Popular Preferred Stock, the PNA Preferred Stock
and the PIB Preferred Stock are sometimes collectively referred to herein as the
"Securities"), I, as Counsel to the Corporation, PIB and PNA, have examined such
corporate records, certificates and other documents, including the resolutions
of the Boards of Directors of the Corporation, PNA and PIB (the "Corporation
Resolutions", "PNA Resolutions" and "PIB Resolutions", respectively) authorizing
the issuance of the Securities, and such questions of law, as I have considered
necessary or appropriate for the purposes of this opinion. On the basis of such
examination, I advise you that, in my opinion:
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Popular International Bank, Inc.
Popular North America, Inc.
(i) Each of the Corporation and PIB has been duly incorporated
and is an existing corporation in good standing under the laws of the
Commonwealth of Puerto Rico.
(ii) When the registration statement relating to the
Securities (the "Registration Statement") has become effective under
the Act, the terms of the Popular Senior Debt Securities and of their
issuance and sale have been duly established in conformity with the
indenture, as supplemented, relating to the Popular Senior Debt
Securities (the "Popular Senior Indenture") so as not to violate any
applicable law or result in a default under or breach of any agreement
or instrument binding upon the Corporation and so as to comply with any
requirement or restriction imposed by any court or governmental body
having jurisdiction over the Corporation, and the Popular Senior Debt
Securities have been duly executed and authenticated in accordance with
the Popular Senior Indenture and issued and sold as contemplated in the
Registration Statement, and if all the foregoing actions are taken
pursuant to the authority granted in the Corporation Resolutions, the
Popular Senior Debt Securities will constitute valid and legally
binding obligations of the Corporation, subject to bankruptcy,
insolvency, fraudulent transfer, reorganization, moratorium and similar
laws of general applicability relating to or affecting creditors'
rights and to general equity principles.
(iii) When the Registration Statement has become effective
under the Act, the terms of the Popular Subordinated Debt Securities
and of their issuance and sale have been duly established in conformity
with the indenture relating to the Popular Subordinated Debt Securities
(the "Popular Subordinated Indenture") so as not to violate any
applicable law or result in a default under or breach of any agreement
or instrument binding upon the Corporation and so as to comply with any
requirement or restriction imposed by any court or governmental body
having jurisdiction over the Corporation, and the Popular Subordinated
Debt Securities have been duly executed and authenticated in accordance
with the Popular Subordinated Indenture and issued and sold as
contemplated in the Registration Statement, and if all the foregoing
actions are taken pursuant to the authority granted in the Corporation
Resolutions, the Popular Subordinated Debt Securities will constitute
valid and legally binding obligations of the Corporation, subject to
bankruptcy,
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Popular North America, Inc.
insolvency, fraudulent transfer, reorganization, moratorium and similar
laws of general applicability relating to or affecting creditors'
rights and to general equity principles.
(iv) When the Registration Statement has become effective
under the Act, the terms of the PNA Senior Debt Securities and the PNA
Senior Debt Guarantees and of their issuance and sale have been duly
established in conformity with the indenture, as supplemented, relating
to the PNA Senior Debt Securities and the PNA Senior Debt Guarantees
(the "PNA Senior Indenture") so as not to violate any applicable law or
result in a default under or breach of any agreement or instrument
binding upon PNA or the Corporation and so as to comply with any
requirement or restriction imposed by any court or governmental body
having jurisdiction over PNA or the Corporation, the PNA Senior Debt
Securities have been duly executed and authenticated and the PNA Senior
Debt Guarantees have been duly executed, each in accordance with the
PNA Senior Indenture, and the PNA Senior Debt Securities have been
issued and sold as contemplated in the Registration Statement, and if
all the foregoing actions are taken pursuant to the authority granted
in the PNA Resolutions and the Corporation Resolutions, as applicable,
the PNA Senior Debt Securities will constitute valid and legally
binding obligations of PNA and the PNA Senior Debt Guarantees will
constitute valid and legally binding obligations of the Corporation, in
each case subject to bankruptcy, insolvency, fraudulent transfer,
reorganization, moratorium and similar laws of general applicability
relating to or affecting creditors' rights and to general equity
principles.
(v) When the Registration Statement has become effective under
the Act, the indenture relating to the PNA Subordinated Debt Securities
and the PNA Subordinated Debt Guarantees (the "PNA Subordinated
Indenture") has been duly executed and delivered by PNA, the
Corporation and the trustee thereunder, the terms of the PNA
Subordinated Debt Securities and the PNA Subordinated Debt Guarantees
and of their issuance and sale have been duly established in conformity
with the PNA Subordinated Indenture so as not to violate any applicable
law or result in a default under or breach of any agreement or
instrument binding upon PNA or the Corporation and so as to comply with
any requirement or restriction imposed by any court or governmental
body
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Popular International Bank, Inc.
Popular North America, Inc.
having jurisdiction over PNA or the Corporation, the PNA Subordinated
Debt Securities have been duly executed and authenticated and the PNA
Subordinated Debt Guarantees have been duly executed, each in
accordance with the PNA Subordinated Indenture, and the PNA
Subordinated Debt Securities have been issued and sold as contemplated
in the Registration Statement, and if all the foregoing actions are
taken pursuant to the authority granted in the PNA Resolutions and the
Corporation Resolutions, as applicable, the PNA Subordinated Debt
Securities will constitute valid and legally binding obligations of
PNA and the PNA Subordinated Debt Guarantees will constitute valid and
legally binding obligations of the Corporation, in each case subject
to bankruptcy, insolvency, fraudulent transfer, reorganization,
moratorium and similar laws of general applicability relating to or
affecting creditors' rights and to general equity principles.
(vi) When the Registration Statement has become effective
under the Act, the indenture relating to the PIB Senior Debt Securities
and the PIB Senior Debt Guarantees (the "PIB Senior Indenture") has
been duly executed and delivered by PIB, the Corporation and the
trustee thereunder, the terms of the PIB Senior Debt Securities and the
PIB Senior Debt Guarantees and of their issuance and sale have been
duly established in conformity with the PIB Senior Indenture so as not
to violate any applicable law or result in a default under or breach of
any agreement or instrument binding upon PIB or the Corporation and so
as to comply with any requirement or restriction imposed by any court
or governmental body having jurisdiction over PIB or the Corporation,
the PIB Senior Debt Securities have been duly executed and
authenticated and the PIB Senior Debt Guarantees have been duly
executed, each in accordance with the PIB Senior Indenture, and the PIB
Senior Debt Securities have been issued and sold as contemplated in the
Registration Statement, and if all the foregoing actions are taken
pursuant to the authority granted in the PIB Resolutions and the
Corporation Resolutions, as applicable, the PIB Senior Debt Securities
will constitute valid and legally binding obligations of PIB and the
PIB Senior Debt Guarantees will constitute valid and legally binding
obligations of the Corporation, in each case subject to bankruptcy,
insolvency, fraudulent transfer, reorganization, moratorium and similar
laws of general
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Popular International Bank, Inc.
Popular North America, Inc.
applicability relating to or affecting creditors' rights and to general
equity principles.
(vii) When the Registration Statement has become effective
under the Act, the indenture relating to the PIB Subordinated Debt
Securities and the PIB Subordinated Debt Guarantees (the "PIB
Subordinated Indenture") has been duly executed and delivered by PIB,
the Corporation and the trustee thereunder, the terms of the PIB
Subordinated Debt Securities and the PIB Subordinated Debt Guarantees
and of their issuance and sale have been duly established in conformity
with the PIB Subordinated Indenture so as not to violate any applicable
law or result in a default under or breach of any agreement or
instrument binding upon PIB or the Corporation and so as to comply with
any requirement or restriction imposed by any court or governmental
body having jurisdiction over PIB or the Corporation, and the PIB
Subordinated Debt Securities have been duly executed and authenticated
and the PIB Subordinated Debt Guarantees have been duly executed, each
in accordance with the PIB Subordinated Indenture, and the PIB
Subordinated Debt Securities have been issued and sold as contemplated
in the Registration Statement, and if all the foregoing actions are
taken pursuant to the authority granted in the PIB Resolutions and the
Corporation Resolutions, as applicable, the PIB Subordinated Debt
Securities will constitute valid and legally binding obligations of PIB
and the PIB Subordinated Debt Guarantees will constitute valid and
legally binding obligations of the Corporation, in each case subject to
bankruptcy, insolvency, fraudulent transfer, reorganization, moratorium
and similar laws of general applicability relating to or affecting
creditors' rights and to general equity principles.
(viii) When the Registration Statement has become effective
under the Act, a certificate with respect to the Popular Preferred
Stock has been duly filed and recorded with the Department of State of
the Commonwealth of Puerto Rico as required by the General Corporation
Law of the Commonwealth of Puerto Rico, the terms of the Popular
Preferred Stock and of its issuance and sale have been duly established
in conformity with the Corporation's restated certificate of
incorporation so as not to violate any applicable law or result in a
default under or breach of any agreement or instrument binding upon the
Corporation and so as to comply with any requirement or restriction
imposed by any court or governmental body having
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Popular North America, Inc.
jurisdiction over the Corporation, all regulatory consents or approvals
for the issuance and sale of the Popular Preferred Stock have been
obtained and the Popular Preferred Stock has been duly issued and sold
as contemplated by the Registration Statement, and if all the foregoing
actions are taken pursuant to the authority granted in the Corporation
Resolutions, the Popular Preferred Stock will be validly issued, fully
paid and nonassessable, and any shares of Popular Preferred Stock
initially issuable upon conversion or exchange of shares of Popular
Preferred Stock of another series, when duly issued upon such
conversion or exchange, will be validly issued, fully paid and
nonassessable.
(ix) When the Registration Statement has become effective
under the Act, a certificate with respect to the PIB Preferred Stock
has been duly filed and recorded with the Department of State of the
Commonwealth of Puerto Rico as required by the General Corporation Law
of the Commonwealth of Puerto Rico, the terms of the PIB Preferred
Stock and of its issuance and sale have been duly established in
conformity with PIB's certificate of incorporation so as not to violate
any applicable law or result in a default under or breach of any
agreement or instrument binding upon PIB or the Corporation and so as
to comply with any requirement or restriction imposed by any court or
governmental body having jurisdiction over PIB or the Corporation, all
regulatory consents or approvals for the issuance and sale of the PIB
Preferred Stock and for the issuance of the PIB Preferred Stock
Guarantees have been obtained, and the PIB Preferred Stock has been
duly issued and sold as contemplated by the Registration Statement, and
if all the foregoing actions are taken pursuant to the authority
granted in the PIB Resolutions, the PIB Preferred Stock will be validly
issued, fully paid and nonassessable, any shares of PIB Preferred Stock
initially issuable upon conversion or exchange of shares of PIB
Preferred Stock of another series, when duly issued upon such
conversion or exchange, will be validly issued, fully paid and
nonassessable, and when the terms of the PIB Preferred Stock Guarantees
have been duly approved by the Board of Directors or other authorized
officials of the Corporation and the PIB Preferred Stock Guarantees
have been duly executed, the PIB Preferred Stock Guarantees will
constitute valid and legally binding obligations of the Corporation,
subject to bankruptcy, insolvency, fraudulent
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Popular North America, Inc.
transfer, reorganization, moratorium and similar laws of general
applicability relating to or affecting creditors' rights and to general
equity principles.
(x) When the Registration Statement has become effective under
the Act, a certificate of designations with respect to the PNA
Preferred Stock has been duly filed and recorded with the Secretary of
State of the State of Delaware, the terms of the PNA Preferred Stock
and of its issuance and sale have been duly established in conformity
with PNA's certificate of incorporation, as amended, so as not to
violate any applicable law or result in a default under or breach of
any agreement or instrument binding upon PNA or the Corporation and so
as to comply with any requirement or restriction imposed by any court
or governmental body having jurisdiction over PNA or the Corporation,
all regulatory consents or approvals for the issuance and sale of the
PNA Preferred Stock and for the issuance of the PNA Preferred Stock
Guarantees have been obtained, the terms of the PNA Preferred Stock
Guarantees have been duly approved by the Board of Directors or other
authorized officials of the Corporation and the PNA Preferred Stock
Guarantees have been duly executed, and the PNA Preferred Stock has
been duly issued and sold as contemplated by the Registration
Statement, and if all the foregoing actions are taken pursuant to the
authority granted in the PNA Resolutions, the PNA Preferred Stock
Guarantees will constitute valid and legally binding obligations of the
Corporation, subject to bankruptcy, insolvency, fraudulent transfer,
reorganization, moratorium and similar laws of general applicability
relating to or affecting creditors' rights and to general equity
principles.
I note that, as of the date of this opinion, a judgment for
money in an action based on a Debt Security denominated in a foreign currency or
currency unit, or on a related Guarantee, in a Federal or state court in the
United States ordinarily would be enforced in the United States only in United
States dollars. The date used to determine the rate of conversion of the foreign
currency or currency unit in which a particular Debt Security is denominated
into United States dollars will depend upon various factors, including which
court renders the judgment. In the case of a Debt Security denominated in a
foreign currency, or a related Guarantee, a state court in the State of New York
rendering a judgment on a Debt Security, or on a related Guarantee, would be
required under Section 27 of
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Popular North America, Inc.
the New York Judiciary Law to render such judgment in the foreign currency or
currency unit in which the Debt Security is denominated, and such judgment
would be converted into United States dollars at the exchange rate prevailing
on the date of entry of the judgment.
The foregoing opinion is limited to the Federal laws of the
United States, the General Corporation Law of the State of Delaware and the laws
of the State of New York and the Commonwealth of Puerto Rico, and I am
expressing no opinion as to the effect of the laws of any other jurisdiction.
With respect to all matters of the laws of the State of New York and of the
State of Delaware, I have relied upon the opinion, dated the date hereof, of
Sullivan & Cromwell LLP, and my opinion is subject to the same assumptions,
qualifications and limitations with respect to such matters as are contained in
such opinion of Sullivan & Cromwell LLP.
Also, I have relied as to certain matters on information
obtained from public officials, officers of the Corporation, PNA and PIB, and
other sources believed by me to be responsible, and I have assumed that each of
the Popular Senior Indenture, the Popular Subordinated Indenture and the PNA
Senior Indenture has been duly authorized, executed and delivered by the
respective trustee thereunder, assumptions which I have not independently
verified. Finally, I have assumed that the authority granted in the Corporation
Resolutions, PNA Resolutions and PIB Resolutions will remain in effect at all
relevant times.
This opinion may be relied upon by Sullivan & Cromwell LLP as
to matters of the laws of the Commonwealth of Puerto Rico.
I hereby consent to the filing of this opinion as an exhibit
to the Registration Statement and to the reference to me under the heading
"Validity of Offered Securities" in the Prospectus contained in the Registration
Statement. In giving such consent, I do not thereby admit that I am in the
category of persons whose consent is required under Section 7 of the Act.
Very truly yours,
/s/ Brunilda Santos de Alvarez