EXHIBIT 5(b)
December 5, 2003
Popular, Inc.,
209 Munoz Rivera Avenue,
San Juan, Puerto Rico 00918.
Popular International Bank, Inc.,
209 Munoz Rivera Avenue,
San Juan, Puerto Rico 00918.
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
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Popular International Bank, Inc.,
Popular North America, Inc.
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 (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
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Popular International Bank, Inc.,
Popular North America, Inc.
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
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Popular International Bank, Inc.,
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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"), we, as your counsel, 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 we have considered necessary or
appropriate for the purposes of this opinion. On the basis of such examination,
we advise you that, in our opinion:
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(1) 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
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laws of general applicability relating to or affecting creditors' rights and to
general equity principles.
(2) 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 International Bank, Inc.,
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insolvency, fraudulent transfer, reorganization, moratorium and similar laws of
general applicability relating to or affecting creditors' rights and to general
equity principles.
(3) 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
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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.
(4) 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
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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
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.
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Popular International Bank, Inc.,
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(5) 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,
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Popular International Bank, Inc.,
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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 applicability relating to or affecting creditors' rights
and to general equity principles.
(6) 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
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Popular International Bank, Inc.,
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having jurisdiction over PIB or the Corporation, 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.
(7) 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
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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, 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 will be validly issued, fully paid and nonassessable, any shares
of PNA Preferred Stock initially issuable upon conversion or exchange of shares
of PNA 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 PNA Preferred
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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, 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.
We 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
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the State of New York rendering a judgment on a Debt Security, or on a related
Guarantee, would be required under Section 27 of 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 laws of the State of New York and the Commonwealth of Puerto
Rico, and the General Corporation Law of the State of Delaware, and we are
expressing no opinion as to the effect of the laws of any other jurisdiction.
With respect to all matters of the laws of the Commonwealth of Puerto Rico, we
have relied upon the opinion, dated the date hereof, of Brunilda Santos de
Alvarez, Esq., Puerto Rico counsel to the Corporation, PNA and PIB, and our
opinion is subject to the same assumptions, qualifications and limitations with
respect to such matters as are contained in such opinion of Brunilda
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Santos de Alvarez.
Also, we have relied as to certain matters on information
obtained from public officials, officers of the Corporation, PNA and PIB, and
other sources believed by us to be responsible, and we 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 trustees thereunder, assumptions that we have not independently
verified. Finally, we 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 Brunilda Santos de Alvarez,
Esq. as to matters of the laws of the State of New York and the General
Corporation Law of the State of Delaware.
We hereby consent to the filing of this opinion as an exhibit
to the Registration Statement and to the
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references to us under the heading "Validity of Offered Securities" in the
Prospectus contained in the Registration Statement. In giving such consent, we
do not thereby admit that we are in the category of persons whose consent is
required under Section 7 of the Act.
Very truly yours,
/s/ Sullivan & Cromwell LLP