Form POSASR CULLEN/FROST BANKERS,

August 14, 2020 6:02 AM

As filed with the Securities and Exchange Commission on August 13, 2020

Registration No. 333-244971

UNITED STATES

SECURITIES AND EXCHANGE COMMISSION

Washington, D.C. 20549

______________________________

Post-Effective Amendment No. 1 to

FORM S-3

REGISTRATION STATEMENT

UNDER

THE SECURITIES ACT OF 1933

______________________________

CULLEN/FROST BANKERS, INC.

(Exact Name of Registrant as Specified in Its Charter)

______________________________

TEXAS

(State or other jurisdiction of incorporation or organization)

74-1751768

(I.R.S. Employer Identification No.)

111 W. HOUSTON STREET

SAN ANTONIO, TEXAS 78205

(210) 220-4011

(Address, including zip code, and telephone number, including area code, of registrant’s principal executive offices)

______________________________

JAMES L. WATERS

GROUP EXECUTIVE VICE PRESIDENT

GENERAL COUNSEL AND CORPORATE SECRETARY

CULLEN/FROST BANKERS, INC.

111 W. HOUSTON STREET

SAN ANTONIO, TEXAS 78205

(210) 220-4011

(Name, address, including zip code, and telephone number, including area code, of agent for service)

______________________________

Copy to:

MARK J. MENTING, ESQ.

CATHERINE M. CLARKIN, ESQ.

SULLIVAN & CROMWELL LLP

125 BROAD STREET

NEW YORK, NEW YORK 10004-2498

(212) 558-4000

______________________________

Approximate date of commencement of proposed sale to the public: From time to time after this registration statement becomes effective.

If the only securities being registered on this Form are being offered pursuant to dividend or interest reinvestment plans, please check the following box. ☐

If any of the securities being registered on this Form are to be offered on a delayed or continuous basis pursuant to Rule 415 under the Securities Act of 1933, other than securities offered only in connection with dividend or interest reinvestment plans, check the following box. ☒

If this Form is filed to register additional securities for an offering pursuant to Rule 462(b) under the Securities Act, please check the following box and list the Securities Act registration statement number of the earlier effective registration statement for the same offering. ☐

If this Form is a post-effective amendment filed pursuant to Rule 462(c) under the Securities Act, check the following box and list the Securities Act registration number of the earlier effective registration statement for the same offering. ☐

If this Form is a registration statement pursuant to General Instruction I.D. or a post-effective amendment thereto that shall become effective upon filing with the Commission pursuant to Rule 462(e) under the Securities Act, check the following box. ☒

If this Form is a post-effective amendment to a registration statement filed pursuant to General Instruction I.D. filed to register additional securities or additional classes of securities pursuant to Rule 413(b) under the Securities Act, check the following box. ☐

Indicate by check mark whether the registrant is a large accelerated filer, an accelerated filer, a non-accelerated filer, a smaller reporting company, or an emerging growth company. See the definitions of “large accelerated filer,” “accelerated filer,” “smaller reporting company” and “emerging growth company” in Rule 12b-2 of the Exchange Act.



Large accelerated filer ☒	Accelerated filer ☐
Non-accelerated filer ☐	Smaller reporting company ☐
	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 7(a)(2)(B) of Securities Act. ☐

______________________________

CALCULATION OF REGISTRATION FEE



Title of Each Class of Securities to be Registered⁽¹⁾⁽²⁾	Amount to be Registered ⁽¹⁾	Proposed Maximum Offering Price Per Unit ⁽¹⁾	Proposed Maximum Aggregate Offering Price ⁽¹⁾	Amount of Registration Fee ⁽¹⁾
Debt Securities
Preferred Stock
Depositary Shares⁽³⁾
Common Stock
Warrants ⁽⁴⁾

(1)

This registration statement covers an indeterminate aggregate number and amount of the securities of each class as may from time to time be offered and sold at indeterminate prices by the registrant. The proposed maximum aggregate offering price per security will be determined from time to time by the registrant in connection with offers and sales of securities registered hereunder. The debt securities, preferred stock and warrants may be convertible into or exercisable or exchangeable for our common stock or other securities. Separate consideration may or may not be received for securities that are issuable on exercise, conversion or exchange of securities registered hereunder or that are represented by depositary shares. In accordance with Rules 456(b) and 457(r) under the Securities Act of 1933 (the “Securities Act”), the registrant is deferring payment of the registration fee and will pay the registration fee subsequently in advance or on a pay-as-you-go basis.


(2)	Pursuant to Rule 416 under the Securities Act, this registration statement also covers any additional shares that may be offered or issued in connection with any stock split, stock dividend or similar transaction.

(3)

Each depositary share will be evidenced by depositary receipts issued pursuant to a deposit agreement. In the event the registrant elects to offer to the public whole or fractional interests in shares of preferred stock registered hereunder, depositary receipts will be distributed to those persons purchasing such interests and such shares will be issued to the depositary under the deposit agreement.


(4)	Warrants represent rights to purchase debt securities, common stock, or preferred stock registered hereunder.

EXPLANATORY NOTE

This Post-Effective Amendment No. 1 to the Registration Statement on Form S-3 of Cullen/Frost Bankers, Inc. is being filed solely for the purpose of filing (i) an updated version of Exhibit 5.1 and (ii) an updated version of Exhibit 5.2, in each case to correct typographical errors in the previously filed Exhibits 5.1 and 5.2. No other changes are being made hereby to the Registration Statement.

PART II

INFORMATION NOT REQUIRED IN PROSPECTUS

Item 16. Exhibits

EXHIBIT INDEX



Exhibit Number		Description of Document
1.1		Form of Underwriting Agreement.*
4.1		Restated Articles of Incorporation of Cullen/Frost Bankers, Inc. (incorporated by reference to Exhibit 3.1 to the Cullen/Frost Bankers, Inc. Quarterly Report on Form 10-Q filed on July 26, 2006).
4.2		Amended and Restated Bylaws of Cullen/Frost Bankers, Inc. (incorporated by reference to Exhibit 3.1 of the Cullen/Frost Bankers, Inc. Current Report on Form 8-K filed on July 31, 2020).
4.3		Certificate of Designations of 5.375% Non-Cumulative Perpetual Preferred Stock, Series A (incorporated by reference to Exhibit 3.3 to the Cullen/Frost Bankers, Inc. Form 8-A filed on February 15, 2013).
4.4		Form of Certificate representing Cullen/Frost Bankers, Inc. Common Stock.+
4.5		Form of Senior Debt Securities Indenture between Cullen/Frost Bankers, Inc. and The Bank of New York Mellon, as Trustee.+
4.6		Subordinated Debt Securities Indenture, dated as of February 15, 2007, between Cullen/Frost Bankers, Inc. and The Bank of New York, as Trustee.+
4.7		First Supplemental Indenture, dated as of March 17, 2017, to Subordinated Debt Securities Indenture, dated as of February 15, 2007, between Cullen/Frost Bankers, Inc. and the Bank of New York Mellon, as Trustee.+
4.8		Form of Warrant Agreement.*
4.9		Form of Preferred Stock Designations.*
4.10		Form of Depositary Shares.*
5.1		Opinion of Sullivan and Cromwell LLP.++
5.2		Opinion of James L. Waters.++
8.1		Opinion regarding tax matters.*
23.1		Consent of Ernst & Young LLP.+
23.2		Consent of Sullivan & Cromwell LLP (included in Exhibit 5.1).
23.3		Consent of James L. Waters (included in Exhibit 5.2).
24.1		Power of attorney.+
25.1		Form T-1 Statement of Eligibility under the Trust Indenture Act of 1939, as amended, of The Bank of New York Mellon, as Trustee for the Form of Senior Debt Securities Indenture.+
25.2		Form T-1 Statement of Eligibility under the Trust Indenture Act of 1939, as amended, of The Bank of New York Mellon, as Trustee for the Subordinated Debt Securities Indenture, dated as of February 15, 2007.+

____________


+	Previously filed.


++	Filed herewith.


*	To be filed by amendment or as an exhibit to a document to be incorporated by reference herein in connection with an offering of the offered securities, to the extent applicable.

Signatures

Pursuant to the requirements of the Securities Act of 1933, the undersigned registrant certifies that it has reasonable grounds to believe that it meets all of the requirements for filing on Form S-3 and has duly caused this registration statement to be signed on its behalf by the undersigned, thereunto duly authorized, in San Antonio, Texas on August 13, 2020.

CULLEN/FROST BANKERS, INC.


By:	/s/ JERRY SALINAS

Jerry Salinas

Group Executive Vice President and Chief Financial Officer

Pursuant to the requirements of the Securities Act of 1933, this registration statement has been signed by the following persons and in the capacities indicated on August 13, 2020.



Signature		Title

/s/ PHILLIP D. GREEN*		Chairman of the Board, Director and Chief Executive Officer (Principal Executive Officer)
Phillip D. Green

/s/ JERRY SALINAS		Group Executive Vice President and Chief Financial Officer (Principal Financial Officer and Principal Accounting Officer)
Jerry Salinas

/s/ CARLOS ALVAREZ*		Director
Carlos Alvarez

/s/ CHRIS AVERY*		Director
Chris Avery

/s/ ANTHONY R. CHASE*		Director
Anthony R. Chase

/s/ CYNTHIA COMPARIN*		Director
Cynthia Comparin

/s/ SAM DAWSON*		Director
Sam Dawson

/s/ CRAWFORD H. EDWARDS*		Director
Crawford H. Edwards

/s/ PATRICK B. FROST*		Director
Patrick B. Frost

/s/ DAVID J. HAEMISEGGER*		Director
David J. Haemisegger

/s/ KAREN E. JENNINGS*		Director
Karen E. Jennings

/s/ CHARLES W. MATTHEWS*		Director
Charles W. Matthews

/s/ IDA CLEMENT STEEN*		Director
Ida Clement Steen

/s/ GRAHAM WESTON*		Director
Graham Weston

*By: /s/ JERRY SALINAS		Group Executive Vice President and Chief Financial Officer (Principal Financial Officer and Principal Accounting Officer)
Jerry Salinas As attorney-in-fact for the persons indicated pursuant to Power of Attorney filed herewith

Exhibit 5.1

Opinion of Sullivan & Cromwell LLP

August 12, 2020

Cullen/Frost Bankers, Inc.

111 West Houston Street

San Antonio, Texas 78205

Ladies and Gentlemen:

We are acting as counsel to Cullen/Frost Bankers, Inc., a Texas corporation (the “Company”), in connection with the filing of the Company’s registration statement on Form S-3 (the “Registration Statement”) under the Securities Act of 1933 (the “Act”). The Registration Statement registers (i) shares of common stock of the Company, par value $0.01 per share (the “Common Shares”); (ii) shares of preferred stock of the Company, par value $0.01 per share (the “Preferred Shares”); (iii) depositary shares representing Preferred Shares (the “Depositary Shares”); (iv) debt securities, including senior debt securities and subordinated debt securities, of the Company (the “Debt Securities”); and (v) warrants to purchase Common Shares, Preferred Shares or Debt Securities (the “Warrants”). The Depositary Shares, Debt Securities and Warrants are referred to collectively as the “Securities”.

In connection with the filing of the Registration Statement, we, as your counsel, have examined such corporate records, certificates and other documents, and such questions of law, as we have considered necessary or appropriate for the purposes of this opinion.

Upon the basis of such examination, we advise you that, in our opinion:

(1)Depositary Shares. When the Registration Statement has become effective under the Act, when the terms of the deposit agreements under which the Depositary Shares are to be issued have been duly established and the deposit agreements have been duly executed and delivered, when the terms of the Depositary Shares and of their issuance and sale have been duly established in conformity with the applicable deposit agreements, when the Preferred Shares represented by the Depositary Shares have been duly authorized and validly issued by the Company and are fully paid and non-assessable and duly delivered to the applicable depositaries and when the depositary receipts evidencing the Depositary Shares have been duly issued against deposit of the Preferred Shares in accordance with the applicable deposit agreements and issued and sold as contemplated by the Registration Statement, and if all the foregoing actions are taken pursuant to authority granted in resolutions duly adopted by the Company’s Board of Directors, or a duly authorized committee thereof, and so as not to violate any applicable law or result in a default under or breach of any agreement or instrument binding upon the Company and so as to comply with any requirement or restriction imposed by any court or governmental body having jurisdiction over the Company, the depositary receipts evidencing the Depositary Shares will be validly issued and will entitle the holders thereof to the rights specified in the Depositary Shares and the applicable deposit agreements, 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.

(2)Debt Securities. When the Registration Statement has become effective under the Act, when an indenture relating to the senior debt securities (the “Senior Debt Indenture”) has been duly authorized, executed and delivered substantially in the form so filed, when the terms of the Debt Securities and of their issuance and sale have been duly established in conformity with the Senior Debt Indenture or the Indenture, dated as of February 15, 2007, relating to the subordinated debt securities, between the Company and The Bank of New York Mellon, formerly known as The Bank of New York (the “Subordinated Debt Indenture” and each of the Senior Debt Indenture and Subordinated Debt Indenture, an “Indenture”), as applicable, so as not to violate any applicable law or result in a default under or breach of any agreement or instrument binding upon the Company and so as to comply with any requirement or restriction imposed by any court or governmental body having jurisdiction over the Company, and when the Debt

Securities have been duly executed and authenticated in accordance with the applicable Indenture and issued and sold as contemplated in the Registration Statement, and if all the foregoing actions are taken pursuant to authority granted in resolutions duly adopted by the Company’s Board of Directors, or a duly authorized committee thereof, the Debt Securities will constitute valid and legally binding obligations of the Company, 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. The Debt Securities covered by the opinion in this paragraph include any Debt Securities that may be issued upon exercise of any Warrants that are exercisable for Debt Securities.

(3)Warrants. When the Registration Statement has become effective under the Act, when the terms of the warrant agreement under which the Warrants are to be issued have been duly established and the warrant agreement has been duly authorized, executed and delivered, when the terms of the Warrants and of their issuance and sale have been duly established in conformity with the applicable warrant agreement and when the Warrants have been duly executed and authenticated in accordance with the applicable warrant agreement and issued and sold as contemplated by the Registration Statement, and if all the foregoing actions are taken pursuant to authority granted in resolutions duly adopted by the Company’s Board of Directors, or a duly authorized committee thereof, and so as not to violate any applicable law or result in a default under or breach of any agreement or instrument binding upon the Company and so as to comply with any requirement or restriction imposed by any court or governmental body having jurisdiction over the Company, the Warrants will constitute valid and legally binding obligations of the Company, 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 Security denominated in a foreign currency or currency unit 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 Security is denominated into United States dollars will depend upon various factors, including which court renders the judgment. Under Section 27 of the New York Judiciary Law, a state court in the State of New York rendering a judgment on such Security would be required to render such judgment in the foreign currency or currency unit in which the 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 and the laws of the State of New York, and we are expressing no opinion as to the effect of the laws of any other jurisdiction. For purposes of this opinion, we have, with your approval, assumed that (i) the Company has been duly incorporated and is an existing corporation in good standing under the laws of the State of Texas, (ii) each deposit agreement, each applicable Indenture and each warrant agreement has or will be duly authorized, executed and delivered by the Company insofar as Texas law is concerned and (iii) the Securities will be duly authorized, issued and delivered by the Company insofar as Texas law is concerned.

We have relied as to certain factual matters on information obtained from public officials, officers of the Company and other sources believed by us to be responsible, and we have assumed that the Subordinated Debt Indenture has been, and the Senior Debt Indenture will be, duly authorized, executed and delivered by the applicable trustee thereunder, an assumption which we have not independently verified. We have assumed that the governing documents under which the Securities are to be issued will have been duly authorized, executed and delivered by all parties thereto other than the Company and that the signatures on documents examined by us are genuine. We have further assumed that the issuance or delivery by the Company of any securities other than the Securities, or of any other property, upon exercise or otherwise pursuant to the terms of the Securities will be effected pursuant to authority granted in resolutions duly adopted by the Company’s Board of Directors, or a duly authorized committee thereof, so as not to violate any applicable law or result in a default under or breach of any agreement or instrument binding on the Company and so as to comply with any requirement or restriction imposed by any court or governmental body having jurisdiction over the Company. Finally, we have assumed that the authority granted in resolutions duly adopted by the Company’s Board of Directors, or a duly authorized committee thereof, will remain in effect at all relevant times and that no Securities will be issued or other action taken in contravention of any applicable limit established pursuant to such resolutions from time to time. In rendering the foregoing opinion, we are not passing upon, and assume no responsibility for, any disclosure in the Registration Statement or any related prospectus or other offering material regarding the Company or the Securities or their offering and sale.

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We hereby consent to the filing of this opinion as an exhibit to the Registration Statement and to the reference to us under the heading “Validity of the Securities” in the prospectus contained therein. 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

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Exhibit 5.2

Opinion of James L. Waters

August 12, 2020

Cullen/Frost Bankers, Inc.

111 West Houston Street

San Antonio, Texas 78205

Ladies and Gentlemen:

I am Group Executive Vice President, General Counsel and Corporate Secretary of Cullen/Frost Bankers, Inc., a Texas corporation (the “Company”) and am providing this opinion in connection with the filing of the Company’s registration statement on Form S-3 (the “Registration Statement”) under the Securities Act of 1933 (the “Act”). The Registration Statement registers (i) shares of common stock of the Company, par value $0.01 per share (such registered shares, the “Common Shares”); (ii) shares of preferred stock of the Company, par value $0.01 per share (such registered shares, the “Preferred Shares”); (iii) depositary shares representing Preferred Shares (such registered shares, the “Depositary Shares”); (iv) debt securities, including senior debt securities and subordinated debt securities, of the Company (such registered securities, the “Debt Securities”); and (v) warrants to purchase Common Shares, Preferred Shares or Debt Securities (such registered warrants, the “Warrants”, and together with the Common Shares, the Preferred Shares, the Depositary Shares and the Debt Securities, the “Securities”).

In connection with the filing of the Registration Statement, I have examined such corporate records, certificates and other documents, and such questions of law, as I have considered necessary or appropriate for the purposes of this opinion.

Upon the basis of such examination, I advise you that, in my opinion:

(1)The Company has been duly incorporated and is validly existing as a corporation in good standing under the laws of the State of Texas.

(2)Common Shares. When the Registration Statement has become effective under the Act, when the terms of the Common Shares and of their issuance and sale have been duly established in conformity with the Company’s articles of incorporation and when the Common Shares have been duly issued and sold as contemplated by the Registration Statement, and if all the foregoing actions are taken pursuant to authority granted in resolutions duly adopted by the Company’s Board of Directors, or a duly authorized committee thereof, and so as not to violate any applicable law or result in a default under or breach of any agreement or instrument binding upon the Company and so as to comply with any requirement or restriction imposed by any court or governmental body having jurisdiction over the Company, the Common Shares will be validly issued, fully paid and nonassessable. The Common Shares covered by the opinion in this paragraph include any Common Shares that may be issued upon exercise or otherwise pursuant to the terms of any other Securities.

(3)Preferred Shares. When the Registration Statement has become effective under the Act, when the terms of the Preferred Shares and of their issuance and sale have been duly established in conformity with the Company’s articles of incorporation, when an appropriate certificate of designations with respect to the Preferred Shares has been duly filed with the Secretary of State of the State of Texas and when the Preferred Shares have been duly issued and sold as contemplated by the Registration Statement, and if all the foregoing actions are taken pursuant to authority granted in resolutions duly adopted by the Company’s Board of Directors, or a duly authorized committee thereof, and so as not to violate any applicable law or result in a default under or breach of any agreement or instrument binding upon the Company and so as to comply with any requirement or restriction imposed by any court or governmental body having jurisdiction over the Company, the Preferred Shares will be validly issued, fully paid and nonassessable. The Preferred Shares covered by the opinion in this paragraph include any Preferred Shares that may be represented by Depositary Shares or may be issued upon exercise or otherwise pursuant to the terms of any other Securities.

(4)Depositary Shares. When the Registration Statement has become effective under the Act, when the terms of the deposit agreements under which the Depositary Shares are to be issued have been duly established and the deposit agreements have been duly executed and delivered, when the terms of the Depositary Shares and of their issuance and sale have been duly established in conformity with the applicable deposit agreements, when the Preferred Shares represented by the Depositary Shares have been duly authorized and validly issued by the Company and are fully paid and non-assessable and duly delivered to the applicable depositaries and when the depositary receipts evidencing the Depositary Shares have been duly issued against deposit of the Preferred Shares in accordance with the applicable deposit agreements and issued and sold as contemplated by the Registration Statement, and if all the foregoing actions are taken pursuant to authority granted in resolutions duly adopted by the Company’s Board of Directors, or a duly authorized committee thereof, and so as not to violate any applicable law or result in a default under or breach of any agreement or instrument binding upon the Company and so as to comply with any requirement or restriction imposed by any court or governmental body having jurisdiction over the Company, the depositary receipts evidencing the Depositary Shares will be validly issued and will entitle the holders thereof to the rights specified in the Depositary Shares and the applicable deposit agreements, 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. The Depositary Shares covered by the opinion in this paragraph include any Depositary Shares that may be issued upon exercise or otherwise pursuant to the terms of any other Securities.

(5)Debt Securities. The Indenture, dated as of February 15, 2007 (the “Subordinated Debt Indenture”), relating to the subordinated debt securities, between the Company and The Bank of New York Mellon, formerly known as The Bank of New York, has been duly authorized, executed and delivered by the Company. When the Registration Statement has become effective under the Act, when an indenture relating to the senior debt securities (the “Senior Debt Indenture” and each of the Senior Debt Indenture and Subordinated Debt Indenture, an “Indenture”) has been duly authorized, executed and delivered substantially in the form so filed, when the terms of the Debt Securities and of their issuance and sale have been duly established in conformity with the related 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 Company and so as to comply with any requirement or restriction imposed by any court or governmental body having jurisdiction over the Company, and when the Debt Securities have been duly executed and authenticated in accordance with the applicable Indenture and issued and sold as contemplated in the Registration Statement, and if all the foregoing actions are taken pursuant to authority granted in resolutions duly adopted by the Company’s Board of Directors, or a duly authorized committee thereof, the Debt Securities will constitute valid and legally binding obligations of the Company, 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. The Debt Securities covered by the opinion in this paragraph include any Debt Securities that may be issued upon exercise of any Warrants that are exercisable for Debt Securities.

(6)Warrants. When the Registration Statement has become effective under the Act, when the terms of the warrant agreement under which the Warrants are to be issued have been duly established and the warrant agreement has been duly authorized, executed and delivered, when the terms of the Warrants and of their issuance and sale have been duly established in conformity with the applicable warrant agreement and when the Warrants have been duly executed and authenticated in accordance with the applicable warrant agreement and issued and sold as contemplated by the Registration Statement, and if all the foregoing actions are taken pursuant to authority granted in resolutions duly adopted by the Company’s Board of Directors, or a duly authorized committee thereof, and so as not to violate any applicable law or result in a default under or breach of any agreement or instrument binding upon the Company and so as to comply with any requirement or restriction imposed by any court or governmental body having jurisdiction over the Company, the Warrants will constitute valid and legally binding obligations of the Company, 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.

The foregoing opinion is limited to laws of the State of Texas, and I am expressing no opinion as to the effect of the laws of any other jurisdiction. With respect to all matters of Federal and New York law, I have, with your approval, relied upon the opinion, dated the date hereof, of Sullivan & Cromwell LLP, acting as special counsel to the Company, 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.

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I have relied as to certain factual matters on information obtained from public officials, officers of the Company and other sources believed by me to be responsible, and I have assumed that the Subordinated Debt Indenture has been, and the Senior Debt Indenture will be, duly authorized, executed and delivered by the applicable trustee thereunder, an assumption which I have not independently verified, and that the governing documents under which the Securities are to be issued will have been duly authorized, executed and delivered by all parties thereto other than the Company and that the signatures on documents examined by me are genuine. I have further assumed that the issuance or delivery by the Company of any securities other than the Securities, or of any other property, upon exercise or otherwise pursuant to the terms of the Securities will be effected pursuant to authority granted in resolutions duly adopted by the Company’s Board of Directors, or a duly authorized committee thereof, so as not to violate any applicable law or result in a default under or breach of any agreement or instrument binding on the Company and so as to comply with any requirement or restriction imposed by any court or governmental body having jurisdiction over the Company. Finally, I have assumed that the authority granted in resolutions duly adopted by the Company’s Board of Directors, or a duly authorized committee thereof, will remain in effect at all relevant times and that no Securities will be issued or other action taken in contravention of any applicable limit established pursuant to such resolutions from time to time.

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 the Securities” in the prospectus contained therein. 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/ JAMES L. WATERS

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