MMCapS XVII Final Offering Circular - Irish Stock Exchange

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liability to the Issuer or any Holder of any Note for failure to disclose such information or for taking, or failing to take, any action based upon such information. The Collateral Manager may in the future serve as collateral manager or advisor or sub-advisor for other collateralized debt obligation vehicles (or similar entities) on terms materially different from those applicable between the Collateral Manager and the Issuer and, accordingly, the Collateral Manager may have incentives to favor any one or more other collateralized debt obligation vehicles (or similar entities) over the Issuer. In addition, Affiliates and clients of the Collateral Manager may invest in securities that are senior to, or have interests different from or adverse to, the securities that are pledged to secure the Notes. The Collateral Manager and/or its Affiliates may at certain times be simultaneously seeking to purchase or dispose of investments for its respective account, the Issuer, any similar entity for which it serves as manager or advisor and for its other clients or Affiliates. Neither the Collateral Manager nor any of its Affiliates is under any obligation to offer investment opportunities of which they become aware to the Issuer or to account to the Issuer for (or share with the Issuer or inform the Issuer of) any such transaction or any benefit received by them from any such transaction or to inform the Issuer of any investments before offering any investments to other funds or accounts that the Collateral Manager and/or its Affiliates manage or advise. Furthermore, the Collateral Manager and/or its Affiliates may make an investment on behalf of any account that they manage or advise without offering the investment opportunity or making any investment on behalf of the Issuer. The Collateral Manager and/or its Affiliates have no affirmative obligation to offer any investments to the Issuer or to inform the Issuer of any investments before offering any investments to other funds or accounts that the Collateral Manager and/or its Affiliates manage or advise. Furthermore, the Collateral Manager and its Affiliates may make an investment on their own behalf without offering the investment opportunity to, or the Collateral Manager making any investment on behalf of, the Issuer. Affirmative obligations may exist or may arise in the future, whereby the Collateral Manager and/or its Affiliates are obligated to offer certain investments to funds or accounts that they manage or advise before or without the Collateral Manager offering those investments to the Issuer. The Collateral Manager and its Affiliates have no affirmative obligation to offer any investments to the Issuer or to inform the Issuer of any investments before engaging in any investments for themselves. The Collateral Manager may make investments on behalf of the Issuer in securities, or other assets, that it has declined to invest in for its own account, the account of any of its Affiliates or the account of its other clients. The Collateral Manager will endeavor to resolve conflicts with respect to investment opportunities in a manner that it deems equitable under the facts and circumstances. Although the Collateral Manager Personnel will devote as much time to the Issuer as the Collateral Manager deems appropriate, the Collateral Manager Personnel may have conflicts in allocating their time and services among the Issuer and the Collateral Manager’s other accounts and clients. In addition, as employees of Sandler O’Neill & Partners L.P., the Collateral Manager Personnel will have substantial responsibilities outside of their responsibilities to perform services for the Collateral Manager. The Indenture only allows the Collateral Manager to sell Collateral Debt Securities in very limited circumstances, which includes a Collateral Debt Security becoming a Defaulted Security or a Credit Risk Security. Accordingly, during certain periods or in certain circumstances, the Collateral Manager may be unable as a result of such restrictions to sell Collateral Debt Securities or to take other actions which it might consider to be in the best interests of the Issuer and the holders of the Notes. In the event a Collateral Debt Security is sold, the Indenture does not permit any reinvestment of the sale proceeds in additional Collateral Debt Securities. Affiliates of the Collateral Manager may (for their own accounts or for the accounts of others) purchase Notes in the initial offering thereof, and may do so at any time thereafter. One of the Affiliates of the Collateral Manager, Sandler O’Neill & Partners, L.P., will be an Initial Purchaser and Placement Agent in connection with the offering of the Notes and, accordingly, (i) investors identified by Sandler O’Neill & Partners, L.P. will acquire a portion of the Notes on the Closing Date or thereafter and (ii) Sandler O’Neill & Partners, L.P. and other Affiliates may acquire Notes for their own accounts on the Closing Date or thereafter. Substantially all of the Collateral Debt Securities to be acquired from Greenwich Capital Financial Products, Inc., as Warehouse Provider, on the Closing Date were originally acquired in transactions in which Sandler O’Neill & Partners, L.P. was acting as placement agent in primary market transactions or as broker or dealer in secondary market transactions. Because Sandler O’Neill & Partners, L.P. served as placement agent or broker/dealer with respect to all the Collateral Debt Securities, and may have earned a fee or commission in 32
connection with such transactions, the Collateral Manager has potentially conflicting interests with respect to its selection of the Collateral Debt Securities for acquisition by the Warehouse Provider on behalf of the Issuer. Collateral Debt Securities acquired by the Warehouse Provider during the accumulation period before the Closing Date and sold to the Issuer on the Closing Date will be purchased by the Issuer at a price determined as described below under “—Purchase of Collateral Debt Securities; Warehouse Arrangements”. At all times that Sandler O’Neill Advisors or any of its Affiliates is acting as Collateral Manager, Notes, if any, held by, or with respect to which discretionary voting rights are held by, Sandler O’Neill Advisors and its Affiliates will have no voting rights with respect to any vote in connection with the removal of the Collateral Manager and will be deemed not to be outstanding in connection with any such vote. However, any Notes held by, or with respect to which discretionary voting rights are held by, Sandler O’Neill Advisors and its Affiliates or their respective employees will have voting rights with respect to all other matters as to which the holders of the Notes are entitled to vote, including, without limitation, any vote in connection with an Optional Notes Redemption or the appointment of a replacement collateral manager which is not affiliated with Sandler O’Neill Advisors in accordance with the Collateral Management Agreement. See “The Collateral Management Agreement.” The Collateral Manager may arrange (i) principal transactions where an Affiliate of the Collateral Manager, acting for its own account, buys Collateral Debt Securities or Eligible Investments from, or sells Collateral Debt Securities or Eligible Investments to, the Issuer (“Principal Transactions”) or (ii) entry into Hedge Agreements between an Affiliate of the Collateral Manager and the Issuer (“Hedge Transactions”). Such Principal Transactions and Hedge Transactions give rise to a conflict of interests with respect to the Collateral Manager. The Collateral Manager will provide written notice of any Principal Transaction or Hedge Transaction to the Issuer or to any agent appointed by the Issuer for this purpose and obtain the written consent of the Issuer or such agent prior to completion of such Principal Transaction or Hedge Transaction. The Collateral Manager may also effect client cross transactions where the Collateral Manager causes a transaction to be effected between the Issuer and another account advised by it or any of its Affiliates (“Client Cross Transactions”). In addition, with the prior authorization of the Issuer, which can be revoked at any time, the Collateral Manager may enter into agency cross transactions where it or any of its Affiliates acts as broker for the Issuer and for the other party to the transaction (“Agency Cross Transactions”), to the extent permitted by applicable law, in which case it or any such Affiliate will receive commissions from, and have a potentially conflicting division of loyalties and responsibilities regarding, both parties to the transaction. Although the Affiliates of the Collateral Manager anticipate that the commissions, mark-ups and mark-downs charged by the Affiliates will generally be competitive, the Collateral Manager or any of its Affiliates may have interests in such transactions that are adverse to those of the Issuer, such as an interest in obtaining favorable commission rates, mark-ups and mark-downs. In addition, other potential and actual conflicts of interest may arise in connection Client Cross Transactions or Agency Cross Transactions. There is no limitation or restriction on Sandler O’Neill Advisors or any of its Affiliates with regard to acting as collateral manager (or in a similar role), or in any other capacity, to other parties or persons. This and other future activities of the Collateral Manager and its Affiliates may give rise to additional conflicts of interest. Sandler O’Neill & Partners, L.P., an Affiliate of the Collateral Manager, will be entitled to payment by the Issuer of certain fees on the Closing Date in connection with the offering of the Notes. Conflicts of Interest Involving the Initial Purchasers and Placement Agents. Various potential and actual conflicts of interest may arise from the overall business and investment activities of each Initial Purchaser and each Placement Agent, their respective Affiliates (including their respective partners, directors, officers and employees (“Initial Purchaser Affiliates” and “Placement Agent Affiliates”)) and their respective clients, which include issuers of Collateral Debt Securities and their Affiliates. The following briefly summarizes some of these conflicts, but is not intended to be an exhaustive discussion of all potential conflicts. An Initial Purchaser, a Placement Agent, their respective Affiliates and Initial Purchaser Affiliates and Placement Agent Affiliates may have had in the past and may in the future have business relationships and dealings with one or more issuers of Collateral Debt Securities and their Affiliates and may own equity or debt securities issued by issuers of Collateral Debt Securities or their Affiliates. One or more of the Initial Purchasers, Placement 33
Page 1 and 2: OFFERING CIRCULAR U.S.$162,000,000
Page 3 and 4: _____________________ This Offering
Page 5 and 6: THE CO-ISSUERS HAVE TAKEN REASONABL
Page 7 and 8: PERSON MAY NOT (A) MAKE, OFFER OR I
Page 9 and 10: NOTICE TO RESIDENTS OF FINLAND THE
Page 11 and 12: OR INDIRECTLY, IN JAPAN OR TO A RES
Page 13 and 14: CHINA THROUGH A PUBLIC OFFERING OR
Page 15 and 16: SUMMARY The following summary is qu
Page 17 and 18: institutional buyers” (as defined
Page 19 and 20: accordance with the Priority of Pay
Page 21 and 22: on the Class C-1 Notes (based on th
Page 23 and 24: Redemption will be made, based on t
Page 25 and 26: A-1 Notes is reduced to zero, then
Page 27 and 28: Placement Agents. In each case, the
Page 29 and 30: “Security for the Notes— Descri
Page 31 and 32: Expense Reserve Account The Trustee
Page 33 and 34: RISK FACTORS Prospective Noteholder
Page 35 and 36: 4. Nature of the Bank Subordinated
Page 37 and 38: company’s surplus. In addition, c
Page 39 and 40: or the Collateral Manager makes any
Page 41 and 42: to deliver a certificate to the Tru
Page 43 and 44: termination date, the Issuer may be
Page 45: of any such Collateral Debt Securit
Page 49 and 50: The FASB has also issued Statement
Page 51 and 52: ules and regulations to implement i
Page 53 and 54: Shareholder’s equity: The Co-Issu
Page 55 and 56: Amounts payable on Certificated Not
Page 57 and 58: (ii) If, on any LIBOR Determination
Page 59 and 60: Collateral Debt Securities) may not
Page 61 and 62: If any SPV Trustee Expenses remain
Page 63 and 64: deposited into the Class A/B Reserv
Page 65 and 66: An Optional Notes Redemption will c
Page 67 and 68: Form, Denomination and Registration
Page 69 and 70: SECURITY FOR THE NOTES General The
Page 71 and 72: The Bank Subordinated Note Issuers
Page 73 and 74: Description of the Bank Capital Sec
Page 75 and 76: Redemption and Prepayments Each Cap
Page 77 and 78: espect to any dilution of the holde
Page 79 and 80: such case, its parent Affiliated De
Page 81 and 82: Each Affiliated Depository Institut
Page 83 and 84: of the Bank Subordinated Note Issue
Page 85 and 86: Bank Subordinated Note Issuer and s
Page 87 and 88: Distributions Distributions on the
Page 89 and 90: Capital Securities Issuer Securitie
Page 91 and 92: Corresponding Debentures will be su
Page 93 and 94: such Affiliated Insurance Instituti
Page 95 and 96: obligations and corporate expenses,
Page 97 and 98:
amount of interest payable for any
Page 99 and 100:
Events of Default, Waiver of Notice
Page 101 and 102:
The weighted average spread over LI
Page 103 and 104:
Disposition of the Collateral Debt
Page 105 and 106:
adversely affect in any material re
Page 107 and 108:
SECOND: to pay to the Collateral Ma
Page 109 and 110:
Notes are rated by such Rating Agen
Page 111 and 112:
? The Aggregate Principal Amount of
Page 113 and 114:
of the Swap Notional Amount with re
Page 115 and 116:
General Information Sandler O’Nei
Page 117 and 118:
Issuer or the Trustee in following
Page 119 and 120:
avoid termination of the Collateral
Page 121 and 122:
to the Priority of Payments, and in
Page 123 and 124:
the Trustee, the Collateral Adminis
Page 125 and 126:
IN RELIANCE ON EXCEPTIONS FROM THE
Page 127 and 128:
COMPANY” PROVIDED BY SECTION 3(c)
Page 129 and 130:
Global Note, (a) is neither a “U.
Page 131 and 132:
INVESTMENT COMPANY ACT OF 1940, AS
Page 133 and 134:
SATISFY THE REQUIREMENTS FOR RELIEF
Page 135 and 136:
Global Notes and Physical Notes Eac
Page 137 and 138:
only if (i) the Issuer has received
Page 139 and 140:
U.S. holders should consult with th
Page 141 and 142:
Sale, Redemption or other Dispositi
Page 143 and 144:
gains derived from the sale of Note
Page 145 and 146:
entity, 25% or more of the value of
Page 147 and 148:
their own legal advisors in determi
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“FSMA”)) received by it in conn
Page 151 and 152:
LISTING AND GENERAL INFORMATION 1.
Page 153 and 154:
ANNEX A GLOSSARY OF CERTAIN DEFINED
Page 155 and 156:
“Applicable Regulator”: With re
Page 157 and 158:
adequacy guidelines of the Federal
Page 159 and 160:
issuer of Collateral Debt Securitie
Page 161 and 162:
Account, exceeds (y) the sum of (wi
Page 163 and 164:
“Indenture”: The Indenture date
Page 165 and 166:
“Liquidation Distribution”: Upo
Page 167 and 168:
“Par Special Redemption Price”:
Page 169 and 170:
“Rating Condition”: Written con
Page 171 and 172:
outstanding that such obligations a
Page 173 and 174:
“United States Alien Holder”: A
Page 175 and 176:
Coverage Tests ....................
Page 177 and 178:
Upfront Payment ...................
Page 179:
MMCAPS FUNDING XVII, LTD. MMCAPS FU
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MMCapS XVII Final Offering Circular - Irish Stock Exchange

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