UNITED
STATES
SECURITIES
AND EXCHANGE COMMISSION
Washington,
DC 20549
FORM
8-K
CURRENT
REPORT PURSUANT TO
SECTION
13 OR 15(d) OF
THE
SECURITIES EXCHANGE ACT OF 1934
Date
of
report (Date of earliest event reported) August
17, 2005
FIRST
MARINER BANCORP
(Exact
name of Registrant as specified in Charter)
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Maryland
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000-21815
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52-1834860
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(State
or other Jurisdiction of
incorporation)
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(Commission
File
Number)
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(IRS
Employer Identification No.)
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3301
Boston Street, Baltimore, MD 21224
(Address
of Principal Executive Offices/Zip Code)
Registrant's
telephone number, including area code: (410)
342-2600
Not
Applicable
(Former
name or former address of Registrant, if changed since last report)
Check
the
appropriate box below if the Form 8-K filing is intended to simultaneously
satisfy the filing obligations of the registrant under any of the following
provisions:
rWritten
communications
pursuant to Rule 425 under the Securities Act (17 CFR 230.425)
rSoliciting
material
pursuant to Rule 14a-12 under the Exchange Act (17 CFR 240.14a-12)
rPre-commencement
communications pursuant to Rule 14d-2(b) under the Exchange Act (17 CFR
240.14d-2(b))
rPre-commencement
communications pursuant to Rule 13e-4(c) under the Exchange Act (17 CFR
240.13e-4(c))
INFORMATION
TO BE INCLUDED IN THE REPORT
Item
1.01. Entry
into a Material Definitive Agreement.
See
the
information reported in Item 2.03 of this Current Report on Form 8-K, which
is
incorporated herein by reference.
Item
2.03. Creation
of a Direct Financial Obligation or an Obligation Under an Off-Balance Sheet
Arrangement of a Registrant.
Introduction
On
August
17 and 18, 2005, First Mariner Bancorp (the “Company”) entered into several
agreements providing for the private placement of Floating Rate Capital
Securities (the “Capital Securities”) by its newly formed Delaware trust
subsidiary, Mariner Capital Trust VII (the “Trust”), to First
Tennessee Bank National Association
(the
“Purchaser”). The agreements provide for the Trust to sell $5,000,000 of Capital
Securities to the Purchaser and $155,000 of Floating Rate Common Securities
(the
“Common Securities” and collectively with the Capital Securities, the
“Securities”) to the Company, which sales were completed on August 18, 2005. The
Trust used the proceeds from the sales of the Securities to purchase the
Floating Rate Junior Subordinated Deferrable Interest Debentures due 2035
described below (the “Debentures”) from the Company on August 18, 2005.
The
Capital Securities have not been registered under the Securities Act of 1933,
as
amended, and may not be offered or sold in the United States absent registration
or an exemption from the registration requirements. This notice does not
constitute an offer to sell or the solicitation of an offer to buy the Capital
Securities.
The
principal agreements into which the Company has entered in connection with
these
transactions are briefly described below.
Placement
Agreement
On
August
17, 2005, the Company and the Trust entered into a Placement Agreement (the
“Placement Agreement”) with FTN
Financial Capital Markets and
Keefe, Bruyette & Woods, Inc. (the “Placement Agents”), who agreed to
arrange for the purchase of the Capital Securities by the Purchaser.
The
Placement Agreement provides for the sale by the Trust of the Capital Securities
to the Purchaser for a purchase price of $5,000,000. The Placement Agreement
provides that the Company will pay all costs and expenses incident to the
performance of the obligations of the Company and the Trust under the Placement
Agreement. The Placement Agreement requires the Company and the Trust to
indemnify the Placement Agents, the Purchaser and their affiliates, officers,
directors, and employees against certain losses, claims, damages, and
liabilities arising in connection with the sale of the Capital Securities.
Indenture
On
August
18, 2005, the Company entered into an Indenture (the “Indenture”) with
Wilmington Trust Company, as Trustee. The Indenture provides for the issuance
by
the Company of Debentures aggregating $5,155,000 in principal amount, which
Debentures were issued on August 18, 2005 and registered in the name of the
Institutional Trustee on behalf of the Trust. The Debentures bear
interest at a rate per annum of 5.76% through (but not including) December
15,
2005 and thereafter at a rate per annum equal to the 3-Month LIBOR plus 1.95%.
Interest
is payable on each March 15, June 15, September 15, and December 15. Beginning
on and after December 15, 2005, interest adjusts every three
months.
Under
the
Indenture, the Company has the option, so long as it is not in default under
certain specified provisions of the Indenture, at any time and from time
to
time, to defer the payment of interest on the Debentures for up to 20
consecutive quarterly interest payment periods. During any such extension
period, or while an event of default exists under the Indenture, or if the
Company is in default with respect to its payment obligations under the
Guarantee Agreement discussed below, the Indenture imposes restrictions on
the
Company’s ability to (i) declare or pay dividends or distributions on, or to
redeem, purchase, acquire or make a liquidation payment with respect to,
any of
its capital stock, or (ii) make payments of principal, interest or premium
on,
or repay, repurchase or redeem, any debt securities it may issue that rank
equal
or junior to the Debentures.
The
Debentures mature on September 15, 2035 and can be redeemed in whole or in
part
by the Company, at its option, at 100% of their principal amount plus accrued
and unpaid interest at any time on or after September 15, 2010 (the fifth
anniversary of the first interest payment date). During the occurrence and
continuance of a Capital Treatment Event, a Tax Event, or an Investment Company
Event as defined in the Indenture, the Company may also redeem the Debentures
in
full, at its option, at the Special Redemption Price as defined in the Indenture
(between 100% and 104.625% of their principal amount, depending on the date
of
redemption) plus accrued and unpaid interest. The payment of principal and
interest on the Debentures is subordinate and subject to the right of payment
of
all Senior Indebtedness of the Company as defined in the Indenture.
The
holders of at least 25% in aggregate principal amount of outstanding Debentures,
or the Trustee, may by notice to the Company (and in some cases also to the
Trustee) declare the principal amount of, and any premium and accrued interest
on, all of the Debentures due and payable immediately upon the occurrence
of
certain events of default specified in the Indenture.
The
Indenture requires the Company to indemnify and hold harmless the Trustee
and
its officers, agents, directors and employees against all losses, damages,
and
other liabilities arising out of or in connection with the acceptance or
administration of the Trust, to the extent such losses, damages or liabilities
are incurred without negligence, bad faith or willful misconduct on the part
of
the indemnified person.
Amended
and Restated Declaration of Trust
On
August
18, 2005, the Company, as Sponsor, Wilmington Trust Company, as Delaware
Trustee, Wilmington Trust Company, as Institutional Trustee, and Mark A.
Keidel
and Eugene A. Friedman, as Administrators, entered into an Amended and Restated
Declaration of Trust (the “Trust Agreement”). Each of the Administrators is an
officer of the Company.
The
Trust
Agreement provides for the issuance of the Securities by the Trust. Each
Security has a liquidation amount of $1,000. The Capital Securities have
an
aggregate liquidation amount of $5,000,000 and the Common Securities have
an
aggregate liquidation amount of $155,000. The Trust Agreement provides for
distributions to be paid on the Securities, based on the liquidation amount
of
the outstanding Securities, at the same rates and times as interest is payable
on the Debentures issued pursuant to the Indenture by the Company to the
Institutional Trustee.
Guarantee
Agreement
On
August
18, 2005, the Company, as Guarantor, entered into a Guarantee Agreement with
Wilmington Trust Company, as Guarantee Trustee, for the benefit of the holders
from time to time of the Capital Securities. Pursuant to the Guarantee
Agreement, the Company unconditionally agreed to pay (to the extent not paid
by
or on behalf of the Trust, and without duplication), amounts due and payable
under the Capital Securities, to the extent that the Trust has funds available
for such payment at the time, as well as all other costs, expenses and
liabilities (other than tax liabilities) of the Trust. The Company’s obligations
under the Guarantee Agreement are subordinate and junior in right of payment
to
all of the Company’s Senior Indebtedness as defined in the
Indenture.
Item
9.01. Financial
Statements and Exhibits.
(c)
Exhibits.
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4
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Indenture
dated as of August 18, 2005.
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Pursuant
to Regulation S-K Item 601(b)(4)(iii), the registrant agrees to
furnish a
copy of the Indenture to the Securities and Exchange Commission
upon
request.
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SIGNATURES
Pursuant
to the requirements of the Securities Exchange Act of 1934, the registrant
has
duly caused this report to be signed on its behalf by the undersigned hereunto
duly authorized.
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FIRST
MARINER BANCORP
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| Date: August
19, 2005 |
By: |
/s/ Joseph
A.
Cicero
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Joseph
A. Cicero
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President
and Chief Operating Officer |
EXHIBIT
INDEX
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Exhibit
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Description |
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4
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Indenture
dated as of August 18, 2005.
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Pursuant
to Regulation S-K Item 601(b)(4)(iii), the registrant agrees
to furnish a
copy of the Indenture to the Securities and Exchange Commission
upon
request.
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