exhibit10_13.htm


    EXHIBIT
10.13

      


       

      


       

      


       

      


       

      


       

      


       

      


       

      


       

      


       

      _________________________________________________

       

      [FORM
OF] GUARANTEE AGREEMENT

       

      BY
AND BETWEEN

       

      MICHIGAN
COMMERCE BANCORP LIMITED

       

      AND

       

      [THE
BANK OF NEW YORK MELLON CORPORATION]

       

      DATED
AS OF [____________ __, 2009]

       

      _________________________________________________

       


      
        
           


        

        
           


          
            

          

        

        
           


        

      


      


      GUARANTEE
AGREEMENT

       

      This
GUARANTEE AGREEMENT (this “Guarantee”),
dated as of ____________ __, 2009, is executed and delivered by MICHIGAN
COMMERCE BANCORP LIMITED, a Michigan corporation (the “Guarantor”),
and [The Bank of
New York Mellon Corporation ]  , a Delaware
corporation , as trustee (the “Guarantee
Trustee”), for the benefit of the Holders (as defined herein) from time
to time of the Trust-Preferred Securities (as defined herein) of [Capitol
Trust I] (the
“Trust”).

       

      WHEREAS,
CAPITOL BANCORP LTD., a bank holding company formed under Michigan law (“CBC”) has
issued certain [junior
subordinated debentures due 2027 ]  to the Trust which were
funded by the Trust’s issuance of certain trust-preferred securities
(collectively, the “Trust-Preferred
Securities”); and

       

      WHEREAS,
CBC is the sole owner of the Guarantor; and

       

      WHEREAS,
CBC and the Guarantor have entered into a Separation Agreement and Plan of
Distribution (the “Separation
Agreement”) whereby, subject to the terms and conditions thereof, CBC
will, in accordance with the Separation Agreement and subject to the terms and
conditions therein, distribute to CBC’s common stockholders 95.1% of the
common stock of the Guarantor (the “Distribution”)
on the date specified in the Separation Agreement; and

       

      WHEREAS,
in order to effectuate such Distribution without prejudice to the holders of the
Trust-Preferred Securities, the Guarantor is required to issue this Guarantee in
accordance with the terms set forth below.

       

      NOW,
THEREFORE, in connection with the Distribution, the Guarantor executes and
delivers this Guarantee for the benefit of the Holders.

       

      ARTICLE
1.

      DEFINITIONS AND
INTERPRETATION

       

      Section
1.1 Definitions and
Interpretation.

       

       Unless the context otherwise
requires: 

       

      (a)   capitalized
terms used in this Guarantee but not defined in the preamble above have the
respective meanings assigned to them in this Section
1.1;

       

      (b)   a term
defined anywhere in this Guarantee has the same meaning throughout;

       

      (c)   all
references to “the Guarantee” or “this Guarantee” are to this Guarantee as
modified, supplemented or amended from time to time;

       

      (d)   all
references in this Guarantee to “Articles” or “Sections” are to Articles or
Sections of this Guarantee, unless otherwise specified; and

       

      
        
          
          

        

        
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      (e)   a
reference to the singular includes the plural and vice versa.

       

      “Affiliate”
has the same meaning as given to that term in Rule 405 of the Securities Act of
1933, as amended, or any successor rule thereunder.

       

      “Beneficiaries”
means any Person to whom the Trust is or hereafter becomes indebted or
liable.

       

      “Corporate Trust
Office” means the office of the Guarantee Trustee at which the corporate
trust business of the Guarantee Trustee shall, at any particular time, be
principally administered, which office at the date of execution of this
Guarantee is located at [2
N. LaSalle Street, Suite 1020, Chicago, Illinois 60602]. 

       

      “Covered
Person” means any Holder of Trust-Preferred Securities.

       

      “Debenture
Documents” shall mean the  Indenture and the Guarantee
Agreement  executed by CBC and the Guarantee Trustee pursuant to the
issuance of the Debentures, in each case as supplemented or
amended.

       

      “Debentures”
means the debt securities of CBC designated as the [8.5% Subordinated Debentures due
2027] held by the Trust.

       

      “Event of
Default” has the meaning set forth in Section
2.4(a).

       

      “Guarantee
Payments” means the following payments or distributions, without
duplication, with respect to the Trust-Preferred Securities, to the extent not
paid or made by the Trust or CBC under the Debenture Documents: (i) any
accrued and unpaid distributions which are required to be paid on such
Trust-Preferred Securities, (ii) any amounts deemed payable by CBC with
respect to any Trust-Preferred Securities called for redemption by the Trust in
accordance with the Debenture Documents, and (iii) upon a voluntary or
involuntary liquidation, dissolution, winding-up or termination of the Trust
(other than in connection with the distribution of Debentures to the Holders of
the Trust-Preferred Securities in exchange therefor as provided in the Debenture
Documents), the lesser of (a) the aggregate of the liquidation amount and
all accrued and unpaid distributions on the Trust-Preferred Securities to the
date of payment, and (b) the amount of assets of the Trust remaining
available for distribution to Holders in liquidation of the Trust (in either
case, the “Liquidation Distribution”).

       

      “Guarantee
Trustee” means [The Bank
of New York Mellon Corporation], until a Successor Guarantee Trustee has
been appointed and has accepted such appointment pursuant to the terms of this
Guarantee and thereafter means each such Successor Guarantee
Trustee.

       

      “Guarantor”
means Michigan Commerce Bancorp Limited and each of its successors and
assigns.

       

      “Holder”
means any holder, as registered on the books and records of the Trust, of any
Trust-Preferred Securities; provided, however, that, in determining whether the
Holders of the requisite percentage of Trust-Preferred Securities have given any
request, notice, consent or 

       

      
        
          
          

        

        
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      waiver
hereunder, “Holder” shall not include CBC or the Guarantor or any Affiliate of
CBC or the Guarantor.

       

      “Indemnified
Person” means the Guarantee Trustee, any Affiliate of the Guarantee
Trustee, or any officers, directors, shareholders, members, partners, employees,
representatives, nominees, custodians or agents of the Guarantee
Trustee.

       

      “Indenture”
means the Indenture dated as of [December 18, 1997] between
the Guarantor and [The Bank of
New York Mellon Corporation], not in its individual capacity but solely
as trustee, and any indenture supplemental thereto pursuant to which the
Debentures are to be issued to the institutional trustee of the
Trust.

       

      “Liquidation
Distribution” has the meaning set forth in the definition of “Guarantee
Payments” herein.

       

      “Majority in
liquidation amount of the Trust-Preferred Securities” means the Holder(s)
of outstanding Trust-Preferred Securities, voting together as a class, but
not including the holder(s) of the common securities issued in connection
with the Debentures (the “Common
Securities”), of more than 50% of the aggregate liquidation amount
(including the stated amount that would be paid on redemption, liquidation or
otherwise, plus accrued and unpaid Distributions to the date upon which the
voting percentages are determined) of all  Holders entitled to
vote .

       

      “Obligations”
means any costs, expenses or liabilities (but not including liabilities related
to taxes) of the Trust other than obligations of the Trust to pay to holders of
any Trust-Preferred Securities the amounts due such holders pursuant to the
terms of the Trust-Preferred Securities.

       

      “Officer’s
Certificate” means, with respect to any Person, a certificate signed by
one Authorized Officer of such Person.  Any Officer’s Certificate
delivered with respect to compliance with a condition or covenant provided for
in this Guarantee shall include:

       

      (a)   a
statement that the officer signing the Officer’s Certificate has read the
covenant or condition and the definitions relating thereto;

       

      (b)   a brief
statement of the nature and scope of the examination or investigation undertaken
by the officer in rendering the Officer’s Certificate;

       

      (c)   a
statement that the officer has made such examination or investigation as, in
such officer’s opinion, is necessary to enable such officer to express an
informed opinion as to whether or not such covenant or condition has been
complied with; and

       

      (d)   a
statement as to whether, in the opinion of the officer, such condition or
covenant has been complied with.

       

      “Person”
means a legal person, including any individual, corporation, estate,
partnership, joint venture, association, joint stock company, limited liability
company, trust, unincorporated 

       

      
        
          
          

        

        
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      association,
or government or any agency or political subdivision thereof, or any other
entity of whatever nature.

       

      “Responsible
Officer” means, with respect to the Guarantee Trustee, any officer within
the Corporate Trust Office of the Guarantee Trustee including any Vice
President, Assistant Vice President, Secretary, Assistant Secretary or any other
officer of the Guarantee Trustee customarily performing functions similar to
those performed by any of the above designated officers and also, with respect
to a particular corporate trust matter, any other officer to whom such matter is
referred because of that officer’s knowledge of and familiarity with the
particular subject.

       

      “Successor
Guarantee Trustee” means a successor Guarantee Trustee possessing the
qualifications to act as Guarantee Trustee under Section
3.1.

       

      “Trust”
has the meaning set forth in the opening paragraph to this
Guarantee.

       

      “Trust-Preferred
Securities” has the meaning set forth in the recitals to this
Guarantee.

       

      ARTICLE
2.

      POWERS, DUTIES AND RIGHTS OF
GUARANTEE TRUSTEE

       

      Section
2.1 Powers
and Duties of the Guarantee Trustee.

       

      (a)    This
Guarantee shall be held by the Guarantee Trustee for the benefit of the Holders,
and the Guarantee Trustee shall not transfer this Guarantee to any Person except
a Holder exercising his or her rights pursuant to Section 4.4(b)
or to a Successor Guarantee Trustee on acceptance by such Successor Guarantee
Trustee of its appointment to act as Successor Guarantee
Trustee.   The right, title and interest of the Guarantee Trustee
shall automatically vest in any Successor Guarantee Trustee, and such vesting
and cessation of title shall be effective whether or not conveyancing documents
have been executed and delivered pursuant to the appointment of such Successor
Guarantee Trustee.

       

      (b)    If an
Event of Default actually known to a Responsible Officer of the Guarantee
Trustee has occurred and is continuing, the Guarantee Trustee shall enforce this
Guarantee for the benefit of the Holders. 

       

      (c)   The
Guarantee Trustee, before the occurrence of any Event of Default and after
curing all Events of Default that may have occurred, shall undertake to perform
only such duties as are specifically set forth in this Guarantee, and no implied
covenants shall be read into this Guarantee against the Guarantee
Trustee.  In case an Event of Default has occurred (that has not been
waived pursuant to Section 2.4) and
is actually known to a Responsible Officer of the Guarantee Trustee, the
Guarantee Trustee shall exercise such of the rights and powers vested in it by
this Guarantee, and use the same degree of care and skill in its exercise
thereof, as a prudent person would exercise or use under the circumstances in
the conduct of his or her own affairs.

       

      (d)   No
provision of this Guarantee shall be construed to relieve the Guarantee Trustee
from liability for its own negligent action, its own negligent failure to act,
or its own willful misconduct, except that:

       

      
        
          
          

        

        
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      (i)   prior to
the occurrence of any Event of Default and after the curing or waiving of all
such Events of Default that may have occurred:

       

      (A)   the
duties and obligations of the Guarantee Trustee shall be determined solely by
the express provisions of this Guarantee, and the Guarantee Trustee shall not be
liable except for the performance of such duties and obligations as are
specifically set forth in this Guarantee, and no implied covenants or
obligations shall be read into this Guarantee against the Guarantee Trustee;
and

       

      (B)   in the
absence of bad faith on the part of the Guarantee Trustee, the Guarantee Trustee
may conclusively rely, as to the truth of the statements and the correctness of
the opinions expressed therein, upon any certificates or opinions furnished to
the Guarantee Trustee and conforming to the requirements of this Guarantee; but
in the case of any such certificates or opinions that by any provision hereof
are specifically required to be furnished to the Guarantee Trustee, the
Guarantee Trustee shall be under a duty to examine the same to determine whether
or not they conform to the requirements of this Guarantee;

       

      (ii)   the
Guarantee Trustee shall not be liable for any error of judgment made in good
faith by a Responsible Officer of the Guarantee Trustee, unless it shall be
proved that such Responsible Officer of the Guarantee Trustee or the Guarantee
Trustee was negligent in ascertaining the pertinent facts upon which such
judgment was made;

       

      (iii)   the
Guarantee Trustee shall not be liable with respect to any action taken or
omitted to be taken by it in good faith in accordance with the written direction
of the Holders of not less than a Majority in liquidation amount of the
Trust-Preferred Securities relating to the time, method and place of conducting
any proceeding for any remedy available to the Guarantee Trustee, or relating to
the exercise of any trust or power conferred upon the Guarantee Trustee under
this Guarantee; and

       

      (iv)   no
provision of this Guarantee shall require the Guarantee Trustee to expend or
risk its own funds or otherwise incur personal financial liability in the
performance of any of its duties or in the exercise of any of its rights or
powers, if the Guarantee Trustee shall have reasonable grounds for believing
that the repayment of such funds is not reasonably assured to it under the terms
of this Guarantee or security and indemnity, reasonably satisfactory to the
Guarantee Trustee, against such risk or liability is not reasonably assured to
it.

       

      Section
2.2 Certain
Rights of Guarantee Trustee.

       

      (a)   Subject
to the provisions of Section
2.1:

       

      (i)   The
Guarantee Trustee may conclusively rely, and shall be fully protected in acting
or refraining from acting upon, any resolution, certificate, statement,
instrument, opinion, report, notice, request, direction, consent, order, bond,
debenture, 

       

      
        
          
          

        

        
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      note,
other evidence of indebtedness or other paper or document believed by it to be
genuine and to have been signed, sent or presented by the proper party or
parties.

       

      (ii)   Any
direction or act of the Guarantor contemplated by this Guarantee shall be
sufficiently evidenced by an Officer’s Certificate.

       

      (iii)   Whenever,
in the administration of this Guarantee, the Guarantee Trustee shall deem it
desirable that a matter be proved or established before taking, suffering or
omitting any action hereunder, the Guarantee Trustee (unless other evidence is
herein specifically prescribed) may, in the absence of bad faith on its part,
request and conclusively rely upon an Officer’s Certificate of the Guarantor
which, upon receipt of such request, shall be promptly delivered by the
Guarantor.

       

      (iv)   The
Guarantee Trustee shall have no duty to see to any recording, filing or
registration of any instrument (or any re-recording, refiling or re-registration
thereof).

       

      (v)   The
Guarantee Trustee may consult with counsel of its selection, and the advice or
opinion of such counsel with respect to legal matters shall be full and complete
authorization and protection in respect of any action taken, suffered or omitted
by it hereunder in good faith and in accordance with such advice or
opinion.  Such counsel may be counsel to the Guarantor or any of its
Affiliates and may include any of its employees.  The Guarantee
Trustee shall have the right at any time to seek instructions concerning the
administration of this Guarantee from any court of competent
jurisdiction.

       

      (vi)   The
Guarantee Trustee shall be under no obligation to exercise any of the rights or
powers vested in it by this Guarantee at the request or direction of any Holder,
unless such Holder shall have provided to the Guarantee Trustee such security
and indemnity, reasonably satisfactory to the Guarantee Trustee, against the
costs, expenses (including attorneys’ fees and expenses and the expenses of the
Guarantee Trustee’s agents, nominees or custodians) and liabilities that might
be incurred by it in complying with such request or direction, including such
reasonable advances as may be requested by the Guarantee Trustee; provided,
however, that nothing contained in this Section 2.2(a)(vi) shall
relieve the Guarantee Trustee, upon the occurrence of an Event of Default, of
its obligation to exercise the rights and powers vested in it by this
Guarantee.

       

      (vii)   The
Guarantee Trustee shall not be bound to make any investigation into the facts or
matters stated in any resolution, certificate, statement, instrument, opinion,
report, notice, request, direction, consent, order, bond, debenture, note, other
evidence of indebtedness or other paper or document, but the Guarantee Trustee,
in its discretion, may make such further inquiry or investigation into such
facts or matters as it may see fit.

       

      (viii)   The
Guarantee Trustee may execute any of the trusts or powers hereunder or perform
any duties hereunder either directly or by or through agents, nominees,
custodians or attorneys, and the Guarantee Trustee shall not be responsible for


       

      
        
          
          

        

        
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      any
misconduct or negligence on the part of any agent or attorney appointed with due
care by it hereunder.

       

      (ix)   Any
action taken by the Guarantee Trustee or its agents hereunder shall bind the
Holders of the Trust-Preferred Securities, and the signature of the Guarantee
Trustee or its agents alone shall be sufficient and effective to perform any
such action.  No third party shall be required to inquire as to the
authority of the Guarantee Trustee to so act or as to its compliance with any of
the terms and provisions of this Guarantee, both of which shall be conclusively
evidenced by the Guarantee Trustee’s or its agent’s taking such
action.

       

      (x)   Whenever
in the administration of this Guarantee the Guarantee Trustee shall deem it
desirable to receive instructions with respect to enforcing any remedy or right
or taking any other action hereunder, the Guarantee Trustee (i) may request
instructions from the Holders of a Majority in liquidation amount of the
Trust-Preferred Securities, (ii) may refrain from enforcing such remedy or right
or taking such other action until such instructions are received, and (iii)
shall be protected in conclusively relying on or acting in accordance with such
instructions.

       

      (xi)   The
Guarantee Trustee shall not be liable for any action taken, suffered, or omitted
to be taken by it in good faith, without negligence, and reasonably believed by
it to be authorized or within the discretion or rights or powers conferred upon
it by this Guarantee.

       

      (b)   No
provision of this Guarantee shall be deemed to impose any duty or obligation on
the Guarantee Trustee to perform any act or acts or exercise any right, power,
duty or obligation conferred or imposed on it, in any jurisdiction in which it
shall be illegal or in which the Guarantee Trustee shall be unqualified or
incompetent in accordance with applicable law to perform any such act or acts or
to exercise any such right, power, duty or obligation.  No permissive
power or authority available to the Guarantee Trustee shall be construed to be a
duty.

       

      Section
2.3 Not
Responsible for Recitals or Issuance of Guarantee.

       

      The
recitals contained in this Guarantee shall be taken as the statements of the
Guarantor, and the Guarantee Trustee does not assume any responsibility for
their correctness.  The Guarantee Trustee makes no representation as
to the validity or sufficiency of this Guarantee.

       

      Section
2.4 Events
of Default; Waiver.

       

      (a)   An Event
of Default under this Guarantee will occur upon the failure of the Guarantor to
perform any of its payment or other obligations hereunder.

       

      (b)   The
Holders of a Majority in liquidation amount of the Trust-Preferred Securities
may, voting or consenting as a class, on behalf of the Holders of all of the
Trust-Preferred Securities, waive any past Event of Default and its
consequences.  Upon such waiver, any such Event of Default shall cease
to exist, and shall be deemed to have been cured, for every purpose of this
Guarantee, but no such waiver shall extend to any subsequent or other default or
Event of Default or impair any right consequent thereon.

       

      
        
          
          

        

        
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      Section
2.5 Events
of Default; Notice.

       

      (a)    The
Guarantee Trustee shall, within 90 days after the occurrence of an Event of
Default, transmit by mail, first class postage prepaid, to the Holders and the
Guarantor, notices of all Events of Default actually known to a Responsible
Officer of the Guarantee Trustee, unless such defaults have been cured before
the giving of such notice, provided, however, that the Guarantee Trustee shall
be protected in withholding such notice if and so long as a Responsible Officer
of the Guarantee Trustee in good faith determines that the withholding of such
notice is in the interests of the Holders. 

       

      (b)    The
Guarantee Trustee shall not be deemed to have knowledge of any Event of Default
unless the Guarantee Trustee shall have received written notice from the
Guarantor or a Holder (except in the case of a payment default), or a
Responsible Officer of the Guarantee Trustee charged with the administration of
this Guarantee shall have obtained actual knowledge thereof. 

       

      ARTICLE
3.

      GUARANTEE
TRUSTEE

       

      Section
3.1 Guarantee
Trustee; Eligibility.

       

      (a)   There
shall at all times be a Guarantee Trustee which shall:

       

      (i)   not be an
Affiliate of the Guarantor, and

       

      (ii)   be a
corporation organized and doing business under the laws of the United States of
America or any State or Territory thereof or of the District of Columbia, or
Person authorized under such laws to exercise corporate trust powers, having a
combined capital and surplus of at least 50 million U.S. dollars ($50,000,000),
and subject to supervision or examination by Federal, State, Territorial or
District of Columbia authority.  If such corporation publishes reports
of condition at least annually, pursuant to law or to the requirements of the
supervising or examining authority referred to above, then, for the purposes of
this Section 3.1(a)(ii), the
combined capital and surplus of such corporation shall be deemed to be its
combined capital and surplus as set forth in its most recent report of condition
so published.

       

      (b)   If at any
time the Guarantee Trustee shall cease to be eligible to so act under Section 3.1(a), the
Guarantee Trustee shall immediately resign in the manner and with the effect set
out in Section
3.2(c).

       

      (c)   If the
Guarantee Trustee has or shall acquire any “conflicting interest” within the
meaning of Section 310(b) of the Trust Indenture Act, the Guarantee Trustee
shall either eliminate such interest or resign to the extent and in the manner
provided by, and subject to this Guarantee.

       

      
        
          
          

        

        
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      Section
3.2 Appointment,
Removal and Resignation of Guarantee Trustee.

       

      (a)   Subject
to Section 3.2(b), the
Guarantee Trustee may be appointed or removed without cause at any time by the
Guarantor except during an Event of Default.

       

      (b)   The
Guarantee Trustee shall not be removed in accordance with Section 3.2(a) until a
Successor Guarantee Trustee has been appointed and has accepted such appointment
by written instrument executed by such Successor Guarantee Trustee and delivered
to the Guarantor.

       

      (c)   The
Guarantee Trustee appointed to office shall hold office until a Successor
Guarantee Trustee shall have been appointed or until its removal or
resignation.  The Guarantee Trustee may resign from office (without
need for prior or subsequent accounting) by an instrument in writing executed by
the Guarantee Trustee and delivered to the Guarantor, which resignation shall
not take effect until a Successor Guarantee Trustee has been appointed and has
accepted such appointment by an instrument in writing executed by such Successor
Guarantee Trustee and delivered to the Guarantor and the resigning Guarantee
Trustee.

       

      (d)   If no
Successor Guarantee Trustee shall have been appointed and accepted appointment
as provided in this Section 3.2
within 60 days after delivery of an instrument of removal or resignation, the
Guarantee Trustee resigning or being removed may petition any court of competent
jurisdiction for appointment of a Successor Guarantee Trustee.  Such
court may thereupon, after prescribing such notice, if any, as it may deem
proper, appoint a Successor Guarantee Trustee.

       

      (e)   No
Guarantee Trustee shall be liable for the acts or omissions to act of any
Successor Guarantee Trustee.

       

      (f)   Upon
termination of this Guarantee or removal or resignation of the Guarantee Trustee
pursuant to this Section 3.2, the
Guarantor shall pay to the Guarantee Trustee all amounts owing to the Guarantee
Trustee under Section 7.2 and
Section 7.3
accrued to the date of such termination, removal or resignation.

       

      ARTICLE
4.

      GUARANTEE

       

       Section
4.1 Guarantee. 

       

      The
Guarantor irrevocably and unconditionally agrees to pay in full to the Holders
the Guarantee Payments (without duplication of amounts theretofore paid by the
Trust), as and when due, regardless of any defense (except the defense of
payment by the Trust), right of set-off or counterclaim that the Trust may have
or assert.  The Guarantor’s obligation to make a Guarantee Payment may
be satisfied by direct payment of the required amounts by the Guarantor to the
Holders or by causing the Trust or CBC to pay such amounts to the
Holders.

       

      
        
          
          

        

        
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      Section
4.2 Waiver
of Notice and Demand.

       

      The
Guarantor hereby waives notice of acceptance of this Guarantee and of any
liability to which it applies or may apply, presentment, demand for payment, any
right to require a proceeding first against the Trust or any other Person before
proceeding against the Guarantor, protest, notice of nonpayment, notice of
dishonor, notice of redemption and all other notices and demands.

       

      Section
4.3 Obligations
Not Affected.

       

      The
obligations, covenants, agreements and duties of the Guarantor under this
Guarantee shall in no way be affected or impaired by reason of the happening
from time to time of any of the following:

       

      (a)   the
release or waiver, by operation of law or otherwise, of the performance or
observance by the Trust of any express or implied agreement, covenant, term or
condition relating to the Trust-Preferred Securities to be performed or observed
by the Trust;

       

      (b)   the
extension of time for the payment by the Trust of all or any portion of any sums
payable under the terms of the Trust-Preferred Securities or the extension of
time for the performance of any other obligation under, arising out of, or in
connection with, the Trust-Preferred Securities (other than an extension of time
for payment of all or any portion of any sums payable that result from the
extension of any interest payment period on the Debentures or any extension of
the maturity of the Debentures permitted by the Debenture
Documents);

       

      (c)   any
failure, omission, delay or lack of diligence on the part of the Holders to
enforce, assert or exercise any right, privilege, power or remedy conferred on
the Holders pursuant to the terms of the Trust-Preferred Securities, or any
action on the part of the Trust granting indulgence or extension of any
kind;

       

      (d)   the
voluntary or involuntary liquidation, dissolution, sale of any collateral,
receivership, insolvency, bankruptcy, assignment for the benefit of creditors,
reorganization, arrangement, composition

       

      (e)   or
readjustment of debt of, or other similar proceedings affecting, the Trust or
any of the assets of the Trust;

       

      (f)   any
invalidity of, or defect or deficiency in, the Trust-Preferred
Securities;

       

      (g)   the
settlement or compromise of any obligation guaranteed hereby or hereby incurred;
or any other circumstance whatsoever that might otherwise constitute a legal or
equitable
discharge or defense of a guarantor, it being the intent of this Section 4.3 that
the obligations of the Guarantor hereunder shall be absolute and unconditional
under any and all circumstances.  There shall be no obligation of the
Holders to give notice to, or obtain consent of, the Guarantor with respect to
the happening of any of the foregoing.

       

      
        
          
          

        

        
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      Section
4.4 Rights
of Holders.

       

      (a)   The
Holders of a Majority in liquidation amount of the Trust-Preferred Securities
have the right to direct the time, method and place of conducting any proceeding
for any remedy available to the Guarantee Trustee in respect of this Guarantee
or to direct the exercise of any trust or power conferred upon the Guarantee
Trustee under this Guarantee; provided, however, that (subject to Section 2.1) the
Guarantee Trustee shall have the right to decline to follow any such direction
if the Guarantee Trustee being advised by counsel determines that the action or
proceeding so directed may not lawfully be taken or if the Guarantee Trustee in
good faith by its board of directors or trustees, executive committees or a
trust committee of directors or trustees and/or Responsible Officers shall
determine that the action or proceedings so directed would  subject
the Guarantee Trustee  to personal liability.

       

      (b)    Any
Holder may institute a legal proceeding directly against the Guarantor to
enforce the Guarantee Trustee’s rights under this Guarantee, without first
instituting a legal proceeding against the Trust, the Guarantee Trustee or any
other Person.   The Guarantor waives any right or remedy to require
that any such action be brought first against the Trust, the Guarantee Trustee
or any other Person before so proceeding directly against the
Guarantor.

       

      Section
4.5 Guarantee
of Payment.

       

      This
Guarantee creates a guarantee of payment and not of collection.

       

      Section
4.6 Subrogation.

       

       The
Guarantor shall be subrogated to all (if any) rights of the Holders against
the Trust and CBC in respect of any amounts paid to such Holders by the
Guarantor under this Guarantee; provided, however, that the Guarantor shall
not (except to the extent required by mandatory provisions of law) be entitled
to enforce or exercise any right that it may acquire by way of subrogation or
any indemnity, reimbursement or other agreement, in all cases as a result of
payment under this Guarantee, if, after giving effect to any such payment, any
amounts are due and unpaid under this Guarantee.  If any amount shall
be paid to the Guarantor in violation of the preceding sentence, the Guarantor
agrees to hold such amount in trust for the Holders and to pay over such amount
to the Holders.

       

      Section
4.7 Independent
Obligations.

       

      The
Guarantor acknowledges that its obligations hereunder are independent of the
obligations of the Trust and CBC with respect to the Trust-Preferred Securities
and that the Guarantor shall be liable as principal and as debtor hereunder to
make Guarantee Payments pursuant to the terms of this Guarantee notwithstanding
the occurrence of any event referred to in subsections (a) through (g),
inclusive, of Section 4.3
hereof.

       

      
        Section
4.8 Enforcement
by a Beneficiary.

         

        A
Beneficiary may enforce the obligations of the Guarantor contained in Section 1.1
directly against the Guarantor and the Guarantor waives any right or remedy to
require that any action be brought against the Trust or any other person or
entity before proceeding against the 

         

      

      
        
          
          

        

        
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      Guarantor.  The
Guarantor shall be subrogated to all rights (if any) of any Beneficiary against
the Trust in respect of any amounts paid to the Beneficiaries by the Guarantor
under this Guarantee; provided, however, that the Guarantor shall not (except to
the extent required by mandatory provisions of law) be entitled to enforce or
exercise any rights that it may acquire by way of subrogation or any indemnity,
reimbursement or other agreement, in all cases as a result of payment under this
Guarantee, if at the time of any such payment, and after giving effect to such
payment, any amounts are due and unpaid under this Guarantee.

       

      
      

      ARTICLE
5.

      LIMITATION OF TRANSACTIONS;
SUBORDINATION

       

      Section
5.1 Limitation
of Transactions.

       

      So long
as any Trust-Preferred Securities remain outstanding, if (a) there shall have
occurred and be continuing an Event of Default or there shall have occurred and
be continuing a default applicable to the Trust or CBC under the Debenture
Documents (a “CBC
Default”) or (b) CBC or the Trust shall have selected an extension
of any payment obligation under any Debenture Document (each, an “Extension
Period”) and such period, or any extension thereof, shall have commenced
and be continuing, then the Guarantor shall not and shall not permit any
Affiliate to (x) declare or pay any dividends or distributions on, or redeem,
purchase, acquire, or make a liquidation payment with respect to, any of the
Guarantor’s or such Affiliate’s capital stock (other than payments of dividends
or distributions to the Guarantor) or make any guarantee payments with respect
to the foregoing;
provided, however, that a dividend distribution in the form of capital
stock of a subsidiary of the Guarantor paid on or with respect to the capital
stock of the Guarantor is permitted if the subsidiary guarantees the
Guarantor's obligations hereunder  prior to such dividend
distribution , or (y) make any payment of principal of or interest or
premium, if any, on or repay, repurchase or redeem any debt securities of the
Guarantor or any Affiliate (other than, with respect to clauses (x) and (y)
above, (i) repurchases, redemptions or other acquisitions of shares of
capital stock of the Guarantor in connection with any employment contract,
benefit plan or other similar arrangement with or for the benefit of one or more
employees, officers, directors or consultants, in connection with a dividend
reinvestment or stockholder stock purchase plan or in connection with the
issuance of capital stock of the Guarantor (or securities convertible into or
exercisable for such capital stock) as consideration in an acquisition
transaction entered into prior to the occurrence of the Event of Default, CBC
Default or Extension Period, as applicable, (ii) as a result of any
exchange or conversion of any class or series of the Guarantor’s capital stock
(or any capital stock of a subsidiary of the Guarantor) for any class or series
of the Guarantor’s capital stock or of any class or series of the Guarantor’s
indebtedness for any class or series of the Guarantor’s capital stock,
(iii) the purchase of fractional interests in shares of the Guarantor’s
capital stock pursuant to the conversion or exchange provisions of such capital
stock or the security being converted or exchanged, (iv) any declaration of
a dividend in connection with any stockholders’ rights plan, or the issuance of
rights, stock or other property under any stockholders’ rights plan, or the
redemption or repurchase of rights pursuant thereto, (v) any dividend in
the form of stock, warrants, options or other rights where the dividend stock or
the stock issuable upon exercise of such warrants, options or other rights is
the same stock as that on which the dividend is being paid or ranks pari passu with or junior to
such stock and any cash payments in lieu of fractional shares issued in
connection therewith, or (vi) payments under this Guarantee).

       

      
        
          
          

        

        
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      Section
5.2 Ranking.

       

      This
Guarantee will constitute an unsecured obligation of the Guarantor and will rank
subordinate and junior in right of payment to all present and future
indebtedness of the Guarantor.  The right of the Guarantor to
participate in any distribution of assets of any of its subsidiaries upon any
such subsidiary’s liquidation or reorganization or otherwise is subject to the
prior claims of creditors of that subsidiary, except to the extent the Guarantor
may itself be recognized as a creditor of that
subsidiary.  Accordingly, the Guarantor’s obligations under this
Guarantee will be effectively subordinated to all existing and future
liabilities of the Guarantor’s subsidiaries, and claimants should look only to
the assets of the Guarantor for payments hereunder.  This Guarantee
does not limit the incurrence or issuance of other secured or unsecured debt of
the Guarantor under any indenture that the Guarantor may enter into in the
future or otherwise.

       

      ARTICLE
6.

      TERMINATION

       

      Section
6.1 Termination.

       

      This
Guarantee shall terminate as to the Trust-Preferred Securities (i) upon
full payment in connection with a complete redemption of all Trust-Preferred
Securities then outstanding, (ii) upon the distribution of all of the
Debentures to the Holders of all of the Trust-Preferred Securities or
(iii) upon full payment of the amounts payable in accordance with the
Debenture Documents upon dissolution of the Trust.  This Guarantee
will continue to be effective or will be reinstated, as the case may be, if at
any time any Holder must restore payment of any sums paid under the
Trust-Preferred Securities or under this Guarantee.

       

      ARTICLE
7.

      INDEMNIFICATION

       

      Section
7.1 Exculpation.

       

      (a)   No
Indemnified Person shall be liable, responsible or accountable in damages or
otherwise to the Guarantor or any Covered Person for any loss, damage or claim
incurred by reason of any act or omission performed or omitted by such
Indemnified Person in good faith in accordance with this Guarantee and in a
manner that such Indemnified Person reasonably believed to be within the scope
of the authority conferred on such Indemnified Person by this Guarantee or by
law, except that an Indemnified Person shall be liable for any such loss, damage
or claim incurred by reason of such Indemnified Person’s negligence or willful
misconduct with respect to such acts or omissions.

       

      (b)   An
Indemnified Person shall be fully protected in relying in good faith upon the
records of the Trust or the Guarantor and upon such information, opinions,
reports or statements presented to the Trust or the Guarantor by any Person as
to matters the Indemnified Person reasonably believes are within such other
Person’s professional or expert competence and who, if selected by such
Indemnified Person, has been selected with reasonable care by such Indemnified
Person, including information, opinions, reports or statements as to the value
and 

       

      
        
          
          

        

        
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       amount
of the assets, liabilities, profits, losses, or any other facts pertinent to the
existence and amount of assets from which Distributions to Holders might
properly be paid .

       

      Section
7.2 Indemnification.

       

      (a)   The
Guarantor agrees to indemnify each Indemnified Person for, and to hold each
Indemnified Person harmless against, any and all loss, liability, damage, claim
or expense incurred without negligence or willful misconduct on the part of the
Indemnified Person, arising out of or in connection with the acceptance or
administration of this Agreement , including, but not limited to, the
costs and expenses (including reasonable legal fees and expenses) of the
Indemnified Person defending itself against, or investigating, any claim or
liability in connection with the exercise or performance of any of the
Indemnified Person’s powers or duties hereunder.  The obligation to
indemnify as set forth in this Section 7.2 shall
survive the resignation or removal of the Guarantee Trustee and the termination
of this Guarantee.

       

      (b)   Promptly
after receipt by an Indemnified Person under this Section 7.2 of
notice of the commencement of any action, such Indemnified Person will, if a
claim in respect thereof is to be made against the Guarantor under this Section 7.2,
notify the Guarantor in writing of the commencement thereof; but the failure so
to notify the Guarantor (i) will not relieve the Guarantor from liability
under paragraph (a) above unless and to the extent that the Guarantor did not
otherwise learn of such action and such failure results in the forfeiture by the
Guarantor of substantial rights and defenses and (ii) will not, in any
event, relieve the Guarantor from any obligations to any Indemnified Person
other than the indemnification obligation provided in paragraph (a)
above.  The Guarantor shall be entitled to appoint counsel of the
Guarantor’s choice at the Guarantor’s expense to represent the Indemnified
Person in any action for which indemnification is sought (in which case the
Guarantor shall not thereafter be responsible for the fees and expenses of any
separate counsel retained by the Indemnified Person or Persons except as set
forth below); provided, however, that such counsel shall be reasonably
satisfactory to the Indemnified Person.  Notwithstanding the
Guarantor’s election to appoint counsel to represent the Guarantor in an action,
the Indemnified Person shall have the right to employ separate counsel
(including local counsel), and the Guarantor shall bear the reasonable fees,
costs and expenses of such separate counsel if (i) the use of counsel
chosen by the Guarantor to represent the Indemnified Person would present such
counsel with a conflict of interest, (ii) the actual or potential
defendants in, or targets of, any such action include both the Indemnified
Person and the Guarantor and the Indemnified Person shall have reasonably
concluded that there may be legal defenses available to it and/or other
Indemnified Person(s) which are different from or additional to those available
to the Guarantor, (iii) the Guarantor shall not have employed counsel
satisfactory to the Indemnified Person to represent the Indemnified Person
within a reasonable time after notice of the institution of such action or
(iv) the Guarantor shall authorize the Indemnified Person to employ
separate counsel at the expense of the Guarantor.  The Guarantor will
not, without the prior written consent of the Indemnified Person, settle or
compromise or consent to the entry of any judgment with respect to any pending
or threatened claim, action, suit or proceeding in respect of which
indemnification or contribution may be sought hereunder (whether or not the
Indemnified Person is the actual or potential  party to such
claim or action) unless such settlement, compromise or consent includes


       

      
        
          
          

        

        
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      an
unconditional release of  such Indemnified Person from all liability
arising out of such claim, action, suit or proceeding.

       

      Section
7.3 Compensation;
Reimbursement of Expenses.

       

      The
Guarantor agrees:

       

      (a)   to pay to
the Guarantee Trustee from time to time such compensation for all services
rendered by it hereunder as the parties shall agree to from time to time (which
compensation shall not be limited by any provision of law in regard to the
compensation of a trustee of an express trust); and

       

      (b)   except as
otherwise expressly provided herein, to reimburse the Guarantee Trustee upon
request for all reasonable expenses, disbursements and advances incurred or made
by it in accordance with any provision of this Guarantee (including the
reasonable compensation and the expenses and disbursements of its agents and
counsel), except any such expense, disbursement or advance as may be
attributable to its negligence or willful misconduct.

       

      For
purposes of clarification, this Section 7.3 does
not contemplate the payment by the Guarantor of acceptance or annual
administration fees owing to the Guarantee Trustee for services to be provided
by the Guarantee Trustee under this Guarantee.  The provisions of this
Section 7.3 shall
survive the resignation or removal of the Guarantee Trustee and the termination
of this Guarantee.

       

      ARTICLE
8.

      MISCELLANEOUS

       

      Section
8.1 Successors
and Assigns.

       

      All
guarantees and agreements contained in this Guarantee shall bind the successors,
assigns, receivers, trustees and representatives of the Guarantor and shall
inure to the benefit of the Holders of the Trust-Preferred Securities then
outstanding.  Except in connection with any merger or consolidation of
the Guarantor with or into another entity or any sale, transfer or lease of the
Guarantor’s assets to another entity, in each case, to the extent permitted
under the Indenture, the Guarantor may not assign its rights or delegate its
obligations under this Guarantee without the prior approval of the Holders of at
least a Majority in liquidation amount of the Trust-Preferred
Securities.

       

      Section
8.2 Amendments.

       

      Except
with respect to any changes that do not adversely affect the rights of Holders
of the Trust-Preferred Securities in any material respect (in which case no
consent of Holders will be required), this Guarantee may be amended only with
the prior approval of the Holders of not less than a Majority in liquidation
amount of the Trust-Preferred Securities.  The provisions of the
Declaration with respect to amendments thereof apply to the giving of such
approval.

       

      
        
          
          

        

        
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      Section
8.3 Notices.

       

      All
notices provided for in this Guarantee shall be in writing, duly signed by the
party giving such notice, and shall be delivered, telecopied or mailed by first
class mail, as follows:

       

      
        	
                 (a)
      If given to the Guarantee Trustee, at the Guarantee Trustee’s mailing
      address set forth below (or such other address as the Guarantee Trustee
      may give notice of to the Holders and the
Guarantor): 

                 

                [The
      Bank of New York Mellon Corporation

                2
      N. LaSalle Street, Suite 1020

                Chicago,
      IL 60602]

                Attention:
      [__________]

                Telecopy:  [__________]

                 

              
	
                ( b)
      If given to the Guarantor, at the Guarantor’s mailing address set forth
      below (or such other address as the Guarantor may give notice of to the
      Holders and to the Guarantee Trustee): 

                 

                Michigan
      Commerce Bancorp Limited

                222
      Washington Square North, Suite One

                Lansing,
      Michigan 48933

                Attention:
      [__________]

                Telecopy:
      [__________]

                 

              
	
                 (c)
      If given to any Holder, at the address set forth on the books and records
      of the Trust. 

                 

                All
      such notices shall be deemed to have been given when received in person,
      telecopied with receipt confirmed, or mailed by first class mail, postage
      prepaid, except that if a notice or other document is refused delivery or
      cannot be delivered because of a changed address of which no notice was
      given, such notice or other document shall be deemed to have been
      delivered on the date of such refusal or inability to
    deliver.

              


      

      


      Section
8.4 Benefit.

       

      This
Guarantee is solely for the benefit of the Beneficiaries and, subject to Section 2.1, is
not separately transferable from the Trust-Preferred Securities.

       

      Section
8.5 Governing
Law.

       

      THIS
GUARANTEE SHALL BE GOVERNED BY, AND CONSTRUED AND INTERPRETED IN ACCORDANCE
WITH, THE LAW OF THE STATE OF NEW YORK, WITHOUT REGARD TO CONFLICT OF LAWS
PRINCIPLES THEREOF (OTHER THAN SECTION 5-1401 OF THE NEW YORK GENERAL
OBLIGATIONS LAW).

       

      
        
          
          

        

        
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      Section
8.6 Counterparts.

       

      This
Guarantee may be executed in one or more counterparts, each of which shall be an
original, but all of which taken together shall constitute one and the same
instrument.

       

      Section
8.7 Separability.

       

      In case
one or more of the provisions contained in this Guarantee shall for any reason
be held to be invalid, illegal or unenforceable in any respect, such invalidity,
illegality or unenforceability shall not affect any other provisions of this
Guarantee, but this Guarantee shall be construed as if such invalid or illegal
or unenforceable provision had never been contained herein.

       

      


      Signatures
appear on the following page


      
        
           


        

        
          18

          
            

          

        

        
           


        

      


      This
GUARANTEE is executed as of the day and year first above written.

       

      MICHIGAN
COMMERCE BANCORP LIMITED,

      as
Guarantor

      


      By:
_______________________________                                                                

      Name:

      Title:

      


      


      


      [THE
BANK OF NEW YORK MELLON CORPORATION ] , as Guarantee Trustee

      


      By: _______________________________                                                               

      Name:

      Title:


      
        
           


        

        
          19