This excerpt taken from the SIRI 10-Q filed Nov 12, 2008.
[Form of Guarantee]
July 28, 2008
Ladies and Gentlemen:
In consideration of that certain Share Lending Agreement dated as of July 28, 2008 (hereinafter the Agreement) by and between Morgan Stanley Capital Services, Inc. (hereinafter MSCS) and Sirius Satellite Radio Inc. (hereinafter Sirius), Morgan Stanley, a Delaware corporation (hereinafter MS), hereby irrevocably and unconditionally guarantees to Sirius, with effect from the date of the Agreement, the due and punctual payment of all amounts payable by MSCS under the Agreement when the same shall become due and payable, whether on the date scheduled for payment, upon demand, upon declaration of termination or otherwise, in accordance with the terms of the Agreement and giving effect to any applicable grace period. Upon failure of MSCS punctually to pay any such amounts, and upon written demand by Sirius to MS at its address set forth in the signature block of this Guarantee (or to such other address as MS may specify in writing), MS agrees to pay or cause to be paid such amounts; provided that delay by Sirius in giving such demand shall in no event affect MSs obligations under this Guarantee.
MS hereby agrees that its obligations hereunder shall be unconditional and will not be discharged except by complete payment of the amounts payable under the Agreement, irrespective of any claim as to the Agreements validity, regularity or enforceability or the lack of authority of MSCS to execute or deliver the Agreement; or any change in or amendment to the Agreement; or any waiver or consent by Sirius with respect to any provisions thereof; or the absence of any action to enforce the Agreement, or the recovery of any judgment against MSCS or of any action to enforce a judgment against MSCS under the Agreement; or any similar circumstance which might otherwise constitute a legal or equitable discharge or defense of a guarantor generally.
MS hereby waives diligence, presentment, demand on MSCS for payment or otherwise (except as provided hereinabove), filing of claims, requirement of a prior proceeding against MSCS and protest or notice, except as provided for in the Agreement with respect to amounts payable by MSCS. If at any time payment under the Agreement is rescinded or must be otherwise restored or returned by Sirius upon the insolvency, bankruptcy or reorganization of MSCS or MS or otherwise, MSs obligations hereunder with respect to such payment shall be reinstated upon such restoration or return being made by Sirius.
MS represents to Sirius as of the date hereof that:
By accepting this Guarantee and entering into the Agreement, Sirius agrees that MS shall be subrogated to all rights of Sirius against MSCS in respect of any amounts paid by MS pursuant to this Guarantee, provided that MS shall be entitled to enforce or to receive any payment arising out of or based upon such right of subrogation only to the extent that it has paid all amounts payable by MSCS under the Agreement.
This Guarantee shall be governed by and construed in accordance with the laws of the State of New York. All capitalized terms not otherwise defined herein shall have the respective meanings assigned to them in the Agreement.