GUARANTEE OF XXXXXXX XXXXX & CO., INC.
FOR VALUE RECEIVED, receipt of which is hereby acknowledged, XXXXXXX
XXXXX & CO., INC., a corporation duly organized and existing under the laws of
the State of Delaware ("ML & Co."), hereby unconditionally guarantees to
WILMINGTON TRUST COMPANY, a Delaware corporation, in its capacity as
Subordination Agent on behalf of the Trustee under the Pass Through Trust
Agreement dated as of September 25, 1997 between Wilmington Trust Company and
Continental Airlines, Inc., as supplemented by the Supplement No. 2002-1G-1-O
dated as of March 25, 2002, (the "Company"), the due and punctual payment of any
and all amounts payable by XXXXXXX XXXXX CAPITAL SERVICES, INC., a corporation
organized under the laws of the State of Delaware ("MLCS"), under the
Transaction evidenced by the Confirmation dated as of March 25, 2002 attached
hereto executed pursuant to the ISDA Master Agreement between the Company and
MLCS, dated as of March 25, 2002 (together with the Schedule and Confirmation
attached thereto the "Agreement"), including, in the case of default, interest
on any amount due, when and as the same shall become due and payable, whether on
the scheduled payment dates, at maturity, upon declaration of termination or
otherwise, according to the terms thereof. In case of the failure of MLCS
punctually to make any such payment, ML & Co. hereby agrees to make such
payment, or cause such payment to be made. The Company agrees to demand payment
from ML & Co., provided, however, that delay by the Company in giving such
demand shall in no event affect ML & Co.'s obligations under this Guarantee.
This Guarantee is a guarantee of payment and not of collection. This Guarantee
shall remain in full force and effect or shall be reinstated (as the case may
be) if at any time any payment guaranteed hereunder, in whole or in part, is
rescinded or must otherwise be returned by the Company upon the insolvency,
bankruptcy or reorganization of MLCS or otherwise, all as though such payment
had not been made.
ML & Co. hereby agrees that its obligations hereunder shall be
absolute and unconditional, irrespective of the (i) validity, regularity or
enforceability of the Agreement; (ii) the absence of any action to enforce the
same; (iii) any waiver or consent by the Company concerning any provisions
thereof; (iv) any amendment of any provision of the Agreement; (v) the rendering
of any judgment against MLCS or any action to enforce the same; (vi) any
insolvency, bankruptcy, reorganization or dissolution, or any proceeding of
MLCS, including without limitation, rejection of MLCS's payment obligations
under the Agreement in such bankruptcy; (vii) any waiver of or consent to any
departure from or failure to enforce any other guarantee for any or all of
MLCS's payment obligations under the Agreement; or (viii) any other
circumstances that might otherwise constitute a legal or equitable discharge of
a guarantor or a defense of a guarantor. ML & Co. covenants that this guarantee
will not be discharged except by complete payment of the amounts payable under
the Agreement. This Guarantee shall continue to be effective if MLCS merges or
consolidates with or into another entity, loses its separate legal identity or
ceases to exist.
ML & Co. hereby agrees that its obligations hereunder shall not be
subject to termination, offset or counterclaim (all of which are expressly
waived by ML & Co.).
ML & Co. hereby waives diligence; presentment; protest; notice of
protest, acceleration, and dishonor; filing of claims with a court in the event
of insolvency or bankruptcy of MLCS; all demands whatsoever; and any right to
require a proceeding first against MLCS.
ML & Co. hereby certifies and warrants that this Guarantee
constitutes the valid obligation of ML & Co. and complies with all applicable
laws.
This Guarantee shall be governed by, and construed in accordance
with, the laws of the State of New York.
This Guarantee becomes effective concurrent with the effectiveness
of the Agreement, according to its terms.
IN WITNESS WHEREOF, ML & Co. has caused this Guarantee to be
executed in its corporate name by its duly authorized representative.
XXXXXXX XXXXX & CO., INC.
