EXHIBIT 4.3
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GUARANTEE
from
AMERICAN AIRLINES, INC., as Guarantor
to
WILMINGTON TRUST COMPANY, as Trustee
Dated as of [ ], 2003
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GUARANTEE
This Guarantee (this "Guarantee") made and entered into as of [ ],
2003, from AMERICAN AIRLINES, INC., a corporation duly organized and existing
under the laws of the State of Delaware and having its principal office at 0000
Xxxx Xxxxxx Xxxxxxxxx, Xxxx Xxxxx, Xxxxx 00000, as guarantor (the "Guarantor"),
to WILMINGTON TRUST COMPANY, as Trustee, a Delaware banking corporation (the
"Trustee"). Defined terms used herein without definition shall have the meanings
given to them in the Indenture, dated as of [ ], 2003 between AMR
Corporation, a Delaware corporation (the "Company") and the Trustee, as
supplemented by [description of Indenture Supplement] (the "Indenture").
RECITALS
The Guarantor is the wholly owned subsidiary of the Company and has
duly authorized the execution and delivery of this Guarantee to provide for the
guarantee by the Guarantor for the benefit of the Holders of [description of
Securities (the "Securities")] issued pursuant to the Indenture.
For and in consideration of the premises and the purchase of the
Securities by the Holders thereof, it is mutually covenanted and agreed as
follows for the equal and ratable benefit of the Holders of the Securities:
ARTICLE I
REPRESENTATIONS AND WARRANTIES OF GUARANTOR
SECTION 1.1 Guarantor Representations and Warranties.
The Guarantor does hereby represent and warrant that it is a
corporation duly incorporated and in good standing under the laws of the State
of Delaware, has the power to enter into and perform this Guarantee and to own
its corporate property and assets, has duly authorized the execution and
delivery of this Guarantee by proper corporate action and neither this
Guarantee, the authorization, execution, delivery and performance hereof, the
performance of the agreements herein contained nor the consummation of the
transactions herein contemplated will violate in any material respect any
provision of law, any order of any court or agency of government or any
agreement, indenture or other instrument to which the Guarantor is a party or by
which it or its property is bound, or in any material respect be in conflict
with or result in a breach of or constitute a default under any indenture,
agreement or other instrument or any provision of its certificate of
incorporation, bylaws or any requirement of law. This Guarantee constitutes the
legal, valid and binding obligation of the Guarantor enforceable against the
Guarantor in
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accordance with its terms, except as the enforceability hereof may be limited by
applicable bankruptcy, insolvency, reorganization, moratorium or similar laws
affecting the rights of creditors generally and by general equitable principles.
ARTICLE II
GUARANTEE OF OBLIGATIONS
SECTION 2.1 Obligations Guaranteed.
The Guarantor hereby unconditionally guarantees (a) to each Holder of a
Security authenticated and delivered by the Trustee or Authenticating Agent, (i)
the full and prompt payment of the principal of and premium, if any, and
interest on, and any Redemption Price with respect to, such Security, when and
as the same shall become due and payable, whether at the stated maturity
thereof, by acceleration, call for redemption or otherwise in accordance with
the terms of the Security and the Indenture and (ii) the full and prompt payment
of interest on the overdue principal and interest, if any, on such Security, at
the rate specified in the Indenture and to the extent lawful and (b) to the
Trustee the full and prompt payment upon written demand therefor of all amounts
due it in accordance with the terms of the Indenture. If for any reason the
Company shall fail punctually to pay any such principal, premium, interest or
Redemption Price, the Guarantor hereby agrees to cause any such payment to be
made punctually when and as the same shall become due and payable, whether at
the stated maturity thereof, by acceleration, call for redemption or otherwise.
All payments by the Guarantor hereunder shall be paid in lawful money of the
United States of America.
SECTION 2.2 Obligations Unconditional.
The obligations of the Guarantor under this Guarantee shall be
absolute, unconditional and irrevocable and shall constitute a continuing
guarantee of payment and not of collectability. Such obligations shall remain in
full force and effect until this Guarantee shall terminate in accordance with
the provisions of Section 5.1 hereof, and, to the maximum extent permitted by
applicable law, such obligations shall not be affected, modified, released or
impaired by any state of facts or the happening from time to time of any event,
including, without limitation, any of the following, whether or not with notice
to, or the consent of, the Guarantor:
(a) the waiver, compromise, settlement, release or termination of any
or all of the obligations, covenants or agreements of the Company contained in
the Securities or the Indenture, or of the payment, performance or observance
thereof;
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(b) the failure to give notice to the Guarantor of the occurrence of
any default or an Event of Default under the terms and provisions of the
Securities or the Indenture;
(c) the assignment or purported assignment of any of the obligations,
covenants and agreements contained in this Guarantee;
(d) the extension of the time for payment of any principal of, premium,
if any, or interest on, or any Redemption Price with respect to the Securities
or of the time for performance of any obligations, covenants or agreements under
or arising out of the Securities or the Indenture or the extension or the
renewal of any thereof;
(e) the modification or amendment (whether material or otherwise) of
any obligation, covenant or agreement set forth in the Securities or the
Indenture;
(f) the taking or the omission to take any of the actions referred to
in this Guarantee or in the Indenture;
(g) any failure, omission or delay on the part of, or the inability of,
the Trustee or the Holders of the Securities to enforce, assert or exercise any
right, power or remedy conferred on the Trustee, such Holders or any other
person in this Guarantee or in the Indenture for any reason;
(h) the voluntary or involuntary liquidation, dissolution, merger,
consolidation, sale or other disposition of all or substantially all the assets,
marshaling of assets and liabilities, receivership, insolvency, bankruptcy,
assignment for the benefit of creditors, reorganization, arrangement,
composition with creditors or readjustment of, or other similar proceedings
affecting the Company or any or all of its assets, or any allegation or contest
of the validity of the Securities or the Indenture or the disaffirmance of the
Securities or the Indenture in any such proceeding; it being specifically
understood, consented and agreed to that this Guarantee shall remain and
continue in full force and effect and shall be enforceable against the Guarantor
to the same extent and with the same force and effect as if such proceedings had
not been instituted, and it is the intent and purpose of this Guarantee that the
Guarantor shall and does hereby waive, to the maximum extent permitted by
applicable law, all rights and benefits which might accrue to the Guarantor by
reason of any such proceedings;
(i) any event or action that would, in the absence of this clause,
result in the release or discharge by operation of law of the Guarantor from the
performance or observance of any obligation, covenant or agreement contained in
this Guarantee;
(j) the default or failure of the Guarantor fully to perform any of its
obligations set forth in this Guarantee;
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(k) the release, substitution or replacement of any security pledged
for the benefit of the Holders of the Securities under the Indenture;
(l) the disposition by the Guarantor of any or all of its interest in
any capital stock of the Company, or any change, restructuring or termination of
the corporate structure, ownership, corporate existence or any rights or
franchises of the Company;
(m) any other circumstances which might otherwise constitute a legal or
equitable discharge or defense of a surety or a guarantor; or
(n) any other occurrence whatsoever, whether similar or dissimilar to
the foregoing.
SECTION 2.3 No Waiver or Set-Off.
The Guarantor agrees that, to the maximum extent permitted by law, (a)
no act of commission or omission of any kind or at any time on the part of the
Trustee or any Holder of the Securities, or their successors and assigns, in
respect of any matter whatsoever shall in any way impair the rights of the
Trustee or such Holders to enforce any right, power or benefit under this
Guarantee, and (b) no set-off, counterclaim, reduction, or diminution of any
obligation, or any defense of any kind or nature (other than performance), which
the Guarantor or the Company has or may have against the Trustee or such Holders
or any assignee or successor thereof shall be available hereunder to the
Guarantor.
SECTION 2.4 Waiver of Notice; Expenses.
The Guarantor hereby expressly waives notice from the Trustee or the
Holders of the Securities of their acceptance and reliance on this Guarantee.
The Guarantor further waives, to the maximum extent permitted by law, any right
that it may have (a) to require the Trustee or the Holders of the Securities to
take action or otherwise proceed against the Company, (b) to require the Trustee
or the Holders of the Securities to proceed against or exhaust any security
pledged for the benefit of the Holders of the Securities under the Indenture or
(c) to require the Trustee or the Holders of the Securities otherwise to
enforce, assert or exercise any other right, power or remedy that may be
available to the Trustee or such Holders. The Guarantor agrees to pay all costs,
expenses and fees, including all reasonable attorneys' fees and expenses, that
may be incurred by the Trustee in enforcing or attempting to enforce this
Guarantee or protecting the rights of the Trustee or the Holders of the
Securities following any default on the part of the Guarantor hereunder, whether
the same shall be enforced by suit or otherwise.
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SECTION 2.5 Subrogation of Guarantor; Subordination.
Notwithstanding any payment or payments made by the Guarantor, the
Guarantor agrees that it will not enforce, by reason of subrogation,
contribution, indemnity or otherwise, any rights the Trustee or the Holders of
the Securities may have against the Company until all of the Securities
guaranteed hereby shall have been finally, indefeasibly and unconditionally paid
in full. Any claim of the Guarantor against the Company arising from payments
made by the Guarantor by reason of this Guarantee shall be in all respects
subordinated to the final, indefeasible, unconditional, full and complete
payment or discharge of all of the Securities guaranteed hereby.
SECTION 2.6 Reinstatement.
This Guarantee shall continue to be effective, or be automatically
reinstated, as the case may be, if at any time payment, or any part thereof,
made by or on behalf of the Company or the Guarantor in respect of any of the
Securities is rescinded or must otherwise be restored or returned by the Trustee
or any Holder of such Securities for any reason whatsoever, whether upon the
insolvency, bankruptcy, dissolution, liquidation or reorganization of the
Company, or upon or as a result of the appointment of a receiver, intervenor or
conservator of, or trustee or similar officer for the Company or any substantial
part of its properties, or otherwise, all as though such payment had not been
made.
SECTION 2.7 Rights of Holders.
The Guarantor expressly acknowledges that (a) this Guarantee will be
deposited with the Trustee to be held for the benefits of the Holders of the
Securities; (b) the Trustee has the right to enforce this Guarantee on behalf of
the Holders of the Securities; (c) the Holders of a majority in aggregate
principal amount of the Outstanding Securities (voting as a class) shall have
the right to direct the time, method and place of conducting any proceeding for
any remedy available to the Trustee or exercising any trust or power conferred
on it with respect to this Guarantee, or to waive any default hereunder and its
consequences (other than a default in any payment required hereunder); provided,
however, that (i) the Trustee may refuse to follow any direction that conflicts
with law or this Guarantee, (ii) the Trustee may refuse to follow any direction
that is unduly prejudicial to the rights of the Holders of the Securities not
consenting, or that would in the good faith judgment of the Trustee have a
substantial likelihood of involving the Trustee in personal liability and (iii)
the Trustee may take any other action deemed proper by the Trustee which is not
inconsistent with such direction; and (d) any Holder of a Security shall have
the right to institute any proceeding, judicial or otherwise, to enforce its
rights under this Guarantee without first instituting a legal proceeding against
the Trustee, the Company or any other Person.
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ARTICLE III
COVENANTS OF THE GUARANTOR
[SECTION 3.1 Consolidation or Merger of the Guarantor.
The Guarantor may merge or consolidate with or into any other Person or
sell, convey, transfer or otherwise dispose of all or substantially all of its
assets to any Person, if (a) (i) in the case of a merger or consolidation, the
Guarantor is the surviving Person or (ii) in the case of a merger or
consolidation where the Guarantor is not the surviving Person and in the case of
any sale, conveyance, transfer or other disposition, the resulting, surviving or
transferee Person is organized and existing under the laws of the United States
or a State thereof and such Person expressly assumes by supplemental agreement
all the obligations of the Guarantor under this Guarantee and (b) the Guarantor
shall have delivered to the Trustee an Officers' Certificate and an Opinion of
Counsel each stating that such merger, consolidation, sale, conveyance, transfer
or other disposition complies with this Section and that all conditions
precedent herein provided for relating to such transaction have been complied
with. In the event of the assumption by a successor Person of the obligations of
the Guarantor as provided in clause (a)(ii) of the immediately preceding
sentence, such successor Person shall succeed to and be substituted for the
Guarantor hereunder and all such obligations of the Guarantor shall terminate.
SECTION 3.2 Reports by the Guarantor.
During the term hereof, the Guarantor covenants:
(a) to file with the Trustee, within 30 days after the Guarantor is
required to file the same with the Commission, copies of the annual reports and
of the information, documents and other reports (or copies of such portions of
any of the foregoing as the Commission may from time to time by rules and
regulations prescribe) which the Guarantor may be required to file with the
Commission pursuant to section 13 or section 15(d) of the Securities Exchange
Act of 1934, as amended; or, if the Guarantor is not required to file
information, documents or reports pursuant to either of such sections, then to
file with the Trustee and the Commission, in accordance with rules and
regulations prescribed from time to time by the Commission pursuant to Section
314(a) of the Trust Indenture Act such of the supplementary and periodic
information, documents and reports which may be required pursuant to section 13
of the Securities Exchange Act of 1934, as amended, in respect of a security
listed and registered on a national securities exchange as may be prescribed
from time to time in such rules and regulations;
(b) to file with the Trustee and the Commission, in accordance with the
rules and regulations prescribed from time to time by the Commission pursuant to
Section 314(a) of the Trust Indenture Act such additional information, documents
and reports
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with respect to compliance by the Guarantor with the conditions and covenants
provided for in this Guarantee and the Indenture, as may be required from time
to time by such rules and regulations;
(c) to transmit to all Holders of the Securities within 30 days after
the filing thereof with the Trustee, in the manner and to the extent provided in
section 313(c) of the Trust Indenture Act, such summaries of any information,
documents and reports required to be filed by the Guarantor pursuant to
subsections (a) and (b) of this Section 3.2, as may be required by rules and
regulations prescribed from time to time by the Commission pursuant to Section
314(a) of the Trust Indenture Act; and
(d) to deliver to the Trustee, within 120 days after the end of each
fiscal year of the Guarantor, a brief certificate from the principal executive
officer, principal financial officer, or principal accounting officer as to his
or her knowledge of the Guarantor's compliance with all conditions and covenants
under this Guarantee. For purposes of this Section 3.2, such compliance shall be
determined without regard to any period of grace or requirement of notice
provided under this Guarantee.][Delete if comparable provisions are included in
applicable Indenture Supplement.]
ARTICLE IV
NOTICES
SECTION 4.1 Notices.
All notices, certificates or other communications to the Guarantor
hereunder shall be sufficient for every purpose hereunder if in writing and
mailed, first-class postage prepaid, to the Guarantor addressed to it at
American Airlines, Inc., X.X. Xxx 000000, Xxxxxx/Xxxx Xxxxx Xxxxxxx, Xxxxx
00000-0000, Attention: Treasurer, or at any other address previously furnished
in writing to the Trustee by the Guarantor.
ARTICLE V
MISCELLANEOUS
SECTION 5.1 Effective Date; Termination.
The obligations of the Guarantor hereunder shall arise absolutely and
unconditionally upon the date of the initial delivery of and authentication of
the
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Securities. Subject to Section 2.6, this Guarantee shall terminate on such date
as the Indenture is discharged and satisfied as to the Securities.
SECTION 5.2 Evidence of Compliance with Conditions Precedent.
The Guarantor shall provide the Trustee with such evidence of
compliance with such conditions precedent, if any, provided for in this
Guarantee that relate to the matters set forth in Section 314(c) of the Trust
Indenture Act. Any certificate or opinion required to be given by an officer
pursuant to Section 314(c)(1) may be given in the form of an Officer's
Certificate.
SECTION 5.3 Remedies Not Exclusive.
No remedy herein conferred upon or reserved to the Trustee or Holders
of the Securities is intended to be exclusive of any other available remedy or
remedies, but, to the maximum extent permitted by law, each and every such
remedy shall be cumulative and shall be in addition to every other remedy given
under this Guarantee or now or hereafter existing at law or in equity. No delay
or omission to exercise any right or power accruing upon any default, omission
or failure of performance hereunder shall impair any such right or power or
shall be construed to be a waiver thereof, but any such right or power may be
exercised from time to time and as often as may be deemed expedient. In order to
entitle the Trustee and Holders of the Securities to exercise any remedy
reserved to it in this Guarantee, to the maximum extent permitted by applicable
law, it shall not be necessary to give any notice. In the event any provision
contained in this Guarantee should be breached, and thereafter duly waived, such
waiver shall be limited to the particular breach so waived and shall not be
deemed to waive any other breach hereunder. To the maximum extent permitted by
applicable law, no waiver, amendment, release or modification of this Guarantee
shall be established by conduct, custom or course of dealing, but solely by an
instrument in writing duly executed by the parties to this Guarantee.
SECTION 5.4 Limitation of Guarantor's Liability.
Any term or provision of this Guarantee notwithstanding, the Guarantee
shall not exceed the maximum amount that can be guaranteed by the Guarantor
without rendering the Guarantee voidable under applicable law relating to
fraudulent conveyance or fraudulent transfer or similar laws affecting the
rights of creditors generally.
SECTION 5.5 Entire Agreement; Counterparts.
This Guarantee constitutes the entire agreement, and supersedes all
prior agreements and understandings, both written and oral, between the parties
with respect to the subject matter hereof and may be executed simultaneously in
several counterparts,
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each of which shall be deemed an original, and all of which together shall
constitute one and the same instrument.
SECTION 5.6 Severability.
To the maximum extent permitted by applicable law, the invalidity or
unenforceability of any one or more phrases, sentences, clauses or sections
contained in this Guarantee shall not affect the validity or enforceability of
the remaining portions of this Guarantee, or any part thereof.
SECTION 5.7 Governing Law.
THIS GUARANTEE SHALL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH
THE LAWS OF THE STATE OF NEW YORK, INCLUDING ALL MATTERS OF CONSTRUCTION,
VALIDITY AND PERFORMANCE. This Guarantee is subject to the Trust Indenture Act
and if any provision hereof limits, qualifies or conflicts with a provision of
the Trust Indenture Act that is required by the Trust Indenture Act to be a part
of and govern this Guarantee, the latter provision shall control. If any
provision of this Guarantee modifies or excludes any provision of the Trust
Indenture Act that may be so modified or excluded, the latter provision shall be
deemed to apply to this Guarantee as so modified, or to be excluded, as the case
may be, whether or not such provision of this Guarantee refers expressly to such
provision of the Trust Indenture Act.
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IN WITNESS WHEREOF, the Guarantor has caused this instrument to be duly
executed.
AMERICAN AIRLINES, INC.
By:
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Name:
Title:
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