GUARANTEE from AMERICAN AIRLINES, INC. as Guarantor to WILMINGTON TRUST COMPANY as Trustee Dated as of September 28, 2009
Exhibit 4.3
from
AMERICAN AIRLINES, INC.
as Guarantor
as Guarantor
to
WILMINGTON TRUST COMPANY
as Trustee
as Trustee
Dated as of September 28, 2009
This Guarantee (as amended, modified or supplemented from time to time, this
“Guarantee”), made and entered into as of September 28, 2009, from AMERICAN AIRLINES, INC.,
a corporation duly organized and existing under the laws of the State of Delaware, as guarantor
(the “Guarantor,” as further defined in the Applicable Indenture referred to herein), to
WILMINGTON TRUST COMPANY, a Delaware banking corporation, as Trustee (the “Trustee,” as
further defined in the Applicable Indenture referred to herein). Defined terms used herein without
definition shall have the meanings given to them in the Indenture, dated as of February 1, 2004
(the “Indenture”), between AMR CORPORATION, a Delaware corporation (the “Company,”
as further defined in the Applicable Indenture referred to herein), and the Trustee, as
supplemented by the Supplemental Indenture, dated as of September 28, 2009 (the “Supplemental
Indenture,” and the Indenture, as supplemented by the Supplemental Indenture, the
“Applicable Indenture”), between the Company and the Trustee relating to the Applicable
Securities (as defined below).
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 the Company’s 6.25% Convertible Senior Notes due 2014 (each, an
“Applicable Security” and collectively, the “Applicable Securities”) issued
pursuant to the Applicable Indenture.
For and in consideration of the premises and the purchase of the Applicable Securities by the
Holders thereof, the Guarantor does hereby covenant and agree as follows for the equal and ratable
benefit of the Holders of the Applicable Securities:
ARTICLE I
REPRESENTATIONS AND WARRANTIES OF GUARANTOR
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; it has the power to enter into and perform this Guarantee; it has
duly authorized the execution and delivery of this Guarantee by proper corporate action; and
neither this Guarantee, nor the authorization, execution, delivery and performance hereof, nor 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
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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 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, subject to the terms and
conditions set forth in the Applicable Indenture, hereby unconditionally guarantees, on an
unsecured basis, (a) to each Holder of an Applicable Security authenticated and delivered by the
Trustee or Authenticating Agent in accordance with the terms of the Applicable Indenture, (i) the
full and prompt payment of the principal of and interest on such Applicable Security, when and as
the same shall become due and payable, whether at the Stated Maturity thereof, by acceleration or
otherwise, all in accordance with the terms of such Applicable Security and the Applicable
Indenture, (ii) the full and prompt payment of interest on the overdue principal and interest, if
any, on such Applicable Security, at the rate specified in the Applicable Indenture but only to the
extent lawful and (iii) the performance of all other obligations of the Company to such Holder
under such Applicable Security and the Applicable Indenture; 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 Applicable Indenture. If for any reason the Company shall fail punctually to pay any such
principal or interest, 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 or otherwise. All payments by the Guarantor hereunder shall be made in Dollars.
SECTION 2.2 Obligations Unconditional. The obligations of the Guarantor under this
Guarantee shall be absolute, unconditional and irrevocable and shall constitute a continuing and
present 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 Applicable
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Securities or the Applicable Indenture, or of the payment, performance or observance thereof;
(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 Applicable Securities or the Applicable Indenture;
(c) the assignment or purported assignment of any of the obligations, covenants and agreements
contained in this Guarantee (subject to Section 3.1 hereof);
(d) the extension of the time for payment of any principal of or interest on the Applicable
Securities or of the time for performance of any obligations, covenants or agreements under or
arising out of the Applicable Securities or the Applicable 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 Applicable Securities or the Applicable Indenture;
(f) the taking or the omission to take any of the actions referred to in this Guarantee or in
the Applicable Indenture;
(g) any failure, omission or delay on the part of, or the inability of, the Trustee or the
Holders of the Applicable Securities for any reason 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
Applicable Indenture, or the absence of any action to enforce the Applicable Securities against the
Company;
(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
Applicable Securities or the Applicable Indenture or the disaffirmance of the Applicable Securities
or the Applicable Indenture in any such proceeding; it being specifically understood, consented and
agreed to, to the maximum extent permitted by applicable law, 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;
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(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 (subject to Section 3.1 hereof);
(j) the default or failure of the Guarantor fully to perform any of its obligations set forth
in this Guarantee;
(k) the release, substitution or replacement of any security pledged for the benefit of the
Holders of the Applicable Securities under the Applicable Indenture;
(l) the disposition by the Company of any or all of its interest in any capital stock of the
Guarantor, or any change, restructuring or termination of the corporate structure, ownership,
corporate existence or any rights or franchises of the Company (subject to Section 3.1 hereof);
(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 (subject
to Section 3.1 hereof).
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 Applicable 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 Applicable 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 Applicable Securities to take
action or otherwise proceed against the Company; (b) to require the Trustee or the Holders of the
Applicable Securities to proceed against or exhaust any security pledged for the benefit of the
Holders of the Applicable Securities under the Applicable Indenture; or (c) to require the Trustee
or the Holders of the Applicable 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’
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fees and expenses, that may be incurred by the Trustee or the Holders in enforcing or
attempting to enforce this Guarantee or protecting the rights of the Trustee or the Holders of the
Applicable Securities following any default on the part of the Guarantor hereunder, whether the
same shall be enforced by suit or otherwise.
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
Applicable Securities may have against the Company until all of the Applicable 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 Applicable 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 Applicable Securities is
rescinded or must otherwise be restored or returned by the Trustee or any Holder of such Applicable
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
Applicable Securities; (b) the Trustee has the right to enforce this Guarantee on behalf of the
Holders of the Applicable Securities; (c) the Holders of a majority in aggregate principal amount
of the Outstanding Applicable 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 Applicable 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) notwithstanding anything herein to
the contrary, any Holder of an Applicable Security shall have the right to institute any
proceeding, judicial or otherwise, to enforce its rights
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under this Guarantee without first instituting a legal proceeding against the Trustee, the
Company or any other Person.
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 such 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 a certificate signed by the
Chairman or the Vice Chairman of the board of directors of the Guarantor, the President, any
Executive Vice President, or any Senior Vice President, signing alone, or by any Vice President
signing together with the Corporate Secretary, any Assistant Secretary, the Treasurer or any
Assistant Treasurer of the Guarantor (a “Guarantor Officer’s Certificate”) and an Opinion
of Counsel, each to the effect that such merger, consolidation, sale, conveyance, transfer or other
disposition complies with this Section 3.1 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 Exchange Act; 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 in respect of a security listed and
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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 with respect to compliance by the Guarantor
with the conditions and covenants provided for in this Guarantee and the Applicable Indenture, as
may be required from time to time by such rules and regulations;
(c) to transmit to all Holders of the Applicable 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.
Notwithstanding the foregoing, the Guarantor shall be deemed to have satisfied the
requirements of this Section 3.2 to file with the Trustee any such reports, information and
documents if the Guarantor files such reports, information and documents, as the case may be, with
the Commission pursuant to the Commission’s Electronic Data Gathering, Analysis and Retrieval
(XXXXX) system or any successor system.
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ARTICLE IV
NOTICES
SECTION 4.1 Notices. All notices required under the terms and conditions of this
Guarantee shall be in writing and in English, and any such notice may be given by United States
registered or certified mail, return receipt requested, courier service or facsimile, and any such
notice shall be effective when received (or, if delivered by facsimile, upon completion of
transmission and confirmation by the sender (by a telephone call to a representative of the
recipient or by machine confirmation) that such transmission was received), to the Guarantor
addressed to it at American Airlines, Inc., 0000 Xxxx Xxxxxx Xxxx., Xxxx Xxxxx, Xxxxx 00000,
Attention: Treasurer. The Guarantor, by notice to the Trustee, may designate additional or
different addresses for subsequent notices or communications.
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 Applicable Securities in accordance with the Applicable Indenture. Subject
to Section 2.6, this Guarantee shall terminate on such date as the Applicable Indenture is
discharged and satisfied as to the Applicable 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) of the Trust Indenture Act may be given in the form of a Guarantor Officer’s Certificate.
SECTION 5.3 Remedies Not Exclusive. No remedy herein conferred upon or reserved to
the Trustee or Holders of the Applicable 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 Applicable Securities to exercise any remedy reserved to
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them 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 or the Applicable Indenture notwithstanding, the maximum aggregate amount of the
obligations guaranteed hereunder by the Guarantor shall not exceed the maximum amount that can be
hereby guaranteed by the Guarantor without rendering this Guarantee void or 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; Successors and Assigns. 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, each of which shall be deemed an original, and all of which
together shall constitute one and the same instrument. To the maximum extent permitted by
applicable law, this Guarantee shall be binding upon the successors and permitted assigns of the
Guarantor and shall inure to the benefit of, and shall be enforceable by, each of the Holders and
the Trustee and its respective successors and permitted assigns.
SECTION 5.6 Severability. To the maximum extent permitted by applicable law, any
provision of this Guarantee which is prohibited or unenforceable in any jurisdiction shall, as to
such jurisdiction, be ineffective to the extent of such prohibition or unenforceability without
invalidating the remaining provisions hereof, and any such prohibition or unenforceability in any
jurisdiction shall not invalidate or render unenforceable such provision in any other jurisdiction.
SECTION 5.7 Benefits Acknowledged. The Guarantor acknowledges that it will receive
direct and indirect benefits from the financing arrangements contemplated by the Applicable
Indenture and that its guarantee and waivers pursuant to its Guarantee are knowingly made in
contemplation of such benefits.
SECTION 5.8 No Recourse Against Others. No past, present or future director, officer,
employee, agent, representative, member, manager, trustee or stockholder, as such, of the Company,
the Guarantor or any successor Person or any Affiliate of any thereof shall have any liability for
any obligations of the Company, the Guarantor or any successor Person or any Affiliate of any
thereof, either directly or
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through the Company, the Guarantor or any successor Person or any Affiliate of any thereof,
under the Applicable Securities, the Applicable Indenture or this Guarantee or for any claim based
on, in respect of or by reason of such obligations or their creation, whether by virtue of any rule
of law, statute or constitutional provision or by the enforcement of any assessment or by any legal
or equitable proceeding or otherwise. By accepting an Applicable Security, each Holder shall waive
and release all such liability. The waiver and release shall be part of the consideration for the
issue of the Applicable Securities.
SECTION 5.9 Governing Law. THIS GUARANTEE HAS BEEN DELIVERED IN THE STATE OF NEW YORK
AND 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, AND THE OBLIGATIONS, RIGHTS AND
REMEDIES OF THE PARTIES HEREUNDER SHALL BE DETERMINED IN ACCORDANCE WITH SUCH LAWS. 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. The Guarantor is an “obligor” as such term is defined
in and solely for purposes of the Trust Indenture Act and is required to comply with the provisions
of the Applicable Indenture, compliance with which is required by an “obligor” under the Trust
Indenture Act.
SECTION 5.10 Amendment; Modification. This Guarantee may be amended, supplemented or
modified pursuant to the terms of the Applicable Indenture.
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IN WITNESS WHEREOF, the Guarantor has caused this Guarantee to be executed in its corporate
name, as of the date first above written.
| AMERICAN AIRLINES, INC. |
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| By: | /s/ Xxxxxx X. Xxxxxx | |||
| Name: | Xxxxxx X. Xxxxxx | |||
| Title: | Executive Vice President — Finance and Planning and Chief Financial Officer |
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