Guarantee – Of Obligations Under Pass-Through Trust Agreement – AMR Corp.
GUARANTEE
From
AMR CORPORATION
as Guarantor
to
U.S. BANK TRUST NATIONAL ASSOCIATION
as Pass Through Trustee under the Class A Pass Through Trust
Agreement,
Subordination Agent and Loan Trustee
Dated as of October 4, 2011
American Airlines Pass Through Trust 2011-2A
GUARANTEE
This Guarantee (this “Guarantee“), made and entered into as of October
4, 2011, from AMR CORPORATION, a corporation duly organized and existing under
the laws of the State of Delaware and having its principal office at 4333 Amon
Carter Boulevard, Fort Worth, Texas 76155, as guarantor (the
“Guarantor“), to U.S. BANK TRUST NATIONAL ASSOCIATION, in its individual
capacity (“U.S. Bank Trust“) and as Pass Through Trustee under the Class
A Pass Through Trust Agreement, Subordination Agent, and Loan Trustee
(collectively, together with their successors and permitted assigns (including
any subsequent holder of any Guaranteed Equipment Note (as defined below)), the
“Beneficiaries” and, individually, a “Beneficiary“).
RECITALS
American Airlines, Inc., a Delaware corporation and wholly-owned subsidiary
of the Guarantor (together with its successors and permitted assigns, the
“Company“) is entering into that certain Note Purchase Agreement, dated
as of the date hereof (the “Note Purchase Agreement“), among the Company,
the Class A Pass Through Trustee, the Subordination Agent, U.S. Bank National
Association, as Escrow Agent, and U.S. Bank Trust National Association, as
Paying Agent, relating to the aircraft identified in Schedule I to the Note
Purchase Agreement (collectively, the “Aircraft“). Defined terms used
herein without definition shall have the meanings assigned to them in Annex A to
the Note Purchase Agreement, or, if not defined therein, in the Class A Pass
Through Trust Agreement.
In order to finance the Aircraft, the Company will issue the Series A
Equipment Notes (collectively, the “Guaranteed Equipment Notes“) under
the Indentures.
It is a condition precedent to the obligations of the Beneficiaries to
consummate the transactions contemplated by the Note Purchase Agreement that the
Guarantor execute and deliver this Guarantee.
Accordingly, for and in consideration of the premises and of other good and
valuable consideration, the Guarantor does hereby covenant and agree with the
Beneficiaries from and after the execution of the Note Purchase Agreement as
follows:
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; it has the power
to enter into and perform this Guarantee and to own its corporate property and
assets; 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 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 hereby
unconditionally guarantees to each of the Beneficiaries, as their respective
interests may appear, the full and prompt payment by the Company, when and as
the same shall become due and payable, whether at the stated payment date
thereof, by acceleration, or otherwise, of, and the faithful performance and
compliance with, all payment obligations of the Company under the Note Purchase
Agreement, the Participation Agreements, the Indentures, the Guaranteed
Equipment Notes and the Class A Pass Through Trust Agreement owed to the
Beneficiaries strictly in accordance with the terms thereof, however created,
arising or evidenced, whether direct or indirect, primary or secondary, absolute
or contingent, joint or several, and whether now or hereafter existing or due or
to become due (such payment obligations, the “Obligations“);
provided that in no event shall the “Obligations” include any obligation
of the Company with respect to, or determined with respect to, any Series B
Equipment Notes, Class B Certificates, Refinancing Equipment Notes, Refinancing
Certificates, Additional Series Equipment Notes or Additional Series Pass
Through Certificates or any liquidity facility with respect to any Class B
Certificates, Refinancing Certificates or Additional Series Pass Through
Certificates. If for any reason the Company shall fail punctually to pay any
such Obligations, 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 payment date thereof, by acceleration, 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 and present guarantee of payment and not of
collectability. Such obligations
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shall remain in full force and effect until the Obligations are finally,
indefeasibly and unconditionally paid in full in accordance with the terms of
the Note Purchase Agreement, the Participation Agreements, the Indentures, the
Guaranteed Equipment Notes and the Class A Pass Through Trust Agreement, 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 Note
Purchase Agreement, the Participation Agreements, the Indentures, the Guaranteed
Equipment Notes or the Class A Pass Through Trust Agreement, 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 Note
Purchase Agreement, the Participation Agreements, the Indentures, the Guaranteed
Equipment Notes or the Class A Pass Through Trust Agreement;
(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 Obligation or of the time
for performance of any obligations, covenants or agreements under or arising out
of the Note Purchase Agreement, the Participation Agreements, the Indentures,
the Guaranteed Equipment Notes or the Class A Pass Through Trust Agreement 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 Note Purchase Agreement, the
Participation Agreements, the Indentures, the Guaranteed Equipment Notes or the
Class A Pass Through Trust Agreement, other than any such modification or
amendment imposing any obligation with respect to, or determined with respect
to, any Series B Equipment Notes, Class B Certificates, Refinancing Equipment
Notes, Refinancing Certificates, Additional Series Equipment Notes or Additional
Series Pass Through Certificates or any liquidity facility with respect to any
Class B Certificates, Refinancing Certificates or Additional Series Pass Through
Certificates;
(f) the taking or the omission to take any of the actions referred to in this
Guarantee or in the Note Purchase Agreement, the Participation Agreements, the
Indentures, the Guaranteed Equipment Notes or the Class A Pass Through Trust
Agreement;
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(g) any failure, omission or delay on the part of, or the inability of, the
Beneficiaries for any reason to enforce, assert or exercise any right, power or
remedy conferred on such Beneficiaries or any other Person in this Guarantee or
in the Note Purchase Agreement, the Participation Agreements, the Indentures,
the Guaranteed Equipment Notes or the Class A Pass Through Trust Agreement;
(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 Note Purchase Agreement, the Participation Agreements,
the Indentures, the Guaranteed Equipment Notes or the Class A Pass Through Trust
Agreement or the disaffirmance of the Note Purchase Agreement, the Participation
Agreements, the Indentures, the Guaranteed Equipment Notes or the Class A Pass
Through Trust Agreement 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;
(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;
(k) the release, substitution or replacement of any security for the
performance or observation of any of the Obligations;
(l) any assignment, transfer, lease or other arrangement by which the Company
transfers possession of or loses control of the use of any Aircraft;
(m) 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;
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(n) any other circumstances which might otherwise constitute a legal or
equitable discharge or defense of a surety or a guarantor; or
(o) 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 any Beneficiary, or its successors and
assigns, in respect of any matter whatsoever shall in any way impair the rights
of the Beneficiaries 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 any Beneficiary 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 Beneficiaries 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 Beneficiaries to
take action or otherwise proceed against the Company, (b) to require the
Beneficiaries to proceed against or exhaust any security granted by the Company
or (c) to require the Beneficiaries otherwise to enforce, assert or
exercise any other right, power or remedy that may be available to the
Beneficiaries. The Guarantor agrees to pay all costs, expenses and fees,
including all reasonable attorneys’ fees and expenses, that may be incurred by
the Beneficiaries in enforcing or attempting to enforce this Guarantee or
protecting the rights of the Beneficiaries 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 Beneficiaries may have against the Company until all of the
Obligations 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 Obligations.
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 Obligations is rescinded or must otherwise be
restored or returned by the Beneficiaries 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
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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 to Proceed Against the Guarantor. In the event of
a default in any payment of any Obligation owed to any Beneficiaries,
notwithstanding anything herein to the contrary, such Beneficiaries shall have
the right to institute any proceeding, judicial or otherwise, to enforce their
rights under this Guarantee without first instituting a legal proceeding against
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 the Class A
Pass Through Trust Agreement and this Guarantee; and (b) the Guarantor
shall have delivered to the Class A Pass Through Trustee and each Loan Trustee
an Officer’s Certificate and an Opinion of Counsel, each stating 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 under the
Class A Pass Through Trust Agreement, and all such obligations of the Guarantor
shall terminate.
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, overnight 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 AMR Corporation,
MD
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5566, P.O. Box 619616, Dallas/Fort Worth Airport, Texas 75261-9616,
Attention: Treasurer. The Guarantor, by notice to the Beneficiaries, may
designate additional or different addresses for subsequent notices or
communications.
ARTICLE V
Miscellaneous
SECTION 5.1. Evidence of Compliance with Conditions Precedent. The
Guarantor shall provide the Class A Pass Through 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 5.2. Remedies Not Exclusive. No remedy herein conferred upon
or reserved to the Beneficiaries 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 Beneficiaries to exercise any remedy reserved
to 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 5.3. Amendments; Entire Agreement; Counterparts; Successors and
Assigns. Neither this Guarantee nor any of the terms hereof may be
terminated, amended, supplemented, waived or modified orally, but only by an
instrument in writing signed by the party against which the enforcement of the
termination, amendment, supplement, waiver or modification is sought. 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
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enforceable by, each of the Beneficiaries and its respective successors and
permitted assigns.
SECTION 5.4. No Implied Third Party Beneficiaries. This Guarantee
shall not be deemed to create any right in any Person except a Beneficiary and
shall not be construed in any respect to be a contract in whole or in part for
the benefit of any other Person.
SECTION 5.5. 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 5.6. Governing Law. THIS GUARANTEE HAS BEEN DELIVERED IN THE
STATE OF NEW YORK AND SHALL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE
LAW 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.
[Remainder of page left intentionally blank.]
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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.
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AMR CORPORATION |
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By: |
/s/ Isabella D. Goren |
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Name: |
Isabella D. Goren |
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Title: |
Senior Vice President and |
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ACCEPTED: U.S. BANK TRUST NATIONAL |
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By: |
/s/ Alison D.B. Nadeau |
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Name: |
Alison D.B. Nadeau |
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Title: |
Vice President |
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