Exhibit 4.5
DECLARATION GUARANTEE (this
"Agreement"), dated as of October 10, 1996,
among the undersigned trustees (the
"Trustees"), Time Warner Inc., a Delaware
corporation, as trust sponsor (the
"Sponsor"), and TW Inc., a Delaware
corporation (the "Guarantor").
WHEREAS the Sponsor and the Trustees entered into a
Declaration of Trust dated as of June 7, 1995 in order to
establish under Chapter 38 of Title 12 of the Delaware Code (12
Del. C. Section 3801 et seq.) Time Warner Financing Trust, a
statutory business trust (the "Trust");
WHEREAS the Sponsor and the Trustees entered into an
Amended and Restated Declaration of Trust dated as of August 15,
1995 (the "Declaration"), pursuant to which the Trust issued
$1.24 Preferred Exchangeable Redemption Cumulative Securities
(the "Preferred Securities") representing undivided beneficial
interests in the assets of the Trust; and
WHEREAS the Guarantor desires to unconditionally and
irrevocably guarantee, on a subordinated basis, the full and
punctual payment and performance (within applicable grace
periods) of all the obligations of the Sponsor under the
Declaration and the Preferred Securities.
NOW THEREFORE, the Sponsor, the Guarantor and the
Trustees hereby agree as follows:
SECTION 1. Definitions. Capitalized terms used herein
but not defined herein have the meanings ascribed to such terms
in the Declaration.
SECTION 2. The Guarantee. (a) The Guarantor
irrevocably and unconditionally guarantees on a subordinated
basis as set forth herein (the "Guarantee"), to each Holder of
Preferred Securities and to the Trustees and their successors and
assigns, the full and punctual payment and performance (within
applicable grace periods) of all the obligations of the Sponsor
under the Declaration and the Preferred Securities.
(b) The Guarantor further agrees that the Guarantee
constitutes a guarantee of payment, performance and compliance
and not merely of collection.
(c) The Guarantor's obligation to make any payment
hereunder may be satisfied by causing the Sponsor to make such
payment.
(d) The Guarantor also agrees to pay any and all costs
and expenses (including reasonable attorneys' fees) incurred by
the Trustees or any Holder of Preferred Securities in enforcing
any of their respective rights under the Guarantee.
SECTION 3. Subordination. The Guarantee constitutes
an unsecured obligation of the Guarantor that ranks (a) pari
passu with the guarantees delivered by the Guarantor in
connection with the 8-7/8% Preferred Trust Securities of Time
Warner Capital I, a Delaware statutory business trust, (b) pari
passu with the most senior preferred or preference stock of the
Guarantor outstanding on the date of this Agreement or hereafter
issued and with any guarantee now or hereafter entered into by
the Guarantor in respect of any preferred or preference stock of
any affiliate of the Guarantor, (c) senior in right of payment to
the common stock and series common stock of the Guarantor and (d)
subordinate and junior in right of payment to all other
liabilities of the Guarantor.
SECTION 4. GOVERNING LAW. THIS AGREEMENT SHALL BE
GOVERNED AND CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE
OF NEW YORK.
SECTION 5. Counterparts. This Agreement may be
executed in two or more counterparts, each of which shall
constitute an original, but all of which when taken together
shall constitute but one instrument.
SECTION 6. Headings. The headings of this Agreement
are for reference only and shall not limit or otherwise affect
the meaning hereof.
SECTION 7. Trustees Not Responsible for Recitals. The
recitals herein contained are made by the Sponsor and the
Guarantor, and not by the Trustees, and the Trustees assume no
responsibility for the correctness thereof. The Trustees make no
representation as to the validity or sufficiency of this Agreement.
SECTION 8. Separability. In case any one or more of
the provisions contained in this Agreement shall for any reason
be held to be invalid, illegal or unenforceable in any respect,
such invalidity, illegality or unenforceability shall not affect
any other provisions of this Agreement, but this Agreement shall
be construed as if such invalid or illegal or unenforceable
provision had never been contained herein.
IN WITNESS WHEREOF, the parties hereto have caused this
Agreement to be duly executed as of the day and year first above written.
TIME WARNER INC., as Sponsor,
by __________________________
Name: Thomas W. McEnerney
Title: Vice President
__________________________
Peter R. Haje,
as Trustee
__________________________
Richard J. Bressler,
as Trustee
__________________________
Thomas W. McEnerney,
as Trustee
TW INC., as Guarantor,
by __________________________
Name: Thomas W. McEnerney
Title: Vice President
THE FIRST NATIONAL BANK OF CHICAGO,
as Trustee,
by __________________________
Name: Melissa G. Weisman
Title: Assistant Vice President
_________________________
Michael J. Majchrzak,
as Trustee