EXHIBIT 4.5
DECLARATION OF TRUST, dated as of August 2, 1995, between
Time Warner Inc., a Delaware corporation, as sponsor (the
"Sponsor"), and The First National Bank of Chicago, a national
banking association, as property trustee (the "Property
Trustee"), First Chicago Delaware Inc., as Delaware trustee (the
"Delaware Trustee"), John A. LaBarca, Philip R. Lochner, Jr. and
Thomas W. McEnerney, not in their individual capacities but
solely as regular trustees (the "Regular Trustees") (the Property
Trustee, Delaware Trustee and Regular Trustees referred to herein
as the "Trustees"). The Sponsor and the Trustees hereby agree as
follows:
1. The trust created hereby (the "Trust") shall be known as "Time
Warner Capital II", in which name the Trustees, or the Sponsor to the extent
provided herein, may conduct the business of the Trust, make and execute
contracts, and sue and be sued.
2. The Sponsor hereby assigns, transfers, conveys and sets over to
the Trust the sum of $10. The Trustees hereby acknowledge receipt of such
amount from the Sponsor, which amount shall constitute the initial trust estate.
It is the intention of the parties hereto that the Trust created hereby
constitute a business trust under Chapter 38 of Title 12 of the Delaware Code,
12 Del. C. Section 3801 et seq. (the "Business Trust Act"), and that this
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document constitute the governing instrument of the Trust. The Trustees are
hereby authorized and directed to execute and file a certificate of trust with
the Delaware Secretary of State in the form attached as Exhibit A hereto.
3. The Sponsor and the Trustees will enter into an amended and
restated Declaration of Trust, satisfactory to each such party, to provide for
the contemplated operation of the Trust created hereby and the issuance of
preferred securities and common securities of the Trust. Prior to the execution
and delivery of such amended and restated Declaration of Trust, the Trustees
shall not have any duty or obligation hereunder or with respect to the trust
estate, except as otherwise required by applicable law or as may be necessary to
obtain prior to such execution and delivery any licenses, consents or approvals
required by applicable law or otherwise.
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4. The Sponsor and the Trustees hereby authorize and direct the
Sponsor, as the sponsor of the Trust, (a) to execute and file with the
Securities and Exchange Commission (the "Commission"), on behalf of the Trust,
(i) a Registration Statement on Form S-3 (the "1933 Act Registration
Statement"), including any pre-effective or post-effective amendments to such
Registration Statement or, relating to the registration under the Securities Act
of 1933 of the Preferred Securities of the Trust and (ii) a Registration
Statement on Form 8-A (the "1934 Act Registration Statement"), including any
pre-effective and post-effective amendments thereto, relating to the
registration of the Preferred Securities of the Trust under Section 12(b) of the
Securities Exchange Act of 1934, as amended; (b) to execute on behalf of the
Trust and file with the New York Stock Exchange or any other national stock
exchange a listing application and all other applications, statements,
certificates, agreements and other instruments as shall be necessary or
desirable to cause the Preferred Securities to be listed on the New York Stock
Exchange or such other national stock exchange; (c) to file and execute on
behalf of the Trust such applications, reports, surety bonds, irrevocable
consents, appointments of attorney for service of process and other papers and
documents as shall be necessary or desirable to register the Preferred
Securities under the securities or "Blue Sky" laws of such jurisdictions as the
Sponsor, on behalf of the Trust, may deem necessary or desirable and (d) to
execute on behalf of the Trust an Underwriting Agreement among the Trust, the
Sponsor and Merrill Lynch, Pierce, Feiner & Smith Incorporated, Morgan Stanley &
Co. Incorporated and Bear, Stearns & Co. Inc. as co-representatives of the
several underwriters, relating to the offer and sale of the Preferred
Securities, satisfactory to each such party. In the event that any filing
referred to in clauses (a) through (c) above is required by the rules and
regulations of the Commission, the New York Stock Exchange or any other national
stock exchange or state securities or blue sky laws, to be executed on behalf of
the Trust by the Trustees, John A. LaBarca, Philip R. Lochner, Jr. and Thomas W.
McEnerney, in their capacities as Trustees of the Trust, are hereby authorized
and directed to join in any such filing and to execute on behalf of the Trust
any and all of the foregoing, it being understood that The First National Bank
of Chicago and First Chicago Delaware Inc., in their capacities as Trustees of
the Trust, shall not be required to join in any such filing or execute on behalf
of the Trust any such document unless required by the rules and
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regulations of the Commission, the New York Stock Exchange or any other national
stock exchange or state securities or blue sky laws. In connection with all of
the foregoing, the Sponsor and each Trustee, solely in its capacity as Trustee
of the Trust, hereby constitutes and appoints Gerald M. Levin, Richard D.
Parsons, Richard J. Bressler, Peter R. Haje and Philip R. Lochner, and each of
them, as his, her or its, as the case may be, true and lawful attorneys-in-fact
and agents, with full power of substitution and resubstitution, for the Sponsor
or such Trustee or in the Sponsor's or such Trustee's name, place and stead, in
any and all capacities, to sign any and all amendments (including post-effective
amendments) to the 1933 Act Registration Statement and the 1934 Act Registration
Statement and to file the same, with all exhibits thereto, and other documents
in connection therewith, with the Commission, granting unto said attorneys-in-
fact and agents full power and authority to do and perform each and every act
and thing requisite and necessary to be, done in connection therewith, as fully
to all intents and purposes as the Sponsor or such Trustee might or could do in
person, hereby ratifying and confirming all that said attorneys-in-fact and
agents or any of them, or their or his or her substitute or substitutes, shall
do or cause to be done by virtue hereof.
5. This Declaration of Trust may be executed in one or more
counterparts.
6. The number of Trustees initially shall be five and thereafter the
number of Trustees shall be such number as shall be fixed from time to time by a
written instrument signed by the Sponsor which may increase or decrease the
number of Trustees; provided, however, that the number of Trustees shall in no
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event be less than five; and provided further that to the extent required by the
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Business Trust Act, one Trustee shall either be a natural person who is a
resident of the State of Delaware or, if not a natural person, an entity which
has its principal place of business in the State of Delaware. Subject to the
foregoing, the
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Sponsor is entitled to appoint or remove without cause any Trustee at any time.
The Trustees may resign upon thirty days' prior notice to the Sponsor.
IN WITNESS WHEREOF, the parties hereto have caused this Declaration of
Trust to be duly executed as of the day and year first above written.
TIME WARNER INC.,
as Sponsor,
by
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Name: Thomas W. McEnerney
Title: V.P. and Associate
General Counsel
THE FIRST NATIONAL BANK OF CHICAGO, not in its
individual capacity but solely as Property
Trustee,
by
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Name: Melissa G. Weisman
Title: Assistant Vice
President
FIRST CHICAGO DELAWARE
INC., not in its individual capacity but solely as
Delaware Trustee,
by
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Name: Melissa G. Weisman
Title: Assistant Vice
President
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by
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John A. LaBarca,
not in his individual capacity but solely as
Regular Trustee
by
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Philip R. Lochner, Jr.,
not in his individual capacity but solely as
Regular Trustee
by
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Thomas W. McEnerney,
not in his individual capacity but solely as
Regular Trustee