As filed with the Securities and Exchange Commission on March 16, 2012
Registration No. 333 - 175037
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
Post-Effective Amendment No. 1 to
Form F-3
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
RIO TINTO FINANCE (USA) LIMITED (ABN 84 062 129 551) (Exact Name of Registrant as Specified in its Charter) Australia (State on Other Jurisdiction of Incorporation of Organization) Not Applicable (I.R.S. Employer Identification No.) Level 33 120 Collins Street Melbourne, Victoria 3000 Australia Tel. No.: 011-61-3-9283-3333 (Address and Telephone Number of Registrants Principal Executive Offices) |
RIO TINTO FINANCE (USA) PLC (Exact Name of Registrant as Specified in its Charter) England and Wales (State on Other Jurisdiction of Incorporation of Organization) Not Applicable (I.R.S. Employer Identification No.) 2 Eastbourne Terrace London W2 6LG United Kingdom Tel. No.: 011-44-20-7781-2000 (Address and Telephone Number of Registrants Principal Executive Offices) |
RIO TINTO PLC (Exact Name of Registrant as Specified in its Charter) England and Wales (State on Other Jurisdiction of Incorporation of Organization) Not Applicable (I.R.S. Employer Identification No.) 2 Eastbourne Terrace London W2 6LG United Kingdom Tel. No.: 011-44-20-7781-2000 (Address and Telephone Number of Registrants Principal Executive Offices) |
RIO TINTO LIMITED (ABN 96 004 458 404) (Exact Name of Registrant as Specified in its Charter) Australia (State on Other Jurisdiction of Incorporation of Organization) Not Applicable (I.R.S. Employer Identification No.) Level 33 120 Collins Street Melbourne, Victoria 3000 Australia Tel. No.: 011-61-3-9283-3333 (Address and Telephone Number of Registrants Principal Executive Offices) |
Cheree Finan
Rio Tinto Services Inc.
80 State Street
Albany, NY 12207-2543
Tel. No.: +1 801-583-6707
(Name, Address and Telephone Number of Agent for Service)
Please send copies of all communications to:
Cecil D. Quillen III Linklaters LLP One Silk Street London EC2Y 8HQ England Tel. No.: 011-44-20-7456-2000 |
Nigel D. J. Wilson Davis Polk & Wardwell LLP 99 Gresham Street London EC2V 7NG England Tel. No.: 011-44-20-7418-1300 |
App roximate date of commencement of proposed sale of the securities to the public: From time to time after the effective date of this registration statement.
If the only securities being registered on this Form are being offered pursuant to dividend or interest reinvestment plans, please check the following box. ¨
If any of the securities being registered on this Form are to be offered on a delayed or continuous basis pursuant to Rule 415 under the Securities Act of 1933, other than securities offered only in connection with dividend or interest reinvestment plans, check the following box. þ
If this Form is filed to register additional securities for an offering pursuant to Rule 462(b) under the Securities Act, please check the following box and list the Securities Act registration statement number of the earlier effective registration statement for the same offering. ¨
If this Form is a post-effective amendment filed pursuant to Rule 462(c) under the Securities Act, check the following box and list the Securities Act registration statement number of the earlier effective registration statement for the same offering. ¨
If this Form is a registration statement pursuant to General Instruction I.C. or a post-effective amendment thereto that shall become effective upon filing with the Commission pursuant to Rule 462(e) under the Securities Act, check the following box. þ
If this Form is a post-effective amendment to a registration statement filed pursuant to General Instruction I.C. filed to register additional securities or additional classes of securities pursuant to Rule 413(b) under the Securities Act, check the following box. ¨
CALCULATION OF REGISTRATION FEE
Title of Each Class of Securities to be Registered |
Amount to be Registered/Proposed Maximum Aggregate Offering Price
per
Unit/Proposed Maximum Aggregate Offering Price |
Amount of
Registration Fee |
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Debt Securities |
(1 | ) | $ | (1 | ) | |||
Guarantees of Debt Securities |
(2 | ) | $ | (2 | ) |
(1) | An indeterminate aggregate initial offering price or number of Debt Securities is being registered as may from time to time be offered at indeterminate prices. In accordance with Rules 456(b) and 457(r), the Registrant is deferring payment of all of the registration fee. |
(2) | Pursuant to Rule 457(n), no separate fee for the Guarantees is payable. |
EXPLANATORY NOTE
This Post-Effective Amendment No. 1 to the Registration Statement on Form F-3 (File No. 333-175037) is being filed for the purpose of (i) adding Rio Tinto Finance (USA) plc as a registrant to the Registration Statement; (ii) revising the base prospectus that forms part of the Registration Statement to, among other things, add a class of securities of Rio Tinto Finance (USA) plc and related guarantees of Rio Tinto plc and Rio Tinto Limited; and (iii) filing certain additional exhibits to the Registration Statement. The existing base prospectus, dated June 21, 2011, that forms part of the Registration Statement is being replaced in its entirety by the base prospectus filed with this Post-Effective Amendment No. 1. This Post-Effective Amendment No. 1 to the Registration Statement shall become effective immediately upon filing with the Securities and Exchange Commission.
PROSPECTUS
RIO TINTO FINANCE (USA) LIMITED
RIO TINTO FINANCE (USA) PLC
DEBT SECURITIES
FULLY AND UNCONDITIONALLY GUARANTEED BY
RIO TINTO PLC
and
RIO TINTO LIMITED
We may offer and sell guaranteed debt securities from time to time. Each time we sell any of the guaranteed debt securities described in this prospectus, we will provide one or more supplements to this prospectus that will contain specific information about those guaranteed debt securities and their offering. You should read this prospectus and any applicable prospectus supplement(s) together with additional information described under the heading Where You Can Find More Information carefully before you invest.
We may sell these guaranteed debt securities to, or through, underwriters and also to other purchasers or through agents. The names of any underwriters or agents will be stated in an accompanying prospectus supplement. This prospectus may not be used to sell any guaranteed debt securities unless it is accompanied by a prospectus supplement.
The principal executive offices of Rio Tinto Finance (USA) Limited and the principal executive offices of Rio Tinto Limited are located at Level 33, 120 Collins Street, Melbourne, Victoria 3000, Australia. Rio Tinto Finance (USA) Limiteds and Rio Tinto Limiteds telephone number is +61 3-9283-3333. The principal executive offices of Rio Tinto Finance (USA) plc and Rio Tinto plc are located at 2 Eastbourne Terrace, London W2 6LG, United Kingdom and Rio Tinto Finance (USA) plcs and Rio Tinto plcs telephone number is +44 20-7781-2000.
You should carefully consider the risk factors included, or incorporated by reference, in this prospectus and any applicable prospectus supplement(s) before you invest in any of our securities.
Neither the Securities and Exchange Commission nor any other regulatory body has approved or disapproved of these securities or passed upon the accuracy or adequacy of this prospectus. Any representation to the contrary is a criminal offense.
Prospectus dated March 16, 2012
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RIO TINTO FINANCE (USA) LIMITED AND RIO TINTO FINANCE (USA) PLC |
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This prospectus is part of a registration statement on Form F-3 that has been filed with the Securities and Exchange Commission, which we refer to as the SEC, using a shelf registration process. Under this shelf registration process, we may offer and sell the guaranteed debt securities described in this prospectus in one or more offerings. This prospectus provides you with a general description of the guaranteed debt securities we may offer. Each time we use this prospectus to offer guaranteed debt securities, we will provide one or more prospectus supplements that will contain specific information about the offering and the terms of those guaranteed debt securities and the extent to which such terms differ from the general terms described in Description of Guaranteed Debt Securities. The prospectus supplements may also add, update or change the information contained in this prospectus. You should read this prospectus and any applicable prospectus supplement(s), together with the additional information described under the heading Where You Can Find More Information, prior to purchasing any of the guaranteed debt securities offered by this prospectus.
When acquiring any guaranteed debt securities discussed in this prospectus, you should rely only on the information contained or incorporated by reference in this prospectus, any prospectus supplement and any free writing prospectus that we authorize to be delivered to you. Neither we, nor any underwriters or agents, have authorized anyone to provide you with different information. We are not offering the guaranteed debt securities in any jurisdiction in which an offer or solicitation is not authorized or in which the person making such offer or solicitation is not qualified to do so or to anyone to whom it is unlawful to make an offer or solicitation.
You should not assume that the information in this prospectus, any prospectus supplement or any document incorporated by reference is truthful or complete at any date other than the date mentioned on the cover page of those documents.
In this prospectus, the terms we, our and us refer to Rio Tinto Finance (USA) Limited with respect to securities to be issued by it and Rio Tinto Finance (USA) plc with respect to securities to be issued by it, or as the context may require. We refer to Rio Tinto plc and Rio Tinto Limited taken together as Rio Tinto. We refer to Rio Tinto plc, Rio Tinto Limited and their subsidiaries taken together as the Rio Tinto Group, or the Group. Rio Tinto Finance (USA) Limited and Rio Tinto Finance (USA) plc offer debt securities using this prospectus. Both Rio Tinto plc and Rio Tinto Limited act as the guarantors for offerings by Rio Tinto Finance (USA) Limited and Rio Tinto Finance (USA) plc using this prospectus.
ENFORCEABILITY OF CERTAIN CIVIL LIABILITIES
Rio Tinto Finance (USA) Limited is a corporation incorporated under the laws of the State of Victoria, Australia. Rio Tinto Finance (USA) plc is a public limited company incorporated under the laws of England and Wales. Rio Tinto plc is a public limited company incorporated under the laws of England and Wales. Rio Tinto Limited is a corporation incorporated under the laws of the State of Victoria, Australia. Substantially all of our and Rio Tintos directors and officers, and some of the experts named in this document, reside outside the United States, principally in the United Kingdom and Australia. A substantial portion of our and Rio Tintos assets, and the assets of such persons, are located outside the United States. Therefore, you may not be able to effect service of process within the United States upon us, Rio Tinto or these persons so that you may enforce judgments of U.S. courts against us, Rio Tinto or these persons based on the civil liability provisions of the U.S. federal or state securities laws. Our English and Australian legal advisers have advised us and Rio Tinto that there are doubts as to the enforceability in England and Wales and Australia, in original actions or in actions for enforcement of judgments of U.S. courts, of civil liabilities based on the U.S. federal or state securities laws.
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WHERE YOU CAN FIND MORE INFORMATION
Rio Tinto plc and Rio Tinto Limited are subject to the reporting requirements of the Securities Exchange Act of 1934 (the Exchange Act) applicable to foreign private issuers and, in accordance with these requirements, file annual and special reports and other information with the SEC. You may read and copy any document that Rio Tinto plc and Rio Tinto Limited file at the SECs Public Reference Room at 100 F Street, N.E., Room 1580, Washington, D.C. 20549. You may also obtain documents Rio Tinto plc and Rio Tinto Limited file with the SEC on the SEC website at www.sec.gov. The address of the SECs internet site is provided solely for the information of prospective investors and is not intended to be an active link. Please visit this website or call the SEC at 1-800-732-0330 for further information about its public reference room.
American depositary shares representing ordinary shares of Rio Tinto plc are listed on the New York Stock Exchange, and the ordinary shares are admitted to the Official List of the UK Listing Authority and to trading on the London Stock Exchange plcs main market for listed securities. The ordinary shares of Rio Tinto Limited are listed on the Australian Securities Exchange. You can consult reports and other information about Rio Tinto plc that it has filed pursuant to the rules of the New York Stock Exchange and the UK Listing Authority, and about Rio Tinto Limited that it has filed pursuant to the rules of the Australian Securities Exchange, at those exchanges or authorities.
The SEC allows us and Rio Tinto to incorporate by reference the information that we and Rio Tinto file with them, which means that:
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incorporated documents are considered part of this prospectus; |
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we can disclose important information to you by referring to those documents; and |
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information that we and Rio Tinto file with the SEC in the future and incorporate by reference herein will automatically update and supersede information in this prospectus and information previously incorporated by reference herein. |
The information that we incorporate by reference is an important part of this prospectus.
Each document incorporated by reference is current only as of the date of such document, and the incorporation by reference of such documents shall not create any implication that there has been no change in the affairs of the Rio Tinto Group since the date thereof or that the information contained therein is current as of any time subsequent to its date. Any statement contained in such incorporated documents shall be deemed to be modified or superseded for the purpose of this prospectus to the extent that a subsequent statement contained in another document we incorporate by reference at a later date modifies or supersedes that statement. Any such statement so modified or superseded shall not be deemed, except as so modified or superseded, to constitute a part of this prospectus.
We incorporate by reference the documents below filed with the SEC by Rio Tinto plc and Rio Tinto Limited pursuant to the Exchange Act. We also incorporate by reference any future filings that Rio Tinto plc and Rio Tinto Limited make with the SEC under Section 13(a), 13(c) or 15(d) of the Exchange Act until we sell all of the securities. Our reports on Form 6-K furnished to the SEC after the date of this prospectus (or portions thereof) are incorporated by reference in this prospectus only to the extent that the forms expressly state that we incorporate them (or such portions) by reference in this prospectus.
The documents incorporated by reference herein in the future and set forth below contain important information about us and our financial condition:
(i) | Annual Report on Form 20-F of Rio Tinto plc and Rio Tinto Limited for the year ended December 31, 2011 filed with the SEC on March 16, 2012; and |
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(ii) | any future report on Form 20-F that either of Rio Tinto plc or Rio Tinto Limited files with the SEC under the Exchange Act until we sell the guaranteed debt securities that may be offered through this prospectus. |
You can obtain copies of any of the documents incorporated by reference through Rio Tinto or the SEC. Documents incorporated by reference are available without charge, excluding all exhibits unless an exhibit has been specifically incorporated by reference into this prospectus. You may obtain Rio Tinto documents incorporated by reference into this prospectus, at no cost, by requesting them in writing or by telephone at the following addresses and telephone numbers:
Rio Tinto plc 2 Eastbourne Terrace London W2 6LG United Kingdom 011-44-20-7781-2000 |
Rio Tinto Limited Level 33, 120 Collins Street Melbourne, Victoria 3000 Australia 011-61-3-9283-3333 |
This prospectus contains and incorporates by reference certain forward-looking statements with respect to the financial condition, results of operations and business of the Rio Tinto Group. These statements are forward-looking statements within the meaning of Section 27A of the Securities Act of 1933 (the Securities Act) and Section 21E of the Exchange Act. The words intend, aim, project, anticipate, estimate, plan, believe, expect, may, should, will, or similar expressions, commonly identify such forward-looking statements.
Examples of forward-looking statements contained in or incorporated by reference in this prospectus include those regarding estimated ore reserves, anticipated production or construction dates, costs, outputs and productive lives of assets or similar factors. Forward-looking statements involve known and unknown risks, uncertainties, assumptions and other factors set forth in this document that are beyond the Groups control. For example, future ore reserves will be based in part on market prices that may vary significantly from current levels. These may materially affect the timing and feasibility of particular developments. Other factors include the ability to produce and transport products profitably, demand for our products, the effect of foreign currency exchange rates on market prices and operating costs, and activities by governmental authorities, such as changes in taxation or regulation, and political uncertainty.
In light of these risks, uncertainties and assumptions, actual results could be materially different from projected future results expressed or implied by these forward-looking statements which speak only as at the date of this prospectus. Except as required by applicable regulations or by law, the Group does not undertake any obligation to publicly update or revise any forward-looking statements, whether as a result of new information or future events. The Group cannot guarantee that its forward-looking statements will not differ materially from actual results.
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RIO TINTO PLC AND RIO TINTO LIMITED
The Rio Tinto Group
The Rio Tinto Group combines Rio Tinto plc, which is listed on the London Stock Exchange and headquartered in London, and Rio Tinto Limited, which is listed on the Australian Securities Exchange and has executive offices in Melbourne.
Businesses include open pit and underground mines, mills, refineries and smelters as well as a number of research and service facilities. The Group consists of wholly and partly owned subsidiaries, jointly controlled assets, jointly controlled entities and associated companies.
On December 30, 2011, Rio Tinto plc had a market capitalization of £45 billion (U.S.$70 billion) and Rio Tinto Limited had a market capitalization of A$26 billion (U.S.$27 billion). The Groups combined market capitalization in publicly held shares on December 31, 2011, was U.S.$97 billion.
Rio Tintos operational structure is designed to facilitate a clear focus on the Groups objective. This structure is based on the following primary product and business support groups:
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Aluminium : Rio Tinto is a global leader in the aluminium industry. Its facilities include high quality bauxite mines, large scale alumina refineries and some of the worlds lowest cost, most technologically advanced primary aluminium smelters, using self-generated hydroelectricity at many facilities. In October 2011, the Aluminum group transferred 13 aluminum operations into two separately-managed business units, where they will be held for future divestment. |
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Copper : With diverse assets and leading technology, the Copper group is uniquely positioned to supply growing global demand as one of the worlds largest producers of copper, with valuable by-products of gold and molybdenum. In addition to interests in some of the worlds largest copper mines, the Copper group is taking the lead in the development of three of the worlds largest new copper projects, including Oyu Tolgoi in Mongolia. |
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Diamonds & Minerals : The Diamonds & Minerals group comprises mining, refining and marketing operations across three sectors: Rio Tinto Diamonds (RTD), Rio Tinto Minerals (RTM) and Rio Tinto Iron & Titanium (RTIT). RTD is active in mining, sales and marketing of rough cut diamonds. RTM is a world leader in borates with mines, processing plants, commercial and research facilities, and RTIT is a market leader in titanium dioxide feedstock. |
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Energy : Rio Tinto Energy is a leading supplier of thermal and coking coal to the Asian seaborne market and is one of the worlds largest uranium producers, serving electric utilities worldwide. Rio Tinto Energys portfolio includes: Rio Tinto Coal Australia, Rio Tinto Coal Mozambique, Energy Resources of Australia, which produces uranium oxide from its Ranger operation, and Rössing, a Namibian uranium oxide producer. Rio Tinto Energy completed the acquisition of Hathor Exploration Limited, which has uranium exploration rights in Canada, on January 12, 2012. |
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Iron Ore : Rio Tinto Iron Ore is the second largest producer supplying the worlds seaborne iron ore trade and has a global supply capacity to serve both the Pacific and Atlantic markets, operating an integrated platform of mines, rail and port infrastructure including development projects and is well positioned to benefit from the continuing strong demand in China and other Asian markets. To meet this demand, significant capacity expansion has occurred Australia, with on-going projects and expansions in Australia, Canada and Africa. |
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Exploration : Rio Tinto considers exploration to be a core competency, with recent Tier 1 discoveries by the Exploration group including the copper deposits at Resolution in Arizona and La Granja in Peru, and the iron ore deposits at Simandou in Guinea and Caliwingina in the Pilbara, Australia. Investment decisions are prioritized globally based not on commodity or location, but rather on the quality of each |
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opportunity. At the end of 2011, the Exploration group was actively exploring in 18 countries for a broad range of commodities including bauxite, copper, coking coal, diamonds, iron ore, nickel, potash and uranium. |
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Technology & Innovation : Technology & Innovations centralized team of specialists focuses on improving current technologies and operations, project development, execution and evaluation. The groups Innovation Centre concentrates on step changes that will give the Group competitive advantages in developing the ore bodies of the future. |
The DLC Structure
Each of Rio Tinto plc and Rio Tinto Limited is the ultimate holding company of the companies within its respective group and its respective assets are substantially comprised of shares in such companies. Neither Rio Tinto plc nor Rio Tinto Limited conducts any other business and both are accordingly dependent on the other members of the Rio Tinto Group and revenues received from them.
In December 1995, the shareholders of each of Rio Tinto plc and Rio Tinto Limited approved the terms of a dual listed companies structure (the DLC structure) that was designed to place the shareholders of each of the companies in substantially the same position as if they held shares in a single entity. Following the approval of the DLC structure, each of Rio Tinto plc and Rio Tinto Limited entered into a DLC Structure Sharing Agreement (the Sharing Agreement). The Sharing Agreement ensured that the boards of directors of each of Rio Tinto plc and Rio Tinto Limited were identical and that their businesses are managed as a single entity. The Sharing Agreement provided for the ratio of dividend, voting and capital distribution rights attached to each Rio Tinto plc ordinary share and to each Rio Tinto Limited share to be fixed in an equalization ratio which has remained unchanged at 1:1. In principle, the Sharing Agreement provides for the public shareholders of Rio Tinto plc and Rio Tinto Limited to vote as a joint electorate on all matters which affect them in similar ways. However, the Sharing Agreement also provides for the protection of the public shareholders of each of the companies by treating the shares of each as if they were separate classes of shares issued by a single company.
Also in December 1995, each of Rio Tinto plc and Rio Tinto Limited entered into a Deed Poll Guarantee in favor of the creditors of the other. Pursuant to the Deed Poll Guarantees, each of Rio Tinto plc and Rio Tinto Limited guaranteed the contractual obligations of the other (and the obligations of other persons which are guaranteed by the other company), subject to certain limited exceptions. As a consequence of the Deed Poll Guarantees, holders of notes issued by the Company may make demand upon either Rio Tinto plc or Rio Tinto Limited.
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RIO TINTO FINANCE (USA) LIMITED AND RIO TINTO FINANCE (USA) PLC
Rio Tinto Finance (USA) Limited (ABN 84 062 129 551), a corporation incorporated with limited liability in Australia, on October 19, 1993, under the Corporations Act 2001 is a wholly owned subsidiary of Rio Tinto Limited. Rio Tinto Finance (USA) plc, a public limited company incorporated under the laws of England and Wales, is an indirect wholly owned subsidiary of Rio Tinto plc. Rio Tinto Finance (USA) Limited and Rio Tinto Finance (USA) plc are finance companies through which the Rio Tinto Group conducts its treasury operations. Each of Rio Tinto Finance (USA) Limited and Rio Tinto Finance (USA) plc has access to surplus corporate funds which they invest in the money markets and raise finance from banks and third parties in the short, medium and long-term markets for on-lending to Rio Tinto Group companies. Rio Tinto Finance (USA) Limited and Rio Tinto Finance (USA) plc also undertake foreign exchange and interest rate transactions as part of the Rio Tinto Groups long-term management of foreign currency and interest rate exposures. Rio Tinto Finance (USA) Limiteds registered and principal executive office is located at 120 Collins Street, Melbourne, Victoria 3000, Australia. Rio Tinto Finance (USA) plcs registered and principal executive office is located at 2 Eastbourne Terrace, London W2 6LG, United Kingdom.
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RATIO OF EARNINGS TO FIXED CHARGES
Set forth in the table below are the ratios of earnings to fixed charges of Rio Tinto based on information derived from our consolidated financial statements, which are prepared in accordance with International Financial Reporting Standards (IFRS).
Year Ended December 31, | ||||||||||||||||||||
2011 | 2010 (1) | 2009 | 2008 | 2007 | ||||||||||||||||
Ratio of earnings to fixed charges |
13.20 | 22.93 | 7.05 | 5.91 | 14.40 |
Note: |
(1) | The audited financial statements for the year ended December 31, 2010 have been restated in accordance with IFRS 3 Business Combinations (Revised), following reclassification of certain balances relating to the consolidation of Oyu Tolgoi LLC (see Note 39 to the 2011 Financial Statements in the Annual Report on Form 20-F of Rio Tinto plc and Rio Tinto Limited for the year ended December 31, 2011, which is incorporated by reference in this prospectus). |
The ratio of earnings to fixed charges of Rio Tinto is computed by dividing the amount of its pre-tax earnings by the amount of its fixed charges. For the purposes of calculating the ratio, earnings is defined as pre-tax income from continuing operations before adjustments for minority interests, less (i) minority interests in pre-tax income of subsidiaries that have not incurred fixed charges; and (ii) share of profits after tax of equity accounted units, plus (i) fixed charges; (ii) distributed income of equity investees; and (iii) amortization of capitalized interest. Fixed charges consist of interest costs, both expensed and capitalized, and a reasonable approximation of the interest component of rental expense representative of the interest factor.
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The net proceeds from the sale of the guaranteed debt securities offered will be added to the general funds of Rio Tinto, unless we state otherwise in a prospectus supplement.
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DESCRIPTION OF GUARANTEED DEBT SECURITIES
This prospectus relates to guaranteed debt securities issued by Rio Tinto Finance (USA) Limited and Rio Tinto Finance (USA) plc. As required by federal law of the United States for all bonds and notes of companies that are publicly offered, the debt securities are governed by a document called an indenture. The indenture relating to debt securities issued by Rio Tinto Finance (USA) Limited and Rio Tinto Finance (USA) plc is a contract among Rio Tinto Finance (USA) Limited, Rio Tinto Finance (USA) plc, Rio Tinto plc, Rio Tinto Limited and The Bank of New York Mellon.
General
The Bank of New York Mellon acts as the trustee under the indenture. The trustee has two principal functions:
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First, it can enforce the rights of holders of the debt securities against us or Rio Tinto if we or Rio Tinto default on debt securities issued under the indenture. There are some limitations on the extent to which the trustee acts on behalf of holders of the debt securities, described under Default and Related Matters Events of Default Remedies If an Event of Default Occurs below; and |
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Second, the trustee performs administrative duties for us, such as sending interest payments to holders, transferring debt securities to new buyers and sending notices to holders. |
Both Rio Tinto plc and Rio Tinto Limited act as the guarantors of the debt securities issued under the indenture. The guarantees are described under Guarantees below.
The indenture and its associated documents contain the full legal text of the matters described in this section. The indenture, the debt securities and the guarantees are governed by New York law. A copy of the form of indenture is filed with the SEC as an exhibit to the registration statement. See Where You Can Find More Information for information on how to obtain a copy.
We may issue as many distinct series of debt securities under the indenture as we wish. This section summarizes all material terms of the debt securities and the guarantees that are common to all series, unless otherwise indicated in the prospectus supplement relating to a particular series.
Because this section is a summary, it does not describe every aspect of the debt securities or the guarantees. This summary is subject to, and qualified in its entirety by reference to, all the provisions of the indenture, including some of the terms used in the indenture. We describe the meaning for only the more important terms. We also include references in parentheses to some sections of the indenture. Whenever we refer to particular sections or defined terms of the indenture in this prospectus or in the prospectus supplement, those sections or defined terms are incorporated by reference in this prospectus or in the prospectus supplement. This summary also is subject to and qualified by reference to the description of the particular terms of the series of debt securities described in the prospectus supplement.
In addition, the specific financial, legal and other terms particular to a series of debt securities are described in the prospectus supplement and the pricing agreement relating to the series. Those terms may vary from the terms described here. Accordingly, this summary also is subject to and qualified by reference to the description of the terms of the series of debt securities described in the prospectus supplement.
The prospectus supplement relating to a series of debt securities will describe the following terms of the series:
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the title of the series of debt securities; |
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any limit on the aggregate principal amount of the series of debt securities; |
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any stock exchange on which we will list the series of debt securities; |
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the date or dates on which we will pay the principal of the series of debt securities; |
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the rate or rates, which may be fixed or variable, per annum at which the series of debt securities will bear interest, if any, and the date or dates from which that interest, if any, will accrue; |
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the dates on which interest, if any, on the series of debt securities will be payable and the regular record dates for the interest payment dates; |
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any mandatory or optional sinking funds or analogous provisions or provisions for redemption at the option of the holder; |
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the date, if any, after which and the price or prices at which the series of debt securities may, in accordance with any optional or mandatory redemption provisions that are not described in this prospectus, be redeemed and the other detailed terms and provisions of those optional or mandatory redemption provisions, if any; |
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the denominations in which the series of debt securities will be issuable; |
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the currency of payment of principal, premium, if any, and interest on the series of debt securities if other than the currency of the United States and the manner of determining the equivalent amount in the currency of the United States; |
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any index used to determine the amount of payment of principal of, premium, if any, and interest on the series of debt securities; |
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the applicability of the provisions described later under Restrictive Covenants Defeasance and Discharge; |
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if the series of debt securities will be issuable in whole or part in the form of a global security as described under Legal Ownership Global Securities, and the depositary or its nominee with respect to the series of debt securities, and any special circumstances under which the global security may be registered for transfer or exchange in the name of a person other than the depositary or its nominee; and |
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any other special features of the series of debt securities. |
We may issue the debt securities as original issue discount securities, which are debt securities that are offered and sold at a material discount to their stated principal amount ( Section 101 of the Indenture ). The prospectus supplement relating to original issue discount securities will describe U.S. federal income tax consequences and other special considerations applicable to them. The debt securities may also be issued as indexed securities or securities denominated in foreign currencies or currency units, as described in more detail in the prospectus supplement relating to any such debt securities.
Interest rates
In addition to debt securities that bear interest at fixed rates, we may, from time to time, issue floating rate debt securities that bear interest at rates based on one or more of the following base rates:
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LIBOR; or |
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any other interest rates (which may include a combination of more than one of the interest rate bases described above) as may be described in the applicable prospectus supplement. |
LIBOR . A LIBOR note is a floating rate debt security that will bear interest at a base rate equal to LIBOR, which will be the London interbank offered rate for deposits in U.S. dollars or any other index currency, as specified in the applicable prospectus supplement. In addition, the applicable LIBOR base rate will be adjusted by the spread or spread multiplier, if any, specified in the applicable prospectus supplement.
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LIBOR will be determined in the following manner:
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LIBOR will be the arithmetic mean of the offered rates appearing on the Reuters LIBOR page, unless that page by its terms cites only one rate, in which case that rate; in either case, as of 11:00 A.M., London time, on the relevant interest determination date, for deposits of the relevant index currency having the relevant index maturity beginning on the relevant interest reset date. The applicable prospectus supplement will indicate the index currency, the index maturity and the reference page that apply to the debt security and how interest determination dates and interest reset dates will be determined. |
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If fewer than two of the rates described above appears on the Reuters LIBOR page or no rate appears on any page on which only one rate normally appears, then LIBOR will be determined on the basis of the rates, at approximately 11:00 A.M., London time, on the relevant interest determination date, at which deposits of the following kind are offered to prime banks in the London interbank market by four major banks in that market selected by the calculation agent: deposits of the index currency having the relevant index maturity, beginning on the relevant interest reset date and in a representative amount. The calculation agent will request the principal London office of each of these banks to provide a quotation of its rate. If at least two quotations are provided, LIBOR for the relevant interest determination date will be the arithmetic mean of the quotations. |
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If fewer than two quotations are provided as described in the preceding paragraph, LIBOR for the relevant interest determination date will be the arithmetic mean of the rates for loans of the following kind to leading European banks quoted, at approximately 11:00 A.M., London time, in the principal financial center for the country of the index currency, on that interest determination date, by three major banks in that financial center selected by the calculation agent: loans of the index currency having the relevant index maturity, beginning on the relevant interest reset date and in a representative amount. |
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If fewer than three banks selected by the calculation agent provide quotations as described above, LIBOR for the new interest period will be LIBOR in effect for the prior interest period. If the initial base rate has been in effect for the prior interest period, however, it will remain in effect. |
The reference banks and dealers employed by the calculation agent in determining the base rate may include the calculation agent itself and its affiliates.
Guarantees
Both Rio Tinto plc and Rio Tinto Limited will fully and unconditionally guarantee the payment of the principal of, premium, if any, and interest on the debt securities, including any additional amounts which may be payable in respect of the debt securities, as described under Special Situations Payment of Additional Amounts. Rio Tinto plc and Rio Tinto Limited guarantee the payment of such amounts when such amounts become due and payable, whether at the stated maturity of the debt securities, by declaration or acceleration, call for redemption or otherwise. Each of Rio Tinto plc and Rio Tinto Limited is individually obligated to pay such amounts.
Legal Ownership
Street Name and Other Indirect Holders
Investors who hold debt securities in accounts at banks or brokers will generally not be recognized by us as legal holders of debt securities. This is called holding in street name. Instead, we would recognize only the bank or broker, or the financial institution the bank or broker uses to hold its debt securities. These intermediary banks, brokers and other financial institutions pass along principal, interest and other payments on the debt securities, either because they agree to do so in their customer agreements or because they are legally required to do so. Holders of debt securities who hold in street name should check with their institutions to find out:
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how it handles payments in respect of the debt securities and notices; |
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whether it imposes fees or charges; |
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how it would handle voting if it were ever required; |
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whether and how holders can instruct it to send their debt securities, registered in their own names so they can be direct holders as described below; and |
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how it would pursue rights under the debt securities if there were a default or other event triggering the need for holders to act to protect their interests. |
Direct Holders
Our obligations, as well as the obligations of the trustee and those of any third parties employed by us or the trustee, run only to persons who are registered as holders of debt securities. As noted above, we do not have obligations to holders who hold in street name or other indirect means, either because such holders choose to hold debt securities in that manner or because the debt securities are issued in the form of global securities as described below. For example, once we make payment to the registered holder, we have no further responsibility for the payment even if that holder is legally required to pass the payment along to the street name customer but does not do so.
Global Securities
What is a Global Security? A global security is a special type of indirectly held security, as described above under Street Name and Other Indirect Holders. If we choose to issue debt securities in the form of global securities, the ultimate beneficial owners can only be indirect holders.
We require that the global security be registered in the name of a financial institution we select. In addition, we require that the debt securities included in the global security not be transferred to the name of any other direct holder unless the special circumstances described below occur. The financial institution that acts as the sole direct holder of the global security is called the depositary. Any person wishing to own a security must do so indirectly by virtue of an account with a broker, bank or other financial institution that in turn has an account with the depositary. The prospectus supplement indicates whether a particular series of debt securities will be issued only in the form of global securities.
Special Investor Considerations for Global Securities. As an indirect holder, an investors rights relating to a global security will be governed by the account rules of the investors financial institution and of the depositary, as well as general laws relating to securities transfers. We do not recognize this type of investor as a holder of debt securities and instead deal only with the depositary that holds the global security.
Investors in debt securities that are issued only in the form of global debt securities should be aware that:
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They cannot get debt securities registered in their own names. |
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They cannot receive physical certificates for their interests in the debt securities. |
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They will be street name holders and must look to their own banks or brokers for payments on the debt securities and protection of their legal rights relating to the debt securities, as explained earlier under Legal Ownership Street Name and Other Indirect Holders. |
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They may not be able to sell interests in the debt securities to some insurance companies and other institutions that are required by law to own their debt securities in the form of physical certificates. |
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The depositarys policies will govern payments, transfers, exchange and other matters relating to holders interests in the global security. We and the trustee have no responsibility for any aspect of the depositarys actions or for its records of ownership interests in the global security. We and the trustee also do not supervise the depositary in any way. |
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The depositary will require that interests in a global security be purchased or sold within its system using same-day funds. |
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Special Situations When Global Security Will Be Terminated. In a few special situations described later, the global security will terminate and interests in it will be exchanged for physical certificates representing debt securities. After that exchange, the choice of whether to hold debt securities directly or in street name will be up to the investor. Investors must consult their own bank or brokers to find out how to have their interests in debt securities transferred to their own name so that they will be direct holders. The rights of street name investors and direct holders in the debt securities have been previously described in the subsections entitled Legal Ownership Street Name and Other Indirect Holders and Direct Holders.
The special situations for termination of a global security are:
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When the depositary notifies us or Rio Tinto that it is unwilling, unable or no longer qualified to continue as depositary. |
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When an event of default on the debt securities has occurred and has not been cured. Defaults are discussed below under Default and Related Matters Events of Default. |
The prospectus supplement may also list additional situations for terminating a global security that would apply only to the particular series of debt securities covered by the prospectus supplement. When a global security terminates, the depositary (and not we or the trustee) is responsible for deciding the names of the institutions that will be the initial direct holders. ( Sections 305 and 206 )
Overview of Remainder of this Description
The remainder of this description summarizes:
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Additional mechanics relevant to the debt securities under normal circumstances, such as how to transfer ownership and where we make payments. |
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Holders rights under several special situations , such as if we merge with another company, if we want to change a term of the debt securities or if we want to redeem the debt securities for tax reasons. |
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Holders rights to receive payment of additional amounts due to changes in the withholding requirements of various jurisdictions. |
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Covenants contained in the indenture that restrict our and Rio Tintos ability to incur liens. A particular series of debt securities may have additional covenants. |
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Holders rights if we or Rio Tinto default in respect of our or Rio Tintos obligations under the debt securities or experience other financial difficulties. |
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Our relationship with the trustee . |
Additional Mechanics
Exchange and Transfer
The debt securities will be issued:
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only in fully registered form; |
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without interest coupons; and |
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unless indicated in the applicable prospectus supplement, in denominations that are even multiples of U.S.$1,000. |
Holders may have their debt securities broken into more debt securities of smaller denominations or combined into fewer debt securities of larger denominations, as long as the total principal amount is not changed. ( Section 305 ) This is called an exchange.
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Holders may exchange or transfer their debt securities at the office of the trustee. The trustee acts as our agent for registering debt securities in the names of holders and transferring the securities. We may change this appointment to another entity or perform the service ourselves. The entity performing the role of maintaining the list of registered holders is called the security registrar. It will also register transfers of the debt securities. ( Section 305 )
Holders will not be required to pay a service charge to transfer or exchange debt securities, but may be required to pay for any tax or other governmental charge associated with the exchange or transfer. The transfer or exchange of a registered debt security will only be made if the security registrar is satisfied with a holders proof of ownership.
If we have designated additional transfer agents, they are named in the prospectus supplement. We may cancel the designation of any particular transfer agent. We may also approve a change in the office through which any transfer agent acts. ( Section 1002 )
If the debt securities are redeemable and we redeem less than all of the debt securities of a particular series, we may block the transfer or exchange of debt securities during a specified period of time in order to freeze the list of holders to prepare the mailing. The period begins 15 days before the day we mail the notice of redemption and ends on the day of that mailing. We may also refuse to register transfers or exchanges of debt securities selected for redemption. However, we will continue to permit transfers and exchanges of the unredeemed portion of any security being partially redeemed. ( Section 305 )
Payment and Paying Agents
We will pay interest to holders who are direct holders listed in the trustees records at the close of business on a particular day in advance of each due date for interest, even if such holders no longer own the security on the interest due date. That particular day, usually about two weeks in advance of the interest due date, is called the regular record date and is stated in the prospectus supplement. ( Section 307 )
We will pay interest, principal and any other money due on your debt securities at the corporate trust office of the trustee in New York City. That office is currently located at 101 Barclay Street, New York, NY 10286. Holders must make arrangements to have payments picked up at or wired from that office. We may also choose to pay interest by mailing checks.
Interest on global securities will be paid to the holder thereof by wire transfer of same-day funds.
Holders buying and selling debt securities must work out between them how to compensate for the fact that we will pay all the interest for an interest period to, in the case of registered debt securities, the one who is the registered holder on the regular record date. The most common manner is to adjust the sales price of the debt securities to prorate interest fairly between buyer and seller. This prorated interest amount is called accrued interest.
Street name and other indirect holders should consult their banks or brokers for information on how they will receive payments. |
We or Rio Tinto may also arrange for additional payment offices, and may cancel or change these offices, including our or Rio Tintos use of the trustees corporate trust office. These offices are called paying agents. We may also choose to act as our own paying agent. We must notify holders of changes in the paying agents for any particular series of debt securities. ( Section 1002 )
Notices
We and the trustee will send notices only to direct holders, using their addresses as listed in the trustees records. ( Sections 101 and 106 )
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Regardless of who acts as paying agent, all money that we pay to a paying agent that remains unclaimed at the end of two years after the amount is due to direct holders will be repaid to us. After that two-year period, holders may look only to us for payment and not to the trustee, any other paying agent or anyone else. ( Section 1003 )
Special Situations
Mergers and Similar Events
We, Rio Tinto plc and Rio Tinto Limited are generally permitted to consolidate or merge with another entity. We, Rio Tinto plc and Rio Tinto Limited are also permitted to sell or lease substantially all of our assets to another entity or to buy or lease substantially all of the assets of another entity. However, Rio Tinto Finance (USA) Limited may only take these actions if the successor entity is incorporated or organized under the laws of Australia, any state thereof, or the United States, any state thereof, or the District of Columbia and Rio Tinto Finance (USA) plc may only take these actions if the successor entity is incorporated or organized under the laws of the United Kingdom, or any political subdivision thereof, or the United States, any state thereof, or the District of Columbia. In addition, neither we, Rio Tinto plc nor Rio Tinto Limited may take any of these actions unless all the following conditions are met:
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Where Rio Tinto Finance (USA) Limited, Rio Tinto Finance (USA) plc, Rio Tinto plc or Rio Tinto Limited merges out of existence or sells or leases substantially all its assets, the successor entity must be duly organized and validly existing under the laws of the applicable jurisdiction. |
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If such successor entity is organized under the laws of a jurisdiction other than Australia, the United Kingdom, or the United States, any state thereof, or the District of Columbia, it must indemnify holders against any governmental charge or other cost resulting from the transaction. |
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Neither we, Rio Tinto plc nor Rio Tinto Limited may be in default on the debt securities or guarantees immediately prior to such action and such action must not cause a default. For purposes of this no-default test, a default would include an event of default that has occurred and not been cured, as described under Default and Related Matters Events of Default What is An Event of Default? A default for this purpose would also include any event that would be an event of default if the requirements for notice of default or existence of defaults for a specified period of time were disregarded. |
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If we, Rio Tinto plc or Rio Tinto Limited merges out of existence or sells or leases substantially all of our or their assets, the successor entity must execute a supplement to the indenture, known as a supplemental indenture. In the supplemental indenture, the entity must promise to be bound by every obligation in the indenture applicable to Rio Tinto Finance (USA) Limited, Rio Tinto Finance (USA) plc, Rio Tinto plc or Rio Tinto Limited, as the case may be. |
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We, Rio Tinto plc or Rio Tinto Limited, as the case may be, must deliver a certificate and an opinion of counsel to the trustee, each stating that the consolidation, merger, conveyance, transfer or lease, and, if applicable, the supplemental indenture pursuant to which the successor entity assumes our obligations or the obligations of Rio Tinto plc or Rio Tinto Limited, are in compliance with the indenture. |
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Neither our nor Rio Tintos assets or properties may become subject to any impermissible lien unless the debt securities issued under the indenture are secured equally and ratably with the indebtedness secured by the impermissible lien. Impermissible liens are described in further detail below under Restrictive Covenants Restrictions on Liens. |
Under the indenture, Rio Tinto or any Rio Tinto subsidiary may assume our obligations under the debt securities. This would likely be a taxable event to U.S. holders. U.S. holders would likely be treated as having exchanged their debt securities for other debt securities issued by Rio Tinto or such subsidiary and therefore may have to recognize gain or loss for U.S. federal income tax purposes upon such assumption.
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Modification and Waiver
There are three types of changes we can make to the indenture and the debt securities.
Changes Requiring the Approval of all Holders. First, there are changes that cannot be made to the debt securities without the specific approval of each holder of the debt securities of the applicable series. Following is a list of those types of changes:
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changes to the stated maturity of the principal or the interest payment dates on a debt security; |
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any reduction in amounts due on a debt security; |
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changes to any of our or Rio Tintos obligations to pay additional amounts described later under Special Situations Payment of Additional Amounts; |
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any reduction in the amount of principal payable upon acceleration of the maturity of a debt security following a default; |
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changes in the place or currency of payment on a debt security; |
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any impairment of holders right to sue for payment; |
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any reduction in the percentage of holders of debt securities whose consent is needed to modify or amend the indenture; |
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any reduction in the percentage of holders of debt securities whose consent is needed to waive compliance with various provisions of the indenture or to waive various defaults; and |
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any modification, in any manner adverse to the holders of the debt securities, to the obligations of Rio Tinto plc or Rio Tinto Limited in respect of the payment of principal, premium, if any, and interest, if any. ( Section 902 ) |
Changes Requiring a Majority Vote. The second type of change to the indenture and the debt securities is the kind that requires a vote in favor by holders of debt securities owning a majority of the principal amount of the particular series affected. Most changes fall into this category, except for clarifying changes, amendments, supplements and other changes that would not adversely affect holders of the debt securities in any material respect. The same vote would be required for us to obtain a waiver of all or part of the covenants described below or a waiver of a past default. However, we cannot obtain a waiver of a payment default or any other aspect of the indenture or the debt securities listed in the first category described previously under Changes Requiring the Approval of all Holders unless we obtain the individual consent of each holder to the waiver. ( Section 513 )
Changes Not Requiring Approval. The third type of change does not require any vote by holders of debt securities. This type is limited to clarifications and other changes that would not adversely affect holders of the debt securities in any material respect. ( Section 901 )
Further Details Concerning Voting. When taking a vote, we will use the following rules to decide how much principal amount to attribute to a security:
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For original issue discount securities, we will use the principal amount that would be due and payable on the voting date if the maturity of the debt securities were accelerated to that date because of a default. |
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For debt securities whose principal amount is not known (for example, because it is based on an index), we will use a special rule for that security described in the prospectus supplement. |
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For debt securities denominated in one or more foreign currencies or currency units, we will use the U.S. dollar equivalent. |
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Debt securities will not be considered outstanding, and therefore not eligible to vote, if we have deposited or set aside in trust money for their payment or redemption. Debt securities will also not be eligible to vote if they have been fully defeased as described later under Restrictive Covenants Defeasance and Discharge. ( Section 101 ) |
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We will generally be entitled to set any day as a record date for the purpose of determining the holders of outstanding debt securities that are entitled to vote or take other action under the indenture. In limited circumstances, the trustee will be entitled to set a record date for action by holders. If we or the trustee set a record date for a vote or other action to be taken by holders of a particular series, that vote or action may be taken only by persons who are holders of outstanding debt securities of that series on the record date and must be taken within 180 days following the record date or another period that we may specify (or as the trustee may specify, if it set the record date). We may shorten or lengthen (but not beyond 180 days) this period from time to time. ( Section 104 ) |
Street name and other indirect holders should consult their banks or brokers for information on how approval may be granted or denied if we seek to change the indenture or the debt securities or request a waiver.
Optional Tax Redemption
The debt securities of any series may be redeemed in whole but not in part, in the three situations described below. The redemption price for the debt securities will be equal to the principal amount of the debt securities being redeemed plus accrued interest and any additional amounts due on the date fixed for redemption. Holders must receive between 30 and 60 days notice before their debt securities are redeemed.
The first situation is where, as a result of a change in or amendment to any laws, regulations or rulings or the official application or interpretation of such laws, regulations or rulings, or any change in the official application or interpretation of, or any execution of or any amendment to, any treaty or treaties affecting taxation, any of we, Rio Tinto plc or Rio Tinto Limited determines that it would be required to pay additional amounts as described later under Payment of Additional Amounts.
The second situation is where, as a result of a change in or amendment to any laws, rulings or regulations or the official application or interpretation of such laws, rulings or regulations, or any change in the official application or interpretation of, or any execution of or any amendment to, any treaty or treaties affecting taxation, Rio Tinto plc or Rio Tinto Limited or any subsidiary of either of them determines that it would have to deduct or withhold tax on any payment to us to enable it to make a payment of principal or interest on a debt security.
In the first and second situations, the option to redeem the debt securities applies only in the case of changes or amendments that occur on or after the date specified in the prospectus supplement for the applicable series of debt securities and in the jurisdiction where Rio Tinto plc and Rio Tinto Limited are incorporated. If we, Rio Tinto plc or Rio Tinto Limited, as the case may be, have been succeeded by another entity, the applicable jurisdiction will be the jurisdiction in which such successor entity is organized, and the applicable date will be the date the entity became a successor.
In addition, in the case of the first and second situations, we, Rio Tinto plc or Rio Tinto Limited will not have the option to redeem if we could have avoided the payment of additional amounts or the deduction or withholding by using reasonable measures available to us.
The third situation is where, following a merger or consolidation of Rio Tinto plc or Rio Tinto Limited or a transfer or lease of all of Rio Tinto plcs or Rio Tinto Limiteds assets, the person formed by such merger, consolidation, transfer or lease is organized under the laws of a jurisdiction other than the United States, the United Kingdom or Australia, or any political subdivisions thereof, and is required to pay additional amounts as described under Payment of Additional Amounts.
We, Rio Tinto plc or Rio Tinto Limited shall deliver to the trustee an Officers Certificate to the effect that the circumstances required for redemption exist. ( Sections 1104 and 1108 ).
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Payment of Additional Amounts
If the debt securities of any series provide for the payment of additional amounts, all payments of principal, premium (if any) and interest in respect of the debt securities or the guarantees will be made free and clear of, and without withholding or deduction for, any taxes, assessments, duties or governmental charges or whatever nature imposed, levied or collected by or within a Relevant Taxing Jurisdiction unless that withholding or deduction is required by law. A Relevant Taxing Jurisdiction is any jurisdiction under the laws of which we, Rio Tinto plc or Rio Tinto Limited, as the case may be, or any successor entity, are or is organized (or any political subdivision or taxing authority of or in that jurisdiction having power to tax).
The indenture provides that if withholding or deduction is required by law, then we, Rio Tinto plc or Rio Tinto Limited, as the case may be, will pay to the holder of any debt security additional amounts as may be necessary in order that every net payment of principal of (and premium, if any, on) and interest, if any, on that debt security to such holder who, with respect to any such withholding or deduction is not resident in a Relevant Taxing Jurisdiction, after deduction or other withholding for or on account of any present or future tax, assessment, duty or other governmental charge of any nature whatsoever imposed, levied or collected by or on behalf of a Relevant Taxing Jurisdiction, will not be less than the amount that would have been payable on that debt security in the absence of such deduction or withholding. However, we, Rio Tinto plc or Rio Tinto Limited, as the case may be, will not be required to make any payment of additional amounts in respect of taxes imposed as a result of any of the following circumstances:
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If the holder is a U.S. person and the U.S. government or any political subdivision of the U.S. government is the entity that is imposing the tax or governmental charge. For this purpose, a U.S. person is any person who, for U.S. federal income tax purposes, is a citizen or resident, a domestic corporation, an estate whose income is subject to taxation regardless of its source, or a trust if a U.S. court can exercise supervision over the trusts administration and one or more U.S. persons are authorized to control all substantial decisions of the trust. |
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The payment of additional amounts is for a tax or charge imposed only because the holder, or a fiduciary, settlor, beneficiary or member or shareholder of, or possessor of a power over, the holder, if the holder is an estate, trust, partnership or corporation, was or is connected to the Relevant Taxing Jurisdiction. These connections include where the holder or related party: |
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is or has been a citizen or resident of the jurisdiction; |
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is or has been engaged in trade or business in the jurisdiction; or |
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has or had a permanent establishment in the jurisdiction. |
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The payment of additional amounts is for a tax or charge imposed due to the presentation of a debt security, if presentation is required, for payment on a date more than 30 days after the security became due or after the payment was provided for. |
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The payment of additional amounts is on account of an estate, inheritance, gift, sale, transfer, personal property or similar tax or other governmental charge. |
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The payment of additional amounts is for a tax or governmental charge that is payable in a manner that does not involve withholdings. |
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The payment of additional amounts is for a tax imposed or withheld because the holder or beneficial owner failed to comply with any of our or Rio Tintos requests for the following that the statutes, treaties, regulations or administrative practices of the Relevant Taxing Jurisdiction require as a precondition to exemption from all or part of such withholding: |
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to provide information about the nationality, residence or identity of the holder or beneficial owner; or |
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to make a declaration or satisfy any information requirements. |
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In the case of a payment made by Rio Tinto plc under its guarantees or a payment made by Rio Tinto Finance (USA) plc, the payment of additional amounts results from the security being presented for payment, where presentation is required, in the United Kingdom unless presentation could not have been made elsewhere. |
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The payment of additional amounts is for any withholding or deduction imposed on a payment to an individual which is required to be made pursuant to any law implementing European Council Directive 2003/48/EC on the taxation of savings income or any other directive implementing the conclusions of the ECOFIN Council meeting of 26-27 November 2000 or any law implementing or complying with, or introduced in order to conform to, such Directive. |
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The payment of additional amounts is for any withholding or deduction required to be made with respect to a debt security presented for payment, where presentation is required, by or on behalf of a holder who would have been able to avoid such withholding or deduction by presenting the relevant debt security to another paying agent in a member state of the European Union. |
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The holder of a debt security is our associate (as that term is defined in the Australian tax legislation (the Australian Tax Act)) and, as a result, the Australian Tax Act requires withholding tax to be paid on the interest or amounts in the nature of interest payable on the debt security. |
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A determination is made under the Australian Tax Act that withholding tax is payable because the holder has participated in a scheme to avoid withholding tax provided that neither we nor Rio Tinto participated in the scheme. |
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The holder is a fiduciary or partnership or an entity that is not the sole beneficial owner of the payment of the principal of, or any interest on, any security, and the laws of the Relevant Taxing Jurisdiction require the payment to be included in the income of a beneficiary or settlor for tax purposes with respect to such fiduciary or a member of such partnership or a beneficial owner who would not have been entitled to such additional amounts had it been the holder of such security. |
These provisions will also apply to any taxes or governmental charges imposed by any jurisdiction in which a successor to us or Rio Tinto is incorporated. The prospectus supplement relating to the debt securities will describe whether additional amounts are payable with respect to that series of securities and if so, may describe additional circumstances in which we would not be required to pay additional amounts.
Additional amounts may also be payable in the event of certain consolidations, mergers, sales of assets or assumptions of obligations. For more information see Optional Tax Redemption and Taxation. References to principal, premium and interest in this prospectus shall be deemed to include additional amounts payable with respect thereto.
Restrictive Covenants
Restrictions on Liens
Some of our or Rio Tintos property may be subject to a mortgage or other legal mechanism that gives our and Rio Tintos lenders preferential rights in that property over other lenders, including the holders of the debt securities, or over our and Rio Tintos general creditors if we fail to pay them back. These preferential rights are called liens. We promise that we will not become obligated on any new debt for borrowed money that is secured by a lien on any of our or Rio Tintos properties, unless we or Rio Tinto grant an equivalent or higher-ranking lien on the same property to the holders of the debt securities.
Neither we nor Rio Tinto need to comply with this restriction if the amount of all debt that would be secured by liens on our or Rio Tintos properties, excluding the debt secured by the liens that are listed below, is less than 10% of Rio Tintos consolidated net worth plus minorities. Consolidated net worth plus minorities is defined in the indenture as a measure of the net worth of Rio Tinto that includes amounts attributable to the outside interests
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in the accounting subsidiaries of Rio Tinto. ( Sections 101 and 1007 ) At the date of this prospectus, a substantial portion of the consolidated assets of Rio Tinto is held by their subsidiaries and thus would not be subject to this restriction on liens.
This restriction on liens applies only to liens for borrowed money. In addition, this restriction on liens also does not apply to debt secured by a number of different types of liens. These types of liens include the following:
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any lien existing on or before the date of the issuance of the applicable series of debt securities; |
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any lien arising by operation of law and not as a result of any act or omission on our or Rio Tintos part; |
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liens arising from any judgment against us or Rio Tinto that does not give rise to an event of default; |
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any lien created on property (or the title documents for that property) acquired after the date of the issuance of the applicable series of debt securities for the sole purpose of financing or refinancing or securing the cost of that property so long as the principal moneys secured by the property do not exceed the cost of that acquisition; |
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any lien over property (or the title documents for that property) that was in existence at the time we or Rio Tinto acquired the property; |
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any lien over assets and/or, where such assets comprise substantially the whole of the assets of their owner, shares or stock in the owner of those assets that secures project finance borrowing to finance the costs of developing, or acquiring and developing, those assets; |
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any lien over property, including improvements, which was developed, constructed or improved by us or Rio Tinto, acquired after the date of the issuance of the applicable series of debt securities, |
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to secure the payment of all or any part of the cost of development or construction of or improvement on the property, or |
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to secure indebtedness incurred by us or Rio Tinto for the purpose of financing all or any part of the cost of development or construction or of improvements on the property, |
so long as the secured indebtedness does not exceed the higher of the cost or the fair market value of that development, construction or improvement;
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any lien arising solely by operation of law over any credit balance or cash held in an account with a financial institution; |
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any lien arising in transactions entered into or established for our or Rio Tintos benefit in connection with any of the following: |
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the operation of cash management programs; |
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other payment netting arrangements; |
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derivatives transactions (including swaps, caps, collars, options, futures transactions, forward rate agreements and foreign exchange transactions and any other similar transaction (including any option with respect to any of the foregoing) and any combination of any of the foregoing); |
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other normal banking transactions; or |
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in the ordinary course of letter of credit transactions; |
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any lien securing our or Rio Tintos indebtedness for borrowed money incurred in connection with the financing of our or Rio Tintos accounts receivable; |
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any lien arising in the ordinary course of dealings in base and precious metals, other minerals, petroleum or any other materials; |
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any lien incurred or deposits made in the ordinary course of business, including, but not limited to; |
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any mechanics, materialmens, carriers, workmens, vendors or similar lien; |
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any lien securing amounts in connection with workers compensation unemployment insurance and other types of social security; and |
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any easements, right-of-way, restrictions and other similar charges; |
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any lien securing all or part of our or Rio Tintos interest in any mine or mineral deposit and/or facilities and/or any agreement or instrument relating to a mine or mineral deposit that is in favor of any operator or participant in that mine, mineral deposit or facility if |
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the lien serves as security for any sum which may become due to |
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an operator in its capacity as operator; or |
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to a participant by virtue of any agreement or instrument relating to such mine or mineral deposit and/or facilities; and |
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the lien is limited to the relevant mine or mineral deposit and/or facilities; |
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any lien upon specific items of our or Rio Tintos inventory or other goods, and proceeds inventory or other goods, securing our or Rio Tintos obligations relating to bankers acceptances, issued or created for our or Rio Tintos account to facilitate the purchase, shipment or storage of the inventory or other goods; |
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any lien incurred or deposits made securing our or Rio Tintos performance of tenders, bids, leases, statutory obligations, surety and appeal bonds, government contracts, performance and return-of-money bonds and other obligations of like nature incurred in the ordinary course of our or Rio Tintos business; |
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any lien on any of our or Rio Tintos property in favor of the Federal Government of the United States or the government of any state thereof, or the government of Australia or the government of any state or territory thereof, the United Kingdom, or the government of any member nation of the European Union, or any instrumentality of any of them, securing our or Rio Tintos obligations under any contract or payments owed to such entity pursuant to applicable laws, rules, regulations or statutes; |
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any liens securing taxes or assessments or other applicable governmental charges or levies; |
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any liens securing industrial revenue, development or similar bonds issued by us or Rio Tinto, or for our or Rio Tintos benefit, provided that the industrial revenue, development or similar bonds are non-recourse to us or Rio Tinto; |
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the sale or other transfer of |
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any minerals in place, or for the future production of minerals, for a specified period of time or in any amount such that, the purchaser will realize from such sale or transfer a specified amount of money or minerals; or |
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any other interest in property that is commonly referred to as a production payment; |
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any liens in favor of any company in the Rio Tinto Group; |
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any liens securing indebtedness for which we or Rio Tinto have paid money or deposited securities in an arrangement to discharge in full any liability relating to that indebtedness; and |
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any extension, renewal or replacement (or successive extensions, renewals or replacements), as a whole or in part, of any lien referred to above, so long as |
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the amount does not exceed the principal amount of the borrowed money secured by the lien which is to be extended, renewed or replaced; and |
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the extension, renewal or replacement lien is limited to all or a part of the same property, including improvements, that secured the lien to be extended, renewed or replaced. ( Section 1007 ) |
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Under the indenture, the following are not considered liens securing indebtedness and so are not prevented by the restrictions:
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any acquisition of any property or assets by us or Rio Tinto that is subject to any reservation that creates or reserves for the seller an interest in any metals or minerals in place or the proceeds from their sale; |
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any conveyance or assignment in which we or Rio Tinto convey or assign an interest in any metals or minerals in place or the proceeds from their sale; or |
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any lien upon any of our or Rio Tintos wholly or partially owned or leased property or assets, to secure the payment of our or Rio Tintos proportionate part of the development or operating expenses in realizing the metal or mineral resources of such property. |
Restrictions on Sales and Leasebacks
Neither we, Rio Tinto plc nor Rio Tinto Limited will enter into any sale and leaseback transaction involving a property, other than as allowed by this covenant. A sale and leaseback transaction is an arrangement between us or Rio Tinto and a bank, insurance company or other lender or investor where we lease a property that we previously owned for more than 270 days and sold to a lender or investor or to any person to whom the lender or investor has advanced funds on the security of the principal property.
The restriction on sales and leasebacks does not apply to any sale and leaseback transaction between any companies of the Rio Tinto Group. It also does not apply to any lease with a term, including renewals, of three years or less. Further, the indenture does not restrict the ability of any subsidiary (other than Rio Tinto Finance (USA) Limited and Rio Tinto Finance (USA) plc) to enter into sale and leaseback transactions. At the date of this prospectus, a substantial portion of our and Rio Tintos consolidated assets is held directly by subsidiaries and so would not be subject to the covenant restricting sale and leaseback transactions.
The covenant allows us or Rio Tinto to enter into sale and leaseback transactions in two additional situations. First, we or Rio Tinto may enter sale and leaseback transactions if we could grant a lien on the property in an amount equal to the indebtedness attributable to the sale and leaseback transaction without being required to grant an equivalent or higher-ranking lien to the holders of the debt securities under the restriction on liens described above.
Second, we or Rio Tinto may enter sales and leaseback transactions if, within one year of the transaction, we or Rio Tinto, as the case may be, invest an amount equal to at least the net proceeds of the sale of the principal property that we or Rio Tinto, as the case may be, lease in the transaction or the fair value of that property, whichever is greater. This amount must be invested in any of our or Rio Tintos property or used to retire indebtedness for money that we borrowed, incurred or assumed that either has a maturity of 12 months or more from the date of incurrence of the indebtedness or which may be extended beyond 12 months from that date at our and Rio Tintos option. ( Section 1008 )
Defeasance and Covenant Defeasance
The following discussion of defeasance and discharge will be applicable to a series of debt securities only if the prospectus supplement applicable to the series so states. ( Article 13 ).
Defeasance and Discharge
We, Rio Tinto plc and Rio Tinto Limited can legally release ourselves from any payment or other obligations on the debt securities, except for various obligations described below, if we, Rio Tinto plc or Rio Tinto Limited, in addition to other actions, put in place the following arrangements for you to be repaid:
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We, Rio Tinto plc or Rio Tinto Limited must deposit in trust for the benefit of all other direct holders of the debt securities a combination of money and U.S. government or U.S. government agency notes |
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or bonds that will generate enough cash to make interest, principal and any other payments on the debt securities on their various due dates. |
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We, Rio Tinto plc or Rio Tinto Limited must deliver to the trustee a legal opinion of counsel of recognized standing with respect to such matters confirming that either (A) there has been a change in U.S. federal income tax law or (B) we have received from, or there has been published by, the U.S. Internal Revenue Service a ruling in each case to the effect that we may make the above deposit without causing holders to be taxed on the debt securities any differently than if we did not make the deposit and just repaid the debt securities ourselves. |
However, even if we, Rio Tinto plc or Rio Tinto Limited take these actions, a number of our obligations relating to the debt securities will remain. These include the following obligations:
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to register the transfer and exchange of debt securities; |
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to replace mutilated, destroyed, lost or stolen debt securities; |
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to maintain paying agencies; and |
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to hold money for payment in trust. |
Covenant Defeasance
We, Rio Tinto plc or Rio Tinto Limited can be legally released from compliance with certain covenants, including those described under Restrictive Covenants and any that may be described in the applicable prospectus supplement and including the related Events of Default if we, Rio Tinto plc or Rio Tinto Limited, as the case may be, take all the steps described above under Defeasance and Discharge except that the opinion of counsel does not have to refer to a change in U.S. federal income tax laws or a ruling from the U.S. Internal Revenue Service.
Further Issues
We may from time to time, without your consent, create and issue further notes having the same terms and conditions as the notes so that the further issue is consolidated and forms a single series with such notes, provided that such further issue constitutes a qualified reopening for U.S. federal income tax purposes or such further notes are issued with not more than a de minimis amount of original issue discount for U.S. federal income tax purposes.
Default and Related Matters
Ranking
The debt securities are not secured by any of our property or assets nor Rio Tintos property or assets. Accordingly, holders of debt securities are unsecured creditors of Rio Tinto. The debt securities are not subordinated to any of our or Rio Tintos other debt obligations and therefore they rank equally with all our and Rio Tintos other unsecured and unsubordinated indebtedness.
Events of Default
Holders will have special rights if an event of default occurs and is not cured, as described later in this subsection.
What Is An Event of Default? The term event of default means any of the following:
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Neither we, Rio Tinto plc nor Rio Tinto Limited pay the principal or any premium on a debt security and, in the case of technical or administrative difficulties, only if such failure to pay persists for more than three business days. As used here, a business day is a week day on which financial institutions in New York and the applicable place of payment are open for business. |
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Neither we, Rio Tinto plc nor Rio Tinto Limited pay interest or any additional amounts on a debt security within 30 days of its due date. |
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Neither we, Rio Tinto plc nor Rio Tinto Limited make a deposit of any applicable sinking fund payment within 30 days of its due date, or any applicable longer period of grace. |
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We, Rio Tinto plc or Rio Tinto Limited remain in breach of a covenant or any other term of the indenture or series of debt securities for 90 days after we, Rio Tinto plc or Rio Tinto Limited, as the case may be, receive a notice of default stating we, Rio Tinto plc or Rio Tinto Limited are in breach. The notice must be sent by either the trustee or holders of 25% of the principal amount of debt securities of the affected series. |
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We, Rio Tinto plc or Rio Tinto Limited file for bankruptcy or certain other events in bankruptcy, insolvency or reorganization occur, unless, in the case of Rio Tinto plc or Rio Tinto Limited, the reorganization is a voluntary winding up carried out in accordance with English or Australian statutory requirements as applicable and which results in a legal entity that is liable under the guarantees, and which owns the assets of Rio Tinto plc or Rio Tinto Limited, respectively. |
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Our or Rio Tintos other borrowings in principal amount of at least U.S.$50,000,000 are accelerated by reason of a default and steps are taken to obtain repayment of these borrowings. |
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We or Rio Tinto fail to make a payment of principal of at least U.S.$50,000,000 or fail to honor any guarantee or indemnity with respect to borrowings of at least U.S.$50,000,000 and steps are taken to enforce either of these obligations. |
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Any mortgage, pledge or other charge granted by us or Rio Tinto in relation to any borrowing of at least U.S.$50,000,000 becomes enforceable and steps are taken to enforce the mortgage, pledge or other charge, as the case may be. |
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Any other event of default described in the prospectus supplement occurs. ( Section 501 ) |
Remedies If an Event of Default Occurs. If an event of default has occurred and has not been cured, the trustee or the holders of 25% in principal amount of the debt securities of the affected series may declare the entire principal amount of all the debt securities of that series to be due and immediately payable. This is called a declaration of acceleration of maturity. A declaration of acceleration of maturity may be canceled by the holders of at least a majority in principal amount of the debt securities of the affected series if we, Rio Tinto plc or Rio Tinto Limited have paid the outstanding amounts, other than amounts due because of the acceleration of maturity, and we, Rio Tinto plc or Rio Tinto Limited have satisfied certain other conditions. ( Section 502 )
Except in cases of default, where the trustee has some special duties, the trustee is not required to take any action under the indenture at the request of any holders unless the holders offer the trustee reasonable protection from expenses and liability. This protection is called an indemnity. ( Section 603 ) If reasonable indemnity is provided, the holders of a majority in principal amount of the outstanding debt securities of the relevant series may direct the time, method and place of conducting any lawsuit or other formal legal action seeking any remedy available to the trustee. These majority holders may also direct the trustee in performing any other action under the indenture. ( Section 512 )
Before bypassing the trustee and bringing a lawsuit or other formal legal action or taking other steps to enforce rights or protect interests relating to the debt securities, the following must occur:
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The trustee must be given written notice that an event of default has occurred and remains uncured. |
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The holders of 25% in principal amount of all outstanding debt securities of the relevant series must make a written request that the trustee take action because of the default, and must offer reasonable indemnity to the trustee against the cost and other liabilities of taking that action. |
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The trustee must have not taken action for 60 days after receipt of the above notice and offer of indemnity and the trustee has not received an inconsistent direction from the holders of a majority in principal amount of all outstanding debt securities during that period. ( Section 507 ) |
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However, such limitations do not apply to a suit instituted for the enforcement of payment of the principal of or interest on a debt security on or after the respective due dates. ( Section 508 ).
Street name and other indirect holders should consult their banks or brokers for information on how to give notice or direction to or make a request of the trustee and to make or cancel a declaration of acceleration.
We and Rio Tinto will furnish to the trustee every year a written statement of certain of our and Rio Tintos officers certifying that, to their knowledge, we and Rio Tinto are in compliance with the indenture and the debt securities, or else specifying any default. ( Section 1005 )
Regarding The Trustee
If an event of default occurs, or an event occurs that would be an event of default if the requirements for giving default notice or the default having to exist for a specific period of time were disregarded, the trustee may be considered to have a conflicting interest with respect to the debt securities for purposes of the Trust Indenture Act of 1939. In that case, the trustee may be required to resign as trustee under the applicable indenture and we or Rio Tinto would be required to appoint a successor trustee.
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General
Debt securities we issue may be held through one or more international and domestic clearing systems. The principal clearing systems we will use are the book-entry systems operated by The Depository Trust Company, or DTC, in the United States, Clearstream Banking, société anonyme in Luxembourg (Clearstream, Luxembourg) and Euroclear SA/NV (Euroclear) in Brussels, Belgium. These systems have established electronic securities and payment transfer, processing, depositary and custodial links among themselves and others, either directly or through custodians and depositaries. These links allow securities to be issued, held and transferred among the clearing systems without the physical transfer of certificates.
Special procedures to facilitate clearance and settlement have been established among these clearing systems to trade securities across borders in the secondary market. Where payments for registered securities in global form will be made in U.S. dollars, these procedures can be used for cross-market transfers and the securities will be cleared and settled on a delivery against payment basis.
Cross-market transfers of securities that are not in global form may be cleared and settled in accordance with other procedures that may be established among the clearing systems for these securities. Investors in securities that are issued outside of the United States, its territories and possessions must initially hold their interests through Euroclear, Clearstream, Luxembourg or the clearance system that is described in the applicable prospectus supplement.
The policies of DTC, Clearstream, Luxembourg, and Euroclear will govern payments, transfers, exchange and other matters relating to the investors interest in securities held by them. This is also true for any other clearance system that may be named in a prospectus supplement.
We have no responsibility for any aspect of the actions of DTC, Clearstream, Luxembourg or Euroclear or any of their direct or indirect participants. We have no responsibility for any aspect of the records kept by DTC, Clearstream, Luxembourg or Euroclear or any of their direct or indirect participants. We also do not supervise these systems in any way. This is also true for any other clearing system indicated in a prospectus supplement.
DTC, Clearstream, Luxembourg, Euroclear and their participants perform these clearance and settlement functions under agreements they have made with one another or with their customers. You should be aware that they are not obligated to perform these procedures and may modify them or discontinue them at any time.
The description of the clearing systems in this section reflects our understanding of the rules and procedures of DTC, Clearstream, Luxembourg and Euroclear as they are currently in effect. These systems could change their rules and procedures at any time.
The Clearing Systems
DTC
DTC has advised us as follows:
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DTC is: |
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a limited purpose trust company organized under the laws of the State of New York; |
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a banking corporation within the meaning of the New York Banking Law; |
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a member of the Federal Reserve System; |
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a clearing corporation within the meaning of the Uniform Commercial Code; and |
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a clearing agency registered pursuant to the provisions of Section 17A of the Exchange Act. |
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DTC was created to hold securities for its participants and to facilitate the clearance and settlement of securities transactions between participants through electronic book-entry changes to accounts of its participants. This eliminates the need for physical movement of certificates. |
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Participants in DTC include securities brokers and dealers, banks, trust companies and clearing corporations and may include certain other organizations. DTC is partially owned by some of these participants or their representatives. |
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Indirect access to the DTC system is also available to banks, brokers, dealers and trust companies that have relationships with participants. |
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The rules applicable to DTC and DTC participants are on file with the SEC. |
Clearstream, Luxembourg
Clearstream, Luxembourg has advised us as follows:
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Clearstream, Luxembourg is a duly licensed bank organized as a société anonyme incorporated under the laws of Luxembourg and is subject to regulation by the Luxembourg Commission for the Supervision of the Financial Sector ( Commission de Surveillance du Secteur Financier ). |
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Clearstream, Luxembourg holds securities for its customers and facilitates the clearance and settlement of securities transactions among them. It does so through electronic book-entry changes to the accounts of its customers. This eliminates the need for physical movement of certificates. |
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Clearstream, Luxembourg provides other services to its participants, including safekeeping, administration, clearance and settlement of internationally traded securities and lending and borrowing of securities. It interfaces with the domestic markets in over 30 countries through established depositary and custodial relationships. |
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Clearstream, Luxembourgs customers include worldwide securities brokers and dealers, banks, trust companies and clearing corporations and may include professional financial intermediaries. Its U.S. customers are limited to securities brokers and dealers and banks. |
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Indirect access to the Clearstream, Luxembourg system is also available to others that clear through Clearstream, Luxembourg customers or that have custodial relationships with its customers, such as banks, brokers, dealers and trust companies. |
Euroclear
Euroclear has advised us as follows:
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Euroclear is incorporated under the laws of Belgium as a bank and is subject to regulation by the Belgian Banking, Finance and Insurance Commission ( Commission Bancaire et Financiére et des Assurances ) and the National Bank of Belgium ( Banque Nationale de Belgique ). |
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Euroclear holds securities for its customers and facilitates the clearance and settlement of securities transactions among them. It does so through simultaneous electronic book-entry delivery against payment, thereby eliminating the need for physical movement of certificates. |
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Euroclear provides other services to its customers, including credit custody, lending and borrowing of securities and tri-party collateral management. It interfaces with the domestic markets of several other countries. |
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Euroclear customers include banks, including central banks, securities brokers and dealers, banks, trust companies and clearing corporations and may include certain other professional financial intermediaries. |
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Indirect access to the Euroclear system is also available to others that clear through Euroclear customers or that have relationships with Euroclear customers. |
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All securities in Euroclear are held on a fungible basis. This means that specific certificates are not matched to specific securities clearance accounts. |
Other Clearing Systems
We may choose any other clearing system for a particular series of debt securities. The clearance and settlement procedures for the clearing system we choose will be described in the applicable prospectus supplement.
Primary Distribution
The distribution of debt securities will be cleared through one or more of the clearing systems that we have described above or any other clearing system that is specified in the applicable prospectus supplement. Payment for debt securities will be made on a delivery versus payment or free delivery basis. These payment procedures will be more fully described in the applicable prospectus supplement.
Clearance and settlement procedures may vary from one series of debt securities to another according to the currency that is chosen for the specific series of debt securities. Customary clearance and settlement procedures are described below.
We will submit applications to the relevant system or systems for the debt securities to be accepted for clearance. The clearance numbers that are applicable to each clearance system will be specified in the applicable prospectus supplement.
Clearance and Settlement Procedures DTC
DTC participants that hold securities through DTC on behalf of investors will follow the settlement practices applicable to U.S. corporate debt obligations in DTCs Same-Day Funds Settlement System.
Debt securities will be credited to the securities custody accounts of these DTC participants against payment in the same-day funds, for payments in U.S. dollars, on the settlement date. For payments in a currency other than U.S. dollars, securities will be credited free of payment on the settlement date.
Clearance and Settlement Procedures Euroclear and Clearstream, Luxembourg
We understand that investors that hold their securities through Euroclear or Clearstream, Luxembourg accounts will follow the settlement procedures that are applicable to conventional Eurobonds in registered form.
Debt securities will be credited to the securities custody accounts of Euroclear and Clearstream, Luxembourg participants on the business day following the settlement date, for value on the settlement date. They will be credited either free of payment or against payment for value on the settlement date.
Secondary Market Trading
Trading between DTC Participants
We understand that secondary market trading between DTC participants will occur in the ordinary way in accordance with DTCs rules. Secondary market trading will be settled using procedures applicable to U.S. corporate debt obligations in DTCs Same-Day Funds Settlement System.
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If payment is made in U.S. dollars, settlement will be in same-day funds. If payment is made in a currency other than U.S. dollars, settlement will be free of payment. If payment is made other than in U.S. dollars, separate payment arrangements outside of the DTC system must be made between the DTC participants involved.
Trading between Euroclear and/or Clearstream, Luxembourg Participants
We understand that secondary market trading between Euroclear and/or Clearstream, Luxembourg participants will occur in the ordinary way following the applicable rules and operating procedures of Euroclear and Clearstream, Luxembourg. Secondary market trading will be settled using procedures applicable to conventional Eurobonds in registered form.
Trading between a DTC Seller and a Euroclear or Clearstream, Luxembourg Purchaser
A purchaser of debt securities that are held in the account of a DTC participant must send instructions to Euroclear or Clearstream, Luxembourg at least one business day prior to settlement. The instructions will provide for the transfer of the securities from the selling DTC participants account to the account of the purchasing Euroclear or Clearstream, Luxembourg participant. Euroclear or Clearstream, Luxembourg, as the case may be, will then instruct the common depositary for Euroclear and Clearstream, Luxembourg to receive the debt securities either against payment or free of payment.
The beneficial interests in the debt securities will be credited to the respective clearing system. The clearing system will then credit the account of the participant, following its usual procedures. Credit for the debt securities will appear on the next day, European time. Cash debit will be back-valued to, and the interest on the debt securities will accrue from, the value date, which would be the preceding day, when settlement occurs in New York. If the trade fails and settlement is not completed on the intended date, the Euroclear or Clearstream, Luxembourg cash debit will be valued as of the actual settlement date instead.
Euroclear participants or Clearstream, Luxembourg participants will need the funds necessary to process same-day funds settlement. The most direct means of doing this is to preposition funds for settlement, either from cash or from existing lines of credit, as for any settlement occurring within Euroclear or Clearstream, Luxembourg. Under this approach, participants may take on credit exposure to Euroclear or Clearstream, Luxembourg until the securities are credited to their accounts one business day later.
As an alternative, if Euroclear or Clearstream, Luxembourg has extended a line of credit to them, participants can choose not to preposition funds and will allow that credit line to be drawn upon to finance settlement. Under this procedure, Euroclear participants or Clearstream, Luxembourg participants purchasing debt securities would incur overdraft charges for one business day, (assuming they cleared the overdraft as soon as the debt securities were credited to their accounts). However, interest on the debt securities would accrue from the value date. Therefore, in many cases, the investment income on debt securities that is earned during that one business day period may substantially reduce or offset the amount of the overdraft charges. This result will, however, depend on each participants particular cost of funds.
Because the settlement will take place during New York business hours, DTC participants will use their usual procedures to deliver debt securities to the depositary on behalf of Euroclear participants or Clearstream, Luxembourg participants. The sale proceeds will be available to the DTC seller on the settlement date. For the DTC participants, then, a cross-market transaction will settle no differently than a trade between two DTC participants.
Special Timing Considerations
You should be aware that investors will only be able to make and receive deliveries, payments and other communications involving debt securities through Clearstream, Luxembourg and Euroclear on days when those systems are open for business. Those systems may not be open for business on days when banks, brokers and other institutions are open for business in the United States.
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In addition, because of time-zone differences, there may be problems with completing transactions involving Clearstream, Luxembourg and Euroclear on the same business day as in the United States. U.S. investors who wish to transfer their interests in the debt securities, or to receive or make a payment or delivery of debt securities, on a particular day, may find that the transactions will not be performed until the next business day in Luxembourg or Brussels, depending on whether Clearstream, Luxembourg or Euroclear is used.
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This section describes the material Australian, U.K. and U.S. federal income tax consequences of acquiring, owning and disposing of debt securities that we may issue.
Australian Taxation
The following is a summary of the principal Australian tax consequences generally applicable to a holder who is a resident of the United States and not a resident of Australia for tax purposes (a United States holder) and who holds debt securities issued by Rio Tinto Finance (USA) Limited (the RTL Debt Securities ) or by Rio Tinto Finance (USA) plc (the RTP Debt Securities ). This summary reflects the current provisions of the Australian Income Tax Assessment Act 1936 and the Australian Income Tax Assessment Act 1997 (together, Australian Tax Act).
The following summary is not exhaustive of all possible Australian income tax considerations that could apply to particular holders. These considerations may vary according to your individual circumstances.
Australias income tax laws are currently subject to review by the Federal Government. The summary below is based upon our understanding of the current law (except as expressly stated) and of the implications of changes that have been announced by the Australian Government in only very general terms. This summary does not otherwise take into account or anticipate changes in the law, whether by way of judicial decision or legislative action.
In the opinion of Allens Arthur Robinson, our and Rio Tintos Australian taxation legal counsel, the following are the material Australian tax consequences of an investment in debt securities generally applicable to a United States holder, on the basis of Australian law as in effect at the date of this prospectus, which (as indicated above) is subject to change, possibly with retroactive effect.
Payments of Principal, Premium and Interest on RTL Debt Securities
Under existing Australian income tax law, United States holders of RTL Debt Securities, other than persons holding such securities or interests as part of a business carried on at or through a permanent establishment in Australia (an Australian Establishment), are not subject to Australian income tax on payments of principal or interest made to that holder, other than interest withholding tax (currently 10%) on interest (or amounts in the nature of interest) paid on such debt securities (unless the Section 128F exemption described below applies). Subject to the following, where a United States holder makes a gain on disposal of an RTL Debt Security (including any gain on redemption of such security by the issuer), the holders gain will not be subject to Australian income tax provided the gain is not sourced in Australia, as described in Gains on Disposal below, and the holder does not hold the security as part of an Australian Establishment. However, Australian tax may be payable to the extent that those conditions do not exist. Also, to the extent that any such gain is treated as interest, as described in Gains on Disposal below, or in the nature of interest, Australian withholding tax may apply.
Pursuant to Section 128F of the Australian Tax Act, an exemption from Australian interest withholding tax (IWT) applies provided the following conditions are met:
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Rio Tinto Finance (USA) Limited is a resident of Australia when it issues the debt securities and when interest, as defined in Section 128A(1AB), is paid. Interest is defined to include amounts in the nature of, or in substitution for, interest. |
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The debt securities are issued in a manner that satisfies the public offer test of Section 128F under the Australian Tax Act (described below). |
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Rio Tinto Finance (USA) Limited does not know, or have reasonable grounds to suspect, at the time of issue that the debt securities or an interest in them were being, or would later be, acquired, directly or indirectly, by one of its associates (as defined in Section 128F(9) of the Australian Tax Act), except as permitted by Section 128F(5) of the Australian Tax Act. |
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At the time of the payment of interest on the debt securities, Rio Tinto Finance (USA) Limited did not know or have reasonable grounds to suspect that the payee is its associate, except as permitted by Section 128F(6) of the Australian Tax Act. |
An associate of Rio Tinto Finance (USA) Limited for the purposes of Section 128F of the Australian Tax Act generally includes (i) a person or entity which holds 50% of the voting shares of, or otherwise controls, Rio Tinto Finance (USA) Limited, (ii) an entity which is a subsidiary of, or otherwise controlled by, Rio Tinto Finance (USA) Limited, (iii) a trustee of a trust where Rio Tinto Finance (USA) Limited is capable of benefiting (whether directly or indirectly) under that trust, and (iv) a person or entity who is an associate of another person or company which is an associate of Rio Tinto Finance (USA) Limited under any of the foregoing.
However, for the purposes of Sections 128F(5) and (6) of the Australian Tax Act (see above), associate does not include:
(A) | onshore associates (i.e. Australian resident associates who do not hold the debt securities in the course of carrying on business at or through a permanent establishment outside Australia and non-resident associates who hold the debt securities in the course of carrying on business at or through an Australian Establishment); or |
(B) | offshore associates (i.e. Australian resident associates that hold the debt securities in the course of carrying on business at or through a permanent establishment outside Australia and non-resident associates who do not hold the debt securities in the course of carrying on business through an Australian Establishment) who are acting in the capacity of: |
(i) | in the case of Section 128F(5) only, a dealer, manager or underwriter in relation to the placement of the relevant debt securities; or |
(ii) | a clearing house, custodian, funds manager, responsible entity of a registered scheme or, in the case of Section 128F(6) only, paying agent. |
There are five principal methods of satisfying the public offer test. In summary, the five principal methods are:
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offers of the relevant debt securities to 10 or more professional financiers, investors or dealers who are not associates of each other; |
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offers of the relevant debt securities to 100 or more potential investors; |
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offers of the relevant debt securities which are listed on a stock exchange; |
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offers of the relevant debt securities via a publicly available financial markets dealing platform; and |
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offers of the relevant debt securities to dealers, managers or underwriters who offer to sell the debt securities within 30 days by one of the preceding methods. |
Rio Tinto Finance (USA) Limited intends to offer and sell debt securities in a manner that will satisfy the requirements of Section 128F of the Australian Tax Act.
As set out in more detail in the section entitled Description of Guaranteed Debt Securities Special Situations Payment of Additional Amounts, if Rio Tinto Finance (USA) Limited should at any time be compelled by law to deduct or withhold an amount in respect of any Australian withholding taxes, it is required, subject to the exceptions described, to pay such additional amounts as may be necessary in order to ensure that
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the net amounts you receive in respect of the debt securities after such deductions or withholding will equal the respective amounts that would have been receivable had no such deduction or withholding been required.
Payments of Principal and Interest on RTP Debt Securities
Under existing Australian income tax law, United States holders of RTP Debt Securities will not be subject to Australian income tax on payments of principal or interest on RTP Debt Securities provided such payments are not sourced in Australia, as is expected to be the case, and the holder does not hold the security as part of an Australian Establishment. Further, payments of interest on such securities will not be subject to Australian IWT provided (as is expected) that Rio Tinto Finance (USA) plc does not carry on business in Australia through an Australian Establishment.
Payments under the Guarantee
IWT at the rate of 10% may be payable on payments of interest, or interest paid on an overdue amount, by Rio Tinto Limited pursuant to its guarantee of RTL Debt Securities to United States holders (other than those holding the debt securities in the course of carrying on a business at or through an Australian Establishment).
Whether payments under the guarantee would be interest for withholding tax purposes is not clear. The Australian Taxation Offices ruling, as reflected in Taxation Determination TD 1999/26, is that such payments under a guarantee would be interest for withholding tax purposes. However that Determination also states that guarantee payments would be treated as exempt from withholding tax under Section 128F if the requirements of that section are satisfied. Therefore, if the requirements of Section 128F as described above are satisfied in relation to the debt securities, interest withholding tax should not be payable in relation to the guarantee payments.
IWT will not be payable on payments by Rio Tinto plc pursuant to its guarantee of RTP Debt Securities to United States holders provided Rio Tinto Finance (USA) plc does not carry on business in Australia at or through an Australian Establishment (which is not presently expected to be the case).
Gains on Disposal
Under existing Australian law, United States holders of RTL Debt Securities or RTP Debt Securities will not be subject to Australian income tax on gains arising from a disposal of debt securities (including a disposal by way of redemption) provided that the gains do not have an Australian source.
The source of any gain on disposal of debt securities will depend on the factual circumstances of the disposal. Where the disposal occurs by way of a sale to a third party, then provided the debt securities are acquired and sold pursuant to contractual arrangements entered into and concluded outside Australia, and the seller and the purchaser are non-residents of Australia and do not have Australian Establishments, a gain will not be regarded as having an Australian source. Where disposal occurs by way of redemption by the issuer then, in the absence of special circumstances, a gain on redemption will not be regarded as having an Australian source.
There are specific rules (Section 128AA of the Australian Tax Act) that can apply to treat a portion of the sale price of debt securities as interest for withholding tax purposes. These rules apply when certain debt securities originally issued at a discount or with maturity premium, generally speaking, or which do not pay interest at least annually are sold to:
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an Australian resident that does not acquire the debt securities in the course of carrying on a trade or business through a permanent establishment outside Australia; or |
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a non-resident of Australia who acquires the debt securities as part of an Australian Establishment. |
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However, section 128AA should not apply to the RTP Debt Securities provided Rio Tinto Finance (USA) plc does not carry on business in Australia at or through an Australian Establishment (which is not presently expected to be the case). Further, in relation to the RTL Debt Securities, if the issue of those securities satisfies the public offer test, such portions of deemed interest will be covered by the exemption from Australian interest withholding tax contained in Section 128F of the Australian Tax Act.
Other Taxes
No ad valorem stamp, issue, registration or similar taxes are payable in Australia in connection with the issue of the debt securities. Furthermore, a transfer of or agreement to transfer debt securities, executed outside of Australia, will not be subject to Australian stamp duty.
The Commissioner of Taxation of the Commonwealth of Australia may give a direction under Section 255 of the Australian Tax Act or Section 260-5 of the Taxation Administration Act 1953 (TAA) requiring the issuer of debt securities to deduct from any payment to any other party (including any holder of debt securities) any amount in respect of income tax payable by that other party in respect of the other partys other Australian sourced income or sales.
Section 12-140 of the TAA will impose a type of withholding tax at the rate of (currently) 46.5% on the payment of interest on certain securities unless the relevant investor has quoted a tax file number, in certain circumstances an Australian Business Number or proof of some other exception. In relation to the RTL Debt Securities, assuming that the debt securities will at all material times be in registered form and the requirements of Section 128F of the Australian Tax Act are satisfied with respect to the debt securities, these rules should not apply to payments to a holder of debt securities who is not a resident of Australia for tax purposes and not holding the debt securities in the course of carrying on business at or through an Australian Establishment. Withholdings may be made from payments to holders of debt securities who are residents of Australia or non-residents who carry on business at or through an Australian Establishment but who do not quote a tax file number, Australian Business Number or provide proof of an appropriate exemption.
Section 12-190 of the TAA imposes another type of withholding obligation such that if Rio Tinto Finance (USA) Limited makes a payment to a holder of an RTL Debt Security for a supply the holder of the debt security has made to Rio Tinto Finance (USA) Limited in the course or furtherance of an enterprise carried on in Australia by that holder, Rio Tinto Finance (USA) Limited must withhold amounts from that payment at the prescribed rate (currently 46.5%) unless that holder has quoted their ABN or another exception applies. There is some uncertainty as to the precise operation of these rules. However, these rules will not apply to payments of principal and interest to holders of RTL Debt Securities where a tax file number, Australian Business Number, or proof that a relevant exemption is applicable has been provided (in accordance with the above paragraph), or a deduction has been made by us for a failure to provide such information. Although the position is not free from doubt, on the basis that all holders of RTL Debt Securities will fall within Section 12-140 (discussed above), the withholding requirements in Section 12-190 of the TAA should have no residual operation. Section 12-190 will not apply to RTP Debt Securities provided Rio Tinto Finance (USA) plc does not carry on business in Australia or through an Australian Establishment (which is not presently expected to be the case).
No debt securities will be subject to death, estate or succession duties imposed by Australia, or by any political subdivision therein having the power to tax, if held at the time of death.
Neither the issue of the debt securities nor the payment of principal, premium (if any) and interest by us in respect of the debt securities would give rise to a liability to a goods and services tax in Australia.
Taxation of Financial Arrangements
Division 230 of the Australian Tax Act contains provisions dealing with the taxation of financial arrangements (the TOFA laws). Debt securities will generally be financial arrangements for the purposes of the
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TOFA laws. In relation to RTL Debt Securities, a United States holder will not be taxed under the TOFA laws for payments of interest or amounts in the nature of interest under the securities because such payments are subject to the withholding tax rules (including the exemption from withholding tax under section 128F described above). Further, a United States holder of such securities will not otherwise be taxed under the TOFA laws for gains relating to the securities provided any such gains do not have an Australian source and the holder does not hold the securities as part of an Australian Establishment. In relation to RTP Debt Securities, a United States holder will not be taxed under the TOFA laws for gains relating to the securities provided any such gains do not have an Australian source and the holder does not hold the securities as part of an Australian Establishment.
United Kingdom Taxation
The comments below are of a general nature, are based on current United Kingdom tax law, as applied in England and Wales and published practice of the United Kingdom HM Revenue & Customs (HMRC) and are not intended to be exhaustive. They do not necessarily apply where the income is deemed for tax purposes to be the income of any person other than the holder of the debt securities. They relate only to the position of persons who are resident outside of the United Kingdom for tax purposes (and not resident or, in the case of individuals, ordinarily resident in the United Kingdom for United Kingdom tax purposes) and who are the absolute beneficial owners of their debt securities and may not apply to certain classes of persons such as dealers or certain professional investors.
Please consult your own tax advisor concerning the consequences of owning the offered securities in your particular circumstances.
Interest Payments
References to interest in this section mean interest as understood in United Kingdom tax law. The statements do not take account of any different definitions of interest that may prevail under any other law or which may be created by the terms and conditions of the debt securities or any related documentation. If debt securities are, or may fall to be, redeemed at a premium as opposed to being issued at a discount, then any such premium may constitute interest for United Kingdom tax purposes and so be treated in the manner described below.
(a) Payments of interest in respect of debt securities issued by Rio Tinto Finance (USA) Limited
Payments of interest on the RTL Debt Securities will not be subject to withholding or deduction for or on account of United Kingdom taxation on the basis that, and so long as, such interest is not treated as arising in the United Kingdom for the purposes of section 874 of the United Kingdom Income Tax Act 2007. It is currently expected that the circumstances will be such that interest paid by Rio Tinto Finance (USA) Limited on the RTL Debt Securities would not have a United Kingdom source.
(b) Payment of interest (i) in respect of debt securities issued by Rio Tinto Finance (USA) plc, and (ii) by Rio Tinto plc under the guarantee in respect of the RTL Debt Securities and/or the RTP Debt Securities (together the debt securities)
Payments of interest by Rio Tinto Finance (USA) plc on the RTP Debt Securities will not be subject to withholding or deduction for or on account of United Kingdom taxation if and so long as the RTP Debt Securities are and continue to be listed on a recognized stock exchange within the meaning of Section 1005 of the United Kingdom Income Tax Act 2007 (the Quoted Eurobond Exemption). The London Stock Exchange is a recognized stock exchange for these purposes. Debt securities will be treated as listed on the London Stock Exchange if they are included in the Official List by the United Kingdom Listing Authority and are admitted to trading on the London Stock Exchange. The New York Stock Exchange will also be a recognized stock exchange for these purposes provided that it is registered with the Securities and Exchange Commission of the
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United States as a national securities exchange. Debt securities will be treated as listed on the New York Stock Exchange if they are both admitted to trading on the New York Stock Exchange and are officially listed in the United States in accordance with provisions corresponding to those generally applicable in countries in the European Economic Area.
If the RTP Debt Securities are not (or cease to be) listed, interest will generally be paid by Rio Tinto Finance (USA) plc under deduction of United Kingdom income tax at the basic rate (currently 20%) subject to such relief as may be available under the provisions of any applicable double tax treaty or any other relief that may apply.
It is not entirely clear whether that payments by Rio Tinto plc under the guarantee in respect of interest on the debt securities are eligible for the Quoted Eurobond Exemption and therefore, it is possible that such payments may be subject to withholding or deduction for or on account of United Kingdom tax at the basic rate (currently 20%) subject to such relief as may be available under the provisions of any applicable double tax treaty or any other relief that may apply.
Certain holders of debt securities who are U.S. residents may be entitled to receive payments free of deductions for or on account of United Kingdom tax under the double taxation treaty between the United Kingdom and the United States and may therefore be able to obtain a direction to that effect from HMRC. Holders of debt securities who are resident in other jurisdictions may also be able to receive payment free of deductions or subject to a lower rate of deduction under an appropriate double taxation treaty and may be able to obtain a direction from HMRC to that effect.
However, such a direction will, in either case, only be issued on prior application to HMRC by the holder in question. If such a direction is not in place at the time a payment of interest is made, the person making the payment will be required to withhold tax, although a holder of debt securities resident in a jurisdiction outside of the United Kingdom who is entitled to relief may subsequently claim the amount withheld from HMRC.
Payments by Rio Tinto Finance (USA) plc in respect of interest on the RTP Debt Securities, and payments by Rio Tinto plc under the guarantee in respect of interest on the debt securities will have a United Kingdom source and accordingly may be chargeable to United Kingdom tax by direct assessment. Where the interest is paid without withholding or deduction, the interest will not be assessed to United Kingdom tax in the hands of holders of the debt securities who are not resident or, in the case of individuals, ordinarily resident in the United Kingdom, except where:
(i) | in the case of corporate holders, such persons carry on a trade in the United Kingdom through a United Kingdom permanent establishment; or |
(ii) | in the case of other holders, such persons carry on a trade, profession or vocation in the United Kingdom through a United Kingdom branch or agency, |
in connection with which the interest is received or to which the debt securities are attributable, in which case (subject to exemptions for interest received by certain categories of agent) tax may be levied on the United Kingdom permanent establishment or branch or agency.
In the event that payments by Rio Tinto Finance (USA) plc in respect of interest on the RTP Debt Securities, and payments by Rio Tinto plc under the guarantee in respect of interest on the debt securities are subject to withholding or deduction for or on account of United Kingdom taxation then the provisions referred to in Description of Guaranteed Debt Securities Payment of Additional Amounts may apply so that the net amount received by the holders after such reduction will not be less than the amount the holders would have received in the absence of such withholding or deduction.
Holders of the debt securities should note that the provisions relating to additional amounts referred to in Description of Guaranteed Debt Securities Payment of Additional Amounts would not apply if HMRC sought to assess directly the person entitled to the relevant interest to United Kingdom tax. However exemption from, or reduction of, such United Kingdom tax liability might be available under an applicable double taxation treaty.
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Provision of Information
Persons in the United Kingdom (i) paying interest to or receiving interest on behalf of another person who is an individual or (ii) paying amounts due on redemption of the debt securities which constitute deeply discounted securities as defined in Chapter 8 of Part 4 of the Income Tax (Trading and Other Income) Act 2005 to or receiving such amounts on behalf of another person who is an individual may be required to provide certain information to HMRC regarding the identity of the payee or person entitled to the interest and, in certain circumstances, such information may be exchanged with tax authorities in other countries. However, in relation to amounts payable on redemption of such debt securities HMRC published practice indicates HMRC will not exercise its power to obtain information where such amounts are paid or received on or before April 5, 2013.
Optional Tax Redemption
In the earlier section entitled Description of Guaranteed Debt Securities Optional Tax Redemption we set out certain situations in which we may redeem debt securities.
Disposal (including Redemption)
Generally, a holder of debt securities who is neither resident nor, in the case of an individual, ordinarily resident in the United Kingdom for tax purposes will not be liable for United Kingdom taxation in respect of a disposal of a debt security, or in respect of any gain accrued in respect of a debt security or any change in the value of a debt security.
This may not, however, be the case if:
(i) | in the case of corporate holders, such persons carry on a trade in the United Kingdom through a United Kingdom permanent establishment; or |
(ii) | in the case of other holders, such persons carry on a trade, profession or vocation in the United Kingdom through a United Kingdom branch or agency |
in connection with which the interest is received or to which the debt securities are attributable.
Inheritance Tax
A holder of debt securities who is an individual domiciled outside the United Kingdom will generally not be liable for United Kingdom inheritance tax in respect of his holding of debt securities. However, there may be a liability for United Kingdom inheritance tax for such an individual if a register of debt securities is maintained in the United Kingdom. In that case, exemption from any United Kingdom inheritance tax liability may be available for holders of debt securities who are domiciled in the United States under the U.S.-United Kingdom double tax convention relating to estate and gift taxes.
Stamp Duty and Stamp Duty Reserve Tax (SDRT)
No United Kingdom stamp duty or SDRT is payable on the issue of the debt securities into a clearing system.
No United Kingdom stamp duty or SDRT is payable on dealings in the debt securities within a clearing system where such dealings are effected in electronic book entry form and not by written instrument of transfer.
European Union Directive on the Taxation of Savings Income
The Council of the European Union has adopted Council Directive 2003/48/EC (the Savings Directive) regarding the taxation of savings income. Pursuant to the Savings Directive, Member States of the European
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Union are required to provide to the tax authorities of another Member State details of payments of interest (or other similar income) paid by a person within its jurisdiction to or for the benefit of an individual or to certain other persons in that other Member State, except that Luxembourg and Austria will (unless they elect otherwise) instead operate a withholding system for a transitional period in relation to such payments.
A number of non-EU countries, and certain dependent or associated territories of certain EU Member States have adopted similar measures (either provision of information or transitional withholding) in relation to payments made by a person within its jurisdiction to an individual or certain other persons in an EU Member State. In addition, the EU Member States have entered into reciprocal provision of information or transitional withholding arrangements with certain of those dependent or associated territories in relation to payments made by a person in a Member State to an individual or certain other persons in one of those territories.
U.S. Federal Income Taxation
The following is a summary of the material U.S. federal income tax consequences of the acquisition, ownership and disposition of debt securities by a U.S. Holder (as defined below). The following discussion, subject to the assumptions and limitations herein, represents the opinion of Linklaters LLP as to the material U.S. federal income tax consequences of the acquisition, ownership and disposition of debt securities by a U.S. Holder. This summary does not address the material U.S. federal income tax consequences of every type of debt security which may be issued under this prospectus, and the relevant prospectus supplement will contain additional or modified disclosure concerning the material U.S. federal income tax consequences relevant to a particular issue of debt securities as appropriate. This summary deals only with purchasers of debt securities that are U.S. Holders and that will hold the debt securities as capital assets. The discussion does not cover all aspects of U.S. federal income taxation that may be relevant to, or the actual tax effect that any of the matters described herein will have on, the acquisition, ownership or disposition of debt securities by particular investors, and does not address state, local, foreign or other tax laws. This summary also does not discuss all of the tax considerations that may be relevant to certain types of investors subject to special treatment under the U.S. federal income tax laws (such as certain financial institutions, insurance companies, investors liable for the alternative minimum tax, individual retirement accounts and other tax-deferred accounts, tax-exempt organizations, dealers in securities or currencies, investors that will hold the debt securities as part of straddles, hedging transactions or conversion transactions for U.S. federal income tax purposes, investors whose functional currency is not the U.S. dollar) or investors whose debt securities are held in connection with a trade or business conducted outside the United States. Moreover, the summary deals only with debt securities with a term of 30 years or less. The U.S. federal income tax consequences of owning debt securities with a longer term will be discussed in the applicable prospectus supplement.
As used herein, the term U.S. Holder means a beneficial owner of debt securities that is, for U.S. federal income tax purposes, (i) an individual citizen or resident of the United States, (ii) a corporation created or organized under the laws of the United States or any State thereof, (iii) an estate the income of which is subject to U.S. federal income tax without regard to its source or (iv) a trust if a court within the United States is able to exercise primary supervision over the administration of the trust and one or more U.S. persons have the authority to control all substantial decisions of the trust, or the trust has elected to be treated as a domestic trust for U.S. federal income tax purposes.
The U.S. federal income tax treatment of a partner in an entity that is classified as a partnership for U.S. federal income tax purposes that holds debt securities will depend on the status of the partner and the activities of the partnership. Prospective purchasers that are partnerships should consult their tax advisor concerning the U.S. federal income tax consequences to their partners of the acquisition, ownership and disposition of debt securities by the partnership.
The summary is based on the tax laws of the United States including the Internal Revenue Code of 1986, as amended, its legislative history, existing and proposed regulations thereunder and published rulings and court decisions, all as of the date hereof and all subject to change at any time, possibly with retroactive effect.
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THE SUMMARY OF U.S. FEDERAL INCOME TAX CONSEQUENCES SET OUT BELOW IS FOR GENERAL INFORMATION ONLY. PROSPECTIVE PURCHASERS SHOULD CONSULT THEIR TAX ADVISORS AS TO THE PARTICULAR TAX CONSEQUENCES TO THEM OF OWNING THE DEBT SECURITIES, THE APPLICABILITY AND EFFECT OF STATE, LOCAL, FOREIGN AND OTHER TAX LAWS AND POSSIBLE CHANGES IN TAX LAW.
Payments of Interest
Interest on a debt security, whether payable in U.S. dollars or a currency, composite currency or basket of currencies other than U.S. dollars (a foreign currency), other than interest on a Discount Debt Security that is not qualified stated interest (each as defined below under Original Issue Discount General), will be taxable to a U.S. Holder as ordinary income at the time it is received or accrued, depending on the U.S. Holders method of accounting for tax purposes. For this purpose, interest includes any additional amounts payable under Description of Guaranteed Debt Securities Payment of Additional Amounts. Interest paid by us on the debt securities and OID, if any, accrued with respect to the debt securities (as described below under Original Issue Discount) generally will constitute income from sources outside the United States. Prospective purchasers should consult their tax advisors concerning the applicability of the foreign tax credit and source of income rules to income attributable to the debt securities in their particular circumstances.
Original Issue Discount
General
The following is a summary of the principal U.S. federal income tax consequences of the ownership of debt securities issued with original issue discount (OID). The following summary does not discuss debt securities that are characterized as contingent payment debt instruments for U.S. federal income tax purposes. In the event we issue contingent payment debt instruments the applicable prospectus supplement will describe the material U.S. federal income tax consequences thereof.
A debt security, other than a debt security with a term of one year or less (a Short-Term Debt Security), will be treated as issued with OID (a Discount Debt Security) if the excess of the debt securitys stated redemption price at maturity over its issue price is equal to or more than a de minimis amount (0.25% of the debt securitys stated redemption price at maturity multiplied by the number of complete years to its maturity). An obligation that provides for the payment of amounts other than qualified stated interest before maturity (an installment obligation) will be treated as a Discount Debt Security if the excess of the debt securitys stated redemption price at maturity over its issue price is greater than 0.25% of the debt securitys stated redemption price at maturity multiplied by the weighted average maturity of the debt security. A debt securitys weighted average maturity is the sum of the following amounts determined for each payment on a debt security (other than a payment of qualified stated interest): (i) the number of complete years from the issue date until the payment is made multiplied by (ii) a fraction, the numerator of which is the amount of the payment and the denominator of which is the debt securitys stated redemption price at maturity. Generally, the issue price of a debt security will be the first price at which a substantial amount of debt securities included in the issue of which the debt security is a part is sold to persons other than bond houses, brokers, or similar persons or organizations acting in the capacity of underwriters, placement agents, or wholesalers. The stated redemption price at maturity of a debt security is the total of all payments provided by the debt security that are not payments of qualified stated interest. A qualified stated interest payment is generally any one of a series of stated interest payments on a debt security that are unconditionally payable at least annually at a single fixed rate (with certain exceptions for lower rates paid during some periods), or a variable rate (in the circumstances described below under Variable Interest Rate Debt Securities), applied to the outstanding principal amount of the debt security. Solely for the purposes of determining whether a debt security has OID, we will be deemed to exercise any call option that has the effect of decreasing the yield on the debt security, and the U.S. Holder will be deemed to exercise any put option that has the effect of increasing the yield on the debt security. If the option is not in fact exercised, the
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debt security would be treated solely for purposes of calculating OID as if it were redeemed and a new debt security were issued on the deemed exercise date for an amount equal to the adjusted issue price (as defined below) of the debt security.
U.S. Holders of Discount Debt Securities must include OID in income calculated on a constant-yield method before the receipt of cash attributable to the income, and generally will have to include in income increasingly greater amounts of OID over the life of the Discount Debt Securities. The amount of OID includible in income by a U.S. Holder of a Discount Debt Security is the sum of the daily portions of OID with respect to the Discount Debt Security for each day during the taxable year or portion of the taxable year on which the U.S. Holder holds the Discount Debt Security (accrued OID). The daily portion is determined by allocating to each day in any accrual period a pro rata portion of the OID allocable to that accrual period. Accrual periods with respect to a debt security may be of any length selected by the U.S. Holder and may vary in length over the term of the debt security as long as (i) no accrual period is longer than one year and (ii) each scheduled payment of interest or principal on the debt security occurs on either the final or first day of an accrual period. The amount of OID allocable to an accrual period equals the excess of (a) the product of the Discount Debt Securitys adjusted issue price at the beginning of the accrual period and the Discount Debt Securitys yield to maturity (determined on the basis of compounding at the close of each accrual period and properly adjusted for the length of the accrual period) over (b) the sum of the payments of qualified stated interest on the debt security allocable to the accrual period. The adjusted issue price of a Discount Debt Security at the beginning of any accrual period is the issue price of the debt security increased by (x) the amount of accrued OID for each prior accrual period and decreased by (y) the amount of any payments previously made on the debt security that were not qualified stated interest payments. The yield to maturity of a security is the discount rate that causes the present value of all payments on the security as of its original issue date to equal the issue price of such security.
Acquisition Premium
A U.S. Holder that purchases a Discount Debt Security for an amount less than or equal to the sum of all amounts payable on the debt security after the purchase date, other than payments of qualified stated interest, but in excess of its adjusted issue price (any such excess being acquisition premium) and that does not make the election described below under Election to Treat All Interest as Original Issue Discount, is permitted to reduce the daily portions of OID by a fraction, the numerator of which is the excess of the U.S. Holders adjusted basis in the debt security immediately after its purchase over the debt securitys adjusted issue price, and the denominator of which is the excess of the sum of all amounts payable on the debt security after the purchase date, other than payments of qualified stated interest, over the debt securitys adjusted issue price.
Short-Term Debt Securities
In general, an individual or other cash basis U.S. Holder of a Short-Term Debt Security is not required to accrue OID (as specially defined below for the purposes of this paragraph) for U.S. federal income tax purposes unless it elects to do so (but will be required to include any stated interest in income as the interest is received). Accrual basis U.S. Holders and certain other U.S. Holders are required to accrue OID on Short-Term Debt Securities on a straight-line basis or, if the U.S. Holder so elects, under the constant-yield method (based on daily compounding). In the case of a U.S. Holder not required and not electing to include OID in income currently, any gain realized on the sale or retirement of the Short-Term Debt Security will be ordinary income to the extent of the OID accrued on a straight-line basis (unless an election is made to accrue the OID under the constant-yield method) through the date of sale or retirement. U.S. Holders who are not required and do not elect to accrue OID on Short-Term Debt Securities will be required to defer deductions for interest on borrowings allocable to Short-Term Debt Securities in an amount not exceeding the deferred income until the deferred income is realized.
For purposes of determining the amount of OID subject to these rules, all interest payments on a Short-Term Debt Security are included in the Short-Term Debt Securitys stated redemption price at maturity. A U.S. Holder may elect to determine OID on a Short-Term Debt Security as if the Short-Term Debt Security had been
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originally issued to the U.S. Holder at the U.S. Holders purchase price for the Short-Term Debt Security. This election shall apply to all obligations with a maturity of one year or less acquired by the U.S. Holder on or after the first day of the first taxable year to which the election applies, and may not be revoked without the consent of the Internal Revenue Service (IRS).
Market Discount
A debt security, other than a Short-Term Debt Security, generally will be treated as purchased at a market discount (a Market Discount Debt Security) if the debt securitys stated redemption price at maturity or, in the case of a Discount Debt Security, the debt securitys revised issue price, exceeds the amount for which the U.S. Holder purchased the debt security by at least 0.25% of the debt securitys stated redemption price at maturity or revised issue price, respectively, multiplied by the number of complete years to the debt securitys maturity (or, in the case of a debt security that is an installment obligation, the debt securitys weighted average maturity). If this excess is not sufficient to cause the debt security to be a Market Discount Debt Security, then the excess constitutes de minimis market discount. For this purpose, the revised issue price of a debt security generally equals its issue price, increased by the amount of any OID that has accrued on the debt security and decreased by the amount of any payments previously made on the debt security that were not qualified stated interest payments.
Under current law, any gain recognized on the maturity or disposition of a Market Discount Debt Security (including any payment on a debt security that is not qualified stated interest) will be treated as ordinary income to the extent that the gain does not exceed the accrued market discount on the debt security. Alternatively, a U.S. Holder of a Market Discount Debt Security may elect to include market discount in income currently over the life of the debt security. This election will apply to all debt instruments with market discount acquired by the electing U.S. Holder on or after the first day of the first taxable year to which the election applies. This election may not be revoked without the consent of the IRS. A U.S. Holder of a Market Discount Debt Security that does not elect to include market discount in income currently will generally be required to defer deductions for interest on borrowings incurred to purchase or carry a Market Discount Debt Security that are in excess of the interest and OID on the debt security includible in the U.S. Holders income, to the extent that this excess interest expense does not exceed the portion of the market discount allocable to the days on which the Market Discount Debt Security was held by the U.S. Holder.
Under current law, market discount will accrue on a straight-line basis unless the U.S. Holder elects to accrue the market discount on a constant-yield method. This election applies only to the Market Discount Debt Security with respect to which it is made and is irrevocable.
Variable Interest Rate Debt Securities
Debt securities that provide for interest at variable rates (Variable Interest Rate Debt Securities) generally will either bear interest at a qualified floating rate, or they will bear interest at an objective rate and thus may be treated as variable rate debt instruments under Treasury regulations governing accrual of OID. A Variable Interest Rate Debt Security will qualify as a variable rate debt instrument if (a) its issue price does not exceed the total noncontingent principal payments due under the Variable Interest Rate Debt Security by more than a specified de minimis amount, (b) it provides for stated interest, paid or compounded at least annually, at (i) one or more qualified floating rates, (ii) a single fixed rate and one or more qualified floating rates, (iii) a single objective rate, or (iv) a single fixed rate and a single objective rate that is a qualified inverse floating rate, and (c) it does not provide for any principal payments that are contingent (other than as described in (a) above).
A qualified floating rate is any variable rate where variations in the value of the rate can reasonably be expected to measure contemporaneous variations in the cost of newly borrowed funds in the currency in which the Variable Interest Rate Debt Security is denominated. A fixed multiple of a qualified floating rate will constitute a qualified floating rate only if the multiple is greater than 0.65 but not more than 1.35. A variable rate
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equal to the product of a qualified floating rate and a fixed multiple that is greater than 0.65 but not more than 1.35 increased or decreased by a fixed rate, will also constitute a qualified floating rate. In addition, two or more qualified floating rates that can reasonably be expected to have approximately the same values throughout the term of the Variable Interest Rate Debt Security (e.g., two or more qualified floating rates with values within 25 basis points of each other as determined on the Variable Interest Rate Debt Securitys issue date) will be treated as a single qualified floating rate. Notwithstanding the foregoing, a variable rate that would otherwise constitute a qualified floating rate but which is subject to one or more restrictions such as a maximum numerical limitation (i.e., a cap) or a minimum numerical limitation (i.e., a floor) may, under certain circumstances, fail to be treated as a qualified floating rate unless the cap or floor is either fixed throughout the term of the debt security or is not reasonably expected as of the issue date to cause the yield on the debt security to significantly deviate from the expected yield determined without the cap or floor.
An objective rate is a rate that is not itself a qualified floating rate but which is determined using a single fixed formula and which is based on objective financial or economic information (e.g., one or more qualified floating rates or the yield of actively traded personal property). A rate will not qualify as an objective rate if it is based on information that is within our control (or a related party) or that is unique to our circumstances (or a related party), such as dividends, profits or the value of Rio Tinto (although a rate does not fail to be an objective rate merely because it is based on the credit quality of Rio Tinto). Other variable interest rates may be treated as objective rates if so designated by the IRS in the future. Despite the foregoing, a variable rate of interest on a Variable Interest Rate Debt Security will not constitute an objective rate if it is reasonably expected that the average value of the rate during the first half of the Variable Interest Rate Debt Securitys term will be either significantly less than or significantly greater than the average value of the rate during the final half of the Variable Interest Rate Debt Securitys term. A qualified inverse floating rate is any objective rate where the rate is equal to a fixed rate minus a qualified floating rate, as long as variations in the rate can reasonably be expected to inversely reflect contemporaneous variations in the qualified floating rate. If a Variable Interest Rate Debt Security provides for stated interest at a fixed rate for an initial period of one year or less followed by a variable rate that is either a qualified floating rate or an objective rate for a subsequent period and if the variable rate on the Variable Interest Rate Debt Securitys issue date is intended to approximate the fixed rate (e.g., the value of the variable rate on the issue date does not differ from the value of the fixed rate by more than 25 basis points), then the fixed rate and the variable rate together will constitute either a single qualified floating rate or objective rate, as the case may be.
A qualified floating rate or objective rate in effect at any time during the term of the instrument must be set at a current value of that rate. A current value of a rate is the value of the rate on any day that is no earlier than 3 months prior to the first day on which that value is in effect and no later than 1 year following that first day.
If a Variable Interest Rate Debt Security that provides for stated interest at either a single qualified floating rate or a single objective rate throughout the term thereof qualifies as a variable rate debt instrument, then any stated interest on the debt security which is unconditionally payable in cash or property (other than our debt instruments) at least annually will constitute qualified stated interest and will be taxed accordingly. Thus, a Variable Interest Rate Debt Security that provides for stated interest at either a single qualified floating rate or a single objective rate throughout the term thereof and that qualifies as a variable rate debt instrument will generally not be treated as having been issued with OID unless the Variable Interest Rate Debt Security is issued at a true discount (i.e., at a price below the debt securitys stated principal amount) in excess of the de minimis amount described in Original Issue Discount General above. OID on a Variable Interest Rate Debt Security arising from true discount is allocated to an accrual period using the constant yield method described above by assuming that the variable rate is a fixed rate equal to (i) in the case of a qualified floating rate or qualified inverse floating rate, the value, as of the issue date, of the qualified floating rate or qualified inverse floating rate, or (ii) in the case of an objective rate (other than a qualified inverse floating rate), a fixed rate that reflects the yield that is reasonably expected for the Variable Interest Rate Debt Security.
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In general, any other Variable Interest Rate Debt Security that qualifies as a variable rate debt instrument will be converted into an equivalent fixed rate debt instrument for purposes of determining the amount and accrual of OID and qualified stated interest on the Variable Interest Rate Debt Security. Such a Variable Interest Rate Debt Security must be converted into an equivalent fixed rate debt instrument by substituting any qualified floating rate or qualified inverse floating rate provided for under the terms of the Variable Interest Rate Debt Security with a fixed rate equal to the value of the qualified floating rate or qualified inverse floating rate, as the case may be, as of the Variable Interest Rate Debt Securitys issue date. Any objective rate (other than a qualified inverse floating rate) provided for under the terms of the Variable Interest Rate Debt Security is converted into a fixed rate that reflects the yield that is reasonably expected for the Variable Interest Rate Debt Security. In the case of a Variable Interest Rate Debt Security that qualifies as a variable rate debt instrument and provides for stated interest at a fixed rate in addition to either one or more qualified floating rates or a qualified inverse floating rate, the fixed rate is initially converted into a qualified floating rate (or a qualified inverse floating rate, if the Variable Interest Rate debt security provides for a qualified inverse floating rate). Under these circumstances, the qualified floating rate or qualified inverse floating rate that replaces the fixed rate must be such that the fair market value of the Variable Interest Rate Debt Security as of the Variable Interest Rate Debt Securitys issue date is approximately the same as the fair market value of an otherwise identical debt instrument that provides for either the qualified floating rate or qualified inverse floating rate rather than the fixed rate. Subsequent to converting the fixed rate into either a qualified floating rate or a qualified inverse floating rate, the Variable Interest Rate Debt Security is converted into an equivalent fixed rate debt instrument in the manner described above.
Once the Variable Interest Rate Debt Security is converted into an equivalent fixed rate debt instrument pursuant to the foregoing rules, the amount of OID and qualified stated interest, if any, are determined for the equivalent fixed rate debt instrument by applying the general OID rules to the equivalent fixed rate debt instrument and a U.S. Holder of the Variable Interest Rate Debt Security will account for the OID and qualified stated interest as if the U.S. Holder held the equivalent fixed rate debt instrument. In each accrual period, appropriate adjustments will be made to the amount of qualified stated interest or OID assumed to have been accrued or paid with respect to the equivalent fixed rate debt instrument in the event that these amounts differ from the actual amount of interest accrued or paid on the Variable Interest Rate Debt Security during the accrual period.
If a Variable Interest Rate Debt Security does not qualify as a variable rate debt instrument, then the Variable Interest Rate Debt Security will generally be treated as a contingent payment debt obligation. The proper U.S. federal income tax treatment of Variable Interest Rate Debt Securities that are treated as contingent payment debt obligations will be more fully described in the applicable prospectus supplement.
Election to Treat All Interest as Original Issue Discount
A U.S. Holder may elect to include in gross income all interest that accrues on a debt security using the constant-yield method described above under Original Issue Discount General, with certain modifications. For purposes of this election, interest includes stated interest, OID, de minimis OID, market discount, de minimis market discount and unstated interest, as adjusted by any amortizable bond premium (described below under Debt Securities Purchased at a Premium) or acquisition premium. This election will generally apply only to the debt security with respect to which it is made and may not be revoked without the consent of the IRS. If the election to apply the constant-yield method to all interest on a debt security is made with respect to a Market Discount Debt Security, the electing U.S. Holder will be treated as having made the election discussed below under Market Discount to include market discount in income currently over the life of all debt instruments with market discount held or thereafter acquired by the U.S. Holder. U.S. Holders should consult their tax advisors concerning the propriety and consequences of this election.
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Debt Securities Purchased at a Premium
A U.S. Holder that purchases a debt security for an amount in excess of its principal amount, or for a Discount Debt Security, its stated redemption price at maturity, may elect to treat the excess as amortizable bond premium, in which case the amount required to be included in the U.S. Holders income each year with respect to interest on the debt security will be reduced by the amount of amortizable bond premium allocable (based on the debt securitys yield to maturity) to that year. Any election to amortize bond premium will apply to all bonds (other than bonds the interest on which is excludable from gross income for U.S. federal income tax purposes) held by the U.S. Holder at the beginning of the first taxable year to which the election applies or thereafter acquired by the U.S. Holder, and is irrevocable without the consent of the IRS. A U.S. Holder that does not elect to take bond premium (other than acquisition premium) into account currently will recognize a market loss when the debt security matures. See also Original Issue Discount Election to Treat All Interest as Original Issue Discount.
Purchase, Sale and Retirement of Debt Securities
A U.S. Holders adjusted tax basis in a debt security will generally be its cost, increased by the amount of any OID and market discount included in the U.S. Holders income with respect to the debt security and the amount, if any, of income attributable to de minimis OID and de minimis market discount included in the U.S. Holders income with respect to the debt security, and reduced by (i) the amount of any payments that are not qualified stated interest payments, and (ii) the amount of any amortizable bond premium applied to reduce interest on the debt security.
A U.S. Holder will generally recognize gain or loss on the sale or retirement of a debt security equal to the difference between the amount realized on the sale or retirement and the adjusted tax basis of the debt security. The amount realized does not include the amount attributable to accrued but unpaid interest, which will be taxable as interest income to the extent not previously included in income. Except to the extent described above under Original Issue Discount Market Discount or Original Issue Discount Short Term Debt Securities or attributable to changes in exchange rates (as discussed below), gain or loss recognized on the sale or retirement of a debt security will be capital gain or loss and will be long-term capital gain or loss if the U.S. Holders holding period in the debt securities exceeds one year. Gain or loss realized by a U.S. Holder on the sale or retirement of a debt security generally will be U.S. source. The deductibility of capital losses is subject to limitations.
Foreign Currency Debt Securities
Interest
If an interest payment is denominated in, or determined by reference to, a foreign currency, the amount of income recognized by a cash basis U.S. Holder will be the U.S. dollar value of the interest payment, based on the exchange rate in effect on the date of receipt, regardless of whether the payment is in fact converted into U.S. dollars.
An accrual basis U.S. Holder may determine the amount of income recognized with respect to an interest payment denominated in, or determined by reference to, a foreign currency in accordance with either of two methods. Under the first method, the amount of income accrued will be based on the average exchange rate in effect during the interest accrual period (or, in the case of an accrual period that spans two taxable years of a U.S. Holder, the part of the period within the taxable year).
Under the second method, the U.S. Holder may elect to determine the amount of income accrued on the basis of the exchange rate in effect on the last day of the accrual period (or, in the case of an accrual period that spans two taxable years, the exchange rate in effect on the last day of the part of the period within the taxable year). Additionally, if a payment of interest is actually received within five business days of the last day of the accrual period, an electing accrual basis U.S. Holder may instead translate the accrued interest into U.S. dollars at the exchange rate in effect on the day of actual receipt. Any such election will apply to all debt instruments held by the U.S. Holder at the beginning of the first taxable year to which the election applies or thereafter acquired by the U.S. Holder, and will be irrevocable without the consent of the IRS.
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Upon receipt of an interest payment (including a payment attributable to accrued but unpaid interest upon the sale or retirement of a debt security) denominated in, or determined by reference to, a foreign currency, the U.S. Holder may recognize U.S. source exchange gain or loss (taxable as ordinary income or loss) equal to the difference between the amount received (translated into U.S. dollars at the spot rate on the date of receipt) and the amount previously accrued, regardless of whether the payment is in fact converted into U.S. dollars.
OID
OID for each accrual period on a Discount Debt Security that is denominated in, or determined by reference to, a foreign currency, will be determined in the foreign currency and then translated into U.S. dollars in the same manner as stated interest accrued by an accrual basis U.S. Holder, as described above. Upon receipt of an amount attributable to OID (whether in connection with a payment on the debt security or a sale or disposition of the debt security), a U.S. Holder may recognize U.S. source exchange gain or loss (taxable as ordinary income or loss) equal to the difference between the amount received (translated into U.S. dollars at the spot rate on the date of receipt) and the amount previously accrued, regardless of whether the payment is in fact converted into U.S. dollars.
Market Discount
Market discount on a debt security that is denominated in, or determined by reference to, a foreign currency, will be accrued in the foreign currency. If the U.S. Holder elects to include market discount in income currently, the accrued market discount will be translated into U.S. dollars at the average exchange rate for the accrual period (or portion thereof within the U.S. Holders taxable year). Upon the receipt of an amount attributable to accrued market discount, the U.S. Holder may recognize U.S. source exchange gain or loss (which will be taxable as ordinary income or loss) determined in the same manner as for accrued interest or OID. A U.S. Holder that does not elect to include market discount in income currently will recognize, upon the disposition or maturity of the debt security, the U.S. dollar value of the amount accrued, calculated at the spot rate on that date, and no part of this accrued market discount will be treated as exchange gain or loss.
Bond Premium
Bond premium (including acquisition premium) on a debt security that is denominated in, or determined by reference to, a foreign currency, will be computed in units of the foreign currency, and any such bond premium that is taken into account currently will reduce interest income in units of the foreign currency. On the date bond premium offsets interest income, a U.S. Holder may recognize U.S. source exchange gain or loss (taxable as ordinary income or loss) equal to the amount offset multiplied by the difference between the spot rate in effect on the date of the offset and the spot rate in effect on the date the debt securities were acquired by the U.S. Holder.
Sale or Retirement
As discussed above under Purchase, Sale and Retirement of Debt Securities, a U.S. Holder will generally recognize gain or loss on the sale or retirement of a debt security equal to the difference between the amount realized on the sale or retirement and its adjusted tax basis in the debt security. A U.S. Holders initial tax basis in a debt security that is denominated in a foreign currency will be determined by reference to the U.S. dollar cost of the debt security. The U.S. dollar cost of a debt security purchased with foreign currency will generally be the U.S. dollar value of the purchase price on the date of purchase, or the settlement date for the purchase, in the case of debt securities traded on an established securities market, as defined in the applicable Treasury Regulations, that are purchased by a cash basis U.S. Holder (or an accrual basis U.S. Holder that so elects).
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The amount realized on a sale or retirement of a debt security for an amount in foreign currency will be the U.S. dollar value of this amount on the date of sale or retirement, or the settlement date for the sale, in the case of debt securities traded on an established securities market, as defined in the applicable Treasury Regulations, sold by a cash basis U.S. Holder (or an accrual basis U.S. Holder that so elects). Such an election by an accrual basis U.S. Holder must be applied consistently from year to year and cannot be revoked without the consent of the IRS.
A U.S. Holder will recognize U.S. source exchange rate gain or loss (taxable as ordinary income or loss) on the sale or retirement of a debt security equal to the difference, if any, between the U.S. dollar values of the U.S. Holders purchase price for the debt security (or, if less, the principal amount of the debt security) (i) on the date of sale or retirement and (ii) on the date on which the U.S. Holder acquired the debt security. Any such exchange rate gain or loss will be realized only to the extent of total gain or loss realized on the sale or retirement (including any exchange gain or loss with respect to the receipt of accrued but unpaid interest).
Disposition of Foreign Currency
Foreign currency received as interest on a debt security or on the sale or retirement of a debt security will have a tax basis equal to its U.S. dollar value at the time the foreign currency is received. Foreign currency that is purchased will generally have a tax basis equal to the U.S. dollar value of the foreign currency on the date of purchase. Any gain or loss recognized on a sale or other disposition of a foreign currency (including its use to purchase debt securities or upon exchange for U.S. dollars) will be U.S. source ordinary income or loss.
Backup Withholding and Information Reporting
In general, payments of interest and accruals of OID on, and the proceeds of a sale, redemption or other disposition of, the Notes, payable to a U.S. Holder by a U.S. paying agent or other U.S., or U.S. related intermediary will be reported to the IRS and to the U.S. Holder as may be required under applicable regulations. Backup withholding will apply to these payments, including payments attributable to OID, if the U.S. Holder fails to provide an accurate taxpayer identification number or establish an exemption from backup withholding, or fails to report all interest and dividends required to be shown on its U.S. federal income tax returns.
Foreign Financial Asset Reporting
Recently enacted legislation imposes new reporting requirements on the holding of certain foreign financial assets, including debt of foreign entities, if the aggregate value of all of these assets exceeds $50,000. The debt securities may constitute foreign financial assets subject to these requirements unless the debt securities are held in an account at a financial institution (in which case, the account may be reportable if maintained by a foreign financial institution). U.S. Holders should consult their tax advisors regarding the application of this legislation.
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We may sell the securities offered by this prospectus through agents, underwriters or dealers, or directly to one or more purchasers. In addition, third parties may sell securities under the registration statement for their own account.
The prospectus supplement relating to any offering will identify or describe:
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any underwriter, dealers or agents; |
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their compensation; |
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the net proceeds to us; |
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the purchase price of the securities; |
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the initial public offering price of the securities; and |
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any exchange on which the securities will be listed. |
Agents
We may designate agents who agree to use their reasonable efforts to solicit purchases of securities during the term of their appointment to sell securities on a continuing basis.
We may enter into derivative transactions with third parties, or sell securities not covered by this prospectus to third parties in privately negotiated transactions. If the applicable prospectus supplement so indicates, in connection with those derivatives, the third parties may sell securities covered by this prospectus and the applicable prospectus supplement, including in short sale transactions. If so, the third party may use securities pledged by us or borrowed from us or others to settle those sales or to close out any related open borrowings of stock, and may use securities received from us in settlement of those derivatives to close out any related open borrowings of stock. The third party in such sale transactions will be an underwriter and, if not identified in this prospectus, will be identified in the applicable prospectus supplement (or a post-effective amendment).
Underwriters
If we use underwriters for the sale of securities, they will acquire securities for their own account. The underwriters may resell the securities from time to time in one or more transactions, including negotiated transactions, at a fixed public offering price or at varying prices determined at the time of sale. Unless we otherwise state in the applicable prospectus supplement, various conditions will apply to the underwriters obligation to purchase securities, and the underwriters will be obligated to purchase all of the securities contemplated in an offering if they purchase any of such securities. Any initial public offering price and any discounts or concessions allowed or reallowed or paid to dealers may be changed from time to time.
Dealers
If we use dealers in the sale, unless we otherwise indicate in the applicable prospectus supplement, we will sell securities to the dealers as principals. The dealers may then resell the securities to the public at varying prices that the dealers may determine at the time of resale.
Direct Sales
We may also sell securities directly without using agents, underwriters or dealers.
Securities Act of 1933; Indemnification
Underwriters, dealers and agents that participate in the distribution of the securities may be underwriters as defined in the Securities Act, and any discounts or commissions they receive from us and any profit on their
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resale of securities may be treated as underwriting discounts and commissions under the Securities Act. Agreements that we will enter into with underwriters, dealers or agents may entitle them to indemnification by us against various civil liabilities. These include liabilities under the Securities Act. The agreements may also entitle them to contribution for payments which they may be required to make as a result of these liabilities. Underwriters, dealers and agents may be customers of, engage in transactions with, or perform services for, us in the ordinary course of business.
Stabilization
To facilitate the offering of securities, certain persons participating in the offering may engage in transactions that stabilize, maintain, or otherwise affect the price of the securities. These may include over-allotment, stabilization, syndicate short covering transactions and penalty bids. Over-allotment involves sales in excess of the offering size, which creates a short position. Stabilizing transactions involve bids to purchase the underlying security so long as the stabilizing bids do not exceed a specified maximum. Syndicate short covering transactions involve purchases of securities in the open market after the distribution has been completed in order to cover syndicate short positions. Penalty bids permit the underwriters to reclaim selling concessions from dealers when the securities originally sold by the dealers are purchased in covering transactions to cover syndicate short positions. These transactions may cause the price of the securities sold in an offering to be higher than it would be otherwise. These transactions, if commenced, may be continued by the persons participating in the offering at any time.
Market Making
In the event that we do not list securities of any type or series on a U.S. national securities exchange, various broker-dealers may make a market in the securities, but will have no obligation to do so, and may discontinue any market making at any time without notice. Consequently, it may be the case that no broker-dealer will make a market in securities of any series or that the liquidity of the trading market for the securities will be limited.
The validity of the debt securities and the guarantees and certain other legal matters governed by English, U.S. federal and New York law will be passed upon for us by Linklaters LLP or any other law firm named in the applicable prospectus supplement. The validity of the debt securities and the guarantees will be passed upon for us by Allens Arthur Robinson or any other law firm named in the applicable prospectus supplement as to certain matters of Australian law. The validity of the debt securities and the guarantees and certain other legal matters governed by U.S. federal and New York law will be passed upon for any underwriters or agents by Davis Polk & Wardwell LLP or any other law firm named in the applicable prospectus supplement as to certain matters of New York law.
The financial statements and managements assessment of the effectiveness of internal control over financial reporting (which is included in Managements Report on Internal Control over Financial Reporting) incorporated in this prospectus by reference to the Annual Report on Form 20-F for the year ended December 31, 2011, have been so incorporated in reliance on the reports of PricewaterhouseCoopers LLP and PricewaterhouseCoopers, independent registered public accounting firms given on the authority of said firms as experts in auditing and accounting. PricewaterhouseCoopers LLP is a member of the Institute of Chartered Accountants in England and Wales. PricewaterhouseCoopers is a member of the Institute of Chartered Accountants in Australia.
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PART II OF FORM F-3
INFORMATION NOT REQUIRED IN PROSPECTUS
Item 8. | Indemnification of Directors and Officers |
Deeds of Indemnity
On December 9, 2008, Rio Tinto plc and Rio Tinto Limited each entered into deeds of indemnity with Paul Tellier, a director of Rio Tinto plc and Rio Tinto Limited. On December 10, 2008, Rio Tinto plc and Rio Tinto Limited each entered into deeds of indemnity with the remaining directors of Rio Tinto plc and Rio Tinto Limited and the company secretaries of Rio Tinto plc and Rio Tinto Limited. Directors appointed subsequent to December 10, 2008 have entered into deeds of indemnity with each of Rio Tinto plc and Rio Tinto Limited as follows: Sam Walsh on June 4, 2009, Ann Godbehere on February 9, 2010, Robert Brown on April 1, 2010 and Chris Lynch and John Varley on September 1, 2011. There has been no change to the company secretaries of Rio Tinto plc and Rio Tinto Limited since December 9, 2008. On December 16, 2008, Rio Tinto Limited entered into deeds of indemnity with each of the directors of Rio Tinto Finance (USA) Limited. The terms of each of these deeds of indemnity are identical in all material respects. Under the terms of each deed, subject to certain exceptions, each of Rio Tinto plc and Rio Tinto Limited shall indemnify and hold each of their directors harmless, and Rio Tinto Limited shall indemnify and hold each director of Rio Tinto Finance (USA) Limited harmless, in respect of all claims and any losses arising in connection with any such claims arising out of, or in connection with the exercise of the directors duties as a director or officer of the company, any subsidiary or holding company or any associated company and in connection with certain other activities of the company.
Australian Law
Corporation Act of Australia
Section 199A(1) of the Corporations Act 2001 (Commonwealth) (the Corporations Act) provides that a company or a related body corporate must not exempt a person from a liability to the company incurred as an officer of the company.
Section 199A(2) of the Corporations Act provides that a company or a related body corporate must not indemnify a person against any of the following liabilities incurred as an officer of the company:
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a liability owed to the company or a related body corporate; |
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a liability for a pecuniary penalty order or compensation order under specified provisions of the Corporations Act; or |
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a liability that is owed to someone other than the company or a related body corporate that did not arise out of conduct in good faith. |
Section 199A(2) does not apply to a liability for legal costs.
Section 199A(3) provides that a company or a related body corporate must not indemnify a person against legal costs incurred in defending an action for a liability incurred as an officer of the company if the costs are incurred:
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in defending or resisting proceedings in which the person is found to have a liability for which they could not be indemnified under Section 199A(2); or |
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in defending or resisting criminal proceedings in which the person is found guilty; or |
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in defending or resisting proceedings brought by the Australian Securities and Investments Commission (ASIC) or a liquidator for a court order if the grounds for making the order are found by the court to have been established (this does not apply to costs incurred in responding to actions taken by ASIC or a liquidator as part of an investigation before commencing proceedings for the court order); or |
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in connection with proceedings for relief to the person under the Corporations Act in which the court denies the relief. |
Section 199B of the Corporations Act provides that a company or a related body corporate must not pay, or agree to pay, a premium for a contract insuring a person who is or has been an officer of the company against a liability (other than one for legal costs) arising out of:
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conduct involving a willful breach of any duty in relation to the company; or |
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a contravention of the officers duties under the Corporations Act not to improperly use their position or make improper use of information obtained as an officer. |
For the purpose of Sections 199A and 199B, an officer of a company includes:
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a director or secretary; |
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a person who makes, or participates in making, decisions that affect the whole, or a substantial part, of the business of the company; |
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a person who has the capacity to significantly affect the companys financial standing; and |
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a person in accordance with whose instructions or wishes the directors of the company are accustomed to act. |
English law
Sections 232 to 236 of the Companies Act 2006 provide as follows:
232. Provisions protecting directors from liability
(1) | Any provision that purports to exempt a director of a company (to any extent) from any liability that would otherwise attach to him in connection with any negligence, default, breach of duty or breach of trust in relation to the company is void. |
(2) | Any provision by which a company directly or indirectly provides an indemnity (to any extent) for a director of the company, or of an associated company, against any liability attaching to him in connection with any negligence, default, breach of duty or breach of trust in relation to the company of which he is a director is void, except as permitted by |
(a) | section 233 (provision of insurance), |
(b) | section 234 (qualifying third party indemnity provision), or |
(c) | section 235 (qualifying pension scheme indemnity provision). |
(3) | This section applies to any provision, whether contained in a companys articles or in any contract with the company or otherwise. |
(4) | Nothing in this section prevents a companys articles from making such provision as has previously been lawful for dealing with conflicts of interest. |
233. Provision of insurance
Section 232(2) (voidness of provisions for indemnifying directors) does not prevent a company from purchasing and maintaining for a director of the company, or of an associated company, insurance against any such liability as is mentioned in that subsection.
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234. Qualifying third party indemnity provision
(1) | Section 232(2) (voidness of provisions for indemnifying directors) does not apply to qualifying third party indemnity provision. |
(2) | Third party indemnity provision means provision for indemnity against liability incurred by the director to a person other than the company or an associated company. |
Such provision is qualifying third party indemnity provision if the following requirements are met.
(3) | The provision must not provide any indemnity against |
(a) | any liability of the director to pay |
(i) | a fine imposed in criminal proceedings, or |
(ii) | a sum payable to a regulatory authority by way of a penalty in respect of non-compliance with any requirement of a regulatory nature (however arising); or |
(b) | any liability incurred by the director |
(i) | in defending criminal proceedings in which he is convicted, or |
(ii) | in defending civil proceedings brought by the company, or an associated company, in which judgment is given against him, or |
(iii) | in connection with an application for relief (see subsection (6)) in which the court refuses to grant him relief. |
(4) | The references in subsection (3)(b) to a conviction, judgment or refusal of relief are to the final decision in the proceedings. |
(5) | For this purpose |
(a) | a conviction, judgment or refusal of relief becomes final |
(i) | if not appealed against, at the end of the period for bringing an appeal, or |
(ii) | if appealed against, at the time when the appeal (or any further appeal) is disposed of; and |
(b) | an appeal is disposed of |
(i) | if it is determined and the period for bringing any further appeal has ended, or |
(ii) | if it is abandoned or otherwise ceases to have effect. |
(6) | The reference in subsection (3)(b)(iii) to an application for relief is to an application for relief under section 661(3) or (4) (power of court to grant relief in a case of acquisition of shares by innocent nominee), or section 1157 (general power of court to grant relief in case of honest and reasonable conduct). |
235. Qualifying pension scheme indemnity provision
(1) | Section 232(2) (voidness of provisions for indemnifying directors) does not apply to qualifying pension scheme indemnity provision. |
(2) | Pension scheme indemnity provision means provision indemnifying a director of a company that is a trustee of an occupational pension scheme against liability incurred in connection with the companys activities as trustee of the scheme. |
Such provision is qualifying pension scheme indemnity provision if the following requirements are met.
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(3) | The provision must not provide any indemnity against |
(a) | any liability of the director to pay |
(i) | a fine imposed in criminal proceedings, or |
(ii) | a sum payable to a regulatory authority by way of a penalty in respect of non-compliance with any requirement of a regulatory nature (however arising); or |
(b) | any liability incurred by the director in defending criminal proceedings in which he is convicted. |
(4) | The reference in subsection (3)(b) to a conviction is to the final decision in the proceedings. |
(5) | For this purpose |
(a) | a conviction becomes final |
(i) | if not appealed against, at the end of the period for bringing an appeal, or |
(ii) | if appealed against, at the time when the appeal (or any further appeal) is disposed of; and |
(b) | an appeal is disposed of |
(i) | if it is determined and the period for bringing any further appeal has ended, or |
(ii) | if it is abandoned or otherwise ceases to have effect. |
(6) | In this section occupational pension scheme means an occupational pension scheme as defined in section 150(5) of the Finance Act 2004 (c 12) that is established under a trust. |
236. Qualifying indemnity provision to be disclosed in directors report
(1) | This section requires disclosure in the directors report of |
(a) | qualifying third party indemnity provision, and |
(b) | qualifying pension scheme indemnity provision. |
Such provision is referred to in this section as qualifying indemnity provision.
(2) | If when a directors report is approved any qualifying indemnity provision (whether made by the company or otherwise) is in force for the benefit of one or more directors of the company, the report must state that such provision is in force. |
(3) | If at any time during the financial year to which a directors report relates any such provision was in force for the benefit of one or more persons who were then directors of the company, the report must state that such provision was in force. |
(4) | If when a directors report is approved qualifying indemnity provision made by the company is in force for the benefit of one or more directors of an associated company, the report must state that such provision is in force. |
(5) | If at any time during the financial year to which a directors report relates any such provision was in force for the benefit of one or more persons who were then directors of an associated company, the report must state that such provision was in force. |
Section 1157 of the Companies Act 2006 provides as follows:
1157. Power of court to grant relief in certain cases:
(1) | If in proceedings for negligence, default, breach of duty or breach of trust against |
(a) | an officer of a company, or |
(b) | a person employed by a company as auditor (whether he is or is not an officer of the company), |
II-4
it appears to the court hearing the case that the officer or person is or may be liable but that he acted honestly and reasonably, and that having regard to all the circumstances of the case (including those connected with his appointment) he ought fairly to be excused, the court may relieve him, either wholly or in part, from his liability on such terms as it thinks fit.
(2) | If any such officer or person has reason to apprehend that a claim will or might be made against him in respect of negligence, default, breach of duty or breach of trust |
(a) | he may apply to the court for relief, and |
(b) | the court has the same power to relieve him as it would have had if it had been a court before which proceedings against him for negligence, default, breach of duty or breach of trust had been brought. |
(3) | Where a case to which subsection (1) applies is being tried by a judge with a jury, the judge, after hearing the evidence, may, if he is satisfied that the defendant (in Scotland, the defender) ought in pursuance of that subsection to be relieved either in whole or in part from the liability sought to be enforced against him, withdraw the case from the jury and forthwith direct judgment to be entered for the defendant (in Scotland, grant decree of absolvitor) on such terms as to costs (in Scotland, expenses) or otherwise as the judge may think proper. |
Item 9. | Exhibits |
Exhibit
|
Description |
|
1 | Form of Underwriting Agreement for Guaranteed Debt Securities* | |
4.1 | Indenture, dated July 2, 2001, as amended and restated as of March 16, 2012, among Rio Tinto Finance (USA) Limited, Rio Tinto Finance (USA) plc, Rio Tinto plc, Rio Tinto Limited and The Bank of New York Mellon | |
5.1 | Opinion of Linklaters LLP, as to the validity of the debt securities and the guarantees being registered as to certain matters of English law | |
5.2 | Opinion of Linklaters LLP, as to the validity of the debt securities and the guarantees being registered as to certain matters of New York law | |
5.3 | Opinion of Allens Arthur Robinson, as to the validity of the debt securities and the guarantees being registered as to certain matters of Australian law | |
8.1 | Opinion of Linklaters LLP, as to certain matters of U.K. taxation (included in Exhibit 5.1) | |
8.2 | Opinion of Linklaters LLP, as to certain matters of U.S. taxation | |
8.3 | Opinion of Allens Arthur Robinson, as to certain matters of Australian taxation | |
12 | Statement of computation of ratio of earnings to fixed charges | |
23.1 | Consent of PricewaterhouseCoopers LLP and PricewaterhouseCoopers for incorporation by reference of their report relating to the financial statements of Rio Tinto plc and Rio Tinto Limited | |
23.2 | Consent of Linklaters LLP (included in Exhibit 5.1) | |
23.3 | Consent of Linklaters LLP (included in Exhibit 5.2) | |
23.4 | Consent of Allens Arthur Robinson (included in Exhibit 5.3) | |
24.1 | Power of Attorney of Rio Tinto Finance (USA) plc | |
24.2 | Power of Attorney of Rio Tinto Finance (USA) Limited | |
24.3 | Power of Attorney of Rio Tinto plc (included in signature page) | |
24.4 | Power of Attorney of Rio Tinto Limited (included in signature page) | |
25 | Form T-1 Statement of Eligibility under the Trust Indenture Act of 1939 of The Bank of New York Mellon |
* | Previously filed on June 21, 2011 |
II-5
Item 10. | Undertakings |
The undersigned registrant hereby undertakes:
(1) | To file, during any period in which offers or sales are being made, a post-effective amendment to this registration statement; |
(i) | To include any prospectus required by Section 10(a) (3) of the Securities Act of 1933 (the Act); |
(ii) | To reflect in the prospectus any facts or events arising after the effective date of the registration statement (or the most recent post-effective amendment thereof) which, individually or in the aggregate, represent a fundamental change in the information set forth in the registration statement. Notwithstanding the foregoing, any increase or decrease in volume of securities offered (if the total dollar value of securities offered would not exceed that which was registered) and any deviation from the low or high end of the estimated maximum offering range may be reflected in the form of prospectus filed with the Commission pursuant to Rule 424(b) if, in the aggregate, the changes in volume and price represent no more than a 20 percent change in the maximum aggregate offering price set forth in the Calculation of Registration Fee table in the effective registration statement; and |
(iii) | To include any material information with respect to the plan of distribution not previously disclosed in the registration statement or any material change to such information in the registration statement; |
provided, however , that paragraphs (1)(i), (1)(ii) and (1)(iii) do not apply if the information required to be included in a post-effective amendment by those paragraphs is contained in reports filed with or furnished to the Commission by the registrant pursuant to Section 13 or Section 15(d) of the Securities Exchange Act of 1934 that are incorporated by reference in the registration statement, or is contained in a form of prospectus filed pursuant to Rule 424(b) that is part of the registration statement;
(2) | That, for the purpose of determining any liability under the Securities Act of 1933, each such post-effective amendment shall be deemed to be a new registration statement relating to the securities offered therein, and the offering of such securities at that time shall be deemed to be the initial bona fide offering thereof; |
(3) | To remove from registration by means of a post-effective amendment any of the securities being registered which remain unsold at the termination of the offering; |
(4) | To file a post-effective amendment to the registration statement to include any financial statements required by Item 8.A. of Form 20-F at the start of any delayed offering or throughout a continuous offering. Financial statements and information otherwise required by Section 10(a)(3) of the Securities Act of 1933 need not be furnished, provided , that the registrant includes in the prospectus, by means of a post-effective amendment, financial statements required pursuant to this paragraph (4) and other information necessary to ensure that all other information in the prospectus is at least as current as the date of those financial statements. Notwithstanding the foregoing, a post-effective amendment need not be filed to include financial statements and information required by Section 10(a)(3) of the Act or Item 8.A. of Form 20-F if such financial statements and information are contained in periodic reports filed with or furnished to the Commission by the registrant pursuant to Section 13 or Section 15(d) of the Securities Exchange Act of 1934 that are incorporated by reference in the registration statement; |
(5) | That, for the purpose of determining liability under the Securities Act of 1933 to any purchaser: |
(i) | Each prospectus filed by a registrant pursuant to Rule 424(b)(3) shall be deemed to be part of the registration statement as of the date the filed prospectus was deemed part of and included in the registration statement; and |
II-6
(ii) | Each prospectus required to be filed pursuant to Rule 424(b)(2), (b)(5) or (b)(7) as part of a registration statement in reliance on Rule 430B relating to an offering made pursuant to Rule 415(a)(1)(i), (vii) or (x) for the purpose of providing the information required by Section 10(a) of the Securities Act of 1933 shall be deemed to be part of and included in the registration statement as of the earlier of the date such form of prospectus is first used after effectiveness or the date of the first contract of sale of securities in the offering described in the prospectus. As provided in Rule 430B, for liability purposes of the issuer and any person that is at that date an underwriter, such date shall be deemed to be a new effective date of the registration statement relating to the securities in the registration statement to which the prospectus relates, and the offering of such securities at that time shall be deemed to be the initial bona fide offering thereof. Provided, however , that no statement made in a registration statement or prospectus that is part of the registration statement or made in a document incorporated or deemed incorporated by reference into the registration statement or prospectus that is part of the registration statement will, as to a purchaser with a time of contract of sale prior to such effective date, supersede or modify any statement that was made in the registration statement or prospectus that was part of the registration statement or made in any such document immediately prior to such effective date; |
(6) | That, for the purpose of determining liability of a registrant under the Securities Act of 1933 to any purchaser in the initial distribution of the securities, the undersigned undertakes that in a primary offering of securities of an undersigned registrant pursuant to this registration statement, regardless of the underwriting method used to sell the securities to the purchaser, if the securities are offered or sold to such purchaser by means of any of the following communications, the undersigned registrant will be a seller to the purchaser and will be considered to offer or sell such securities to such purchaser: |
(i) | Any preliminary prospectus or prospectus of the undersigned registrant relating to the offering required to be filed pursuant to Rule 424; |
(ii) | Any free writing prospectus relating to the offering prepared by or on behalf of an undersigned registrant or used or referred to by the undersigned registrant; |
(iii) | The portion of any other free writing prospectus relating to the offering containing material information about an undersigned registrant or its securities provided by or on behalf of the undersigned registrant; and |
(iv) | Any other communication that is an offer in the offering made by the undersigned registrant to the purchaser. |
The undersigned registrant hereby undertakes that, for purposes of determining any liability under the Securities Act of 1933, each filing of the registrants annual report pursuant to Section 13(a) or 15(d) of the Securities Exchange Act of 1934 (and, where applicable, each filing of an employee benefit plans annual report pursuant to Section 15(d) of the Securities Exchange Act of 1934) that is incorporated by reference in the registration statement shall be deemed to be a new registration statement relating to the securities offered therein, and the offering of such securities at that time shall be deemed to be the initial bona fide offering thereof.
Insofar as indemnification for liabilities arising under the Securities Act of 1933 may be permitted to directors, officers and controlling persons of the registrant pursuant to the foregoing provisions, or otherwise, the registrant has been advised that in the opinion of the Securities and Exchange Commission such indemnification is against public policy as expressed in the Securities Act of 1933 and is, therefore, unenforceable. In the event that a claim for indemnification against such liabilities (other than the payment by the registrant of expenses incurred or paid by a director, officer or controlling person of the registrant in the successful defense of any action, suit or proceeding) is asserted by such director, officer or controlling person in connection with the securities being registered, the registrant will, unless in the opinion of its counsel the matter has been settled by controlling precedent, submit to a court of appropriate jurisdiction the question whether such indemnification by it is against public policy as expressed in the Securities Act of 1933 and will be governed by the final adjudication of such issue.
II-7
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, as amended, Rio Tinto Finance (USA) Limited certifies that it has reasonable grounds to believe that it meets all of the requirements for filing on Form F-3 and has duly caused this Registration Statement to be signed on its behalf by the undersigned, thereunto duly authorized, in Melbourne, Australia on March 16, 2012.
Rio Tinto Finance (USA) Limited |
/s/ Stephen Consedine |
Stephen Consedine Director |
KNOW ALL MEN BY THESE PRESENTS, that each person whose signature appears below severally constitutes and appoints each Director listed below (with full power to each of them to act alone), his or her true and lawful attorneys-in-fact and agents, with full power of substitution and resubstitution, for him or her and in his or her name, place and stead, in any and all capacities to do any and all things and execute any and all instruments that such attorney may deem necessary or advisable under the Securities Act of 1933, as amended (the Securities Act), and any rules, regulations and requirements of the Securities and Exchange Commission (the Commission) in connection with the registration under the Securities Act of the Securities and any securities or Blue Sky law of any of the states of the United States of America in order to effect the registration or qualification (or exemption therefrom) of the said securities for issue, offer, sale or trade under the Blue Sky or other securities laws of any of such states and in connection therewith to execute, acknowledge, verify, deliver, file and cause to be published applications, reports, consents to service of process, appointments of attorneys to receive service of process and other papers and instruments which may be required under such laws, including specifically, but without limiting the generality of the foregoing, the power and authority to sign his or her name in his or her capacity as an Officer, Director or Authorized Representative in the United States of America or in any other capacity with respect to this Registration Statement and any registration statement in respect of the Securities that is to be effective upon filing pursuant to Rule 462(b) (collectively, the Registration Statement) and/or such other form or forms as may be appropriate to be filed with the Commission or under or in connection with any Blue Sky laws or other securities laws of any state of the United States of America or with such other regulatory bodies and agencies as any of them may deem appropriate in respect of the Securities, and with respect to any and all amendments, including post-effective amendments, to this Registration Statement and to any and all instruments and documents filed as part of or in connection with this Registration Statement.
Pursuant to the requirements of the Securities Act, this Registration Statement has been signed below by the following persons in the capacities and on the dates indicated.
Signature |
Title |
Date |
||
/s/ Stephen Consedine Stephen Consedine |
Director | March 16, 2012 | ||
* Keith Barry |
Director | March 16, 2012 | ||
* Graham Reid |
Director | March 16, 2012 |
*By: |
/s/ Stephen Consedine |
|
Name: Stephen Consedine | ||
Attorney-in-fact |
II-8
Pursuant to the requirements of Section 6(a) of the Securities Act, the undersigned has signed this Registration Statement in the capacity of the duly authorized representative of Rio Tinto Finance (USA) Limited in the United States.
/s/ Cheree Finan |
By: Cheree Finan Title: Authorized Representative |
Date: March 16, 2012
Pursuant to the requirements of the Securities Act, Rio Tinto Finance (USA) plc certifies that it has reasonable grounds to believe that it meets all of the requirements for filing on Form F-3 and has duly caused this Registration Statement to be signed on its behalf by the undersigned, thereunto duly authorized, in London on March 16, 2012.
Rio Tinto Finance (USA) plc
/s/ Ulf Quellmann |
Ulf Quellmann Director |
KNOW ALL MEN BY THESE PRESENTS, that each person whose signature appears below severally constitutes and appoints each Director listed below (with full power to each of them to act alone), his or her true and lawful attorneys-in-fact and agents, with full power of substitution and resubstitution, for him or her and in his or her name, place and stead, in any and all capacities to do any and all things and execute any and all instruments that such attorney may deem necessary or advisable under the Securities Act, and any rules, regulations and requirements of the Commission in connection with the registration under the Securities Act of the Securities and any securities or Blue Sky law of any of the states of the United States of America in order to effect the registration or qualification (or exemption therefrom) of the said securities for issue, offer, sale or trade under the Blue Sky or other securities laws of any of such states and in connection therewith to execute, acknowledge, verify, deliver, file and cause to be published applications, reports, consents to service of process, appointments of attorneys to receive service of process and other papers and instruments which may be required under such laws, including specifically, but without limiting the generality of the foregoing, the power and authority to sign his or her name in his or her capacity as an Officer, Director or Authorized Representative in the United States of America or in any other capacity with respect to the Registration Statement and/or such other form or forms as may be appropriate to be filed with the Commission or under or in connection with any Blue Sky laws or other securities laws of any state of the United States of America or with such other regulatory bodies and agencies as any of them may deem appropriate in respect of the Securities, and with respect to any and all amendments, including post-effective amendments, to this Registration Statement and to any and all instruments and documents filed as part of or in connection with this Registration Statement.
II-9
Pursuant to the requirements of the Securities Act, this Registration Statement has been signed below by the following persons in the capacities and on the dates indicated.
Signature |
Title |
Date |
||
/s/ Ulf Quellmann Ulf Quellmann |
Director | March 16, 2012 | ||
/s/ Ben Mathews Ben Mathews |
Director | March 16, 2012 |
Pursuant to the requirements of Section 6(a) of the Securities Act, the undersigned has signed this Registration Statement in the capacity of the duly authorized representative of Rio Tinto Finance (USA) plc in the United States.
/s/ Cheree Finan |
By: Cheree Finan Title: Authorized Representative |
Date: March 16, 2012
Pursuant to the requirements of the Securities Act, Rio Tinto plc certifies that it has reasonable grounds to believe that it meets all of the requirements for filing on Form F-3 and has duly caused this Registration Statement to be signed on its behalf by the undersigned; thereunto duly authorized, in London, England on March 16, 2012.
Rio Tinto plc |
/s/ Ben Mathews |
Name: Ben Mathews |
Title: Company Secretary |
KNOW ALL MEN BY THESE PRESENTS, that each person whose signature appears below severally constitutes and appoints each Director listed below (with full power to each of them to act alone), his or her true and lawful attorneys-in-fact and agents, with full power of substitution and resubstitution, for him or her and in his or her name, place and stead, in any and all capacities to do any and all things and execute any and all instruments that such attorney may deem necessary or advisable under the Securities Act, and any rules, regulations and requirements of the Commission in connection with the registration under the Securities Act of the Securities and any securities or Blue Sky law of any of the states of the United States of America in order to effect the registration or qualification (or exemption therefrom) of the said securities for issue, offer, sale or trade under the Blue Sky or other securities laws of any of such states and in connection therewith to execute, acknowledge, verify, deliver, file and cause to be published applications, reports, consents to service of process, appointments of attorneys to receive service of process and other papers and instruments which may be required under such laws, including specifically, but without limiting the generality of the foregoing, the power and authority to sign his or her name in his or her capacity as an Officer, Director or Authorized Representative in the United States of America or in any other capacity with respect to the Registration Statement and/or such other form or forms as may be appropriate to be filed with the Commission or under or in connection with any Blue
II-10
Sky laws or other securities laws of any state of the United States of America or with such other regulatory bodies and agencies as any of them may deem appropriate in respect of the Securities, and with respect to any and all amendments, including post-effective amendments, to this Registration Statement and to any and all instruments and documents filed as part of or in connection with this Registration Statement.
Pursuant to the requirements of the Securities Act, this Registration Statement has been signed below by the following persons in the capacities and on the dates indicated.
Signature |
Title |
Date |
||
* | Chairman | March 16, 2012 | ||
Jan du Plessis |
||||
* | Director and Chief Executive | March 16, 2012 | ||
Tom Albanese |
||||
/s/ Guy Elliott |
Director and Chief Financial
Officer |
March 16, 2012 | ||
Guy Elliott |
||||
* | Non Executive Director | March 16, 2012 | ||
Robert Brown |
||||
* | Non Executive Director | March 16, 2012 | ||
Vivienne Cox |
||||
* | Non Executive Director | March 16, 2012 | ||
Michael Fitzpatrick |
||||
* | Non Executive Director | March 16, 2012 | ||
Ann Godbehere |
||||
* | Non Executive Director | March 16, 2012 | ||
Richard Goodmanson |
||||
* | Non Executive Director | March 16, 2012 | ||
Andrew Gould |
||||
* | Non Executive Director | March 16, 2012 | ||
Lord Kerr of Kinlochard |
||||
* | Non Executive Director | March 16, 2012 | ||
Paul Tellier |
||||
* | Executive Director | March 16, 2012 | ||
Sam Walsh |
*By: | /s/ Guy Elliott | |
Name: Guy Elliott | ||
Attorney-in-fact |
II-11
Pursuant to the requirements of Section 6(a) of the Securities Act, the undersigned has signed this Registration Statement in the capacity of the duly authorized representative of Rio Tinto plc in the United States.
/s/ Cheree Finan |
By: Cheree Finan |
Title: Authorized Representative |
Pursuant to the requirements of the Securities Act, Rio Tinto Limited certifies that it has reasonable grounds to believe that it meets all of the requirements for filing on Form F-3 and has duly caused this Registration Statement to be signed on its behalf by the undersigned, thereunto duly authorized, in London, England on March 16, 2012.
Rio Tinto Limited
/s/ Ben Mathews |
||
Name: Ben Mathews Title: Assistant Secretary |
KNOW ALL MEN BY THESE PRESENTS, that each person whose signature appears below severally constitutes and appoints each Director listed below (with full power to each of them to act alone), his or her true and lawful attorneys-in-fact and agents, with full power of substitution and resubstitution, for him or her and in his or her name, place and stead, in any and all capacities to do any and all things and execute any and all instruments that such attorney may deem necessary or advisable under the Securities Act, and any rules, regulations and requirements of the Commission in connection with the registration under the Securities Act of the Securities and any securities or Blue Sky law of any of the states of the United States of America in order to effect the registration or qualification (or exemption therefrom) of the said securities for issue, offer, sale or trade under the Blue Sky or other securities laws of any of such states and in connection therewith to execute, acknowledge, verify, deliver, file and cause to be published applications, reports, consents to service of process, appointments of attorneys to receive service of process and other papers and instruments which may be required under such laws, including specifically, but without limiting the generality of the foregoing, the power and authority to sign his or her name in his or her capacity as an Officer, Director or Authorized Representative in the United States of America or in any other capacity with respect to the Registration Statement and/or such other form or forms as may be appropriate to be filed with the Commission or under or in connection with any Blue Sky laws or other securities laws of any state of the United States of America or with such other regulatory bodies and agencies as any of them may deem appropriate in respect of the Securities, and with respect to any and all amendments, including post-effective amendments, to this Registration Statement and to any and all instruments and documents filed as part of or in connection with this Registration Statement.
II-12
Pursuant to the requirements of the Securities Act, this Registration Statement has been signed below by the following persons in the capacities and on the dates indicated.
Signature |
Title |
Date |
||
* |
Chairman | March 16, 2012 | ||
Jan du Plessis |
||||
* |
Director and Chief Executive | March 16, 2012 | ||
Tom Albanese |
||||
/s/ Guy Elliott |
Director and Chief Financial Officer | March 16, 2012 | ||
Guy Elliott |
||||
* |
Non Executive Director | March 16, 2012 | ||
Robert Brown |
||||
* |
Non Executive Director | March 16, 2012 | ||
Vivienne Cox |
||||
* |
Non Executive Director | March 16, 2012 | ||
Michael Fitzpatrick |
||||
* |
Non Executive Director | March 16, 2012 | ||
Ann Godbehere |
||||
* |
Non Executive Director | March 16, 2012 | ||
Richard Goodmanson |
||||
* |
Non Executive Director | March 16, 2012 | ||
Andrew Gould |
||||
* |
Non Executive Director | March 16, 2012 | ||
Lord Kerr of Kinlochard |
||||
* |
Non Executive Director | March 16, 2012 | ||
Paul Tellier |
||||
* |
Executive Director | March 16, 2012 | ||
Sam Walsh |
By: | /s/ Guy Elliott | |
Name: Guy Elliott | ||
Attorney-in-fact |
Pursuant to the requirements of Section 6(a) of the Securities Act, the undersigned has signed this Registration Statement in the capacity of the duly authorized representative of Rio Tinto Limited in the United States.
/s/ Cheree Finan |
||
By: Cheree Finan | ||
Title: Authorized Representative |
Date: March 16, 2012
II-13
Exhibit
|
Description |
|
1 | Form of Underwriting Agreement for Guaranteed Debt Securities* | |
4.1 | Indenture, dated July 2, 2001, as amended and restated as of March 16, 2012, among Rio Tinto Finance (USA) Limited, Rio Tinto Finance (USA) plc, Rio Tinto plc, Rio Tinto Limited and The Bank of New York Mellon | |
5.1 | Opinion of Linklaters LLP, as to the validity of the debt securities and the guarantees being registered as to certain matters of English law | |
5.2 | Opinion of Linklaters LLP, as to the validity of the debt securities and the guarantees being registered as to certain matters of New York law | |
5.3 | Opinion of Allens Arthur Robinson, as to the validity of the debt securities and the guarantees being registered as to certain matters of Australian law | |
8.1 | Opinion of Linklaters LLP, as to certain matters of U.K. taxation (included in Exhibit 5.1) | |
8.2 | Opinion of Linklaters LLP, as to certain matters of U.S. taxation | |
8.3 | Opinion of Allens Arthur Robinson, as to certain matters of Australian taxation | |
12 | Statement of computation of ratio of earnings to fixed charges | |
23.1 | Consent of PricewaterhouseCoopers LLP and PricewaterhouseCoopers for incorporation by reference of their report relating to the financial statements of Rio Tinto plc and Rio Tinto Limited | |
23.2 | Consent of Linklaters LLP (included in Exhibit 5.1) | |
23.3 | Consent of Linklaters LLP (included in Exhibit 5.2) | |
23.4 | Consent of Allens Arthur Robinson (included in Exhibit 5.3) | |
24.1 |
Power of Attorney of Rio Tinto Finance (USA) plc |
|
24.2 | Power of Attorney of Rio Tinto Finance (USA) Limited | |
24.3 | Power of Attorney of Rio Tinto plc (included in signature page) | |
24.4 | Power of Attorney of Rio Tinto Limited (included in signature page) | |
25 | Form T-1 Statement of Eligibility under the Trust Indenture Act of 1939 of The Bank of New York Mellon |
* | Previously filed on June 21, 2011 |
II-14
Exhibit 4.1
Rio Tinto Finance (USA) Limited, (ABN 84 062 129 551)
Issuer
Rio Tinto Finance (USA) plc
Issuer
Rio Tinto plc
Guarantor
Rio Tinto Limited (ABN 96 004 458 404)
Guarantor
TO
The Bank of New York Mellon
Trustee
Amended and Restated Indenture
Dated as of July 2, 2001 and amended and restated as of March 16, 2012
Guaranteed Debt Securities
Rio Tinto Finance (USA) Limited,
Rio Tinto Finance (USA) plc,
Rio Tinto plc,
Rio Tinto Limited.
Certain Sections of this Indenture relating to Sections 310 through 318,
inclusive, of the Trust Indenture Act of 1939:
Trust
Indenture
|
Indenture Section | |||
§ 310(a)(1) |
609 | |||
(a)(2) |
609 | |||
(a)(3) |
Not Applicable | |||
(a)(4) |
Not Applicable | |||
(b) |
608 | |||
610 | ||||
§ 311(a) |
613 | |||
(b) |
613 | |||
§ 312(a) |
701 | |||
702 | ||||
(b) |
702 | |||
(c) |
702 | |||
§ 313(a) |
703 | |||
(b) |
703 | |||
(c) |
703 | |||
(d) |
703 | |||
§ 314(a) |
704 | |||
(a)(4) |
101 | |||
1005 | ||||
(b) |
Not Applicable | |||
(c)(1) |
102 | |||
(c)(2) |
102 | |||
(c)(3) |
Not Applicable | |||
(d) |
Not Applicable | |||
(e) |
102 | |||
§ 315(a) |
601 | |||
(b) |
602 | |||
(c) |
601 | |||
(d) |
601 | |||
(e) |
514 | |||
§ 316(a) |
101 | |||
(a)(1)(A) |
502 | |||
512 | ||||
(a)(1)(B) |
513 | |||
(a)(2) |
Not Applicable | |||
(b) |
508 | |||
(c) |
104 | |||
§ 317(a) (1) |
503 | |||
(a)(2) |
504 | |||
(b) |
1003 | |||
§ 318(a) |
107 |
N OTE : This reconciliation and tie shall not, for any purpose, be deemed to be a part of the Indenture.
TABLE OF CONTENTS
Page | ||||
R ECITALS OF THE ISSUERS |
-1- | |||
R ECITALS OF THE G UARANTORSTO |
-1- | |||
ARTICLE ONE |
||||
D EFINITIONS AND O THER P ROVISIONS OF G ENERAL A PPLICATION |
-1- | |||
S ECTION 101. Definitions |
-1- | |||
Act |
-2- | |||
Affiliate |
-2- | |||
control |
-2- | |||
Authenticating Agent |
-2- | |||
Authorized Newspapers |
-2- | |||
Board of Directors |
-2- | |||
Board Resolution |
-2- | |||
Business Day |
-2- | |||
Commission |
-3- | |||
Company Request |
-3- | |||
Consolidated Net Worth plus Minorities |
-3- | |||
Corporate Trust Office |
-3- | |||
Corporation |
-3- | |||
Covenant Defeasance |
-3- | |||
Defaulted Interest |
-3- | |||
Defeasance |
-3- | |||
Depositary |
-3- | |||
Encumbrance |
-3- | |||
Event of Default |
-3- | |||
Exchange Act |
-3- | |||
Expiration Date |
-4- | |||
Global Security |
-4- | |||
Guarantees |
-4- | |||
Guarantor |
-4- | |||
Holder |
-4- | |||
Indenture |
-4- | |||
interest |
-4- | |||
Interest Payment Date |
-4- | |||
International Financial Reporting Standards |
-4- | |||
Investment Company Act |
-4- | |||
Issuer |
-4- | |||
Joint Venture |
-4- | |||
Maturity |
-4- | |||
Notice of Default |
-4- | |||
Officers Certificate |
-4- | |||
Opinion of Counsel |
-5- | |||
Original Issue Discount Security |
-5- | |||
Outstanding |
-5- |
i
Paying Agent |
-6- | |||
Person |
-6- | |||
Place of Payment |
-6- | |||
Predecessor Security |
-6- | |||
Project Finance Borrowing |
-6- | |||
Property |
-7- | |||
Redemption Date |
-7- | |||
Redemption Price |
-7- | |||
Regular Record Date |
-7- | |||
Responsible Officer |
-7- | |||
Rio Tinto Group |
-7- | |||
Securities |
-7- | |||
Securities Act |
-7- | |||
Security Register and Security Registrar |
-7- | |||
Special Record Date |
-7- | |||
Stated Maturity |
-7- | |||
Subsidiary |
-8- | |||
Trust Indenture Act |
-8- | |||
Trustee |
-8- | |||
United States Person |
-8- | |||
U.S. Government Obligation |
-8- | |||
Vice President |
-8- | |||
S ECTION 102. Compliance Certificates and Opinions |
-8- | |||
S ECTION 103. Form of Documents Delivered to Trustee |
-9- | |||
S ECTION 104. Acts of Holders; Record Dates |
-9- | |||
S ECTION 105. Notices, Etc., to Trustee, Issuers and Guarantors |
-11- | |||
S ECTION 106. Notice to Holders; Waiver |
-12- | |||
S ECTION 107. Language of Notices, Etc. |
-12- | |||
S ECTION 108. Conflict with Trust Indenture Act |
-12- | |||
S ECTION 109. Effect of Headings and Table of Contents |
-12- | |||
S ECTION 110. Successors and Assigns |
-12- | |||
S ECTION 111. Separability Clause |
-13- | |||
S ECTION 112. Benefits of Indenture |
-13- | |||
S ECTION 113. Governing Law |
-13- | |||
S ECTION 114. Saturdays, Sundays and Legal Holidays |
-13- | |||
S ECTION 115. Appointment of Agent for Service |
-13- |
ii
ARTICLE TWO |
||
S ECURITY F ORMS |
-14- | |
S ECTION 201. Forms Generally |
-14- | |
S ECTION 202. Form of Face of Security |
-15- | |
S ECTION 203. Form of Reverse of Security |
-16- | |
S ECTION 204. Form of Legend for Global Securities |
-21- | |
S ECTION 205. Guarantee by Guarantors; Form of Guarantee |
-22- | |
S ECTION 206. Form of Trustees Certificate of Authentication |
-26- | |
ARTICLE THREE |
||
T HE S ECURITIES |
-27- | |
S ECTION 301. Amount Unlimited; Issuable In Series |
-27- | |
S ECTION 302. Denominations |
-29- | |
S ECTION 303. Execution, Authentication, Delivery and Dating |
-29- | |
S ECTION 304. Temporary Securities |
-30- | |
S ECTION 305. Registration, Registration of Transfer and Exchange |
-31- | |
S ECTION 306. Mutilated, Destroyed, Lost and Stolen Securities |
-32- | |
S ECTION 307. Payment of Interest; Interest Rights Preserved |
-33- | |
S ECTION 308. Persons Deemed Owners |
-34- | |
S ECTION 309. Cancellation |
-34- | |
S ECTION 310. Computation of Interest |
-35- | |
S ECTION 311. CUSIP Numbers |
-35- | |
Section 312. Qualified Reopenings |
-35- | |
ARTICLE FOUR |
||
S ATISFACTION A ND D ISCHARGE |
-35- | |
S ECTION 401. Satisfaction and Discharge of Indenture |
-35- | |
S ECTION 402. Application of Trust Money |
-36- |
iii
ARTICLE FIVE |
||
R EMEDIES |
-37- | |
S ECTION 501. Events of Default |
-37- | |
S ECTION 502. Acceleration of Maturity; Rescission and Annulment |
-38- | |
S ECTION 503. Collection of Indebtedness and Suits for Enforcement by Trustee |
-39- | |
S ECTION 504. Trustee May File Proofs of Claim |
-40- | |
S ECTION 505. Trustee May Enforce Claims Without Possession of Securities |
-40- | |
S ECTION 506. Application of Money Collected |
-40- | |
S ECTION 507. Limitation on Suits |
-41- | |
S ECTION 508. Unconditional Right of Holders to Receive Principal, Premium and Interest |
-41- | |
S ECTION 509. Restoration of Rights and Remedies |
-41- | |
S ECTION 510. Rights and Remedies Cumulative |
-42- | |
S ECTION 511. Delay or Omission Not Waiver |
-42- | |
S ECTION 512. Control by Holders |
-42- | |
S ECTION 513. Waiver of Past Defaults |
-42- | |
S ECTION 514. Undertaking for Costs |
-43- | |
S ECTION 515. Waiver of Usury, Stay or Extension Laws |
-43- | |
ARTICLE SIX |
||
T HE T RUSTEE |
-43- | |
S ECTION 601. Certain Duties and Responsibilities |
-43- | |
S ECTION 602. Notice of Defaults |
-43- | |
S ECTION 603. Certain Rights of Trustee |
-44- | |
S ECTION 604. Not Responsible for Recitals or Issuance of Securities |
-45- | |
S ECTION 605. May Hold Securities |
-45- | |
S ECTION 606. Money held in Trust |
-45- | |
S ECTION 607. Compensation and Reimbursement |
-46- |
iv
S ECTION 608. Conflicting Interests |
-46- | |
S ECTION 609. Corporate Trustee Required; Eligibility |
-47- | |
S ECTION 610. Resignation and Removal; Appointment of Successor |
-47- | |
S ECTION 611. Acceptance of Appointment by Successor |
-48- | |
S ECTION 612. Merger, Conversion, Consolidation or Succession to Business |
-49- | |
S ECTION 613. Preferential Collection of Claims Against Issuers or Guarantors |
-49- | |
S ECTION 614. Appointment of Authenticating Agent |
-50- | |
ARTICLE SEVEN |
||
H OLDERS LISTS A ND R EPORTS BY T RUSTEES , ISSUERS AND G UARANTORS |
-52- | |
S ECTION 701. Issuers and the Guarantors to Furnish Trustee Names and Addresses of Holders |
-52- | |
S ECTION 702. Preservation of Information; Communications to Holders |
-52- | |
S ECTION 703. Reports by Trustee |
-52- | |
S ECTION 704. Reports by Issuers and Guarantors |
-53- | |
ARTICLE EIGHT |
||
C ONSOLIDATION , M ERGER , C ONVEYANCE , T RANSFER OR L EASE |
-53- | |
S ECTION 801. Issuers or Guarantors May Consolidate, Etc., Only on Certain Terms |
-53- | |
S ECTION 802. Successor Substituted |
-54- | |
S ECTION 803. Assumption by a Guarantor or Subsidiary of Issuers Obligations |
-55- | |
ARTICLE NINE |
||
S UPPLEMENTAL I NDENTURES |
-57- | |
S ECTION 901. Supplemental Indentures Without Consent of Holders |
-57- | |
S ECTION 902. Supplemental Indentures With Consent of Holders |
-58- | |
S ECTION 903. Execution of Supplemental Indentures |
-59- | |
S ECTION 904. Effect of Supplemental Indentures |
-59- | |
S ECTION 905. Conformity with Trust Indenture Act |
-59- | |
S ECTION 906. Reference in Securities to Supplemental Indentures |
-59- |
v
ARTICLE TEN |
||
C OVENANTS |
-60- | |
S ECTION 1001. Payment of Principal, Premium and Interest |
-60- | |
S ECTION 1002. Maintenance of Office or Agency |
-60- | |
S ECTION 1003. Money for Securities Payments to Be Held in Trust |
-60- | |
S ECTION 1004. Additional Amounts |
-61- | |
S ECTION 1005. Statement by Officers as to Default |
-64- | |
S ECTION 1006. Existence |
-64- | |
S ECTION 1007. Limitations on Liens |
-64- | |
S ECTION 1008. Limitations on Sales & Leasebacks |
-67- | |
S ECTION 1009. Waiver of Certain Covenants |
-67- | |
ARTICLE ELEVEN |
||
R EDEMPTION OF S ECURITIES |
-68- | |
S ECTION 1101. Applicability of Article |
-68- | |
S ECTION 1102. Election to Redeem; Notice To Trustee |
-68- | |
S ECTION 1103. Selection by Trustee of Securities to Be Redeemed |
-68- | |
S ECTION 1104. Notice of Redemption |
-69- | |
S ECTION 1105. Deposit of Redemption Price |
-69- | |
S ECTION 1106. Securities Payable on Redemption Date |
-69- | |
S ECTION 1107. Securities Redeemed in Part |
-70- | |
S ECTION 1108. Optional Redemption Due to Changes in Tax Treatment |
-70- | |
ARTICLE TWELVE |
||
S INKING F UNDS |
-71- | |
S ECTION 1201. Applicability of Article |
-71- | |
S ECTION 1202. Satisfaction of Sinking Fund Payments with Securities |
-71- | |
S ECTION 1203. Redemption of Securities for Sinking Fund |
-72- |
vi
ARTICLE THIRTEEN |
||
D EFEASANCE A ND C OVENANT D EFEASANCE |
-72- | |
S ECTION 1301. Option of Issuers or Guarantors to Effect Defeasance or Covenant Defeasance |
-72- | |
S ECTION 1302. Defeasance and Discharge |
-72- | |
S ECTION 1303. Covenant Defeasance |
-73- | |
S ECTION 1304. Conditions to Defeasance or Covenant Defeasance |
-73- | |
S ECTION 1305. Deposited Money and U.S. Government Obligations to Be Held in Trust; Miscellaneous Provisions |
-75- | |
S ECTION 1306. Reinstatement |
-76- |
vii
AMENDED AND RESTATED INDENTURE, dated as of March 16, 2012, among Rio Tinto Finance (USA) Limited (ABN 84 062 129 551), a corporation duly organized and existing under the laws of the State of Victoria, Australia, having its principal office at Level 33, 120 Collins Street, Melbourne, Victoria 3000, Australia, Rio Tinto Finance (USA) plc, a public limited company duly incorporated and existing under the laws of England, having its registered office at 2 Eastbourne Terrace, London W2 6LG, United Kingdom (each being referred to as an Issuer and together as the Issuers), Rio Tinto plc, a public limited company duly incorporated and existing under the laws of England, having its registered office at 2 Eastbourne Terrace, London W2 6LG, England and Rio Tinto Limited (ABN 96 004 458 404), a corporation duly organized and existing under the laws of the State of Victoria, Australia, having its principal office at Level 33, 120 Collins Street, Melbourne, Victoria 3000, Australia (each being referred to herein as a Guarantor and together as the Guarantors) and The Bank of New York Mellon, a banking corporation duly organized and existing under the laws of the State of New York, as Trustee (herein called the Trustee).
RECITALS OF THE ISSUERS AND THE GUARANTORS
Each Issuer, each Guarantor and the other parties named herein entered into an indenture dated July 2, 2001 (the Original Indenture) and such parties now wish to amend and restate the Original Indenture, it being acknowledged that this amended and restated indenture constitutes a supplemental indenture pursuant Section 901.
RECITALS OF THE ISSUERS
Each Issuer has duly authorized the execution and delivery of this Indenture to provide for the issuance from time to time of its unsecured debentures, notes or other evidences of indebtedness (herein called the Securities), to be issued in one or more series as in this Indenture provided.
All things necessary to make this Indenture a valid agreement of the Issuers, in accordance with its terms, have been done.
RECITALS OF THE GUARANTORS
The Guarantors desire to make the guarantees provided for herein.
All things necessary to make this Indenture a valid agreement of the Guarantors, in accordance with its terms, have been done.
NOW, THEREFORE, THIS INDENTURE WITNESSETH:
For and in consideration of the premises and the purchase of the Securities by the Holders thereof, it is mutually agreed, for the equal and proportionate benefit of all Holders of the Securities or of series thereof, as follows:
ARTICLE ONE
DEFINITIONS AND OTHER PROVISIONS OF GENERAL APPLICATION
SECTION 101. Definitions .
For all purposes of this Indenture, except as otherwise expressly provided or unless the context otherwise requires:
1
(1) the terms defined in this Article have the meanings assigned to them in this Article and include the plural as well as the singular;
(2) all other terms used herein which are defined in the Trust Indenture Act, either directly or by reference therein, have the meanings assigned to them therein;
(3) all accounting terms not otherwise defined herein have the meanings assigned to them in accordance with International Financial Reporting Standards as applied by Rio Tinto plc and Rio Tinto Limited, respectively;
(4) unless the context otherwise requires, any reference to an Article or a Section refers to an Article or a Section, as the case may be, of this Indenture; and
(5) the words herein, hereof and hereunder and other words of similar import refer to this Indenture as a whole and not to any particular Article, Section or other subdivision.
Act, when used with respect to any Holder, has the meaning specified in Section 104.
Affiliate of (i) any company in the Rio Tinto Group means a Subsidiary of any such company and (ii) any specified Person other than a company in the Rio Tinto Group means any other Person directly or indirectly controlling or controlled by or under direct or indirect common control with such specified Person. For the purposes of Clause (ii) of this definition, control when used with respect to any specified Person means the power to direct the management and policies of such Person, directly or indirectly, whether through the ownership of voting securities, by contract or otherwise; and the terms controlling and controlled have meanings correlative to the foregoing.
Authenticating Agent means any Person authorized by the Trustee pursuant to Section 614 to act on behalf of the Trustee to authenticate Securities of one or more series.
Authorized Newspapers means a newspaper of general circulation in the relevant area, printed in the English language and customarily published on each business day, whether or not published on Saturdays, Sundays or holidays. Whenever successive weekly publications in an Authorized Newspaper are authorized hereunder, they may be made (unless otherwise expressly provided herein) on the same or different days of the week and in the same or different Authorized Newspapers.
Board of Directors, when used with reference to any Issuer or any Guarantor, means either the board of directors of either Issuer or either Guarantor, as the case may be, or any duly authorized committee of such board.
Board Resolution, when used with reference to any Issuer or any Guarantor, means a copy of a resolution certified by any Director of such Issuer or, in the case of a Guarantor, by any Director or the Secretary or an Assistant Secretary of such Guarantor to have been duly adopted by the Board of Directors and to be in full force and effect on the date of such certification, and delivered to the Trustee,
Borrowing means monies borrowed or raised and any guarantee, indemnity or other assurance against (or other arrangement intended to prevent or limit) loss in respect of the Borrowings of any Person.
Business Day, when used with respect to any Place of Payment or any other particular location referred to in this Indenture or in the Securities, means each Monday, Tuesday, Wednesday, Thursday and Friday which is not a day on which banking institutions in that Place of Payment or in New York City are authorized or obligated by law or executive order to close.
2
Commission means the Securities and Exchange Commission, from time to time constituted, created under the Exchange Act, or, if at any time after the execution of this instrument such Commission is not existing and performing the duties now assigned to it under the Trust Indenture Act, then the body performing such duties at such time.
Company Request or Company Order means a written request or order signed in the name of the Issuer of the relevant series of Securities by its Chairman of the Board, its Vice Chairman of the Board, its President or a Vice President, or by its Treasurer, an Assistant Treasurer, its Secretary or an Assistant Secretary (or an attorney in fact of one of those persons), or in the case of a Guarantor, in the name of that Guarantor by any Director, Secretary or Finance Director of such Guarantor, each delivered to the Trustee.
Consolidated Net Worth plus Minorities means, with respect to the Guarantors and their Subsidiaries (Accounting) considered as an entirety, the aggregate amount for the time being paid up or credited as paid up on the issued share capital of the Guarantors, plus the amount standing to the credit (or, as the case may be, minus the amount standing to the debit) of the consolidated profit and loss account of the Guarantors and their Subsidiaries (Accounting) as at the end of the latest financial year (or half year) for which financial statements of the Guarantors and their Subsidiaries (Accounting) have been published, plus any other consolidated reserves of the Guarantors and their Subsidiaries (Accounting) (including any share premium account or capital redemption reserve), plus all amounts that have been written off (to profit and loss account or other reserves) in respect of goodwill (as defined under International Financial Reporting Standards), plus (to the extent not already included) the amount attributable to the interests of outside holders of issued share capital in any of the Guarantors Subsidiaries (Accounting). For the purposes of this definition, all items shall be calculated on a consolidated basis in accordance with International Financial Reporting Standards and (subject only as may be required in order to reflect the express inclusion or exclusion of items as specified in this definition) shall be as shown in the latest published consolidated balance sheet of the Guarantors and their Subsidiaries (Accounting).
Corporate Trust Office means the principal office of the Trustee in the Borough of Manhattan, New York City at which at any particular time its corporate trust business shall be administered, which office at the date of initial execution of this Indenture is 101 Barclay Street, 4E, New York, New York 10286.
Corporation means a corporation, association, company, joint-stock company or business trust.
Covenant Defeasance has the meaning specified in Section 1303.
Defaulted Interest has the meaning specified in Section 307.
Defeasance has the meaning specified in Section 1302.
Depositary means, with respect to Securities of any series issuable in whole or in part in the form of one or more Global Securities, a clearing agency registered under the Exchange Act that is designated to act as Depositary for such Securities as contemplated by Section 301.
Encumbrance means any mortgage, pledge, security interest or lien.
Event of Default has the meaning specified in Section 501.
Exchange Act means the Securities Exchange Act of 1934 and any statute successor thereto, in each case as amended from time to time.
3
Expiration Date has the meaning specified in Section 104.
Global Security means a Security that evidences all or part of the Securities of any series and bears the legend set forth in Section 204 (or such legend as may be specified as contemplated by Section 301 for such Securities).
Guarantees means any of the joint and several Guarantees of the Guarantors endorsed on any Security authenticated and delivered pursuant to this Indenture (as may be specified as contemplated by Section 301 for such Securities) and shall include the form of Guarantee set forth in Section 205.
Guarantor means either of the Persons named as a Guarantor in the first paragraph of this instrument until a successor Person shall have become such pursuant to the applicable provisions of this Indenture and thereafter Guarantor shall mean such successor Person.
Holder means a Person in whose name a Security is registered in the Security Register.
Indenture means this instrument as originally executed and as it may from time to time be supplemented or amended by one or more indentures supplemental hereto entered into pursuant to the applicable provisions hereof, including, for all purposes of this instrument and any such supplemental indenture, the provisions of the Trust Indenture Act that are deemed to be a part of and govern this instrument and any such supplemental indenture, respectively. The term Indenture shall also include the terms of particular series of Securities established as contemplated by Section 301.
interest, when used with respect to an Original Issue Discount Security which by its terms bears interest only after Maturity, means interest payable after Maturity.
Interest Payment Date, when used with respect to any Security, means the Stated Maturity of an installment of interest on such Security.
International Financial Reporting Standards shall mean International Financial Reporting Standards as issued by the International Accounting Standards Board.
Investment Company Act means the Investment Company Act of 1940 and any statute successor thereto, in each case as amended from time to time.
Issuers means the Persons named as the Issuers in the first paragraph of this instrument and Issuer means either of them, as the case may be, until a successor Person shall have become such pursuant to the applicable provisions of this Indenture, and thereafter Issuer shall mean such successor Person.
Joint Venture, means a partnership, corporation, joint venture or unincorporated organization or association whose business or activities substantially consist of or are related to the exploration, development, mining and/or exploitation (including processing and marketing) of base and precious metals, other minerals, petroleum or any other materials whatsoever.
Maturity, when used with respect to any Security, means the date on which the principal of such Security or an installment of principal becomes due and payable as therein or herein provided, whether at the Stated Maturity or by declaration of acceleration, call for redemption or otherwise.
Notice of Default means a written notice of the kind specified in Section 501(4).
Officers Certificate means a certificate signed by the Chairman of the Board, a Vice Chairman of the Board, the President or a Vice President, any Director, the Treasurer or the
4
Secretary (or an attorney-in-fact of one of those persons) of the Issuer of the relevant series of Securities or, in the case of a Guarantor, by any Director, the Secretary or the Treasurer of such Guarantor, in each case delivered to the Trustee. An officer signing an Officers Certificate given pursuant to Section 1005 shall be the principal executive, financial or accounting officer of the Issuer of the relevant series of Securities or the applicable Guarantor, as the case may be.
Opinion of Counsel means a written opinion of counsel, who may be counsel for any of the Issuers, any of the Guarantors, or other counsel acceptable to the Trustee.
Original Issue Discount Security means any Security which provides for an amount less than the principal amount thereof to be due and payable upon a declaration of acceleration of the Maturity thereof pursuant to Section 502.
Outstanding, when used with respect to Securities, means, as of the date of determination, all Securities theretofore authenticated and delivered under this Indenture, except :
(1) Securities theretofore cancelled by the Trustee or delivered to the Trustee for cancellation;
(2) Securities for whose payment or redemption money in the necessary amount has been theretofore deposited with the Trustee or any Paying Agent (other than the Issuer of such Securities or a Guarantor) in trust or set aside and segregated in trust by an Issuer or a Guarantor (if the Issuer of such Securities or a Guarantor shall act as its own or their own Paying Agent) for the Holders of such Securities; provided that, if such Securities are to be redeemed, notice of such redemption has been duly given pursuant to this Indenture or provision therefor satisfactory to the Trustee has been made;
(3) Securities as to which Defeasance has been effected pursuant to Section 1302; and
(4) Securities which have been paid pursuant to Section 306 or in exchange for or in lieu of which other Securities have been authenticated and delivered pursuant to this Indenture, other than any such Securities in respect of which there shall have been presented to the Trustee proof satisfactory to it that such Securities are held by a protected purchaser (as defined in Article 8 of the Uniform Commercial Code) in whose hands such Securities are valid obligations of the Issuer of such Securities;
provided, however , that in determining whether the Holders of the requisite principal amount of the Outstanding Securities have given, made or taken any request, demand, authorization, direction, notice, consent, waiver or other action hereunder as of any date, (A) the principal amount of an Original Issue Discount Security which shall be deemed to be Outstanding shall be the amount of the principal thereof which would be due and payable as of such date upon acceleration of the Maturity thereof to such date pursuant to Section 502, (B) if, as of such date, the principal amount payable at the Stated Maturity of a Security is not determinable, the principal amount of such Security which shall be deemed to be Outstanding shall be the amount as specified or determined as contemplated by Section 301, (C) the principal amount of a Security denominated in one or more foreign currencies or currency units which shall be deemed to be Outstanding shall be the U.S. dollar equivalent, determined as of such date in the manner provided as contemplated by Section 301, of the principal amount of such Security (or, in the case of a Security described in Clause (A) or (B) above, of the amount determined as provided in such Clause), and (D) Securities owned by the Issuer of such Securities, any of the Guarantors or any other obligor upon the Securities or any Affiliate of the Issuer of such Securities, a Guarantor or of such other obligor shall be disregarded and deemed not to be Outstanding, except that, in determining whether the
5
Trustee shall be protected in relying upon any such request, demand, authorization, direction, notice, consent, waiver or other action, only Securities which a Responsible Officer of the Trustee knows to be so owned shall be so disregarded. Securities so owned which have been pledged in good faith may be regarded as Outstanding if the pledgee establishes to the satisfaction of the Trustee the pledgees right so to act with respect to such Securities and that the pledgee is not the Issuer of such Securities, any of the Guarantors or any other obligor upon the Securities or any Affiliate of the Issuer of such Securities, any of the Guarantors or of such other obligor.
Paying Agent means any Person authorized by an Issuer to pay the principal of or any premium or interest on any Securities on behalf of such Issuer and which initially shall be the Trustee.
Person means any individual, corporation, partnership, joint venture, limited liability company, association, joint stock company, trust, unincorporated organization or government or any agency or political subdivision thereof.
Place of Payment, when used with respect to the Securities of any series, means the place or places where the principal of and any premium and interest on the Securities of that series are payable as specified as contemplated by Section 301.
Predecessor Security of any particular Security means every previous Security evidencing all or a portion of the same debt as that evidenced by such particular Security; and, for the purposes of this definition, any Security authenticated and delivered under Section 306 in exchange for or in lieu of a mutilated, destroyed, lost or stolen Security shall be deemed to evidence the same debt as the mutilated, destroyed, lost or stolen Security.
Project Finance Borrowing means any indebtedness for borrowed money to finance a project:
(1) | which is borrowed or raised by a single purpose company (whether or not a Guarantor or an Issuer) whose principal assets and business are constituted by such project and whose liabilities in respect of such indebtedness are not directly or indirectly the subject of a guarantee, indemnity or any other form of assurance, undertaking or financial support from any Guarantor or any Issuer except as expressly provided for in paragraph (2)(iii) below; or |
(2) | in respect of and in connection with which the Person or Persons making such indebtedness for borrowed money available to the relevant borrower (whether or not a Guarantor or an Issuer) have no recourse whatsoever to any Guarantor or any Issuer for the repayment of or repayment of any sum relating to such indebtedness other than: |
(i) | recourse to the borrower for amounts limited to the aggregate cash flow or net cash flow (other than historic cash flow or historic net cash flow) from such project; and/or |
(ii) | recourse to the borrower for the purpose only of enabling amounts to be claimed in respect of such indebtedness upon an enforcement of an Encumbrance given by the borrower over the assets comprised in such project and/or by any shareholder or the like in the borrower over its shares or the like in the capital of the borrower to secure such indebtedness and/or any recourse permitted by (iii) below, provided that (A) the extent of such recourse to the borrower is limited solely to the amount of any recoveries made on any such enforcement, and (B) such Person or Persons are not entitled, by virtue of any right or claim arising out of or in connection with such indebtedness, to commence proceedings for the winding up or dissolution of the borrower or to appoint or procure the appointment of any receiver, trustee or similar person or official in respect of the borrower or any of its assets (save for the assets the subject of such Encumbrance); and/or |
6
(iii) | recourse to the borrower generally, or directly or indirectly to any Guarantor or any Issuer under a guarantee, indemnity or other form of assurance, undertaking or financial support, which (A) is limited to a claim for damages for breach of an obligation (not being a payment obligation) of the Person against whom such recourse is available, and/or (B) entitles the creditor for such indebtedness, upon default by the borrower, such Person or any other Person, to require a payment to be made (whether to or for the benefit of such creditor, the borrower or another Person) provided that, in the case of (B), where such payment is capable of being for an amount which is material either alone or as a percentage of the indebtedness financing the project, such recourse is capable of being called on only during the period prior to practical completion of the project or of that portion of the project being financed by such indebtedness. |
Property of any Person means all types of real, personal, tangible, intangible or mixed property owned by such Person whether or not included in the most recent consolidated balance sheet of such Person under International Financial Reporting Standards.
Redemption Date, when used with respect to any Security to be redeemed, means the date fixed for such redemption by or pursuant to this Indenture.
Redemption Price, when used with respect to any Security to be redeemed, means the price at which it is to be redeemed pursuant to this Indenture.
Regular Record Date for the interest payable on any Interest Payment Date on the Securities of any series means the date specified for that purpose as contemplated by Section 301.
Responsible Officer, when used with respect to the Trustee, means any officer within the corporation trust department of the Trustee having direct responsibility for the administration of this Indenture and also means, with respect to a particular corporate trust matter, any other officer to whom such matter is referred because of his knowledge of and familiarity with the particular subject.
Rio Tinto Group means the group comprising Rio Tinto plc (or its successors) and its Subsidiaries from time to time and Rio Tinto Limited (or its successors) and its Subsidiaries from time to time.
Securities has the meaning stated in the first recital of this Indenture and more particularly means any Securities authenticated and delivered under this Indenture.
Securities Act means the Securities Act of 1933 and any statute successor thereto, in each case as amended from time to time.
Security Register and Security Registrar have the respective meanings specified in Section 305.
Special Record Date for the payment of any Defaulted Interest means a date fixed by the Trustee and the Issuer of the relevant series of Securities pursuant to Section 307.
Stated Maturity, when used with respect to any Security or any installment of principal thereof or interest thereon, means the date specified in such Security as the fixed date on which the principal of such Security or such installment of principal or interest is due and payable.
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Subsidiary means (i) in relation to Rio Tinto Finance (USA) Limited, Rio Tinto Limited (or its successors) or any Subsidiary of Rio Tinto Limited, any company which is a subsidiary of Rio Tinto Finance (USA) Limited, Rio Tinto Limited (or any of their respective successors) or that Subsidiary within the meaning ascribed to the term subsidiary in Section 9 of the Corporations Law of Australia and (ii) in relation to Rio Tinto Finance (USA) plc, Rio Tinto plc or any Subsidiary of Rio Tinto plc, any company which is a subsidiary of Rio Tinto Finance (USA) plc, Rio Tinto plc (or any of their respective successors) or that Subsidiary within the meaning ascribed to the term subsidiary in Section 1159 of the Companies Act 2006 of Great Britain, provided that where such term is followed immediately by (Accounting) it shall mean any company, corporation or other entity which either is a Subsidiary in accordance with the foregoing or is treated in the consolidated accounts of any Guarantor as being a subsidiary or subsidiary undertaking of such Guarantor.
Trust Indenture Act means the Trust Indenture Act of 1939 as in force at the date as of which this instrument was executed; provided, however , that in the event the Trust Indenture Act of 1939 is amended after such date, Trust Indenture Act means, to the extent required by any such amendment, the Trust Indenture Act of 1939 as so amended.
Trustee means the Person named as the Trustee in the first paragraph of this instrument until a successor Trustee shall have become such pursuant to the applicable provisions of this Indenture, and thereafter Trustee shall mean or include each Person who is then a Trustee hereunder, and if at any time there is more than one such Person, Trustee as used with respect to the Securities of any series shall mean the Trustee with respect to Securities of that series.
United States Person means any Person who, for United States Federal income tax purposes, is a citizen or resident, a domestic corporation, an estate whose income is subject to taxation regardless of its source or a trust if a United States court can exercise primary supervision over the trusts administration and one or more United States Persons are authorized to control all substantial decisions of the trust.
U.S. Government Obligation has the meaning specified in Section 1304.
Vice President, when used with respect to an Issuer or the Trustee, means any vice president, whether or not designated by a number or a word or words added before or after the title vice president.
SECTION 102. Compliance Certificates and Opinions.
Upon any application or request by any Issuer or any Guarantor to the Trustee to take or refrain from taking any action under any provision of this Indenture, such Issuer or such Guarantor shall furnish to the Trustee such certificates and opinions as may be required under the Trust Indenture Act. Each such certificate or opinion shall be given in the form of an Officers Certificate, if to be given by an officer of any Issuer or any Guarantor, or an Opinion of Counsel, if to be given by counsel, and shall comply with the requirements of the Trust Indenture Act and any other requirements set forth in this Indenture.
Every certificate or opinion with respect to compliance with a condition or covenant provided for in this Indenture (except for certificates provided for in Section 1005) shall include
(1) a statement that each individual signing such certificate or opinion has read such covenant or condition and the definitions herein relating thereto;
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(2) a brief statement as to the nature and scope of the examination or investigation upon which the statements or opinions contained in such certificate or opinion are based;
(3) a statement that, in the opinion of each such individual, he has made such examination or investigation as is necessary to enable him to express an informed opinion as to whether or not such covenant or condition has been complied with; and
(4) a statement as to whether, in the opinion of each such individual, such condition or covenant has been complied with.
SECTION 103. Form of Documents Delivered to Trustee.
In any case where several matters are required to be certified by, or covered by an opinion of, any specified Person, it is not necessary that all such matters be certified by, or covered by the opinion of, only one such Person, or that they be so certified or covered by only one document, but one such Person may certify or give an opinion with respect to some matters and one or more other such Persons as to other matters, and any such Person may certify or give an opinion as to such matters in one or several documents.
Any certificate or opinion of an officer of any Issuer or any Guarantor may be based, insofar as it relates to legal matters, upon a certificate or opinion of, or representations by, counsel, unless such officer knows, or in the exercise of reasonable care should know, that the certificate or opinion or representations with respect to the matters upon which his certificate or opinion is based are erroneous. Any such certificate or opinion of counsel may be based, insofar as it relates to factual matters, upon a certificate or opinion of, or representations by, an officer or officers of any Issuer or any Guarantor stating that the information with respect to such factual matters is in the possession of such Issuer or such Guarantor, unless such counsel knows, or in the exercise of reasonable care should know, that the certificate or opinion or representations with respect to such matters are erroneous.
Where any Person is required to make, give or execute two or more applications, requests, consents, certificates, statements, opinions or other instruments under this Indenture, they may, but need not, be consolidated and form one instrument.
SECTION 104. Acts of Holders; Record Dates.
Any request, demand, authorization, direction, notice, consent, waiver or other action provided or permitted by this Indenture to be given, made or taken by Holders may be embodied in and evidenced by one or more instruments of substantially similar tenor signed by such Holders in person or by an agent duly appointed in writing; and, except as herein otherwise expressly provided, such action shall become effective when such instrument or instruments are delivered to the Trustee and, where it is hereby expressly required, to each of the Issuers and to each of the Guarantors. Such instrument or instruments (and the action embodied therein and evidenced thereby) are herein sometimes referred to as the Act of the Holders signing such instrument or instruments. Proof of execution of any such instrument or of a writing appointing any such agent shall be sufficient for any purpose of this Indenture and (subject to Section 601) conclusive in favor of the Trustee and the Issuers and the Guarantors, if made in the manner provided in this Section.
The fact and date of the execution by any Person of any such instrument or writing may be proved by the affidavit of a witness of such execution or by a certificate of a notary public or other officer authorized by law to take acknowledgments of deeds, certifying that the individual signing
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such instrument or writing acknowledged to him the execution thereof. Where such execution is by a signer acting in a capacity other than his individual capacity, such certificate or affidavit shall also constitute sufficient proof of his authority. The fact and date of the execution of any such instrument or writing, or the authority of the Person executing the same, may also be proved in any other manner which the Trustee deems sufficient.
The ownership of Securities shall be proved by the Security Register.
Any request, demand, authorization, direction, notice, consent, waiver or other Act of the Holder of any Security shall bind every future Holder of the same Security and the Holder of every Security issued upon the registration of transfer thereof or in exchange therefor or in lieu thereof in respect of anything done, omitted or suffered to be done by the Trustee or any Issuer or any Guarantor in reliance thereon, whether or not notation of such action is made upon such Security.
The Issuer of a series of Securities and the Guarantors may set any day as a record date for the purpose of determining the Holders of Outstanding Securities of any series entitled to give, make or take any request, demand, authorization, direction, notice, consent, waiver or other action provided or permitted by this Indenture to be given, made or taken by Holders of Securities of such series, provided that the Issuer of such Securities and the Guarantors may not set a record date for, and the provisions of this paragraph shall not apply with respect to, the giving or making of any notice, declaration, request or direction referred to in the next paragraph. If any record date is set pursuant to this paragraph, the Holders of Outstanding Securities of the relevant series on such record date, and no other Holders, shall be entitled to take the relevant action, whether or not such Holders remain Holders after such record date; provided that no such action shall be effective hereunder unless taken on or prior to the applicable Expiration Date by Holders of the requisite principal amount of Outstanding Securities of such series on such record date. Nothing in this paragraph shall be construed to prevent the Issuer of such Securities or the Guarantors from setting a new record date for any action for which a record date has previously been set pursuant to this paragraph (whereupon the record date previously set shall automatically and with no action by any Person be cancelled and of no effect), and nothing in this paragraph shall be construed to render ineffective any action taken by Holders of the requisite principal amount of Outstanding Securities of the relevant series on the date such action is taken. Promptly after any record date is set pursuant to this paragraph, the Issuer of the relevant series of Securities or any Guarantor, at its own expense, shall cause notice of such record date, the proposed action by Holders and the applicable Expiration Date to be given to the Trustee in writing and to each Holder of Securities of the relevant series in the manner set forth in Section 106.
The Trustee may set any day as a record date for the purpose of determining the Holders of Outstanding Securities of any series entitled to join in the giving or making of (i) any Notice of Default, (ii) any declaration of acceleration referred to in Section 502, (iii) any request to institute proceedings referred to in Section 507(2) or (iv) any direction referred to in Section 512, in each case with respect to Securities of such series. If any record date is set pursuant to this paragraph, the Holders of Outstanding Securities of such series on such record date, and no other Holders, shall be entitled to join in such notice, declaration, request or direction, whether or not such Holders remain Holders after such record date; provided that no such action shall be effective hereunder unless taken on or prior to the applicable Expiration Date by Holders of the requisite principal amount of Outstanding Securities of such series on such record date. Nothing in this paragraph shall be construed to prevent the Trustee from setting a new record date for any action for which a record date has previously been set pursuant to this paragraph (whereupon the record date previously set shall automatically and with no action by any Person be cancelled and of no effect), and nothing in this paragraph shall be construed to render ineffective any action taken by
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Holders of the requisite principal amount of Outstanding Securities of the relevant series on the date such action is taken. Promptly after any record date is set pursuant to this paragraph, the Trustee, at the expense of the Issuer of the relevant series of Securities, shall cause notice of such record date, the proposed action by Holders and the applicable Expiration Date to be given to such Issuer in writing and to each Holder of Securities of the relevant series in the manner set forth in Section 106.
With respect to any record date set pursuant to this Section, the party hereto which sets such record dates may designate any day as the Expiration Date and from time to time may change the Expiration Date to any earlier or later day; provided that no such change shall be effective unless notice of the proposed new Expiration Date is given to the other parties hereto in writing, and to each Holder of Securities of the relevant series in the manner set forth in Section 106, on or prior to the existing Expiration Date. If an Expiration Date is not designated with respect to any record date set pursuant to this Section, the party hereto which set such record date shall be deemed to have initially designated the 180th day after such record date as the Expiration Date with respect thereto, subject to its right to change the Expiration Date as provided in this paragraph.
Without limiting the foregoing, a Holder entitled hereunder to take any action hereunder with regard to any particular Security may do so with regard to all or any part of the principal amount of such Security or by one or more duly appointed agents each of which may do so pursuant to such appointment with regard to all or any part of such principal amount.
SECTION 105. Notices, Etc., to Trustee, Issuers and Guarantors.
Any request, demand, authorization, direction, notice, consent, waiver or Act of Holders or other document provided or permitted by this Indenture to be made upon, given or furnished to, or filed with,
(1) the Trustee by any Holder or by any of the Issuers or any of the Guarantors shall be sufficient for every purpose hereunder if made, given, furnished or filed or mailed first-class postage prepaid in writing to or with the Trustee at its Corporate Trust Office, Attention: International Corporate Trust, or
(2) any of the Issuers or any of the Guarantors by the Trustee or by any Holder shall be sufficient for every purpose hereunder (unless otherwise herein expressly provided) if in writing and mailed to such Issuer or such Guarantor, international air mail postage prepaid and addressed to such party at its respective registered office specified in the first paragraph of this instrument to the attention of its Secretary, or at such other registered address previously furnished in writing to the Trustee by such Issuer or such Guarantor.
The Trustee may rely upon and comply with instructions or directions sent via unsecured facsimile or email transmission and the Trustee shall not be liable for any loss, liability or expense of any kind incurred by the Issuers or the Holders due to the Trustees reliance upon and compliance with instructions or directions given by unsecured facsimile or email transmission, provided, however, that such losses have not arisen from the negligence or wilful misconduct of the Trustee, it being understood that the failure of the Trustee to verify or confirm that the person providing the instructions or directions, is, in fact, an authorized person does not constitute negligence or wilful misconduct.
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SECTION 106. Notice to Holders; Waiver.
Where this Indenture provides for notice to Holders of any event, such notice shall be sufficiently given (unless otherwise herein expressly provided) if in writing and mailed, first-class postage prepaid, to each Holder affected by such event, at his address as it appears in the Security Register, not later than the latest date (if any), and not earlier than the earliest date (if any), prescribed for the giving of such notice. In any case where notice to Holders is given by mail, neither the failure to mail such notice, nor any defect in any notice so mailed, to any particular Holder shall affect the sufficiency of such notice with respect to other Holders. Where this Indenture provides for notice in any manner, such notice may be waived in writing by the Person entitled to receive such notice, either before or after the event, and such waiver shall be the equivalent of such notice. Waivers of notice by Holders shall be filed with the Trustee, but such filing shall not be a condition precedent to the validity of any action taken in reliance upon such waiver.
In case by reason of the suspension of regular mail service or by reason of any other cause it shall be impracticable to give such notice by mail, then such notification as shall be made with the approval of the Trustee shall constitute a sufficient notification for every purpose hereunder.
SECTION 107. Language of Notices, Etc.
Any request, demand, authorization, direction, notice, consent or waiver required or permitted under this Indenture shall be in the English language, except that any published notice may be in an official language of the country of publication.
SECTION 108. Conflict with Trust Indenture Act.
If any provision hereof limits, qualifies or conflicts with a provision of the Trust Indenture Act which is required under such Act to be a part of and govern this Indenture, the latter provision shall control. If any provision of this Indenture modifies or excludes any provision of the Trust Indenture Act which may be so modified or excluded, the latter provision shall be deemed to apply to this Indenture as so modified or to be excluded, as the case may be.
SECTION 109. Effect of Headings and Table of Contents.
The Article and Section headings herein and the Table of Contents are for convenience only and shall not affect the construction hereof.
SECTION 110. Successors and Assigns.
All covenants and agreements in this Indenture by an Issuer or a Guarantor shall bind its successors and assigns, whether so expressed or not.
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SECTION 111. Separability Clause.
In case any provision in this Indenture or in the Securities or the Guarantees shall be invalid, illegal or unenforceable, the validity, legality and enforceability of the remaining provisions shall not in any way be affected or impaired thereby.
SECTION 112. Benefits of Indenture.
Nothing in this Indenture or in the Securities or the Guarantees, express or implied, shall give to any Person, other than the parties hereto and their successors hereunder and the Holders, any benefit or any legal or equitable right, remedy or claim under this Indenture.
SECTION 113. Governing Law and Waiver of Trial by Jury.
This Indenture, the Securities and the Guarantees shall be governed by and construed in accordance with the law of the State of New York without regard to principles of conflicts of law.
Each of the parties hereto, and the holders by acceptance of any Securities issued hereunder, irrevocably waives, to the fullest extent permitted by applicable law, any and all right to a trial by jury in any legal proceeding among the parties hereto arising out of or relating to this Indenture, the Securities, the Guarantees or the transaction contemplated hereby or thereby.
SECTION 114. Saturdays, Sundays and Legal Holidays.
In any case where any Interest Payment Date, Redemption Date or Stated Maturity of any Security shall not be a Business Day at any Place of Payment, then (notwithstanding any other provision of this Indenture or of the Securities (other than a provision of any Security which specifically states that such provision shall apply in lieu of this Section)) payment of interest or principal (and premium, if any) need not be made at such Place of Payment on such date, but may be made on the next succeeding Business Day at such Place of Payment with the same force and effect as if made on the Interest Payment Date or Redemption Date, or at the Stated Maturity; provided that no interest shall accrue on such payment for the period from and after such Interest Payment Date, Redemption Date or Stated Maturity, as the case may be.
SECTION 115. Appointment of Agent for Service.
By the execution and delivery of this Indenture, each Issuer and each Guarantor hereby severally appoints Rio Tinto Services Inc. as its agent upon which process may be served in any legal action or proceeding which may be instituted in any Federal or State court in the Borough of Manhattan, New York City, arising out of or relating to the Securities, the Guarantees or this Indenture, but for that purpose only, and waives any objection which it may now or hereafter have to the laying of venue of any such proceeding, and irrevocably submits to the non-exclusive jurisdiction of such courts in any such proceeding. Service of process upon such agent at the office of such agent at 80 State Street, Albany, NY 12207-2543, and written notice of said service to each of the Issuers and each of the Guarantors by the Person serving the same addressed as provided by Section 105, shall be deemed in every respect effective service of process upon the Issuers and the Guarantors, respectively, in any such legal action or proceeding, and the Issuers and the Guarantors, respectively, hereby submit to the nonexclusive jurisdiction of any such court
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in which any such legal action or proceeding is so instituted. Such appointment shall be irrevocable so long as the Holders of Securities shall have any rights pursuant to the terms thereof or of this Indenture until the appointment of a successor by any of the Issuers or any of the Guarantors, as the case may be, with the consent of the Trustee and such successors acceptance of such appointment. Each of the Issuers and each of the Guarantors further agree to take any and all action, including the execution and filing of any and all such documents and instruments, as may be necessary to continue such designation and appointment of such agent or successor until this Indenture has been satisfied, discharged or defeased in accordance with Article Four or Article Thirteen hereof.
ARTICLE TWO
SECURITY FORMS
SECTION 201. Forms Generally.
The Securities of each series shall be in substantially the form set forth in this Article, or in such other form as shall be established by or pursuant to a Board Resolution or in one or more indentures supplemental hereto, in each case with such appropriate insertions, omissions, substitutions and other variations as are required or permitted by this Indenture, and may have such letters, numbers or other marks of identification and such legends or endorsements placed thereon as may be required to comply with the rules of any securities exchange or Depositary therefor or as may, consistently herewith, be determined by the officers executing such Securities, as evidenced by their execution thereof. If the form of Securities of any series is established by action taken pursuant to a Board Resolution, a copy of an appropriate record of such action shall be certified by the Secretary or an Assistant Secretary of the Issuer of such Securities and delivered to the Trustee at or prior to the delivery of the Company Order contemplated by Section 303 for the authentication and delivery of such Securities.
The Guarantees by the Guarantors to be endorsed on the Securities of each series shall be substantially in the form set forth in Section 205, or as shall be established by or pursuant to Board Resolutions of each of the Guarantors, or in one or more indentures supplemental hereto, pursuant to Section 301, in each case with such appropriate insertions, omissions, substitutions and other corrections as are required or permitted by this Indenture and may have such letters, numbers or other marks of identification and such legends or endorsements placed thereon as may be required to comply with the rules of any securities exchange or as may, consistently herewith, be determined by the directors or officers delivering such Guarantees, all as evidenced by such delivery. Any such legends or endorsements not contained in the form of the Security as set forth in Section 202 or 203 or in the form of the Guarantee as set forth in Section 205 shall be delivered in writing or by facsimile to the Trustee.
The definitive Securities shall be printed, lithographed or engraved on steel engraved borders or may be produced in any other manner, all as determined by the officers executing such Securities, as evidenced by their execution of such Securities.
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SECTION 202. Form of Face of Security.
[INSERT ANY REQUIRED ORIGINAL ISSUE DISCOUNT LEGEND]
[RIO TINTO FINANCE (USA) LIMITED/RIO TINTO FINANCE (USA) PLC]
[TITLE OF SECURITY]
PAYMENT OF PRINCIPAL, [PREMIUM, IF ANY]
AND INTEREST GUARANTEED BY RIO TINTO PLC
AND RIO TINTO LIMITED
No. | $ | |||
[CUSIP No. | ] |
[Rio Tinto Finance (USA) Limited (ABN 84 062 129 551), a corporation duly organized and existing under the laws of the State of Victoria, Australia/Rio Tinto Finance (USA) plc, a public limited company duly incorporated and existing under the laws of England] (herein called the Issuer, which term includes any successor Person under the Indenture hereinafter referred to), for value received, hereby promises to pay to , or registered assigns, the principal sum of . Dollars on [ if the Security is to bear interest prior to Maturity, insert , and to pay interest thereon from or from the most recent Interest Payment Date to which interest has been paid or duly provided for, semi-annually in arrears on and in each year, commencing , at the rate of .% per annum, until the principal hereof is paid or made available for payment [ if applicable, insert , provided that any principal and premium, and any such installment of interest, which is overdue shall bear interest at the rate of .% per annum (to the extent that the payment of such interest shall be legally enforceable), from the dates such amounts are due until they are paid or made available for payment, and such interest shall be payable on demand]. The interest so payable, and punctually paid or duly provided for, on any Interest Payment Date will, as provided in such Indenture, be paid to the Person in whose name this Security (or one or more Predecessor Securities) is registered at the close of business on the Regular Record Date for such interest, which shall be the or (whether or not a Business Day), as the case may be, next preceding such Interest Payment Date. Any such interest not so punctually paid or duly provided for will forthwith cease to be payable to the Holder on such Regular Record Date and may either be paid to the Person in whose name this Security (or one or more Predecessor Securities) is registered at the close of business on a Special Record Date for the payment of such Defaulted Interest to be fixed by the Trustee, notice whereof shall be given to Holders of Securities of this series not less than 10 days prior to such Special Record Date, or be paid at any time in any other lawful manner not inconsistent with the requirements of any securities exchange on which the Securities of this series may be listed, and upon such notice as may be required by such exchange, all as more fully provided in said Indenture].
[ If the Security is not to bear interest prior to Maturity, insert The principal of this Security shall not bear interest except in the case of a default in payment of principal upon acceleration, upon redemption or at Stated Maturity and in such case the overdue principal of this Security and any overdue premium shall bear interest at the rate of .% per annum (to the extent that the payment of such interest shall be legally enforceable), from the dates such amounts are due until they are paid or made available for payment. Interest on any overdue principal or premium shall be payable on demand. Any such interest on overdue principal or premium which is not paid on demand shall bear interest at the rate of .% per annum (to the extent that the
15
payment of such interest on interest shall be legally enforceable), from the date of such demand until the amount so demanded is paid or made available for payment. Interest on any overdue interest shall be payable on demand.]
Payment of the principal of (and premium, if any) and [ if applicable, insert any such] interest on this Security will be made at the office or agency of the Issuer maintained for that purpose in , in such coin or currency of the United States of America as at the time of payment is legal tender for payment of public and private debts [ if applicable, insert ; provided, however , that at the option of the Issuer payment of interest may be made by check mailed to the address of the Person entitled thereto as such address shall appear in the Security Register].
[ if applicable, insert All payments of, or in respect of, principal of and any premium and interest on this Security, shall be made without withholding or deduction for, or on account of, any present of future taxes, duties, assessments or governmental charges of whatever nature imposed or levied by or on behalf of [Australia/the United Kingdom] or any political subdivision or taxing authority thereof or therein, unless such taxes, duties, assessments or governmental charges are required by [Australia/the United Kingdom] or any such subdivision or authority to be withheld or deducted. In that event, the Issuer will pay such additional amounts (as described in Section 1004 of the Indenture) as will result (after deduction of such taxes, duties, assessments or governmental charges and any additional taxes, duties, assessments or governmental charges payable in respect of such) in the payment to the Holder of this Security had no such withholding or deduction been required, subject to certain exceptions as set forth in Article Ten of the Indenture.]
Reference is hereby made to the further provisions of this Security set forth on the reverse hereof, which further provisions shall for all purposes have the same effect as if set forth at this place.
Unless the certificate of authentication hereon has been executed by the Trustee referred to on the reverse hereof, directly or through an Authenticating Agent, by manual signature of an authorized signatory, this Security shall not be entitled to any benefit under the Indenture or be valid or obligatory for any purpose.
IN WITNESS WHEREOF, the Issuer has caused this instrument to be duly executed.
Dated:
[Rio Tinto Finance (USA) Limited/Rio Tinto Finance (USA) plc] | ||
By | ||
Name: Title: |
Attest: | ||
By | ||
Name: Title: |
SECTION 203. Form of Reverse of Security.
This Security is one of a duly authorized issue of securities of the Issuer (herein called the Securities), issued and to be issued in one or more series under an Amended and Restated
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Indenture, dated as of July 2, 2001 and amended and restated as of , 2012 (herein called the Indenture, which term shall have the meaning assigned to it in such instrument), among Rio Tinto Finance (USA) Limited, a corporation duly organized and existing under the laws of the State of Victoria, Australia, Rio Tinto Finance (USA) plc, a public limited company duly incorporated and existing under the laws of England, Rio Tinto plc, a public limited company duly incorporated and existing under the laws of England, Rio Tinto Limited, a corporation duly organized and existing under the laws of the State of Victoria, Australia, (each being referred to herein as a Guarantor, which term includes any Successor Persons under the Indenture referred to herein and together the Guarantors) and The Bank of New York Mellon, as Trustee (herein called the Trustee, which term includes any successor trustee under the Indenture), and reference is hereby made to the Indenture and all indentures supplemental thereto for a statement of the respective rights, limitations of rights, duties and immunities thereunder of the Issuer, the Guarantors, the Trustee and the Holders of the Securities and of the terms upon which the Securities are, and are to be, authenticated and delivered. This Security is one of the series designated on the face hereof [ if applicable, insert , limited in aggregate principal amount to $............].
[ If applicable, insert The Securities of this series are subject to redemption upon not less than 30 days notice by mail, [ if applicable, insert (1) on ......... in any year commencing with the year ........... and ending with the year .......... through operation of the sinking fund for this series at a Redemption Price equal to 100% of the principal amount, and (2)] at any time [ if applicable, insert on or after ........... 20..], as a whole or in part, at the election of the Issuer, at the following Redemption Prices (expressed as percentages of the principal amount): If redeemed [ if applicable, insert on or before ..........., %, and if redeemed] during the 12-month period beginning ............ of the years indicated,
Year |
Redemption Price |
Year |
Redemption Price |
and thereafter at a Redemption Price equal to .% of the principal amount, together in the case of any such redemption [ if applicable, insert (whether through operation of the sinking fund or otherwise)] with accrued interest to the Redemption Date, but interest installments whose Stated Maturity is on or prior to such Redemption Date will be payable to the Holders of such Securities, or one or more Predecessor Securities, of record at the close of business on the relevant Record Dates referred to on the face hereof, all as provided in the Indenture.]
[ If applicable, insert The Securities of this series are subject to redemption upon not less than 30 days notice by mail, (1) on .......... in any year commencing with the year ........... and ending with the year ........... through operation of the sinking fund for this series at the Redemption Prices for redemption through operation of the sinking fund (expressed as percentages of the principal amount) set forth in the table below, and (2) at any time [ if applicable, insert on or after ...........], as a whole or in part, at the election of the Issuer, at the Redemption Prices for redemption otherwise than through operation of the sinking fund (expressed as percentages of the principal amount) set forth in the table below: If redeemed during the 12-month period beginning ........... of the years indicated.
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Year |
Redemption Price For Redemption Through Operation of the Sinking Fund |
Redemption Price For Redemption Otherwise Than Through Operation of the Sinking Fund |
and thereafter at a Redemption Price equal to .% of the principal amount, together in the case of any such redemption (whether through operation of the sinking fund or otherwise) with accrued interest to the Redemption Date, but interest installments whose Stated Maturity is on or prior to such Redemption Date will be payable to the Holders of such Securities, or one or more Predecessor Securities, of record at the close of business on the relevant Record Dates referred to on the face hereof, all as provided in the Indenture.]
[ If applicable, insert Notwithstanding the foregoing, the Issuer may not, prior to ..........., redeem any Securities of this series as contemplated by [ if applicable, insert Clause (2) of] the preceding paragraph as a part of, or in anticipation of, any refunding operation by the application, directly or indirectly, of moneys borrowed having an interest cost to the Issuer (calculated in accordance with generally accepted financial practice) of less than .% per annum.]
[ If applicable, insert The sinking fund for this series provides for the redemption on ......... in each year beginning with the year ............ and ending with the year ........... of [ if applicable, insert not less than $............ (mandatory sinking fund) and not more than] $............ aggregate principal amount of Securities of this series. Securities of this series acquired or redeemed by the Issuer otherwise than through [ if applicable, insert mandatory] sinking fund payments may be credited against subsequent [ if applicable, insert mandatory] sinking fund payments otherwise required to be made [ if applicable, insert , in the inverse order in which they become due].]
[The Securities may be redeemed at the option of the Issuer or any of the Guarantors in whole, but not in part, at any time at the Redemption Price equal to the principal amount thereof plus accrued interest to the date fixed for redemption [ if the Security is an Original Issue Discount Security, insert formula for determining amount] , if the Issuer or a Guarantor determines that if, as a result of any change in or amendment to the laws or any regulations or rulings promulgated thereunder of the jurisdiction (or of any political subdivision or taxing authority thereof or therein) in which the Issuer or any of the Guarantors is incorporated or any change in the official application or interpretation of such laws, regulations or rulings, or any change in the official application or interpretation of, or any execution of or amendment to, any treaty or treaties affecting taxation to which such jurisdiction (or such political subdivision or taxing authority) is a party, which change, execution or amendment becomes effective on or after , (i) the Issuer or any of the Guarantors is or would be required to pay additional amounts of interest with respect to the Securities or Guarantees on the next succeeding Interest Payment Date as set forth in the Guarantee endorsed hereon (or in a supplemental indenture) or (ii) any Guarantor or any Subsidiary of any Guarantor is or would be required to deduct or withhold tax on any payment to the Issuer to enable the Issuer to make any payment of principal or interest in respect of the Securities and, in each case, the payment of such additional amounts in the case of (i) above or
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such deduction or withholding in the case of Clause (ii) above cannot be avoided by the use of any reasonable measures available to the Issuer, any relevant Guarantor or Subsidiary.]
[The Securities may also be redeemed in whole, but not in part, upon not less than 30 nor more than 60 days notice given as provided in the Indenture at any time at a Redemption Price equal to the principal amount thereof plus accrued interest to the date fixed for redemption [if the Security is an Original Issue Discount Security, insert formula for determining amount] if the Person formed by a consolidation of any of the Guarantors or into which any of the Guarantors is merged or to which any of the Guarantors conveys, transfers or leases its properties and assets substantially as an entirety is required to pay a Holder additional amounts in respect of any tax, assessment or governmental charge imposed on any such Holder or required to be withheld or deducted from any payment to such Holder as a consequence of such consolidation, merger, conveyance, transfer or lease.]
[The Redemption Price of the Securities shall be equal to the applicable percentage of the principal amount at Stated Maturity set forth below:
If Redemption During the 12-Month Period Commencing |
Redemption
Price |
|
, 20 |
||
, 20 |
together with, in each case (except if the Redemption Date shall be a ), an amount equal to the applicable Redemption Price multiplied by a fraction the numerator of which is the number of days from but not including the preceding to and including the Redemption Date multiplied by the difference between the Redemption Price applicable during the 12 months beginning on the following the Redemption Date (or, in the case of a Redemption Date after , 100%) and the Redemption Price applicable on the Redemption Date and the denominator of which is the total number of days from but not including the preceding the Redemption Date to and including the next succeeding . [The Issuer will also pay to each eligible Holder, or make available for payment to each such Holder, on the Redemption Date any additional amounts (as set forth [on the face hereof or] in the Guarantee endorsed hereon) resulting from the payment of such Redemption Price.]]
Notice of redemption will be given by mail to Holders of Securities, not less than 30 nor more than 60 days period to the dated fixed for redemption, all as provided in the Indenture.
[ If the Security is subject to redemption of any kind, insert In the event of redemption of this Security in part only, a new Security or Securities of this series and of like tenor for the unredeemed portion hereof will be issued in the name of the Holder hereof upon the cancellation hereof.]
[ If applicable, insert The Indenture contains provisions for defeasance at any time of [the entire indebtedness of this Security ] [or] [certain restrictive covenants and Events of Default with respect to this Security ] [, in each case] upon compliance with certain conditions set forth in the Indenture.]
[ If the Security is not an Original Issue Discount Security, insert If an Event of Default with respect to Securities of this series shall occur and be continuing, the principal of the Securities of this series may be declared due and payable in the manner and with the effect provided in the Indenture.]
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[ If the Security is an Original Issue Discount Security, insert If an Event of Default with respect to Securities of this series shall occur and be continuing, an amount of principal of the Securities of this series may be declared due and payable in the manner and with the effect provided in the Indenture. Such amount shall be equal to insert formula for determining the amount . Upon payment (i) of the amount of principal so declared due and payable and (ii) of interest on any overdue principal, premium and interest (in each case to the extent that the payment of such interest shall be legally enforceable), all of the Issuers obligations in respect of the payment of the principal of and premium and interest, if any, on the Securities of this series shall terminate.]
The Indenture permits, with certain exceptions as therein provided, the amendment thereof and the modification of the rights and obligations of the Issuer and the Guarantors and the rights of the Holders of the Securities of each series to be affected under the Indenture at any time by the Issuer, the Guarantors and the Trustee with the consent of the Holders of a majority in principal amount of the Securities at the time Outstanding of each series to be affected. The Indenture also contains provisions permitting the Holders of specified percentages in principal amount of the Securities of each series at the time Outstanding, on behalf of the Holders of all Securities of such series, to waive compliance by the Issuer or the Guarantors with certain provisions of the Indenture and certain past defaults under the Indenture and their consequences. Any such consent or waiver by the Holder of this Security shall be conclusive and binding upon such Holder and upon all future Holders of this Security and of any Security issued upon the registration of transfer hereof or in exchange herefor or in lieu hereof, whether or not notation of such consent or waiver is made upon this Security.
As provided in and subject to the provisions of the Indenture, no Holder of any Security of this series will have the right to institute any proceeding with respect to the Indenture, the Guarantee endorsed hereon, this Security or for the appointment of a receiver or trustee or for any other remedy thereunder, unless such Holder shall have previously given the Trustee written notice of a continuing Event of Default with respect to the Securities of this series, the Holders of not less than 25% in principal amount of the Securities of this series at the time Outstanding shall have made written request to the Trustee to institute proceedings in respect of such Event of Default as Trustee and offered the Trustee reasonable indemnity, and the Trustee shall not have received from the Holders of a majority in principal amount of Securities of this series at the time Outstanding a direction inconsistent with such request, and shall have failed to institute any such proceeding, for 60 days after receipt of such notice, request and offer of indemnity. The foregoing shall not apply to any suit instituted by the Holder of this Security for the enforcement of any payment of principal hereof or any premium or interest hereon on or after the respective due dates expressed herein.
No reference herein to the Indenture and no provision of this Security or of the Indenture shall alter or impair the obligation of the Issuer, which is absolute and unconditional, to pay the principal of and any premium and interest on this Security at the times, place and rate, and in the coin or currency, herein prescribed.
As provided in the Indenture and subject to certain limitations therein set forth, the transfer of this Security is registrable in the Security Register, upon surrender of this Security for registration of transfer at the office or agency of the Issuer in any place where the principal of and any premium and interest on this Security are payable, duly endorsed by, or accompanied by a written instrument of transfer in form satisfactory to the Issuer and the Security Registrar duly executed by, the Holder hereof or his attorney duly authorized in writing, and thereupon one or more new Securities of this series and of like tenor, of authorized denominations and for the same aggregate principal amount, will be issued to the designated transferee or transferees.
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The Securities of this series are issuable only in registered form without coupons in denominations of $.......... and any integral multiple thereof. As provided in the Indenture and subject to certain limitations therein set forth, Securities of this series are exchangeable for a like aggregate principal amount of Securities of this series and of like tenor of a different authorized denomination, as requested by the Holder surrendering the same.
No service charge shall be made for any such registration of transfer or exchange, but the Issuer may require payment of a sum sufficient to cover any tax or other governmental charge payable in connection therewith.
Prior to due presentment of this Security for registration of transfer or exchange, the Issuer, the Guarantors, the Trustee and any agent of the Issuer, the Guarantors or the Trustee may treat the Person in whose name this Security is registered as the owner hereof for all purposes, whether or not this Security be overdue, and neither the Issuer, the Guarantors, the Trustee nor any such agent shall be affected by notice to the contrary.
The Indenture and this Security shall be governed by and construed in accordance with the laws of the State of New York, without regard to principles of conflicts of laws.
Interest on this Security shall be computed on the basis of a 360-day year of twelve 30-day months.
All terms used in this Security which are defined in the Indenture shall have the meanings assigned to them in the Indenture.
[Insert Form of Guarantee]
SECTION 204. Form of Legend for Global Securities.
Unless otherwise specified as contemplated by Section 301 for the Securities evidenced thereby, every Global Security authenticated and delivered hereunder shall bear a legend in substantially the following form:
THIS SECURITY IS A GLOBAL SECURITY WITHIN THE MEANING OF THE INDENTURE HEREINAFTER REFERRED TO AND IS REGISTERED IN THE NAME OF CEDE & CO. AS THE NOMINEE OF THE DEPOSITORY TRUST COMPANY, A NEW YORK CORPORATION (DTC). UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF DTC TO [RlO TlNTO FINANCE (USA) LIMITED/RIO TINTO FINANCE (USA) PLC] OR ITS AGENT FOR REGISTRATION OF TRANSFER, EXCHANGE, OR PAYMENT, AND ANY CERTIFICATE ISSUED IS REGISTERED IN THE NAME OF CEDE & CO. OR IN SUCH OTHER NAME AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC (AND ANY PAYMENT IS MADE TO CEDE & CO. OR TO SUCH OTHER ENTITY AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC), ANY TRANSFER, PLEDGE, OR OTHER USE HEREOF FOR VALUE OR OTHERWISE BY OR TO ANY PERSON IS WRONGFUL INASMUCH AS THE REGISTERED OWNER HEREOF, CEDE & CO., HAS AN INTEREST HEREIN.
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SECTION 205. Guarantee by Guarantors; Form of Guarantee.
Each Guarantor by its execution of this Indenture hereby agrees with each Holder of a Security of each series authenticated and delivered by the Trustee, and with the Trustee on behalf of each such Holder and each such Holder, to be unconditionally bound by the terms and provisions of the Guarantee set forth below and authorizes the Issuer of the relevant series of Securities, in the name and on behalf of such Guarantor, to confirm such Guarantee to the Holder of each such Security by its execution and delivery of each such Security, with such Guarantee endorsed thereon, authenticated and delivered by the Trustee. When delivered pursuant to the provisions of Section 303 hereof, Guarantees so set forth on the Securities shall bind the Guarantors notwithstanding the fact that the Guarantee does not bear the signature of the Guarantors.
Guarantees to be endorsed on the Securities shall, subject to Section 201, be in substantially the form set forth below:
GUARANTEE
Rio Tinto plc, a public limited company incorporated under the laws of England, having its registered office at 2 Eastbourne Terrace, London W2 6LG, United Kingdom, and Rio Tinto Limited (ABN 96 004 458 404), a corporation incorporated under the laws of the State of Victoria, Australia, having its principal office at Level 33, 120 Collins Street, Melbourne, Victoria 3000, Australia (each being referred to herein as a Guarantor, which term includes any successor Person under the Indenture referred to in the Security upon which this Guarantee is endorsed, and together, the Guarantors), for value received hereby unconditionally guarantee to the Holder of the Security upon which this Guarantee is endorsed and to the Trustee on behalf of each such Holder the due and punctual payment of the principal of, premium, if any, and interest on such Security (including any additional amounts payable pursuant to Section 1004 of the Indenture in respect thereof) and the due and punctual payment of the sinking fund or analogous payments referred to therein, if any, when and as the same shall become due and payable (subject to any period of grace provided with respect thereto), whether at the Stated Maturity, by declaration of acceleration, call for redemption or otherwise, according to the terms thereof and of the Indenture referred to therein and any other payment of interest under the Indenture. In the case of the failure of [Rio Tinto Finance (USA) Limited, a corporation organized under the laws of the State of Victoria, Australia/Rio Tinto Finance (USA) plc, a public limited company incorporated under the laws of England] (herein called the Issuer, which term includes any successor Person under such Indenture), punctually to make any such payment of principal, premium, if any, or interest or any sinking fund or analogous payment, the Guarantors hereby, jointly and severally, agree to cause any such payment to be made punctually when and as the same shall become due and payable, whether at the Stated Maturity or by declaration of acceleration, call for redemption or otherwise, and as if such payment were made by the Issuer. The obligations of the Guarantors under this Guarantee shall be joint and several.
[ If applicable, insert Each of the Guarantors hereby further agrees, subject to the limitations and exceptions set forth below, that if any deduction or withholding for any present or future taxes, assessments or other governmental charges of the jurisdiction (or any political subdivision or taxing authority thereof or therein) in which such Guarantor is incorporated shall at any time be required by such jurisdiction (or any such political subdivision or taxing authority) in respect of any amount to be paid by such Guarantor under this Guarantee, then such Guarantor will pay to the Holder of a Security such additional amounts as may be necessary in order that the net amounts paid to the Holder of such Security who, with respect to any such tax, assessment, or other governmental charge, is not resident in such jurisdiction, after such deduction or withholding,
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shall be not less than the amounts specified in such Security to which such Holder is entitled; provided however , that such Guarantor shall not be required to make any payment of additional amounts (i) if the Holder is a United States Person, for or on account of any such tax, assessment or other governmental charge imposed by the United States or any political subdivisions or taxing authority thereof or therein, (ii) for or on account of:
(a) any tax, assessment or other governmental charge which would not have been imposed but for (i) the existence of any present or former connection between such Holder (or between a fiduciary, settlor, beneficiary, member or shareholder of, or possessor of a power over, such Holder, if such Holder is an estate, trust, partnership or corporation) and the taxing jurisdiction or any political subdivision or territory or possession thereof or area subject to its jurisdiction, including, without limitation, such Holder (or such fiduciary, settlor, beneficiary, member, shareholder or possessor) being or having been a citizen or resident thereof or being or having been present or engaged in trade or business therein or having or having had a permanent establishment therein or (ii) the presentation of a Security (where presentation is required) for payment on a date more than 30 days after the date on which such payment became due and payable or the date on which payment thereof is duly provided for, whichever occurs later;
(b) any estate, inheritance, gift, sale, transfer, personal property or similar tax, assessment or other governmental charge;
(c) any tax, assessment, or other governmental charge which is payable otherwise than by withholding from payments of (or in respect of) principal of, premium, if any, or interest on, the Securities;
(d) any tax, assessment or other governmental charge that is imposed or withheld by reason of the failure to comply by the Holder or the beneficial owner of a Security with a request of the Issuer or the applicable Guarantor addressed to the Holder (i) to provide information concerning the nationality, residence or identity of the Holder or such beneficial owner or (ii) to make any declaration or other similar claim or satisfy any information or reporting requirement, which, in the case of Clause (i) or (ii), is required or imposed by a statute, treaty, regulation or administrative practice of the taxing jurisdiction as a precondition to exemption from all or part of such tax, assessment or other governmental charge;
(e) in the case of a payment made by Rio Tinto plc under the Guarantees, any tax, assessment or other governmental charge imposed as a result of the Security being presented for payment in the United Kingdom unless presentment could not have been made elsewhere;
(f) any withholding or deduction imposed on a payment to an individual which is required to be made pursuant to any law implementing European Council Directive 2003/48/EC on the taxation of savings income or any other Directive implementing the conclusions of ECOFIN Council meeting of November 26-27, 2000 or any law implementing or complying with, or introduced in order to conform to, such Directive;
(g) any withholding or deduction required to be made with respect to a Security presented for payment by or on behalf of a Holder of such Security who would have been able to avoid such withholding or deduction by presenting the relevant Security to another Paying Agent in a member state of the European Union; or
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[(h) any withholding or deduction required to be paid on the interest (as defined in Section 128A(IAB) of the Income Tax Assessment Act of 1936 of Australia (the Australian Tax Act) and which, among other things, includes amounts in the nature of, or in substitution for, interest) payable on the debt security because the Holder of a Security is an associate of Rio Tinto Finance (USA) Limited (as that term is defined in section 128F(9) of the Australian Tax Act);]
(i) any withholding or deduction for which a determination is made by the Australian Commissioner of Taxation that the withholding or deduction is payable because the Holder has participated in a scheme to avoid withholding tax provided that neither the Issuer nor any Guarantor participated in or was a party to such scheme; or
(j) any combination of items (a), (b), (c), (d), (e), (f), (g), (h) or (i);
nor shall additional amounts be paid with respect to any payment of the principal of, premium, if any or any interest on any Security to any Holder who is a fiduciary or partnership or other than the sole beneficial owner of such payment to the extent such payment would be required by the laws of the jurisdiction (or any political subdivision or taxing authority thereof or therein) to be included in the income for tax purposes of a beneficiary or settlor with respect to such fiduciary or a member of such partnership or a beneficial owner who would not have been entitled to such additional amounts had it been the Holder of the Security.]
Each of the Guarantors hereby agrees that its obligations hereunder shall be as if it were principal debtor and not merely surety, and shall be absolute and unconditional, irrespective of, and shall be unaffected by, any invalidity, irregularity or unenforceability of such Security or such Indenture, any failure to enforce the provisions of such Security or such Indenture, or any waiver, modification or indulgence granted to the Issuer with respect thereto, by the Holder of such Security or the Trustee or any other circumstance which may otherwise constitute a legal or equitable discharge of a surety or guarantor; provided however , that, notwithstanding the foregoing, no such waiver, modification or indulgence shall, without the consent of each of the Guarantors, increase the principal amount of such Security, or increase the interest rate thereon, or increase any premium payable upon redemption thereof, or alter the Stated Maturity thereof, or increase the principal amount of any Original Issue Discount Security that would be due and payable upon a declaration of acceleration of the maturity thereof pursuant to Section 502 of such Indenture. Each of the Guarantors hereby waives diligence, presentment, demand of payment, filing of claims with a court in the event of a merger or bankruptcy of the Issuer, any right to require a proceeding first against the Issuer, protest or notice with respect to such Security or the indebtedness evidenced thereby or with respect to any sinking fund or analogous payment require under such Security and all demands whatsoever, and covenants that this Guarantee will not be discharged except by payment in full of the principal of, premium, if any, and interest on such Security.
Each of the Guarantors shall be subrogated to all rights of the Holder of such Security and the Trustee against the Issuer in respect of any amounts paid to such Holder by such Guarantor pursuant to the provisions of this Guarantee, provided , however , that such Guarantor shall not be entitled to enforce, or to receive any payments arising out of or based upon, such right of subrogation until the principal of, premium, if any, and interest on all Securities of the same series issued under such Indenture shall have been paid in full.
No reference herein to such Indenture and no provision of this Guarantee or of such Indenture shall alter or impair the guarantee of the Guarantors, which is absolute and unconditional, of the due and punctual payment of the principal of, premium, if any, and interest on, and any sinking fund or analogous payments with respect to, the Security upon which this Guarantee is endorsed.
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This Guarantee shall not be valid or obligatory for any purpose until the certificate of authentication of such Security shall have been manually executed by or on behalf of the Trustee under such Indenture.
All terms used in this Guarantee which are defined in such Indenture shall have the meanings assigned to them in such Indenture.
The Guarantee shall be deemed to be a contract made under the laws of the State of New York, and for all purposes shall be governed by and construed in accordance with the law of the State of New York.
Executed and dated the date on the face hereof.
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Rio Tinto plc | ||||||
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R IO T INTO L IMITED | ||||||
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SECTION 206. Form of Trustees Certificate of Authentication.
The Trustees certificates of authentication shall be in substantially the following form:
This is one of the Securities of the series designated therein referred to in the within-mentioned Indenture.
The Bank of New York Mellon, | ||
As Trustee | ||
By |
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Authorized Officer |
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ARTICLE THREE
THE SECURITIES
SECTION 301. Amount Unlimited; Issuable in Series.
The aggregate principal amount of Securities which may be authenticated and delivered under this Indenture is unlimited.
The Securities may be issued in one or more series. There shall be established in or pursuant to a Board Resolution of the Issuer of the relevant series of Securities and the Guarantors, as appropriate, and, subject to Section 303, set forth, or determined in the manner provided, in an Officers Certificate of such Issuer, or established in one or more indentures supplemental hereto, prior to the issuance of Securities of any series,
(1) the title of the Securities of the series (which shall distinguish the Securities of the series from Securities of any other series);
(2) any limit upon the aggregate principal amount of the Securities of the series which may be authenticated and delivered under this Indenture (except for Securities authenticated and delivered upon registration of transfer of, or in exchange for, or in lieu of, other Securities of the series pursuant to Section 304, 305, 306, 906 or 1107 and except for any Securities which, pursuant to Section 303, are deemed never to have been authenticated and delivered hereunder);
(3) the Person to whom any interest on a Security of the series shall be payable, if other than the Person in whose name that Security (or one or more Predecessor Securities) is registered at the close of business on the Regular Record Date for such interest;
(4) the date or dates on which the principal of any Securities of the series is payable;
(5) the rate or rates at which any Securities of the series shall bear interest, if any, the date or dates from which any such interest shall accrue, the Interest Payment Dates on which any such interest shall be payable and the Regular Record Date for any such interest payable on any Interest Payment Date;
(6) the place or places where, subject to the provisions of Section 1002, the principal of and any premium and interest on any Securities of the series shall be payable, Securities of the series may be surrendered for exchange and notices and demands to or upon the Issuer or any Guarantor in respect of any Securities of the series and this Indenture may be served;
(7) the period or periods within which, the price or prices at which and the terms and conditions upon which any Securities of the series may be redeemed, in whole or in part, at the option of the Issuer of such Securities or the Guarantors (including the period referred to in Section 1108) and, if other than by a Board Resolution, the manner in which any election by such Issuer to redeem the Securities shall be evidenced;
(8) other than with respect to any redemption of Securities pursuant to Section 1108, the obligation, if any, of the Issuer of such Securities to redeem or purchase any Securities of the series pursuant to any sinking fund or analogous provisions or at the option of the Holder thereof and the period or periods within which, the price or prices at which and the terms and conditions upon which any Securities of the series shall be redeemed or purchased, in whole or in part, pursuant to such obligation;
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(9) if other than denominations of $1,000 and any integral multiple thereof, the denominations in which any Securities of the series shall be issuable;
(10) if the amount of principal of or any premium or interest on any Securities of the series may be determined with reference to an index or pursuant to a formula, the manner in which such amounts shall be determined;
(11) if other than the currency of the United States of America, the currency, currencies or currency units in which the principal of or any premium or interest on any Securities of the series shall be payable and the manner of determining the equivalent thereof in the currency of the United States of America for any purpose, including for purposes of the definition of Outstanding in Section 101;
(12) if the principal of or any premium or interest on any Securities of the series is to be payable, at the election of the Issuer of the relevant series of Securities or the Guarantors or the Holder thereof, in one or more currencies or currency units other than that or those in which such Securities are stated to be payable, the currency, currencies or currency units in which the principal of or any premium or interest on such Securities as to which such election is made shall be payable, the periods within which and the terms and conditions upon which such election is to be made and the amount so payable (or the manner in which such amount shall be determined);
(13) if other than the entire principal amount thereof, the portion of the principal amount of any Securities of the series which shall be payable upon declaration of acceleration of the Maturity thereof pursuant to Section 502;
(14) if the principal amount payable at the Stated Maturity of any Securities of the series will not be determinable as of any one or more dates prior to the Stated Maturity, the amount which shall be deemed to be the principal amount of such Securities as of any such date for any purpose thereunder or hereunder, including the principal amount thereof which shall be due and payable upon any Maturity other than the Stated Maturity or which shall be deemed to be Outstanding as of any date prior to the Stated Maturity (or, in any such case, the manner in which such amount deemed to be the principal amount shall be determined);
(15) the forms of the Securities of the series and the Guarantees to be endorsed thereon;
(16) if applicable, that the Securities of the series, in whole or any specified part, shall be defeasible pursuant to Section 1302 or Section 1303 or both such Sections and, if other than by a Board Resolution, the manner in which any election by the Issuer of such Securities to defease such Securities shall be evidenced;
(17) if applicable, that any Securities of the series shall be issuable in whole or in part in the form of one or more Global Securities and, in such case, the respective Depositaries for such Global Securities, the form of any legend or legends which shall be borne by any such Global Security in addition to or in lieu of that set forth in Section 204 and any circumstances in addition to or in lieu of those set forth in Clause (2) of the last paragraph of Section 305 in which any such Global Security may be exchanged in whole or in part for Securities registered, and any transfer of such Global Security in whole or in part may be registered, in the name or names of Persons other than the Depositary for such Global Security or a nominee thereof;
(18) any addition to or change in the Events of Default which applies to any Securities of the series and any change in the right of the Trustee or the requisite Holders of such Securities to declare the principal amount thereof due and payable pursuant to Section 502;
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(19) any addition to or change in the covenants set forth in Article Ten which applies to Securities of the series;
(20) if additional amounts, pursuant to Section 1004, will be payable by any Guarantor; and
(21) any other terms of the series (which terms shall not be inconsistent with the provisions of this Indenture, except as permitted by Section 901(5)).
All Securities of any one series shall be substantially identical except as to denomination and except as may otherwise be provided in or pursuant to the Board Resolution referred to above and (subject to Section 303) set forth, or determined in the manner provided, in the Officers Certificate referred to above or in any such indenture supplemental hereto.
If any of the terms of the Securities of any series are established by action taken pursuant to a Board Resolution of the Issuer of the relevant series of Securities or any Guarantor, a copy of an appropriate record of such action shall be certified by the Secretary or an Assistant Secretary of such Issuer or by any Director or the Secretary or an Assistant Secretary of any Guarantor, as the case may be and delivered to the Trustee at or prior to the delivery of the Officers Certificate setting forth the terms of the series.
SECTION 302. Denominations.
The Securities of each series shall be issuable only in registered form without coupons and only in such denominations as shall be specified as contemplated by Section 301. In the absence of any such specified denomination with respect to the Securities of any series, the Securities of such series shall be issuable in denominations of $1,000 and any integral multiple thereof.
SECTION 303. Execution, Authentication, Delivery and Dating.
The Securities shall be executed on behalf of the Issuer of the relevant series of Securities by its Chairman of the Board, its Vice Chairman of the Board, its President or one of its Vice Presidents, or any other duly authorized officer of such Issuer or any other person specifically authorized by the Board of Directors. The signature of any of these officers or authorized persons on the Securities may be manual or facsimile.
Securities or Guarantees bearing the manual or facsimile signatures of individuals who were at any time the proper officers of the Issuer of such Securities or the relevant Guarantor, as the case may be, shall bind such Issuer, or the relevant Guarantor, as the case may be, notwithstanding that such individuals or any of them have ceased to hold such offices prior to the authentication and delivery of such Securities or the delivery of such Guarantees or did not hold such offices at the date of such Securities or Guarantees.
At any time and from time to time after the execution and delivery of this Indenture, an Issuer may deliver Securities of any series executed by such Issuer and having endorsed thereon Guarantees to the Trustee for authentication, together with a Company Order for the authentication and delivery of such Securities and a Company Order from any Guarantor approving the delivery of the Guarantees endorsed thereon, and the Trustee in accordance with the Company Order shall authenticate and make available for delivery such Securities having such Guarantees endorsed thereon. If the form or terms of the Securities of the series and the Guarantees have been established by or pursuant to one or more Board Resolutions as permitted
29
by Sections 201 and 301, in authenticating such Securities and Guarantees, and accepting the additional responsibilities under this Indenture in relation to such Securities and Guarantees, the Trustee shall be entitled to receive, and (subject to Section 601) shall be fully protected in relying upon, an Opinion of Counsel stating,
(1) if the forms of such Securities and Guarantees have been established by or pursuant to Board Resolution as permitted by Section 201, that such forms have been established in conformity with the provisions of this Indenture;
(2) if the terms of such Securities and Guarantees have been established by or pursuant to Board Resolution as permitted by Section 301, that such terms have been established in conformity with the provisions of this Indenture; and
(3) that such Securities and Guarantees, when authenticated and made available for delivery by the Trustee and issued by the Issuer of such Securities and the Guarantors in the manner and subject to any conditions specified in such Opinion of Counsel, will constitute valid and legally binding obligations of such Issuer and the Guarantors enforceable in accordance with their terms, subject to bankruptcy, insolvency, fraudulent transfer, reorganization, moratorium and similar laws of general applicability relating to or affecting creditors rights and to general equity principles.
If such form or terms have been so established, the Trustee shall not be required to authenticate such Securities if the issue of such Securities pursuant to this Indenture will affect the Trustees own rights, duties or immunities under the Securities and this Indenture or otherwise in a manner which is not reasonably acceptable to the Trustee.
Notwithstanding the provisions of Section 301 and of the preceding paragraph, if all Securities of a series are not to be originally issued at one time, it shall not be necessary to deliver the Officers Certificate otherwise required pursuant to Section 301 or the Company Order and Opinion of Counsel otherwise required pursuant to such preceding paragraph at or prior to the authentication of each Security of such series if such documents are delivered at or prior to the authentication upon original issuance of the first Security of such series to be issued.
Each Security shall be dated the date of its authentication.
No Security or Guarantee shall be entitled to any benefit under this Indenture or be valid or obligatory for any purpose unless there appears on such Security a certificate of authentication substantially in the form provided for herein executed by the Trustee by manual or facsimile signature, and such certificate upon any Security shall be conclusive evidence, and the only evidence, that such Security or Guarantee has been duly authenticated and delivered hereunder. Notwithstanding the foregoing, if any Security shall have been authenticated and delivered hereunder but never issued and sold by the Issuer of such Securities, and such Issuer shall deliver such Security to the Trustee for cancellation as provided in Section 309, for all purposes of this Indenture such Security shall be deemed never to have been authenticated and delivered hereunder and shall never be entitled to the benefits of this Indenture.
The delivery of any Security by the Trustee, after the authentication thereof hereunder, shall constitute due delivery of the Guarantees endorsed thereon on behalf of the Guarantors.
SECTION 304. Temporary Securities.
Pending the preparation of definitive Securities of any series, the Issuer of such Securities may execute, and upon Company Order the Trustee shall authenticate and make available for
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delivery, temporary Securities which are printed, lithographed, typewritten, mimeographed or otherwise produced, in any authorized denomination, substantially of the tenor of the definitive Securities and having endorsed thereon Guarantees of the Guarantors, substantially in the tenor of the definitive Guarantees in lieu of which they are issued and with such appropriate insertions, omissions, substitutions and other variations as the officers executing such Securities may determine, as evidenced by their execution of such Securities.
If temporary Securities of any series are issued, the Issuer of such Securities will cause definitive Securities of that series to be prepared without unreasonable delay. After the preparation of definitive Securities of such series, the temporary Securities of such series shall be exchangeable for definitive Securities of such series upon surrender of the temporary Securities of such series at the office or agency of such Issuer in a Place of Payment for that series, without charge to the Holder. Upon surrender for cancellation of any one or more temporary Securities of any series, the Issuer of such Securities shall execute and the Trustee shall authenticate and make available for delivery in exchange therefor one or more definitive Securities of the same series, of any authorized denominations and of like tenor and aggregate principal amount which have endorsed thereon the Guarantees of the Guarantors. Until so exchanged, the temporary Securities of any series shall in all respects be entitled to the same benefits under this Indenture as definitive Securities of such series and tenor.
SECTION 305. Registration, Registration of Transfer and Exchange.
Each Issuer shall cause to be kept at the Corporate Trust Office of the Trustee a register (the register maintained in such office and in any other office or agency of such Issuer in a Place of Payment being herein sometimes collectively referred to as the Security Register) in which, subject to such reasonable regulations as it may prescribe, it shall provide for the registration of Securities and of transfers of Securities. The Trustee is hereby appointed Security Registrar for the purpose of registering Securities and transfers of Securities as herein provided.
Upon surrender for registration of transfer of any Security of a series at the office or agency of the Issuer of such Securities in a Place of Payment for that series, such Issuer shall execute, and the Trustee shall authenticate and make available for delivery, in the name of the designated transferee or transferees, one or more new Securities of the same series, of any authorized denominations and of like tenor and aggregate principal amount, each such Security having endorsed thereon Guarantees of the Guarantors.
At the option of the Holder, Securities of any series may be exchanged for other Securities of the same series, of any authorized denominations and of like tenor and aggregate principal amount, each such Security having endorsed thereon Guarantees of the Guarantors, upon surrender of the Securities to be exchanged at such office or agency. Whenever any Securities are so surrendered for exchange, the Issuer of such Securities shall execute, and the Trustee shall authenticate and make available for delivery, the Securities which the Holder making the exchange is entitled to receive.
All Securities issued upon any registration of transfer or exchange of Securities shall be the valid obligations of the Issuer of such Securities and the Guarantors, evidencing the same debt, and entitled to the same benefits under this Indenture, as the Securities and Guarantees surrendered upon such registration of transfer or exchange.
Every Security presented or surrendered for registration of transfer or for exchange shall (if so required by the Issuer of such Security or the Trustee) be duly endorsed, or be accompanied by
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a written instrument of transfer in form satisfactory to such Issuer and the Security Registrar duly executed, by the Holder thereof or his attorney duly authorized in writing or by facsimile.
No service charge shall be made for any registration of transfer or exchange of Securities, but the Issuer of such Securities may require payment of a sum sufficient to cover any tax or other governmental charge that may be imposed in connection with any registration of transfer or exchange of Securities, other than exchanges pursuant to Section 304, 906 or 1107 not involving any transfer.
If the Securities of any series (or of any series and specified tenor) are to be redeemed in part, the Issuer of such Securities shall not be required (A) to issue, register the transfer of or exchange any Securities of that series (or of that series and specified tenor, as the case may be) during a period beginning at the opening of business 15 days before the day of the mailing of a notice of redemption of any such Securities selected for redemption under Section 1103 and ending at the close of business on the day of such mailing, or (B) to register the transfer of or exchange any Security so selected for redemption in whole or in part, except the unredeemed portion of any Security being redeemed in part.
The provisions of Clauses (1), (2), (3) and (4) below shall apply only to Global Securities:
(1) Each Global Security authenticated under this Indenture shall be registered in the name of the Depositary designated for such Global Security or a nominee thereof and delivered to such Depositary or a nominee thereof or custodian therefor, and each such Global Security shall constitute a single Security for all purposes of this Indenture.
(2) Notwithstanding any other provision in this Indenture, no Global Security may be exchanged in whole or in part for Securities registered, and no transfer of a Global Security in whole or in part may be registered, in the name of any Person other than the Depositary for such Global Security or a nominee thereof unless (A) such Depositary (i) has notified the Issuer of such Global Security and the Guarantors that it is unwilling or unable to continue as Depositary for such Global Security or (ii) has ceased to be a clearing agency registered under the Exchange Act, (B) there shall have occurred and be continuing an Event of Default with respect to such Global Security or (C) there shall exist such circumstances, if any, in addition to or in lieu of the foregoing as have been specified for this purpose as contemplated by Section 301.
(3) Subject to Clause (2) above, any exchange of a Global Security for other Securities may be made in whole or in part, and all Securities issued in exchange for a Global Security or any portion thereof shall be registered in such names as the Depositary for such Global Security shall direct.
(4) Every Security authenticated and made available for delivery upon registration of transfer of, or in exchange for or in lieu of, a Global Security or any portion thereof, whether pursuant to this Section, Section 304, 306, 906 or 1107 or otherwise, shall be authenticated and delivered in the form of, and shall be, a Global Security, unless such Security is registered in the name of a Person other than the Depositary for such Global Security or a nominee thereof.
SECTION 306. Mutilated, Destroyed, Lost and Stolen Securities.
If any mutilated Security is surrendered to the Trustee, the Issuer of such Security shall execute and the Trustee shall authenticate and make available for delivery in exchange therefor a new Security of the same series and of like tenor and principal amount having endorsed thereon Guarantees and bearing a number not contemporaneously outstanding.
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If there shall be delivered to the Issuer of the relevant series of Securities and the Trustee (i) evidence to their satisfaction of the destruction, loss or theft of any Security and (ii) such security or indemnity as may be required by them to save each of them and any agent of either of them harmless, then, in the absence of notice to such Issuer, any Guarantor or the Trustee that such Security has been acquired by a protected purchaser, such Issuer shall execute and the Trustee shall authenticate and make available for delivery, in lieu of any such destroyed, lost or stolen Security, a new Security of the same series and of like tenor and principal amount having endorsed thereon a Guarantee and bearing a number not contemporaneously outstanding.
In case any such mutilated, destroyed, lost or stolen Security has become or is about to become due and payable, the Issuer of such Security in its discretion may, instead of issuing a new Security, pay such Security.
Upon the issuance of any new Security under this Section, the Issuer of such Security may require the payment of a sum sufficient to cover any tax or other governmental charge that may be imposed in relation thereto and any other expenses (including the fees and expenses of the Trustee) connected therewith.
Every new Security of any series issued pursuant to this Section in lieu of any destroyed, lost or stolen Security shall constitute an original additional contractual obligation of the Issuer of such Security and the Guarantors, whether or not the destroyed, lost or stolen Security shall be at any time enforceable by anyone, and shall be entitled to all the benefits of this Indenture equally and proportionately with any and all other Securities of that series duly issued hereunder.
The provisions of this Section are exclusive and shall preclude (to the extent lawful) all other rights and remedies with respect to the replacement or payment of mutilated, destroyed, lost or stolen Securities.
SECTION 307. Payment of Interest; Interest Rights Preserved.
Except as otherwise provided as contemplated by Section 301 with respect to any series of Securities, interest on any Security which is payable, and is punctually paid or duly provided for, on any Interest Payment Date shall be paid to the Person in whose name that Security (or one or more Predecessor Securities) is registered at the close of business on the Regular Record Date for such interest and, at the option of the Issuer of such Securities, may be paid by check mailed to the address of the Person as it appears in the Security Register.
Any interest on any Security of any series which is payable, but is not punctually paid or duly provided for, on any Interest Payment Date (herein called Defaulted Interest) shall forthwith cease to be payable to the Holder on the relevant Regular Record Date by virtue of having been such Holder, and such Defaulted Interest may be paid by the Issuer of such Security, at its election in each case, as provided in Clause (1) or (2) below:
(1) The Issuer of such Security may elect to make payment of any Defaulted Interest to the Persons in whose names the Securities of such series (or their respective Predecessor Securities) are registered at the close of business on a Special Record Date for the payment of such Defaulted Interest, which shall be fixed in the following manner. The Issuer of such Security shall notify the Trustee in writing of the amount of Defaulted Interest proposed to be paid on each Security of such series and the date of the proposed payment, and at the same time such Issuer shall deposit with the Trustee an amount of money equal to the aggregate amount proposed to be paid in respect of such Defaulted Interest or shall make arrangements satisfactory to the Trustee for such deposit prior to the
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date of the proposed payment, such money when deposited to be held in trust for the benefit of the Persons entitled to such Defaulted interest as in this Clause provided. Thereupon the Trustee, upon consultation with the Issuer of such Security, shall fix a Special Record Date for the payment of such Defaulted Interest which shall be not more than 15 days and not less than 10 days prior to the date of the proposed payment and not less than 10 days after the receipt by the Trustee of the notice of the proposed payment. The Trustee shall promptly notify the Issuer of such Security of such Special Record Date and, in the name and at the expense of such Issuer, shall cause notice of the proposed payment of such Defaulted Interest and the Special Record Date therefor to be given to each Holder of Securities of such series in the manner set forth in Section 106, not less than 10 days prior to such Special Record Date. Notice of the proposed payment of such Defaulted Interest and the Special Record Date therefor having been so mailed, such Defaulted Interest shall be paid to the Persons in whose names the Securities of such series (or their respective Predecessor Securities) are registered at the close of business on such Special Record Date and shall no longer be payable pursuant to the following Clause (2).
(2) The Issuer of such Security may make payment of any Defaulted Interest on the Securities of any series in any other lawful manner not inconsistent with the requirements of any securities exchange on which such Securities may be listed, and upon such notice as may be required by such exchange, if, after notice given by such Issuer to the Trustee of the proposed payment pursuant to this Clause, such manner of payment shall be deemed practicable by the Trustee.
Subject to the foregoing provisions of this Section and Section 305, each Security delivered under this Indenture upon registration of transfer of or in exchange for or in lieu of any other Security shall carry the rights to interest accrued and unpaid, and to accrue, which were carried by such other Security.
SECTION 308. Persons Deemed Owners.
Prior to due presentment of a Security for registration of transfer, the Issuer of such Security, any Guarantor, the Trustee and any agent of such Issuer, a Guarantor or the Trustee may treat the Person in whose name such Security is registered as the owner of such Security for the purpose of receiving payment of principal of and any premium and (subject to Section 305 and Section 307) any interest on such Security and for all other purposes whatsoever, whether or not such Security be overdue, and neither such Issuer, any Guarantor, the Trustee nor any agent of such Issuer, a Guarantor or the Trustee shall be affected by notice to the contrary.
SECTION 309. Cancellation.
All Securities surrendered for payment, redemption, registration of transfer or exchange or for credit against any sinking fund payment shall, if surrendered to any Person other than the Trustee, be delivered to the Trustee and shall be promptly cancelled by it. The Issuer of such Securities or any Guarantor may at any time deliver to the Trustee for cancellation any Securities previously authenticated and delivered hereunder which such Issuer or such Guarantor may have acquired in any manner whatsoever, and may deliver to the Trustee (or to any other Person for delivery to the Trustee) for cancellation any Securities previously authenticated hereunder which such Issuer has not issued and sold, and all Securities so delivered shall be promptly cancelled by
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the Trustee. No Securities shall be authenticated in lieu of or in exchange for any Securities cancelled as provided in this Section, except as expressly permitted by this Indenture. All cancelled Securities held by the Trustee shall be disposed of by the Trustee in accordance with its customary procedures.
SECTION 310. Computation of Interest.
Except as otherwise specified as contemplated by Section 301 for Securities of any series, interest on the Securities of each series shall be computed on the basis of a 360-day year of twelve 30-day months.
SECTION 311. CUSIP Numbers.
The Issuer of the relevant series of Securities in issuing the Securities may use CUSIP numbers (if then generally in use), and, if so, the Trustee shall use CUSIP numbers in notices of redemption as a convenience to Holders; provided that any such notice may state that no representation is made as to the correctness of such numbers either as printed on the Securities or as contained in any notice of a redemption and that reliance may be placed only on the other identification numbers printed on the Securities, and any such redemption shall not be affected by any defect in or omission of such numbers. The Issuers will promptly notify the Trustee, in writing, of any change in the CUSIP or other similar numbers.
SECTION 312. Qualified Reopenings.
The Issuer of the relevant series of Securities may from time to time, without the consent of the Holders of such series of Securities, create and issue further Securities so that the further issue is consolidated and forms a single series with such series of Securities, provided that such further issue constitutes a qualified reopening for U.S. Federal income tax purposes or such further Securities are issued with not more than a de minimis amount of original issue discount for U.S. Federal income tax purposes
ARTICLE FOUR
SATISFACTION AND DISCHARGE
SECTION 401. Satisfaction and Discharge of Indenture.
This Indenture shall upon a Company Request cease to be of further effect (except as to any surviving rights of registration of transfer or exchange of Securities herein expressly provided for and the obligation of any Issuer or any Guarantor to pay any additional amounts as contemplated by Section 1004), and the Trustee, at the expense of the Issuer of such Securities, shall execute proper instruments acknowledging satisfaction and discharge of this Indenture, when
(1) either
(A) all Securities theretofore authenticated and delivered (other than (i) Securities which have been destroyed, lost or stolen and which have been replaced or paid as
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provided in Section 306 and (ii) Securities for whose payment money has theretofore been deposited in trust or segregated and held in trust by the Issuer of such Securities or any Guarantor and thereafter repaid to such Issuer or any Guarantor or discharged from such trust, as provided in Section 1003) have been delivered to the Trustee for cancellation; or
(B) all such Securities not theretofore delivered to the Trustee for cancellation
(i) have become due and payable, or
(ii) will become due and payable at their Stated Maturity within one year, or
(iii) are to be called for redemption within one year under arrangements satisfactory to the Trustee for the giving of notice of redemption by the Trustee in the name, and at the expense, of the Issuer of such Securities,
and such Issuer, in the case of Clause (i), (ii) or (iii) above, has deposited or caused to be deposited with the Trustee as trust funds in trust for the purpose money in an amount sufficient to pay and discharge the entire indebtedness on such Securities not theretofore delivered to the Trustee for cancellation, for principal and any premium and interest to the date of such deposit (in the case of Securities which have become due and payable) or to the Stated Maturity or Redemption Date, as the case may be;
(2) such Issuer or any Guarantor has paid or caused to be paid all other sums payable hereunder by the Issuers; and
(3) such Issuer has delivered to the Trustee an Officers Certificate and an Opinion of Counsel, each stating that all conditions precedent herein provided for relating to the satisfaction and discharge of this Indenture have been complied with.
Notwithstanding the satisfaction and discharge of this Indenture, the obligations of each Issuer and the Guarantors to the Trustee under Section 607, the obligations of each Issuer to any Authenticating Agent under Section 614 and, if money shall have been deposited with the Trustee pursuant to subclause (B) of Clause (1) of this Section, the obligations of the Trustee under Section 402 and the last paragraph of Section 1003 shall survive.
SECTION 402. Application of Trust Money.
Subject to the provisions of the last paragraph of Section 1003, all money deposited with the Trustee pursuant to Section 401 shall be held in trust and applied by it, in accordance with the provisions of the Securities and this Indenture, to the payment, either directly or through any Paying Agent (including any Issuer or any Guarantor acting as its own Paying Agent) as the Trustee may determine, to the Persons entitled thereto, of the principal and any premium and interest for whose payment such money has been deposited with the Trustee.
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ARTICLE FIVE
REMEDIES
SECTION 501. Events of Default.
Event of Default, wherever used herein with respect to Securities of any series, means any one of the following events (whatever the reason for such Event of Default and whether it shall be voluntary or involuntary or be effected by operation of law or pursuant to any judgment, decree or order of any court or any order, rule or regulation of any administrative or governmental body):
(1) default in the payment of any interest or any additional amounts upon any Security of that series when it becomes due and payable, and continuance of such default for a period of 30 days; or
(2) default in the payment of the principal of or any premium on any Security of that series at its Maturity and, in the case of technical or administrative difficulties (as certified to the Trustee in an Officers Certificate delivered at such Maturity), only if such default persists for a period of more than three Business Days; or
(3) default in the deposit of any sinking fund payment, when and as due by the terms of a Security of that series and continuance of such default for a period of 30 days or, if longer, beyond any period of grace provided with respect thereto; or
(4) default in the performance, or breach, of any covenant or warranty of the Issuer of that series or any Guarantor in this Indenture (other than a covenant or warranty a default in whose performance or whose breach is elsewhere in this Section specifically dealt with or which has expressly been included in this Indenture solely for the benefit of series of Securities other than that series), and continuance of such default or breach for a period of 90 days after there has been given, by registered or certified mail, by the Trustee or to the Issuer of that series, the Guarantors and the Trustee by the Holders of at least 25% in principal amount of the Outstanding Securities of that series a written notice specifying such default or breach and requiring it to be remedied and stating that such notice is a Notice of Default hereunder; or
(5) the entry by a court having jurisdiction in the premises of (A) a decree or order for relief in respect of the Issuer of that series or any Guarantor in an involuntary case or proceeding under any applicable Australian or English bankruptcy, insolvency, reorganization or other similar law or (B) a decree or order adjudging the Issuer of that series or any Guarantor as bankrupt or insolvent, or approving as properly filed a petition seeking the involuntary reorganization, arrangement, adjustment or composition of or in respect of the Issuer of that series or any Guarantor under any applicable Australian or English law, or appointing a custodian, receiver, liquidator, assignee, trustee, sequestrator, administrator or other similar official of the Issuer of that series or any Guarantor or of any substantial part of its property, or ordering the winding up or liquidation of its affairs, and the continuance of any such decree or order for relief or any such other decree or order unstayed and in effect for a period of 90 consecutive days; or
(6) the commencement by the Issuer of that series or any Guarantor of a voluntary case or proceeding under any applicable Australian or English bankruptcy, insolvency, reorganization or other similar law or of any other case or proceeding to be adjudicated a bankrupt or insolvent, or the consent by it to the entry of a decree or order for relief in respect of the Issuer of that series or any Guarantor in an involuntary case or proceeding
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under any applicable Australian or English bankruptcy, insolvency, reorganization or other similar law or to the commencement of any bankruptcy or insolvency case or proceeding against it, or the filing by it of a petition or answer or consent seeking reorganization or relief under any applicable Australian or English law, or the consent by it to the filing of such petition or to the appointment of or taking possession by a custodian, receiver, liquidator, assignee, trustee, sequestrator or other similar official of the Issuer of that series or any Guarantor or of any substantial part of its property, or the making by it of an assignment for the benefit of creditors, or the admission by it in writing or by facsimile of its inability to pay its debts generally as they become due, or the taking of corporate action by the Issuer of that series or any Guarantor in furtherance of any such action provided , that with respect to any Guarantor this clause (6) shall not apply to a voluntary winding up, for the purposes of a corporate reconstruction carried out in accordance with Australian or English statutory requirements and which results immediately thereafter (in the case of such a voluntary winding up of such Guarantor) in a legal entity which is liable under the Guarantees, and which owns substantially those assets of such Guarantor which such Guarantor owned immediately before such reconstruction occurred; or
(7) any Borrowing, other than the Securities or Guarantees, of the Issuer of that series or the Guarantors having an outstanding principal amount of at least U.S.$50,000,000 or its equivalent in any other currency or currencies (the specified amount) having payment accelerated by reason of default by the Issuer of that series or, as the case may be, any Guarantor in accordance with the terms relating to such Borrowing and steps being taken to obtain repayment thereof; or, after any period of grace originally applicable, in relation to any Borrowings having an outstanding principal amount of at least the specified amount (i) the Issuer of that series or any Guarantor defaulting in the payment, when due and called upon, of any Borrowing of a principal amount of at least the specified amount or in the honoring of any guarantee or indemnity in respect of any Borrowing of a principal amount of at least the specified amount of others and steps being taken to enforce the same or (ii) any mortgage, pledge or other charge granted by the Issuer of that series or any Guarantor becoming enforceable and steps being taken to enforce the same; or
(8) any other Event of Default provided with respect to Securities of that series.
SECTION 502. Acceleration of Maturity; Rescission and Annulment.
If an Event of Default (other than an Event of Default specified in Section 501(5) or 501(6)) with respect to Securities of any series at the time Outstanding occurs and is continuing, then in every such case the Trustee or the Holders of not less than 25% in principal amount of the Outstanding Securities of that series may declare the principal amount of all the Securities of that series and any interest accrued thereon (or, if any Securities of that series are Original Issue Discount Securities, such portion of the principal amount of such Securities as may be specified by the terms thereof) to be due and payable immediately, by a notice in writing to the Issuer of that series and the Guarantors (and to the Trustee if given by Holders), and upon any such declaration such principal amount (or specified amount) and any interest accrued thereon shall become immediately due and payable. If an Event of Default specified in Section 501(5) or 501 (6) with respect to Securities of any series at the time Outstanding occurs, the principal amount of all the Securities of that series and any interest accrued thereon (or, if any Securities of that series are Original Issue Discount Securities, such portion of the principal amount of such Securities as may be specified by the terms thereof) shall automatically, and without any declaration or other action on the part of the Trustee or any Holder, become immediately due and payable.
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At any time after such a declaration of acceleration with respect to Securities of any series has been made and before a judgment or decree for payment of the money due has been obtained by the Trustee as hereinafter in this Article provided, the Holders of a majority in principal amount of the Outstanding Securities of that series, by written notice to the Issuer of that series, the Guarantors and the Trustee, may rescind and annul such declaration and its consequences if
(1) the Issuer of that series or the Guarantors have paid or deposited with the Trustee a sum sufficient to pay
(A) all overdue interest on all Securities of that series,
(B) the principal of (and premium, if any, on) any Securities of that series which have become due otherwise than by such declaration of acceleration and any interest accrued thereon at the rate or rates prescribed therefor in such Securities,
(C) to the extent that payment of such interest is lawful, interest upon overdue interest at the rate or rates prescribed therefor in such Securities, and
(D) all sums paid or advanced by the Trustee hereunder and the reasonable compensation, expenses, disbursements and advances of the Trustee, its agents and counsel; and
(2) all Events of Default with respect to Securities of that series, other than the non-payment of the principal of Securities of that series which have become due solely by such declaration of acceleration, have been cured or waived as provided in Section 513.
No such rescission shall affect any subsequent default or impair any right consequent thereon.
SECTION 503. Collection of Indebtedness and Suits for Enforcement by Trustee.
Each Issuer covenants that if
(1) default is made in the payment of any interest on any Security when such interest becomes due and payable and such default continues for a period of 30 days, or
(2) default is made in the payment of the principal of (or premium, if any, on) any Security at the Maturity thereof and such default continues for a period of seven Business Days,
such Issuer will, upon demand of the Trustee, pay to it, for the benefit of the Holders of such Securities, the whole amount then due and payable on such Securities for principal and any premium and interest and, to the extent that payment of such interest shall be legally enforceable, interest on any overdue principal and premium and on any overdue interest, at the rate or rates prescribed therefor in such Securities, and, in addition thereto, such further amount as shall be sufficient to cover the costs and expenses of collection, including the reasonable compensation, expenses, disbursements and advances of the Trustee, its agents and counsel.
If an Event of Default with respect to Securities of any series occurs and is continuing, the Trustee may in its discretion proceed to protect and enforce its rights and the rights of the Holders of Securities of such series by such appropriate judicial proceedings as the Trustee shall deem most effectual to protect and enforce any such rights, whether for the specific enforcement of any covenant or agreement in this Indenture or in aid of the exercise of any power granted herein, or to enforce any other proper remedy.
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SECTION 504. Trustee May File Proofs of Claim.
In case of any judicial proceeding relative to any Issuer, any Guarantor or any other obligor upon the Securities, or the property of any Issuer, any Guarantor or other obligor or their creditors, the Trustee shall be entitled and empowered, by intervention in such proceeding or otherwise, to take any and all actions authorized under the Trust Indenture Act in order to have claims of the Holders and the Trustee allowed in any such proceeding. In particular, the Trustee shall be authorized to collect and receive any moneys or other property payable or deliverable on any such claims and to distribute the same; and any custodian, receiver, assignee, trustee, liquidator, sequestrator or other similar official in any such judicial proceeding is hereby authorized by each Holder to make such payments to the Trustee and, in the event that the Trustee shall consent to the making of such payments directly to the Holders, to pay to the Trustee any amount due it for the reasonable compensation, expenses, disbursements and advances of the Trustee, its agents and counsel, and any other amounts due the Trustee under Section 607.
No provision of this Indenture shall be deemed to authorize the Trustee to authorize or consent to or accept or adopt on behalf of any Holder any plan of reorganization, arrangement, adjustment or composition affecting the Securities or the rights of any Holder thereof or to authorize the Trustee to vote in respect of the claim of any Holder in any such proceeding; provided, however , that the Trustee may, on behalf of the Holders, vote for the election of a trustee in bankruptcy or similar official and be a member of a creditors or other similar committee.
SECTION 505. Trustee May Enforce Claims Without Possession of Securities.
All rights of action and claims under this Indenture or the Securities may be prosecuted and enforced by the Trustee without the possession of any of the Securities or the production thereof in any proceeding relating thereto, and any such proceeding instituted by the Trustee shall be brought in its own name as trustee of an express trust, and any recovery of judgment shall, after provision for the payment of the reasonable compensation, expenses, disbursements and advances of the Trustee, its agents and counsel, be for the ratable benefit of the Holders of the Securities in respect of which such judgment has been recovered.
SECTION 506. Application of Money Collected.
Any money collected by the Trustee pursuant to this Article shall be applied in the following order, at the date or dates fixed by the Trustee and, in case of the distribution of such money on account of principal or any premium or interest, upon presentation of the Securities and the notation thereon of the payment if only partially paid and upon surrender thereof if fully paid:
FIRST: To the payment of all amounts due the Trustee under Section 607;
SECOND: To the payment of the amounts then due and unpaid for principal of and any premium and interest on the Securities in respect of which or for the benefit of which such money has been collected, ratably, without preference or priority of any kind, according to the amounts due and payable on such Securities for principal and any premium and interest, respectively; and
THIRD: To the payment of the balance, if any, to the Issuer of that series or any other Person or Persons, including the Guarantors, legally entitled thereto.
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SECTION 507. Limitation on Suits.
No Holder of any Security of any series shall have any right to institute any proceeding, judicial or otherwise, with respect to this Indenture, the Guarantees, the Securities or for the appointment of a receiver or trustee, or for any other remedy hereunder, unless
(1) such Holder has previously given written notice to the Trustee of a continuing Event of Default with respect to the Securities of that series specifying such Event of Default and stating that such notice is a Notice of Default hereunder;
(2) the Holders of not less than 25% in principal amount of the Outstanding Securities of that series shall have made written request to the Trustee to institute proceedings in respect of such Event of Default in its own name as Trustee hereunder;
(3) such Holder or Holders have offered to the Trustee reasonable indemnity against the costs, expenses and liabilities to be incurred in compliance with such request;
(4) the Trustee for 60 days after its receipt of such notice, request and offer of indemnity has failed to institute any such proceeding; and
(5) no direction inconsistent with such written request has been given to the Trustee during such 60-day period by the Holders of a majority in principal amount of the Outstanding Securities of that series;
it being understood and intended that no one or more of such Holders shall have any right in any manner whatever by virtue of, or by availing of, any provision of this Indenture to affect, disturb or prejudice the rights of any other of such Holders, or to obtain or to seek to obtain priority or preference over any other of such Holders or to enforce any right under this Indenture, except in the manner herein provided and for the equal and ratable benefit of all of such Holders.
SECTION 508. Unconditional Right of Holders to Receive Principal, Premium and Interest.
Notwithstanding any other provision in this Indenture, the Holder of any Security shall have the right, which is absolute and unconditional, to receive payment of the principal of and any premium and (subject to Section 307) interest on such Security on the respective Stated Maturities expressed in such Security (or, in the case of redemption, on the Redemption Date) and to institute suit for the enforcement of any such payment, and such rights shall not be impaired without the consent of such Holder.
SECTION 509. Restoration of Rights and Remedies.
If the Trustee or any Holder has instituted any proceeding to enforce any right or remedy under this Indenture and such proceeding has been discontinued or abandoned for any reason, or has been determined adversely to the Trustee or to such Holder, then and in every such case, subject to any determination in such proceeding, the Issuer of the relevant series, the Guarantors, the Trustee and the Holders shall be restored severally and respectively to their former positions hereunder and thereafter all rights and remedies of the Trustee and the Holders shall continue as though no such proceeding had been instituted.
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SECTION 510. Rights and Remedies Cumulative.
Except as otherwise provided with respect to the replacement or payment of mutilated, destroyed, lost or stolen Securities in the last paragraph of Section 306, no right or remedy herein conferred upon or reserved to the Trustee or to the Holders is intended to be exclusive of any other right or remedy, and every right and remedy shall, to the extent permitted by law, be cumulative and in addition to every other right and remedy given hereunder or now or hereafter existing at law or in equity or otherwise. The assertion or employment of any right or remedy hereunder, or otherwise, shall not prevent the concurrent assertion or employment of any other appropriate right or remedy.
SECTION 511. Delay or Omission Not Waiver.
No delay or omission of the Trustee or of any Holder of any Securities to exercise any right or remedy accruing upon any Event of Default shall impair any such right or remedy or constitute a waiver of any such Event of Default or an acquiescence therein. Every right and remedy given by this Article or by law to the Trustee or to the Holders may be exercised from time to time, and as often as may be deemed expedient, by the Trustee or by the Holders, as the case may be.
SECTION 512. Control by Holders.
Subject to Section 502(1)(D) hereof, the Holders of a majority in principal amount of the Outstanding Securities of any series 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 the Trustee, with respect to the Securities of such series, provided that
(1) such direction shall not be in conflict with any rule of law or with this Indenture, and
(2) the Trustee may take any other action deemed proper by the Trustee which is not inconsistent with such direction.
SECTION 513. Waiver of Past Defaults.
The Holders of not less than a majority in principal amount of the Outstanding Securities of any series may, by written notice to the Trustee, on behalf of the Holders of all the Securities of such series waive any past default hereunder with respect to such series and its consequences, except a default
(1) in the payment of the principal of or any premium or interest on any Security of such series, or
(2) in respect of a covenant or provision hereof which under Article Nine cannot be modified or amended without the consent of the Holder of each Outstanding Security of such series affected.
Upon any such waiver, such default shall cease to exist, and any Event of Default arising therefrom shall be deemed to have been cured, for every purpose of this Indenture; but no such waiver shall extend to any subsequent or other default or impair any right consequent thereon.
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SECTION 514. Undertaking for Costs.
In any suit for the enforcement of any right or remedy under this Indenture, or in any suit against the Trustee for any action taken, suffered or omitted by it as Trustee, a court may require any party litigant in such suit to file an undertaking to pay the costs of such suit, and may assess costs against any such party litigant, in the manner and to the extent provided in the Trust Indenture Act; provided that neither this Section nor the Trust Indenture Act shall be deemed to authorize any court to require such an undertaking or to make such an assessment in any suit instituted by any Issuer or any Guarantor, in any suit instituted by the Trustee, in any suit instituted by any Holder, or group of Holders, holding in the aggregate more than 10% in principal amount of the Outstanding Securities of any series, or in any suit instituted by any Holder for the enforcement of the payment of the principal of or any premium or interest on any Security on or after the Stated Maturity or Maturities expressed in such Security (or, in the case of redemption, on or after the Redemption Date).
SECTION 515. Waiver of Usury, Stay or Extension Laws.
Each Issuer and each Guarantor covenants (to the extent that it may lawfully do so) that it will not at any time insist upon, or plead, or in any manner whatsoever claim or take the benefit or advantage of, any usury, stay or extension law wherever enacted, now or at any time hereafter in force, which may affect the covenants or the performance of this Indenture; and each Issuer and each Guarantor (to the extent that it may lawfully do so) hereby expressly waives all benefit or advantage of any such law and covenants that it will not hinder, delay or impede the execution of any power herein granted to the Trustee, but will suffer and permit the execution of every such power as though no such law had been enacted.
ARTICLE SIX
THE TRUSTEE
SECTION 601. Certain Duties and Responsibilities.
The duties and responsibilities of the Trustee shall be as provided by the Trust Indenture Act. Notwithstanding the foregoing, no provision of this Indenture shall require the Trustee to expend or risk its own funds or otherwise incur any financial liability in the performance of any of its duties hereunder, or in the exercise of any of its rights or powers, if it shall have reasonable grounds for believing that repayment of such funds or adequate indemnity against such risk or liability is not reasonably assured to it. Whether or not therein expressly so provided, every provision of this Indenture relating to the conduct or affecting the liability of or affording protection to the Trustee shall be subject to the provisions of this Section.
SECTION 602. Notice of Defaults.
If a default occurs hereunder with respect to Securities of any series, the Trustee shall give the Holders of Securities of such series notice of such default as and to the extent provided by the Trust Indenture Act; provided, however , that in the case of any default of the character specified in Section 501(4) with respect to Securities of such series, no such notice to Holders shall be given
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until at least 60 days after the occurrence thereof. For the purpose of this Section, the term default means any event which is, or after notice or lapse of time or both would become, an Event of Default with respect to Securities of such series.
SECTION 603. Certain Rights of Trustee.
Subject to the provisions of Section 601:
(1) the Trustee may rely and shall be protected in acting or refraining from acting upon any resolution, certificate, statement, instrument, opinion, report, notice, request, direction, consent, order, bond, debenture, note, other evidence of indebtedness or other paper or document believed by it to be genuine and to have been signed or presented by the proper party or parties;
(2) any request or direction of any Issuer or any Guarantor mentioned herein shall be sufficiently evidenced by a Company Request or Company Order, and any resolution of the Board of Directors of any Issuer or any Guarantor shall be sufficiently evidenced by a Board Resolution;
(3) whenever in the administration of this Indenture the Trustee shall deem it desirable that a matter be proved or established prior to taking, suffering or omitting any action hereunder, the Trustee (unless other evidence be herein specifically prescribed) may, in the absence of bad faith on its part, rely upon an Officers Certificate;
(4) the Trustee may consult with counsel of its selection and the advice of such counsel, confirmed in writing, or any Opinion of Counsel shall be full and complete authorization and protection in respect of any action taken, suffered or omitted by it hereunder in good faith and in reliance thereon;
(5) the Trustee shall be under no obligation to exercise any of the rights or powers vested in it by this Indenture at the request or direction of any of the Holders pursuant to this Indenture, unless such Holders shall have offered to the Trustee reasonable security or indemnity against the costs, expenses and liabilities which might be incurred by it in compliance with such request or direction;
(6) the Trustee shall not be bound to make any investigation into the facts or matters stated in any resolution, certificate, statement, instrument, opinion, report, notice, request, direction, consent, order, bond, debenture, note, other evidence of indebtedness or other paper or document, but the Trustee, in its discretion, may make such further inquiry or investigation into such facts or matters as it may see fit, and, if the Trustee shall determine to make such further inquiry or investigation, it shall be entitled to examine the books, records and premises of any Issuer or any Guarantor, personally or by agent or attorney provided that the Trustee shall not be entitled to such information which any Issuer or any Guarantor is prevented from disclosing by law or contract;
(7) the Trustee may execute any of the trusts or powers hereunder or perform any duties hereunder either directly or by or through agents or attorneys and the Trustee shall not be responsible for any misconduct or negligence on the part of any agent or attorney appointed with due care by it hereunder;
(8) the Trustee shall not be liable for any action taken, suffered, or omitted to be taken by it in good faith and reasonably believed by it to be authorized or within the discretion or rights or powers conferred upon it by this Indenture, provided , that, subject to Section 601 and
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this Section 603, no provision of this Indenture shall be construed to relieve the Trustee for liability for its own negligent action, its own negligent failure to act or its own wilful misconduct; and
(9) the Trustee shall not be deemed to have notice of any Default or Event of Default unless a Responsible Officer of the Trustee has actual knowledge thereof or unless written notice of such Default or Event of Default is received by the Trustee at the Corporate Trust Office of the Trustee, and such notice references the Securities.
(10) No provision of this Indenture shall require the Trustee to expend or risk its own funds or otherwise incur personal financial liability in the performance of any of its duties hereunder or in the exercise of any of its rights or powers if it shall have reasonable grounds to believe that repayment of such funds and/or adequate indemnity against such risk or liability is not satisfactorily assured to it.
(11) In no event shall the Trustee be liable for special, indirect, or consequential loss or damage of any kind whatsoever (including, but not limited to, lost profits), even if the Trustee has been advised of the likelihood of such loss or damage and regardless of the form of action.
(12) The permissive rights of the Trustee enumerated herein shall not be construed as duties of the Trustee.
(13) The Trustee shall not be responsible for delays or failures in performance resulting from acts beyond its control. Such acts shall include but not be limited to acts of God, strikes, lockouts, riots, acts of war, epidemics, governmental regulations superimposed after the fact, fire, communication line failures, computer viruses, power failures, earthquakes, terrorist attacks or other disasters.
SECTION 604. Not Responsible for Recitals or Issuance of Securities.
The recitals contained herein and in the Securities, except the Trustees certificates of authentication, shall be taken as the statements of the Issuers or the Guarantors, and neither the Trustee nor any Authenticating Agent assumes any responsibility for their correctness. The Trustee makes no representations as to the validity or sufficiency of this Indenture or of the Securities or the Guarantees. Neither the Trustee nor any Authenticating Agent shall be accountable for the use or application by the Issuers of the Securities or the proceeds thereof.
SECTION 605. May Hold Securities.
The Trustee, any Authenticating Agent, any Paying Agent, any Security Registrar or any other agent of any Issuer or any Guarantor, in its individual or any other capacity, may become the owner or pledgee of Securities and, subject to Sections 608 and 613, may otherwise deal with any Issuer or any Guarantor with the same rights it would have if it were not Trustee, Authenticating Agent, Paying Agent, Security Registrar or such other agent.
SECTION 606. Money Held in Trust.
Money held by the Trustee in trust hereunder need not be segregated from other funds except to the extent required by law. The Trustee shall be under no liability for interest on any money received by it hereunder except as otherwise agreed in writing with any Issuer or any Guarantor, as the case may be.
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SECTION 607. Compensation and Reimbursement.
The Issuers and the Guarantors agree
(1) to pay to the Trustee from time to time such compensation as may be agreed in writing by any Issuer and/or any Guarantor and the Trustee for all services rendered by it hereunder (which compensation shall not be limited by any provision of law in regard to the compensation of a trustee of an express trust);
(2) except as otherwise expressly provided herein, to reimburse the Trustee upon its request for all reasonable expenses, disbursements and advances reasonably incurred or made by the Trustee in accordance with any provision of this Indenture (including the reasonable compensation and the expenses and disbursements of its agents and counsel) all as may be agreed between the Trustee and the Issuers and the Guarantors, except any such expense, disbursement or advance as may be attributable to its negligence or bad faith; and
(3) to indemnify the Trustee for, and to hold it harmless against, any and all loss, liability, damage, claim or expense arising out of or in connection with the acceptance or administration of the trust or trusts hereunder, including the costs and expenses of defending itself against any claim, liability or damage in connection with the exercise or performance of any of its powers or duties hereunder, except to the extent that such loss, liability, damage, claim or expense may be attributable to its negligence or bad faith.
As security for the performance of the obligations of the Issuers and the Guarantors under this Section 607, the Trustee shall have a lien prior to the Outstanding Securities of any series upon all property and funds held or collected by the Trustee as such, except property or funds held in trust for the benefits of the Holders of any such Outstanding Securities. Trustee for purposes hereof includes any predecessor trustee, but the negligence or bad faith of any trustee shall not affect the rights of any other trustee hereunder.
When the Trustee incurs expenses or renders services in connection with an Event of Default specified in Section 501(5) or Section 501(6), the expenses (including the reasonable charges and expenses of its counsel) and the compensation for the services are intended to constitute expenses of administration under any applicable federal or state bankruptcy, insolvency or other similar law.
The provisions of this Section shall survive the resignation or removal of the Trustee and the termination of this Indenture.
SECTION 608. Conflicting Interests.
If the Trustee has or shall acquire a conflicting interest within the meaning of the Trust Indenture Act, the Trustee shall either eliminate such interest or resign, to the extent and in the manner provided by, and subject to the provisions of, the Trust Indenture Act and this Indenture. To the extent permitted by such Act, the Trustee shall not be deemed to have a conflicting interest by virtue of being a trustee under this Indenture with respect to Securities of more than one series.
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SECTION 609. Corporate Trustee Required; Eligibility.
There shall at all times be one (and only one) Trustee hereunder with respect to the Securities of each series, which may be Trustee hereunder for Securities of one or more other series. Each Trustee shall be a Person that is eligible pursuant to the Trust Indenture Act to act as such, and has a combined capital and surplus of at least $50,000,000 and has its Corporate Trust Office in the borough of Manhattan, New York City, New York. If any such Person publishes reports of condition at least annually, pursuant to law or to the requirements of its supervising or examining authority, then for the purposes of this Section and to the extent permitted by the Trust Indenture Act, the combined capital and surplus of such Person shall be deemed to be its combined capital and surplus as set forth in its most recent report of condition so published. If at any time the Trustee with respect to the Securities of any series shall cease to be eligible in accordance with the provisions of this Section, it shall resign immediately in the manner and with the effect hereinafter specified in this Article.
SECTION 610. Resignation and Removal; Appointment of Successor.
No resignation or removal of the Trustee and no appointment of a successor Trustee pursuant to this Article shall become effective until the acceptance of appointment by the successor Trustee in accordance with the applicable requirements of Section 611.
The Trustee may resign at any time with respect to the Securities of one or more series by giving written notice thereof to the Issuer of the relevant series of Securities and the Guarantors. If the instrument of acceptance by a successor Trustee required by Section 611 shall not have been delivered to the Trustee within 30 days after the giving of such notice of resignation, the resigning Trustee may, at the expense of the Issuers, petition any court of competent jurisdiction for the appointment of a successor Trustee with respect to the Securities of such series.
The Trustee may be removed at any time with respect to the Securities of any series by Act of the Holders of a majority in principal amount of the Outstanding Securities of such series, delivered to the Trustee and to such Issuer and the Guarantors. If the instrument of acceptance by a successor Trustee required by Section 611 shall not have been delivered to the Trustee within 30 days after the delivery of such Act of the Holders, the resigning Trustee may petition any court of competent jurisdiction for the appointment of a successor Trustee with respect to the securities of such series.
If at any time:
(1) the Trustee shall fail to comply with Section 608 after written request therefor by any Issuer or any Guarantor or by any Holder who has been a bona fide Holder of a Security for at least six months, or
(2) the Trustee shall cease to be eligible under Section 609 and shall fail to resign after written request therefor by any Issuer or any Guarantor or by any such Holder, or
(3) the Trustee shall become incapable of acting or shall be adjudged a bankrupt or insolvent or a receiver of the Trustee or of its property shall be appointed or any public officer shall take charge or control of the Trustee or of its property or affairs for the purpose of rehabilitation, conservation or liquidation, then, in any such case, (A) any Issuer by a Board Resolution may remove the Trustee with respect to all its Securities, or (B) subject to Section 514, any Holder who has been a bona fide Holder of a Security for at least six months may, on behalf of himself and all others similarly situated, petition any court of competent jurisdiction for the removal of the Trustee with respect to all Securities and the appointment of a successor Trustee or Trustees.
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If the Trustee shall resign, be removed or become incapable of acting, or if a vacancy shall occur in the office of Trustee for any cause, with respect to the Securities of one or more series, the Issuer of such Securities, by a Board Resolution, shall promptly appoint a successor Trustee or Trustees with respect to the Securities of that or those series (it being understood that any such successor Trustee may be appointed with respect to the Securities of one or more or all of such series and that at any time there shall be only one Trustee with respect to the Securities of any particular series) and shall comply with the applicable requirements of Section 611. If, within one year after such resignation, removal or incapability, or the occurrence of such vacancy, a successor Trustee with respect to the Securities of any series shall be appointed by Act of the Holders of a majority in principal amount of the Outstanding Securities of such series delivered to the Issuer of such Securities and the Guarantors and the retiring Trustee, the successor Trustee so appointed shall, forthwith upon its acceptance of such appointment in accordance with the applicable requirements of Section 611, become the successor Trustee with respect to the Securities of such series and to that extent supersede the successor Trustee appointed by such Issuer. If no successor Trustee with respect to the Securities of any series shall have been so appointed by such Issuer or the Holders and accepted appointment in the manner required by Section 611, any Holder who has been a bona fide Holder of a Security of such series for at least six months may, on behalf of himself and all others similarly situated, petition any court of competent jurisdiction for the appointment of a successor Trustee with respect to the Securities of such series.
The Issuer of the relevant series of Securities shall give notice of each resignation and each removal of the Trustee with respect to the Securities of any series and each appointment of a successor Trustee with respect to the Securities of any series to all Holders of Securities of such series in the manner provided in Section 106. Each notice shall include the name of the successor Trustee with respect to the Securities of such series and the address of its Corporate Trust Office.
SECTION 611. Acceptance of Appointment by Successor.
In case of the appointment hereunder of a successor Trustee with respect to all Securities, every such successor Trustee so appointed shall execute, acknowledge and deliver to the Issuers, to the Guarantors and to the retiring Trustee an instrument accepting such appointment, and thereupon the resignation or removal of the retiring Trustee shall become effective and such successor Trustee, without any further act, deed or conveyance, shall become vested with all the rights, powers, trusts and duties of the retiring Trustee; but, on the request of the Issuers, the Guarantors or the successor Trustee, such retiring Trustee shall, upon payment of its charges, execute and deliver an instrument transferring to such successor Trustee all the rights, powers and trusts of the retiring Trustee and shall duly assign, transfer and deliver to such successor Trustee all property and money held by such retiring Trustee hereunder.
In case of the appointment hereunder of a successor Trustee with respect to the Securities of one or more (but not all) series, the Issuer of such Securities, the Guarantors, the retiring Trustee and each successor Trustee with respect to the Securities of one or more series shall execute and deliver an indenture supplemental hereto wherein each successor Trustee shall accept such appointment and which (1) shall contain such provisions as shall be necessary or desirable to transfer and confirm to, and to vest in, each successor Trustee all the rights, powers, trusts and duties of the retiring Trustee with respect to the Securities of that or those series to
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which the appointment of such successor Trustee relates, (2) if the retiring Trustee is not retiring with respect to all Securities, shall contain such provisions as shall be deemed necessary or desirable to confirm that all the rights, powers, trusts and duties of the retiring Trustee with respect to the Securities of that or those series as to which the retiring Trustee is not retiring shall continue to be vested in the retiring Trustee, and (3) shall add to or change any of the provisions of this Indenture as shall be necessary to provide for or facilitate the administration of the trusts hereunder by more than one Trustee, it being understood that nothing herein or in such supplemental indenture shall constitute such Trustees co-trustees of the same trust and that each such Trustee shall be trustee of a trust or trusts hereunder separate and apart from any trust or trusts hereunder administered by any other such Trustee; and upon the execution and delivery of such supplemental indenture the resignation or removal of the retiring Trustee shall become effective to the extent provided therein and each such successor Trustee, without any further act, deed or conveyance, shall become vested with all the rights, powers, trusts and duties of the retiring Trustee with respect to the Securities of that or those series to which the appointment of such successor Trustee relates; but, on request of the Issuer of the relevant series of Securities, the Guarantors or any successor Trustee, such retiring Trustee shall duly assign, transfer and deliver to such successor Trustee all property and money held by such retiring Trustee hereunder with respect to the Securities of that or those series to which the appointment of such successor Trustee relates.
Upon request of any such successor Trustee, the Issuer of the relevant series of Securities and the Guarantors shall execute any and all instruments for more fully and certainly vesting in and confirming to such successor Trustee all such rights, powers and trusts referred to in the first or second preceding paragraph, as the case may be.
No successor Trustee shall accept its appointment unless at the time of such acceptance such successor Trustee shall be qualified and eligible under this Article.
SECTION 612. Merger, Conversion, Consolidation or Succession to Business.
Any corporation into which the Trustee may be merged or converted or with which it may be consolidated, or any corporation resulting from any merger, conversion or consolidation to which the Trustee shall be a party, or any corporation succeeding to all or substantially all the corporate trust business of the Trustee, shall be the successor of the Trustee hereunder, provided such corporation shall be otherwise qualified and eligible under this Article, without the execution or filing of any paper or any further act on the part of any of the parties hereto. In case any Securities shall have been authenticated, but not delivered, by the Trustee then in office, any successor by merger, conversion or consolidation to such authenticating Trustee may adopt such authentication and deliver the Securities so authenticated with the same effect as if such successor Trustee had itself authenticated such Securities.
SECTION 613. Preferential Collection of Claims Against Issuers or Guarantors.
If and when the Trustee shall be or become a creditor of any Issuer or any Guarantor (or any other obligor upon the Securities), the Trustee shall be subject to the provisions of the Trust Indenture Act regarding the collection of claims against any such Issuer or any such Guarantor (or any such other obligor).
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SECTION 614. Appointment of Authenticating Agent.
The Trustee may appoint an Authenticating Agent or Agents with respect to one or more series of Securities which shall be authorized to act on behalf of the Trustee to authenticate Securities of such series issued upon original issue and upon exchange, registration of transfer or partial redemption thereof or pursuant to Section 306, and Securities so authenticated shall be entitled to the benefits of this Indenture and shall be valid and obligatory for all purposes as if authenticated by the Trustee hereunder. Wherever reference is made in this Indenture to the authentication and delivery of Securities by the Trustee or the Trustees certificate of authentication, such reference shall be deemed to include authentication and delivery on behalf of the Trustee by an Authenticating Agent and a certificate of authentication executed on behalf of the Trustee by an Authenticating Agent. Each Authenticating Agent shall be acceptable to the Issuer of the relevant series of Securities and shall at all times be a corporation organized and doing business under the laws of the United States of America, any State thereof or the District of Columbia, authorized under such laws to act as Authenticating Agent, having a combined capital and surplus of not less than $50,000,000 and subject to supervision or examination by Federal or State authority. If such Authenticating Agent publishes reports of condition at least annually, pursuant to law or to the requirements of said supervising or examining authority, then for the purposes of this Section, the combined capital and surplus of such Authenticating Agent shall be deemed to be its combined capital and surplus as set forth in its most recent report of condition so published. If at any time an Authenticating Agent shall cease to be eligible in accordance with the provisions of this Section, such Authenticating Agent shall resign immediately in the manner and with the effect specified in this Section.
Any corporation into which an Authenticating Agent may be merged or converted or with which it may be consolidated, or any corporation resulting from any merger, conversion or consolidation to which such Authenticating Agent shall be a party, or any corporation succeeding to the corporate agency or corporate trust business of an Authenticating Agent, shall continue to be an Authenticating Agent, provided such corporation shall be otherwise eligible under this Section, without the execution or filing of any paper or any further act on the part of the Trustee or the Authenticating Agent.
An Authenticating Agent may resign at any time by giving written notice thereof to the Trustee and to the Issuer of the relevant series of Securities. The Trustee may at any time terminate the agency of an Authenticating Agent by giving written notice thereof to such Authenticating Agent and to the Issuer of the relevant series of Securities. Upon receiving such a notice of resignation or upon such a termination, or in case at any time such Authenticating Agent shall cease to be eligible in accordance with the provisions of this Section, the Trustee may appoint a successor Authenticating Agent which shall be acceptable to the Issuer of the relevant series of Securities and shall give notice of such appointment in the manner provided in Section 106 to all Holders of Securities of the series with respect to which such Authenticating Agent will serve. Any successor Authenticating Agent upon acceptance of its appointment hereunder shall become vested with all the rights, powers and duties of its predecessor hereunder, with like effect as if originally named as an Authenticating Agent. No successor Authenticating Agent shall be appointed unless eligible under the provisions of this Section.
The Issuer of the relevant series of Securities agrees to pay to each Authenticating Agent from time to time reasonable compensation for its services under this Section.
If an appointment with respect to one or more series is made pursuant to this Section, the Securities of such series may have endorsed thereon, in addition to the Trustees certificate of authentication, an alternative certificate of authentication in the following form:
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This is one of the Securities of the series designated therein referred to in the within-mentioned Indenture.
THE BANK OF NEW YORK MELLON, | ||
As Trustee |
||
By |
|
|
As Authenticating Agent |
||
By |
|
|
Authorized Officer |
If all of the Securities of a series may not be originally issued at one time, and if the Trustee does not have an office capable of authenticating Securities upon original issuance located in a Place of Payment where the Issuer of such Securities wishes to have Securities of such series authenticated upon original issuance, the Trustee, if so requested by such Issuer in writing (which writing need not comply with Section 102 and need not be accompanied by an Opinion of Counsel), shall appoint in accordance with this Section an Authenticating Agent having an office in a Place of Payment designated by such Issuer with respect of such series of Securities.
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ARTICLE SEVEN
HOLDERS LISTS AND REPORTS BY TRUSTEE, ISSUERS AND GUARANTORS
SECTION 701. Issuers and the Guarantors to Furnish Trustee Names and Addresses of Holders.
Each Issuer and the Guarantors will furnish or cause to be furnished to the Trustee
(1) semi-annually, not later than 15 days after each Regular Record Date in each year, a list, in such form as the Trustee may reasonably require, of the names and addresses of the Holders of Securities of each series to the best knowledge of the Issuer of such Securities and the Guarantors as of such Regular Record Date, and
(2) at such other times as the Trustee may request in writing, within 30 days after the receipt by the Issuer of the relevant series of Securities or any Guarantor of any such request, a list of similar form and content as of a date not more than 15 days prior to the time such list is furnished;
provided that no such list need be furnished at an time when the Trustee is acting as Security Registrar.
SECTION 702. Preservation of Information; Communications to Holders.
The Trustee shall preserve, in as current a form as is reasonably practicable, the names and addresses of Holders contained in the most recent list furnished to the Trustee as provided in Section 701 and the names and addresses of Holders received by the Trustee in its capacity as Security Registrar. The Trustee may destroy any list furnished to it as provided in Section 701 upon receipt of a new list so furnished.
The rights of Holders to communicate with other Holders with respect to their rights under this Indenture or under the Securities, and the corresponding rights and privileges of the Trustee, shall be as provided by the Trust Indenture Act.
Every Holder of Securities, by receiving and holding the same, agrees with the Issuer of such Securities, the Guarantors and the Trustee that neither such Issuer, the Guarantors nor the Trustee nor any agent of any of them shall be held accountable by reason of any disclosure of information as to names and addresses of Holders made pursuant to the Trust Indenture Act.
SECTION 703. Reports by Trustee.
The Trustee shall transmit to Holders such reports concerning the Trustee and its actions under this Indenture as may be required pursuant to the Trust Indenture Act at the times and in the manner provided pursuant thereto. Reports so required to be transmitted at stated intervals of not more than 12 months shall be dated as of May 15 and transmitted no later than July 15 in each calendar year.
A copy of each such report shall, at the time of such transmission to Holders, be filed by the Trustee with each stock exchange upon which any Securities are listed, with the Commission, with each Issuer and with each Guarantor. Each Issuer will promptly notify the Trustee in writing or by facsimile when any Securities are listed on any stock exchange.
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SECTION 704. Reports by Issuers and Guarantors.
The Issuers and the Guarantors shall file with the Trustee and the Commission, and transmit to Holders, such information, documents and other reports, and such summaries thereof, as may be required pursuant to the Trust Indenture Act at the times and in the manner provided pursuant to such Act; provided that any such information, documents or reports required to be filed with the Commission pursuant to Section 13 or 15(d) of the Exchange Act shall be filed with the Trustee within 15 days after the same is so required to be filed with the Commission. Delivery of such information, documents, or reports to the Trustee is for informational purposes only and the Trustees receipt of such reports shall not constitute constructive notice of any information contained therein or determinable from information contained therein, including any Issuers or any Guarantors compliance with any of its covenants hereunder (as to which the Trustee is entitled to rely exclusively on Officers Certificates).
ARTICLE EIGHT
CONSOLIDATION, MERGER, CONVEYANCE, TRANSFER OR LEASE
SECTION 801. Issuers or Guarantors May Consolidate, Etc., Only on Certain Terms.
Neither Issuer nor any Guarantor shall consolidate with or merge into any other Person or convey, transfer or lease its properties and assets substantially as an entirety to any Person, and neither Issuer nor any Guarantor shall permit any Person to consolidate with or merge into such Issuer or any Guarantor or convey, transfer or lease its properties and assets substantially as an entirety to such Issuer or any Guarantor, unless:
(1)(i) in case Rio Tinto Finance (USA) Limited shall consolidate with or merge into another Person or convey, transfer or lease its properties and assets substantially as an entirety to any Person, the Person formed by such consolidation or into which Rio Tinto Finance (USA) Limited is merged or the Person which acquires by conveyance or transfer, or which leases, the properties and assets of Rio Tinto Finance (USA) Limited substantially as an entirety shall be a corporation, partnership or trust, shall be organized and validly existing, under the laws of Australia, any State thereof, the United States, any State thereof, or the District of Columbia; (ii) in case Rio Tinto Finance (USA) plc shall consolidate with or merge into another Person or convey, transfer or lease its properties and assets substantially as an entirety to any Person, the Person formed by such consolidation or into which Rio Tinto Finance (USA) is merged or the Person which acquires by conveyance or transfer, or which leases, the properties and assets of Rio Tinto Finance (USA) plc substantially as an entirety shall be a corporation, partnership or trust, shall be organized and validly existing, under the laws of England, any political division thereof, the United States, any State thereof, or the District of Columbia and (iii) in case any Guarantor shall consolidate with or merge into another Person or convey, transfer or lease its properties and assets substantially as an entirety to any Person, the Person formed by such consolidation or into which such Guarantor is merged or the Person which acquires by conveyance or transfer, or which leases, the properties and assets of such Guarantor substantially as an entirety shall be a corporation, partnership or trust, duly organized and validly existing under the laws of the applicable jurisdiction and such Person in case (i), (ii) or (iii) above shall expressly assume, by an indenture supplemental hereto, executed and delivered to the Trustee, in form reasonably satisfactory to the Trustee, the due and punctual payment of the principal of and any premium
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and interest (including all additional amounts, if any, payable pursuant to Section 1004 and subsection (3) below) on all the Securities and the performance or observance of every covenant of this Indenture on the part of the Issuer of such Securities to be performed or observed and, in the case of a Guarantor, the due and punctual performance of the Guarantees and the performance of every covenant of this Indenture on the part of such Guarantor to be performed or observed;
(2) immediately after giving effect to such transaction and treating any indebtedness which becomes an obligation of the Issuer of the relevant series of Securities or any Guarantor as a result of such transaction as having been incurred by such Issuer or such Guarantor at the time of such transaction, no Event of Default, and no event which, after notice or lapse of time or both, would become an Event of Default, shall have happened and be continuing;
(3) the Person formed by such consolidation or into which a Guarantor is merged or to whom a Guarantor has conveyed, transferred or leased its properties or assets (if such Person is organized and validly existing under the laws of a jurisdiction other than the United States, any State thereof, or the District of Columbia, the United Kingdom, any country thereof or Australia or any State thereof) agrees to indemnify the Holder of each Security against (a) any tax, assessment or governmental charge imposed on any such Holder or required to be withheld or deducted from any payment to such Holder as a consequence of such consolidation, merger, conveyance, transfer or lease; and (b) any costs or expenses of the act of such consolidation, merger, conveyance, transfer or lease;
(4) if, as a result of any such consolidation or merger or such conveyance, transfer or lease, properties or assets of the Issuer of the relevant series of Securities or any Guarantor would become subject to a mortgage, pledge, lien, security interest or other encumbrance which would not be permitted by this Indenture, such Issuer, applicable Guarantor or such successor Person, as the case may be, shall take such steps as shall be necessary effectively to secure the Securities equally and ratably with (or prior to) all indebtedness secured thereby; and
(5) the Issuer of the relevant series of Securities or applicable Guarantor, as the case may be, has delivered to the Trustee an Officers Certificate and an Opinion of Counsel, each stating that such consolidation, merger, conveyance, transfer or lease and, if a supplemental indenture is required in connection with such transaction, such supplemental indenture comply with this Article and that all conditions precedent herein provided for relating to such transaction have been complied with.
SECTION 802. Successor Substituted.
Upon any consolidation of any Issuer or any Guarantor with, or merger of any Issuer or any Guarantor into, any other Person or any conveyance, transfer or lease of the properties and assets of such Issuer or any Guarantor substantially as an entirety in accordance with Section 801, the successor Person formed by such consolidation or into which any Issuer or such Guarantor is merged or to which such conveyance, transfer or lease is made shall succeed to, and be substituted for, and may exercise every right and power of, such Issuer or such Guarantor, as the case may be, under this Indenture with the same effect as if such successor Person had been named as the Issuer of the relevant series of Securities or a Guarantor herein, as the case may be, and thereafter, except in the case of a lease, the predecessor Person shall be relieved of all obligations and covenants under this Indenture and the Securities.
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SECTION 803. Assumption by a Guarantor or Subsidiary of an Issuers Obligations.
Any Guarantor or any Subsidiary of a Guarantor may assume the obligations of any Issuer (or any Person which shall have previously assumed the obligations of such Issuer) for the due and punctual payment of the principal of (and premium, if any), interest on and any other payments with respect to the Securities and the performance of every covenant of this Indenture and the Securities on the part of such Issuer to be performed or observed, provided that:
(1) such Guarantor or Subsidiary, as the case may be, shall expressly assume such obligations by an indenture supplemental hereto, in form reasonably satisfactory to the Trustee, executed and delivered to the Trustee and if such Subsidiary assumes such obligations, the Guarantors shall, by such supplemental indenture, confirm that their Guarantees shall apply to such Subsidiarys obligations under the Securities and this Indenture, as modified by such supplemental indenture;
(2) such Guarantor or Subsidiary, as the case may be, shall agree in such supplemental indenture, to the extent provided in the Securities and subject to the limitations and exceptions set forth below, that if any deduction or withholding for any present or future taxes, assessments or other governmental charges of the jurisdiction (or any political subdivision or taxing authority thereof or therein) in which such Guarantor or such Subsidiary is incorporated shall at any time be required by such jurisdiction (or any such political subdivision or taxing authority) in respect of any amounts to be paid by such Guarantor or Subsidiary, as the case may be, to a Holder, who, with respect to any such taxes, assessments or other governmental charges, is not resident in such jurisdiction, such Guarantor or Subsidiary, as the case may be, will pay to the Holder of a Security such additional amounts of interest as may be necessary in order that the net amounts paid to the Holder of such Security, after such deduction or withholding, shall not be less than the amounts specified in such Security to which such Holder is entitled; provided, however , that such Guarantor or Subsidiary, as the case may be, shall not be required to make any payment of additional amounts (i) if the Holder is a United States Person, for or on account of any such tax, assessment or other governmental charge imposed by the United States or any political subdivision or taxing authority thereof or therein, (ii) for or on account of:
(a) any tax, assessment or other governmental charge which would not have been imposed but for (i) the existence of any present or former connection between such Holder (or between a fiduciary, settlor, beneficiary, member or shareholder of, or possessor of a power over, such Holder, if such Holder is an estate, trust, partnership or corporation) and the taxing jurisdiction or any political subdivision or territory or possession thereof or area subject to its jurisdiction including, without limitation, such Holder (or such fiduciary, settlor, beneficiary, member, shareholder or possessor) being or having been a citizen or resident thereof or being or having been present or engaged in trade or business therein or having or having had a permanent establishment therein or (ii) the presentation of a Security (where presentation is required) for payment on a date more than 30 days after the date on which such payment became due and payable or the date on which payment thereof is duly provided for, whichever occurs later;
(b) any estate, inheritance, gift, sale, transfer, personal property or similar tax, assessment or other governmental charge;
(c) any tax, assessment or other governmental charge which is payable otherwise than by withholding from payments of (or in respect of) principal of, premium, if any, or any interest on, the Securities;
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(d) any tax, assessment or other governmental charge that is imposed or withheld by reason of the failure to comply by the Holder or the beneficial owner of Securities with a request of such Subsidiary or any Guarantor addressed to the Holder (i) to provide information concerning the nationality, residence or identity of the Holder or such beneficial owner or (ii) to make any declaration or other similar claim or satisfy any information or reporting requirement, which, in the case of (i) or (ii), is required or imposed by a statute, treaty, regulation or administrative practice of the taxing jurisdiction as a precondition to exemption from all or part of such tax, assessment or other governmental charge;
(e) in the case of a payment made by Rio Tinto plc under the Guarantees or a payment by Rio Tinto Finance (USA) plc, any tax, assessment or other governmental charge imposed as a result of the Security being presented for payment in the United Kingdom unless presentment could not have been made elsewhere;
(f) any withholding or deduction imposed on a payment to an individual which is required to be made pursuant to any law implementing European Council Directive 2003/48/EC on the taxation of savings income or any other Directive implementing the conclusions of ECOFIN Council meeting of November 26-27, 2000 or any law implementing or complying with, or introduced in order to conform to, such Directive;
(g) any withholding or deduction required to be made with respect to a Security presented for payment by or on behalf of a Holder of such Security who would have been able to avoid such withholding or deduction by presenting the relevant Security to another Paying Agent in a member state of the European Union; or
(h) any withholding or deduction required to be paid on the interest (as defined in Section 128A(IAB) of the Income Tax Assessment Act of 1936 of Australia (the Australian Tax Act) and which, among other things, includes amounts in the nature of, or in substitution for, interest) payable on the debt security because the Holder of a Security is an associate of Rio Tinto Finance (USA) Limited (as that term is defined in section 128F(9) of the Australian Tax Act);
(i) any withholding or deduction for which a determination is made by the Australian Commissioner of Taxation that the withholding or deduction is payable because the Holder has participated in a scheme to avoid withholding tax provided that neither any Issuer nor any Guarantor participated in or was a party to such scheme; or
(j) any combination of items (a), (b), (c), (d), (e), (f), (g), (h) or (i);
nor shall additional amounts be paid with respect to any payment of the principal of, premium, if any, or any interest on any Security to any Holder who is a fiduciary or partnership or other than the sole beneficial owner of such payment to the extent such payment would be required by the laws of such jurisdiction (or any political subdivision or taxing authority thereof or therein) to be included in the income for tax purposes of a beneficiary or settlor with respect to such fiduciary or a member of such partnership or a beneficial owner who would not have been entitled to such additional amounts had it been the Holder of the Security;
(3) immediately after giving effect to such transaction, no Event of Default, and no event which, after notice or lapse of time or both, would become an Event of Default, shall have occurred and be continuing; and
(4) such Guarantor or Subsidiary, as the case may be, shall have delivered to the Trustee an Officers Certificate and an Opinion of Counsel, each stating that such assumption and such supplemental indenture comply with this Article and that all conditions precedent herein provided for relating to such transaction have been complied with.
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Upon any such assumption, such Guarantor or Subsidiary shall succeed to, and be substituted for, and may exercise every right and power of, the Issuer of the relevant series of Securities under this Indenture with the same effect as if such Guarantor or Subsidiary had been named as such Issuer herein, and the applicable Person named as such Issuer in the first paragraph of this instrument or any successor Person which shall theretofore have become such in the manner prescribed in this Article shall be released from its liability as obligor upon the Securities.
ARTICLE NINE
SUPPLEMENTAL INDENTURES
SECTION 901. Supplemental Indentures Without Consent of Holders.
Without the consent of any Holders, any Issuer or any Guarantor, each when authorized by a Board Resolution, and the Trustee, at any time and from time to time, may enter into one or more indentures supplemental hereto, in form satisfactory to the Trustee, for any of the following purposes:
(1) to evidence the succession of another Person to any Issuer or any Guarantor and the assumption by any such successor of the covenants of such Issuer or any Guarantor herein and in the Securities or Guarantees; or
(2) to add to the covenants of the Issuer of the relevant series of Securities for the benefit of the Holders of all or any series of Securities (and if such covenants are to be for the benefit of less than all series of Securities, stating that such covenants are expressly being included solely for the benefit of such series) or to surrender any right or power herein conferred upon any Issuer or any Guarantor; or
(3) to add any additional Events of Default for the benefit of the Holders of all or any series of Securities (and if such additional Events of Default are to be for the benefit of less than all series of Securities, stating that such additional Events of Default are expressly being included solely for the benefit of such series); or
(4) to add to or change any of the provisions of this Indenture to such extent as shall be necessary to permit or facilitate the issuance of Securities in bearer form, registrable or not registrable as to principal, and with or without interest coupons, or to permit or facilitate the issuance of Securities in uncertificated form; or
(5) to add to, change or eliminate any of the provisions of this Indenture in respect of one or more series of Securities, provided that any such addition, change or elimination (A) shall neither (i) apply to any Security of any series created prior to the execution of such supplemental indenture and entitled to the benefit of such provision nor (ii) modify the rights of the Holder of any such Security with respect to such provision or (B) shall become effective only when there is no such Security Outstanding; or
(6) to secure the Securities; or
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(7) to establish the form or terms of Securities of any series as permitted by Sections 201 and 301; or
(8) to evidence and provide for the acceptance of appointment hereunder by a successor Trustee with respect to the Securities of one or more series and to add to or change any of the provisions of this Indenture as shall be necessary to provide for or facilitate the administration of the trusts hereunder by more than one Trustee, pursuant to the requirements of Section 611; or
(9) to cure any ambiguity, to correct or supplement any provision herein which may be defective or inconsistent with any other provision herein, or to make any other provisions with respect to matters or questions arising under this Indenture, provided that such action pursuant to this Clause (9) shall not adversely affect the interests of the Holders of Securities of any series in any material respect.
SECTION 902. Supplemental Indentures With Consent of Holders.
With the consent of the Holders of not less than a majority in principal amount of the Outstanding Securities of each series affected by such supplemental indenture, by Act of said Holders delivered to the Issuer of the relevant series of Securities, the Guarantors and the Trustee, such Issuer or any Guarantor, each when authorized by a Board Resolution, and the Trustee may enter into an indenture or indentures supplemental hereto for the purpose of adding any provisions to or changing in any manner or eliminating any of the provisions of this Indenture or of modifying in any manner the rights of the Holders of Securities of such series under this Indenture; provided, however , that no such supplemental indenture shall, without the consent of the Holder of each Outstanding Security affected thereby,
(1) change the Stated Maturity of the principal of, or any installment of principal of or interest on, any Security, or reduce the principal amount thereof or the rate of interest thereon or any premium payable upon the redemption thereof, or change any obligation of any Issuer or any Guarantor to pay additional amounts pursuant to Section 1004 (except as contemplated by Section 801(1) and permitted by Section 901(1) or reduce the amount of the principal of an Original Issue Discount Security or any other Security which would be due and payable upon a declaration of acceleration of the Maturity thereof pursuant to Section 502, or change any Place of Payment where, or the coin or currency in which, any Security or any premium or interest thereon is payable, or impair the right to institute suit for the enforcement of any such payment on or after the Stated Maturity thereof (or, in the case of redemption, on or after the Redemption Date), or
(2) reduce the percentage in principal amount of the Outstanding Securities of any series, the consent of whose Holders is required for any such supplemental indenture, or the consent of whose Holders is required for any waiver (of compliance with certain provisions of this Indenture or certain defaults hereunder and their consequences) provided for in this Indenture, or
(3) change any obligation of any Issuer or any Guarantor to maintain an office or agency in the places and for the purposes specified in Section 1002, or
(4) modify any of the provisions of this Section, Section 513 or Section 1009, except to increase any such percentage or to provide that certain other provisions of this Indenture cannot be modified or waived without the consent of the Holder of each Outstanding Security affected thereby; provided, however , that this clause shall not be deemed to require the
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consent of any Holder with respect to changes in the references to the Trustee and concomitant changes in this Section and Section 1009, or the deletion of this proviso, in accordance with the requirements of Sections 611 and 901(8), or
(5) modify or affect in any manner adverse to the interests of the Holders of any Securities the terms and conditions of the obligations of any Guarantor in respect of the due and punctual payment of the principal thereof (and, premium, if any) and interest, if any, thereon or any sinking fund payments provided in respect thereof.
A supplemental indenture which changes or eliminates any covenant or other provision of this Indenture which has expressly been included solely for the benefit of one or more particular series of Securities, or which modifies the rights of the Holders of Securities of such series with respect to such covenant or other provision, shall be deemed not to affect the rights under this Indenture of the Holders of Securities of any other series.
It shall not be necessary for any Act of Holders under this Section to approve the particular form of any proposed supplemental indenture, but it shall be sufficient if such Act shall approve the substance thereof.
SECTION 903. Execution of Supplemental Indentures.
In executing, or accepting the additional trusts created by, any supplemental indenture permitted by this Article or the modifications thereby of the trusts created by this Indenture, the Trustee shall be entitled to receive, and (subject to Section 601) shall be fully protected in relying upon, in addition to the documents required by Section 102, an Opinion of Counsel stating that the execution of such supplemental indenture is authorized or permitted by this Indenture. The Trustee may, but shall not be obligated to, enter into any such supplemental indenture which affects the Trustees own rights, duties or immunities under this Indenture or otherwise.
SECTION 904. Effect of Supplemental Indentures.
Upon the execution of any supplemental indenture under this Article, this Indenture shall be modified in accordance therewith, and such supplemental indenture shall form a part of this Indenture for all purposes; and every Holder of Securities theretofore or thereafter authenticated and delivered hereunder shall be bound thereby.
SECTION 905. Conformity with Trust Indenture Act.
Every supplemental indenture executed pursuant to this Article shall conform to the requirements of the Trust Indenture Act.
SECTION 906. Reference in Securities to Supplemental Indentures.
Securities of any series authenticated and delivered after the execution of any supplemental indenture pursuant to this Article may, and shall if required by the Trustee, bear a notation in form approved by the Trustee as to any matter provided for in such supplemental indenture. If the Issuer of the relevant series of Securities and the Guarantors shall so determine, new Securities of any series so modified as to conform, in the opinion of the Trustee and such Issuer and the Guarantors, to any such supplemental indenture may be prepared and executed by
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such Issuer, the Guarantees of the Guarantors may be endorsed thereon and such securities may be authenticated and delivered by the Trustee in exchange for Outstanding Securities of such series.
ARTICLE TEN
COVENANTS
SECTION 1001. Payment of Principal, Premium and Interest.
Each Issuer covenants and agrees for the benefit of the Holders of each series of Securities issued by it that it will duly and punctually pay the principal of and any premium and interest on the Securities of that series in accordance with the terms of the Securities and this Indenture.
SECTION 1002. Maintenance of Office or Agency.
Each Issuer will maintain in each Place of Payment for any series of Securities issued by it an office or agency where Securities of that series may be presented or surrendered for payment, where Securities of that series may be surrendered for registration of transfer or exchange and where notices and demands to or upon such Issuer in respect of the Securities of that series and this Indenture may be served.
The Issuer of the relevant series of Securities and the Guarantors will give prompt written notice to the Trustee of the location, and any change in the location, of such office or agency. If at any time any Issuer or any Guarantor shall fail to maintain any such required office or agency or shall fail to furnish the Trustee with the address thereof, such presentations, surrenders, notices and demands may be made or served at the Corporate Trust Office of the Trustee, and such Issuer and the Guarantors each hereby appoints the Trustee as its agent to receive all such presentations, surrenders, notices and demands.
Each Issuer may also from time to time designate one or more other offices or agencies where the Securities of one or more series issued by it may be presented or surrendered for any or all such purposes and may from time to time rescind such designations; provided, however , that no such designation or rescission shall in any manner relieve such Issuer of its obligation to maintain an office or agency in each Place of Payment for Securities of any series for such purposes. The Issuer of the relevant series of Securities will give prompt written notice to the Trustee of any such designation or rescission and of any change in the location of any such other office or agency.
SECTION 1003. Money for Securities Payments to Be Held in Trust.
If any Issuer or any Guarantor shall at any time act as its own Paying Agent with respect to any series of Securities, it will, on or before each due date of the principal of or any premium or interest on any of the Securities of that series, segregate and hold in trust for the benefit of the Persons entitled thereto a sum sufficient to pay the principal and any premium and interest so becoming due until such sums shall be paid to such Persons or otherwise disposed of as herein provided and will promptly notify the Trustee of its action or failure so to act.
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Whenever an Issuer shall have one or more Paying Agents for any series of Securities issued by it, it will, prior to each due date of the principal of or any premium or interest on any Securities of that series, deposit with a Paying Agent a sum sufficient to pay such amount, such sum to be held as provided by the Trust Indenture Act, and (unless such Paying Agent is the Trustee) such Issuer will promptly notify the Trustee of its action or failure so to act.
Each Issuer will cause each Paying Agent for any series of Securities issued by it other than the Trustee to execute and deliver to the Trustee an instrument in which such Paying Agent shall agree with the Trustee, subject to the provisions of this Section, that such Paying Agent will (1) comply with the provisions of the Trust Indenture Act applicable to it as a Paying Agent and (2) during the continuance of any default by the Issuer of such Securities (or any other obligor upon the Securities of that series) in the making of any payment in respect of the Securities of that series, upon the written request of the Trustee, forthwith pay to the Trustee all sums held in trust by such Paying Agent for payment in respect of the Securities of that series.
Each Issuer may at any time, for the purpose of obtaining the satisfaction and discharge of this Indenture or for any other purpose, pay, or by Company Order direct any Paying Agent to pay, to the Trustee all sums held in trust by such Issuer or such Paying Agent, such sums to be held by the Trustee upon the same trusts as those upon which such sums were held by such Issuer or such Paying Agent; and, upon such payment by any Paying Agent to the Trustee, such Paying Agent shall be released from all further liability with respect to such money.
Any money deposited with the Trustee or any Paying Agent, or then held by any Issuer or any Guarantor, in trust for the payment of the principal of or any premium or interest on any Security of any series and remaining unclaimed for two years after such principal, premium or interest has become due and payable shall be paid to the Issuer of such Security on Company Request, or (if then held by such Issuer or a Guarantor) shall be discharged from such trust; and the Holder of such Security shall thereafter, as an unsecured general creditor, look only to such Issuer and the Guarantors for payment thereof, and all liability of the Trustee or such Paying Agent with respect to such trust money, and all liability of such Issuer as trustee thereof, shall thereupon cease; provided, however , that the Trustee or such Paying Agent, before being required to make any such repayment, may at the expense of such Issuer cause to be published once, in an Authorized Newspaper, notice that such money remains unclaimed and that, after a date specified therein, which shall not be less than 30 days from the date of such publication, any unclaimed balance of such money then remaining will be repaid to such Issuer.
SECTION 1004. Additional Amounts.
If the Securities of a series provide for the payment of additional amounts, all payments of, or in respect of, principal of and any premium and interest on such Securities, and all payments pursuant to any Guarantee on such Securities shall be made without any deduction or withholding for, or on account of, any present or future taxes, duties, assessments or other governmental charges of whatever nature imposed or levied by or on behalf of the jurisdiction (or any political subdivision or taxing authority thereof or therein) in which the Issuer of such Securities or (as the case may be) any Guarantor is incorporated unless such taxes, duties, assessments or other governmental charges are required by such jurisdiction (or any such subdivision or taxing authority thereof or therein) to be withheld or deducted. In that event, such Issuer or such Guarantor, as applicable, will pay to the Holder of a Security such additional amounts as may be necessary in order that the net amounts paid to the Holder of such Security who, with respect to any such tax, assessment, or other governmental charge, is not resident in such jurisdiction, after such
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deduction or withholding, shall be not less than the amounts specified in such Security to which such Holder is entitled; provided however , that such Issuer or such Guarantor shall not be required to make any payment of additional amounts (i) if the Holder is a United States Person for or on account of any such tax, assessment or other governmental charge imposed by the United States or any political subdivisions or taxing authority thereof or therein, (ii) for or on account of:
(a) any tax, assessment or other governmental charge which would not have been imposed but for (i) the existence of any present or former connection between such Holder (or between a fiduciary, settlor, beneficiary, member or shareholder of, or possessor of a power over, such Holder, if such Holder is an estate, trust, partnership or corporation) and the taxing jurisdiction or any political subdivision or territory or possession thereof or area subject to its jurisdiction, including, without limitation, such Holder (or such fiduciary, settlor, beneficiary, member, shareholder or possessor) being or having been a citizen or resident thereof or being or having been present or engaged in trade or business therein or having or having had a permanent establishment therein or (ii) the presentation of a Security (where presentation is required) for payment on a date more than 30 days after the date on which such payment became due and payable or the date on which payment thereof is duly provided for, whichever occurs later;
(b) any estate, inheritance, gift, sale, transfer, personal property or similar tax, assessment or other governmental charge;
(c) any tax, assessment, or other governmental charge which is payable otherwise than by withholding from payments of (or in respect of) principal of, premium, if any, or interest on, the Securities;
(d) any tax, assessment or other governmental charge that is imposed or withheld by reason of the failure to comply by the Holder or the beneficial owner of a Security with a request of the Issuer of such Security or the applicable Guarantor addressed to the Holder (i) to provide information concerning the nationality, residence or identity of the Holder or such beneficial owner or (ii) to make any declaration or other similar claim or satisfy any information or reporting requirement, which, in the case of (i) or (ii), is required or imposed by a statute, treaty, regulation or administrative practice of the taxing jurisdiction as a precondition to exemption from all or part of such tax, assessment or other governmental charge;
(e) in the case of a payment made by Rio Tinto plc under the Guarantees or a payment by Rio Tinto Finance (USA) plc, any tax, assessment or other governmental charge imposed as a result of the Security being presented for payment in the United Kingdom unless presentment could not have been made elsewhere;
(f) any withholding or deduction imposed on a payment to an individual which is required to be made pursuant to any law implementing European Council Directive 2003/48/EC on the taxation of savings income or any other Directive implementing the conclusions of ECOFIN Council meeting of November 26-27, 2000 or any law implementing or complying with, or introduced in order to conform to, such Directive;
(g) any withholding or deduction required to be made with respect to a Security presented for payment by or on behalf of a Holder of such Security who would have been able to avoid such withholding or deduction by presenting the relevant Security to another Paying Agent in a member state of the European Union; or
(h) any withholding or deduction required to be paid on the interest (as defined in Section 128A(IAB) of the Income Tax Assessment Act of 1936 of Australia (the Australian Tax
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Act) and which, among other things, includes amounts in the nature of, or in substitution for, interest) payable on the debt security because the Holder of a Security is an associate of Rio Tinto Finance (USA) Limited (as that term is defined in section 128F(9) of the Australian Tax Act);
(i) any withholding or deduction for which a determination is made by the Australian Commissioner of Taxation that the withholding or deduction is payable because the Holder has participated in a scheme to avoid withholding tax provided that neither the Issuer of the relevant series of Securities nor any Guarantor participated in or was a party to such scheme; or
(j) any combination of items (a), (b), (c), (d), (e), (f), (g), (h) or (i);
nor shall additional amounts be paid with respect to any payment of the principal of, premium, if any or any interest on any Security to any Holder who is a fiduciary or partnership or other than the sole beneficial owner of such payment to the extent such payment would be required by the laws of the jurisdiction (or any political subdivision or taxing authority thereof or therein) to be included in the income for tax purposes of a beneficiary or settlor with respect to such fiduciary or a member of such partnership or a beneficial owner who would not have been entitled to such additional amounts had it been the Holder of the Security.
Whenever in this Indenture there is mentioned, in any context, the payment of the principal of or any premium or interest on, or in respect of, any Security of any series or the net proceeds received on the sale or exchange of any Security of any series, such mention shall be deemed to include mention of the payment of additional amounts provided for in this Section to the extent that, in such context, additional amounts are, were or would be payable in respect thereof pursuant to the provisions of this Section and express mention of the payment of additional amounts (if applicable) in any provisions hereof shall not be construed as excluding additional amounts in those provisions hereof where such express mention is not made.
If the Securities of a series provide for the payment of additional amounts, at least 10 days prior to the first Interest Payment Date with respect to that series of Securities (or if the Securities of that series will not bear interest prior to Maturity, the first day on which a payment of principal and any premium is made), and at least 10 days prior to each date of payment of principal and any premium or interest if there has been any change with respect to the matters set forth in the below-mentioned Officers Certificate, the Issuer of such Securities will furnish the Trustee and such Issuers principal Paying Agent or Paying Agents, if other than the Trustee, with an Officers Certificate instructing the Trustee and such Paying Agent or Paying Agents whether such payment of principal of and any premium or interest on the Securities of that series shall be made to Holders of Securities of that series without withholding for or on account of any tax, assessment or other governmental charge described in the Securities of that series. If any such withholding shall be required, then such Officers Certificate shall specify by country the amount, if any, required to be withheld on such payments to such Holders of Securities and the Issuer of such Securities or the Guarantor, as the case may be, will pay to the Trustee or such Paying Agent or Paying Agents the additional amounts required by this Section. Each Issuer and the Guarantors covenant to indemnify the Trustee and any Paying Agent for, and to hold them harmless against, any loss, liability or expense reasonably incurred without negligence or bad faith on their part arising out of or in connection with actions taken or omitted by any of them in reliance on any Officers Certificate furnished pursuant to this Section.
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SECTION 1005. Statement by Officers as to Default.
The Issuers and the Guarantors each will deliver to the Trustee, within 120 days after the end of each fiscal year of the Issuer of the relevant series of Securities or applicable Guarantor ending after the date hereof, an Officers Certificate, stating whether or not to the best knowledge of the signers thereof such Issuer or such Guarantor, as the case may be, is in default in the performance and observance of any of the terms, provisions and conditions of this Indenture (without regard to any period of grace or requirement of notice provided hereunder) and, if the Issuer of such Securities or applicable Guarantor shall be in default, specifying all such defaults and the nature and status thereof of which they may have knowledge.
SECTION 1006. Existence.
Subject to Article Eight, each Issuer and each Guarantor will do or cause to be done all things necessary to preserve and keep in full force and effect its corporate existence.
SECTION 1007. Limitations on Liens.
So long as any of the Securities of a particular series of debt securities are Outstanding, the Guarantors shall not, and the Guarantors shall not permit the Issuer of such series to, create or permit to subsist any Encumbrance upon any of their respective Property (whether owned as of the date of this Indenture or thereafter acquired) to secure any present or future indebtedness for borrowed money without making, or causing the Issuer of such Securities to make, effective provision whereby all the Securities shall be directly secured equally and ratably with such indebtedness for borrowed money, so long as such indebtedness for borrowed money shall be so secured; provided, however , that the above shall not apply to:
(1) any Encumbrance existing as of the date of issuance of that series of debt securities;
(2) any Encumbrance arising by operation of law and not as a result of any act or omission on the part of such Issuer or any Guarantor;
(3) judgment Encumbrances not giving rise to an Event of Default;
(4) any Encumbrance created on any Property (or documents of title thereto) acquired after the date of issuance of that series of debt securities for the sole purpose of financing or refinancing or securing the cost of that acquisition so long as the principal moneys thereby secured do not exceed the cost of that acquisition;
(5) any Encumbrances over any Property (or documents of title thereto) which is acquired by any Guarantor or such Issuer subject to such Encumbrance;
(6) any Encumbrance over assets and/or (where such assets comprise substantially the whole of the assets of the owner thereof) shares or stock in the owner of such assets securing Project Finance Borrowing to finance the costs of developing, or acquiring and developing, such assets;
(7) any Encumbrance over any Property (including any improvements on or to an existing Property) developed, constructed or improved after the date of issuance of that series of debt securities by any Guarantor or such Issuer to secure the payment of all or any part of the cost of development or construction of or improvement on or to such Property or to secure
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indebtedness incurred by any Guarantor or such Issuer for the purpose of financing all or any part of the cost of development or construction thereof or of improvements thereon or thereto so long as the principal moneys thereby secured do not exceed the higher of cost or fair market value of that development, construction or improvement;
(8) any Encumbrance arising solely by operation of law over any credit balance or cash held in any account with a financial institution;
(9) any Encumbrance arising in transactions entered into or established for the benefit of any Guarantor and/or such Issuer in connection with: the operation of cash management programs, other payment netting arrangements, derivatives transactions (including swaps, caps, collars, options, futures transactions, forward rate agreements and foreign exchange transactions and any other similar transaction (including any option with respect to any of the foregoing) and any combination of any of the foregoing), other normal banking transactions or in the ordinary course of letter of credit transactions;
(10) any Encumbrance securing indebtedness of any Guarantor or such Issuer for borrowed money incurred in connection with the financing of accounts receivable;
(11) any Encumbrance arising in the ordinary course of dealings in base and precious metals, other minerals, petroleum or any other materials whatsoever;
(12) any Encumbrance incurred or deposits made in the ordinary course of business, including, but not limited to, (a) any mechanics, materialmens, carriers, workmens, vendors or other like Encumbrances, (b) any Encumbrances securing amounts in connection with workers compensation, unemployment insurance and other types of social security, and (c) any easements, right-of-way, restrictions and other similar charges;
(13) any Encumbrance securing the whole or any part of the interest of any Guarantor or such Issuer in any Joint Venture, including the revenues and assets derived by any Guarantor or such Issuer from such Joint Venture or employed by any Guarantor or such Issuer in such Joint Venture, which is in favor of its co-venturers and/or the manager or operator (including any person for the time being fulfilling any of the functions of a manager or operator) as security for the due payment of amounts payable under or in respect of such Joint Venture;
(14) any Encumbrance upon specific items of inventory or other goods and proceeds of such inventory or other goods of any Guarantor or such Issuer securing any Guarantors or such Issuers obligations in respect of bankers acceptances, issued or created for the account of such person to facilitate the purchase, shipment or storage of such inventory or other goods;
(15) any Encumbrance incurred or deposits made securing the performance of tenders, bids, leases, statutory obligations, surety and appeal bonds, government contracts, performance and return-of-money bonds and other obligations of like nature incurred in the ordinary course of business;
(16) any Encumbrance on any Property of any Guarantor or such Issuer in favor of the Federal Government of the United States or the government of any State thereof, or the government of Australia, the United Kingdom, or the government of any member nation of the European Union, or any instrumentality of any of them, securing the obligations of any Guarantor or such Issuer pursuant to any contract or payments owed to such entity pursuant to applicable laws rules, regulations or statutes;
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(17) any Encumbrance securing taxes or assessments or other applicable governmental charges or levies;
(18) any Encumbrance securing industrial revenue, development or similar bonds issued by or for the benefit of any Guarantor or such Issuer, provided that such industrial revenue, development or similar bonds are non-recourse to any Guarantor or such Issuer;
(19) the sale or other transfer of (a) any minerals in place, or for the future production of, for a period of time until, or in any amount such that, the purchaser will realize therefrom a specified amount of money (however determined) or a specified amount of such minerals, or (b) any other interest in property of the character commonly referred to as a production payment;
(20) Encumbrances in favor of any Guarantor or any Subsidiary of any Guarantor;
(21) any Encumbrance securing indebtedness for which any Guarantor or such Issuer has paid money or deposited securities with a trustee or depositary in an amount designed to pay or discharge in full any liability in respect of such indebtedness; and
(22) any extension, renewal or replacement (or successive extensions, renewals or replacements), as a whole or in part, of any Encumbrance referred to in clauses (1) to (21), inclusive, for amounts not exceeding the principal amount of the borrowed money secured by the Encumbrance so extended, renewed or replaced, provided that such extension, renewal or replacement Encumbrance is limited to all or a part of the same Property (or documents of title thereto) that secured the Encumbrance extended, renewed or replaced (plus improvements on such Property).
Notwithstanding the foregoing, any Guarantor and any Issuer may create or permit to subsist Encumbrances over any of their respective Property so long as the aggregate amount of indebtedness for borrowed money secured by all Encumbrances (excluding therefrom the amount of the indebtedness secured by Encumbrances set forth in clauses (1) through (21), inclusive, above) does not exceed 10% of the Consolidated Net Worth plus Minorities of the Guarantors. Nothing herein shall restrict the ability of any Subsidiaries of any Guarantor (other than the Issuer of the relevant series of Securities) to create or permit to subsist Encumbrances over any of their respective Property.
For purposes of this Section 1007, the following shall not be deemed to be Encumbrances securing indebtedness and, accordingly, nothing contained in this section shall prevent, restrict or apply to (i) any acquisition by any Guarantor or any Issuer of any property or assets subject to any reservation or exception under the terms of which any vendor, lessor or assignor creates, reserves or excepts or has created, reserved or excepted an interest in gold, copper, iron ore, bauxite, uranium, coal or any other metal or minerals in place or the proceeds thereof; (ii) any conveyance or assignment under the terms of which any Guarantor or any Issuer conveys or assigns to any Person or Persons an interest in gold, copper, iron ore, bauxite, uranium, coal or any other metals or minerals in place or the proceeds thereof; or (iii) any Encumbrance upon any property or assets owned or leased by any Guarantor or any Issuer or in which any Guarantor or any Issuer owns an interest to secure to the Person or Persons paying the expenses of developing or conducting operations for the recovery, storage, transportation or sale of the metals or mineral resources of the said property (or property with which it is unitized) the payment to such Person or Persons of the proportionate part of such development or operating expense of applicable Guarantors or by the Issuer of the relevant series of Securities.
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SECTION 1008. Limitation on Sales and Leasebacks.
So long as any of the Securities of a particular series of debt securities are Outstanding, the Guarantors shall not, and shall not permit the Issuer of such series to, enter into any arrangement with any bank, insurance company or other lender or investor (not including any Guarantor or any Subsidiary), or to which any such lender or investor is a party, providing for the leasing by any Guarantor or such Issuer for a period including renewals, in excess of three years of any Property which has been owned by any Guarantor or such Issuer for more than 270 days and which has been or is to be sold or transferred by any Guarantor or such Issuer to such lender or investor or to any Person to whom funds have been or are to be advanced by such lender or investor on the security of such Property (herein referred to as a sale and leaseback transaction) unless:
(1) a Guarantor or such Issuer could create indebtedness secured by an Encumbrance pursuant to Section 1007 on the Property to be leased back in an amount equal to the indebtedness attributable to such sale and leaseback transaction without equally and ratably securing the Securities; or
(2) a Guarantor or such Issuer, within one year after the sale or transfer shall have been made by a Guarantor or such Issuer, applies an amount equal to the greater of (i) the net proceeds of the sale of the Property sold and leased back pursuant to such arrangement and (ii) the fair market value of the Property so sold and leased back at the time of entering into such arrangement (as determined by any two Directors of such Guarantor) to (A) the retirement of indebtedness for money borrowed, incurred or assumed by such Guarantor or such Issuer which by its terms matures at, or is extendible or renewable at the option of the obligor to, a date more than twelve months after the date of incurring, assuming or guaranteeing such indebtedness or (B) investment in any Property of such Guarantor or such Issuer.
Nothing herein shall restrict the ability of any Subsidiaries of any Guarantor (other than the Issuers) to enter into sale and leaseback transactions.
SECTION 1009. Waiver of Certain Covenants.
Except as otherwise specified as contemplated by Section 301 for Securities of such series, the Issuer of such Securities and the Guarantors may, with respect to the Securities of any series, omit in any particular instance to comply with any term, provision or condition set forth in any covenant provided pursuant to Section 301(19), 901(2) or 901(7) for the benefit of the Holders of such series or in any of Sections 1004, 1007 or 1008 if before the time for such compliance the Holders of at least a majority in principal amount of the Outstanding Securities of such series shall, by Act of such Holders, either waive such compliance in such instance or generally waive compliance with such term, provision or condition, but no such waiver shall extend to or affect such term, provision or condition except to the extent so expressly waived, and, until such waiver shall become effective, the obligations of such Issuer and the Guarantors and the duties of the Trustee in respect of any such term, provision or condition shall remain in full force and effect. The Issuers shall give the Trustee written notice of any waiver of any covenant and in any event not later than five (5) Business Days after such waiver has occurred. In the absence of such notice, the Trustee shall assume that all covenants apply and are in full force and effect.
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ARTICLE ELEVEN
REDEMPTION OF SECURITIES
SECTION 1101. Applicability of Article.
Securities of any series which are redeemable before their Stated Maturity shall be redeemable in accordance with their terms and (except as otherwise specified as contemplated by Section 301 for such Securities) in accordance with this Article.
SECTION 1102. Election to Redeem; Notice to Trustee.
The election of an Issuer to redeem any Securities shall be evidenced by a Board Resolution or in another manner specified as contemplated by Section 301 for such Securities. In case of any redemption at the election of an Issuer, the Issuer of the relevant series of Securities shall, at least 60 days prior to the Redemption Date fixed by such Issuer (unless a shorter notice shall be satisfactory to the Trustee), notify the Trustee of such Redemption Date, of the principal amount of Securities of such series to be redeemed and, if applicable, of the tenor of the Securities to be redeemed. In the case of any redemption of Securities prior to the expiration of any restriction on such redemption provided in the terms of such Securities or elsewhere in this Indenture, the Issuer of such Securities shall furnish the Trustee with an Officers Certificate evidencing compliance with such restriction.
SECTION 1103. Selection by Trustee of Securities to Be Redeemed.
If less than all the Securities of any series are to be redeemed (unless all the Securities of such series and of a specified tenor are to be redeemed or unless such redemption affects only a single Security), the particular Securities to be redeemed shall be selected not more than 60 days prior to the Redemption Date by the Trustee, from the Outstanding Securities of such series not previously called for redemption, by such method as the Trustee shall deem fair and appropriate and which may provide for the selection for redemption of a portion of the principal amount of any Security of such series, provided that the unredeemed portion of the principal amount of any Security shall be in an authorized denomination (which shall not be less than the minimum authorized denomination) for such Security. If less than all the Securities of such series and of a specified tenor are to be redeemed (unless such redemption affects only a single Security), the particular Securities to be redeemed shall be selected not more than 60 days prior to the Redemption Date by the Trustee, from the Outstanding Securities of such series and specified tenor not previously called for redemption in accordance with the preceding sentence.
The Trustee shall promptly notify the Issuer of the relevant series of Securities in writing of the Securities selected for redemption as aforesaid and, in case of any Securities selected for partial redemption as aforesaid, the principal amount thereof to be redeemed.
The provisions of the two preceding paragraphs shall not apply with respect to any redemption affecting only a single Security, whether such Security is to be redeemed in whole or in part. In the case of any such redemption in part, the unredeemed portion of the principal amount of the Security shall be in an authorized denomination (which shall not be less than the minimum authorized denomination) for such Security.
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For all purposes of this Indenture, unless the context otherwise requires, all provisions relating to the redemption of Securities shall relate, in the case of any Securities redeemed or to be redeemed only in part, to the portion of the principal amount of such Securities which has been or is to be redeemed.
SECTION 1104. Notice of Redemption.
Notice of redemption shall be given by first-class mail, postage prepaid, mailed not less than 30 nor more than 60 days prior to the Redemption Date, to each Holder of Securities to be redeemed, at his address appearing in the Security Register.
All notices of redemption shall identify the Securities to be redeemed (indicating CUSIP Number, if any) and shall state:
(1) the Redemption Date,
(2) the Redemption Price plus accrued interest, if any,
(3) if less than all the Outstanding Securities of any series consisting of more than a single Security are to be redeemed, the identification (and, in the case of partial redemption of any such Securities, the principal amounts) of the particular Securities to be redeemed and, if less than all the Outstanding Securities of any series consisting of a single Security are to be redeemed, the principal amount of the particular Security to be redeemed,
(4) that on the Redemption Date the Redemption Price, plus accrued interest, if any, will become due and payable upon each such Security to be redeemed and, if applicable, that interest thereon will cease to accrue on and after said date,
(5) the place or places where each such Security is to be surrendered for payment of the Redemption Price, plus accrued interest, if any, and
(6) that the redemption is for a sinking fund, if such is the case.
Notice of redemption of Securities to be redeemed at the election of an Issuer shall be given by the Issuer of such Securities or, at such Issuers request, by the Trustee in the name and at the expense of such Issuer and shall be irrevocable.
SECTION 1105. Deposit of Redemption Price.
Prior to 10:00 a.m., New York City time, on any Redemption Date, the Issuer of the relevant series of Securities shall deposit with the Trustee or with a Paying Agent (or, if such Issuer or any Guarantor is acting as its own Paying Agent, segregate and hold in trust as provided in Section 1003) an amount of money sufficient to pay the Redemption Price of, and (except if the Redemption Date shall be an Interest Payment Date) accrued interest on, all the Securities which are to be redeemed on that date.
SECTION 1106. Securities Payable on Redemption Date.
Notice of redemption having been given as aforesaid, the Securities so to be redeemed shall, on the Redemption Date, become due and payable at the Redemption Price therein specified, and from and after such date (unless the Issuer of such Securities shall default in the payment of the Redemption Price and accrued interest) such Securities shall cease to bear
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interest. Upon surrender of any such Security for redemption in accordance with said notice, such Security shall be paid by the Issuer of such Security at the Redemption Price, together with accrued interest to the Redemption Date; provided, however , that, unless otherwise specified as contemplated by Section 301, installments of interest on Securities whose Stated Maturity is on or prior to the Redemption Date will be payable to the Holders of such Securities, or one or more Predecessor Securities, registered as such at the close of business on the relevant Record Dates according to their terms and the provisions of Section 307.
If any Security called for redemption shall not be so paid upon surrender thereof for redemption, the principal and any premium shall, until paid, bear interest from the Redemption Date at the rate prescribed therefor in the Security.
SECTION 1107. Securities Redeemed in Part.
Any Security which is to be redeemed only in part shall be surrendered at a Place of Payment therefor (with, if the Issuer of such Security or the Trustee so requires, due endorsement by, or a written instrument of transfer in form satisfactory to such Issuer and the Trustee duly executed by, the Holder thereof or his attorney duly authorized in writing), and such Issuer shall execute, and the Trustee shall authenticate and make available for delivery to the Holder of such Security without service charge, a new Security or Securities of the same series and of like tenor, of any authorized denomination as requested by such Holder, in aggregate principal amount equal to and in exchange for the unredeemed portion of the principal of the Security so surrendered.
SECTION 1108. Optional Redemption Due to Changes in Tax Treatment.
Each series of Securities may be redeemed at the option of the Issuer of such series or any Guarantor (or any Subsidiary of any Guarantor which has assumed such Issuers obligations pursuant to Section 803 of this Indenture) in whole but not in part at any time (except in the case of Securities that have a variable rate of interest, which may be redeemed on any Interest Payment Date) at a redemption price equal to the principal amount thereof plus accrued interest to the date fixed for redemption (except in the case of Outstanding Original Issue Discount Securities which may be redeemed at the Redemption Price specified by the terms of such series of Securities) if, as a result of any change in or amendment to the laws or any regulations or rulings promulgated thereunder of the jurisdiction (or of any political subdivision or taxing authority thereof or therein) in which the Issuer of such Securities or any Guarantor (or, in the case of any Subsidiary of any Guarantor which has assumed such Issuers obligations pursuant to Section 803 of this Indenture, such Subsidiary) is incorporated or any change in the official application or interpretation of such laws, regulations or rulings, or any change in the official application or interpretation of, or any execution of or amendment to, any treaty or treaties affecting taxation to which such jurisdiction (or such political subdivision or taxing authority) is a party, which change, execution or amendment becomes effective on or after the date specified for such series pursuant to Section 301(7) (or in the case of an assumption of an Issuers obligations by any Subsidiary pursuant to Section 803, becomes effective after the date of such assumption), (i) such Issuer or the relevant Guarantor (or such Subsidiary) is or would be required to pay additional amounts with respect to the Securities or the Guarantees, as the case may be, as described in Section 205 or Section 301(20) (or the supplemental indenture described in Section 803 of this Indenture) or (ii) the relevant Guarantor or any Subsidiary of any Guarantor is or would be required to deduct or withhold tax on any payment to such Issuer (or such Subsidiary) to enable such Issuer (or such Subsidiary) to make any payment of principal, premium, if any, or interest and, in each case, the payment of such additional
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amounts in the case of (i) above or such deductions or withholding in the case of (ii) above cannot be avoided by the use of any reasonable measures available to such Issuer, any Guarantor or the Subsidiary. Prior to the giving of notice of redemption of such Securities pursuant to this Indenture, the Issuer of such Securities or the relevant Guarantor (or such Subsidiary) will deliver to the Trustee an Officers Certificate, stating that such Issuer or the relevant Guarantor (or such Subsidiary) is entitled to effect such redemption and setting forth in reasonable detail a statement of circumstances showing that the conditions precedent to the right of such Issuer or the relevant Guarantor (or such Subsidiary) to redeem such Securities pursuant to this Section has been satisfied.
Further, if pursuant to Section 801(3) of this Indenture, a Person has been or would be required to pay any additional amounts as therein provided, each series of Securities may be redeemed at the option of such Person in whole, but not in part, at any time (except in the case of Securities that have a variable rate of interest, which may be redeemed on any Interest Payment Date), at a redemption price equal to the principal amount thereof plus accrued interest to the date fixed for redemption (except in the case of Outstanding Original Issue Discount Securities which may be redeemed at the Redemption Price specified by the terms of such series of Securities). Prior to the giving of notice of redemption of such Securities pursuant to this Indenture, such Person will deliver to the Trustee an Officers Certificate, stating that such Person is entitled to effect such redemption and setting forth in reasonable detail a statement of circumstances showing that the conditions precedent to the right of such Person to redeem such Securities pursuant to this Section has been satisfied.
ARTICLE TWELVE
SINKING FUNDS
SECTION 1201. Applicability of Article.
The provisions of this Article shall be applicable to any sinking fund for the retirement of Securities of any series except as otherwise specified as contemplated by Section 301 for such Securities.
The minimum amount of any sinking fund payment provided for by the terms of any Securities of any series is herein referred to as a mandatory sinking fund payment, and any payment in excess of such minimum amount provided for by the terms of such Securities is herein referred to as an optional sinking fund payment. If provided for by the terms of any Securities of any series, the cash amount of any sinking fund payment may be subject to reduction as provided in Section 1202. Each sinking fund payment shall be applied to the redemption of Securities as provided for by the terms of such Securities.
SECTION 1202. Satisfaction of Sinking Fund Payments with Securities.
The Issuer of the relevant series of Securities (1) may deliver Outstanding Securities of a series (other than any previously called for redemption) and (2) may apply as a credit Securities of a series which have been redeemed either at the election of the Issuer of such Securities pursuant to the terms of such Securities or through the application of permitted optional sinking fund payments pursuant to the terms of such Securities, in each case in satisfaction of all or any part of
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any sinking fund payment with respect to any Securities of such series required to be made pursuant to the terms of such Securities as and to the extent provided for by the terms of such Securities; provided that the Securities to be so credited have not been previously so credited. The Securities to be so credited shall be received and credited for such purpose by the Trustee at the Redemption Price, as specified in the Securities so to be redeemed, for redemption through operation of the sinking fund and the amount of such sinking fund payment shall be reduced accordingly.
SECTION 1203. Redemption of Securities for Sinking Fund.
Not less than 60 days prior to each sinking fund payment date for any Securities, the Issuer of such Securities will deliver to the Trustee an Officers Certificate specifying the amount of the next ensuing sinking fund payment for such Securities pursuant to the terms of such Securities, the portion thereof, if any, which is to be satisfied by payment of cash and the portion thereof, if any, which is to be satisfied by delivering and crediting Securities pursuant to Section 1202 and will also deliver to the Trustee any Securities to be so delivered. Not less than 50 days prior to each such sinking fund payment date, the Trustee shall select the Securities to be redeemed upon such sinking fund payment date in the manner specified in Section 1103 and cause notice of the redemption thereof to be given in the name of and at the expense of the Issuer of such Securities in the manner provided in Section 1104. Such notice having been duly given, the redemption of such Securities shall be made upon the terms and in the manner stated in Sections 1106 and 1107.
ARTICLE THIRTEEN
DEFEASANCE AND COVENANT DEFEASANCE
SECTION 1301. Option of Issuers or Guarantors to Effect Defeasance or Covenant Defeasance.
Any Issuer or any Guarantor may elect, at its option at any time, to have Section 1302 or Section 1303 applied to any Securities or any series of Securities, as the case may be, designated pursuant to Section 301 as being defeasible pursuant to such Section 1302 or 1303, in accordance with any applicable requirements provided pursuant to Section 301 and upon compliance with the conditions set forth below in this Article. Any such election shall be evidenced by a Board Resolution or in another manner specified as contemplated by Section 301 for such Securities.
SECTION 1302. Defeasance and Discharge.
Upon the exercise by an Issuer or any Guarantor of its option (if any) to have this Section applied to any Securities or any series of Securities, as the case may be, the Issuer of such Securities and the Guarantors shall be deemed to have been discharged from all their respective obligations with respect to such Securities as provided in this Section on and after the date the conditions set forth in Section 1304 are satisfied (hereinafter called Defeasance). For this purpose, such Defeasance means that such Issuer and the Guarantors shall be deemed to have paid and discharged the entire indebtedness represented by such Securities and to have satisfied all their other obligations under such Securities and this Indenture insofar as such Securities are
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concerned (and the Trustee, at the expense of the Issuer of such Securities and the Guarantors, shall execute proper instruments acknowledging the same), subject to the following which shall survive until otherwise terminated or discharged hereunder: (1) the rights of Holders of such Securities to receive, solely from the trust fund described in Section 1304 and as more fully set forth in such Section, payments in respect of the principal of and any premium and interest on such Securities when payments are due, (2) the obligations of such Issuer and the Guarantors with respect to such Securities under Sections 304, 305, 306, 1002 and 1003 and with respect to the payment of additional amounts, if any, on such Securities as contemplated by Section 1004, (3) the rights, powers, trusts, duties and immunities of the Trustee hereunder and (4) this Article. Subject to compliance with this Article, any Issuer or any Guarantor may exercise its option (if any) to have this Section applied to any Securities notwithstanding the prior exercise of its option (if any) to have Section 1303 applied to such Securities.
SECTION 1303. Covenant Defeasance.
Upon exercise by any Issuer or any Guarantor of its option (if any) to have this Section applied to any Securities or any series of Securities, as the case may be, (1) the Issuer of such Securities and the Guarantors shall be released from their obligations under Section 801(3), Sections 1006 through 1008 inclusive, and any covenants provided pursuant to Section 301(19), 901(2) or 901(7) for the benefit of the Holders of such Securities and (2) the occurrence of any event specified in Sections 501(4) (with respect to any of Section 801(3), Sections 1006 through 1008 inclusive, and any such covenants provided pursuant to Section 301(19), 901(2) or 901(7)), 501(7) shall be deemed not to be or result in an Event of Default, in each case with respect to such Securities as provided in this Section on and after the date the conditions set forth in Section 1304 are satisfied (hereinafter called Covenant Defeasance). For this purpose, such Covenant Defeasance means that, with respect to such Securities, the Issuer of such Securities and the Guarantors may omit to comply with and shall have no liability in respect of any term, condition or limitation set forth in any such specified Section (to the extent so specified in the case of Section 501(4)), whether directly or indirectly by reason of any reference elsewhere herein to any such Section or by reason of any reference in any such Section to any other provision herein or in any other document, but the remainder of this Indenture and such Securities shall be unaffected thereby.
SECTION 1304. Conditions to Defeasance or Covenant Defeasance.
The following shall be the conditions to the application of Section 1302 or Section 1303 to any Securities or any series of Securities, as the case may be:
(1) The Issuer of such Securities or any Guarantor shall irrevocably have deposited or caused to be deposited with the Trustee (or another trustee which satisfies the requirements contemplated by Section 609 and agrees to comply with the provisions of this Article applicable to it) as trust funds in trust for the purpose of making the following payments, specifically pledged as security for, and dedicated solely to, the benefits of the Holders of such Securities, (A) money in an amount, or (B) U.S. Government Obligations which through the scheduled payment of principal and interest in respect thereof in accordance with their terms will provide, not later than one day before the due date of any payment, money in an amount, or (C) a combination thereof, in each case sufficient, in the opinion of a nationally recognized firm of independent public accountants expressed in a written certification thereof delivered to the Trustee, to pay and discharge, and which shall be applied by the Trustee (or any such
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other qualifying trustee) to pay and discharge, (i) the principal of and any premium and interest on such Securities on the respective Stated Maturities and (ii) any mandatory sinking fund payments or analogous payments applicable to such Outstanding Securities on the day on which such payments are due and payable, in accordance with the terms of this Indenture and such Securities. As used herein, U.S. Government Obligation means (x) any security which is (i) a direct obligation of the United States of America for the payment of which the full faith and credit of the United States of America is pledged or (ii) an obligation of a Person controlled or supervised by and acting as an agency or instrumentality of the United States of America the payment of which is unconditionally guaranteed as a full faith and credit obligation by the United States of America, which, in either case (i) or (ii), is not callable or redeemable at the option of the issuer thereof, and (y) any depositary receipt issued by a bank (as defined in Section 3(a)(2) of the Securities Act) or trust company as custodian with respect to any U.S. Government Obligation which is specified in Clause (x) above and held by such bank for the account of the holder of such depositary receipt, or with respect to any specific payment of principal of or interest on any U.S. Government Obligation which is so specified and held, provided that (except as required by law) such custodian is not authorized to make any deduction from the amount payable to the holder of such depositary receipt from any amount received by the custodian in respect of the U.S. Government Obligation or the specific payment of principal or interest evidenced by such depositary receipt.
(2) In the event of an election to have Section 1302 apply to any Securities or any series of Securities, as the case may be, the Issuer of such Securities or a Guarantor shall have delivered to the Trustee an Opinion of Counsel stating that (A) such Issuer or a Guarantor has received from, or there has been published by, the Internal Revenue Service a ruling or (B) since the date of this instrument, there has been a change in the applicable Federal income tax law, in either case (A) or (B) to the effect that, and based thereon such opinion shall confirm that, the Holders of such Securities will not recognize gain or loss for U.S. Federal income tax purposes as a result of the deposit, Defeasance and discharge to be effected with respect to such Securities and will be subject to U.S. Federal income tax on the same amount, in the same manner and at the same times as would be the case if such deposit. Defeasance and discharge were not to occur.
(3) In the event of an election to have Section 1303 apply to any Securities or any series of Securities, as the case may be, the Issuer of such Securities or a Guarantor shall have delivered to the Trustee an Opinion of Counsel to the effect that the Holders of such Securities will not recognize gain or loss for Federal income tax purposes as a result of the deposit and Covenant Defeasance to be effected with respect to such Securities and will be subject to Federal income tax on the same amount, in the same manner and at the same times as would be the case if such deposit and Covenant Defeasance were not to occur.
(4) The Issuer of the relevant series of Securities or any Guarantor shall have delivered to the Trustee an Opinion of Counsel to the effect that such deposit, Defeasance and discharge, or such deposit and Covenant Defeasance, as the case may be, will not cause the Holders of such Securities to recognize income, gain or loss for Australian or United Kingdom tax purposes and to the effect that all payments out of the trust fund will be made free and exempt from any and all withholding or other income taxes of whatever nature of Australia or the United Kingdom or any political subdivision or taxing authority thereof or therein.
(5) The Issuer of the relevant series of Securities or a Guarantor shall have delivered to the Trustee an Officers Certificate to the effect that neither such Securities nor any other Securities of the same series, if then listed on any securities exchange, will be delisted as a result of such deposit.
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(6) No event which is, or after notice or lapse of time or both would become, an Event of Default with respect to such Securities or any other Securities shall have occurred and be continuing at the time of such deposit or, with regard to any such event specified in Sections 501(5) and (6), at any time on or prior to the 90th day after the date of such deposit (it being understood that this condition shall not be deemed satisfied until after such 90th day).
(7) Such Defeasance or Covenant Defeasance shall not cause the Trustee to have a conflicting interest within the meaning of the Trust Indenture Act (assuming all Securities are in default within the meaning of such Act).
(8) Such Defeasance or Covenant Defeasance shall not result in a breach or violation of, or constitute a default under, any other agreement or instrument to which the Issuer of the relevant series of Securities or any Guarantor is a party or by which it is bound.
(9) Such Defeasance or Covenant Defeasance shall not result in the trust arising from such deposit constituting an investment company within the meaning of the Investment Company Act unless such trust shall be registered under such Act or exempt from registration thereunder.
(10) The Issuer of the relevant series of Securities or a Guarantor shall have delivered to the Trustee an Officers Certificate and an Opinion of Counsel, each stating that all conditions precedent with respect to such Defeasance or Covenant Defeasance have been complied with.
(11) Notwithstanding any other provisions of this Section, such Defeasance or covenant Defeasance shall be effected in compliance with any additional or substitute terms, conditions, or limitations in connection therewith pursuant to Section 301.
SECTION 1305. Deposited Money and U.S. Government Obligations to Be Held in Trust; Miscellaneous Provisions.
Subject to the provisions of the last paragraph of Section 1003, all money and U.S. Government Obligations (including the proceeds thereof) deposited with the Trustee or other qualifying trustee (solely for purposes of this Section and Section 1306, the Trustee and any such other trustee are referred to collectively as the Trustee) pursuant to Section 1304 in respect of any Securities shall be held in trust and applied by the Trustee, in accordance with the provisions of such Securities and this Indenture, to the payment, either directly or through any such Paying Agent (including any Issuer or any Guarantor acting as its own Paying Agent) as the Trustee may determine, to the Holders of such Securities, of all sums due and to become due thereon in respect of principal and any premium and interest, but money so held in trust need not be segregated from other funds except to the extent required by law.
The Issuer of the relevant series of Securities or any Guarantor shall pay and indemnify the Trustee against any tax, fee or other charge imposed on or assessed against the U.S. Government Obligations deposited pursuant to Section 1304 or the principal and interest received in respect thereof other than any such tax, fee or other charge which by law is for the account of the Holders of Outstanding Securities.
Anything in this Article to the contrary notwithstanding, the Trustee shall deliver or pay to the Issuer of the relevant series of Securities or any Guarantor from time to time upon Company
75
Request any money or U.S. Government Obligations held by it as provided in Section 1304 with respect to any Securities which, in the opinion of a nationally recognized firm of independent public accountants expressed in a written certification thereof delivered to the Trustee, are in excess of the amount thereof which would then be required to be deposited to effect the Defeasance or Covenant Defeasance, as the case may be, with respect to such Securities.
SECTION 1306. Reinstatement.
If the Trustee or the Paying Agent is unable to apply any money in accordance with this Article with respect to any Securities by reason of any order or judgment of any court or governmental authority enjoining, restraining or otherwise prohibiting such application, then the obligations under this Indenture and such Securities from which the Issuer of such Securities and the Guarantors have been discharged or released pursuant to Section 1302 or 1303 shall be revived and reinstated as though no deposit had occurred pursuant to this Article with respect to such Securities, until such time as the Trustee or Paying Agent is permitted to apply all money held in trust pursuant to Section 1305 with respect to such Securities in accordance with this Article; provided, however , that if such Issuer or any Guarantor makes any payment of principal of or any premium or interest on any such Security following such reinstatement of its obligations, such Issuer and the Guarantors shall be subrogated to the rights (if any) of the Holders of such Securities to receive such payment from the money so held in trust.
76
This instrument may be executed in any number of counterparts, each of which so executed shall be deemed to be an original, but all such counterparts shall together constitute but one and the same instrument.
IN WITNESS WHEREOF, the parties hereto have caused this Indenture to be duly executed all as of the day and year first above written.
Rio Tinto Finance (USA) Limited as Issuer |
||||||||||
By |
/s/ Alexander Chmel |
|||||||||
Attest: | Name: Alexander Chmel | |||||||||
By |
/s/ Matthew Whyte |
Title: Legal Counsel, under Power of Attorney | ||||||||
Name: Matthew Whyte | ||||||||||
Title: Assistant Secretary | ||||||||||
Rio Tinto Finance (USA) plc as Issuer |
||||||||||
By |
/s/ Alexander Chmel |
|||||||||
Attest: |
Name: Alexander Chmel | |||||||||
By |
/s/ Matthew Whyte |
Title: Legal Counsel, under Power of Attorney | ||||||||
Name: Matthew Whyte | ||||||||||
Title: Assistant Secretary | ||||||||||
Rio Tinto plc as Guarantor |
||||||||||
By |
/s/ Ben Mathews |
|||||||||
Attest: | Name: Ben Mathews | |||||||||
By |
/s/ Matthew Whyte |
Title: Company Secretary | ||||||||
Name: Matthew Whyte | ||||||||||
Title: Assistant Secretary | ||||||||||
Rio Tinto Limited as Guarantor |
||||||||||
By |
/s/ Ben Mathews |
|||||||||
Attest: | Name: Ben Mathews | |||||||||
By |
/s/ Matthew Whyte |
Title: Assistant Secretary | ||||||||
Name: Matthew Whyte | ||||||||||
Title: Assistant Secretary | ||||||||||
The Bank of New York Mellon as Trustee |
||||||||||
By |
/s/ Orla Forrester |
|||||||||
Attest: | Name: Orla Forrester | |||||||||
By |
/s/ Erika Walker |
Title: Vice President | ||||||||
Name: Erika Walker | ||||||||||
Title: Vice-President |
77
Exhibit 5.1
Linklaters LLP
One Silk Street
London EC2Y 8HQ
Telephone (+44) 20 7456 2000
Facsimile (+44) 20 7456 2222
DX Box Number 10 CDE
The Directors
Rio Tinto Finance (USA) plc
2 Eastbourne Terrace
London W2 6LG
England
The Directors
Rio Tinto Finance (USA) Limited
120 Collins Street
Melbourne
Victoria 3000
Australia
The Directors
Rio Tinto plc
2 Eastbourne Terrace
London W2 6LG
England
The Directors
Rio Tinto Limited
120 Collins Street
Melbourne
Victoria 3000
Australia
March 16, 2012
Dear Sirs
Rio Tinto Finance (USA) Limited (ACN 062 129 551) and Rio Tinto Finance (USA) plc Registration Statement on Form F-3 in respect of debt securities
1 | We have acted as English legal advisers to Rio Tinto Finance (USA) plc, a company incorporated under the laws of England, Rio Tinto Finance (USA) Limited, a company incorporated under the laws of the State of Victoria, Commonwealth of Australia (together with Rio Tinto Finance (USA) plc, the Issuers ), Rio Tinto plc, a company incorporated under the laws of England ( Rio Tinto plc ) and Rio Tinto Limited, a company incorporated under the laws of the State of Victoria, Commonwealth of Australia ( Rio Tinto Limited and, together with Rio Tinto plc, the |
This communication is confidential and may be privileged or otherwise protected by work product immunity.
Linklaters LLP is a limited liability partnership registered in England and Wales with registered number OC326345. It is a law firm authorised and regulated by the Law Society of England and Wales. The term partner in relation to Linklaters LLP is used to refer to a member of Linklaters LLP or an employee or consultant of Linklaters LLP or any of its affiliated firms or entities with equivalent standing and qualifications. A list of the names of the members of Linklaters LLP together with a list of those non-members who are designated as partners and their professional qualifications is open to inspection at its registered office, One Silk Street, London EC2Y 8HQ or on www.linklaters.com and such persons are either solicitors, registered foreign lawyers or European lawyers.
Please refer to www.linklaters.com/regulation for important information on our regulatory position.
Guarantors ), in connection with the automatic shelf registration statement on Form F-3 (File No. 333-175037) as amended by Post-Effective Amendment No. 1 filed with the United States Securities and Exchange Commission on March 16, 2012 (the Registration Statement ) relating to the registration under the United States Securities Act of 1933 (the Act ) of (i) an indeterminate amount of the Issuers debt securities (the Debt Securities ), which, if issued, will be unconditionally guaranteed as to payment of principal, premium, if any, and interest (the Guarantees ) by each of the Guarantors and (ii) the Guarantees. The Debt Securities may be issued from time to time pursuant to the Indenture. |
2 | This opinion is limited to English law as applied by the English courts and on the basis of our understanding of current United Kingdom HM Revenue and Customs ( HMRC ) practice (which may not be binding on HMRC) in effect on the date of this opinion. It is given on the basis that it will be governed by and construed in accordance with English law. In particular we express no opinion on matters of federal law of the United States, the laws of any State of the United States or the laws of any other jurisdiction. |
3 | For the purpose of this opinion we have examined the documents listed and, where appropriate, defined in the Schedule to this letter. We believe such documents to be those necessary for us to review for the purpose of giving this opinion. |
4 | We have assumed that: |
4.1 | all relevant documents are within the capacity and powers of, have been validly authorised by, and have been or will be validly executed and delivered by, each of the respective parties thereto other than Rio Tinto plc and Rio Tinto Finance (USA) plc; |
4.2 | each of the documents which are the subject of this opinion is valid and binding on each party under the law to which it is expressed to be subject where that is not English law and that words and phrases used in those documents have the same meaning and effect as they would if those documents were governed by English law; |
4.3 | all documents furnished to us as copies are genuine, authentic and complete and conform to the original documents of which they are copies and the genuineness of all signatures thereon or on the original thereof and the relevant documents have been executed in the forms reviewed by us and, where relevant, the Debt Securities will be completed, authenticated and issued as provided in the Indenture; |
4.4 | the Issuer Minutes, Guarantor Minutes and other corporate documents are a true and complete record of the proceedings described therein and the resolutions set out in the Issuer Minutes and Guarantor Minutes remain in full force and effect without modification; and |
4.5 | the terms of the Debt Securities will not be inconsistent with the provisions of the Indenture and there will be no provision in any supplement to the Registration Statement or any other document which would affect the content of this opinion. |
5 | Based on the documents referred to, and assumptions made, in paragraphs 3 and 4 above, and subject to the qualifications in paragraph 7 below and to any matters not disclosed to us, we are of the following opinion: |
5.1 | Rio Tinto plc is a company incorporated in England under the Companies Acts 1948 to 1980 and Rio Tinto Finance (USA) plc is a company incorporated in England under the Companies Act 2006. |
5.2 |
Each of Rio Tinto Finance (USA) plc and Rio Tinto plc has corporate power to enter into, and perform its obligations under, the Indenture, (in the case of the Issuer) the Debt Securities and (in the case of Rio Tinto plc) the relevant |
Page 2 of 5
Guarantee and has taken all necessary corporate action to authorise the execution, delivery and performance of the Indenture, (in the case of the Issuer) the Debt Securities and (in the case of Rio Tinto plc) such Guarantee. |
5.3 | Assuming the Indenture constitutes valid, binding and enforceable obligations of the Issuers and the Guarantors under New York law, there is no reason insofar as English law is concerned why the obligations assumed by Rio Tinto Finance (USA) plc and Rio Tinto plc under the Indenture are not valid and binding upon Rio Tinto Finance (USA) plc and Rio Tinto plc, respectively. |
5.4 | Assuming the Debt Securities constitute valid, binding and enforceable obligations of the Issuer under New York law, there is no reason insofar as English law is concerned why the obligations assumed by the Issuer under the Debt Securities are not valid and binding upon the Issuer. |
5.5 | Assuming the relevant Guarantee constitutes valid, binding and enforceable obligations of Rio Tinto plc under New York law, there is no reason insofar as English law is concerned why the obligations assumed by Rio Tinto plc under such Guarantee are not valid and binding upon Rio Tinto plc. |
6 | The statements of law and HMRC practice contained in the Registration Statement under the heading Taxation United Kingdom Taxation insofar as such statements purport to summarise certain tax laws of the United Kingdom or HMRC practice were, at the date of the Registration Statement, a correct summary in all material respects of the matters set out therein. |
7 | The term valid and binding as used above means that the obligations assumed by the relevant party under the relevant document are of a type which the English courts enforce. It does not mean that those obligations will necessarily be enforced in all circumstances in accordance with their terms. In particular: |
7.1 | enforcement may be limited by (a) bankruptcy, insolvency and liquidation, (b) reorganisation and (c) laws of general application relating to or affecting the rights of creditors; |
7.2 | enforcement may be limited by general principles of equity for example, equitable remedies may not be available where damages are considered to be an adequate remedy; |
7.3 | claims may become barred under the Limitation Act 1980 or may be or become subject to set-off or counterclaim; |
7.4 | where obligations are to be performed in a jurisdiction outside England, they may not be enforceable in England to the extent that performance would be illegal under the laws of that jurisdiction; |
7.5 | a provision in an agreement may be unenforceable if it amounts to a penalty under English law; |
7.6 | an English court may refuse to give effect to any provision of an agreement which amounts to an indemnity in respect of the costs of unsuccessful litigation brought before an English court where the court itself has made an order for costs; and |
7.7 | to the extent it relates to United Kingdom stamp duties any undertaking or indemnity given by the Issuers or Guarantors may be void under section 117 of the Stamp Act 1891. |
8 | This opinion is given on the basis of English law (or, insofar as this opinion relates to tax, to United Kingdom taxation law or our understanding of HMRC practice) in force, and as it affects the obligations under the Indenture and/or the relevant Guarantee, as at the date of this opinion. This opinion is also given on the basis that we undertake no responsibility to notify you of any change in English law, United Kingdom taxation law or HMRC practice after the date of this opinion. |
9 |
This opinion is addressed to you solely for your benefit in connection with the filing of the Registration Statement. It is not to be transmitted to anyone else nor is it to be relied upon by |
Page 3 of 5
anyone else or for any other purpose or quoted or referred to in any public document or filed with anyone without our express consent. This opinion may, however, be disclosed by the addressees hereof to the extent required by law, regulation or any governmental or competent regulatory authority or in connection with legal proceedings relating to the Registration Statement, provided that no such party to whom this opinion is disclosed may rely on this opinion without our express consent. |
10 | We hereby consent to the filing of this opinion as an exhibit to the Registration Statement and to the reference to us made under the heading Legal Matters in the Registration Statement. In giving this consent we do not admit that we are within the category of persons whose consent is required within Section 7 of the Act or the rules and regulations of the United States Securities and Exchange Commission thereunder. |
Yours faithfully
/s/ Linklaters LLP |
Linklaters LLP |
Page 4 of 5
SCHEDULE
1 | A certified copy of the Memorandum and Articles of Association of Rio Tinto Finance (USA) plc in force as at the date of this opinion. |
2 | Extract from the Minutes of a Meeting of the Board of Directors of Rio Tinto Finance (USA) plc held on March 16, 2012 (the Issuer Minutes ). |
3 | A copy of the executed power of attorney of the Issuer dated March 15, 2012. |
4 | A certified copy of the Memorandum and Articles of Association of Rio Tinto plc in force as at the date of this opinion. |
5 | A certified copy of the Memorandum and Articles of Association of Rio Tinto plc in force as at the date of execution of the Original Indenture. |
6 | Extracts from the Minutes of Meetings of the Chairmans Committee of the Board of Directors of Rio Tinto plc held on March 16, 2012 (together, the RTPLC Minutes ). |
7 | A certified extract from the Minutes of a Meeting of the Board of Directors of Rio Tinto plc held on February 9, 2010 (together with the RTPLC Minutes, the Guarantor Minutes ). |
8 | The Registration Statement. |
9 | Amended and Restated Indenture dated March 16, 2012 (the Indenture ) among the Issuer, Rio Tinto Finance (USA) Limited, the Guarantors and The Bank of New York (the Trustee ). |
10 | Draft Officers Certificate authorizing the issue of the Debt Securities by Rio Tinto Finance (USA) plc. |
Page 5 of 5
Exhibit 5.2
One Silk Street
London EC2Y 8HQ
Telephone (44-20) 7456 2000
Facsimile (44-20) 7456 2222
DX Box Number 10 CDE
Rio Tinto Finance (USA) plc
2 Eastbourne Terrace
London W2 6LG
United Kingdom
Rio Tinto Finance (USA) Limited
Level 33
120 Collins Street
Melbourne, Victoria 3000
Australia
Rio Tinto plc
2 Eastbourne Terrace
London W2 6LG
United Kingdom
Rio Tinto Limited
Level 33
120 Collins Street
Melbourne, Victoria 3000
Australia
March 16, 2012
Dear Sirs,
1 | We have acted as United States counsel for Rio Tinto Finance (USA) plc, a corporation organized under the laws of England and Wales, Rio Tinto Finance (USA) Limited, a corporation incorporated under the laws of the State of Victoria, Commonwealth of Australia and (together with Rio Tinto Finance (USA) plc, the Issuers), Rio Tinto plc, a corporation organized under the laws of England and Wales (Rio Tinto plc) and Rio Tinto Limited, a corporation incorporated under the laws of the State of Victoria, Commonwealth of Australia (Rio Tinto Limited and, together with Rio Tinto plc, the Guarantors), in connection with the automatic shelf registration statement on Form F-3 (File No. 333-175037) as amended by Post-Effective Amendment No. 1 filed with the United States Securities and Exchange Commission on March 16, 2012 (the Registration Statement) relating to the registration under the United States Securities Act of 1933 (the Act) of (i) an indeterminate amount of the Issuers debt securities (the Debt Securities), which, if issued, will be unconditionally guaranteed as to payment of principal, premium, if any, and interest (the Guarantees) by each of the Guarantors and (ii) the Guarantees. The Debt Securities may be issued from time to time pursuant to the indenture dated July 2, 2001 and amended and restated as of March 16, 2012 among the Issuers, the Guarantors and The Bank of New York (the Trustee) (the Indenture). |
This communication is confidential and may be privileged or otherwise protected by work product immunity.
Linklaters LLP is a limited liability partnership registered in England and Wales with registered number OC326345. It is a law firm authorised and regulated by the Law Society of England and Wales. The term partner in relation to Linklaters LLP is used to refer to a member of Linklaters LLP or an employee or consultant of Linklaters LLP or any of its affiliated firms or entities with equivalent standing and qualifications. A list of the names of the members of Linklaters LLP together with a list of those non-members who are designated as partners and their professional qualifications is open to inspection at its registered office, One Silk Street, London EC2Y 8HQ or on www.linklaters.com and such persons are either solicitors, registered foreign lawyers or European lawyers.
Please refer to www.linklaters.com/regulation for important information on our regulatory position.
2 | This opinion is limited to the federal law of the United States and the laws of the State of New York, and we express no opinion as to the effect of the laws of any other State of the United States or any other jurisdiction. |
3 | For the purpose of this opinion, we have examined the Indenture, such certificates and other documents, and such questions of law, as we have considered necessary or appropriate. We have assumed that each of the Issuers has the power to execute and deliver the Debt Securities and the Indenture and perform its obligations thereunder, that each of the Guarantors has the power to execute and deliver the Guarantees and the Indenture and perform its obligations thereunder, that the Indenture has been duly and validly authorized, executed and delivered under the laws of the Commonwealth of Australia by each of Rio Tinto Finance (USA) Limited and Rio Tinto Limited and under the laws of England by each of Rio Tinto Finance (USA) plc and Rio Tinto plc, that the Debt Securities and the Guarantees conform to the forms examined by us and that the signatures on all documents examined by us are genuine, assumptions that we have not independently verified. |
4 | In our opinion: |
4.1 | The Indenture has been duly executed and delivered by each of the Issuers and each of the Guarantors and, assuming due authorization, execution and delivery thereof by the Trustee, constitutes a valid and legally binding agreement of each of the Issuers and each of the Guarantors enforceable in accordance with its terms, subject to bankruptcy, insolvency, fraudulent transfer, reorganization, moratorium or similar laws of general applicability relating to or affecting creditors rights and to general equity principles. |
4.2 | The Debt Securities, when executed and delivered by the relevant Issuer against payment therefor pursuant to the terms of the Indenture and when authenticated in accordance with the terms of the Indenture, will constitute valid and legally binding obligations of the relevant Issuer enforceable in accordance with their terms, subject to bankruptcy, insolvency, fraudulent transfer, reorganization, moratorium or similar laws of general applicability relating to or affecting creditors rights and to general equity principles. |
4.3 | The Guarantees, when executed and delivered by each of the Guarantors pursuant to the terms of the Indenture, will constitute valid and legally binding obligations of the Guarantors enforceable in accordance with their terms, subject to bankruptcy, insolvency, fraudulent transfer, reorganization, moratorium or similar laws of general applicability relating to or affecting creditors rights and to general equity principles. |
5 | We hereby consent to the filing of this opinion as an exhibit to the Registration Statement and to the references to us under the heading Legal Matters in the Prospectus included in the Registration Statement. In giving such consent, we do not thereby admit that we are in the category of persons whose consent is required under Section 7 of the Act. |
Yours faithfully,
/s/ Linklaters LLP |
Linklaters LLP |
Page 2 of 2
Exhibit 5.3
16 March 2012
Rio Tinto Limited
120 Collins Street Melbourne VIC 3000 |
Rio Tinto Finance (USA) Limited 120 Collins Street Melbourne VIC 3000 |
Dear Sirs
Rio Tinto Finance (USA) Limited and Rio Tinto Limited
We have acted as Australian solicitors to Rio Tinto Finance (USA) Limited (the Company ) and Rio Tinto Limited (the Australian Guarantor ), each of which is a corporation incorporated with limited liability under the laws of Australia.
In connection with the registration under the S ecurities Act of 1933 (the Securities Act ) of guaranteed debt securities (the Securities ) of the Company or Rio Tinto Finance (USA) plc, and the guarantee in respect thereof (each a Guarantee ) of each of Rio Tinto plc, a corporation organised under the laws of England and the Australian Guarantor, we have examined such corporate records, certificates and other documents, and such questions of law, as we have considered necessary or appropriate for the purposes of this opinion, including the registration statement on Form F-3 filed with the Securities and Exchange Commission (the SEC ) by the Company, Rio Tinto Limited and Rio Tinto plc on 21 June 2011 as amended by the Post Effective Amendment No. 1 filed with the SEC by Rio Tinto Finance (USA) plc, the Company, Rio Tinto plc and Rio Tinto Limited on 16 March 2012 in relation to the Securities (the Registration Statement ) and the indenture dated 2 July 2001, as amended and restated on or about 16 March 2012 (the Indenture ).
1. | Opinion |
Upon the basis of such examination and the assumptions and qualifications set out in this opinion letter, we advise that, in our opinion:
(a) | each of the Company and the Australian Guarantor has been duly incorporated in Australia; | |||
(b) | neither the Company nor the Australian Guarantor is in liquidation under Australian federal laws or the laws of the State of Victoria; and | |||
when: | ||||
(c) | (i) | the Registration Statement has become effective under the Securities Act; | ||
(ii) | the Indenture relating to the Securities and the guarantee of the Australian Guarantor has been duly authorised, executed and delivered; |
Rio Tinto Limited and Rio Tinto Finance (USA) Limited |
|
(iii) | the terms of the Securities and, if required under the Indenture, the Guarantee of the Australian Guarantor and the terms of the issuance and sale of the Securities and the Guarantee of the Australian Guarantor have been duly established in conformity with the Indenture so as not to violate any applicable law or result in a default under or breach of any agreement or instrument binding upon the Company or the Australian Guarantor and so as to comply with any requirement or restriction imposed by court or governmental body having jurisdiction over the Company or the Australian Guarantor; |
(iv) | the Securities have been duly authorised and executed and authenticated and, if required under the Indenture, the Guarantee of the Australian Guarantor has been duly authorised and executed in each case in accordance with the Indenture; and |
(v) | the Securities and the Guarantee of the Australian Guarantor have been issued and sold as contemplated in the Registration Statement, |
the Securities and the Guarantee of the Australian Guarantor will constitute valid and legally binding obligations of the Company and the Australian Guarantor, respectively, subject to statutes of limitation, bankruptcy, insolvency, fraudulent transfer, reorganisation, moratorium and similar laws of general applicability relating to or affecting creditors rights or duties and to general equitable principles.
2. | Assumptions |
For the purposes of this opinion we have assumed the following.
(a) | Insofar as any obligation under the Securities or the Guarantee of the Australian Guarantor is to be performed in any jurisdiction outside the State of Victoria, its performance will not be illegal or unenforceable under the law of that jurisdiction. |
(b) | The Securities and the Guarantee of the Australian Guarantor (upon execution on behalf of the Company and the Australian Guarantor, as the case may be) will constitute legal, valid and binding obligations of the Issuer and the Australian Guarantor under the laws of New York enforceable in competent courts of that jurisdiction. |
(c) | The Securities and the Guarantee of the Australian Guarantor have been or will be executed and delivered in New York in compliance with any formalities for execution applicable under the laws of New York. |
3. | Qualifications |
Our opinion is subject to the following qualifications.
(a) |
We have relied on a search of public records on file at the offices of the Australian Securities and Investments Commission on 16 March 2012. We note that records disclosed by such search may not be complete or up to date. We have also relied upon searches for winding up petitions lodged in respect of the Company and the |
Page 2
Rio Tinto Limited and Rio Tinto Finance (USA) Limited |
|
Australian Guarantor at the Supreme Court of Victoria and the Melbourne Registry of the Federal Court of Australia but we note that it is also possible for winding up petitions in respect of the Company or the Australian Guarantor to be lodged in registries and courts in other jurisdictions.
(b) | Any provision that certain calculations, determinations or certificates will be conclusive and binding will not apply if those calculations, determinations or certificates are fraudulent or manifestly inaccurate. |
(c) | Any clause providing for the severability of any provision of a document may not be enforceable in accordance with its terms, as a court may reserve to itself a decision as to whether any provision is severable. |
(d) | The obligation of a party under any document to pay interest on overdue amounts at a rate higher than the rate applying before the amount fell due may be held to constitute a penalty and be unenforceable. |
(e) | We express no opinion on any provision in any document requiring written amendments and waivers insofar as it suggests that oral or other modifications, amendments or waivers could not be effectively agreed upon or granted between or by the parties. |
(f) | The courts might not give full effect to any indemnity for legal costs or for penalties or taxes. |
(g) | We have relied, as to certain matters of fact, on certificates of officers of the Company or the Australian Guarantor. |
(h) | There is a prohibition on, or in some cases the specific prior approval of the Reserve Bank of Australia or the Minister for Foreign Affairs must be obtained for, certain payments or other dealings connected with parties identified with terrorism, or other parties to whom United Nations or autonomous Australian sanctions apply. |
(i) | A judgment by a court may be given in some cases only in Australian dollars. |
The foregoing opinion is limited to the laws of the Commonwealth of Australia and the State of Victoria and we express no opinion as to the effect of the laws of any other jurisdiction. We understand you are relying, as to all matters governed by the Federal laws of the United States and the laws of the State of New York upon the opinion, dated the date hereof, Linklaters LLP, which is being delivered to you by such counsel.
We hereby consent to the filing of this opinion as to an exhibit to the Registration Statement relating to the Securities and the references to us under the heading Enforceability of Certain Civil Liabilities in the prospectus relating to the Securities. In giving such consent, we do not thereby admit that we are in the category of person whose consent is required under section 7 of the Securities Act.
Yours faithfully |
/s/ Allens Arthur Robinson |
Allens Arthur Robinson |
Page 3
Exhibit 8.2
One Silk Street
London EC2Y 8HQ
Telephone (44-20) 7456 2000
Facsimile (44-20) 7456 2222
DX Box Number 10 CDE
Rio Tinto Finance (USA) plc
2 Eastbourne Terrace
London W2 6LG
United Kingdom
Rio Tinto Finance (USA) Limited
Level 33
120 Collins Street
Melbourne, Victoria 3000
Australia
Rio Tinto plc
2 Eastbourne Terrace
London W2 6LG
United Kingdom
Rio Tinto Limited
Level 33
120 Collins Street
Melbourne, Victoria 3000
Australia
March 16, 2012
Dear Sirs,
1 | We have acted as United States counsel for Rio Tinto Finance (USA) plc, a corporation incorporated under the laws of England and Wales, Rio Tinto Finance (USA) Limited, a corporation incorporated under the laws of the State of Victoria, Commonwealth of Australia (together with Rio Tinto Finance (USA) plc, the Issuers), Rio Tinto plc, a corporation organized under the laws of England and Wales (Rio Tinto plc) and Rio Tinto Limited, a corporation incorporated under the laws of the State of Victoria, Commonwealth of Australia (Rio Tinto Limited and, together with Rio Tinto plc, the Guarantors), in connection with the automatic shelf registration statement on Form F-3 (File No. 333-175037) as amended by Post-Effective Amendment No. 1 to the filed with United States Securities and Exchange Commission on March 16, 2012 (the Registration Statement), relating to the registration under the United States Securities Act of 1933 (the Act) of (i) an indeterminate amount of the Issuers debt securities (the Debt Securities), which, if issued, will be unconditionally guaranteed as to payment of principal, premium, if any, and interest (the Guarantees) by each of the Guarantors and (ii) the Guarantees. The Debt Securities may be issued from time to time pursuant to the indenture dated July 2, 2001 and amended and restated on March 16, 2012 among the Issuers, the Guarantors and The Bank of New York (the Trustee) (the Indenture). |
2 | Our opinion is limited to the Federal income tax laws of the United States and is based on that law, including judicial decisions and administrative guidance, as currently in effect, which law is subject to change, including change with retroactive effect. |
This communication is confidential and may be privileged or otherwise protected by work product immunity.
Linklaters LLP is a limited liability partnership registered in England and Wales with registered number OC326345. It is a law firm authorised and regulated by the Solicitors Regulation Authority. The term partner in relation to Linklaters LLP is used to refer to a member of Linklaters LLP or an employee or consultant of Linklaters LLP or any of its affiliated firms or entities with equivalent standing and qualifications. A list of the names of the members of Linklaters LLP together with a list of those non-members who are designated as partners and their professional qualifications is open to inspection at its registered office, One Silk Street, London EC2Y 8HQ or on www.linklaters.com and such persons are either solicitors, registered foreign lawyers or European lawyers.
Please refer to www.linklaters.com/regulation for important information on our regulatory position.
3 | We have assumed that all information described in the Registration Statement (including information, intentions, expectations and beliefs regarding the future activities of the Issuers and the Guarantors, but not including statements regarding U.S. federal income tax law, which are the subject of this opinion) is, and will continue to be (and will prove to be), accurate and complete in all material respects. On the basis of our consideration of such matters of fact and law as we have deemed necessary or appropriate, we hereby confirm to you that the statements under the heading Taxation United States Federal Income Taxation in the Registration Statement, insofar as those statements purport to summarize provisions of United States Federal income tax law therein described, at the date of the Registration Statement, constitute a fair and accurate summary in all material respects. |
4 | The opinion expressed above is specific to the transaction and documents referred to herein and is based upon the facts known to us. Our opinion should not be assumed to state general principles of law applicable to transactions of this kind. |
5 | No opinion is expressed herein as to the United States federal income tax consequences of the transactions referenced herein except as expressly set forth above, nor as to any transaction not consummated in accordance with the terms of the documents reviewed by us. In addition, no opinion is expressed herein as to any United States state or local tax consequence, or any tax consequence under the laws of any foreign jurisdiction. |
6 | Our opinion is rendered as of the date hereof, and we assume no obligation to advise you, or to make any further investigations, as to any legal developments or factual matters that might affect the opinions expressed herein. |
7 | We hereby consent to the filing of this opinion as an exhibit to the Registration Statement and to the references to us under the heading Legal Matters in the Prospectus included in the Registration Statement. In giving such consent, we do not thereby admit that we are in the category of persons whose consent is required under Section 7 of the Act. |
Yours faithfully,
/s/ Linklaters LLP |
Linklaters LLP |
Exhibit 8.3
16 March 2012
Rio Tinto Limited 120 Collins Street Melbourne Vic 3000 |
Rio Tinto Finance (USA) Limited 120 Collins Street Melbourne Vic 3000 |
Dear Sirs
Rio Tinto Finance (USA) Limited and Rio Tinto Limited
We have acted as Australian Counsel to Rio Tinto Limited ( Rio Tinto ) and Rio Tinto Finance (USA) Limited (the Company ) in connection with the offering by the Company or Rio Tinto Finance (USA) plc of guaranteed debt securities (the Securities ) from time to time in accordance with the registration statement filed with the United States Securities and Exchange Commission (the SEC ) by the Company, Rio Tinto Limited and Rio Tinto plc on 21 June 2011 as amended by the Post Effective Amendment No. 1 filed with the SEC by Rio Tinto Finance (USA) plc, the Company, Rio Tinto plc and Rio Tinto Limited on 16 March 2012 in relation to the Securities (the Registration Statement ).
We hereby confirm that, in our opinion, the statements set forth under the heading Australian Taxation in the Registration Statement concerning the principal Australian tax consequences generally applicable to a holder of the Securities who is a resident of the United States and not a resident of Australia for tax purposes are a fair and accurate summary of the matters therein discussed.
Our opinion is limited to matters of Australian tax law. We express no opinion as to any other matters. Our opinion is based upon Australian tax law as at the date of this letter and the description of the Securities contained in the Registration Statement. Our opinion is given on the basis that it will be construed, and all matters arising under it (including any liability) will be determined, in accordance with the laws of the State of New South Wales.
We hereby consent to the inclusion of this opinion as an exhibit to the Registration Statement and to the reference to us under the heading Australian Taxation in the Registration Statement. In giving this consent, we do not hereby admit that we are in the category of persons whose consent is required under section 7 of the Securities Act of 1933, as amended, or the rules and regulations of the Securities and Exchange Commission thereunder.
Yours faithfully
/s/ Allens Arthur Robinson
Allens Arthur Robinson
Exhibit 12
STATEMENTS OF COMPUTATION OF RATIO OF EARNINGS TO FIXED CHARGES
IFRS
Year ended December 31, | ||||||||||||||||||||
2011 | 2010 | 2009 | 2008 | 2007 | ||||||||||||||||
(U.S.$ millions) | ||||||||||||||||||||
Earnings: |
||||||||||||||||||||
Income from continuing operations before taxes on income |
13,214 | 20,491 | 7,860 | 9,178 | 9,836 | |||||||||||||||
Minority interests in pre-tax income of subsidiaries that have not incurred fixed charges |
(96 | ) | (270 | ) | (412 | ) | (177 | ) | (104 | ) | ||||||||||
Less: equity accounted units earnings |
(112 | ) | (1,101 | ) | (786 | ) | (1,039 | ) | (1,584 | ) | ||||||||||
Fixed charges added to earnings |
603 | 751 | 988 | 1,694 | 614 | |||||||||||||||
Distributed income from equity investees |
799 | 1,404 | 610 | 1,473 | 1,764 | |||||||||||||||
Amortization of capitalized interest |
61 | 121 | 104 | 86 | 75 | |||||||||||||||
|
|
|
|
|
|
|
|
|
|
|||||||||||
Total earnings |
14,469 | 21,396 | 8,364 | 11,215 | 10,601 | |||||||||||||||
Fixed charges: |
||||||||||||||||||||
Interest expensed |
497 | 671 | 929 | 1,618 | 538 | |||||||||||||||
Amount representative of the interest factor in rents |
106 | 80 | 59 | 76 | 76 | |||||||||||||||
|
|
|
|
|
|
|
|
|
|
|||||||||||
Total fixed charges added to earnings |
603 | 751 | 988 | 1,694 | 614 | |||||||||||||||
Interest capitalized |
493 | 182 | 198 | 203 | 122 | |||||||||||||||
|
|
|
|
|
|
|
|
|
|
|||||||||||
Total fixed charges |
1,096 | 933 | 1,186 | 1,897 | 736 | |||||||||||||||
Ratio of earnings to fixed charges |
13.20 | 22.93 | 7.05 | 5.91 | 14.40 | |||||||||||||||
|
|
|
|
|
|
|
|
|
|
Exhibit 23.1
CONSENT OF INDEPENDENT REGISTERED PUBLIC ACCOUNTING FIRM
We hereby consent to the incorporation by reference in this Registration Statement on Form F-3 of our report dated March 5, 2012 relating to the financial statements and the effectiveness of internal control over financial reporting, which appears in Rio Tinto plcs and Rio Tinto Limiteds Annual Report on Form 20-F for the year ended 31 December 2011. We also consent to the reference to us under the heading Experts in such Registration Statement.
/s/ PricewaterhouseCoopers LLP |
/s/ PricewaterhouseCoopers |
|||
PricewaterhouseCoopers LLP Chartered Accountants |
PricewaterhouseCoopers Chartered Accountants |
|||
London, United Kingdom | Brisbane, Australia | |||
March 15, 2012 | March 15, 2012 |
Exhibit 24.1
POWER OF ATTORNEY
This Power of Attorney is made as a Deed on 15 March 2012 by Rio Tinto Finance (USA) plc (the Company ) whose registered office is at 2 Eastbourne Terrace, London W2 6LG, United Kingdom:
1 | Appointment |
The Company appoints each of the following (acting individually): Jonathan Slade, Elise Do, Cheree Finan and Alexander Chmel (each an Attorney ) to be its attorney, in the Companys name and on its behalf to:
1.1 | agree the form and content of, approve, complete, sign, execute and deliver (as a deed or otherwise) each document described in the Schedule (each a Document ) in form and substance as the Attorney thinks fit; |
1.2 | complete any blanks in, supplement or amend any Document (whether or not material and whether or not involving changes to the parties); and |
1.3 | do anything in the opinion of the relevant Attorney necessary, advisable or incidental in connection with any transaction contemplated by any Document or the effective exercise of any power under this Power of Attorney. |
2 | Ratification |
The Company agrees to ratify and confirm everything lawfully done or lawfully caused to be done by the Attorney under this Power of Attorney.
3 | Revocability |
This Power of Attorney can be revoked only by written notice from the Company to the relevant Attorney. A certificate signed by an Attorney that the Attorney has received no notice of revocation of the powers conferred by this Power of Attorney is conclusive evidence of that fact.
4 | Delegation |
This Power of Attorney applies to a sub attorney. An Attorney may execute any Document on behalf of the Company even if it contains a power of attorney or other delegation.
5 | Conflict of Interest |
An Attorney may execute a Document or do anything (and that Document or thing will be valid) even if the Attorney is in any way:
5.1 | interested in the Document or thing; or |
5.2 | connected with a person who is in any way interested in the Document or thing. |
1
6 | Indemnity |
The Company shall indemnify each Attorney against any loss, cost, charge, liability or expense the Attorney may sustain or incur as a direct or indirect consequence of the exercise of any power under this Power of Attorney.
7 | Personal Liability and No Warranty |
The exercise by an Attorney of any power under this Power of Attorney does not involve the assumption by that Attorney, or by that Attorneys partners or employers (excluding the Company), of any personal liability nor an express or implied warranty by any of them as to the validity of this Power of Attorney or the Attorneys authority to exercise the power.
8 | Registration |
The Company shall register this Power of Attorney in any jurisdiction where registration is necessary or advisable for validity. Any Attorney may register this Power of Attorney and the Company shall reimburse the Attorney for any costs of registration.
9 | Governing Law |
This Power of Attorney and any non-contractual obligations arising out of or in connection with it are governed by and construed in accordance with the laws of England and Wales.
2
Schedule
Documents
1. | Post-Effective Amendment No. 1 to the SEC Registration Statement on Form F-3 (File No. 333-175037) (the Registration Statement ) to add a class of securities of Rio Tinto Finance (USA) plc and related guarantees of Rio Tinto plc and Rio Tinto Limited (the Guarantors ); |
2. | The form of Notes to be issued by the Company pursuant to the Registration Statement filed with the Securities and Exchange Commission (the Notes ); |
3. | Indenture dated 2 July 2001, as amended and restated on or about 16 March 2012 (the Amended and Restated Indenture) among Rio Tinto Finance (USA) plc, Rio Tinto Finance (USA) Limited, the Guarantors and the Trustee; |
4. | Underwriting Agreement among the Company, Rio Tinto plc, Rio Tinto Limited, Credit Suisse Securities (USA) LLC, J.P. Morgan Securities LLC, Deutsche Bank Securities Inc. and Citigroup Global Markets Inc. and each other underwriter appointed in respect of the Notes which are to be guaranteed by the Guarantors; |
5. | Officers Certificate to be executed by the Company setting out the terms of the Notes; and |
6. | Any other document which the relevant Attorney thinks necessary, advisable or incidental in connection with any other Document, the Notes or any transaction contemplated by any other Document. |
3
In witness whereof this Power of Attorney has been delivered on the date first stated above:
SIGNED AND DELIVERED as a DEED by Rio Tinto Finance (USA) plc acting by Ben Mathews a Director and Matthew Whyte Secretary and witness |
|
/s/ Ben Mathews |
||||
Director Signature | ||||||
Ben Mathews |
||||||
Print Name | ||||||
/s/ Matthew J. Whyte |
||||||
Witness Signature | ||||||
9 Selby Road, London WS 1LY |
||||||
Matthew J. Whyte |
||||||
Print Name |
4
Exhibit 24.2
Power of Attorney
Rio Tinto Finance (USA) Limited
Amendment and restatement of Indenture
Allens Arthur Robinson
Level 27
530 Collins Street
Melbourne VIC 3000 Australia
Tel +61 3 9614 1011
Fax +61 3 9614 4661
www.aar.com.au
© Copyright Allens Arthur Robinson, Australia 2012
Page (i)
Power of Attorney |
|
Date | 16 March 2012 | |
Parties | Deed Poll by: | |
Rio Tinto Finance (USA) Limited (ACN 062 129 551) incorporated in Australia of Level 33, 120 Collins Street Melbourne, VIC 3000 (the Principal ). |
It is declared as follows.
1. | Appointment |
The Principal appoints each director of the Company, the Company Secretary, Ulf Quellmann, Jonathan Slade, Elise Do, Cheree Finan and Alexander Chmel (each an Attorney ) severally as the attorney of the Principal.
2. | Powers |
Each Attorney may do any of the following in the Principals name or in its own name as the act of the Principal.
(a) | Execute under hand or under seal and deliver each document described in the Schedule (each a Document ) in form and substance as the Attorney thinks fit. |
(b) | Complete any blanks in, supplement or amend any Document (whether or not material and whether or not involving changes to the parties). |
(c) | Do anything in the opinion of the relevant Attorney necessary, advisable or incidental in connection with any transaction contemplated by any Document or the effective exercise of any power under this Deed. |
(d) | Appoint sub-attorneys. |
3. | Ratification |
The Principal shall ratify anything done by an Attorney under this Deed.
4. | Delegation |
This Deed applies to a sub-attorney. An Attorney may execute any Document on behalf of the Principal even if it contains a power of attorney or other delegation.
5. | Conflict of Interest |
An Attorney may execute a Document or do anything (and that Document or thing will be valid) even if the Attorney is in any way:
(a) | interested in the Document or thing; or |
Page 1
Power of Attorney |
|
(b) | connected with a person who is in any way interested in the Document or thing. |
6. | Indemnity |
The Principal shall indemnify each Attorney against any loss, cost, charge, liability or expense the Attorney may sustain or incur as a direct or indirect consequence of the exercise of any power under this Deed.
7. | Revocation |
This power of attorney can be revoked only by written notice from the Principal to the relevant Attorney. A certificate signed by an Attorney that the Attorney has received no notice of revocation of the powers conferred by this Deed is conclusive evidence of that fact.
8. | Personal Liability and No Warranty |
The exercise by an Attorney of any power under this Deed does not involve the assumption by that Attorney, or by that Attorneys partners or employers (excluding the Principal), of any personal liability nor an express or implied warranty by any of them as to the validity of this Deed or the Attorneys authority to exercise the power.
9. | Registration |
The Principal shall register this Deed in any jurisdiction where registration is necessary or advisable for validity. Any Attorney may register this Deed and the Principal shall reimburse the Attorney for any costs of registration.
10. | Governing Law and Jurisdiction |
This Deed is governed by the laws of Victoria. In relation to it and related non-contractual matters each party irrevocably submits to the non-exclusive jurisdiction of courts with jurisdiction there.
Page 2
Power of Attorney |
|
Schedule
Documents
1. | The Amended and Restated Indenture between, among others, the Principal, Rio Tinto Limited and the Bank of New York Mellon. |
2. | Any Officers Certificate to be executed by the Principal. |
3. | Any other document which the relevant Attorney thinks necessary, advisable or incidental in connection with any other Document or any transaction contemplated by any other Document. |
Page 3
Power of Attorney |
|
Executed and delivered as a Deed in Melbourne
Executed as a deed in accordance with
section 127 of the Corporations Act 2001 by Rio
Tinto Finance (USA) Limited :
/s/ Graham John Reid |
/s/ Stephen John Consedine |
|||
Director Signature | Director/Secretary Signature | |||
Graham John Reid |
Stephen John Consedine |
|||
Print Name | Print Name |
Page 4
Exhibit 25
UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM T-1
STATEMENT OF ELIGIBILITY UNDER THE TRUST
INDENTURE ACT OF 1939 OF A CORPORATION
DESIGNATED TO ACT AS TRUSTEE
CHECK IF AN APPLICATION TO DETERMINE ELIGIBILITY OF A
TRUSTEE PURSUANT TO SECTION 305(b)(2)
THE BANK OF NEW YORK MELLON
(Exact name of trustee as specified in its charter)
New York | 13-5160382 | |
(Jurisdiction of incorporation if not a U.S. national bank) |
(I.R.S. Employer Identification No.) |
|
One Wall Street New York, New York |
10286 | |
(Address of principal executive offices) | (Zip code) |
RIO TINTO FINANCE (USA) LIMITED
(Exact name of obligor as specified in its charter)
Australia | (not applicable) | |
(State or other jurisdiction of incorporation or organization) |
(I.R.S. Employer Identification No.) |
|
Level 33, 120 Collins Street Melbourne, Victoria 3000, Australia |
( ) | |
(Address of principal executive offices) | (Zip code) |
RIO TINTO FINANCE (USA) PLC
(Exact name of obligor as specified in its charter)
England and Wales | (not applicable) | |
(State or other jurisdiction of incorporation or organization) |
(I.R.S. Employer Identification No.) |
|
2 Eastbourne Terrace London, W2 6LG, United Kingdom |
( ) | |
(Address of principal executive offices) | (Zip code) |
RIO TINTO PLC
(Exact name of obligor as specified in its charter)
England and Wales | (not applicable) | |
(State or other jurisdiction of incorporation or organization) |
(I.R.S. Employer Identification No.) |
|
2 Eastbourne Terrace London, W2 6LG, United Kingdom |
( ) | |
(Address of principal executive offices) | (Zip code) |
RIO TINTO LIMITED
(Exact name of obligor as specified in its charter)
Australia | (not applicable) | |
(State or other jurisdiction of incorporation or organization) |
(I.R.S. Employer Identification No.) |
|
Level 33, 120 Collins Street Melbourne, Victoria 3000, Australia |
( ) | |
(Address of principal executive offices) | (Zip code) |
Debt Securities
Guarantees of Debt Securities
(Title of the indenture securities)
Item 1. | General Information. |
Furnish the following information as to the Trustee:
(a) | Name and address of each examining or supervising authority to |
which it is subject.
Superintendent of Banks of the | 2 Rector Street, New York, N.Y. 10006 | |
State of New York | and Albany, N.Y. 12203 | |
Federal Reserve Bank of New York | 33 Liberty Plaza, New York, N.Y. 10045 | |
Federal Deposit Insurance Corporation | 550 17th Street, N.W., Washington, D.C. 20429 | |
New York Clearing House Association | New York, N.Y. 10005 |
(b) | Whether it is authorized to exercise corporate trust powers. |
Yes.
Item 2. | Affiliations with Obligor. |
If the obligor is an affiliate of the trustee, describe each such affiliation.
None.
Item 16. | List of Exhibits. |
Exhibits identified in parentheses below, on file with the Commission, are incorporated herein by reference as an exhibit hereto, pursuant to Rule 7a-29 under the Trust Indenture Act of 1939 (the Act) and 17 C.F.R. 229.10(d).
1. | | A copy of the Organization Certificate of The Bank of New York Mellon (formerly Irving Trust Company) as now in effect, which contains the authority to commence business and a grant of powers to exercise corporate trust powers. (Exhibit 1 to Amendment No. 1 to Form T-1 filed with Registration Statement No. 33-6215, Exhibits 1a and 1b to Form T-1 filed with Registration Statement No. 33-21672, Exhibit 1 to Form T-1 filed with Registration Statement No. 33-29637 and Exhibit 1 to Form T-1 filed with Registration Statement No. 333-121195.) | ||
4. | | A copy of the existing By-laws of the Trustee. (Exhibit 4 to Form T-1 with Registration Statement No. 333-121195.) | ||
6. | | The consent of the Trustee required by Section 321(b) of the Act. (Exhibit 6 to Form T-1 filed with Registration Statement No. 33-44051.) | ||
7. | | A copy of the latest report of condition of the Trustee published pursuant to law or to the requirements of its supervising or examining authority. |
SIGNATURE
Pursuant to the requirements of the Act, the Trustee, The Bank of New York Mellon, a banking corporation organized and existing under the laws of the State of New York, has duly caused this statement of eligibility to be signed on its behalf by the undersigned, thereunto duly authorized, all in The City of New York, and State of New York, on the day of , 2012
THE BANK OF NEW YORK MELLON | ||
By: |
/s/ Orla Forrester |
|
Name: Orla Forrester | ||
Title: Vice President |
EXHIBIT 7
Consolidated Report of Condition of
THE BANK OF NEW YORK MELLON
of One Wall Street, New York, N.Y. 10286
And Foreign and Domestic Subsidiaries,
a member of the Federal Reserve System, at the close of business December 31, 2011, published in accordance with a call made by the Federal Reserve Bank of this District pursuant to the provisions of the Federal Reserve Act.
Dollar Amounts In Thousands | ||||
ASSETS |
||||
Cash and balances due from depository institutions: |
||||
Noninterest-bearing balances and currency and coin |
3,285,000 | |||
Interest-bearing balances |
118,033,000 | |||
Securities: |
||||
Held-to-maturity securities |
3,521,000 | |||
Available-for-sale securities |
74,417,000 | |||
Federal funds sold and securities purchased under agreements to resell: |
||||
Federal funds sold in domestic offices |
23,000 | |||
Securities purchased under agreements to resell |
603,000 | |||
Loans and lease financing receivables: |
||||
Loans and leases held for sale |
10,000 | |||
Loans and leases, net of unearned income |
27,101,000 | |||
LESS: Allowance for loan and lease losses |
374,000 | |||
Loans and leases, net of unearned income and allowance |
26,727,000 | |||
Trading assets |
5,841,000 | |||
Premises and fixed assets (including capitalized leases) |
1,208,000 | |||
Other real estate owned |
12,000 | |||
Investments in unconsolidated subsidiaries and associated companies |
988,000 | |||
Direct and indirect investments in real estate ventures |
0 | |||
Intangible assets: |
||||
Goodwill |
6,415,000 | |||
Other intangible assets |
1,615,000 |