EX-4.1






Exhibit 4.1




Execution Copy




      




Rio Tinto Finance (USA) Limited, (ABN 84 062 129 551)




Issuer




Rio Tinto plc,




Guarantor




Rio Tinto Limited (ABN 96 004 458 404)




Guarantor




TO




The Chase Manhattan Bank




Trustee




 






Indenture




Dated as of July 2, 2001

 






Guaranteed Debt Securities




 





 









 





Rio Tinto Finance (USA) Limited,

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	 	 
	Act Section	 	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






 









 





Note: This reconciliation and tie shall not, for any purpose, be deemed to be a part of
the Indenture.





 









 








TABLE OF CONTENTS




	 	 	 	 	 
	 	 	Page	 
	Recitals of the Company
	 	 	-1-	 
	Recitals of the Guarantors
	 	 	-1-	 
	 
	 	 	 	 
	ARTICLE ONE
	 	 	 	 
	 
	 	 	 	 
	Definitions and Other Provisions of General Application
	 	 	-1-	 
	 
	 	 	 	 
	Section 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
	 	 	-2-	 
	Company
	 	 	-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
	 	 	-3-	 
	Global Security
	 	 	-4-	 
	Guarantees
	 	 	-4-	 
	Guarantor
	 	 	-4-	 
	Holder
	 	 	-4-	 
	Indenture
	 	 	-4-	 
	interest
	 	 	-4-	 
	Interest Payment Date
	 	 	-4-	 
	Investment Company Act
	 	 	-4-	 
	Joint Venture
	 	 	-4-	 
	Maturity
	 	 	-4-	 
	Notice of Default
	 	 	-4-	 
	Officer’s Certificate
	 	 	-4-	 
	Opinion of Counsel
	 	 	-4-	 
	Original Issue Discount Security
	 	 	-5-	 
	Outstanding
	 	 	-5-	 
	Paying Agent
	 	 	-6-	 
	Person
	 	 	-6-	 






i 









 






	 	 	 	 	 
	 	 	Page	 
	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-	 
	 
	 	 	 	 
	Section 102. Compliance Certificates and Opinions
	 	 	-8-	 
	 
	 	 	 	 
	Section 103. Form of Documents Delivered to Trustee
	 	 	-9-	 
	 
	 	 	 	 
	Section 104. Acts of Holders; Record Dates
	 	 	-9-	 
	 
	 	 	 	 
	Section 105. Notices, Etc., to Trustee, Company and Guarantors
	 	 	-11-	 
	 
	 	 	 	 
	Section 106. Notice to Holders; Waiver
	 	 	-11-	 
	 
	 	 	 	 
	Section 107. Language of Notices, Etc.
	 	 	-12-	 
	 
	 	 	 	 
	Section 108. Conflict with Trust Indenture Act
	 	 	-12-	 
	 
	 	 	 	 
	Section 109. Effect of Headings and Table of Contents
	 	 	-12-	 
	 
	 	 	 	 
	Section 110. Successors and Assigns
	 	 	-12-	 
	 
	 	 	 	 
	Section 111. Separability Clause
	 	 	-12-	 
	 
	 	 	 	 
	Section 112. Benefits of Indenture
	 	 	-12-	 
	 
	 	 	 	 
	Section 113. Governing Law
	 	 	-13-	 
	 
	 	 	 	 
	Section 114. Saturdays, Sundays and Legal Holidays
	 	 	-13-	 
	 
	 	 	 	 
	Section 115. Appointment of Agent for Service
	 	 	-13-	 






ii 









 






	 	 	 	 	 
	 	 	Page	 
	ARTICLE TWO
	 	 	 	 
	 
	 	 	 	 
	Security Forms
	 	 	-14-	 
	 
	 	 	 	 
	Section 201. Forms Generally
	 	 	-14-	 
	 
	 	 	 	 
	Section 202. Form of Face of Security
	 	 	-14-	 
	 
	 	 	 	 
	Section 203. Form of Reverse of Security
	 	 	-16-	 
	 
	 	 	 	 
	Section 204. Form of Legend for Global Securities
	 	 	-21-	 
	 
	 	 	 	 
	Section 205. Guarantee by Guarantors; Form of Guarantee
	 	 	-21-	 
	 
	 	 	 	 
	Section 206. Form of Trustee’s Certificate of Authentication
	 	 	-25-	 
	 
	 	 	 	 
	ARTICLE THREE
	 	 	 	 
	 
	 	 	 	 
	The Securities
	 	 	-26-	 
	 
	 	 	 	 
	Section 301. Amount Unlimited; Issuable In Series
	 	 	-26-	 
	 
	 	 	 	 
	Section 302. Denominations
	 	 	-28-	 
	 
	 	 	 	 
	Section 303. Execution, Authentication, Delivery and Dating
	 	 	-28-	 
	 
	 	 	 	 
	Section 304. Temporary Securities
	 	 	-30-	 
	 
	 	 	 	 
	Section 305. Registration, Registration of Transfer and Exchange
	 	 	-30-	 
	 
	 	 	 	 
	Section 306. Mutilated, Destroyed, Lost and Stolen Securities
	 	 	-32-	 
	 
	 	 	 	 
	Section 307. Payment of Interest; Interest Rights Preserved
	 	 	-32-	 
	 
	 	 	 	 
	Section 308. Persons Deemed Owners
	 	 	-33-	 
	 
	 	 	 	 
	Section 309. Cancellation
	 	 	-33-	 
	 
	 	 	 	 
	Section 310. Computation of Interest
	 	 	-34-	 
	 
	 	 	 	 
	Section 311. CUSIP Numbers
	 	 	-34-	 
	 
	 	 	 	 
	ARTICLE FOUR
	 	 	 	 
	 
	 	 	 	 
	Satisfaction And Discharge
	 	 	-34-	 
	 
	 	 	 	 
	Section 401. Satisfaction and Discharge of Indenture
	 	 	-34-	 
	 
	 	 	 	 
	Section 402. Application of Trust Money
	 	 	-35-	 






iii 









 






	 	 	 	 	 
	 	 	Page	 
	ARTICLE FIVE
	 	 	 	 
	 
	 	 	 	 
	Remedies
	 	 	-35-	 
	 
	 	 	 	 
	Section 501. Events of Default
	 	 	-35-	 
	 
	 	 	 	 
	Section 502. Acceleration of Maturity; Rescission and Annulment
	 	 	-37-	 
	 
	 	 	 	 
	Section 503. Collection of Indebtedness and Suits for Enforcement by Trustee
	 	 	-38-	 
	 
	 	 	 	 
	Section 504. Trustee May File Proofs of Claim
	 	 	-38-	 
	 
	 	 	 	 
	Section 505. Trustee May Enforce Claims Without Possession of Securities
	 	 	-39-	 
	 
	 	 	 	 
	Section 506. Application of Money Collected
	 	 	-39-	 
	 
	 	 	 	 
	Section 507. Limitation on Suits
	 	 	-39-	 
	 
	 	 	 	 
	Section 508. Unconditional Right of Holders to Receive Principal, Premium and
Interest
	 	 	-40-	 
	 
	 	 	 	 
	Section 509. Restoration of Rights and Remedies
	 	 	-40-	 
	 
	 	 	 	 
	Section 510. Rights and Remedies Cumulative
	 	 	-40-	 
	 
	 	 	 	 
	Section 511. Delay or Omission Not Waiver
	 	 	-41-	 
	 
	 	 	 	 
	Section 512. Control by Holders
	 	 	-41-	 
	 
	 	 	 	 
	Section 513. Waiver of Past Defaults
	 	 	-41-	 
	 
	 	 	 	 
	Section 514. Undertaking for Costs
	 	 	-41-	 
	 
	 	 	 	 
	Section 515. Waiver of Usury, Stay or Extension Laws
	 	 	-42-	 
	 
	 	 	 	 
	ARTICLE SIX
	 	 	 	 
	 
	 	 	 	 
	The Trustee
	 	 	-42-	 
	 
	 	 	 	 
	Section 601. Certain Duties and Responsibilities
	 	 	-42-	 
	 
	 	 	 	 
	Section 602. Notice of Defaults
	 	 	-42-	 
	 
	 	 	 	 
	Section 603. Certain Rights of Trustee
	 	 	-42-	 
	 
	 	 	 	 
	Section 604. Not Responsible for Recitals or Issuance of Securities
	 	 	-44-	 
	 
	 	 	 	 
	Section 605. May Hold Securities
	 	 	-44-	 
	 
	 	 	 	 
	Section 606. Money held in Trust
	 	 	-44-	 
	 
	 	 	 	 
	Section 607. Compensation and Reimbursement
	 	 	-44-	 






iv 









 






	 	 	 	 	 
	 	 	Page	 
	Section 608. Conflicting Interests
	 	 	-45-	 
	 
	 	 	 	 
	Section 609. Corporate Trustee Required; Eligibility
	 	 	-45-	 
	 
	 	 	 	 
	Section 610. Resignation and Removal; Appointment of Successor
	 	 	-45-	 
	 
	 	 	 	 
	Section 611. Acceptance of Appointment by Successor
	 	 	-47-	 
	 
	 	 	 	 
	Section 612. Merger, Conversion, Consolidation or Succession to Business
	 	 	-48-	 
	 
	 	 	 	 
	Section 613. Preferential Collection of Claims Against Company or Guarantor
	 	 	-48-	 
	 
	 	 	 	 
	Section 614. Appointment of Authenticating Agent
	 	 	-48-	 
	 
	 	 	 	 
	ARTICLE SEVEN
	 	 	 	 
	 
	 	 	 	 
	Holders’ lists And Reports by Trustees, Company and Guarantors
	 	 	-50-	 
	 
	 	 	 	 
	Section 701. Company and the Guarantors to Furnish Trustee Names and Addresses
of Holders
	 	 	-50-	 
	 
	 	 	 	 
	Section 702. Preservation of Information; Communications to Holders
	 	 	-50-	 
	 
	 	 	 	 
	Section 703. Reports by Trustee
	 	 	-50-	 
	 
	 	 	 	 
	Section 704. Reports by Company and Guarantors
	 	 	-51-	 
	 
	 	 	 	 
	ARTICLE EIGHT
	 	 	 	 
	 
	 	 	 	 
	Consolidation, Merger, Conveyance, Transfer or Lease
	 	 	-51-	 
	 
	 	 	 	 
	Section 801. Company or Guarantors May Consolidate, Etc., Only on Certain Terms
	 	 	-51-	 
	 
	 	 	 	 
	Section 802. Successor Substituted
	 	 	-52-	 
	 
	 	 	 	 
	Section 803. Assumption by a Guarantor or Subsidiary of Company’s Obligations
	 	 	-52-	 
	 
	 	 	 	 
	ARTICLE NINE
	 	 	 	 
	 
	 	 	 	 
	Supplemental Indentures
	 	 	-55-	 
	 
	 	 	 	 
	Section 901. Supplemental Indentures Without Consent of Holders
	 	 	-55-	 
	 
	 	 	 	 
	Section 902. Supplemental Indentures With Consent of Holders
	 	 	-56-	 
	 
	 	 	 	 
	Section 903. Execution of Supplemental Indentures
	 	 	-57-	 
	 
	 	 	 	 
	Section 904. Effect of Supplemental Indentures
	 	 	-57-	 
	 
	 	 	 	 
	Section 905. Conformity with Trust Indenture Act
	 	 	-57-	 






v 









 






	 	 	 	 	 
	 	 	Page	 
	Section 906. Reference in Securities to Supplemental Indentures
	 	 	-57-	 
	 
	 	 	 	 
	ARTICLE TEN
	 	 	 	 
	 
	 	 	 	 
	Covenants
	 	 	-58-	 
	 
	 	 	 	 
	Section 1001. Payment of Principal, Premium and Interest
	 	 	-58-	 
	 
	 	 	 	 
	Section 1002. Maintenance of Office or Agency
	 	 	-58-	 
	 
	 	 	 	 
	Section 1003. Money for Securities Payments to Be Held in Trust
	 	 	-58-	 
	 
	 	 	 	 
	Section 1004. Additional Amounts
	 	 	-59-	 
	 
	 	 	 	 
	Section 1005. Statement by Officers as to Default
	 	 	-61-	 
	 
	 	 	 	 
	Section 1006. Existence
	 	 	-62-	 
	 
	 	 	 	 
	Section 1007. Limitations on Liens
	 	 	-62-	 
	 
	 	 	 	 
	Section 1009. Waiver of Certain Covenants
	 	 	-65-	 
	 
	 	 	 	 
	ARTICLE ELEVEN
	 	 	 	 
	 
	 	 	 	 
	Redemption of Securities
	 	 	-65-	 
	 
	 	 	 	 
	Section 1101. Applicability of Article
	 	 	-65-	 
	 
	 	 	 	 
	Section 1102. Election to Redeem; Notice To Trustee
	 	 	-65-	 
	 
	 	 	 	 
	Section 1103. Selection by Trustee of Securities to Be Redeemed
	 	 	-66-	 
	 
	 	 	 	 
	Section 1104. Notice of Redemption
	 	 	-66-	 
	 
	 	 	 	 
	Section 1105. Deposit of Redemption Price
	 	 	-67-	 
	 
	 	 	 	 
	Section 1106. Securities Payable on Redemption Date
	 	 	-67-	 
	 
	 	 	 	 
	Section 1107. Securities Redeemed in Part
	 	 	-67-	 
	 
	 	 	 	 
	Section 1108. Optional Redemption Due to Changes in Tax Treatment
	 	 	-68-	 
	 
	 	 	 	 
	ARTICLE TWELVE
	 	 	 	 
	 
	 	 	 	 
	Sinking Funds
	 	 	-69-	 
	 
	 	 	 	 
	Section 1201. Applicability of Article
	 	 	-69-	 
	 
	 	 	 	 
	Section 1202. Satisfaction of Sinking Fund Payments with Securities
	 	 	-69-	 
	 
	 	 	 	 
	Section 1203. Redemption of Securities for Sinking Fund
	 	 	-69-	 






vi









 






	 	 	 	 	 
	 	 	Page	 
	ARTICLE THIRTEEN
	 	 	 	 
	 
	 	 	 	 
	Defeasance And Covenant Defeasance
	 	 	-70-	 
	 
	 	 	 	 
	Section 1301. Option of Company or Guarantors to Effect Defeasance or Covenant
Defeasance
	 	 	-70-	 
	 
	 	 	 	 
	Section 1302. Defeasance and Discharge
	 	 	-70-	 
	 
	 	 	 	 
	Section 1303. Covenant Defeasance
	 	 	-70-	 
	 
	 	 	 	 
	Section 1304. Conditions to Defeasance or Covenant Defeasance
	 	 	-71-	 
	 
	 	 	 	 
	Section 1305. Deposited Money and U.S. Government Obligations to Be Held in
Trust; Miscellaneous Provisions
	 	 	-73-	 
	 
	 	 	 	 
	Section 1306. Reinstatement
	 	 	-73-	 






vii 









 






          INDENTURE, dated as of July 2, 2001, 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
(herein called the “Company”), having its principal office at 55 Collins Street, Melbourne,
Victoria 3000, Australia, Rio Tinto plc, a public limited company duly incorporated and existing
under the laws of England, having its registered office at 6 St. James’s Square, London SW1Y 4LD,
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 55 Collins Street,
Melbourne, Victoria 3000, Australia (each being referred to herein as a “Guarantor” and together as
the “Guarantors”) and The Chase Manhattan Bank, 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 COMPANY




          The Company 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 Company, 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) 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 generally accepted accounting principles, and, except as otherwise herein expressly
provided, the term “generally accepted accounting principles” with respect to any computation
required or permitted hereunder shall mean such accounting principles as are




1









 







generally accepted in the United Kingdom at the date of such computation and 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 the Company or any Guarantor, means either
the board of directors of the Company or either Guarantor, as the case may be, or any duly
authorized committee of such board.




          “Board Resolution”, when used with reference to the Company or any Guarantor, means a copy of
a resolution certified by the Secretary or an Assistant Secretary of the Company 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.




          “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.




2









 








          “Company” means the Person named as the “Company” 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 “Company” shall mean such successor Person.




          “Company Request” or “Company Order” means a written request or order signed in the name of
the Company 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 accounting principles generally accepted
in the United Kingdom), 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 generally accepted accounting principles in the United Kingdom 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 450 West 33rd
Street; 15th Floor, New York, New York 10001.




          “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.




          “Expiration Date” has the meaning specified in Section 104.




3









 








          “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.




          “Investment Company Act” means the Investment Company Act of 1940 and any statute successor
thereto, in each case as amended from time to time.




          “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).




          “Officer’s 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
Secretary (or an attorney-in-fact of one of those persons) of the Company, 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 Officer’s Certificate given pursuant to Section
1005 shall be the principal executive, financial or accounting officer of the Company or the
applicable Guarantor, as the case may be.




          “Opinion of Counsel” means a written opinion of counsel, who may be counsel for the Company,
any of the Guarantors, or other counsel acceptable to the Trustee.




4









 








          “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 Company or a Guarantor)
in trust or set aside and segregated in trust by the Company or a Guarantor (if the Company 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
Company;



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 Company, any of the Guarantors or any other obligor upon the Securities or any Affiliate of the
Company, a Guarantor or of such other obligor shall be disregarded and deemed not to be
Outstanding, except that, in determining whether the 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 pledgee’s right so to act with respect
to such Securities and that the pledgee is not the Company, any of the Guarantors or any other
obligor upon the Securities or any Affiliate of the Company, any of the Guarantors or of such other
obligor.




5









 








          “Paying Agent” means any Person authorized by the Company to pay the principal of or any
premium or interest on any Securities on behalf of the Company 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
the Company) 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 the Company 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 the Company) have no recourse whatsoever to any Guarantor or the Company 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
	 
	 	(iii)	 	recourse to the borrower generally, or directly or indirectly to any Guarantor
or the Company 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




6









 






	 	 	 	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 Australian or United Kingdom generally accepted accounting principles, as
appropriate.




          “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 including the president, any vice president, the
secretary, any assistant secretary, the treasurer, any assistant treasurer, the cashier, any
assistant cashier, any trust officer or assistant trust officer, the controller or any assistant
controller or any other officer of the Trustee customarily performing functions similar to those
performed by any of the above designated officers 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 Company 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 the Company, Rio Tinto Limited (or its successors) or
any Subsidiary of Rio Tinto Limited, any company which is a subsidiary of the Company, Rio Tinto
Limited 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 plc or any Subsidiary of Rio Tinto
plc, any company which is a subsidiary of Rio Tinto plc (or its successors) or that Subsidiary
within the meaning ascribed to the term “subsidiary” in Section 736 of the Companies Act 1985 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 trust’s 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 the Company 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 the Company or any Guarantor to the Trustee to take or
refrain from taking any action under any provision of this Indenture, the Company 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 Officer’s
Certificate, if to be given by an officer of the Company 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;




          (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;




8









 








          (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 the Company 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 the Company or any Guarantor stating that the information with respect to such factual matters
is in the possession of the Company 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 the Company 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 Company 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 such instrument or writing acknowledged to him the execution thereof. Where such execution
is by




9









 







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 the Company
or any Guarantor in reliance thereon, whether or not notation of such action is made upon such
Security.




          The Company 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 Company 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 Company 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
Company 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 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




10









 







Trustee, at the Company’s expense, shall cause notice of such record date, the proposed action
by Holders and the applicable Expiration Date to be given to the Company 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, Company 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 the Company 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: Institutional
Trust Services, or




          (2) the Company 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 the Company 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 the Company or such Guarantor.




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




11









 







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 the Company or a Guarantor shall bind its
successors and assigns, whether so expressed or not.




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.




12









 








SECTION 113. Governing Law.




          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.




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, the Company 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 100 Quentin Roosevelt Blvd., Suite 503, Garden City, NY 11530, and written
notice of said service to the Company 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 Company and the Guarantors, respectively, in any such legal action or proceeding, and the
Company and the Guarantors, respectively, hereby submit to the nonexclusive jurisdiction of any
such court 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 the Company or any of the
Guarantors, as the case may be, with the consent of the Trustee and such successor’s acceptance of
such appointment. The Company 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.




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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 Company 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.




SECTION 202. Form of Face of Security.




[INSERT ANY REQUIRED ORIGINAL ISSUE DISCOUNT LEGEND]




RIO TINTO FINANCE (USA) LIMITED




[TITLE OF SECURITY]




PAYMENT OF PRINCIPAL, [PREMIUM, IF ANY]

AND INTEREST GUARANTEED BY RIO TINTO PLC

AND RIO TINTO LIMITED




			
	 	 	 
	No. ........
	 	$ ........
	 
	 	[CUSIP No. ]






14









 






          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 (herein called the “Company”, 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 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 Company 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 Company 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 or any political subdivision or taxing authority thereof or
therein, unless such taxes, duties, assessments or governmental charges are required by Australia




15









 







or any such subdivision or authority to be withheld or deducted. In that event, the Company
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 Company has caused this instrument to be duly executed.




     Dated:



	 	 	 	 	 
	 

	 	 	 	Rio Tinto Finance (USA) Limited
	 
	 	 	 	 
	 

	 	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 Company (herein called
the “Securities”), issued and to be issued in one or more series under an Indenture, dated as of
.........., 2001 (herein called the “Indenture”, which term shall have the meaning assigned to it in such
instrument), among the Company, Rio Tinto plc, a public limited company duly existing and organized
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 Chase Manhattan Bank, 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 Company, 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




16









 







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
Company, 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,




	 	 	 	 	 	 	 	 	 	 	 	 	 
	 	 	Redemption	 	 	 	 	 	 	Redemption	 
	Year	 	Price	 	 	Year	 	 	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 Company, 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.




	 	 	 	 	 	 	 	 	 
	 	 	Redemption Price	 	 	 	 
	 	 	For Redemption	 	 	Redemption Price For	 
	 	 	Through Operation	 	 	Redemption Otherwise	 
	 	 	of the	 	 	Than Through Operation	 
	Year	 	Sinking Fund	 	 	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.]




17









 








          [If applicable, insert — Notwithstanding the foregoing, the Company 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
Company (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 Company 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 Company 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 Company 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 Company 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 Company 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 Company to enable the Company 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 such deduction or withholding in the case of Clause
(ii) above cannot be avoided by the use of any reasonable measures available to the Company, 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:





18









 








	 	 	 	 	 
	If Redemption During the 12-Month	 	Redemption	 
	Period Commencing	 	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 Company 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. ]




          [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 Company’s 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 Company 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
Company, 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




19









 







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 Company 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 Company, 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 Company 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 Company 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.




          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
Company 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
Company, the Guarantors, the Trustee and any agent of the Company, 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 Company, the Guarantors, the
Trustee nor any such agent shall be affected by notice to the contrary.




20









 








          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 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.




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 Company, 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 6 St. James’s Square, London SW1Y 4LD, England, 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 55 Collins Street, Melbourne, Victoria 3000, Australia (each being referred
to herein as a “Guarantor”, which term includes any successor Person under the




21









 







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.
In the case of the failure of Rio Tinto Finance (USA) Limited, a corporation organized under the
laws of the State of Victoria, Australia (herein called the “Company”, 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 Company. 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, 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;



22









 






     (c) any tax, assessment, or other governmental charge which is payable otherwise than
by withholding form 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 Company 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 European Union Directive on the taxation of savings
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, amount 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 the Company (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 Company 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,




23









 







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 Company 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 Company,
any right to require a proceeding first against the Company, 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 Company 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.




          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.




24









 








	 	 	 	 	 
	 	 	Rio Tinto plc
	 
	 	 	 	 
	 

	 	By:	 	 
	 

	 	 	 	 
	 

	 	 	 	Name:
	 

	 	 	 	Title:
	 
	 	 	 	 
	 	 	Attest:
	 
	 	 	 	 
	 

	 	By:	 	 
	 

	 	 	 	 
	 

	 	 	 	Name:
	 

	 	 	 	Title:
	 
	 	 	 	 
	 	 	Rio Tinto Limited
	 
	 	 	 	 
	 

	 	By:	 	 
	 

	 	 	 	 
	 

	 	 	 	Name:
	 

	 	 	 	Title:
	 
	 	 	 	 
	 	 	Attest:
	 
	 	 	 	 
	 

	 	By:	 	 
	 

	 	 	 	 
	 

	 	 	 	Name:
	 

	 	 	 	Title:






SECTION 206. Form of Trustee’s Certificate of Authentication.




          The Trustee’s 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 Chase Manhattan Bank,

As Trustee





25











 





	 	 	 	 	 
	 	 	 
	 	By  	 	 
	 	 	Authorized Officer 	 
	 	 	 	 
	 



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 Company and the Guarantors, as appropriate, and, subject to Section
303, set forth, or determined in the manner provided, in an Officer’s Certificate, 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 Company 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 Company 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 the Company 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 Company 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




26









 







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;




          (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 Company 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 Company 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;




27









 








          (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;




          (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 Officer’s
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 Company or any Guarantor, a copy of an appropriate record of such
action shall be certified by the Secretary or an Assistant Secretary of the Company 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 Officer’s 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 Company 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 the Company 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 Company or the relevant Guarantor, as the case may be, shall
bind the Company, 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, the
Company may deliver Securities of any series executed by the Company 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




28









 







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
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 Company 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 the Company 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
Trustee’s 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 Officer’s 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 Company, and the Company 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.




29









 








SECTION 304. Temporary Securities.




          Pending the preparation of definitive Securities of any series, the Company may execute, and
upon Company Order the Trustee shall authenticate and make available for 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 Company 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 the Company 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
Company 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.




          The Company 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 the Company 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, the Company 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 Company in a Place of Payment for that series, the Company 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 Company 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 Company and the Guarantors, evidencing the same debt, and entitled




30









 







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 Company or the Trustee) be duly endorsed, or be accompanied by a written
instrument of transfer in form satisfactory to the Company 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 Company 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 Company 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 Company 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.




31









 








SECTION 306. Mutilated, Destroyed, Lost and Stolen Securities.




          If any mutilated Security is surrendered to the Trustee, the Company 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.




          If there shall be delivered to the Company 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 the Company, any Guarantor or the Trustee that such Security has been acquired
by a protected purchaser, the Company 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 Company in its discretion may, instead of issuing a new Security, pay
such Security.




          Upon the issuance of any new Security under this Section, the Company 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
Company 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 Company, 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 Company, at its election in each
case, as provided in Clause (1) or (2) below:






     (1) The Company 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



32









 







Defaulted Interest, which shall be fixed in the following manner. The Company 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 the
Company 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 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 Company, 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 Company of such
Special Record Date and, in the name and at the expense of the Company, 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 Company 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 the Company 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 Company, any
Guarantor, the Trustee and any agent of the Company, 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 the Company, any Guarantor, the Trustee nor any agent of the Company, 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 Company or any




33









 







Guarantor may at any time deliver to the Trustee for cancellation any Securities previously
authenticated and delivered hereunder which the Company 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 the Company has
not issued and sold, and all Securities so delivered shall be promptly cancelled by 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 Company 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.




ARTICLE FOUR




SATISFACTION AND DISCHARGE




SECTION 401. Satisfaction and Discharge of Indenture.




          This Indenture shall upon 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 the Company or any Guarantor to pay any additional amounts as
contemplated by Section 1004), and the Trustee, at the expense of the Company, 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 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 Company or any Guarantor and thereafter repaid
to the Company 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



34









 






(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 Company,




and the Company, 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) the Company or any Guarantor has paid or caused to be paid all other sums payable
hereunder by the Company; and




(3) the Company has delivered to the Trustee an Officer’s 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 the
Company and the Guarantors to the Trustee under Section 607, the obligations of the Company 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 the Company 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.




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





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(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 Officer’s 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 Company 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
Company, 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 Company 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 Company 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 Company 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
Company 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 Company 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 Company or any
Guarantor in an involuntary case or proceeding 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 Company 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 Company 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



36









 






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 Company 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 Company 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 Company 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
Company 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
Company 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.




          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 Company, the Guarantors and the
Trustee, may rescind and annul such declaration and its consequences if





(1) the Company 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,



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     (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.




          The Company 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,


the Company 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.




SECTION 504. Trustee May File Proofs of Claim.




          In case of any judicial proceeding relative to the Company, any Guarantor or any other obligor
upon the Securities, or the property of the Company, 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




38









 







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 Company or any other Person or Persons,
including the Guarantors, legally entitled thereto.



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;



39









 






     (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 Company, 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.




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.




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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.




          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.



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 the Company 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




41









 







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.




          The Company 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 the Company and the
Guarantors each (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 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



42









 






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 the Company 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 the Company 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 Officer’s 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 the Company or any Guarantor, personally or by agent or attorney provided that the
Trustee shall not be entitled to such information which the Company 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 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.



43









 





SECTION 604. Not Responsible for Recitals or Issuance of Securities.




          The recitals contained herein and in the Securities, except the Trustee’s certificates of
authentication, shall be taken as the statements of the Company 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 Company 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 the Company 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 the
Company 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 the Company or any Guarantor,
as the case may be.




SECTION 607. Compensation and Reimbursement.





     The Company and the Guarantors agree




     (1) to pay to the Trustee from time to time such compensation as may be agreed in writing
by the Company 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 Company 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 Company and the Guarantors under
this Section 607, the Trustee shall have a lien prior to the Outstanding Securities of any series



44









 




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.



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 Company 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 petition any court
of competent jurisdiction for the appointment of a successor Trustee with respect to the Securities
of such series.




45









 








          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 the Company 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
the Company 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 the Company 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) the Company
by a Board Resolution may remove the Trustee with respect to all 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.



     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 Company, 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 Company 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 the Company. If no successor Trustee with respect to
the Securities of any series shall have been so appointed by the Company 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 Company 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.



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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 Company, 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 Company, 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 Company, 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 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 Company, 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 Company 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.





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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 Company or Guarantor.




          If and when the Trustee shall be or become a creditor of the Company 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 the Company or any such Guarantor (or any
such other obligor).




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 Trustee’s 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
Company 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,




48









 







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 Company. 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 Company. 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 Company 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 Company 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 Trustee’s certificate of
authentication, an alternative certificate of authentication in the following form:




          This is one of the Securities of the series designated therein referred to in the
within-mentioned Indenture.




	 	 	 	 	 	 	 
	 	 	THE CHASE MANHATTAN BANK,	 	 
	 

	 	 	 	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 Company wishes to have Securities of such series authenticated upon
original issuance, the Trustee, if so requested by the Company 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 the Company with respect of such series of Securities.




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ARTICLE SEVEN




HOLDERS’ LISTS AND REPORTS BY TRUSTEE, COMPANY AND GUARANTORS




SECTION 701. Company and the Guarantors to Furnish Trustee Names and Addresses of Holders.




          The Company 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 Company 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 Company 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 Company, the
Guarantors and the Trustee that neither the Company, 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,




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with the Company and with each Guarantor. The Company will promptly notify the Trustee in
writing or by facsimile when any Securities are listed on any stock exchange.




SECTION 704. Reports by Company and Guarantors.




          The Company 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
Trustee’s receipt of such reports shall not constitute constructive notice of any information
contained therein or determinable from information contained therein, including the Company’s or
any Guarantor’s compliance with any of its covenants hereunder (as to which the Trustee is entitled
to rely exclusively on Officer’s Certificates).




ARTICLE EIGHT




CONSOLIDATION, MERGER, CONVEYANCE, TRANSFER OR LEASE




SECTION 801. Company or Guarantors May Consolidate, Etc., Only on Certain Terms.




          Neither the Company 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 the Company nor any Guarantor shall permit any Person to consolidate with or merge into the
Company or any Guarantor or convey, transfer or lease its properties and assets substantially as an
entirety to the Company or any Guarantor, unless:





     (1) (i) in case the Company 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 the Company is merged or the Person which
acquires by conveyance or transfer, or which leases, the properties and assets of the Company
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 and (ii) 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 either case (i) or (ii) 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 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 Company to be performed or observed and, in the
case of a Guarantor, the due and punctual performance of the Guarantees and the



51









 






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 Company or any Guarantor as a result of such transaction as
having been incurred by the Company 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 Company or any Guarantor would become subject to a mortgage,
pledge, lien, security interest or other encumbrance which would not be permitted by this
Indenture, the Company, 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 Company or applicable Guarantor, as the case may be, has delivered to the Trustee
an Officer’s 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 the Company or any Guarantor with, or merger of the Company or any
Guarantor into, any other Person or any conveyance, transfer or lease of the properties and assets
of the Company or any Guarantor substantially as an entirety in accordance with Section 801, the
successor Person formed by such consolidation or into which the Company 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, the Company 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 Company 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.




SECTION 803. Assumption by a Guarantor or Subsidiary of Company’s Obligations.




     Any Guarantor or any Subsidiary of a Guarantor may assume the obligations of the Company (or
any Person which shall have previously assumed the obligations of the Company)



52









 




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 the Company 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 Subsidiary’s
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;




     (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



53









 






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, 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 European Union Directive on the taxation of savings 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, amount 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 the Company (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 Company 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
Officer’s 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.




     Upon any such assumption, such Guarantor or Subsidiary shall succeed to, and be substituted
for, and may exercise every right and power of, the Company under this Indenture with the same
effect as if such Guarantor or Subsidiary had been named as the “Company” herein, and the Person
named as the “Company” in the first paragraph of this instrument or any successor



54









 




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, the Company 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 the Company or any Guarantor and the
assumption by any such successor of the covenants of the Company or any Guarantor herein and in
the Securities or Guarantees; or




     (2) to add to the covenants of the Company 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 the Company 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




     (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



55









 






     (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 Company, the Guarantors and the Trustee, the Company 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 the
Company 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 the Company 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
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.



56









 




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 Trustee’s 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
Company and the Guarantors shall so determine, new Securities of any series so modified as to
conform, in the opinion of the Trustee and the Company and the Guarantors, to any such supplemental
indenture may be prepared and executed by the Company, 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.




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ARTICLE TEN




COVENANTS




SECTION 1001. Payment of Principal, Premium and Interest.




          The Company covenants and agrees for the benefit of the Holders of each series of Securities
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.




          The Company will maintain in each Place of Payment for any series of Securities 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 the Company in respect of the Securities of that series and this
Indenture may be served.




          The Company 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 the Company 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 the Company and the Guarantors each
hereby appoints the Trustee as its agent to receive all such presentations, surrenders, notices and
demands.




          The Company may also from time to time designate one or more other offices or agencies where
the Securities of one or more series 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 the Company of its obligation to maintain an office or
agency in each Place of Payment for Securities of any series for such purposes. The Company 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 the Company 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.




          Whenever the Company shall have one or more Paying Agents for any series of Securities, 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) the Company
will promptly notify the Trustee of its action or failure so to act.




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          The Company will cause each Paying Agent for any series of Securities 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 Company (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.




          The Company 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 the Company 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 the Company 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 the Company 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 Company on Company Request, or (if then held by the
Company 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 the Company 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 the Company 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 the Company 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 the Company.




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 Company 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, the Company 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 deduction or withholding, shall be not
less than the amounts specified in such Security to which such Holder is entitled; provided
however, that the Company 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:




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     (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 form 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 Company 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, 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 European Union Directive on the taxation of savings 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, amount 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 the Company (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 Company nor any
Guarantor participated in or was a party to such scheme; or



60









 






     (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 Officer’s Certificate, the Company will furnish the Trustee and
the Company’s principal Paying Agent or Paying Agents, if other than the Trustee, with an Officer’s
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 Officer’s Certificate shall specify by country the amount, if any, required to
be withheld on such payments to such Holders of Securities and the Company 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. The Company 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 Officer’s Certificate furnished pursuant to this
Section.




SECTION 1005. Statement by Officers as to Default.




          The Company and the Guarantors each will deliver to the Trustee, within 120 days after the end
of each fiscal year of the Company or applicable Guarantor ending after the date hereof, an
Officer’s Certificate, stating whether or not to the best knowledge of the signers thereof the
Company or the 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 Company or applicable Guarantor
shall be in default, specifying all such defaults and the nature and status thereof of which they
may have knowledge.




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SECTION 1006. Existence.




          Subject to Article Eight, the Company 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 Company 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 Company 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 the Company 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 the Company 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 the Company 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
indebtedness incurred by any Guarantor or the Company 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 the Company 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



62









 






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 the Company 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’, materialmen’s, carriers’, workmen’s,
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
the Company in any Joint Venture, including the revenues and assets derived by any Guarantor or
the Company from such Joint Venture or employed by any Guarantor or the Company 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 the Company securing any Guarantor’s or the
Company’s 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 the Company 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 the Company pursuant to any contract or payments owed to such entity pursuant to
applicable laws rules, regulations or statutes;




     (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 the Company, provided that such industrial revenue,
development or similar bonds are non-recourse to any Guarantor or the Company;




     (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;



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     (21) any Encumbrance securing indebtedness for which any Guarantor or the Company 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 the Company 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 Company) 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 the Company 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 the Company 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 the Company or in which any Guarantor or the Company
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 applicable Guarantor’s or the Company’s proportionate part of such development or operating
expense.




SECTION 1008. Limitation on Sales and Leasebacks.




          So long as any of the Securities are Outstanding, the Guarantors shall not, and shall not
permit the Company 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 the Company for a period
including renewals, in excess of three years of any Property which has been owned by any Guarantor
or the Company for more than 270 days and which has been or is to be sold or transferred by any
Guarantor or the Company 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 the Company could create indebtedness secured by an Encumbrance pursuant
to Section 1007 on the Property to be leased back in an amount



64









 







equal to the indebtedness attributable to such sale and leaseback transaction without
equally and ratably securing the Securities; or




(2) a Guarantor or the Company, within one year after the sale or transfer shall have been
made by a Guarantor or the Company, 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 the
Company 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 the
Company.



          Nothing herein shall restrict the ability of any Subsidiaries of any Guarantor (other than the
Company) 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 Company 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 the Company 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.




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 the Company 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 the Company, the Company shall, at least 60 days prior to the
Redemption Date fixed by the Company (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




65









 







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 Company
shall furnish the Trustee with an Officer’s 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 Company 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.




          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



66









 






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 the Company shall be
given by the Company or, at the Company’s request, by the Trustee in the name and at the expense of
the Company 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 Company shall deposit
with the Trustee or with a Paying Agent (or, if the Company 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 Company shall default in the payment of the Redemption Price and
accrued interest) such Securities shall cease to bear interest. Upon surrender of any such Security
for redemption in accordance with said notice, such Security shall be paid by the Company 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 Company or the Trustee so requires, due endorsement by, or a written
instrument of transfer in form satisfactory to the Company and the Trustee duly executed by, the
Holder thereof or his attorney duly authorized in writing), and the Company shall execute, and the
Trustee shall authenticate and make available for delivery to the Holder of such Security




67









 







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 Company or any Guarantor (or
any Subsidiary of any Guarantor which has assumed the Company’s 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
Company or any Guarantor (or, in the case of any Subsidiary of any Guarantor which has assumed the
Company’s 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 the Company’s obligations by any Subsidiary pursuant to Section 803, becomes
effective after the date of such assumption), (i) the Company 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 the
Company (or such Subsidiary) to enable the Company (or such Subsidiary) to make any payment of
principal, premium, if any, or interest and, in each case, the payment of such additional 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 the Company, any Guarantor or the
Subsidiary. Prior to the giving of notice of redemption of such Securities pursuant to this
Indenture, the Company or the relevant Guarantor (or such Subsidiary) will deliver to the Trustee
an Officer’s Certificate, stating that the Company 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 the Company 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 Officer’s Certificate, stating that such Person is entitled
to




68









 







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 Company (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 Company 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 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 Company
will deliver to the Trustee an Officer’s 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 Company in the manner




69









 







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 Company or Guarantors to Effect Defeasance or Covenant Defeasance.




          The Company 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 the Company 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 Company 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 the Company 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 concerned (and
the Trustee, at the expense of the Company 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 the Company 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,
the Company 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 the Company 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 Company 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




70









 







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 Company 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 Company 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 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.



71









 






     (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 Company or a Guarantor shall have delivered to the
Trustee an Opinion of Counsel stating that (A) the Company 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 Company 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 Company 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 Company or a Guarantor shall have delivered to the Trustee an Officer’s
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.




     (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 Company 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.



72









 






     (10) The Company or a Guarantor shall have delivered to the Trustee an Officer’s
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 the Company 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 Company 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 Company or any Guarantor from time to time upon Company 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 Company 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 the Company or any Guarantor makes any payment of principal of or any premium or interest
on any such Security following such reinstatement of its obligations, the Company 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.




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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/  I.C. Ratnage	 	 
	 
	 	 	 	 	 	 

	 	 
	Attest:


	 	 	 	Name:	 	I.C. Ratnage	 	 
	By
	 	/s/  Dwight Gomes	 	Title:	 	Attorney	 	 
	 
	 	 	 	 	 	 	 	 
	Name:
	 	Dwight Gomes	 	 	 	 	 	 
	Title:
	 	Corporate Counsel	 	 	 	 	 	 
	 
	 	 	 	 	 	 	 	 
	 	 	 	 	Rio Tinto plc	 	 
	 	 	 	 	as Guarantor	 	 
	 
	 	 	 	 	 	 	 	 
	 
	 	 	 	By	 	/s/ C R H Bull 
	 	 
	Attest:

	 	 	 	Name:	 	C R H Bull	 	 
	By
	 	/s/ Dwight Gomes	 	Title:	 	Director	 	 
	 
	 	 	 	 	 	 	 	 
	Name:
	 	Dwight Gomes	 	 	 	 	 	 
	Title:
	 	Corporate Counsel	 	 	 	 	 	 
	 
	 	 	 	 	 	 	 	 
	 	 	 	 	Rio Tinto Limited	 	 
	 	 	 	 	as Guarantor	 	 
	 
	 	 	 	 	 	 	 	 
	 
	 	 	 	By	 	/s/ C R H
Bull
	 	 
	Attest:
	 	 	 	Name:	 	C R H Bull	 	 
	By
	 	/s/ Dwight Gomes	 	Title:	 	Director	 	 
	 
	 	 	 	 	 	 	 	 
	Name:
	 	Dwight Gomes	 	 	 	 	 	 
	Title:
	 	Corporate Counsel	 	 	 	 	 	 
	 
	 	 	 	 	 	 	 	 
	 	 	 	 	The Chase Manhattan Bank	 	 
	 	 	 	 	as Trustee	 	 
	 
	 	 	 	 	 	 	 	 
	 
	 	 	 	By	 	/s/ Lucia Jaklitsch 
	 	 
	Attest:
	 	 	 	Name:	 	Lucia Jaklitsch	 	 
	By
	 	/s/ Kevin F. Binnie	 	Title:	 	Assistant Vice President	 	 
	 
	 	 	 	 	 	 	 	 
	Name:
	 	Kevin F. Binnie	 	 	 	 	 	 
	Title:
	 	Vice President	 	 	 	 	 	 







74