Exhibit 10.1





Exhibit 10.1




EXECUTION COPY




CREDIT AGREEMENT




dated as of




May 20, 2011




among




NEWMONT MINING CORPORATION,




The Lenders Party Hereto




and




JPMORGAN CHASE BANK, N.A.,

as Administrative Agent,




CITIBANK, N.A., HSBC BANK USA, NATIONAL ASSOCIATION, SUMITOMO

MITSUI BANKING CORPORATION, THE BANK OF NOVA SCOTIA, THE

ROYAL BANK OF SCOTLAND PLC and UBS LOAN FINANCE LLC,

as Co-Syndication Agents




and




BANK OF MONTREAL, BNP PARIBAS and DEUTSCHE BANK AG NEW YORK

BRANCH

as Co-Documentation Agents




J. P. MORGAN SECURITIES LLC,

as Sole Lead Arranger and Sole Bookrunner




 


 









 







TABLE OF CONTENTS




	 	 	 	 	 
	 	 	Page	 
	 
	 	 	 	 
	ARTICLE I

	 
	 	 	 	 
	Definitions

	 
	 	 	 	 
	SECTION 1.01. Defined Terms
	 	 	1	 
	SECTION 1.02. Classification of Loans and Borrowings
	 	 	21	 
	SECTION 1.03. Terms Generally
	 	 	21	 
	SECTION 1.04. Accounting Terms; GAAP
	 	 	21	 
	 
	 	 	 	 
	ARTICLE II

	 
	 	 	 	 
	The Credits

	 
	 	 	 	 
	SECTION 2.01. Commitments
	 	 	22	 
	SECTION 2.02. Loans and Borrowings
	 	 	22	 
	SECTION 2.03. Requests for Revolving Borrowings
	 	 	23	 
	SECTION 2.04. Competitive Bid Procedure
	 	 	24	 
	SECTION 2.05. Swingline Loans
	 	 	26	 
	SECTION 2.06. Letters of Credit
	 	 	27	 
	SECTION 2.07. Funding of Borrowings
	 	 	33	 
	SECTION 2.08. Interest Elections
	 	 	34	 
	SECTION 2.09. Termination and Reduction of Commitments; Increase of Commitments
	 	 	35	 
	SECTION 2.10. Repayment of Loans; Evidence of Debt
	 	 	37	 
	SECTION 2.11. Prepayment of Loans
	 	 	38	 
	SECTION 2.12. Fees
	 	 	39	 
	SECTION 2.13. Interest
	 	 	40	 
	SECTION 2.14. Alternate Rate of Interest
	 	 	41	 
	SECTION 2.15. Increased Costs
	 	 	41	 
	SECTION 2.16. Break Funding Payments
	 	 	43	 
	SECTION 2.17. Taxes
	 	 	43	 
	SECTION 2.18. Payments Generally; Pro Rata Treatment; Sharing of Set-offs
	 	 	47	 
	SECTION 2.19. Mitigation Obligations; Replacement of Lenders
	 	 	49	 
	SECTION 2.20. Defaulting Lenders
	 	 	50	 
	SECTION 2.21. Extension of Maturity Date
	 	 	52	 






 


 









 





	 	 	 	 	 
	 	 	Page	 
	 
	 	 	 	 
	ARTICLE III

	 
	 	 	 	 
	Representations and Warranties

	 
	 	 	 	 
	SECTION 3.01. Organization; Powers
	 	 	55	 
	SECTION 3.02. Authorization; Enforceability
	 	 	55	 
	SECTION 3.03. Governmental Approvals; No Conflicts
	 	 	55	 
	SECTION 3.04. Financial Condition; No Material Adverse Change
	 	 	55	 
	SECTION 3.05. Properties
	 	 	56	 
	SECTION 3.06. Litigation and Environmental Matters
	 	 	56	 
	SECTION 3.07. Compliance with Laws and Agreements
	 	 	56	 
	SECTION 3.08. Investment Company Status
	 	 	56	 
	SECTION 3.09. Taxes
	 	 	57	 
	SECTION 3.10. ERISA
	 	 	57	 
	SECTION 3.11. Disclosure
	 	 	57	 
	SECTION 3.12. Federal Regulations
	 	 	57	 
	SECTION 3.13. Subsidiaries
	 	 	58	 
	SECTION 3.14. OFAC
	 	 	58	 
	SECTION 3.15. FCPA
	 	 	58	 
	 
	 	 	 	 
	ARTICLE IV

	 
	 	 	 	 
	Conditions

	 
	 	 	 	 
	SECTION 4.01. Effective Date
	 	 	58	 
	SECTION 4.02. Each Credit Event
	 	 	60	 
	 
	 	 	 	 
	ARTICLE V

	 
	 	 	 	 
	Affirmative Covenants

	 
	 	 	 	 
	SECTION 5.01. Financial Statements and Other Information
	 	 	61	 
	SECTION 5.02. Notices of Material Events
	 	 	62	 
	SECTION 5.03. Existence; Conduct of Business
	 	 	62	 
	SECTION 5.04. Payment of Obligations
	 	 	63	 
	SECTION 5.05. Maintenance of Properties; Insurance
	 	 	63	 
	SECTION 5.06. Books and Records; Inspection Rights
	 	 	63	 
	SECTION 5.07. Compliance with Laws
	 	 	63	 
	SECTION 5.08. Use of Proceeds
	 	 	63	 
	SECTION 5.09. Further Assurances
	 	 	63	 
	 
	 	 	 	 
	ARTICLE VI

	 
	 	 	 	 
	Negative Covenants

	 
	 	 	 	 
	SECTION 6.01. Consolidated Indebtedness
	 	 	64	 
	SECTION 6.02. Liens
	 	 	64	 
	SECTION 6.03. Fundamental Changes
	 	 	65	 






 


 









 





	 	 	 	 	 
	 	 	Page	 
	 
	 	 	 	 
	ARTICLE VII

	 
	 	 	 	 
	Events of Default

	 
	 	 	 	 
	ARTICLE VIII

	 
	 	 	 	 
	The Administrative Agent

	 
	 	 	 	 
	ARTICLE IX

	 
	 	 	 	 
	Miscellaneous

	 
	 	 	 	 
	SECTION 9.01. Notices
	 	 	72	 
	SECTION 9.02. Waivers; Amendments
	 	 	73	 
	SECTION 9.03. Expenses; Indemnity; Damage Waiver
	 	 	75	 
	SECTION 9.04. Successors and Assigns
	 	 	77	 
	SECTION 9.05. Survival
	 	 	80	 
	SECTION 9.06. Counterparts; Integration; Effectiveness
	 	 	80	 
	SECTION 9.07. Severability
	 	 	80	 
	SECTION 9.08. Right of Setoff
	 	 	81	 
	SECTION 9.09. Governing Law; Jurisdiction; Consent to Service of Process
	 	 	81	 
	SECTION 9.10. WAIVER OF JURY TRIAL
	 	 	82	 
	SECTION 9.11. Headings
	 	 	82	 
	SECTION 9.12. Confidentiality
	 	 	82	 
	SECTION 9.13. USA Patriot Act
	 	 	83	 
	SECTION 9.14. Release of Newmont USA as a Guarantor
	 	 	83	 
	 
	 	 	 	 
	ARTICLE X

	 
	 	 	 	 
	Treatment of Loans for Purposes of Regulation U

	 
	 	 	 	 
	SECTION 10.01. Treatment for Purposes of Regulation U
	 	 	84	 
	SECTION 10.02. Allocation of Credit
	 	 	84	 
	SECTION 10.03. Allocation of Collateral
	 	 	85	 
	SECTION 10.04. Allocation of Payments
	 	 	86	 
	SECTION 10.05. Information
	 	 	86	 
	SECTION 10.06. Individual Lender Responsibility
	 	 	86	 





 


 









 





SCHEDULES




	 	 	 	 	 
	Schedule 1.01 — Existing Letters of Credit
	 	 	 	 
	Schedule 2.01 — Commitments
	 	 	 	 
	Schedule 3.06 — Disclosed Matters
	 	 	 	 
	Schedule 3.13 — Subsidiaries
	 	 	 	 
	Schedule 6.02 — Existing Liens
	 	 	 	 






EXHIBITS:




	 	 	 	 	 
	Exhibit A     Form of Assignment and Acceptance
	 	 	 	 
	Exhibit B     Form of Assumption Agreement
	 	 	 	 
	Exhibit C     Form of U.S. Tax Certificate
	 	 	 	 
	Exhibit D     Form of Guarantee Agreement
	 	 	 	 
	Exhibit E     Form of Maturity Date Extension Request
	 	 	 	 





 


 









 






CREDIT AGREEMENT dated as of May 20, 2011 (this “Agreement”),
among NEWMONT MINING CORPORATION, a Delaware corporation (the
“Borrower”), the Lenders party hereto and JPMORGAN CHASE BANK,
N.A., as Administrative Agent.



The Borrower has requested the Lenders (such term and each other capitalized term used and not
otherwise defined herein having the meaning assigned to it in Article I) extend credit in the form
of Commitments under which the Borrower may obtain Revolving Loans from time to time on or after
the Effective Date and prior to the Maturity Date in an aggregate principal amount at any time
outstanding that will not result in the Revolving Credit Exposure, together with the total
Competitive Loan Exposure, exceeding $2,500,000,000. The Borrower has also requested the Lenders
provide procedures under which the Borrower may obtain Competitive Loans and Swingline Loans from
the Lenders and Letters of Credit from the Issuing Banks. The proceeds of Borrowings hereunder are
to be used for general corporate purposes of the Borrower and its subsidiaries and the Letters of
Credit will be used to support payment obligations incurred in the ordinary course of business by
the Borrower and its subsidiaries.



The Lenders and Issuing Banks are willing to establish the credit facility referred to in the
preceding paragraph and extend credit upon the terms and subject to the conditions set forth
herein. Accordingly, for good and valuable consideration, the receipt and sufficiency of which are
hereby acknowledged, the parties hereto agree as follows:



ARTICLE I




Definitions




SECTION 1.01. Defined Terms. As used in this Agreement, the following terms have the
meanings specified below:



“ABR”, when used in reference to any Loan or Borrowing, refers to whether such Loan,
or the Loans comprising such Borrowing, are bearing interest at a rate determined by reference to
the Alternate Base Rate.



“Additional Credit Assumption Agreement” means an additional credit assumption
agreement, in form and substance reasonably satisfactory to the Administrative Agent and the
Borrower, among the Borrower, the Administrative Agent and one or more Additional Credit Lenders.



“Additional Credit Commitments” means the Commitment of any Lender (including any
increase to a Lender’s then existing Commitment), established pursuant to Section 2.09(d), to make
Loans to the Borrower.


 


 









 





“Additional Credit Lenders” means a Lender with Additional Credit Commitments (or a
Person that will become such a Lender pursuant to Section 2.09(d)).



“Adjusted LIBO Rate” means, with respect to any Eurocurrency Borrowing for any
Interest Period, an interest rate per annum (rounded upwards, if necessary, to the next 1/100 of
1.00%) equal to (a) the LIBO Rate for such Interest Period multiplied by (b) the Statutory Reserve
Rate.



“Administrative Agent” means JPMorgan Chase Bank, N.A., in its capacity as
administrative agent for the Lenders hereunder, or any successor thereto appointed in accordance
with Article VIII.



“Administrative Questionnaire” means an Administrative Questionnaire in a form
supplied by the Administrative Agent.



“Affiliate” means, with respect to a specified Person, another Person that directly,
or indirectly through one or more intermediaries, Controls or is Controlled by or is under common
Control with the Person specified.



“Agreement” has the meaning ascribed to such term in the preamble hereto.



“Alternate Base Rate” means, for any day, a rate per annum equal to the greatest of
(a) the Prime Rate in effect on such day, (b) the Federal Funds Effective Rate in effect on such
day plus 1/2 of 1.00% and (c) the Adjusted LIBO Rate on such day (or if such day is not a Business
Day, the immediately preceding Business Day) for a deposit in dollars with a maturity of one month
plus 1.00%. For purposes of clause (c) above, the Adjusted LIBO Rate on any day shall be based on
the rate per annum appearing on the Reuters “LIBOR01” screen displaying British Bankers’
Association Interest Settlement Rates (or on any successor or substitute screen provided by
Reuters, or any successor to or substitute for such service, providing rate quotations comparable
to those currently provided on such screen, as determined by the Administrative Agent from time to
time for purposes of providing quotations of interest rates applicable to dollar deposits in the
London interbank market) at approximately 11:00 a.m., London time, two Business Days prior to such
day for deposits in dollars with a maturity of one month. Any change in the Alternate Base Rate
due to a change in the Prime Rate, the Federal Funds Effective Rate or the Adjusted LIBO Rate shall
be effective from and including the effective date of such change in the Prime Rate, the Federal
Funds Effective Rate or the Adjusted LIBO Rate, respectively.



“Arranger” means J.P. Morgan Securities LLC, in its capacity as the sole lead arranger
and sole bookrunner for the credit facilities provided for herein.



“Applicable Percentage” means, with respect to any Lender, the percentage of the total
Commitments represented by such Lender’s Commitment; provided that if any Defaulting Lender
exists at such time, the Applicable Percentages shall be calculated disregarding such Defaulting
Lender’s Commitment. If the Commitments have terminated or expired, the Applicable Percentages
shall be
determined based upon the Commitments most recently in effect, giving effect to any
assignments and to any Lender’s status as a Defaulting Lender at the time of determination.


 


2









 





“Applicable Rate” means, for any day, with respect to the facility fees, any
Eurodollar Revolving Loan, any ABR Revolving Loan, any Financial Letter of Credit participation fee
or any Performance Letter of Credit participation fee, the applicable rate per annum set forth
under “Facility Fee”, “LIBOR Margin”, “ABR Margin”, “Financial LC Participation Fee” or
“Performance LC Participation Fee”, as the case may be, based upon the ratings by Moody’s and S&P
applicable on such date to the Index Debt:



	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	 	 	 	 	 	 	 	 	 	 	 	 	 	 	Financial LC	 	 	Performance LCs	 
	Rating	 	Facility Fee	 	 	LIBOR Margin	 	 	ABR Margin	 	 	Participation Fee	 	 	Participation Fee	 
	(Moody’s, S&P)	 	(% per annum)	 	 	(% per annum)	 	 	(% per annum)	 	 	(% per annum)	 	 	(% per annum)	 
	Category 1


A/A2 or higher	 	 	0.100	%	 	 	0.900	%	 	 	0.000	%	 	 	0.900	%	 	 	0.450	%
	Category 2


A-/A3	 	 	0.125	%	 	 	1.000	%	 	 	0.000	%	 	 	1.000	%	 	 	0.500	%
	Category 3


BBB+/Baa1	 	 	0.175	%	 	 	1.075	%	 	 	0.075	%	 	 	1.075	%	 	 	0.5375	%
	Category 4


BBB/Baa2	 	 	0.250	%	 	 	1.250	%	 	 	0.250	%	 	 	1.250	%	 	 	0.625	%
	Category 5


BBB-/Baa3 or lower
(or unrated)	 	 	0.300	%	 	 	1.575	%	 	 	0.575	%	 	 	1.575	%	 	 	0.7875	%






For purposes of the foregoing, (i) if either Moody’s or S&P shall not have in effect a rating
for the Index Debt (other than by reason of the circumstances referred to in the last sentence of
this definition), then such rating agency shall be deemed to have established a rating in Category
5; (ii) if the ratings established or deemed to have been established by Moody’s and S&P for the
Index Debt shall fall within different Categories, the Applicable Rate shall be based on the higher
of the two ratings unless one of the two ratings is more than one Category lower than the other, in
which case the Applicable Rate shall be determined by reference to the Category next below that of
the higher of the two ratings and (iii) if the ratings established or deemed to have been
established by Moody’s and S&P for the Index Debt shall be changed (other than as a result of a
change in the rating system of Moody’s or S&P), such change shall be effective as of the date on
which it is first announced by the applicable rating agency. Each change in the Applicable Rate
shall apply during the period commencing on the effective date of such change and ending on the
date immediately preceding the effective date of the next such change. If the rating system of
Moody’s or S&P shall change, or if either such rating agency shall cease to be in the business of
rating corporate debt obligations, the Borrower and the Lenders shall negotiate in good faith to
amend this definition to reflect such changed rating system or the unavailability of ratings from
such rating agency and, pending the effectiveness of any such amendment, the Applicable Rate shall
be determined by reference to the rating most recently in effect prior to such change or cessation.


 


3









 





“Assignment and Acceptance” means an assignment and acceptance entered into by a
Lender and an assignee (with the consent of any party whose consent is required by Section 9.04),
and accepted by the Administrative Agent, in the form of Exhibit A or any other form
approved by the Administrative Agent.



“Assumption Agreement” means an assumption agreement in the form of Exhibit B
or any other form approved by the Administrative Agent entered into by any Person that has merged
or consolidated with the Borrower where such Person is the surviving corporation.



“Availability Period” means the period from and including the Effective Date to but
excluding the earlier of the Maturity Date and the date of termination of the Commitments.



“Bankruptcy Event” means, with respect to any Person, that such Person has become the
subject of a bankruptcy or insolvency proceeding, or has had a receiver, conservator, trustee,
administrator, custodian, assignee for the benefit of creditors or similar Person charged with the
reorganization or liquidation of its business appointed for it, or, in the good faith determination
of the Administrative Agent, has taken any action in furtherance of, or indicating its consent to,
approval of or acquiescence in, any such proceeding or appointment; provided that a
Bankruptcy Event shall not result solely by virtue of any ownership interest, or the acquisition of
any ownership interest, in such Person by a Governmental Authority; provided,
however, that such ownership interest does not result in or provide such Person with
immunity from the jurisdiction of courts within the United States of America or from the
enforcement of judgments or writs of attachment on its assets or permit such Person (or such
Governmental Authority) to reject, repudiate, disavow or disaffirm any agreements made by such
Person.



“Board” means the Board of Governors of the Federal Reserve System of the United
States of America.



“Borrower” has the meaning ascribed such term in the preamble to this Agreement.



“Borrowing” means (a) Revolving Loans of the same Type made, converted or continued on
the same date and, in the case of Eurodollar Loans, as to which a single Interest Period is in
effect, (b) a Competitive Loan or group of Competitive Loans of the same Type made on the same date
and as to which a single Interest Period is in effect or (c) a Swingline Loan.



“Borrowing Request” means a request by the Borrower for a Revolving Borrowing in
accordance with Section 2.03.



“Business Day” means any day that is not a Saturday, Sunday or other day on which
commercial banks in New York City are authorized or required by law to remain closed;
provided that when used in connection with a Eurodollar Loan, the term “Business
Day” shall also exclude any day on which banks are not open for dealings in dollar deposits in
the London interbank market.


 


4









 





“Capital Lease Obligations” of any Person means the obligations of such Person to pay
rent or other amounts under any lease of (or other arrangement conveying the right to use) real or
personal property, or a combination thereof, which obligations are required to be classified and
accounted for as capital leases on a balance sheet of such Person under GAAP, and the amount of
such obligations shall be the capitalized amount thereof determined in accordance with GAAP.



“Change in Control” means (a) the acquisition of ownership, directly or indirectly,
beneficially or of record, by any Person or group (within the meaning of the Exchange Act), of
shares representing more than 50% of the aggregate ordinary voting power represented by the issued
and outstanding capital stock of the Borrower, (b) the occupation of a majority of the seats (other
than vacant seats) on the board of directors of the Borrower by Persons who were neither (i)
nominated by the board of directors of the Borrower nor (ii) appointed by directors so nominated or
(c) for so long as Newmont USA is a Guarantor of the Obligations, the Borrower shall cease to own,
directly or through subsidiaries, capital stock and other equity interests of Newmont USA,
representing, after giving effect to ownership attributable to all minority interests in
subsidiaries through which such capital stock or equity interests are indirectly owned, at least
51% of the economic interest in Newmont USA represented by all of its outstanding capital stock and
other equity securities.



“Change in Law” means the occurrence, after the date of this Agreement, of any of the
following: (a) the adoption of any rule, regulation, treaty or other law, (b) any change in any
rule, regulation, treaty or other law or in the administration, interpretation, implementation or
application thereof by any Governmental Authority or (c) the making or issuance of any request,
rule, guideline or directive (whether or not having the force of law) of any Governmental
Authority; provided that, notwithstanding anything herein to the contrary, the Dodd-Frank
Wall Street Reform and Consumer Protection Act and all requests, rules, guidelines or directives
thereunder or issued in connection therewith shall be deemed to be a “Change in Law”, regardless of
the date enacted, adopted, promulgated or issued.



“Class”, when used in reference to any Loan or Borrowing, refers to whether such Loan,
or the Loans comprising such Borrowing, are Revolving Loans, Competitive Loans or Swingline Loans.



“Code” means the Internal Revenue Code of 1986, as amended.



“Commission” means the Securities and Exchange Commission.



“Commitment” means, with respect to each Lender, the commitment of such Lender to make
Revolving Loans pursuant to Section 2.01(a), to acquire participations in Swingline Loans pursuant
to Section 2.05 and to acquire participations in Letters of Credit pursuant to Section 2.06,
expressed as an amount representing the maximum aggregate permitted amount of such Lender’s
Revolving Credit Exposure hereunder, as such commitment may be (a) reduced from time to time
pursuant to Section 2.09, (b) increased from time to time pursuant to Section 2.09(d) and (c)
reduced or
increased from time to time pursuant to assignments by or to such Lender pursuant to Section
9.04. The initial amount of each Lender’s Commitment is set forth on Schedule 2.01, in the
Additional Credit Assumption Agreement pursuant to which such Lender shall have obtained an
Additional Credit Commitment, or in the Assignment and Acceptance pursuant to which such Lender
shall have assumed its Commitment, as applicable. The aggregate amount of the Commitments on the
date hereof is $2,500,000,000.


 


5









 





“Commodity Hedging Agreement” means any commodity price protection agreement or other
commodity price hedging agreement to which the Borrower or any Significant Subsidiary is a party,
but, in any event, shall not include any agreement for the sale in the ordinary course of business
and on standard trade terms of any commodity produced (a) from properties or (b) by other interests
owned by the Borrower or its Subsidiaries.



“Competitive Bid” means an offer by a Lender to make a Competitive Loan in accordance
with Section 2.04.



“Competitive Bid Rate” means, with respect to any Competitive Bid, the Margin or the
Fixed Rate, as applicable, offered by the Lender making such Competitive Bid.



“Competitive Bid Request” means a request by the Borrower for Competitive Bids in
accordance with Section 2.04.



“Competitive Loan” means a Loan made pursuant to Section 2.04.



“Competitive Loan Exposure” means, at any time, the aggregate principal amount of
Competitive Loans outstanding at such time. The Competitive Loan Exposure of any Lender at any
time shall be the aggregate principal amount of the outstanding Competitive Loans of such Lender at
such time.



“Consenting Lender” has the meaning assigned to such term in Section 2.21.



“Contingent Obligation” means as to any Person, any obligation of such Person
guaranteeing or in effect guaranteeing any Indebtedness, leases, dividends or other obligations
(“primary obligations”) of any other Person (the “primary obligor”) in any manner,
whether directly or indirectly, including, without limitation, any obligation of such Person,
whether or not contingent (a) to purchase any such primary obligation or any property constituting
direct or indirect security therefor, (b) to advance or supply funds (i) for the purchase or
payment of any such primary obligation or (ii) to maintain working capital or equity capital of the
primary obligor or otherwise to maintain the net worth or solvency of the primary obligor, (c) to
purchase property, securities or services primarily for the purpose of assuring the owner of any
such primary obligation of the ability of the primary obligor to make payment of such primary
obligation or (d) otherwise to assure or hold harmless the owner of any such primary obligation
against loss in respect thereof; provided, however, that the term Contingent
Obligation shall not
include endorsements of instruments for deposit or collection in the ordinary course of
business. Unless otherwise limited by the terms of such Contingent Obligation, the amount of any
Contingent Obligation shall be deemed to be an amount equal to the stated or determinable amount of
the primary obligation in respect of which such Contingent Obligation is made or, if not stated or
determinable, the maximum reasonably anticipated liability in respect thereof as determined by the
Borrower in good faith.


 


6









 





“Control” means the possession, directly or indirectly, of the power to direct or
cause the direction of the management or policies of a Person, whether through the ability to
exercise voting power, by contract or otherwise. “Controlling” and “Controlled”
have meanings correlative thereto.



“Credit Party” means the Administrative Agent, each Issuing Bank, the Swingline Lender
and each other Lender.



“Declining Lender” has the meaning assigned to such term in Section 2.21.



“Default” means any event or condition which constitutes an Event of Default or which
upon notice, lapse of time or both would, unless cured or waived, become an Event of Default.



“Defaulting Lender” means any Lender that (a) has failed, within two
Business Days of the date required to be funded or paid, (i) to fund any portion of its Loans, (ii)
to fund any portion of its participations in Letters of Credit or Swingline Loans or (iii) to pay
to any Credit Party any other amount required to be paid by it hereunder, unless, in the case of
clause (i) above, such Lender notifies the Administrative Agent in writing that such failure is the
result of such Lender’s good faith determination that a condition precedent to funding
(specifically identified in such writing, including, if applicable, by reference to a specific
Default) has not been satisfied, (b) has notified the Borrower or any Credit Party in writing, or
has made a public statement, to the effect that it does not intend or expect to comply with any of
its funding obligations under this Agreement (unless such writing or public statement indicates
that such position is based on such Lender’s good-faith determination that a condition precedent
(specifically identified in such writing, including, if applicable, by reference to a specific
Default) to funding a Loan cannot be satisfied) or generally under other agreements in which it
commits to extend credit, (c) has failed, within three Business Days after request by a Credit
Party made in good faith to provide a certification in writing from an authorized officer of such
Lender that it will comply with its obligations to fund prospective Loans and participations in
then outstanding Letters of Credit and Swingline Loans, provided that such Lender shall
cease to be a Defaulting Lender pursuant to this clause (c) upon such Credit Party’s receipt of
such certification in form and substance satisfactory to it and the Administrative Agent, or (d)
has become the subject of a Bankruptcy Event.



“Disclosed Matters” means the actions, suits and proceedings and the environmental
matters disclosed in Schedule 3.06 or in the Form 10-Q of the Borrower, in respect of its fiscal
quarter ended March 31, 2011.


 


7









 





“dollars” or “$” refers to lawful money of the United States of America.



“Effective Date” means the date on which the conditions specified in Section 4.01 are
satisfied (or waived in accordance with Section 9.02).



“Environmental Laws” means all laws, rules, regulations, codes, ordinances, orders,
decrees, judgments, injunctions, notices or binding agreements issued, promulgated or entered into
by any Governmental Authority, relating in any way to the environment, preservation or reclamation
of natural resources, the management, release or threatened release of any Hazardous Material or to
health and safety matters.



“Environmental Liability” means any liability, contingent or otherwise (including any
liability for damages, costs of investigation, reclamation or remediation, fines, penalties or
indemnities), of the Borrower or any Subsidiary directly or indirectly resulting from or based upon
(a) compliance or non-compliance with any Environmental Law, (b) the generation, use, handling,
transportation, storage, treatment or disposal of any Hazardous Materials, (c) exposure to any
Hazardous Materials, (d) the presence, release or threatened release of any Hazardous Materials or
(e) any contract, agreement or other consensual arrangement pursuant to which liability is assumed
or imposed with respect to any of the foregoing.



“ERISA” means the Employee Retirement Income Security Act of 1974, as
amended from time to time.



“ERISA Affiliate” means any trade or business (whether or not incorporated) that,
together with the Borrower, is treated as a single employer under Section 414(b) or (c) of the
Code.



“ERISA Event” means (a) any “reportable event”, as defined in Section 4043 of ERISA or
the regulations issued thereunder, with respect to a US Plan (other than an event for which the
30-day notice period is waived) (or, with respect to a Plan that is not a US Plan, any similar
event under any similar non-US law, regulation or rule); (b) failure by any US Plan to meet the
minimum funding standards (as defined in Section 412 of the Code or Section 302 of ERISA)
applicable to such US Plan in each instance, whether or not waived (or, with respect to a Plan that
is not a US Plan, any similar funding deficiency under any similar non-US law, regulation or rule);
(c) the filing pursuant to Section 412(c) of the Code or Section 302(c) of ERISA of an application
for a waiver of the minimum funding standard with respect to any Plan (or, with respect to a Plan
that is not a US Plan, any similar filing under any similar non-US law, regulation or rule); (d)
the incurrence by the Borrower or any of its ERISA Affiliates of any liability under Title IV of
ERISA with respect to the termination of any Plan (or, with respect to a Plan that is not a US
Plan, the incurrence of any similar liability under any similar non-US law, regulation or rule);
(e) the receipt by the Borrower or any ERISA Affiliate from the PBGC, any non-US Governmental
Authority (with respect to a Plan that is not a US Plan) or a plan administrator of any notice
relating to an intention to terminate any Plan or Plans or to appoint a trustee to administer any
Plan; (f) the incurrence by the Borrower or any of its ERISA Affiliates of any liability with
respect to the withdrawal or partial
withdrawal from any Plan or Multiemployer Plan; or (g) the receipt by the Borrower or any
ERISA Affiliate of any notice concerning the imposition of Withdrawal Liability or a determination
that a Multiemployer Plan is, or is expected to be, insolvent or in reorganization, within the
meaning of Title IV of ERISA (or, with respect to a Plan that is not a US Plan, any similar notice
under provisions of similar non-US law, regulation or rule).


 


8









 





“Eurodollar”, when used in reference to any Loan or Borrowing, refers to whether such
Loan, or the Loans comprising such Borrowing, are bearing interest at a rate determined by
reference to the Adjusted LIBO Rate.



“Event of Default” has the meaning assigned to such term in Article VII.



“Exchange Act” means the Securities Exchange Act of 1934, as amended, and the rules
and regulations of the Commission promulgated thereunder.



“Excluded Taxes” means, with respect to any payment made by any Loan Party under any
Loan Document, any of the following Taxes imposed on or with respect to a Recipient:



(a) income (including, in the case of a Recipient that is a U.S. Person, any backup
withholding tax), or franchise Taxes imposed on (or measured by) net income by (i) the United
States of America (or any political subdivision or taxing authority thereof or therein), or by the
jurisdiction under the laws of which such Recipient is organized or registered or in which its
principal office is located or, in the case of any Lender or Issuing Bank, in which its applicable
lending office is located, or any subdivision thereof or therein, or (ii) any other jurisdiction
with which such Recipient has a present or former connection (other than any such connection
arising solely from such Recipient having executed, delivered, enforced or become a party to, or
performed its obligations or received payment under, received or perfected a security interest
under, or engaged in any other transaction pursuant to, or enforced any Loan Document, or sold or
assigned an interest in any Loan Document),



(b) any branch profits Taxes imposed by the United States of America or any similar Taxes
imposed by any other jurisdiction in which the Borrower is located, or



(c) in the case of a Non-U.S. Lender (other than an assignee pursuant to a request by the
Borrower under Section 2.19(b)), any U.S. Federal withholding Taxes resulting from any law in
effect (including FATCA) on the date such Non-U.S. Lender becomes a party to this Agreement (or
designates a new lending office) or attributable to such Non-U.S. Lender’s failure to comply with
Section 2.17(f)), except, to the extent that such Non-U.S. Lender (or its assignor, if any) was
entitled, at the time of designation of a new lending office (or assignment), to receive additional
amounts from the Borrower with respect to such withholding Taxes pursuant to Section 2.17(a);
provided that for purposes of this clause (c), the term “Non-U.S. Lender” includes any
Non-U.S. Issuing Bank.


 


9









 





“Existing Credit Agreement” means the Credit Agreement dated as of July 30, 2004, as
amended and restated as of July 28, 2005, as amended and restated as of April 24, 2007 and as
amended as of May 23, 2008, among the Borrower, Newmont USA, the lenders party thereto, the issuing
banks party thereto and JPMorgan, as administrative agent.



“Existing Letter of Credit” means each letter of credit previously issued under the
Existing Credit Agreement and listed on Schedule 1.01. As to any Existing Letter of Credit, the
Borrower shall be deemed to have requested the issuance of such Existing Letter of Credit for
purposes hereof on the Effective Date.



“Existing Maturity Date” has the meaning assigned to such term in Section 2.21.



“FATCA” means Sections 1471 through 1474 of the Code, as of the date of this Agreement
and any regulations or official interpretations thereof.



“FCPA” means the United States Foreign Corrupt Practices Act of 1977, as amended.



“Federal Funds Effective Rate” means, for any day, the weighted average (rounded
upwards, if necessary, to the next 1/100 of 1.00%) of the rates on overnight Federal funds
transactions with members of the Federal Reserve System arranged by Federal funds brokers, as
published on the next succeeding Business Day by the Federal Reserve Bank of New York, or, if such
rate is not so published for any day that is a Business Day, the average (rounded upwards, if
necessary, to the next 1/100 of 1.00%) of the quotations for such day for such transactions
received by the Administrative Agent from three Federal funds brokers of recognized standing
selected by it.



“Financial Letter of Credit” means any Letter of Credit other than a Performance
Letter of Credit.



“Financial Officer” means the chief financial officer, principal accounting officer,
treasurer, assistant treasurer or controller of the Borrower.



“Fixed Rate” means, with respect to any Competitive Loan (other than a Eurodollar
Competitive Loan), the fixed rate of interest per annum specified by the Lender making such
Competitive Loan in its related Competitive Bid.



“Fixed Rate Loan” means a Competitive Loan bearing interest at a Fixed Rate.



“GAAP” means generally accepted accounting principles in the United States of America.



“Governmental Authority” means the government of the United States of America, any
other nation or any political subdivision thereof, whether state or local, and any agency,
authority, instrumentality, regulatory body, court, central bank or other entity
exercising executive, legislative, judicial, taxing, regulatory or administrative powers or
functions of or pertaining to government (including any supra-national body exercising such powers
or functions, such as the European Union).


 


10









 





“Guarantee Agreement” means the Guarantee Agreement made by Newmont USA in favor of
the Administrative Agent for the benefit of the Lenders substantially in the form of Exhibit
D.



“Guarantee Requirement” means, at any time that Newmont USA guarantees any Material
Indebtedness of the Borrower, that (a) the Guarantee Agreement shall have been executed by Newmont
USA and (b) if Newmont USA shall become a party to the Guarantee Agreement after the Effective
Date, the Administrative Agent shall have received documents comparable to those delivered under
paragraphs (c) and (d) of Section 4.01 with respect to Newmont USA on the Effective Date.



“Guarantor” means, at any time that it is a party to the Guarantee Agreement, Newmont
USA.



“Hazardous Materials” means all explosive or radioactive substances or wastes and all
hazardous or toxic substances, wastes or other pollutants, including petroleum or petroleum
distillates, asbestos or asbestos containing materials, polychlorinated biphenyls, radon gas,
infectious or medical wastes and all other substances or wastes of any nature regulated pursuant to
any Environmental Law.



“Indebtedness” of any Person means, at a particular date, the sum (without
duplication) at such date of (a) all indebtedness of such Person for borrowed money or for the
deferred purchase price of property or services (other than accounts payable arising in the
ordinary course of such Person’s business payable on terms customary in the trade), (b) the
capitalized portion of all obligations of such Person under Capital Lease Obligations, (c)
obligations as recorded in such Person’s financial statements in respect of borrowings of gold, (d)
deferred revenues from sales of future production and all obligations in respect of prepaid
production arrangements, prepaid forward sale arrangements or derivative contracts in respect of
which such Person receives upfront payments in consideration of an obligation to deliver product or
commodities (or make cash payments based on the value of product or commodities) at a future time,
but, in any event, excluding any agreement for the sale in the ordinary course of business and on
standard trade terms (including standard trade payment terms) of any commodity produced (i) from
properties or (ii) by other interests owned by such Person and (e) without duplication, all
Contingent Obligations of such Person in respect of obligations of another Person of the type
described in the preceding clauses (a) through (d). The amount of Indebtedness in respect of the
upfront payments referred to in clause (d) of this definition shall be the amount in respect of the
obligations referred to in such clause that would be required to appear as a liability on a
consolidated balance sheet of such Person and its subsidiaries prepared in accordance with GAAP.


 


11









 





“Indemnified Taxes” means (a) Taxes other than Excluded Taxes, imposed on or with
respect to any payment made by any Loan Party under any Loan Document and (b) Other Taxes.



“Index Debt” means senior, unsecured, long-term indebtedness for borrowed money of the
Borrower that is not guaranteed by any other Person (other than unsecured guarantees by the
Guarantor) or subject to any other credit enhancement.



“Information Memorandum” means the Confidential Information Memorandum dated April
2011 relating to the Borrower and the Transactions.



“Interest Election Request” means a request by the Borrower to convert or continue a
Revolving Borrowing in accordance with Section 2.08.



“Interest Payment Date” means (a) with respect to any ABR Loan (other than a Swingline
Loan), the last day of each March, June, September and December, (b) with respect to any Eurodollar
Loan, the last day of the Interest Period applicable to the Borrowing of which such Loan is a part
and, in the case of a Eurodollar Borrowing with an Interest Period of more than three months’
duration, each day prior to the last day of such Interest Period that occurs at intervals of three
months’ duration after the first day of such Interest Period, (c) with respect to any Fixed Rate
Loan, the last day of the Interest Period applicable to the Borrowing of which such Loan is a part
and, in the case of a Fixed Rate Borrowing with an Interest Period of more than 90 days’ duration
(unless otherwise specified in the applicable Competitive Bid Request), each day prior to the last
day of such Interest Period that occurs at intervals of 90 days’ duration after the first day of
such Interest Period, and any other dates that are specified in the applicable Competitive Bid
Request as Interest Payment Dates with respect to such Borrowing and (d) with respect to any
Swingline Loan, the day that such Loan is required to be repaid.



“Interest Period” means (a) with respect to any Eurodollar Borrowing, the period
commencing on the date of such Borrowing and ending on the numerically corresponding day in the
calendar month that is one, two, three or six months (or nine or twelve months if available to all
participating Lenders) thereafter, as the Borrower may elect and (b) with respect to any Fixed Rate
Borrowing, the period (which shall not be less than 7 days or more than 360 days) commencing on the
date of such Borrowing and ending on the date specified in the applicable Competitive Bid Request;
provided, that (i) if any Interest Period would end on a day other than a Business Day,
such Interest Period shall be extended to the next succeeding Business Day unless, in the case of a
Eurodollar Borrowing only, such next succeeding Business Day would fall in the next calendar month,
in which case such Interest Period shall end on the next preceding Business Day and (ii) any
Interest Period pertaining to a Eurodollar Borrowing that commences on the last Business Day of a
calendar month (or on a day for which there is no numerically corresponding day in the last
calendar month of such Interest Period) shall end on the last Business Day of the last calendar
month of such Interest Period. For purposes hereof, the date of a Borrowing initially shall be the
date on which such Borrowing is made and, in the case of a Revolving Borrowing, thereafter shall be
the effective date of the most recent conversion or continuation of such Borrowing.


 


12









 





“IRS” means, the United States Internal Revenue Service.



“Issuing Bank” means (a)(i) JPMorgan, (ii) U.S. Bank, National Association, (iii)
Deutsche Bank AG New York Branch and (iv) BNP Paribas (b) solely in respect of any Existing Letter
of Credit, the Person that is the issuer thereof, and (c) each Lender that shall have become an
Issuing Bank hereunder as provided in Section 2.06(j) (other than any Person that shall have ceased
to be an Issuing Bank as provided in Section 2.06(k)), each in its capacity as an issuer of Letters
of Credit hereunder. The Issuing Banks may, in their discretion, arrange for one or more Letters
of Credit to be issued by Affiliates of such Issuing Banks, in which case the term “Issuing Bank”
shall include any such Affiliates with respect to Letters of Credit issued by such Affiliates (it
being agreed that such Issuing Bank shall, or shall cause such Affiliate to, comply with the
requirements of Section 2.06 with respect to such Letters of Credit).



“JPMorgan” means JPMorgan Chase Bank, N.A. and its successors.



“LC Availability Period” means the period from and including the Effective Date to but
excluding the earlier of the Maturity Date and the date of the termination of the Commitments.



“LC Disbursement” means a payment made by any Issuing Bank pursuant to a Letter of
Credit.



“LC Exposure” means, at any time, the sum of (a) the aggregate undrawn amount of all
outstanding Letters of Credit at such time plus (b) the aggregate amount of all LC Disbursements by
Issuing Banks that have not yet been reimbursed by or on behalf of the Borrower at such time. The
LC Exposure of any Lender at any time shall be its Applicable Percentage of the total LC Exposure
at such time.



“Lease Accounting GAAP Change” has the meaning assigned to such term in Section 1.04.



“Lender Parent” means, with respect to any Lender, any Person in respect of which such
Lender is a subsidiary.



“Lenders” means the Persons listed on Schedule 2.01 and any other Person that shall
have become a party hereto pursuant to an Additional Credit Assumption Agreement or an Assignment
and Acceptance, other than any such Person that ceases to be a party hereto pursuant to an
Assignment and Acceptance. Unless the context otherwise requires, the term “Lenders” shall include
the Swingline Lender.



“Letter of Credit” means each Existing Letter of Credit and any letter of credit
issued pursuant to this Agreement.


 


13









 





“LIBO Rate” means, with respect to any Eurodollar Borrowing for any Interest Period,
the rate appearing on the Reuters “LIBOR01” screen displaying British Bankers’ Association Interest
Settlement Rates (or on any successor or substitute page of such service, or any successor to or
substitute for such Service, providing rate quotations
comparable to those currently provided on such page of such Service, as determined by the
Administrative Agent from time to time for purposes of providing quotations of interest rates
applicable to dollar deposits in the London interbank market) at approximately 11:00 a.m., London
time, two Business Days prior to the commencement of such Interest Period, as the rate for dollar
deposits with a maturity comparable to such Interest Period. In the event that such rate is not
available at such time for any reason, then the “LIBO Rate” with respect to such Eurodollar
Borrowing for such Interest Period shall be the rate at which dollar deposits of $5,000,000 and for
a maturity comparable to such Interest Period are offered by the principal London office of the
Administrative Agent in immediately available funds in the London interbank market at approximately
11:00 a.m., London time, two Business Days prior to the commencement of such Interest Period.



“Lien” means, with respect to any asset, (a) any mortgage, deed of trust, lien,
pledge, hypothecation, encumbrance, charge or security interest in, on or of such asset and (b) the
interest of a vendor or a lessor under any conditional sale agreement, capital lease or title
retention agreement (or any financing lease having substantially the same economic effect as any of
the foregoing) relating to such asset.



“Loan Documents” means this Agreement, the Guarantee Agreement and each promissory
note delivered pursuant to this Agreement.



“Loan Parties” means the Borrower and the Guarantor.



“Loans” means the loans made by the Lenders to the Borrower pursuant to this
Agreement.



“Margin” means, with respect to any Competitive Loan bearing interest at a rate based
on the Adjusted LIBO Rate, the marginal rate of interest, if any, to be added to or subtracted from
the Adjusted LIBO Rate to determine the rate of interest applicable to such Loan, as specified by
the Lender making such Loan in its related Competitive Bid.



“Margin Stock” means “margin stock” as defined in Regulation U of the Board.



“Material Adverse Effect” means a material adverse effect on the business, assets,
operations or financial condition of the Borrower and its Subsidiaries taken as a whole.



“Material Commodity Hedging Indebtedness” means obligations under any Commodity
Hedging Agreement with respect to which the Borrower or any Significant Subsidiary is obligated to
pay more than $100,000,000 (after giving effect to any netting provisions of such agreement and
subtracting the value of any cash (or cash equivalent) collateral provided by the Borrower or any
Significant Subsidiary under such agreement) as a result of an event of default by, or termination
event applicable solely to, the Borrower or any Significant Subsidiary.


 


14









 





“Material Indebtedness” means Indebtedness (other than the Loans) of any one or more
of the Borrower, Newmont USA and the Significant Subsidiaries in an aggregate principal amount
exceeding $100,000,000.



“Maturity Date” means May 20, 2016, as such date may be extended pursuant to Section
2.21.



“Maturity Date Extension Request” means a request by the Borrower, in the form of
Exhibit E hereto or such other form as shall be approved by the Administrative Agent, for the
extension of the Maturity Date pursuant to Section 2.21.



“Moody’s” means Moody’s Investors Service, Inc.



“Multiemployer Plan” means a US Multiemployer Plan or a non-US defined benefit
retirement plan (i) to which the Borrower or an ERISA Affiliate contributes or is obligated to
contribute any amounts and (ii) to which any entity other than the Borrower and its ERISA
Affiliates contributes or is obligated to contribute any amounts.



“Newmont USA” means Newmont USA Limited, a Delaware corporation.



“Non-Defaulting Lender” means, at any time, any Lender that is not a Defaulting Lender
at such time.



“Non-Recourse Indebtedness” means any Indebtedness incurred in connection with the
development, construction or operation of a project that is limited in recourse to the project
assets and/or the ownership interest held by the Borrower or any Subsidiary (a) in such project
assets or (b) in any limited purpose entity owning such project assets, so long as substantially
all of the assets of such limited purpose entity are comprised of such project assets.



“Non-U.S. Issuing Bank” means an Issuing Bank that is not a U.S. Person.



“Non-U.S. Lender” means a Lender that is not a U.S. Person.



“Obligations” means (a) the principal of and premium, if any, and interest (including
interest accruing during the pendency of any bankruptcy, insolvency, receivership or other similar
proceeding, regardless of whether allowed or allowable in such proceeding) on the Loans, when and
as due, whether at maturity, by acceleration, upon one or more dates set for prepayment or
otherwise, (b) each payment required to be made under this Agreement in respect of any Letter of
Credit, when and as due, including payments in respect of reimbursements of LC Disbursements and
interest thereon and (c) all other monetary obligations, including fees, costs, expenses and
indemnities, whether primary, secondary, direct, contingent, fixed or otherwise (including monetary
obligations incurred during the pendency of any bankruptcy, insolvency, receivership or other
similar proceeding, regardless of whether allowed or allowable in such proceeding), of the Borrower
under this Agreement or any other Loan Document.


 


15









 





“OFAC” means the Office of Foreign Assets Control of the United States Department of
the Treasury.



“Other Taxes” means any and all present or future recording, stamp, court,
documentary, excise, filing, transfer, or similar Taxes arising from any payment made, from the
execution, delivery, performance, enforcement or registration of, or from the registration, receipt
or perfection of a security interest under, or otherwise with respect to, any Loan Document, except
any such Taxes imposed with respect to an assignment (other than an assignment under Section
2.19(b)).



“Participant” has the meaning assigned to such term in Section 9.04(e).



“Participant Register” has the meaning assigned to such term in Section 9.04(e).



“PBGC” means the Pension Benefit Guaranty Corporation referred to and defined in ERISA
and any successor entity performing similar functions.



“Performance Letter of Credit” means any Letter of Credit issued (a) to ensure the
performance of services or the delivery of goods or (b) primarily for the purpose of securing
performance obligations of the Borrower or any Subsidiary to Governmental Authorities, including
clean-up and remediation obligations, provided that, for the avoidance of doubt and without
limiting the foregoing, no Performance Letter of Credit shall secure or otherwise support any
Indebtedness.



“Permitted Encumbrances” means:



(a) Liens imposed by law for Taxes that are not yet due or are being contested in compliance
with Section 5.04;



(b) carriers’, warehousemen’s, mechanics’, materialmen’s, repairmen’s and other like Liens
imposed by law, arising in the ordinary course of business and securing obligations that are not
overdue by more than 30 days or are being contested in compliance with Section 5.04;



(c) pledges and deposits made in the ordinary course of business in compliance with workers’
compensation, unemployment insurance and other social security laws or regulations;



(d) deposits to secure the performance of bids, trade contracts, leases, statutory
obligations, surety, customs and appeal bonds, performance bonds and other obligations of a like
nature, in each case in the ordinary course of business;



(e) landlord’s liens arising in the ordinary course of business;



(f) easements, zoning restrictions, rights-of-way and similar encumbrances on real property
imposed by law or arising in the ordinary course of business that do not secure any monetary
obligations and do not materially detract from
the value of the affected property or interfere with the ordinary conduct of business of the
Borrower or any Subsidiary;


 


16









 





(g) any lien created in favor of a partner or co-joint venturer in connection with any
agreement with such party relating to an unincorporated joint venture over interests in and the
assets of that unincorporated joint venture, the product derived from it, the sales proceeds
payable and revenues received in respect of it and tariffs payable in respect of the assets of that
unincorporated joint venture;



(h) any lien created in favor of a partner or co-joint venturer in connection with any
agreement with such party relating to an incorporated joint venture over the shares in such joint
venture company and/or its distributions from that company;



(i) Liens securing judgments not constituting an Event of Default under clause (j) of Article
VII;



(j) leases, licenses, subleases or sublicenses granted to others in the ordinary course of
business which do not (i) interfere in any material respect with the business of the Borrower or
any Subsidiary or (ii) secure any Indebtedness;



(k) Liens in favor of customs and revenue authorities arising as a matter of law to secure
payment of customs duties in connection with the importation of goods in the ordinary course of
business;



(l) Liens (i) of a collection bank arising under Section 4-210 of the Uniform Commercial Code
on items in the course of collection, (ii) in favor of a banking institution arising as a matter of
law encumbering deposits (including the right of set-off) and which are within the general
parameters customary in the banking industry and (iii) that are contractual rights of set-off (A)
relating to the establishment of depository relations with banks in the ordinary course of business
and not given in connection with the issuance of any Indebtedness and (B) provided for in Section
9.08 and in similar provisions of other credit facilities permitted by this Agreement;



(m) any interest or title of a lessor under leases entered into by the Borrower or any
Subsidiary in the ordinary course of business; and



(n) Liens arising out of conditional sale, title retention, consignment or similar
arrangements for sale of goods entered into by the Borrower or any Subsidiary in the ordinary
course of business.



provided that the term “Permitted Encumbrances” shall not include any Lien securing
Indebtedness.



“Person” means any natural person, corporation, limited liability company, trust,
joint venture, association, company, partnership, Governmental Authority or other entity.


 


17









 





“Plan” means any employee pension benefit plan (other than a Multiemployer Plan)
subject to the provisions of Title IV of ERISA or Section 412 of the Code or Section 302 of ERISA
sponsored, maintained or contributed by the Borrower or any ERISA Affiliate.



“Prime Rate” means the rate of interest per annum publicly announced from time to time
by JPMorgan as its prime rate in effect at its principal office in New York City; each change in
the Prime Rate shall be effective from and including the date such change is publicly announced as
being effective.



“Recipient” means, as applicable, (a) the Administrative Agent, (b) any Lender and (c)
any Issuing Bank.



“Register” has the meaning set forth in Section 9.04(c).



“Related Parties” means, with respect to any Person, such Person’s Affiliates and the
directors, officers, employees, agents and advisors of such Person and such Person’s Affiliates.



“Required Lenders” means, at any time, Lenders having Commitments representing at
least a majority of the total Commitments at such time; provided that, for purposes of
declaring the Loans to be due and payable pursuant to Article VII, and for all purposes after the
Loans become due and payable pursuant to Article VII or the Commitments expire or terminate,
“Required Lenders” shall mean Lenders having aggregate Revolving Credit Exposures and
Competitive Loan Exposures representing at least a majority of the sum of the Revolving Credit
Exposure plus Competitive Loan Exposure at such time.



“Revolving Borrowing” means a Borrowing comprised of Revolving Loans.



“Revolving Credit Exposure” means, at any time, the sum of (a) the aggregate principal
amount of the Revolving Loans outstanding at such time, (b) the Swingline Exposure at such time and
(c) the LC Exposure at such time. The Revolving Credit Exposure of any Lender at any time shall be
such Lender’s Applicable Percentage of the total Revolving Credit Exposure at such time.



“Revolving Loan” means a Loan made pursuant to Sections 2.01 and 2.03. Each Revolving
Loan shall be a Eurodollar Loan or an ABR Loan.



“S&P” means Standard & Poor’s.



“Significant Subsidiary” means (a) any Subsidiary now or at any time hereafter meeting
any one of the following conditions: (i) the assets of such Subsidiary exceed 10.0% of the
aggregate assets appearing on the consolidated balance sheet of the Borrower and its consolidated
Subsidiaries for the most recently ended fiscal year, or (ii) the gross revenues of such Subsidiary
for the fiscal year of the Borrower most recently ended exceed 10.0% of the gross revenues of the
Borrower and its consolidated
Subsidiaries for such fiscal year, or (iii) such Subsidiary has one or more Subsidiaries and
together therewith would, if considered in the aggregate, constitute a Significant Subsidiary
within the terms of clauses (i) or (ii) of this definition, and (b) Newmont USA.


 


18









 





“Statutory Reserve Rate” means a fraction (expressed as a decimal), the numerator of
which is the number one and the denominator of which is the number one minus the aggregate of the
maximum reserve percentages (including any marginal, special, emergency or supplemental reserves),
expressed as a decimal, established by the Board to which the Administrative Agent is subject for
eurocurrency funding (currently referred to as “Eurocurrency Liabilities” in Regulation D of the
Board). Such reserve percentages shall include those imposed pursuant to such Regulation D.
Eurodollar Loans shall be deemed to constitute eurocurrency funding and to be subject to such
reserve requirements without benefit of or credit for proration, exemptions or offsets that may be
available from time to time to any Lender under such Regulation D or any comparable regulation.
The Statutory Reserve Rate shall be adjusted automatically on and as of the effective date of any
change in any reserve percentage.



“subsidiary” means, with respect to any Person (the “parent”) at any date, any
corporation, limited liability company, partnership, association or other entity the accounts of
which would be consolidated with those of the parent in the parent’s consolidated financial
statements if such financial statements were prepared in accordance with GAAP as of such date, as
well as any other corporation, limited liability company, partnership, association or other entity
of which securities or other ownership interests representing more than 50% of the equity or more
than 50% of the ordinary voting power or, in the case of a partnership, more than 50% of the
general partnership interests are, as of such date, owned, controlled or held.



“Subsidiary” means any subsidiary of the Borrower.



“Swingline Commitment” means the commitment of the Swingline Lender to make Swingline
Loans pursuant to Section 2.05, expressed as an amount representing the maximum aggregate amount of
the Swingline Lender’s outstanding Swingline Loans hereunder, as such commitment may be reduced
from time to time pursuant to Section 2.09. The amount of the Swingline Commitment on the date
hereof is $200,000,000.



“Swingline Exposure” means, at any time, the sum of the Swingline Loans outstanding at
such time. The Swingline Exposure of any Lender at any time shall be such Lender’s Applicable
Percentage of the total Swingline Exposure at such time.



“Swingline Lender” means JPMorgan, in its capacity as lender of Swingline Loans
hereunder.



“Swingline Loan” means a Loan made by the Swingline Lender under its Swingline
Commitment pursuant to Section 2.05.



“Taxes” means any present or future taxes, levies, imposts, duties, deductions,
withholdings, assessments, fees or other charges imposed by any
Governmental Authority, including any interest, additions to tax or penalties applicable
thereto.


 


19









 





“Total Capitalization” means, on any date, the sum of (a) all Indebtedness that would
appear as a liability on a consolidated balance sheet of the Borrower and its Subsidiaries prepared
as of such date in accordance with GAAP, less the aggregate amount of all cash and cash equivalents
of the Borrower and its Subsidiaries that would appear on such balance sheet plus (b) total
stockholders’ equity of the Borrower and its Subsidiaries determined as of such date on a
consolidated basis in accordance with GAAP, less goodwill and intangible assets of the Borrower and
its Subsidiaries, determined on a consolidated basis in accordance with GAAP.



“Total Indebtedness” means, as of any date, without duplication, the aggregate amount
of Indebtedness of the Borrower and its Subsidiaries on such date, less the aggregate amount of all
cash and cash equivalents of the Borrower and its Subsidiaries on such date, in each case as would
appear as a liability or as cash or cash equivalents, on a consolidated balance sheet of the
Borrower and its Subsidiaries prepared as of such date in accordance with GAAP.



“Transactions” means collectively, (a) the execution, delivery and performance by each
of the Borrower and the Guarantor of this Agreement and the other Loan Documents to which it is a
party, the borrowing of Loans hereunder, the use of the proceeds thereof and the issuance of
Letters of Credit hereunder and (b) the repayment of all principal amounts outstanding, together
with any accrued and unpaid interest, fees and expenses, under the Existing Credit Agreement.



“Type”, when used in reference to any Loan or Borrowing, refers to whether the rate of
interest on such Loan, or on the Loans comprising such Borrowing, is determined by reference to the
Adjusted LIBO Rate, the Alternate Base Rate or, in the case of a Competitive Loan or Borrowing, the
Adjusted LIBO Rate or a Fixed Rate.



“USA PATRIOT Act” means the Uniting and Strengthening America by Providing Appropriate
Tools Required to Intercept and Obstruct Terrorism Act of 2001.



“US Multiemployer Plan” means a multiemployer plan as defined in Section 4001(a)(3)
of ERISA.



“U.S. Person” means a “United States person” within the meaning of Section 7701(a)(30)
of the Code.



“US Plan” means a Plan that is subject to ERISA.



“U.S. Tax Certificate” has the meaning assigned to such term in Section
2.17(f)(ii)(D)(2).



“Withdrawal Liability” means liability to a US Multiemployer Plan as a result of a
complete or partial withdrawal from such US Multiemployer Plan, as such terms are defined in Part I
of Subtitle E of Title IV of ERISA.


 


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“Withholding Agent” means any Loan Party and the Administrative Agent.



SECTION 1.02. Classification of Loans and Borrowings. For purposes of this Agreement,
Loans may be classified and referred to by Class (e.g., a “Revolving Loan”) or by Type
(e.g., a “Eurodollar Loan”) or by Class and Type (e.g., a “Eurodollar Revolving
Loan”) and Borrowings may be classified and referred to by Class (e.g., a “Revolving
Borrowing”) or by Type (e.g., a “Eurodollar Borrowing”) or by Class and Type (e.g.,
a “Eurodollar Revolving Borrowing”).



SECTION 1.03. Terms Generally. The definitions of terms herein shall apply equally to
the singular and plural forms of the terms defined. Whenever the context may require, any pronoun
shall include the corresponding masculine, feminine and neuter forms. The words “include”,
“includes” and “including” shall be deemed to be followed by the phrase “without limitation”. The
word “will” shall be construed to have the same meaning and effect as the word “shall”. Unless the
context requires otherwise (a) any definition of or reference to any agreement, instrument or other
document herein shall be construed as referring to such agreement, instrument or other document as
from time to time amended, supplemented or otherwise modified (subject to any restrictions on such
amendments, supplements or modifications set forth herein), (b) any reference herein to any Person
shall be construed to include such Person’s successors and assigns, (c) the words “herein”,
“hereof” and “hereunder”, and words of similar import, shall be construed to refer to this
Agreement in its entirety and not to any particular provision hereof, (d) all references herein to
Articles, Sections, Exhibits and Schedules shall be construed to refer to Articles and Sections of,
and Exhibits and Schedules to, this Agreement and (e) the words “asset” and “property” shall be
construed to have the same meaning and effect and to refer to any and all tangible and intangible
assets and properties, including cash, securities, accounts and contract rights.



SECTION 1.04. Accounting Terms; GAAP. Except as otherwise expressly provided herein,
all terms of an accounting or financial nature shall be construed in accordance with GAAP, as in
effect from time to time; provided that, notwithstanding the foregoing, for purposes of
this Agreement (other than Section 5.01) GAAP shall be determined without giving effect to any
change thereto occurring after the date hereof as a result of the adoption of any proposals set
forth in the Proposed Accounting Standards Update, Leases (Topic 840), issued by the Financial
Accounting Standards Board on August 17, 2010, or any other proposals issued by the Financial
Accounting Standards Board in connection therewith, in each case if such change would require
treating any lease or similar agreement as a Capital Lease where such lease or similar agreement
was not required to be so treated under GAAP as in effect on the date hereof (any such change being
referred to herein as a “Lease Accounting GAAP Change”); provided further
that, if the Borrower notifies the Administrative Agent that the Borrower requests an amendment to
any provision hereof to eliminate the effect of any change occurring after the date hereof in GAAP
or in the application thereof on the operation of such provision (or if the Administrative Agent
notifies the Borrower that the Required Lenders request an amendment to any provision hereof for
such purpose), regardless of whether any such notice is given before or after such change in GAAP
or in
the application thereof, then such provision shall be interpreted on the basis of GAAP as in
effect and applied immediately before such change shall have become effective until such notice
shall have been withdrawn or such provision amended in accordance herewith.


 


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ARTICLE II




The Credits




SECTION 2.01. Commitments. (a) Subject to the terms and conditions set forth herein,
each Lender agrees to make Revolving Loans to the Borrower from time to time during the
Availability Period in an aggregate principal amount that will not result in (i) such Lender’s
Revolving Credit Exposure exceeding such Lender’s Commitment or (ii) the sum of the Revolving
Credit Exposure plus the Competitive Loan Exposure exceeding the total Commitments.



(b) Within the foregoing limits and subject to the terms and conditions set forth herein, the
Borrower may borrow, prepay and reborrow Revolving Loans during the Availability Period.



SECTION 2.02. Loans and Borrowings. (a) Each Revolving Loan shall be made as part of a
Borrowing consisting of Revolving Loans made by the Lenders (or their Affiliates as provided in
paragraph (b) below) ratably in accordance with their Commitments. Each Competitive Loan shall be
made in accordance with the procedures set forth in Section 2.04. The failure of any Lender to
make any Loan required to be made by it shall not relieve any other Lender of its obligations
hereunder; provided that the Commitments and Competitive Bids of the Lenders are several
and no Lender shall be responsible for any other Lender’s failure to make Loans as required.



(b) Subject to Section 2.14, (i) each Revolving Borrowing shall be comprised entirely of
Eurodollar Loans or ABR Loans, as the Borrower may request in accordance herewith; (ii) each
Swingline Loan shall be comprised entirely of ABR Loans; and (iii) each Competitive Borrowing shall
be comprised entirely of Eurodollar Loans or Fixed Rate Loans, as the Borrower may request in
accordance herewith.



(c) At the commencement of each Interest Period for any Eurodollar Revolving Borrowing, such
Borrowing shall be in an aggregate amount that is an integral multiple of $1,000,000 and not less
than $5,000,000. At the time that each ABR Revolving Borrowing is made, such Borrowing shall be in
an aggregate amount that is an integral multiple of $1,000,000 and not less than $5,000,000;
provided that an ABR Revolving Borrowing may be in an aggregate amount that is equal to the
entire unused balance of the total Commitments or the amount that is required to finance the
reimbursement of an LC Disbursement as contemplated by Section 2.06(e), as the case may be. Each
Competitive Borrowing shall be in an aggregate amount that is an integral multiple of $1,000,000
and not less than $5,000,000. Each Swingline Loan shall be in an amount that is an integral
multiple of $1,000,000 and not less than $1,000,000.
Borrowings of more than one Type and Class may be outstanding at the same time;
provided that there shall not at any time be outstanding more than a total of 15 Eurodollar
Revolving Borrowings (or such greater number as the Administrative Agent shall agree).


 


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(d) Notwithstanding any other provision of this Agreement, the Borrower shall not be entitled
to request, or to elect to convert or continue, any Borrowing if the Interest Period requested with
respect thereto would end after the Maturity Date.



SECTION 2.03. Requests for Revolving Borrowings. To request a Revolving Borrowing,
the Borrower shall notify the Administrative Agent of such request by telephone or by telecopy (a)
in the case of a Eurodollar Borrowing, not later than 12:00 noon, New York City time, three
Business Days before the date of the proposed Borrowing and (b) in the case of an ABR Borrowing,
not later than 11:00 a.m., New York City time, on the Business Day of the proposed Borrowing. Each
such Borrowing Request shall be irrevocable and, if telephonic, shall be confirmed promptly by hand
delivery or telecopy to the Administrative Agent of a written Borrowing Request in a form agreed to
by the Administrative Agent and the Borrower and signed by the Borrower. Each such telephonic and
written Borrowing Request shall specify the following information in compliance with Section 2.02:




(i) the aggregate amount of the requested Borrowing;




(ii) the date of such Borrowing, which shall be a Business Day;




(iii) the Type of the requested Borrowing;




(iv) in the case of a Eurodollar Borrowing, the initial Interest Period to be
applicable thereto, which shall be a period contemplated by the definition of the
term “Interest Period” and shall end no later than the Maturity Date; and




(v) the location and number of the Borrower’s account to which funds are to
be disbursed, which shall comply with the requirements of Section 2.07.



If no election as to the Type of Revolving Borrowing is specified, then the requested Revolving
Borrowing shall be an ABR Borrowing. If no Interest Period is specified with respect to any
requested Eurodollar Revolving Borrowing, then the Borrower shall be deemed to have selected an
Interest Period of one month’s duration. Promptly following receipt of a Borrowing Request in
accordance with this Section, the Administrative Agent shall advise each Lender of the details
thereof and of the amount of such Lender’s Loan to be made as part of the requested Borrowing.


 


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SECTION 2.04. Competitive Bid Procedure. (a) Subject to the terms and conditions set
forth herein, from time to time during the Availability Period the Borrower may request Competitive
Bids from the Lenders and may (but shall not have any obligation to) accept Competitive Bids and
borrow Competitive Loans; provided that, after giving effect to any Borrowing of
Competitive Loans, the sum of the Revolving
Credit Exposure plus the total Competitive Loans shall not exceed the total Commitments. To
request Competitive Bids, the Borrower shall notify the Administrative Agent of such request by
telephone or by telecopy, in the case of a Eurodollar Borrowing, not later than 12:00 noon, New
York City time, four Business Days before the date of the proposed Borrowing and, in the case of a
Fixed Rate Borrowing, not later than 11:00 a.m., New York City time, one Business Day before the
date of the proposed Borrowing; provided that the Borrower may submit up to (but not more
than) three Competitive Bid Requests on the same day, but a Competitive Bid Request shall not be
made within three Business Days after the date of any previous Competitive Bid Request, unless any
and all such previous Competitive Bid Requests shall have been withdrawn or all Competitive Bids
received in response thereto rejected. Each such telephonic Competitive Bid Request shall be
confirmed promptly by hand delivery or telecopy to the Administrative Agent of a written
Competitive Bid Request in a form approved by the Administrative Agent and signed by the Borrower.
Each such telephonic and written Competitive Bid Request shall specify the following information in
compliance with Section 2.02:




(i) the aggregate principal amount of the requested Borrowing;




(ii) the date of such Borrowing, which shall be a Business Day;




(iii) whether such Borrowing is to be a Eurodollar Borrowing or a Fixed Rate
Borrowing;




(iv) the Interest Period to be applicable to such Borrowing, which shall be a
period contemplated by the definition of the term “Interest Period” and shall end
no later than the Maturity Date; and




(v) the location and number of the Borrower’s account to which funds are to
be disbursed, which shall comply with the requirements of Section 2.07.



Promptly following receipt of a Competitive Bid Request in accordance with this Section, the
Administrative Agent shall notify the Lenders of the details thereof by telecopy, inviting the
Lenders to submit Competitive Bids.



(b) Each Lender may (but shall not have any obligation to) make one or more Competitive Bids
to the Borrower in response to a Competitive Bid Request. Each Competitive Bid by a Lender must be
in a form approved by the Administrative Agent and must be received by the Administrative Agent by
telecopy, in the case of a Eurodollar Competitive Borrowing, not later than 10:30 a.m., New York
City time, three Business Days before the proposed date of such Competitive Borrowing, and in the
case of a Fixed Rate Borrowing, not later than 10:30 a.m., New York City time, on the proposed date
of such Competitive Borrowing. Competitive Bids that do not conform substantially to the form
approved by the Administrative Agent may be rejected by the Administrative Agent, and the
Administrative Agent shall notify the applicable Lender as promptly as practicable. Each
Competitive Bid shall specify (i) the principal amount
(which shall be a minimum of $5,000,000 and an integral multiple of $1,000,000 and which may
equal the entire principal amount of the Competitive Borrowing requested by the Borrower) of the
Competitive Loan or Loans that the Lender is willing to make, (ii) the Competitive Bid Rate or
Rates at which the Lender is prepared to make such Loan or Loans (expressed as a percentage rate
per annum in the form of a decimal to no more than four decimal places) and (iii) the Interest
Period applicable to each such Loan and the last day thereof.


 


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(c) The Administrative Agent shall promptly notify the Borrower by telecopy of the Competitive
Bid Rate and the principal amount specified in each Competitive Bid and the identity of the Lender
that shall have made such Competitive Bid.



(d) Subject only to the provisions of this paragraph, the Borrower may accept or reject any
Competitive Bid. The Borrower shall notify the Administrative Agent by telecopy or by telephone,
confirmed by telecopy in a form approved by the Administrative Agent, whether and to what extent it
has decided to accept or reject each Competitive Bid, in the case of a Eurodollar Competitive
Borrowing, not later than 11:30 a.m., New York City time, three Business Days before the date of
the proposed Competitive Borrowing, and in the case of a Fixed Rate Borrowing, not later than 11:30
a.m., New York City time, on the proposed date of the Competitive Borrowing; provided that
(i) the failure of the Borrower to give such notice shall be deemed to be a rejection of each
Competitive Bid, (ii) the Borrower shall not accept a Competitive Bid made at a particular
Competitive Bid Rate if the Borrower rejects a Competitive Bid made at a lower Competitive Bid
Rate, (iii) the aggregate amount of the Competitive Bids accepted by the Borrower shall not exceed
the aggregate amount of the requested Competitive Borrowing specified in the related Competitive
Bid Request, (iv) to the extent necessary to comply with clause (iii) above, the Borrower may
accept Competitive Bids at the same Competitive Bid Rate in part, which acceptance, in the case of
multiple Competitive Bids at such Competitive Bid Rate, shall be made pro rata in accordance with
the amount of each such Competitive Bid, and (v) except pursuant to clause (iv) above, no
Competitive Bid shall be accepted for a Competitive Loan unless such Competitive Loan is in a
minimum principal amount of $5,000,000 and an integral multiple of $1,000,000; provided
further that if a Competitive Loan must be in an amount less than $5,000,000 because of the
provisions of clause (iv) above, such Competitive Loan may be for a minimum of $1,000,000 or any
integral multiple thereof, and in calculating the pro rata allocation of acceptances of portions of
multiple Competitive Bids at a particular Competitive Bid Rate pursuant to clause (iv) above the
amounts shall be rounded to integral multiples of $1,000,000 in a manner determined by the
Borrower. A notice given by the Borrower pursuant to this paragraph shall be irrevocable.



(e) The Administrative Agent shall promptly notify each bidding Lender by telecopy whether or
not its Competitive Bid has been accepted (and, if so, the amount and Competitive Bid Rate so
accepted), and each successful bidder will thereupon become bound, subject to the terms and
conditions hereof, to make the Competitive Loan in respect of which its Competitive Bid has been
accepted.


 


25









 





(f) If the Administrative Agent shall elect to submit a Competitive Bid in its capacity as a
Lender, it shall submit such Competitive Bid directly to the Borrower at least one quarter of an
hour earlier than the time by which the other Lenders are required to submit their Competitive Bids
to the Administrative Agent pursuant to paragraph (b) of this Section 2.04.



SECTION 2.05. Swingline Loans. (a) Subject to the terms and conditions set forth
herein, the Swingline Lender agrees to make Swingline Loans to the Borrower, from time to time
during the Availability Period, in an aggregate principal amount at any time outstanding that will
not result in (i) the sum of the total Swingline Exposures exceeding the Swingline Commitment or
(ii) the sum of the Revolving Credit Exposure plus the Competitive Loan Exposure exceeding the
total Commitments; provided that the Swingline Lender shall not be required to make a
Swingline Loan to refinance an outstanding Swingline Loan. Each Swingline Loan shall be made as
part of a Borrowing consisting of Swingline Loans made by the Swingline Lender. Within the
foregoing limits and subject to the terms and conditions set forth herein, the Borrower may borrow,
prepay and reborrow Swingline Loans. Each Swingline Loan shall be in an integral multiple of
$1,000,000; provided that a Swingline Loan may be in an aggregate amount that is required
to finance the reimbursement of an LC Disbursement as contemplated by Section 2.06(e).



(b) To request Swingline Borrowings, the Borrower shall notify the Administrative Agent of
such request by telephone (confirmed by telecopy) no later than 1:00 p.m., New York City time, on
the day of a proposed Swingline Borrowing. Each such notice shall be irrevocable and shall specify
the requested borrowing date (which shall be a Business Day), and the amount of the requested
Swingline Borrowing. The Administrative Agent will promptly advise the Swingline Lender of any
such notice received from the Borrower. The Swingline Lender shall make each Swingline Loan
available to the Borrower by means of a transfer of funds to the general deposit account of the
Borrower with the Administrative Agent by 3:00 p.m., New York City time, on the requested date of
such Swingline Loan.



(c) By written notice given to the Administrative Agent not later than 10:00 a.m., New York
City time, on any Business Day, the Swingline Lender may require the Lenders to acquire
participations on such Business Day in all or a portion of its Swingline Loans outstanding. Such
notice shall specify the aggregate amount of Swingline Loans in which the Lenders will participate.
Promptly upon receipt of such notice, the Administrative Agent will give notice thereof to each
Lender, specifying in such notice the percentage of the applicable Swingline Loans allocated to
such Lender based on its respective Applicable Percentage. Each Lender hereby absolutely and
unconditionally agrees, upon receipt of notice as provided above, to pay to the Administrative
Agent, for the account of the Swingline Lender, its Applicable Percentage of such Swingline Loans.
Each Lender acknowledges and agrees that, in making any Swingline Loan, the Swingline Lender shall
be entitled to rely, and shall not incur any liability for relying, upon the representations and
warranties of the Borrower deemed made pursuant to Section 4.02, unless, at least two Business Days
prior to the time such



 


26









 






Swingline Loan was made, the Required Lenders shall have notified the
Swingline Lender (with a copy to the Administrative Agent) in writing that, as a result of one or more
events or circumstances described in such notice, one or more of the conditions precedent set forth
in Section 4.02(a) or 4.02(b) would not be satisfied if such Swingline Loan were then made (it
being understood and agreed that, in the event the Swingline Lender shall have received any such
notice, it shall have no obligation to make any Swingline Loan until and unless it shall be
reasonably satisfied that the events and circumstances described in such notice shall have been
cured, waived or otherwise shall have ceased to exist). Each Lender further acknowledges and
agrees that its obligation to acquire participations in each Swingline Loan pursuant to this
paragraph is absolute and unconditional and shall not be affected by any circumstance whatsoever,
including the occurrence and continuance of a Default or reduction or termination of the
Commitments, and that each such payment shall be made without any offset, abatement, withholding or
reduction whatsoever. Each Lender shall comply with its obligation under this paragraph by wire
transfer of immediately available funds, in the same manner as provided in Section 2.09 with
respect to Loans made by such Lender (and Section 2.09 shall apply, mutatis mutandis, to the
payment obligations of the Lenders), and the Administrative Agent shall promptly pay to the
Swingline Lender the amounts so received by it from the Lenders. The Administrative Agent shall
notify the Borrower of any participations in any Swingline Loan acquired pursuant to this
paragraph. Any amounts received by the Swingline Lender from the Borrower (or other party on
behalf of the Borrower) in respect of a Swingline Loan after receipt by the Swingline Lender of the
proceeds of a sale of participations therein shall be promptly remitted to the Administrative
Agent; any such amounts received by the Administrative Agent shall be promptly remitted by the
Administrative Agent to the Lenders that have made their payments pursuant to this paragraph and to
the Swingline Lender, as their interests may appear; provided that any such payment so
remitted shall be repaid to the Swingline Lender or to the Administrative Agent, as applicable, if
and to the extent such payment is required to be refunded to the Borrower for any reason. The
purchase of participations in a Swingline Loan pursuant to this paragraph shall not relieve the
Borrower of any default in the payment thereof.



SECTION 2.06. Letters of Credit. (a) General. Subject to the terms and
conditions set forth herein, the Borrower may request the issuance of Letters of Credit for its own
account (or, so long as the Borrower is a co-applicant with respect thereto, the account of any
Subsidiary; provided that the Borrower shall not be required to be a co-applicant in
respect of (i) any Letter of Credit if, due to the inclusion of the Borrower as a co-applicant with
respect to such Letter of Credit, such Letter of Credit would not meet the requirements of the
relevant beneficiary thereof or (ii) any Existing Letter of Credit or the renewal or replacement of
any Existing Letter of Credit that, at the time of its issuance, was issued solely for the account
of a Subsidiary) in a form reasonably acceptable to the Administrative Agent and the applicable
Issuing Bank, at any time and from time to time during the LC Availability Period, and (subject to
the conditions set forth in Section 4.02), the applicable Issuing Bank will issue such Letters of
Credit. The Borrower unconditionally and irrevocably agrees that, in connection with any Letter of
Credit issued for the account of any Subsidiary as provided in the first sentence of this
paragraph, it will be fully responsible for the reimbursement of LC Disbursements, the payment of
interest thereon and the payment of fees due under Section 2.12(b) to the
same extent as if it were the sole account party in respect of such Letter of Credit. In the
event of any inconsistency between the terms and conditions of this Agreement and the terms and
conditions of any form of letter of credit application or other agreement submitted to, or entered
into with, any Issuing Bank relating to any Letter of Credit, the terms and conditions of this
Agreement shall control.


 


27









 





(b) Notice of Issuance, Amendment, Renewal, Extension; Certain Conditions. To request
the issuance of a Letter of Credit (or the amendment, extension or renewal of an outstanding Letter
of Credit), the Borrower shall hand deliver or telecopy (or transmit by electronic communication,
if arrangements for doing so have been approved by the applicable Issuing Bank) to an Issuing Bank
and the Administrative Agent (reasonably in advance of the requested date of issuance, amendment,
renewal or extension) a notice requesting the issuance of a Letter of Credit, or identifying the
Letter of Credit to be amended, renewed or extended, and specifying the date of issuance,
amendment, renewal or extension (which shall be a Business Day), the date on which such Letter of
Credit is to expire (which shall comply with paragraph (c) of this Section), the amount of such
Letter of Credit, the name and address of the beneficiary thereof, whether such Letter of Credit is
a Financial Letter of Credit or a Performance Letter of Credit (subject to confirmation of such
status by the Administrative Agent and the applicable Issuing Bank, acting reasonably and in
consultation with the Borrower), and such other information as shall be necessary to prepare,
amend, renew or extend such Letter of Credit. If requested by the applicable Issuing Bank, the
Borrower also shall submit a letter of credit application on such Issuing Bank’s standard form in
connection with any request for a Letter of Credit. A Letter of Credit shall be issued, amended,
renewed or extended only if (and upon issuance, amendment, renewal or extension of each Letter of
Credit the Borrower shall be deemed to represent and warrant that), after giving effect to such
issuance, amendment, renewal or extension (i) the LC Exposure shall not exceed $1,250,000,000, (ii)
the Revolving Credit Exposure shall not exceed the total Commitments and (iii) following the
effectiveness of any Maturity Date Extension Request, the LC Exposure in respect of all Letters of
Credit having an expiration date after the second Business Day prior to the Existing Maturity Date
shall not exceed the aggregate Commitments of the Consenting Lenders extended pursuant to Section
2.21; provided that an Issuing Bank shall not issue, amend, renew or extend any Letter of
Credit (other than automatic renewals thereof pursuant to customary evergreen provisions or
amendments that do not effect an extension, or increase the stated face amount, of such Letter of
Credit) if it shall have been notified by the Administrative Agent at the written request of the
Required Lenders that a Default or an Event of Default has occurred and is continuing and that, as
a result, no further Letters of Credit shall be issued by it (a “Letter of Credit Suspension
Notice”); provided that such Issuing Bank shall have received such Letter of Credit
Suspension Notice within a sufficient amount of time to process internally the instructions therein
contained. Each determination as to whether a Letter of Credit constitutes a Financial Letter of
Credit or a Performance Letter of Credit shall be made by the Administrative Agent and the
applicable Issuing Bank, acting reasonably and in consultation with the Borrower and, once made,
shall be conclusive and binding upon the Borrower, the Lenders and the Issuing Banks.


 


28









 





(c) Expiration Date. Each Letter of Credit shall expire at or prior to the close of
business on the date that is two Business Days prior to the Maturity Date. Notwithstanding the
foregoing, any Letter of Credit issued hereunder may, in the sole discretion of the applicable
Issuing Bank, expire after the second Business Day prior to the Maturity Date but on or before the
date that is 90 days after the Maturity Date, provided that the Borrower hereby agrees that it
shall provide cash collateral in an amount equal to 102% of the LC Exposure in respect of any such
outstanding Letter of Credit to the applicable Issuing Bank at least 10 days prior to the Maturity
Date, which such amount shall be (i) deposited by the Borrower in an account with and in the name
of such Issuing Bank and (ii) held by such Issuing Bank for the satisfaction of the Borrower’s
reimbursement obligations in respect of such Letter of Credit until the expiration of such Letter
of Credit. Any Letter of Credit issued with an expiration date beyond the second Business Day
prior to the Maturity Date shall, to the extent of any undrawn amount remaining thereunder on the
Maturity Date, cease to be a “Letter of Credit” outstanding under this Agreement for purposes of
the Lenders’ obligations to participate in Letters of Credit pursuant to clause (d) below. For the
avoidance of doubt, if the Maturity Date shall be extended pursuant to Section 2.21, “Maturity
Date” as referenced in this sentence shall refer to the Maturity Date as extended pursuant to
Section 2.21; provided that, notwithstanding anything in this Agreement (including Section
2.21 hereof) or any other Loan Document to the contrary, the Maturity Date and the LC Availability
Period, as such terms are used in reference to any Issuing Bank or any Letter of Credit issued
thereby, may not be extended with respect to any Issuing Bank without the prior written consent of
such Issuing Bank.



(d) Participations. By the issuance of a Letter of Credit (or an amendment to a
Letter of Credit increasing the amount thereof) and without any further action on the part of the
applicable Issuing Bank or the Lenders, such Issuing Bank hereby grants to each Lender, and each
such Lender hereby acquires from such Issuing Bank, a participation in such Letter of Credit equal
to such Lender’s Applicable Percentage of the aggregate amount available to be drawn under such
Letter of Credit. In consideration and in furtherance of the foregoing, each such Lender hereby
absolutely and unconditionally agrees to pay to the Administrative Agent, for the account of the
applicable Issuing Bank, such Lender’s Applicable Percentage of each LC Disbursement made by such
Issuing Bank and not reimbursed by the Borrower on the date due as provided in paragraph (e) of
this Section, or of any reimbursement payment required to be refunded to the Borrower for any
reason. Each Lender acknowledges and agrees that its obligation to acquire participations pursuant
to this paragraph in respect of Letters of Credit is absolute and unconditional and shall not be
affected by any circumstance whatsoever, including any amendment, renewal or extension of any
Letter of Credit (provided that such Letter of Credit shall expire no later than the date set forth
in paragraph (c) of this Section), or the occurrence and continuance of a Default or reduction or
termination of the Commitments, and that each such payment shall be made without any offset,
abatement, withholding or reduction whatsoever.


 


29









 





(e) Reimbursement. If any Issuing Bank shall make any LC Disbursement in respect of a
Letter of Credit, the Borrower shall reimburse such LC Disbursement by paying to the Administrative
Agent an amount equal to such LC
Disbursement not later than 2:00 p.m., New York City time, on the Business Day immediately
following the date on which the Borrower shall have received notice of such LC Disbursement;
provided that the Borrower may, subject to the conditions to borrowing set forth herein,
request (i) in accordance with Section 2.03 that such payment be financed with an ABR Revolving
Borrowing or (ii) in accordance with Section 2.05 that such payment be financed with a Swingline
Loan in an equivalent amount and, to the extent so financed, the Borrower’s obligation to make such
payment shall be discharged and replaced by the resulting ABR Revolving Borrowing or Swingline
Loan, as the case may be. If the Borrower fails to make such payment when due, the Administrative
Agent shall notify each Lender of the applicable LC Disbursement, the payment then due from the
Borrower in respect thereof and such Lender’s Applicable Percentage thereof. Promptly following
receipt of such notice, each Lender shall pay to the Administrative Agent its Applicable Percentage
of the payment then due from the Borrower, in the same manner as provided in Section 2.07 with
respect to Loans made by such Lender (and Section 2.07 shall apply, mutatis mutandis, to the
payment obligations of the Lenders), and the Administrative Agent shall promptly pay to the
applicable Issuing Bank the amounts so received by it from the Lenders. Promptly following receipt
by the Administrative Agent of any payment from the Borrower pursuant to this paragraph, the
Administrative Agent shall distribute such payment to the applicable Issuing Bank or, to the extent
that Lenders have made payments pursuant to this paragraph to reimburse such Issuing Bank, then to
such Lenders and such Issuing Bank as their interests may appear. Any payment made by a Lender
pursuant to this paragraph to reimburse such Issuing Bank for any LC Disbursement (other than the
funding of ABR Revolving Loans or Swingline Loans as contemplated above) shall not constitute a
Loan and shall not relieve the Borrower of its obligation to reimburse such LC Disbursement.



(f) Obligations Absolute. The Borrower’s obligation to reimburse LC Disbursements as
provided in paragraph (e) of this Section shall be absolute, unconditional and irrevocable, and
shall be performed strictly in accordance with the terms of this Agreement under any and all
circumstances whatsoever and irrespective of (i) any lack of validity or enforceability of any
Letter of Credit or this Agreement, or any term or provision therein, (ii) any draft or other
document presented under a Letter of Credit proving to be forged, fraudulent or invalid in any
respect or any statement therein being untrue or inaccurate in any respect or (iii) any other event
or circumstance whatsoever, whether or not similar to any of the foregoing, that might, but for the
provisions of this Section, constitute a legal or equitable discharge of, or provide a right of
setoff against, the Borrower’s obligations hereunder. Neither the Administrative Agent, the
Lenders nor any of the Issuing Banks, nor any of their Related Parties, shall have any liability or
responsibility by reason of or in connection with the issuance or transfer of any Letter of Credit
or any payment or failure to make any payment thereunder (irrespective of any of the circumstances
referred to in the preceding sentence), or any error, omission, interruption, loss or delay in
transmission or delivery of any draft, notice or other communication under or relating to any
Letter of Credit (including any document required to make a drawing thereunder), any error in
interpretation of technical terms or any consequence arising from causes beyond the control of the
applicable Issuing Bank; provided that the foregoing shall not be construed to excuse any
Issuing Bank from liability



 


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to the Borrower to the extent of any direct damages (as opposed to special, indirect, consequential or punitive damages, claims in respect
of which are hereby waived by the Borrower to the extent permitted by applicable law) suffered by
the Borrower that are caused by such Issuing Bank’s failure to exercise care when determining
whether drafts and other documents presented under a Letter of Credit comply with the terms
thereof. The parties hereto expressly agree that, in the absence of gross negligence or wilful
misconduct on the part of the applicable Issuing Bank (as finally determined by a court of
competent jurisdiction), such Issuing Bank shall be deemed to have exercised care in each such
determination. In furtherance of the foregoing and without limiting the generality thereof, the
parties agree that, with respect to documents presented which appear on their face to be in
substantial compliance with the terms of a Letter of Credit, the applicable Issuing Bank may, in
its sole discretion, either accept and make payment upon such documents without responsibility for
further investigation, regardless of any notice or information to the contrary, or refuse to accept
and make payment upon such documents if such documents are not in strict compliance with the terms
of such Letter of Credit.



(g) Disbursement Procedures. The applicable Issuing Bank shall, promptly following
its receipt thereof, examine all documents purporting to represent a demand for payment under a
Letter of Credit. The applicable Issuing Bank shall promptly notify the Administrative Agent and
the Borrower by telephone (confirmed by telecopy) of such demand for payment and whether such
Issuing Bank has made or will make an LC Disbursement thereunder; provided that any failure
to give or delay in giving such notice shall not relieve the Borrower of its obligation to
reimburse such Issuing Bank and the Lenders with respect to any such LC Disbursement.



(h) Interim Interest. If an Issuing Bank shall make any LC Disbursement, then, unless
the Borrower shall reimburse such LC Disbursement in full on the date such LC Disbursement is made,
the unpaid amount thereof shall bear interest, for each day from and including the date such LC
Disbursement is made to but excluding the date that the Borrower reimburses such LC Disbursement,
at the rate per annum then applicable to ABR Loans; provided that, if the Borrower fails to
reimburse such LC Disbursement by the date that is three Business Days following the date such
reimbursement is due pursuant to paragraph (e) of this Section, then Section 2.13(d) shall apply.
Interest accrued pursuant to this paragraph shall be for the account of the applicable Issuing
Bank, except that interest accrued on and after the date of payment by any Lender pursuant to
paragraph (e) of this Section to reimburse such Issuing Bank shall be for the account of such
Lender to the extent of such payment.




 


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(i) Cash Collateralization. If any Event of Default shall occur and be continuing, on
the Business Day that the Borrower receives notice from the Administrative Agent or the Required
Lenders demanding the deposit of cash collateral pursuant to this paragraph, the Borrower shall
deposit in an account with the Administrative Agent, in the name of the Administrative Agent and
for the benefit of the Lenders, an amount in cash equal to the LC Exposure as of such date plus any
accrued and unpaid interest thereon; provided that the obligation to deposit such cash
collateral shall become effective immediately, and such deposit shall become immediately due and
payable, without demand or other notice of any kind, upon the occurrence of any Event
of Default with respect to the Borrower described in clause (h) or (i) of Article VII. Each
such deposit shall be held by the Administrative Agent as collateral for the payment and
performance of the obligations of the Borrower under this Agreement. The Administrative Agent
shall have exclusive dominion and control, including the exclusive right of withdrawal, over such
account. Other than any interest earned on the investment of such deposits, which investments
shall be made at the option and sole discretion of the Administrative Agent and at the Borrower’s
risk and expense, such deposits shall not bear interest. Interest or profits, if any, on such
investments shall accumulate in such account. Moneys in such account shall be applied by the
Administrative Agent to reimburse the Issuing Banks for LC Disbursements for which they have not
been reimbursed and, to the extent not so applied, shall be held for the satisfaction of the
reimbursement obligations of the Borrower for the LC Exposure at such time or, if the maturity of
the Loans has been accelerated, be applied to satisfy other obligations of the Borrower under this
Agreement. If the Borrower is required to provide cash collateral in accordance with Section
2.11(b) or 2.20, such cash collateral shall be deposited and shall be held and applied in
accordance with this paragraph. If the Borrower is required to provide an amount of cash
collateral hereunder as a result of the occurrence of an Event of Default, such amount (to the
extent not applied as aforesaid) shall be returned to the Borrower within three Business Days after
all Events of Default have been cured or waived. If the Borrower is required to provide an amount
of cash collateral hereunder pursuant to Section 2.11(b), such amount (to the extent not applied as
aforesaid) shall be returned to the Borrower as and to the extent that, after giving effect to such
return, the Revolving Credit Exposure plus the Competitive Loan Exposure would not exceed the total
Commitments and no Default shall have occurred and be continuing.



(j) Designation of Additional Issuing Banks. The Borrower may, at any time and from
time to time, upon notice to the Administrative Agent, designate as additional Issuing Banks one or
more Lenders that agree to serve in such capacity as provided below. The acceptance by a Lender of
an appointment as an Issuing Bank hereunder shall be evidenced by an agreement, which shall be in
form and substance reasonably satisfactory to such additional Issuing Bank, executed by the
Borrower, the Administrative Agent and such designated Lender and, from and after the effective
date of such agreement, (i) such Lender shall have all the rights and obligations of an Issuing
Bank under this Agreement and (ii) references herein to the term “Issuing Bank” shall be deemed to
include such Lender in its capacity as an issuer of Letters of Credit hereunder.



(k) Termination of an Issuing Bank. The Borrower may terminate the appointment of any
Issuing Bank as an “Issuing Bank” hereunder by providing a written notice thereof to such Issuing
Bank, with a copy to the Administrative Agent. Any such termination shall become effective upon
the earlier of (i) such Issuing Bank acknowledging receipt of such notice and (ii) the 10th
Business Day following the date of the delivery thereof; provided that no such termination
shall become effective until and unless the LC Exposure attributable to Letters of Credit issued by
such Issuing Bank (or its Affiliates) shall have been reduced to zero. At the time any such
termination shall become effective, the Borrower shall pay all unpaid fees accrued for the account
of the terminated Issuing Bank pursuant to Section 2.12(b). Notwithstanding the effectiveness of
any such termination, the terminated Issuing Bank shall remain a party hereto and shall
continue to have all the rights of an Issuing Bank under this Agreement with respect to
Letters of Credit issued by it prior to such termination, but shall not issue any additional
Letters of Credit. Without limiting the foregoing, following the delivery by the Borrower of any
notice of termination in respect of any Issuing Bank (and regardless of whether such notice has
become effective), such Issuing Bank shall have no obligation to issue, amend, renew or extend any
Letter of Credit.


 


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(l) Issuing Bank Exposure Limitation. Notwithstanding anything herein to the
contrary, no Issuing Bank shall have any obligation hereunder to issue Letters of Credit if, at the
time of and after giving effect to such issuance, the aggregate amount of LC Exposure attributable
to Letters of Credit issued by such Issuing Bank would exceed $750,000,000. Additionally,
notwithstanding anything herein to the contrary, the Borrower and any Issuing Bank may separately
agree to any lesser limit on the amount of LC Exposure attributable to Letters of Credit issued by
such Issuing Bank.



SECTION 2.07. Funding of Borrowings. (a) Each Lender shall make each Loan to be made
by it hereunder on the proposed date thereof by wire transfer of immediately available funds by
12:00 noon, New York City time, to the account of the Administrative Agent most recently designated
by it for such purpose by notice to the applicable Lenders; provided that Swingline Loans
shall be made as provided in Section 2.05. The Administrative Agent will make such Loans available
to the Borrower by promptly crediting the amounts so received to an account of the Borrower
maintained with the Administrative Agent in New York City and designated by the Borrower in the
applicable Borrowing Request or Competitive Bid Request; provided that Loans made to
finance the reimbursement of an LC Disbursement as provided in Section 2.06(e) shall be remitted by
the Administrative Agent to the applicable Issuing Bank.



(b) Unless the Administrative Agent shall have received notice from a Lender prior to the
proposed time of any Borrowing that such Lender will not make available to the Administrative Agent
such Lender’s share of such Borrowing, the Administrative Agent may assume that such Lender has
made such share available on such date in accordance with paragraph (a) of this Section and may, in
reliance upon such assumption, make available to the Borrower a corresponding amount. In such
event, if a Lender has not in fact made its share of the applicable Borrowing available to the
Administrative Agent, then the applicable Lender and the Borrower severally agree to pay to the
Administrative Agent forthwith on demand such corresponding amount with interest thereon, for each
day from and including the date such amount is made available to the Borrower to but excluding the
date of payment to the Administrative Agent, at (i) in the case of such Lender, the greater of (A)
the Federal Funds Effective Rate and (B) a rate determined by the Administrative Agent in
accordance with banking industry rules on interbank compensation or (ii) in the case of the
Borrower, the interest rate applicable to such Borrowing. If such Lender pays such amount to the
Administrative Agent, then such amount shall constitute such Lender’s Loan included in such
Borrowing.


 


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SECTION 2.08. Interest Elections. (a) Each Revolving Borrowing initially shall be of
the Type specified in the applicable Borrowing Request and, in the case of a Eurodollar Revolving
Borrowing, shall have an initial Interest Period as
specified in such Borrowing Request. Thereafter, the Borrower may elect to convert such
Borrowing to a different Type or to continue such Borrowing and, in the case of a Eurodollar
Revolving Borrowing, may elect Interest Periods therefor, all as provided in this Section. The
Borrower may elect different options with respect to different portions of the affected Borrowing,
in which case each such portion shall be allocated ratably among the Lenders holding the Loans
comprising such Borrowing, and any Loans resulting from an election made with respect to any such
portion shall be considered a separate Borrowing. Notwithstanding any other provision of this
Section, no Borrowing may be converted into or continued as a Borrowing with an Interest Period
ending after the Maturity Date. This Section shall not apply to Competitive Loans or Swingline
Loans, which may not be converted or continued.



(b) To make an election pursuant to this Section, the Borrower shall notify the Administrative
Agent of such election by telephone or by telecopy by the time and date that a Borrowing Request
would be required under Section 2.03 if the Borrower were requesting a Revolving Borrowing of the
Type resulting from such election to be made on the effective date of such election. Each such
Interest Election Request shall be irrevocable and, if telephonic, shall be confirmed promptly by
hand delivery or telecopy to the Administrative Agent of a written Interest Election Request in a
form approved by the Administrative Agent and signed by the Borrower. Notwithstanding any other
provision of this Section, the Borrower shall not be permitted to elect an Interest Period for
Eurodollar Loans that does not comply with Section 2.02(d).



(c) Each telephonic and written Interest Election Request shall specify the following
information in compliance with Section 2.02:




(i) the Borrowing to which such Interest Election Request applies and, if
different options are being elected with respect to different portions thereof, the
portions thereof to be allocated to each resulting Borrowing (in which case the
information to be specified pursuant to clauses (iii) and (iv) below shall be
specified for each resulting Borrowing);




(ii) the effective date of the election made pursuant to such Interest
Election Request, which shall be a Business Day;




(iii) whether the resulting Borrowing is to be an ABR Borrowing or a
Eurodollar Borrowing; and




(iv) if the resulting Borrowing is a Eurodollar Borrowing, the Interest
Period to be applicable thereto after giving effect to such election, which shall
be a period contemplated by the definition of the term “Interest Period” and shall
end no later than the Maturity Date.



If any such Interest Election Request requests a Eurodollar Borrowing, but does not specify an
Interest Period, then the Borrower shall be deemed to have selected an Interest Period of one
month’s duration.


 


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(d) Promptly following receipt of an Interest Election Request, the Administrative Agent shall
advise each Lender of the details thereof and of such Lender’s portion of each resulting Borrowing.



(e) If the Borrower fails to deliver a timely Interest Election Request with respect to a
Eurodollar Revolving Borrowing prior to the end of the Interest Period applicable thereto, then,
unless such Borrowing is repaid as provided herein, at the end of such Interest Period, such
Eurodollar Revolving Borrowing will be converted to an ABR Borrowing. Notwithstanding any contrary
provision hereof, if an Event of Default has occurred and is continuing and the Administrative
Agent, at the written request of the Required Lenders, so notifies the Borrower (such notification
to be promptly confirmed in writing), then, so long as an Event of Default is continuing each
outstanding Eurodollar Revolving Borrowing may only be continued as a Eurodollar Borrowing with an
Interest Period of one month.



SECTION 2.09. Termination and Reduction of Commitments; Increase of Commitments.



(a) Unless previously terminated, the Commitments shall terminate on the Maturity Date.



(b) The Borrower may at any time terminate, or from time to time permanently reduce, the
Commitments; provided that (i) each reduction of the Commitments shall be in an amount that
is an integral multiple of $1,000,000 and not less than $10,000,000 and (ii) the Borrower shall not
terminate or reduce the Commitments if, after giving effect to any concurrent prepayment of the
Loans in accordance with Section 2.11, the sum of the Revolving Credit Exposure plus the
Competitive Loan Exposure would exceed the total Commitments.



(c) The Borrower shall notify the Administrative Agent of any election to terminate or reduce
the Commitments under paragraph (b) of this Section at least one Business Day (or such shorter
period as may be acceptable to the Administrative Agent) prior to the effective date of such
termination or reduction, specifying such election and the effective date thereof. Promptly
following receipt of any notice, the Administrative Agent shall advise the applicable Lenders of
the contents thereof. Each notice delivered by the Borrower pursuant to this Section shall be
irrevocable; provided that a notice of termination of the Commitments delivered by the
Borrower may state that such notice is conditioned upon the effectiveness of other credit
facilities, in which case such notice may be revoked by the Borrower (by notice to the
Administrative Agent on or prior to the specified effective date) if such condition is not
satisfied. Any termination or reduction of the Commitments shall be permanent. Each reduction of
the Commitments shall be made ratably among the Lenders in accordance with their respective
Commitments.


 


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(d) (i) The Borrower may at any time, by written notice to the Administrative Agent, request
Additional Credit Commitments from one or more Additional Credit Lenders, which may include any
existing Lender; provided that at no time shall the aggregate amount of Additional Credit
Commitments effected pursuant to
this paragraph exceed $500,000,000; provided further that each Additional
Credit Lender, if not already a Lender hereunder, shall be subject to the approval of the
Administrative Agent and the Borrower (which approvals shall not be unreasonably withheld). Each
such notice shall set forth (A) the amount of the Additional Credit Commitments being requested
(which shall be in a minimum amount of $10,000,000) and (B) the date on which such Additional
Credit Commitments are requested to become effective (which shall not be less than 10 days (or such
shorter period as may be acceptable to the applicable Additional Credit Lender) nor more than 45
days after the date of such notice).



(ii) The Borrower and each Person that in its sole discretion agrees to be an Additional
Credit Lender in accordance with sub-paragraph (i) above shall execute and deliver to the
Administrative Agent an Additional Credit Assumption Agreement and such other documentation as the
Administrative Agent shall reasonably specify to evidence the Additional Credit Commitment of such
Additional Credit Lender. The Administrative Agent shall promptly notify each Lender as to the
effectiveness of each Additional Credit Assumption Agreement. Each of the parties hereto hereby
agrees that, upon the effectiveness of any Additional Credit Assumption Agreement, each such
Additional Credit Lender shall, to the extent not an existing Lender, become a Lender hereunder and
this Agreement shall be deemed amended to the extent (but only to the extent) necessary to reflect
the existence and terms of the Additional Credit Commitment evidenced thereby.



(iii) Each of the parties hereto hereby agrees that the Administrative Agent may take any and
all actions as may be reasonably necessary to ensure that, after giving effect to any Additional
Credit Commitment pursuant to this Section 2.09(d), the outstanding Loans (if any) are held by the
Lenders in accordance with their new pro rata percentages. This may be accomplished at the
discretion of the Administrative Agent (A) by requiring the outstanding Loans to be prepaid with
the proceeds of a new Borrowing, (B) by causing the existing Lenders to assign portions of their
outstanding Loans to Additional Credit Lenders, which assignments shall be deemed to be effective
pursuant to Section 9.04 or (C) by any combination of the foregoing. Notwithstanding the
foregoing, in order to eliminate any break funding liability to the Borrower, if, upon the date
that any Additional Credit Commitment becomes effective pursuant to this Section 2.09(d), there is
an unpaid principal amount of Revolving Loans to the Borrower, the principal outstanding amount of
all such Revolving Loans shall (x) in the case of such Revolving Loans which are ABR Loans, be
immediately repaid by the Borrower (but all such Revolving Loans may, on the terms and conditions
hereof, be reborrowed on such date on a pro rata basis, based on the revised Commitments as then in
effect) and (y) in the case of such Revolving Loans which are Eurodollar Loans, continue to remain
outstanding (notwithstanding any other requirement in this Agreement that such Revolving Loans be
held on a pro rata basis based on the revised Commitments as then in effect) until the end of the
then current Interest Period therefor, at which time such Eurodollar Loans shall be paid by the
Borrower to the Lenders on a pro rata basis, based on their respective Commitments (if any)
immediately prior to giving effect to any Additional Credit Commitments (but all such Revolving
Loans may, on the terms and conditions hereof, be reborrowed on such date, and any such reborrowing
shall be funded by the Lenders,
including the Lenders holding Additional Credit Commitments, on a pro rata basis based on the
Commitments as then in effect).


 


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(iv) Notwithstanding the foregoing, no Additional Credit Commitment shall become effective
under this Section 2.09(d) unless on the date of such effectiveness, the conditions set forth in
paragraphs (a) and (b) of Section 4.02 shall be satisfied and the Administrative Agent shall have
received a certificate to that effect dated such date and executed by a Financial Officer.



SECTION 2.10. Repayment of Loans; Evidence of Debt. (a) The Borrower hereby
unconditionally promises to pay (i) to the Administrative Agent for the account of each Lender the
unpaid principal amount of each Revolving Loan made to the Borrower on the Maturity Date, (ii) to
the Administrative Agent for the account of each Lender that has made a Competitive Loan the unpaid
principal amount of such Competitive Loan on the last day of the Interest Period applicable to such
Loan and (iii) to the Swingline Lender the then unpaid principal amount of each Swingline Loan on
the earlier of (A) the Maturity Date and (B) the tenth Business Day after such Swingline Loan is
made; provided that on each date that a Revolving Loan or a Competitive Loan is made to the
Borrower, the Borrower shall repay all Swingline Loans made to it and then outstanding.



(b) Each Lender shall maintain in accordance with its usual practice an account or accounts
evidencing the Indebtedness of the Borrower to such Lender resulting from each Loan made by such
Lender, including the amounts of principal and interest payable and paid to such Lender from time
to time hereunder.



(c) The Administrative Agent shall maintain accounts in which it shall record (i) the amount
of each Loan made hereunder, the Class and Type thereof and the Interest Period, if any, applicable
thereto, (ii) the amount of any principal or interest due and payable or to become due and payable
from the Borrower to each Lender hereunder and (iii) the amount of any sum received by the
Administrative Agent hereunder for the account of the Lenders and each Lender’s share thereof.



(d) The entries made in the accounts maintained pursuant to paragraph (b) or (c) of this
Section shall, absent manifest error, be prima facie evidence of the existence and amounts of the
obligations recorded therein; provided that the failure of any Lender or the Administrative
Agent to maintain such accounts or any error therein shall not in any manner affect the obligation
of the Borrower to repay the Loans in accordance with the terms of this Agreement.



(e) Any Lender may request that Loans made by it be evidenced by a promissory note. In such
event, the Borrower shall prepare, execute and deliver to such Lender a promissory note payable to
such Lender (or, if requested by such Lender, to such Lender and its registered assigns) and in a
form approved by the Borrower and the Administrative Agent. Thereafter, the Loans evidenced by
such promissory note and interest thereon shall at all times (including after assignment pursuant
to Section 9.04) be represented by one or more promissory notes in such form payable to the order
of the
payee named therein (or, if such promissory note is a registered note, to such payee and its
registered assigns).


 


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SECTION 2.11. Prepayment of Loans. (a) The Borrower shall have the right at any time
and from time to time to prepay any Borrowing in whole or in part, subject to prior notice in
accordance with paragraph (d) of this Section and payment, when required thereby, of any amounts
required under Section 2.16; provided that the Borrower shall not have the right to prepay
any Competitive Loan without the prior consent of the Lender thereof.



(b) In the event and on each occasion that the sum of the Revolving Credit Exposure plus the
Competitive Loan Exposure exceeds the total Commitments, the Borrower shall: first,
promptly prepay Swingline Loans in an aggregate amount sufficient to eliminate such excess, and
second, to the extent of any remaining excess, promptly prepay Revolving Borrowings in an
aggregate amount sufficient to eliminate such excess, and third, to the extent of any
remaining excess, or if no Revolving Borrowings or Swingline Loans are outstanding, make a deposit
in a cash collateral account maintained by the Administrative Agent pursuant to Section 2.06(i) to
be held as security for the Borrower’s obligations in respect of Letters of Credit. To the extent
the amount of cash collateral provided hereunder at any time exceeds the LC Exposure at such time
and no Event of Default has occurred and is continuing, the excess thereof shall be returned to the
Borrower.



(c) Prior to any optional or mandatory prepayment of Borrowings, the Borrower shall select the
Borrowing or Borrowings to be prepaid and shall specify such selection in the notice of such
prepayment pursuant to paragraph (d) below.



(d) The Borrower shall notify the Administrative Agent (and in the case of prepayment of a
Swingline Loan, the Swingline Lender) by telephone (confirmed by telecopy) or by telecopy of any
prepayment hereunder (i) in the case of prepayment of a Eurodollar Revolving Borrowing, not later
than 12:00 noon, New York City time, three Business Days before the date of prepayment, (ii) in the
case of prepayment of an ABR Revolving Borrowing, not later than 10:00 a.m., New York City time, on
the Business Day of prepayment or (iii) in the case of prepayment of a Swingline Loan, not later
than 1:00 p.m., New York City time, on the date of prepayment. Each such notice shall be
irrevocable and shall specify the prepayment date and the principal amount of each Borrowing or
portion thereof, to be prepaid; provided that, if a notice of prepayment is given in
connection with a conditional notice of termination of the Commitments as contemplated by Section
2.09, then such notice of prepayment may be revoked if such notice of termination is revoked in
accordance with Section 2.09. Promptly following receipt of any such notice relating to a
Revolving Borrowing or a Swingline Borrowing, the Administrative Agent shall advise the Lenders of
the contents thereof. Each partial prepayment of any Revolving Borrowing shall be in an amount
that would be permitted in the case of an advance of a Revolving Borrowing of the same Type as
provided in Section 2.02. Each prepayment of a Revolving Borrowing or a Swingline Borrowing shall
be applied ratably to the Loans included in the prepaid Borrowing. Prepayments shall be
accompanied by accrued interest to the extent required by Section 2.13.


 


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SECTION 2.12. Fees. (a) The Borrower agrees to pay to the Administrative Agent, for
the account of each Lender (other than a Defaulting Lender) a facility fee, which shall accrue at
the Applicable Rate on the daily amount of the Commitments of such Lender (whether used or unused)
during the period from and including the date hereof to but excluding the date on which such
Commitments terminate; provided that, if such Lender continues to have any Revolving Credit
Exposure after its Commitments terminate, then such facility fee shall continue to accrue on the
daily amount of such Lender’s Revolving Credit Exposure from and including the date on which its
Commitment terminates to but excluding the date on which such Lender ceases to have any Revolving
Credit Exposure. Accrued facility fees shall be payable in arrears on the last day of March, June,
September and December of each year and on the date on which all the Commitments terminate,
commencing on the first such date to occur after the date hereof; provided that any
facility fees accruing after the date on which all the Commitments terminate shall be payable on
demand. All facility fees shall be computed on the basis of a year of 365 (or 366, as the case may
be) days and shall be payable for the actual number of days elapsed (including the first day but
excluding the last day).



(b) The Borrower agrees to pay (i) to the Administrative Agent for the account of each Lender
a participation fee with respect to its participations in Letters of Credit, which shall accrue on
the average daily amount of such Lender’s LC Exposure in respect of Performance Letters of Credit
and Financial Letters of Credit (excluding, in each case, any LC Exposure attributable to
unreimbursed LC Disbursements) at the Applicable Rate for Performance Letters of Credit or
Financial Letters of Credit, as the case may be, during the period from and including the Effective
Date to but excluding the later of the date on which such Lender’s Commitment terminates and the
date on which such Lender ceases to have any LC Exposure and (ii) to each Issuing Bank a fronting
fee, which shall accrue at a rate per annum as may be separately agreed upon by the Borrower and
such Issuing Bank on the daily amount of the LC Exposure attributable to Performance Letters of
Credit or Financial Letters of Credit issued by such Issuing Bank (excluding any portion thereof
attributable to unreimbursed LC Disbursements) during the period from and including the Effective
Date to but excluding the later of the date of termination of the Commitments and the date on which
there ceases to be any LC Exposure attributable to such Letters of Credit issued by such Issuing
Bank, as well as such Issuing Bank’s standard fees with respect to the issuance, amendment, renewal
or extension of any Letter of Credit or processing of drawings thereunder. Participation fees and
fronting fees accrued through and including the last day of March, June, September and December of
each year shall be payable on the third Business Day following such last day, commencing on the
first such date to occur after the Effective Date; provided that all such fees shall be
payable on the later of the date on which the Commitments terminate and the date on which there
shall cease to be any LC Exposure. All participation fees and fronting fees in respect of Letters
of Credit shall be computed on the basis of a year of 365 (or 366, as the case may be) days and
shall be payable for the actual number of days elapsed (including the first day but excluding the
last day).


 


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(c) The Borrower agrees to pay to the Administrative Agent, for its own account, fees payable
in the amounts and at the times separately agreed upon between the Borrower and the Administrative
Agent.



(d) All fees payable hereunder shall be paid on the dates due, in immediately available funds,
to the Administrative Agent (or to each Issuing Bank, in the case of fees payable to it) for its
own account or, in the case of facility fees and participation fees, for distribution to the
Lenders. Fees paid shall not be refundable under any circumstances.



SECTION 2.13. Interest. (a) The Loans comprising each ABR Borrowing (including each
Swingline Loan) shall bear interest at the Alternate Base Rate plus the Applicable Rate.



(b) The Loans comprising each Eurodollar Borrowing shall bear interest (i) in the case of a
Eurodollar Revolving Borrowing, at the Adjusted LIBO Rate for the Interest Period in effect for
such Borrowing plus the Applicable Rate or (ii) in the case of a Eurodollar Competitive
Borrowing, at the Adjusted LIBO Rate for the Interest Period in effect for such Borrowing
plus (or minus, as applicable) the Margin applicable to such Borrowing.



(c) Each Fixed Rate Loan shall bear interest at the Fixed Rate applicable to such Loan.



(d) Notwithstanding the foregoing, if any principal of or interest on any Loan or any fee or
other amount payable by the Borrower hereunder is not paid when due, whether at stated maturity,
upon acceleration or otherwise, such overdue amount shall bear interest, after as well as before
judgment, at a rate per annum equal to (i) in the case of overdue principal of any Loan, 2.00%
plus the rate otherwise applicable to such Loan as provided in the preceding paragraphs of
this Section or (ii) in the case of any other amount, 2.00% plus the rate applicable to ABR
Loans as provided in paragraph (a) of this Section.



(e) Accrued interest on each Loan shall be payable in arrears on each Interest Payment Date
for such Loan and, in the case of Revolving Loans, upon termination of the Commitments;
provided that (i) interest accrued pursuant to paragraph (d) of this Section shall be
payable on demand, (ii) in the event of any repayment or prepayment of any Loan (other than a
prepayment of an ABR Revolving Loan prior to the end of the Availability Period), accrued interest
on the principal amount repaid or prepaid shall be payable on the date of such repayment or
prepayment and (iii) in the event of any conversion of any Eurodollar Revolving Loan prior to the
end of the current Interest Period therefor, accrued interest on such Loan shall be payable on the
effective date of such conversion.



(f) All interest hereunder shall be computed on the basis of a year of 360 days, except that
interest computed by reference to the Alternate Base Rate at times when the Alternate Base Rate is
based on the Prime Rate shall be computed on the basis of a
year of 365 days (or 366 days in a leap year), and in each case shall be payable for the
actual number of days elapsed (including the first day but excluding the last day). The applicable
Alternate Base Rate or Adjusted LIBO Rate shall be determined by the Administrative Agent, and such
determination shall be conclusive absent manifest error.


 


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SECTION 2.14. Alternate Rate of Interest. If prior to the commencement of any
Interest Period for a Eurodollar Borrowing:



(a) the Administrative Agent determines (which determination shall be conclusive absent
manifest error) that adequate and reasonable means do not exist for ascertaining the Adjusted LIBO
Rate for such Interest Period; or



(b) the Administrative Agent is advised by the Required Lenders (or, in the case of a
Eurodollar Competitive Loan, the Lender that is required to make such Loan) that the Adjusted LIBO
Rate for such Interest Period will not adequately and fairly reflect the cost to such Lenders (or
Lender) of making or maintaining their Loans (or its Loan) included in such Borrowing for such
Interest Period;



then the Administrative Agent shall give notice thereof to the Borrower and the Lenders by
telephone or telecopy as promptly as practicable thereafter and, until the Administrative Agent
notifies the Borrower and the Lenders that the circumstances giving rise to such notice no longer
exist, (i) any Interest Election Request that requests the conversion of any Revolving Borrowing
to, or continuation of any Revolving Borrowing as, a Eurodollar Borrowing shall be ineffective,
(ii) if any Borrowing Request requests a Eurodollar Revolving Borrowing, such Borrowing shall be
made as an ABR Borrowing and (iii) any request by the Borrower for a Eurodollar Competitive
Borrowing shall be ineffective; provided that (A) if the circumstances giving rise to such
notice do not affect all the Lenders, then requests by the Borrower for Eurodollar Competitive
Borrowings may be made to Lenders that are not affected thereby and (B) if the circumstances giving
rise to such notice affect only one Type of Borrowings, then the other Type of Borrowings shall be
permitted.



SECTION 2.15. Increased Costs. (a) If any Change in Law shall:




(i) impose, modify or deem applicable any reserve, special deposit, insurance
charge or similar requirement against assets of, deposits with or for the account
of, or credit extended by, any Lender or any Issuing Bank (except for any such
requirement reflected in the Adjusted LIBO Rate);




(ii) impose on any Lender or Issuing Bank or the London interbank markets any
other condition affecting this Agreement or Eurodollar Loans or Fixed Rate Loans
made by such Lender or any Letter of Credit or participation therein; or




(iii) subject any Recipient to any Taxes on its Loans, loan principal,
Letters of Credit, Commitments, or other obligations, or its deposits, reserves,
other liabilities or capital attributable thereto (other
than (A) Indemnified Taxes and (B) Excluded Taxes on gross or net income,
profits or revenue (including value added or similar Taxes));


 


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and the result of any of the foregoing shall be to increase the cost to such Lender or such other
Recipient of making or maintaining any Eurodollar Loan or Fixed Rate Loan or to increase the cost
to such Lender, any Issuing Bank or such other Recipient of participating in, issuing or
maintaining any Letter of Credit or to reduce the amount of any sum received or receivable by such
Lender, such Issuing Bank or such other Recipient hereunder (whether of principal, interest or
otherwise), then the Borrower will pay to such Lender, such Issuing Bank or such other Recipient,
as the case may be, such additional amount or amounts as will compensate such Lender, such Issuing
Bank or such other Recipient, as the case may be, for such additional costs incurred or reduction
suffered.



(b) If any Lender or Issuing Bank determines that any Change in Law regarding capital
requirements has or would have the effect of reducing the rate of return on such Lender’s or such
Issuing Bank’s capital or on the capital of such Lender’s or such Issuing Bank’s holding company,
if any, as a consequence of this Agreement or the Loans made, or participations in Letters of
Credit held, by such Lender, or the Letters of Credit issued by such Issuing Bank, to a level below
that which such Lender or such Issuing Bank, or such Lender’s or such Issuing Bank’s holding
company could have achieved but for such Change in Law (taking into consideration such Lender’s or
such Issuing Bank’s policies and the policies of such Lender’s or such Issuing Bank’s holding
company with respect to capital adequacy), then from time to time the Borrower will pay to such
Lender or such Issuing Bank, as the case may be, such additional amount or amounts as will
compensate such Lender or such Issuing Bank or such Lender’s or such Issuing Bank’s holding company
for any such reduction suffered.



(c) A certificate of a Lender or an Issuing Bank setting forth the amount or amounts necessary
to compensate such Lender or such Issuing Bank or its holding company, as the case may be, as
specified in paragraph (a) or (b) of this Section, shall be delivered to the Borrower and shall be
conclusive absent manifest error. The Borrower shall pay such Lender or such Issuing Bank the
amount shown as due on any such certificate within 10 Business Days after receipt thereof.



(d) Failure or delay on the part of any Lender or any Issuing Bank to demand compensation
pursuant to this Section shall not constitute a waiver of such Lender’s or such Issuing Bank’s
right to demand such compensation; provided that, the Borrower shall not be required to
compensate a Lender or any Issuing Bank pursuant to paragraph (a) or (b) of this Section for any
increased costs or reductions incurred more than 180 days prior to the date that such Lender or
such Issuing Bank notifies the Borrower of the Change in Law giving rise to such increased costs or
reductions and of such Lender’s or such Issuing Bank’s intention to claim compensation therefor;
provided further that, if the Change in Law giving rise to such increased costs or
reductions is retroactive, then the 180-day period referred to above shall be extended to include
the period of retroactive effect thereof.


 


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(e) Notwithstanding the foregoing provisions of this Section, a Lender shall not be entitled
to compensation pursuant to this Section in respect of any Competitive Loan if the Change in Law
that would otherwise entitle it to such compensation shall have been publicly announced prior to
submission of the Competitive Bid pursuant to which such Loan was made.



SECTION 2.16. Break Funding Payments. In the event of (a) the payment of any
principal of any Eurodollar Loan or Fixed Rate Loan other than on the last day of an Interest
Period applicable thereto (including as a result of an Event of Default), (b) the conversion of any
Eurodollar Loan other than on the last day of the Interest Period applicable thereto, (c) the
failure to borrow, convert, continue or prepay any Eurodollar Loan or Fixed Rate Loan on the date
specified in any notice delivered pursuant hereto (regardless of whether such notice may be revoked
under Section 2.11(d) and is revoked in accordance therewith), (d) the failure to borrow any
Competitive Loan after accepting the Competitive Bid to make such Loan, or (e) the assignment of
any Eurodollar Loan or Fixed Rate Loan other than on the last day of the Interest Period, as the
case may be, applicable thereto as a result of a request by the Borrower pursuant to Section 2.19,
then, in any such event, the Borrower shall compensate each Lender for the loss, cost and expense
attributable to such event. In the case of a Eurodollar Loan, such loss, cost or expense to any
Lender shall be deemed to include an amount determined by such Lender to be the excess, if any, of
(i) the amount of interest which would have accrued on the principal amount of such Loan had such
event not occurred, at the Adjusted LIBO Rate or Fixed Rate, as applicable, that would have been
applicable to such Loan, for the period from the date of such event to the last day of the then
current Interest Period therefor (or, in the case of a failure to borrow, convert or continue, for
the period that would have been the Interest Period for such Loan), over (ii) the amount of
interest which would accrue on such principal amount for such period at the interest rate which
such Lender would bid were it to bid, at the commencement of such period, for dollar deposits of a
comparable amount and period from other banks in the London interbank market. A certificate of any
Lender setting forth any amount or amounts that such Lender is entitled to receive pursuant to this
Section shall be delivered to the Borrower and shall be conclusive absent manifest error. The
Borrower shall pay such Lender the amount shown as due on any such certificate within 10 Business
Days after receipt thereof. Notwithstanding the foregoing, the Borrower shall not be required to
compensate a Lender pursuant to this Section 2.16 for any loss, cost or expense incurred more than
180 days prior to the date that such Lender notifies the Borrower of the event giving rise to such
loss, cost or expense and of such Lender’s intention to claim compensation therefor.



SECTION 2.17. Taxes. (a) Each payment by any Loan Party under any Loan Document shall
be made without withholding for any Taxes, unless such withholding is required by any law. If any
Withholding Agent determines, in its sole discretion exercised in good faith, that it is so
required to withhold any Taxes, then such Withholding Agent may so withhold and shall timely pay
the full amount of withheld Taxes to the relevant Governmental Authority in accordance with
applicable law. If such Taxes are Indemnified Taxes, then the amount payable by such Loan Party
shall be increased as necessary so that, net of such withholding (including such withholding
applicable to additional amounts payable under this Section), the applicable Recipient
receives the amount it would have received had no such withholding been made.


 


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(b) The Borrower shall timely pay any Other Taxes to the relevant Governmental Authority in
accordance with applicable law.



(c) As soon as practicable after any payment of Indemnified Taxes by any Loan Party to a
Governmental Authority, such Loan Party shall deliver to the Administrative Agent the original or a
certified copy of a receipt issued by such Governmental Authority evidencing such payment, a copy
of the return reporting such payment or other evidence of such payment reasonably satisfactory to
the Administrative Agent.



(d) The Loan Parties shall jointly and severally indemnify each Recipient for any Indemnified
Taxes that are paid or payable by such Recipient in connection with any Loan Document (including
amounts paid or payable under this Section 2.17(d)) and any reasonable expenses arising therefrom
or with respect thereto, whether or not such Indemnified Taxes were correctly or legally imposed or
asserted by the relevant Governmental Authority. The indemnity under this Section 2.17(d) shall be
paid within 10 days after the Recipient delivers to any Loan Party a certificate stating the amount
of any Indemnified Taxes so paid or payable by such Recipient and describing the basis for the
indemnification claim; provided that no Loan Party shall be required to indemnify any
Recipient pursuant to this paragraph for any such Indemnified Taxes (including expenses arising
therefrom or with respect thereto) paid by the Recipient more than 180 days prior to the date that
the Recipient notifies the applicable Loan Party of such payment by the Recipient of such
Indemnified Taxes and of the Recipient’s intention to claim indemnification therefor. Such
certificate shall be conclusive of the amount so paid or payable absent manifest error. Such
Recipient shall deliver a copy of such certificate to the Administrative Agent.



(e) Each Lender shall severally indemnify the Administrative Agent for any Taxes (but, in the
case of any Indemnified Taxes, only to the extent that any Loan Party has not already indemnified
the Administrative Agent for such Indemnified Taxes and without limiting the obligation of the Loan
Parties to do so) attributable to such Lender that are paid or payable by the Administrative Agent
in connection with any Loan Document and any reasonable expenses arising therefrom or with respect
thereto, whether or not such Taxes were correctly or legally imposed or asserted by the relevant
Governmental Authority. The indemnity under this Section 2.17(e) shall be paid within 10 days
after the Administrative Agent delivers to the applicable Lender a certificate stating the amount
of Taxes so paid or payable by the Administrative Agent. Such certificate shall be conclusive of
the amount so paid or payable absent manifest error.


 


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(f) (i) Any Lender that is entitled to an exemption from, or reduction of, any applicable
withholding Tax with respect to any payments under any Loan Document shall deliver to the Borrower
and the Administrative Agent, at the time or times reasonably requested by the Borrower or the
Administrative Agent, such properly completed and executed documentation reasonably requested by
the Borrower or the
Administrative Agent as will permit such payments to be made without, or at a reduced rate of,
withholding. In addition, any Lender, if requested by either the Borrower or the Administrative
Agent, shall deliver such other documentation prescribed by law or reasonably requested by the
Borrower or the Administrative Agent as will enable the Borrower or the Administrative Agent to
determine whether or not such Lender is subject to any withholding (including backup withholding)
or information reporting requirements. Notwithstanding anything to the contrary in the preceding
two sentences, the completion, execution and submission of such documentation (other than such
documentation set forth in Section 2.17(f)(ii)(A) through (E) below) shall not be required if in
the Lender’s judgment such completion, execution or submission would subject such Lender to any
material unreimbursed cost or expense or would materially prejudice the legal or commercial
position of such Lender. Upon the reasonable request of the Borrower or the Administrative Agent,
any Lender shall update any form or certification previously delivered pursuant to this Section
2.17(f). If any form or certification previously delivered pursuant to this Section expires or
becomes obsolete or inaccurate in any respect with respect to a Lender, such Lender shall promptly
(and in any event within 10 days after such expiration, obsolescence or inaccuracy) notify the
Borrower and the Administrative Agent in writing of such expiration, obsolescence or inaccuracy and
update the form or certification if it is legally eligible to do so.




(ii) Without limiting the generality of the foregoing, any Lender shall, if it
is legally eligible to do so, deliver to the Borrower and the Administrative Agent
(in such number of copies reasonably requested by the Borrower and the
Administrative Agent) on or prior to the date on which such Lender becomes a party
hereto, duly completed and executed copies of whichever of the following is
applicable:




(A) in the case of a Lender that is a U.S. Person, IRS Form W-9 certifying
that such Lender is exempt from U.S. Federal backup withholding tax;




(B) in the case of a Non-U.S. Lender claiming the benefits of an income tax
treaty to which the United States is a party (1) with respect to payments of
interest under any Loan Document, IRS Form W-8BEN establishing an exemption from,
or reduction of, U.S. Federal withholding Tax pursuant to the “interest” article of
such tax treaty and (2) with respect to any other applicable payments under any
Loan Document, IRS Form W-8BEN establishing an exemption from, or reduction of,
U.S. Federal withholding Tax pursuant to the “business profits” or “other income”
article of such tax treaty;




(C) in the case of a Non-U.S. Lender for whom payments under this Agreement
constitute income that is effectively connected with such Lender’s conduct of a
trade or business in the United States, IRS Form W-8ECI;


 


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(D) in the case of a Non-U.S. Lender claiming the benefits of the exemption
for portfolio interest under Section 881(c) of the Code both (1) IRS Form W-8BEN
and (2) a certificate substantially in the form of Exhibit C (a “U.S. Tax
Certificate”) to the effect that such Lender is not (a) a “bank” within the
meaning of Section 881(c)(3)(A) of the Code, (b) a “10 percent shareholder” of the
Borrower within the meaning of Section 881(c)(3)(B) of the Code (c) a “controlled
foreign corporation” described in Section 881(c)(3)(C) of the Code and (d)
conducting a trade or business in the United States with which the relevant
interest payments are effectively connected;




(E) in the case of a Non-U.S. Lender that is not the beneficial owner of
payments made under this Agreement (including an entity treated as a partnership
for U.S. federal income tax purposes or a participating Lender) (1) an IRS Form
W-8IMY on behalf of itself and (2) the relevant forms prescribed in clauses (A),
(B), (C), (D) and (F) of this paragraph (f)(ii) that would be required of each such
beneficial owner or partner of such partnership if such beneficial owner or partner
were a Lender; provided, however, that if the Lender is a
partnership (and not a participating Lender) and one or more of its partners are
claiming the exemption for portfolio interest under Section 881(c) of the Code,
such Lender may provide a U.S. Tax Certificate on behalf of such partners; or




(F) any other form prescribed by law as a basis for claiming exemption from,
or a reduction of, U.S. Federal withholding Tax together with such supplementary
documentation necessary to enable the Borrower or the Administrative Agent to
determine the amount of Tax (if any) required by law to be withheld.




(iii) If a payment made to a Lender under any Loan Document would be subject
to U.S. Federal withholding Tax imposed by FATCA if such Lender were to fail to
comply with the applicable reporting requirements of FATCA (including those
contained in Section 1471(b) or 1472(b) of the Code, as applicable), such Lender
shall deliver to the Withholding Agent, at the time or times prescribed by law and
at such time or times reasonably requested by the Withholding Agent, such
documentation prescribed by applicable law (including as prescribed by Section
1471(b)(3)(C)(i) of the Code) and such additional documentation reasonably
requested by the Withholding Agent as may be necessary for the Withholding Agent to
comply with its obligations under FATCA, to determine that such Lender has or has
not complied with such Lender’s obligations under FATCA and, as necessary, to
determine the amount to deduct and withhold from such payment. Solely for purposes
of this Section 2.17(f)(iii), “FATCA” shall include any amendments made to Sections
1471 through 1474 of the Code, and any regulations or official interpretations
thereof, after the date of this Agreement.


 


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(g) If any party determines, in its sole discretion exercised in good faith, that it has
received a refund of any Taxes as to which it has been indemnified pursuant to this Section 2.17
(including additional amounts paid pursuant to this Section 2.17), it shall pay to the indemnifying
party an amount equal to such refund (but only to the extent of indemnity payments made under this
Section with respect to the Taxes giving rise to such refund), net of all out-of-pocket expenses
(including any Taxes) of such indemnified party and without interest (other than any interest paid
by the relevant Governmental Authority with respect to such refund). Such indemnifying party, upon
the request of such indemnified party, shall repay to such indemnified party the amount paid to
such indemnifying party pursuant to the previous sentence (plus any penalties, interest or other
charges imposed by the relevant Governmental Authority) in the event such indemnified party is
required to repay such refund to such Governmental Authority. Notwithstanding anything to the
contrary in this Section 2.17(g), in no event will any indemnified party be required to pay any
amount to any indemnifying party pursuant to this Section 2.17(g) if such payment would place such
indemnified party in a less favorable position (on a net after-Tax basis) than such indemnified
party would have been in if the indemnification payments or additional amounts giving rise to such
refund had never been paid. This Section 2.17(g) shall not be construed to require any indemnified
party to make available its Tax returns (or any other information relating to its Taxes which it
deems confidential) to the indemnifying party or any other Person.



(h) For purposes of Section 2.17(e) and (f), the term “Lender” includes any Issuing Bank.




SECTION 2.18. Payments Generally; Pro Rata Treatment; Sharing of Set-offs. (a) Except
as otherwise provided in Section 2.06(e), the Borrower shall make each payment required to be made
by it hereunder or under any other Loan Document (whether of principal, interest or fees,
reimbursements of LC Disbursements, or of amounts payable under Section 2.15, 2.16 or 2.17, or
otherwise) prior to 12:00 noon, New York City time, on the date when due, in immediately available
funds, without set-off or counterclaim. Any amounts received after such time on any date may, in
the discretion of the Administrative Agent, be deemed to have been received on the next succeeding
Business Day for purposes of calculating interest thereon. All such payments shall be made to the
Administrative Agent for the account of the applicable Lenders or Issuing Bank or, in any such
case, to such other account as the Administrative Agent shall from time to time specify in a notice
delivered to the Borrower, except that payments to the Swingline Lender, payments to an Issuing
Bank as expressly provided herein and payments pursuant to Sections 2.15 (other than paragraph (b)
thereof), 2.16, 2.17 and 9.03 shall be made directly to the Persons entitled thereto. The
Administrative Agent shall distribute any such payments received by it for the account of any other
Person to the appropriate recipient promptly following receipt thereof. If any payment under any
Loan Document shall be due on a day that is not a Business Day, the date for payment shall be
extended to the next succeeding Business Day, and, in the case of any payment accruing interest,
interest thereon shall be payable for the period of such extension. Any payment required to be
made by the Administrative Agent shall be deemed to have been made by the time required if the
Administrative Agent shall, at or before such time, have taken the necessary steps to make such
payment in accordance
with the regulations or operating procedures of the clearing or settlement system used by the
Administrative Agent to make such payment.


 


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(b) If at any time insufficient funds are received by and available to the Administrative
Agent from the Borrower to pay fully all amounts of principal, unreimbursed LC Disbursements,
interest and fees then due from the Borrower hereunder, such funds shall be applied (i)
first, towards payment of interest and fees then due from the Borrower hereunder, ratably
among the parties entitled thereto in accordance with the amounts of interest and fees then due to
such parties, and (ii) second, towards payment of principal and unreimbursed LC
Disbursements then due from the Borrower hereunder, ratably among the parties entitled thereto in
accordance with the amounts of principal and unreimbursed LC Disbursements then due to such
parties.



(c) If any Lender shall, by exercising any right of set-off or counterclaim or otherwise,
obtain payment in respect of any principal of or interest on any of its Revolving Loans or
participations in Swingline Loans or participations in LC Disbursements resulting in such Lender
receiving payment of a greater proportion of the aggregate amount of its Revolving Loans and
participations in Swingline Loans and participations in LC Disbursements and accrued interest
thereon than the proportion received by any other Lender, then the Lender receiving such greater
proportion shall purchase (for cash at face value) participations in the Revolving Loans or
participations in Swingline Loans or participations in LC Disbursements, as applicable, of other
Lenders to the extent necessary so that the benefit of all such payments shall be shared by the
Lenders ratably in accordance with the aggregate amount of principal of and accrued interest on
their respective Revolving Loans or participations in Swingline Loans or participations in LC
Disbursements; provided that (i) if any such participations are purchased and all or any
portion of the payment giving rise thereto is recovered, such participations shall be rescinded and
the purchase price restored to the extent of such recovery, without interest, and (ii) the
provisions of this paragraph shall not be construed to apply to any payment made by the Borrower
pursuant to and in accordance with the express terms of this Agreement or any payment obtained by a
Lender as consideration for the assignment of or sale of a participation in any of its Loans or
participations in Swingline Loans or participations in LC Disbursements to any assignee or
participant, other than to the Borrower or any Subsidiary or Affiliate thereof (as to which the
provisions of this paragraph shall apply). The Borrower consents to the foregoing and agrees, to
the extent it may effectively do so under applicable law, that any Lender or Issuing Bank acquiring
a participation pursuant to the foregoing arrangements may exercise against the Borrower rights of
set-off and counterclaim with respect to such participation as fully as if such Lender or such
Issuing Bank were a direct creditor of the Borrower in the amount of such participation.


 


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(d) Unless the Administrative Agent shall have received notice from the Borrower prior to the
date on which any payment is due to the Administrative Agent for the account of the Lenders or any
Issuing Bank hereunder that the Borrower will not make such payment, the Administrative Agent may
assume that the Borrower has made such payment on such date in accordance herewith and may, in
reliance upon such assumption, distribute to the Lenders or the Issuing Banks, as the case may be,
the
amount due. In such event, if the Borrower has not in fact made such payment, then each of
the Lenders or each of the Issuing Banks, as the case may be, severally agrees to repay to the
Administrative Agent forthwith on demand the amount so distributed to such Lender or such Issuing
Bank with interest thereon, for each day from and including the date such amount is distributed to
it to but excluding the date of payment to the Administrative Agent, at the greater of the Federal
Funds Effective Rate and a rate determined by the Administrative Agent in accordance with banking
industry rules on interbank compensation.



(e) If any Lender shall fail to make any payment required to be made by it pursuant to Section
2.05(c), 2.06(d) or (e), 2.07(b) or paragraph (d) of this Section 2.18, then the Administrative
Agent may, in its discretion (notwithstanding any contrary provision hereof), apply any amounts
thereafter received by the Administrative Agent for the account of such Lender to satisfy such
Lender’s obligations under such Sections until all such unsatisfied obligations are fully paid.




SECTION 2.19. Mitigation Obligations; Replacement of Lenders. (a) If any Lender
(including any Issuing Bank) requests compensation under Section 2.15, or if the Borrower is
required to pay any additional amount to any Lender (including any Issuing Bank) or any
Governmental Authority for the account of any Lender (including any Issuing Bank) pursuant to
Section 2.17, then such Lender (including such Issuing Bank) shall use reasonable efforts to
designate a different lending office for funding or booking its Loans (or issuing its Letters of
Credit) hereunder or to assign its rights and obligations hereunder to another of its offices,
branches or affiliates, if, in the reasonable judgment of such Lender (including such Issuing
Bank), such designation or assignment (i) would eliminate or reduce amounts payable pursuant to
Section 2.15 or 2.17, as the case may be, in the future and (ii) would not subject such Lender
(including such Issuing Bank) to any unreimbursed cost or expense and would not otherwise be
disadvantageous to such Lender (including such Issuing Bank). The Borrower hereby agrees to pay
all reasonable costs and expenses incurred by any Lender (including any Issuing Bank) in connection
with any such designation or assignment.



(b) If (i) any Lender (including any Issuing Bank) requests compensation under Section 2.15,
(ii) the Borrower is required to pay any additional amount to any Lender (including any Issuing
Bank) or any Governmental Authority for the account of any Lender (including any Issuing Bank)
pursuant to Section 2.17, (iii) any Lender has become a Defaulting Lender, (iv) any Lender has
failed to consent to a proposed amendment, waiver, discharge or termination that under Section 9.02
requires the consent of all the Lenders (or all the affected Lenders) and with respect to which the
Required Lenders shall have granted their consent or (v) any Lender is a Declining Lender under
Section 2.21, then the Borrower may, at its sole expense and effort, upon notice to such Lender and
the Administrative Agent, require such Lender to assign and delegate, without recourse (in
accordance with and subject to the restrictions contained in Section 9.04), all its interests,
rights and obligations under this Agreement (other than any outstanding Competitive Loans held by
it) to an assignee that shall assume such obligations (which assignee may be another Lender, if a
Lender accepts such



 


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assignment); provided that (A) the Borrower shall have received the
prior written consent of the Administrative Agent, the Swingline Lender and any Issuing Bank, which consents shall
not unreasonably be withheld, (B) such Lender shall have received payment of an amount equal to the
outstanding principal of its Loans (other than Competitive Loans), participations in Swingline
Loans and participations in LC Disbursements, accrued interest thereon, accrued fees and all other
amounts payable to it hereunder, from the assignee (to the extent of such outstanding principal and
accrued interest and fees) or the Borrower (in the case of all other amounts), (C) in the case of
any such assignment resulting from a claim for compensation under Section 2.15 or payments required
to be made pursuant to Section 2.17, such assignment will result in a reduction or elimination in
such compensation, payments or additional interest, (D) in the case of any such assignment and
delegation resulting from the failure to provide a consent, the assignee shall have given such
consent and, as a result of such assignment and delegation and any contemporaneous assignments and
delegations and consents, the applicable amendment, waiver, discharge or termination can be
effected and (E) in the case of any such assignment and delegation in respect of a Lender where
such Lender (or any Affiliate thereof) is an Issuing Bank, the Borrower shall, substantially
simultaneously with such assignment and transfer, terminate such Lender (or, at the request of any
such Affiliate, such Affiliate) as an Issuing Bank in accordance with Section 2.09. A Lender shall
not be required to make any such assignment and delegation if, prior thereto, as a result of a
waiver or consent by such Lender or otherwise, the circumstances entitling the Borrower to require
such assignment and delegation have ceased to apply. Each party hereto agrees that an assignment
and delegation required pursuant to this paragraph may be effected pursuant to an Assignment and
Acceptance executed by the Borrower, the Administrative Agent and the assignee and that the Lender
required to make such assignment and delegation need not be a party thereto.



SECTION 2.20. Defaulting Lenders. Notwithstanding any provision of this Agreement to
the contrary, if any Lender becomes a Defaulting Lender, then the following provisions shall apply
for so long as such Lender is a Defaulting Lender:



(a) except to the extent provided to the contrary in paragraph (iv) of Section 2.20(c) below,
facility fees shall cease to accrue pursuant to Section 2.12(a) on the unused amount of the
Commitment of such Defaulting Lender;



(b) the Commitment and Revolving Credit Exposure of such Defaulting Lender shall not be
included in determining whether the Required Lenders or any other requisite Lenders have taken or
may take any action hereunder or under any other Loan Document (including any consent to any
amendment, waiver or other modification pursuant to Section 9.02); provided that any
amendment, waiver or other modification requiring the consent of all Lenders or all Lenders
affected thereby shall, except as otherwise provided in Section 9.02, require the consent of such
Defaulting Lender in accordance with the terms hereof;


 


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(c) if any Swingline Exposure or LC Exposure exists at the time such Lender becomes a
Defaulting Lender then:




(i) the Swingline Exposure and LC Exposure of such Defaulting Lender shall be
reallocated among the Non-Defaulting Lenders in accordance with their respective
Applicable Percentages but only to the extent that the sum of all Non-Defaulting
Lenders’ Revolving Credit Exposures plus such Defaulting Lender’s Swingline
Exposure and LC Exposure does not exceed the sum of all Non-Defaulting Lenders’
Revolving Credit Commitments;




(ii) if the reallocation described in clause (i) above cannot, or can only
partially, be effected, the Borrower shall within two Business Days following
notice by the Administrative Agent (A) first, prepay the portion of such Defaulting
Lender’s Swingline Exposure that has not been reallocated and (B) second, cash
collateralize for the benefit of the Issuing Banks the portion of such Defaulting
Lender’s LC Exposure that has not been reallocated in accordance with the
procedures set forth in Section 2.06(i) for so long as such LC Exposure is
outstanding;




(iii) if the Borrower cash collateralizes any portion of such Defaulting
Lender’s LC Exposure pursuant to clause (ii) above, the Borrower shall not be
required to pay participation fees to such Defaulting Lender pursuant to Section
2.12(b) with respect to such portion of such Defaulting Lender’s LC Exposure for so
long as such Defaulting Lender’s LC Exposure is cash collateralized;




(iv) if any portion of the LC Exposure of such Defaulting Lender is
reallocated pursuant to clause (i) above, then the fees payable to the Lenders
pursuant to Sections 2.12(a) and 2.12(b) shall be adjusted to give effect to such
reallocation; and




(v) if all or any portion of such Defaulting Lender’s LC Exposure is neither
reallocated nor cash collateralized pursuant to clause (i) or (ii) above, then,
without prejudice to any rights or remedies of any Issuing Bank or any other Lender
hereunder, all facility fees that otherwise would have been payable to such
Defaulting Lender (solely with respect to the portion of such Defaulting Lender’s
Commitment utilized by such LC Exposure) and participation fees payable under
Section 2.12(b) with respect to such Defaulting Lender’s LC Exposure shall be
payable to the Issuing Banks (and allocated among them ratably based on the amount
of such Defaulting Lender’s LC Exposure attributable to Letters of Credit issued by
each Issuing Bank) until and to the extent that such LC Exposure is reallocated
and/or cash collateralized; and


 


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(d) so long as such Lender is a Defaulting Lender, the Swingline Lender shall not be required
to fund any Swingline Loan and no Issuing Bank shall be required to issue, amend, renew or extend
any Letter of Credit, unless in each case it is satisfied that the related exposure and the
Defaulting Lender’s then outstanding Swingline Exposure or LC Exposure, as applicable, will be
fully covered by the Commitments of the Non-Defaulting Lenders and/or cash collateral provided by the Borrower in accordance with Section
2.20(c), and participating interests in any such funded Swingline Loan or in any such issued,
amended, renewed or extended Letter of Credit will be allocated among the Non-Defaulting Lenders in
a manner consistent with Section 2.20(c)(i) (and such Defaulting Lender shall not participate
therein).



In the event that (x) a Bankruptcy Event with respect to a Lender Parent shall have occurred
following the date hereof and for so long as such Bankruptcy Event shall continue or (y) the
Swingline Lender or any Issuing Bank has a good faith belief that any Lender has defaulted in
fulfilling its obligations under one or more other agreements in which such Lender commits to
extend credit, the Swingline Lender shall not be required to fund any Swingline Loan, and no
Issuing Bank shall be required to issue, amend, renew or extend any Letter of Credit, unless the
Swingline Lender or such Issuing Bank, as the case may be, shall have entered into arrangements
with the Borrower or such Lender satisfactory to the Swingline Lender or such Issuing Bank, as the
case may be, to defease any risk to it in respect of such Lender hereunder.



In the event that the Administrative Agent, the Borrower, the Swingline Lender and each Issuing
Bank each agree that a Defaulting Lender has adequately remedied all matters that caused such
Lender to be a Defaulting Lender, then the Swingline Exposure and LC Exposure of the Lenders shall
be readjusted to reflect the inclusion of such Lender’s Commitment and on such date such Lender
shall purchase at par such of the Revolving Loans of the other Lenders (other than Swingline Loans)
as the Administrative Agent shall determine may be necessary in order for such Lender to hold such
Loans in accordance with its Applicable Percentage.



SECTION 2.21. Extension of Maturity Date. (a) The Borrower may, by delivery of a
Maturity Date Extension Request to the Administrative Agent (which shall promptly deliver a copy
thereof to each of the Lenders) not less than 30 days prior to the then existing maturity date for
Commitments hereunder (the “Existing Maturity Date”), request that the Lenders extend the
Existing Maturity Date in accordance with this Section 2.21. Each Maturity Date Extension Request
shall (i) specify the date to which the Maturity Date is sought to be extended, (ii) specify the
changes, if any, to the Applicable Rate to be applied in determining the interest payable on
Revolving Loans of, and fees payable hereunder to, Consenting Lenders in respect of that portion of
their Commitments (and related Revolving Loans) extended to such new Maturity Date and the time as
of which such changes will become effective (which may be prior to the Existing Maturity Date), and
(iii) specify any other amendments or modifications to this Agreement to be effected in connection
with such Maturity Date Extension Request, provided that no such changes or modifications
requiring approvals pursuant to Section 9.02(b) shall become effective prior to the then existing
Maturity Date unless such other approvals have been obtained. In the event a Maturity Date
Extension Request shall have been delivered by the Borrower, each Lender shall have the right to
agree to the extension of the Existing Maturity Date and other matters contemplated thereby on the
terms and subject to the conditions set forth therein (each Lender agreeing to the Maturity Date
Extension Request being referred to herein as a “Consenting Lender” and each Lender not
agreeing thereto being referred to herein as a “Declining Lender”), which right may



 


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be exercised by written notice thereof, specifying the maximum amount of the Commitment of
such Lender with respect to which such Lender agrees to the extension of the Maturity Date,
delivered to the Borrower (with a copy to the Administrative Agent) not later than a day to be
agreed upon by the Borrower and the Administrative Agent following the date on which the Maturity
Date Extension Request shall have been delivered by the Borrower (it being understood that any
Lender that shall have failed to exercise such right as set forth above shall be deemed to be a
Declining Lender). If a Lender elects to extend only a portion of its then existing Commitment, it
will be deemed for purposes hereof to be a Consenting Lender in respect of such extended portion
and a Declining Lender in respect of the remaining portion of its Commitment. If Consenting
Lenders shall have agreed to such Maturity Date Extension Request in respect of Commitments held by
them, then, subject to paragraph (d) of this Section, on the date specified in the Maturity Date
Extension Request as the effective date thereof (the “Extension Effective Date”), (i) the
Existing Maturity Date of the applicable Commitments shall, as to the Consenting Lenders, be
extended to such date as shall be specified therein, (ii) the terms and conditions of the
Commitments of the Consenting Lenders (including interest and fees (including Letter of Credit
fees) payable in respect thereof), shall be modified as set forth in the Maturity Date Extension
Request and (iii) such other modifications and amendments hereto specified in the Maturity Date
Extension Request shall (subject to any required approvals (including those of the Required
Lenders) having been obtained) become effective.



(b) Notwithstanding the foregoing, the Borrower shall have the right, in accordance with the
provisions of Sections 2.19 and 9.04, at any time prior to the Existing Maturity Date, to replace a
Declining Lender (for the avoidance of doubt, only in respect of that portion of such Lender’s
Commitments subject to a Maturity Date Extension Request that it has not agreed to extend) with a
Lender or other financial institution that will agree to such Maturity Date Extension Request, and
any such replacement Lender shall for all purposes constitute a Consenting Lender in respect of the
Commitment assigned to and assumed by it on and after the effective time of such replacement.



(c) If a Maturity Date Extension Request has become effective hereunder:




(i) not later than the fifth Business Day prior to the Existing Maturity
Date, the Borrower shall make prepayments of Loans and shall provide cash
collateral in respect of Letters of Credit in the manner set forth in Section 2.11,
such that, after giving effect to such prepayments and such provision of cash
collateral, the aggregate credit exposures outstanding as of such date will not
exceed the aggregate Commitments of the Consenting Lenders extended pursuant to
this Section 2.21 (and the Borrower shall not be permitted thereafter to request
any Loan or any issuance, amendment, renewal or extension of a Letter of Credit if,
after giving effect thereto, the aggregate credit exposures outstanding would
exceed the aggregate amount of the Commitments so extended); and


 


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(ii) on the Existing Maturity Date, the Commitment of each Declining Lender
shall, to the extent not assumed, assigned or transferred as provided in paragraph
(b) of this Section, terminate, and the Borrower shall repay all the Revolving
Loans of each Declining Lender, to the extent such Revolving Loans shall not have
been so purchased, assigned and transferred, in each case together with accrued and
unpaid interest and all fees and other amounts owing to such Declining Lender
hereunder (accordingly, the Commitment of any Consenting Lender shall, to the
extent the amount of such Commitment exceeds the amount set forth in the notice
delivered by such Lender pursuant to paragraph (a) of this Section, be permanently
reduced by the amount of such excess, and the Borrower shall prepay the
proportionate part of the outstanding Revolving Loans of such Consenting Lender, in
each case together with accrued and unpaid interest thereon to but excluding the
Existing Maturity Date and all fees and other amounts payable in respect thereof on
or prior to the Existing Maturity Date), it being understood that such repayments
may be funded with the proceeds of new Revolving Borrowings made simultaneously
with such repayments by the Consenting Lenders, which such Revolving Borrowings
shall be made ratably by the Consenting Lenders in accordance with their extended
Commitments.




(d) Notwithstanding the foregoing, no Maturity Date Extension Request shall become effective
hereunder unless, on the Extension Effective Date, the conditions set forth in Section 4.02 shall
be satisfied (with all references in such Section to a Borrowing being deemed to be references to
such Maturity Date Extension Request) and the Administrative Agent shall have received a
certificate to that effect dated such date and executed by a Financial Officer.



(e) Notwithstanding any provision of this Agreement to the contrary, it is hereby agreed that
no extension of an Existing Maturity Date in accordance with the express terms of this Section
2.21, or any amendment or modification of the terms and conditions of the Commitments and Revolving
Loans of the Consenting Lenders effected pursuant thereto, shall be deemed to (i) violate the last
sentence of Section 2.09(c) or Section 2.18(b) or 2.18(c) or any other provision of this Agreement
requiring the ratable reduction of Commitments or the ratable sharing of payments or (ii) require
the consent of all Lenders or all affected Lenders under Section 9.02(b).



(f) The Borrower, the Administrative Agent and the Consenting Lenders may enter into an
amendment to this Agreement to effect such modifications as may be necessary to reflect the terms
of any Maturity Date Extension Request that has become effective in accordance with the provisions
of this Section 2.21.


 


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ARTICLE III




Representations and Warranties




The Borrower represents and warrants (as to itself and its own Subsidiaries) to the Lenders
that:



SECTION 3.01. Organization; Powers. The Borrower and each Significant Subsidiary is
duly organized, validly existing and in good standing under the laws of the jurisdiction of its
organization, has all requisite power and authority to carry on its business as now conducted and,
except where the failure to do so, individually or in the aggregate, could not reasonably be
expected to result in a Material Adverse Effect, is qualified to do business in, and is in good
standing in, every jurisdiction where such qualification is required.



SECTION 3.02. Authorization; Enforceability. The Transactions are within the
Borrower’s and the Guarantor’s corporate powers and have been duly authorized by all necessary
corporate and, if required, stockholder action. This Agreement has been duly executed and
delivered by the Borrower and constitutes, and the Guarantee Agreement, when executed and delivered
by the Guarantor, will constitute, a legal, valid and binding obligation of the Borrower or the
Guarantor, as the case may be, enforceable in accordance with its terms, subject to applicable
bankruptcy, insolvency, reorganization, moratorium or other laws affecting creditors’ rights
generally and subject to general principles of equity, regardless of whether considered in a
proceeding in equity or at law.



SECTION 3.03. Governmental Approvals; No Conflicts. The Transactions (a) do not
require any consent or approval of, registration or filing with, or any other action by, any
Governmental Authority, except such as have been obtained or made and are in full force and effect,
(b) will not violate any applicable law or regulation or the charter, by-laws or other
organizational documents of the Borrower or any of the Subsidiaries or any order of any
Governmental Authority, (c) will not violate or result in a default under any material indenture,
agreement or other instrument binding upon the Borrower or any of the Subsidiaries or its assets,
or give rise to a right thereunder to require any payment to be made by the Borrower or any of the
Subsidiaries, and (d) will not result in the creation or imposition of any Lien on any asset of the
Borrower or any of the Subsidiaries.




SECTION 3.04. Financial Condition; No Material Adverse Change. (a) The Borrower has
heretofore furnished to the Lenders the consolidated balance sheet and statements of income,
stockholders’ equity and cash flows of the Borrower and its consolidated Subsidiaries (i) as of and
for the fiscal year ended December 31, 2010, reported on by PricewaterhouseCoopers LLP, independent
registered public accounting firm and (ii) as of and for the fiscal quarter ended March 31, 2011,
certified by its chief financial officer. Such financial statements present fairly, in all
material respects, the financial position, results of operations and cash flows of the Borrower and
its
consolidated Subsidiaries as of such dates and for such periods in accordance with GAAP,
subject to normal year-end audit adjustments.


 


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(b) Since December 31, 2010, there has been no material adverse change in the business,
assets, operations or financial condition of the Borrower and its Subsidiaries, taken as a whole.



SECTION 3.05. Properties. (a) The Borrower and each Significant Subsidiary has good
title to, or valid leasehold interests in, all its real and personal property material to the
business of the Borrower and its Subsidiaries taken as a whole, except for minor defects in title
that do not interfere with its ability to conduct its business as currently conducted or to utilize
such properties for their intended purposes.



(b) The Borrower and each Significant Subsidiary owns, or is licensed to use, all trademarks,
tradenames, copyrights, patents and other intellectual property material to the business of the
Borrower and its Subsidiaries taken as a whole, and the use thereof by the Borrower or such
Significant Subsidiary does not infringe upon the rights of any other Person, except for any such
ownership, licenses or infringements that, individually or in the aggregate, could not reasonably
be expected to result in a Material Adverse Effect.



SECTION 3.06. Litigation and Environmental Matters. (a) There are no actions, suits or
proceedings by or before any arbitrator or Governmental Authority pending against or, to the
knowledge of the Borrower, threatened against or affecting the Borrower or any of the Subsidiaries
(i) which could reasonably be expected, individually or in the aggregate, to result in a Material
Adverse Effect (other than the Disclosed Matters) or (ii) that involve this Agreement or the
Transactions.



(b) Except for the Disclosed Matters and except with respect to any other matters that,
individually or in the aggregate, could not reasonably be expected to result in a Material Adverse
Effect, neither the Borrower nor any of the Subsidiaries (i) has failed to comply with any
Environmental Law or to obtain, maintain or comply with any permit, license or other approval
required under any Environmental Law, (ii) has become subject to any Environmental Liability, (iii)
has received notice of any claim with respect to any Environmental Liability or (iv) knows of any
basis for any Environmental Liability.



SECTION 3.07. Compliance with Laws and Agreements. The Borrower and each Subsidiary
is in compliance with all laws, regulations and orders of any Governmental Authority applicable to
it or its property and all indentures, agreements and other instruments binding upon it or its
property, except where the failure to do so, individually or in the aggregate, could not reasonably
be expected to result in a Material Adverse Effect.



SECTION 3.08. Investment Company Status. Neither the Borrower nor the Guarantor is an
“investment company” as defined in, or subject to regulation under, the Investment Company Act of
1940.


 


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SECTION 3.09. Taxes. The Borrower and each Subsidiary has filed or caused to be filed
on a timely basis (taking into account all extensions granted by the applicable Governmental
Authority) all United States federal and applicable foreign, state and local Tax returns and
reports and all other Tax returns and reports which are required to be filed and have paid or
caused to be paid all Taxes required to have been paid by it, except (a) such Taxes, if any, as are
being contested in good faith by appropriate proceedings as to which adequate reserves have been
provided in accordance with GAAP and (b) to the extent the failure to do so could not reasonably be
expected to have a Material Adverse Effect.



SECTION 3.10. ERISA. No ERISA Event has occurred or is reasonably expected to occur
that, when taken together with all other such ERISA Events for which liability is reasonably
expected to occur, could reasonably be expected to result in a Material Adverse Effect. The
present value of all accumulated benefit obligations under each Plan (based on the assumptions used
for purposes of Accounting Standards Codification Topic 715) did not, as of the date of the most
recent financial statements reflecting such amounts, exceed the fair market value of the assets of
such Plan by an amount which could reasonably be expected to result in a Material Adverse Effect,
and the present value of all accumulated benefit obligations of all underfunded Plans (based on the
assumptions used for purposes of Accounting Standards Codification Topic 715) did not, as of the
date of the most recent financial statements reflecting such amounts, exceed the fair market value
of the assets of all such underfunded Plans by an amount which could reasonably be expected to
result in a Material Adverse Effect.



SECTION 3.11. Disclosure. As of the Effective Date, neither the Information
Memorandum nor any of the other reports, financial statements, certificates or other information
furnished by or on behalf of the Borrower to the Administrative Agent or any Lender in connection
with the negotiation of this Agreement (as modified or supplemented by other information so
furnished on or prior to the Effective Date) contains any material misstatement of fact or omits to
state any material fact necessary to make the statements therein, in the light of the circumstances
under which they were made, not misleading; provided that, with respect to projected
financial information, the Borrower represents only that such information was prepared in good
faith based upon assumptions believed to be reasonable at the time.



SECTION 3.12. Federal Regulations. The proceeds of the Loans will be used only for
general corporate purposes. No part of the proceeds of any Loan will be used to purchase or carry
any Margin Stock in violation of Regulation U or X of the Board. As of the date of this Agreement,
if the full amount of the Lenders’ Commitments were used to purchase Margin Stock, no more than 25%
of the value of the assets of the Borrower, or of the Borrower and its Subsidiaries taken as a
whole, which are subject to the restrictions contained in Article VI would constitute Margin Stock.
If the proceeds of any Loan are to be used in a manner which would cause such Loans to be
classified as “purpose loans” under Regulation U, then at the time of the making of such Loan and
at the time of the making of each Loan thereafter (after applying the proceeds of all Loans then
being or theretofore made), no more than 25% of the value of the assets of the Borrower, or of the
Borrower and its Subsidiaries taken as a whole, which are subject to
the restrictions contained in Article VI shall constitute Margin Stock. If at any time the
representation set forth in the preceding sentence would be required to be made but cannot be made
by the Borrower, such representation shall not be required to be made, provided that the Borrower
shall at all times thereafter comply with Article X.


 


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SECTION 3.13. Subsidiaries. Schedule 3.13 sets forth as of the Effective Date a list
of all Subsidiaries and the percentage ownership (directly or indirectly) of the Borrower therein.
Except to the extent that could not, individually or in the aggregate, reasonably be expected to
result in a Material Adverse Effect, the shares of capital stock or other ownership interests so
indicated on Schedule 3.13 are fully paid and non-assessable and are owned by the Borrower,
directly or indirectly, free and clear of all Liens other than Liens permitted under Section
6.02(a), (c), (f) or, to the extent applicable to any of the foregoing paragraphs of Section 6.02,
6.02(i).



SECTION 3.14. OFAC. Neither the Borrower nor any of its Subsidiaries, nor, to the
knowledge of the Borrower, any director, officer, agent, employee or Affiliate thereof, is
currently subject to any U.S. sanctions administered or enforced by OFAC, and the Borrower will not
directly or indirectly use the proceeds from the Loans or lend, contribute or otherwise make
available such proceeds to any Subsidiary, joint venture partner or other Person, for the purpose
of financing activities of or with any Person or any country or territory that, at the time of such
financing, is the subject of any OFAC sanctions.



SECTION 3.15. FCPA. No part of the proceeds of the Loans will be authorized for use,
directly or indirectly, for any payments to any officer or employee of a government, or
government-controlled entity, political party, official of a political party, candidate for
political office, or anyone else acting in an official capacity, in order to obtain, retain or
direct business or obtain any improper advantage, in violation of the FCPA.



ARTICLE IV




Conditions




SECTION 4.01. Effective Date. The obligations of the Lenders and the Issuing Banks
hereunder shall not become effective until the date on which each of the following conditions is
satisfied (or waived in accordance with Section 9.02):



(a) The Administrative Agent (or its counsel) shall have received from each party hereto
either (i) a counterpart of this Agreement signed on behalf of such party or (ii) written evidence
satisfactory to the Administrative Agent (which may include telecopy transmission of a signed
signature page of this Agreement) that such party has signed a counterpart of this Agreement.



(b) The Guarantee Agreement shall have been duly executed and delivered to the Administrative
Agent by Newmont USA.


 


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(c) The Administrative Agent shall have received reasonably satisfactory written opinions
(addressed to the Administrative Agent and the Lenders and dated the Effective Date) of Stephen P.
Gottesfeld, Vice President and General Counsel of the Borrower and the Guarantor and White & Case
LLP, special counsel for the Borrower and the Guarantor. The Borrower and the Guarantor hereby
request such counsel to deliver such opinions.



(d) The Administrative Agent shall have received such documents and certificates as the
Administrative Agent or its counsel may reasonably request relating to the organization, existence
and good standing of the Borrower and the Guarantor and the authorization of the Transactions by
the Borrower and the Guarantor, all in form and substance reasonably satisfactory to the
Administrative Agent.



(e) The Administrative Agent shall have received a certificate, dated the Effective Date and
signed by the President, a Vice President or a Financial Officer of the Borrower, confirming
compliance with the conditions set forth in paragraphs (a) and (b) of Section 4.02.



(f) Prior to or substantially contemporaneously with the initial funding of Loans on the
Effective Date, all principal, premium, if any, interest, fees and other amounts due or outstanding
under the Existing Credit Agreement shall have been or shall be paid in full (except that the
Existing Letters of Credit shall remain outstanding as Letters of Credit hereunder), the
commitments thereunder shall have been or shall be terminated and all guarantees existing in
connection therewith shall have been or shall be discharged and released, and the Administrative
Agent shall have received reasonably satisfactory evidence thereof.



(g) The Administrative Agent shall have received all fees and other amounts due and payable on
or prior to the Effective Date, including, to the extent invoiced, payment or reimbursement of all
fees and expenses (including fees, charges and disbursements of counsel) required to be paid or
reimbursed by any Loan Party to the Administrative Agent or the Arranger in connection with the
Transactions.



(h) The lenders shall have received all documentation and other information required by bank
regulatory authorities under applicable “know your customer” and anti-money laundering rules and
regulations, including the USA PATRIOT Act to the extent requested at least 10 days prior to the
Effective Date.



The Administrative Agent shall notify the Borrower and the Lenders of the Effective Date, and
such notice shall be conclusive and binding. Notwithstanding the foregoing, the obligations of the
Lenders to make Loans hereunder and of any Issuing Bank to issue, amend, renew or extend any Letter
of Credit hereunder, and the incorporation of the Existing Letters of Credit as Letters of Credit
hereunder, shall not become effective unless each of the foregoing conditions is satisfied (or
waived pursuant to Section 9.02) at or prior to 3:00 p.m., New York City time, on May 23, 2011
(and, in the event such conditions are not so satisfied or waived, the Commitments shall terminate
at such time).


 


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SECTION 4.02. Each Credit Event. The obligation of each Lender to make a Loan on the
occasion of any Borrowing and of the Issuing Banks to issue, amend, renew or extend any Letter of
Credit hereunder (other than automatic renewals thereof pursuant to customary evergreen provisions
or amendments that do not increase the stated face amount of such Letter of Credit) is subject to
the satisfaction (or waiver in accordance with Section 9.02) of the following conditions:



(a) The representations and warranties of the Borrower set forth in this Agreement shall
(other than the representations and warranties set forth in Sections 3.04(b) and 3.06 and except as
expressly provided in the last sentence of Section 3.12) be true and correct in all material
respects on and as of the date of such Borrowing or the date of issuance, amendment, renewal or
extension of such Letter of Credit (other than automatic renewals thereof pursuant to customary
evergreen provisions or amendments that do not increase the stated face amount of such Letter of
Credit), as applicable (except to the extent expressly made as of another date, in which case such
representations and warranties shall be true and correct in all material respects as of such other
date).



(b) At the time of and immediately after giving effect to such Borrowing or the issuance,
amendment, renewal or extension of any Letter of Credit, as applicable, no Default shall have
occurred and be continuing.



(c) At the time of the making of the first Loan or issuance of a Letter of Credit, if any,
when the representation in the third sentence of Section 3.12 would be required to be made, but
cannot be made, then as a condition precedent to such Borrowing or issuance of a Letter of Credit,
the Borrower shall have delivered to the Administrative Agent a Form F.R. G-3 or Form F.R. U 1, as
applicable, for each Lender, duly completed by the Borrower in conformity with Regulation U of the
Board.



Each Borrowing and each request for the issuance, amendment, renewal or extension of a Letter
of Credit (other than automatic renewals thereof pursuant to customary evergreen provisions or
amendments that do not increase the stated face amount of such Letter of Credit) shall be deemed to
constitute a representation and warranty by the Borrower on the date thereof as to the matters
specified in paragraphs (a) and (b) of this Section.


 


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ARTICLE V




Affirmative Covenants




Until the Commitments have expired or been terminated and the principal of and interest on
each Loan and all fees payable hereunder have been paid in full and all Letters of Credit have
expired or terminated or fully cash collateralized or supported by a backstop letter of credit, in
either case, in a manner reasonably satisfactory to the applicable Issuing Bank and all LC
Disbursements shall have been reimbursed, the Borrower covenants and agrees with the Lenders that:



SECTION 5.01. Financial Statements and Other Information. The Borrower will furnish
to the Administrative Agent for distribution to each Lender:



(a) within 100 days after the end of each fiscal year of the Borrower, its audited
consolidated balance sheet and related statements of operations, stockholders’ equity and cash
flows as of the end of and for such year, setting forth in each case in comparative form the
figures for the previous fiscal year, all reported on by Pricewaterhouse Coopers LLP or other
independent registered public accounting firm of recognized national standing (without a “going
concern” or like qualification or exception and without any qualification or exception as to the
scope of such audit) to the effect that such consolidated financial statements present fairly in
all material respects the financial condition and results of operations of the Borrower and its
consolidated Subsidiaries on a consolidated basis in accordance with GAAP consistently applied (it
being understood that the foregoing can be satisfied by delivery of the Borrower’s relevant Form
10-K);



(b) within 55 days after the end of each of the first three fiscal quarters of each fiscal
year of the Borrower, its consolidated balance sheet and related statements of operations,
stockholders’ equity and cash flows as of the end of and for such fiscal quarter and the then
elapsed portion of the fiscal year, setting forth in each case in comparative form the figures for
the corresponding period or periods of (or, in the case of the balance sheet, as of the end of) the
previous fiscal year, all certified by a Financial Officer as presenting fairly in all material
respects the financial condition and results of operations of the Borrower and its consolidated
Subsidiaries on a consolidated basis in accordance with GAAP consistently applied, subject to
normal year-end audit adjustments and the absence of footnotes (it being understood that the
foregoing can be satisfied by delivery of the Borrower’s relevant Form 10-Q);



(c) concurrently with any delivery of financial statements under clause (a) or (b) above, a
certificate of a Financial Officer (i) certifying as to whether a Default has occurred and, if a
Default has occurred, specifying the details thereof and any action taken or proposed to be taken
with respect thereto, (ii) setting forth reasonably detailed calculations demonstrating compliance
with Section 6.01, (iii) stating whether any change in GAAP or in the application thereof has
occurred since the date of the audited financial statements referred to in Section 3.04 and, if any
such change has occurred, specifying the effect of such change on the financial statements
accompanying such certificate and (iv) if any Lease Accounting GAAP Change shall have become
effective and shall have been applied by the Borrower, and such Lease Accounting GAAP Change
affects the comparability of the consolidated financial statements (or any part thereof) for such
fiscal year or such fiscal quarter compared to the corresponding consolidated financial statements
(or such part thereof) for the prior fiscal year or the corresponding fiscal quarter of such prior
fiscal year in any material respect, specifying the effect of such Lease Accounting GAAP Change on
the consolidated financial statements for such fiscal year or such fiscal quarter;


 


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(d) concurrently with any delivery of financial statements under clause (a) above, to the
extent permitted by the internal policies of the independent registered
accounting firm referred to in paragraph (a) above, a certificate of such accounting firm in
customary form stating whether they obtained knowledge during the course of their examination of
such financial statements of any Default or Event of Default continuing under Section 6.01 on the
date of such certificate, except as specified in such certificate (which certificate may be limited
to the extent required by accounting rules or guidelines); and



(e) promptly following any request therefor, such other information regarding the operations,
business affairs and financial condition of the Borrower or any Subsidiary, or compliance with the
terms of this Agreement, as the Administrative Agent or any Lender (through the Administrative
Agent) may reasonably request.



SECTION 5.02. Notices of Material Events. The Borrower will furnish to the
Administrative Agent and each Lender prompt written notice of the following:



(a) the occurrence of any Default;



(b) the filing or commencement of any action, suit or proceeding by or before any arbitrator
or Governmental Authority against or affecting the Borrower or any Subsidiary thereof as to which
there is a reasonable possibility of an adverse determination and which, if adversely determined,
could reasonably be expected to result in a Material Adverse Effect;



(c) the occurrence of any ERISA Event that, alone or together with any other ERISA Events that
have occurred, could reasonably be expected to result in a Material Adverse Effect; and



(d) any other development, including without limitation any development relating to an
Environmental Liability, that results in, or could reasonably be expected to result in, a Material
Adverse Effect.



Each notice delivered under this Section shall be accompanied by a statement of a Financial Officer
or other executive officer of the Borrower setting forth the details of the event or development
requiring such notice and any action taken or proposed to be taken with respect thereto.



SECTION 5.03. Existence; Conduct of Business. (i) The Borrower will, and will cause
each of its Significant Subsidiaries to, do or cause to be done all things necessary to preserve,
renew and keep in full force and effect its legal existence and (ii) the Borrower will, and will
cause each of its Significant Subsidiaries to, do or cause to be done all things necessary to
preserve, renew and keep in full force and effect the rights, licenses, permits, privileges and
franchises material to the conduct of the business of the Borrower and its Subsidiaries taken as a
whole; provided that the foregoing shall not (x) prohibit any merger, consolidation,
liquidation, dissolution or sale permitted (or not restricted) under Section 6.03 or (y) require
the maintenance of any right, license, permit, privilege or franchise where the failure to maintain
same could not reasonably be expected to have a Material Adverse Effect.


 


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SECTION 5.04. Payment of Obligations. The Borrower will, and will cause each of its
Subsidiaries to, pay its Tax liabilities that, if not paid, could reasonably be expected to result
in a Material Adverse Effect before the same shall become delinquent or in default, except where
(a) the validity or amount thereof is being contested in good faith by appropriate proceedings and
(b) the Borrower or such Subsidiary has set aside on its books adequate reserves with respect
thereto in accordance with GAAP.



SECTION 5.05. Maintenance of Properties; Insurance. The Borrower will, and will cause
each of its Subsidiaries to, (a) keep and maintain all property material to the conduct of the
business of the Borrower and its Subsidiaries, taken as a whole, in good working order and
condition, ordinary wear and tear and damage by casualty excepted, and (b) maintain, with
financially sound and reputable insurance companies, insurance in such amounts and against such
risks as are customarily maintained by companies engaged in the same or similar businesses
operating in the same or similar locations, except, in each case, where the failure to do so could
not reasonably be expected to result in a Material Adverse Effect.



SECTION 5.06. Books and Records; Inspection Rights. The Borrower will, and will cause
each of its Subsidiaries to, keep proper books of record and account in which full, true and
correct entries are made of all material dealings and transactions in relation to its business and
activities. The Borrower will, and will cause each of its Subsidiaries to, permit any
representatives designated by the Administrative Agent or any Lender, upon reasonable prior notice,
to visit and inspect its properties, to examine and make extracts from its books and records, and
to discuss its affairs, finances and condition with its officers and independent accountants, all
at such reasonable times and as often as reasonably requested.



SECTION 5.07. Compliance with Laws. The Borrower will, and will cause each of its
Subsidiaries to, comply with all laws, rules, regulations and orders of any Governmental Authority,
including without limitation all Environmental Laws, applicable to it or its property, except where
the failure to do so, individually or in the aggregate, could not reasonably be expected to result
in a Material Adverse Effect.



SECTION 5.08. Use of Proceeds. The proceeds of the Loans will be used only for (a)
the payment of principal, premium, if any, interest, fees and other amounts due or outstanding
under the Existing Credit Agreement and (b) general corporate purposes. No part of the proceeds of
any Loan will be used, whether directly or indirectly, for any purpose that entails a violation of
any of the Regulations of the Board, including Regulations U and X (after giving effect to Article
X). Letters of Credit will be issued only to support obligations incurred by the Borrower and its
subsidiaries in their business operations.



SECTION 5.09. Further Assurances. The Borrower will, and will cause Newmont USA to,
execute any and all further documents, agreements and instruments, and take all further actions
that may be required under any applicable law or regulation,
or that the Administrative Agent may reasonably request, to cause the Guarantee Requirement to
be and remain satisfied at all times, subject to Section 9.14.


 


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ARTICLE VI




Negative Covenants




Until the Commitments have expired or terminated and the principal of and interest on each
Loan and all fees payable hereunder have been paid in full and all Letters of Credit have expired
or terminated or fully cash collateralized or supported by a backstop letter of credit, in either
case, in a manner reasonably satisfactory to the applicable Issuing Bank and all LC Disbursements
shall have been reimbursed, the Borrower covenants and agrees with the Lenders that:



SECTION 6.01. Consolidated Indebtedness. The Borrower will not, as of the last day of
any fiscal quarter, permit Total Indebtedness as of such date to exceed an amount equal to 62.5% of
Total Capitalization as of such date.



SECTION 6.02. Liens. The Borrower will not, and will not permit any Subsidiary to,
create, incur, assume or permit to exist any Lien on any property or asset now owned or hereafter
acquired by it, except:



(a) Permitted Encumbrances;



(b) any Lien on any property or asset of the Borrower or any Subsidiary existing on the
Effective Date and (to the extent securing Indebtedness in excess of $25,000,000) set forth in
Schedule 6.02; provided that (i) such Lien shall not apply to any other property or asset
of the Borrower or any Subsidiary and (ii) such Lien shall secure only those obligations which it
secured on the Effective Date;



(c) any Lien existing on any property or asset prior to the acquisition thereof by the
Borrower or any Subsidiary or existing on any property or asset of any Person that becomes a
Subsidiary after the Effective Date prior to the time such Person becomes a Subsidiary;
provided that (i) such Lien is not created in contemplation of or in connection with such
acquisition or such Person becoming a Subsidiary, as the case may be, (ii) such Lien shall not
apply to any other property or assets of the Borrower or any Subsidiary and (iii) such Lien shall
secure only those obligations which it secures on the date of such acquisition or the date such
Person becomes a Subsidiary, as the case may be;



(d) Liens (including Liens arising in connection with any Capital Lease Obligation) on fixed
or capital assets acquired, constructed or improved by the Borrower or any Subsidiary;
provided that (i) such security interests secure Indebtedness permitted by Section 6.01,
(ii) such security interests and the Indebtedness secured thereby are incurred prior to, at the
time of, or within 180 days after such acquisition or the completion of such construction or
improvement, (iii) the Indebtedness secured thereby
does not exceed the cost of acquiring, constructing or improving such fixed or capital assets
and (iv) such security interests shall not apply to any other property or assets of the Borrower or
any Subsidiary;


 


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(e) Liens securing Indebtedness otherwise permitted pursuant to this Agreement incurred in
connection with any Capital Lease Obligation related solely to the Gold Ore Treatment facility
located near Carlin, Nevada;



(f) Liens securing Indebtedness otherwise permitted pursuant to this Agreement incurred in
connection with the development, construction or operation of a project developed or constructed
after the Effective Date so long as such Liens encumber only the project itself and/or the
ownership interest held by the Borrower or any Subsidiary therein;



(g) a sale-leaseback transaction with respect to the Autoclave Equipment Plants;



(h) Liens not otherwise permitted by this Section 6.02 which, in the aggregate, secure
Indebtedness and other obligations not exceeding (as to the Borrower and all of its Subsidiaries)
$600,000,000 in aggregate principal amount at any time outstanding;



(i) Liens in respect of the cash collateralization of (i) Letters of Credit pursuant to
Section 2.11(b), (ii) any Defaulting Lender’s participation in Letters of Credit or Swingline Loans
as contemplated by this Agreement and (iii) (x) letters of credit issued under other bank credit
facilities permitted by this Agreement to the extent the aggregate stated face amounts of such
letters of credit exceed the commitments under the applicable bank credit facility and (y) any
defaulting lender’s participation in letters of credit or swingline loans under other bank credit
facilities permitted by this Agreement; and



(j) extensions, renewals, refinancings or replacements of any Lien referred to in paragraphs
(b), (c), (d), (e), (f) and (g) of this Section 6.02, provided that the principal amount of
the Indebtedness or obligation secured thereby is not increased (except by the amount of any
accrued and unpaid interest or premium in connection therewith and any reasonable fees associated
with such extension, renewal, refinancing or replacement) and that any such extension, renewal or
replacement is limited to the property originally encumbered thereby.



SECTION 6.03. Fundamental Changes. The Borrower will not merge into or consolidate
with any other Person, nor permit any other Person to merge into or consolidate with it, or sell,
transfer, lease or otherwise dispose of (in one transaction or in a series of transactions) all or
substantially all of its assets (in each case, whether now owned or hereafter acquired) or
liquidate or dissolve, except that, if at the time thereof and immediately after giving effect
thereto no Default shall have occurred and be continuing:



(a) any Subsidiary may merge or consolidate with the Borrower;


 


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(b) the Borrower may merge or consolidate with any other Person so long as:




(i) the Borrower, is the surviving corporation or the surviving corporation
(if the surviving corporation is not the Borrower) shall assume all of the Loans
and other obligations of the Borrower under this Agreement pursuant to an
Assumption Agreement substantially in the form of Exhibit B; and




(ii) the credit rating for Index Debt of the surviving corporation from
either Moody’s or S&P immediately after such transaction is at least equal to the
credit rating for Index Debt of the Borrower immediately prior to the initial
public announcement of such transaction, provided, that in any event the
requirements of this clause (ii) shall be deemed satisfied if the surviving
corporation has a credit rating after such merger or consolidation of at least BBB,
in the case of S&P, or Baa2, in the case of Moody’s.



ARTICLE VII




Events of Default




If any of the following events (“Events of Default”) shall occur:



(a) the Borrower shall fail to pay any principal of any Loan when and as the same shall become
due and payable, whether at the due date thereof or at a date fixed for prepayment thereof or
otherwise;



(b) the Borrower shall (i) fail to pay (A) any interest on any Loan, (B) any reimbursement
obligation in respect of any LC Disbursement, or (C) any regularly accruing fees hereunder, when
and as the same shall become due and payable, and such failure shall continue unremedied for a
period of three Business Days or (ii) fail to pay any other amount (other than an amount referred
to in clause (a) of this Article) payable under this Agreement, when and as the same shall become
due and payable, and such failure shall continue for 15 days after the Borrower is notified thereof
by the Administrative Agent or any Lender;



(c) any representation or warranty made or deemed made by or on behalf of the Borrower in or
in connection with this Agreement or any amendment or modification hereof or waiver hereunder, or
in any report, certificate, financial statement or other document furnished pursuant to or in
connection with this Agreement or any amendment or modification hereof or waiver hereunder, shall
prove to have been incorrect in any material respect when made or deemed made;


 


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(d) the Borrower shall fail to observe or perform any covenant, condition or agreement
contained in Section 5.02, 5.03 (with respect to the Borrower’s existence) or 5.08 or in Article
VI;



(e) the Borrower shall fail to observe or perform any covenant, condition or agreement
contained in this Agreement (other than those specified in clause (a), (b) or (d) of this Article),
and such failure shall continue unremedied for a period of 30 days after notice thereof from the
Administrative Agent to the Borrower (which notice will be given at the request of the Required
Lenders);



(f) the Borrower or any Significant Subsidiary shall fail to make any payment of principal or
interest (and regardless of amount) in respect of any Material Indebtedness, when and as the same
shall become due and payable (after giving effect to the period of grace, if any, provided in the
instrument or agreement relating to such Material Indebtedness);



(g) any event or condition occurs (i) that results in any Material Indebtedness becoming due
prior to its scheduled maturity or (ii) that enables or permits (with or without the giving of
notice, the lapse of time or both) the holder or holders of any Material Indebtedness or any
trustee or agent on its or their behalf to cause any such Material Indebtedness (other than any
Non-Recourse Indebtedness) to become due, or to require the prepayment, repurchase, redemption or
defeasance thereof, prior to its scheduled maturity;



(h) an involuntary proceeding shall be commenced or an involuntary petition shall be filed
seeking (i) liquidation, reorganization or other relief in respect of the Borrower or any
Significant Subsidiary or its debts, or of a substantial part of its assets, under any Federal,
state or foreign bankruptcy, insolvency, receivership or similar law now or hereafter in effect or
(ii) the appointment of a receiver, trustee, custodian, sequestrator, conservator or similar
official for the Borrower or any Significant Subsidiary or for a substantial part of its assets,
and, in any such case, such proceeding or petition shall continue undismissed for 60 days or an
order or decree approving or ordering any of the foregoing shall be entered;



(i) the Borrower or any Significant Subsidiary shall (i) voluntarily commence any proceeding
or file any petition seeking liquidation, reorganization or other relief under any Federal, state
or foreign bankruptcy, insolvency, receivership or similar law now or hereafter in effect, (ii)
consent to the institution of, or fail to contest in a timely and appropriate manner, any
proceeding or petition described in clause (h) of this Article, (iii) apply for or consent to the
appointment of a receiver, trustee, custodian, sequestrator, conservator or similar official for
the Borrower or any Significant Subsidiary or for a substantial part of its assets, (iv) file an
answer admitting the material allegations of a petition filed against it in any such proceeding,
(v) make a general assignment for the benefit of creditors or (vi) take any corporate action for
the purpose of effecting any of the foregoing;


 


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(j) one or more judgments for the payment of money in an aggregate amount in excess of
$100,000,000 (excluding any amount paid or covered by independent third-party insurance as to which
the insurer has been notified of such judgment and has not denied coverage) shall be rendered
against the Borrower, any Significant Subsidiary or any combination thereof and the same shall
remain undischarged for a period of 60 consecutive days during which execution shall not be
effectively stayed (or, in the case of a judgment in a jurisdiction other than the United States of
America or any political subdivision thereof, such longer period as the Borrower and the
Administrative Agent shall agree in good faith, provided that the Borrower or such
Significant Subsidiary shall be contesting such execution in accordance with appropriate
proceedings; provided further that the Administrative Agent shall not agree to an
additional period in excess of 120 consecutive days without the consent of the Required Lenders),
or any action shall be legally taken by a judgment creditor to attach or levy upon any assets of
the Borrower or any Significant Subsidiary to enforce any such judgment;



(k) an ERISA Event shall have occurred that, when taken together with all other ERISA Events
that have occurred, could reasonably be expected to result in a Material Adverse Effect;



(l) a Change in Control shall occur;



(m) the Borrower or any Significant Subsidiary (i) shall fail to make any payment or delivery
in respect of any Material Commodity Hedging Indebtedness, and (ii) after giving effect to any
applicable notice requirement or grace period, there occurs a liquidation of, an acceleration of
obligations under, or an early termination of, the Commodity Hedging Agreement under which such
Material Commodity Hedging Indebtedness arises, and (iii) the Borrower or such Significant
Subsidiary shall fail to make any payment due under such Commodity Hedging Agreement as a result of
such liquidation, acceleration or early termination within the period provided under such Commodity
Hedging Agreement;



(n) except as provided in Section 9.14, the Guarantee Agreement shall cease to be enforceable
with respect to the Guarantor or the Guarantor shall assert in writing that the Guarantee Agreement
or any guarantee thereunder has ceased to be or is not enforceable;



(o) the Borrower shall fail to comply with Section 2.21(c); or



(p) the Borrower shall fail to provide cash collateral in respect of any outstanding Letter of
Credit having an expiration date after the second Business Day prior to the Maturity Date by the
date that is 10 days prior to the Maturity Date in an amount equal to 102% of the LC Exposure in
respect of such Letter of Credit and otherwise in accordance with Section 2.06(c) and such failure
shall remain unremedied on the fifth Business Day prior to the Maturity Date;


 


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then, and in every such event (other than an event with respect to the Borrower described in clause
(h) or (i) of this Article), and at any time thereafter during the continuance of such event, the
Administrative Agent may, and at the request of the Required Lenders shall, by notice to the
Borrower, take any or all of the following actions, at the same or different times: (i) terminate
the Commitments, and thereupon the Commitments shall terminate immediately, (ii) declare the Loans
then outstanding to be due and payable in whole (or in part, in which case any principal not so
declared to be due and payable may thereafter be declared to be due and payable), and thereupon the
principal of the Loans so declared to be due and payable, together with accrued interest thereon
and all fees and other obligations of the Borrower accrued hereunder, shall become due and payable
immediately, and (iii) require the deposit of cash collateral in respect of LC Exposure as provided
in Section 2.06(i), in each case without presentment, demand, protest or other notice of any kind,
all of which are hereby waived by the Borrower; and in case of any event with respect to the
Borrower described in clause (h) or (i) of this Article, the Commitments shall automatically
terminate, the principal of the Loans and, together with accrued interest thereon and all fees and
other obligations of the Borrower accrued hereunder, shall automatically become due and payable,
and the deposit of such cash collateral in respect of LC Exposure shall immediately and
automatically become due, in each case without presentment, demand, protest or other notice of any
kind, all of which are hereby waived by the Borrower.



ARTICLE VIII




The Administrative Agent 




Each of the Lenders and the Issuing Banks hereby irrevocably appoints the entity named as
Administrative Agent in the heading of this Agreement and its successors to serve as administrative
agent under the Loan Documents, and authorizes the Administrative Agent to take such actions and to
exercise such powers as are delegated to the Administrative Agent by the terms of the Loan
Documents, together with such actions and powers as are reasonably incidental thereto.



The Person serving as the Administrative Agent hereunder shall have the same rights and powers
in its capacity as a Lender or an Issuing Bank as any other Lender or Issuing Bank and may exercise
the same as though it were not the Administrative Agent, and such Person and its Affiliates may
accept deposits from, lend money to, act as the financial advisor or in any other advisory capacity
for and generally engage in any kind of business with the Borrower or any Subsidiary or other
Affiliate thereof as if such Person were not the Administrative Agent hereunder and without any
duty to account therefor to the Lenders.


 


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The Administrative Agent shall not have any duties or obligations except those expressly set
forth in the Loan Documents. Without limiting the generality of the foregoing, (a) the
Administrative Agent shall not be subject to any fiduciary or other implied duties, regardless of
whether a Default has occurred and is continuing, (b) the
Administrative Agent shall not have any duty to take any discretionary action or to exercise
any discretionary power, except discretionary rights and powers expressly contemplated by the Loan
Documents that the Administrative Agent is required to exercise as directed in writing by the
Required Lenders (or such other number or percentage of the Lenders as shall be necessary, or as
the Administrative Agent shall believe in good faith to be necessary, under the circumstances as
provided in the Loan Documents), provided that the Administrative Agent shall not be
required to take any action that, in its opinion, could expose the Administrative Agent to
liability or be contrary to any Loan Document or applicable law, and (c) except as expressly set
forth in the Loan Documents, the Administrative Agent shall not have any duty to disclose, and
shall not be liable for the failure to disclose, any information relating to the Borrower, any
Subsidiary or any other Affiliate of any of the foregoing that is communicated to or obtained by
the Person serving as Administrative Agent or any of its Affiliates in any capacity. The
Administrative Agent shall not be liable for any action taken or not taken by it with the consent
or at the request of the Required Lenders (or such other number or percentage of the Lenders as
shall be necessary, or as the Administrative Agent shall believe in good faith to be necessary,
under the circumstances as provided in the Loan Documents) or in the absence of its own gross
negligence or wilful misconduct, as determined by a court of competent jurisdiction by a final and
non-appealable judgment. The Administrative Agent shall be deemed not to have knowledge of any
Default unless and until written notice thereof is given to the Administrative Agent by the
Borrower, a Lender or an Issuing Bank, and the Administrative Agent shall not be responsible for or
have any duty to ascertain or inquire into (i) any statement, warranty or representation made in or
in connection with any Loan Document, (ii) the contents of any certificate, report or other
document delivered thereunder or in connection therewith, (iii) the performance or observance of
any of the covenants, agreements or other terms or conditions set forth in any Loan Document or the
occurrence of any Default, (iv) the sufficiency, validity, enforceability, effectiveness or
genuineness of any Loan Document or any other agreement, instrument or document, or (v) the
satisfaction of any condition set forth in Article IV or elsewhere in any Loan Document, other than
to confirm receipt of items expressly required to be delivered to the Administrative Agent or
satisfaction of any condition that expressly refers to the matters described therein being
acceptable or satisfactory to the Administrative Agent. Notwithstanding anything herein to the
contrary, the Administrative Agent shall not have any liability arising from (A) any confirmation
of the Revolving Credit Exposure or the component amounts thereof or (B) any determination as to
whether a Letter of Credit constitutes a Financial Letter of Credit or a Performance Letter of
Credit.



The Administrative Agent shall be entitled to rely, and shall not incur any liability for
relying, upon any notice, request, certificate, consent, statement, instrument, document or other
writing (including any electronic message, Internet or intranet website posting or other
distribution) believed by it to be genuine and to have been signed, sent or otherwise authenticated
by the proper Person (whether or not such Person in fact meets the requirements set forth in the
Loan Documents for being the signatory, sender or authenticator thereof). The Administrative Agent
also shall be entitled to rely, and shall not incur any liability for relying, upon any statement
made to it orally or by telephone and believed by it to be made by the proper Person (whether or
not such Person in fact
meets the requirements set forth in the Loan Documents for being the signatory, sender or
authenticator thereof), and may act upon any such statement prior to receipt of written
confirmation thereof. The Administrative Agent may consult with legal counsel (who may be counsel
for the Borrower), independent accountants and other experts selected by it, and shall not be
liable for any action taken or not taken by it in accordance with the advice of any such counsel,
accountants or experts.


 


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The Administrative Agent may perform any of and all its duties and exercise its rights and
powers hereunder or under any other Loan Document by or through any one or more sub-agents
appointed by the Administrative Agent. The Administrative Agent and any such sub-agent may perform
any of and all their duties and exercise their rights and powers through their respective Related
Parties. The exculpatory provisions of this Article shall apply to any such sub-agent and to the
Related Parties of the Administrative Agent and any such sub-agent, and shall apply to their
respective activities in connection with the syndication of the credit facilities provided for
herein as well as activities as Administrative Agent.



Subject to the terms of this paragraph, the Administrative Agent may resign at any time from
its capacity as such. In connection with such resignation, the Administrative Agent shall give
notice of its intent to resign to the Lenders, the Issuing Banks and the Borrower. Upon receipt of
any such notice of resignation, the Required Lenders shall have the right, with the consent of the
Borrower (not to be unreasonably withheld), to appoint a successor. If no successor shall have
been so appointed by the Required Lenders and shall have accepted such appointment within 30 days
after the retiring Administrative Agent gives notice of its intent to resign, then the retiring
Administrative Agent may, on behalf of the Lenders and the Issuing Banks, appoint a successor
Administrative Agent reasonably acceptable to the Borrower, which shall be a bank with an office in
New York, New York, or an Affiliate of any such bank. Upon the acceptance of its appointment as
Administrative Agent hereunder by a successor, such successor shall succeed to and become vested
with all the rights, powers, privileges and duties of the retiring Administrative Agent, and the
retiring Administrative Agent shall be discharged from its duties and obligations hereunder and
under the other Loan Documents. The fees payable by the Borrower to a successor Administrative
Agent shall be the same as those payable to its predecessor unless otherwise agreed by the Borrower
and such successor. Following the effectiveness of the Administrative Agent’s resignation from its
capacity as such, the provisions of this Article and Section 9.03, as well as any exculpatory,
reimbursement and indemnification provisions set forth in any other Loan Document, shall continue
in effect for the benefit of such retiring Administrative Agent, its sub-agents and their
respective Related Parties in respect of any actions taken or omitted to be taken by any of them
while it was acting as Administrative Agent.


 


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Each Lender and Issuing Bank acknowledges that it has, independently and without reliance upon
the Administrative Agent, the Arranger or any other Lender or Issuing Bank, or any of the Related
Parties of any of the foregoing, and based on such documents and information as it has deemed
appropriate, made its own credit analysis and decision to enter into this Agreement. Each Lender
and Issuing Bank also
acknowledges that it will, independently and without reliance upon the Administrative Agent,
the Arranger or any other Lender or Issuing Bank, or any of the Related Parties of any of the
foregoing, and based on such documents and information as it shall from time to time deem
appropriate, continue to make its own decisions in taking or not taking action under or based upon
this Agreement, any other Loan Document or any related agreement or any document furnished
hereunder or thereunder.



Each Lender, by delivering its signature page to this Agreement and funding its Loans on the
Effective Date, or delivering its signature page to an Assignment and Acceptance or an Additional
Credit Assumption Agreement pursuant to which it shall become a Lender hereunder, shall be deemed
to have acknowledged receipt of, and consented to and approved, each Loan Document and each other
document required to be delivered to, or be approved by or satisfactory to, the Administrative
Agent or the Lenders on the Effective Date.



Notwithstanding anything herein to the contrary, neither the Arranger nor any Person named on
the cover page of this Agreement as a Syndication Agent or a Documentation Agent shall have any
duties or obligations under this Agreement or any other Loan Document (except in its capacity, as
applicable, as a Lender or an Issuing Bank), but all such Persons shall have the benefit of the
indemnities provided for hereunder.



The provisions of this Article are solely for the benefit of the Administrative Agent, the Lenders
(except as provided herein with respect to consent rights over successor Administrative Agents) and
the Issuing Banks, and neither the Borrower nor any other Loan Party shall have any rights as a
third party beneficiary of any such provisions.



ARTICLE IX




Miscellaneous




SECTION 9.01. Notices. Except in the case of notices and other communications
expressly permitted to be given by telephone, all notices and other communications provided for
herein shall be in writing and shall be delivered by hand or overnight courier service, mailed by
certified or registered mail or sent by telecopy, as follows:



(a) if to the Borrower, to it at 6363 South Fiddlers Green Circle, Greenwood Village, Colorado
80111, Attention of Treasurer (Telecopy No. (303) 837-5150), Attention: Treasurer;



(b) if to the Administrative Agent, to JPMorgan Chase Bank, N.A. Loan and Agency Services
Group, 1111 Fannin, 10th Floor, Houston, Texas 77002, Attention of Leslie Hill (Telecopy No. (713)
427-6307), with a copy to JPMorgan Chase Bank, N.A., 383 Madison Avenue, New York 10179, Attention
of Gitanjali Pundir (Telecopy No. (212) 270-5100);


 


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(c) if to the Swingline Lender, to JPMorgan Chase Bank, N.A. Loan and Agency Services Group,
1111 Fannin, 10th Floor, Houston, Texas 77002, Attention of Leslie Hill (Telecopy No. (713)
427-6307), with a copy to JPMorgan Chase Bank, N.A., 383 Madison Avenue, New York 10179, Attention
of Gitanjali Pundir (Telecopy No. (212) 270-5100);



(d) if to any Issuing Bank, to it at the address most recently specified by it in a notice
delivered to the Administrative Agent and the Borrower;



(e) if to any Lender, to it at its address (or telecopy number) set forth in its
Administrative Questionnaire; and



(f) notices and other communications to the Lenders hereunder may be delivered or furnished by
electronic communications pursuant to procedures approved by the Administrative Agent;
provided that the foregoing shall not apply to notices pursuant to Article II unless
otherwise agreed by the Administrative Agent and the applicable Lender. The Administrative Agent
or the Borrower may, in its discretion, agree to accept notices and other communications to it
hereunder by electronic communications pursuant to procedures approved by it; provided that
approval of such procedures may be limited to particular notices or communications.



Any party hereto may change its address or telecopy number for notices and other communications
hereunder by notice to the other parties hereto. All notices and other communications given to any
party hereto in accordance with the provisions of this Agreement shall be deemed to have been given
on the date of receipt.



SECTION 9.02. Waivers; Amendments. (a) No failure or delay by the Administrative
Agent, any Issuing Bank or any Lender in exercising any right or power hereunder or under any other
Loan Document shall operate as a waiver thereof, nor shall any single or partial exercise of any
such right or power, or any abandonment or discontinuance of steps to enforce such a right or
power, preclude any other or further exercise thereof or the exercise of any other right or power.
The rights and remedies of the Administrative Agent, the Issuing Banks and the Lenders hereunder
and under any other Loan Documents are cumulative and are not exclusive of any rights or remedies
that they would otherwise have. No waiver of any provision of any Loan Document or consent to any
departure by any Loan Party therefrom shall in any event be effective unless the same shall be
permitted by paragraph (b) of this Section, and then such waiver or consent shall be effective only
in the specific instance and for the purpose for which given. Without limiting the generality of
the foregoing, the making of a Loan or the issuance of a Letter of Credit shall not be construed as
a waiver of any Default, regardless of whether the Administrative Agent, any Issuing Bank or any
Lender may have had notice or knowledge of such Default at the time.


 


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(b) Except as provided in Section 2.21, neither this Agreement nor any other Loan Document nor
any provision hereof or thereof may be waived, amended or modified except pursuant to an agreement
or agreements in writing entered into by the Borrower and the Required Lenders or by the Borrower
and the Administrative Agent
with the consent of the Required Lenders (and, additionally, in each case, if its rights and
obligations are affected thereby, the Swingline Lender), or in the case of the Guarantee Agreement,
the Guarantor; provided that no such agreement shall (i) increase the Commitment of any
Lender without the written consent of such Lender, (ii) reduce the principal amount of any Loan or
the amount of any LC Disbursement or reduce the rate of interest thereon (other than a waiver of
post-default additional interest as specified in Section 2.13(a)), or reduce any fees payable to
any Lender hereunder, without the written consent of each Lender adversely affected thereby, (iii)
postpone the scheduled date of payment of the principal amount of any Loan or the scheduled date of
payment of any LC Disbursement, or any interest thereon (other than a waiver of post-default
additional interest as specified in Section 2.13(d)), or any fees payable hereunder, or reduce the
amount of, waive or excuse any such payment, or postpone the scheduled date of expiration of any
Commitment, without the written consent of each Lender adversely affected thereby, (iv) change
Section 2.18(b) or (c) in a manner that would alter the pro rata sharing of payments required
thereby, without the written consent of each Lender adversely affected thereby or (v) change any of
the provisions of this Section 9.02(b) or the definition of “Required Lenders” (other than any
change to the definition of “Required Lenders” necessary for any new class of Lenders to be treated
on the same basis as existing Lenders) or any other provision of any Loan Document specifying the
number or percentage of Lenders required to waive, amend or modify any rights hereunder or make any
determination or grant any consent hereunder, without the written consent of each Lender, without
the written consent of each Lender; provided further that no such agreement shall
amend, modify or otherwise affect the rights or duties of the Administrative Agent, any Issuing
Bank or the Swingline Lender hereunder without the prior written consent of the Administrative
Agent, Issuing Bank or the Swingline Lender. Notwithstanding any of the foregoing (A) no consent
with respect to any amendment, waiver or other modification of this Agreement or any other Loan
Document shall be required of (1) any Defaulting Lender, except with respect to any amendment,
waiver or other modification referred to in clause (i), (ii) or (iii) of the first proviso of this
paragraph and then only in the event such Defaulting Lender shall be affected by such amendment,
waiver or other modification or (2) any Lender that receives payment in full of the principal of
and interest accrued on each Loan made by, and all other amounts owing to, such Lender or accrued
for the account of such Lender under this Agreement and the other Loan Documents at the time such
amendment, waiver or other modification becomes effective and whose Commitments terminate by the
terms and upon the effectiveness of such amendment, waiver or other modification, (B) any provision
of this Agreement or any other Loan Document may be amended by an agreement in writing entered into
by the Borrower and the Administrative Agent to cure any ambiguity, omission, defect or
inconsistency so long as, in each case, the Lenders shall have received at least five Business Days
prior written notice thereof and the Administrative Agent shall not have received, within five
Business Days of the date of such notice to the Lenders, a written notice from (x) the Required
Lenders stating that the Required Lenders object to such amendment or (y) any Issuing Bank affected
by such amendment stating that it objects to such amendment, and (C) this Agreement may be amended
to provide for Additional Credit Commitments in the manner contemplated by Section 2.09(d) and
the extension of the Maturity Date as provided in Section 2.21, in each case without any
additional consents.


 


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SECTION 9.03. Expenses; Indemnity; Damage Waiver. (a) The Borrower shall pay (i) all
reasonable and documented out-of-pocket expenses incurred by the Administrative Agent, the Arranger
and its Affiliates, including the reasonable and documented fees, charges and disbursements of
counsel for the Administrative Agent, in connection with the syndication of the credit facility
provided for herein, the preparation and administration of the Loan Documents or any amendments,
modifications or waivers of the provisions hereof (whether or not the transactions contemplated
hereby or thereby shall be consummated), (ii) all reasonable and documented out-of-pocket expenses
incurred by any Issuing Bank in connection with the issuance, amendment, renewal or extension of
any Letter of Credit or any demand for payment thereunder and (iii) all documented out-of-pocket
expenses incurred by the Administrative Agent, the Arranger or, after the occurrence of a Default
or an Event of Default, any Issuing Bank or any Lender, including the reasonable fees, charges and
disbursements of any counsel for the Administrative Agent, any Issuing Bank or any Lender, in
connection with the enforcement or protection of its rights in connection with the Loan Documents,
including its rights under this Section, or in connection with the Loans made or Letters of Credit
issued hereunder, including all such out-of-pocket expenses incurred during any workout,
restructuring or negotiations in respect of such Loans or Letters of Credit; provided
further that the Borrower, in connection with the foregoing, shall only be required to pay
the fees and expenses of (A) one counsel engaged to represent the Administrative Agent and (B) in
the case of the preceding clause (iii), (1) one joint counsel engaged to represent all Issuing
Banks and all Lenders, plus one additional counsel for each of the parties taken as a whole who are
similarly situated in the event any Issuing Bank or Lender shall have reasonably determined, or
been advised by counsel, that there are or may be actual conflicts of interest, including
situations in which one or more legal defenses available to it are different from or in additional
to those available to any other Issuing Bank or Lender, and (2) such other joint local counsel in
any applicable jurisdiction engaged to represent the Administrative Agent, all Issuing Banks and
all Lenders as may be required in the reasonable judgment of the Administrative Agent.



(b) The Borrower shall indemnify the Administrative Agent (and any sub-agent thereof), the
Arranger, each Issuing Bank and each Lender, and each Related Party of any of the foregoing Persons
(each such Person being called an “Indemnitee”) against, and hold each Indemnitee harmless
from, any and all losses, claims, damages, liabilities and related expenses (but limited, in the
case of legal fees and expenses, to the documented fees, charges and disbursements of one counsel
for the Indemnitees, taken as a whole, and, if necessary, one local counsel in any applicable
jurisdiction plus one additional counsel (and one additional local counsel in each applicable
jurisdiction) for each of the parties taken as a whole who are similarly situated in the event any
Indemnitee shall have reasonably determined, or been advised by counsel, that there are or may be
conflicts of interest, including situations in which one or more legal defenses available to it are
different from or in additional to those available to any other Indemnitee, incurred by or asserted
against any Indemnitee arising out of, in connection with, or as a result of any actual or
prospective claim, litigation,



 


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investigation or proceeding (regardless of whether any Indemnitee is a party thereto and regardless of whether
such matter is initiated by a third party, the Borrower or any Affiliate of the Borrower) relating
to (i) the execution or delivery of any Loan Document or any agreement or instrument contemplated
thereby, the performance by the parties to the Loan Documents of their obligations thereunder or
the consummation of the Transactions or any other transactions contemplated hereby, (ii) any Loan
or Letter of Credit or the use of the proceeds therefrom (including any refusal by any Issuing Bank
to honor a demand for payment under a Letter of Credit if the documents presented in connection
with such demand do not strictly comply with the terms of such Letter of Credit) or (iii) any
actual or alleged presence or release of Hazardous Materials on or from any property currently or
formerly owned or operated by the Borrower or any of its Subsidiaries, or any Environmental
Liability related in any way to the Borrower or any of its Subsidiaries; provided that such
indemnity shall not, as to any Indemnitee, be available to the extent that such losses, claims,
damages, liabilities or related expenses (A) are determined by a court of competent jurisdiction by
final and nonappealable judgment to have resulted from the gross negligence or wilful misconduct of
such Indemnitee (or any Related Party of such Indemnitee) or, solely in the case of a claim
initiated by the Borrower, material breach of such Indemnitee’s obligations under the Loan
Documents in bad faith or (B) arise out of disputes solely among Indemnitees and not arising out of
any act or omission by the Borrower or any of its Subsidiaries (other than any disputes against the
Administrative Agent, the Swingline Lender, any Issuing Bank or the Arranger in its capacity as
such). This Section 9.03(b) shall not apply with respect to Taxes.



(c) To the extent that the Borrower fails to pay any amount required to be paid by them to the
Administrative Agent (or any sub-agent thereof) or any Issuing Bank or the Swingline Lender, or any
Related Party of any of the foregoing, under paragraph (a) or (b) of this Section, each Lender
severally agrees to pay to the Administrative Agent (or any sub-agent hereof), such Issuing Bank,
the Swingline Lender or such Related Party, as the case may be, such Lender’s Applicable Percentage
(determined as of the time that the applicable unreimbursed expense or indemnity payment is
sought), of such unpaid amount; provided that the unreimbursed expense or indemnified loss,
claim, damage, liability or related expense, as the case may be, was incurred by or asserted
against the Administrative Agent, such Issuing Bank or the Swingline Lender in its capacity as
such.



(d) To the extent permitted by applicable law, (i) the Borrower shall not assert, or permit
any of their Affiliates or Related Parties to assert, and each hereby waives, any claim against any
Indemnitee for any damages arising from the use by others of information or other materials
obtained through telecommunications, electronic or other information transmission systems
(including the Internet), unless caused by such Indemnitee’s gross negligence or willful misconduct
(as determined by a court of competent jurisdiction in a final and non-appealable decision) and
(ii) no party hereto shall, nor shall it permit any of its Affiliates or Related Parties to assert,
and each hereby waives, any claim against any other party, on any theory of liability, for special,
indirect, consequential or punitive damages (as opposed to direct or actual damages) arising out
of, in connection with, or as a result of, this Agreement or any agreement or instrument
contemplated hereby, the Transactions, any Loan or Letter of Credit or the use of the
proceeds thereof; provided that nothing contained in this clause (ii) will limit the
Borrower’s obligations as set forth in paragraph (b) above.


 


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(e) All amounts due under this Section shall be payable promptly after written demand
therefor.



SECTION 9.04. Successors and Assigns. (a) The provisions of this Agreement shall be
binding upon and inure to the benefit of the parties hereto and their respective successors and
assigns permitted hereby (including any Affiliate of any Issuing Bank that issues any Letter of
Credit), except that the Borrower may not (except as otherwise provided herein) assign or otherwise
transfer any of its rights or obligations hereunder without the prior written consent of each
Lender (and any attempted assignment or transfer by the Borrower without such consent shall be null
and void). Nothing in this Agreement, expressed or implied, shall be construed to confer upon any
Person (other than the parties hereto, their respective successors and assigns permitted hereby
(including any Affiliate of any Issuing Bank that issues any Letter of Credit) and the Indemnitees)
any legal or equitable right, remedy or claim under or by reason of this Agreement.



(b) Any Lender may assign to one or more commercial banks or other financial institutions all
or a portion of its rights and obligations under this Agreement (including all or a portion of its
Commitment and the Loans at the time owing to it and amounts in respect of Letters of Credit at the
time owing to it); provided that (i) each of the Borrower (except in the case of an
assignment to a Lender or an Affiliate of a Lender), the Administrative Agent and any Issuing Bank
(and, in the case of an assignment of all or a portion of any Lender’s obligations in respect of
its Swingline Exposure, the Swingline Lender) must give their prior written consent to such
assignment (which consents shall not be unreasonably withheld), (ii) the amount of the Commitment
of the assigning Lender subject to each such assignment (determined as of the date the Assignment
and Acceptance with respect to such assignment is delivered to the Administrative Agent), if less
than the entire remaining amount of the assigning Lender’s commitment, shall not in any event be
less than $5,000,000 unless each of the Borrower and the Administrative Agent otherwise consent,
(iii) each partial assignment shall be made as an assignment of a proportionate part of all the
assigning Lender’s rights and obligations under this Agreement, except that this clause (iii) shall
not apply to rights in respect of outstanding Competitive Loans, (iv) the parties to each
assignment shall execute and deliver to the Administrative Agent an Assignment and Acceptance,
together with a processing and recordation fee of $3,500, and (v) the assignee, if it shall not be
a Lender, shall deliver to the Administrative Agent an Administrative Questionnaire; and
provided further that (A) any consent of the Borrower otherwise required under the
first proviso to this paragraph shall (1) not be required if an Event of Default under clauses (a),
(b), (h) or (i) of Article VII (with respect to the Borrower) has occurred and is continuing and
(2) for any assignment, be deemed to have been given by the Borrower unless it shall object to such
assignment by written notice to the Administrative Agent within five Business Days after having
first received notice thereof, and (B) notwithstanding any other provision in this paragraph (b)
(including the preceding clause (A) of this proviso), the prior written



 


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consent of the Borrower
shall be required in the case of any assignment to a Person referred to in clause (v) of Section 9.04(e). Subject to
acceptance and recording thereof pursuant to paragraph (d) of this Section, from and after the
effective date specified in each Assignment and Acceptance the assignee thereunder shall be a party
hereto and, to the extent of the interest assigned by such Assignment and Acceptance, have the
rights and obligations of a Lender under this Agreement, and the assigning Lender thereunder shall,
to the extent of the interest assigned by such Assignment and Acceptance, be released from its
obligations under this Agreement (and, in the case of an Assignment and Acceptance covering all of
the assigning Lender’s rights and obligations under this Agreement, such Lender shall cease to be a
party hereto but shall continue to be entitled to the benefits of Sections 2.15, 2.16, 2.17 and
9.03). Any assignment or transfer by a Lender of rights or obligations under this Agreement that
does not comply with this paragraph shall be treated for purposes of this Agreement as a sale by
such Lender of a participation in such rights and obligations in accordance with paragraph (e) of
this Section.



(c) The Administrative Agent, acting for this purpose as an agent of the Borrower, shall
maintain at one of its offices in New York, New York a copy of each Assignment and Acceptance
delivered to it and a register for the recordation of the names and addresses of the Lenders, and
the Commitment of, and principal amount of and stated interest on the Loans and LC Disbursements
owing to, each Lender pursuant to the terms hereof from time to time (the “Register”). The
entries in the Register shall be conclusive absent manifest error, and the Borrower, the
Administrative Agent, the Issuing Banks and the Lenders shall treat each Person whose name is
recorded in the Register pursuant to the terms hereof as a Lender hereunder for all purposes of
this Agreement, notwithstanding notice to the contrary. The Register shall be available for
inspection by the Borrower, any Issuing Bank and any Lender, at any reasonable time and from time
to time upon reasonable prior notice.



(d) Upon its receipt of a duly completed Assignment and Acceptance executed by an assigning
Lender and an assignee, the assignee’s completed Administrative Questionnaire (unless the assignee
shall already be a Lender hereunder), the processing and recordation fee referred to in paragraph
(b) of this Section and any written consent to such assignment required by paragraph (b) of this
Section, the Administrative Agent shall accept such Assignment and Acceptance and record the
information contained therein in the Register. No assignment shall be effective for purposes of
this Agreement unless it has been recorded in the Register as provided in this paragraph.




 


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(e) Any Lender may sell participations to one or more banks or other entities (a
“Participant”) in all or a portion of such Lender’s rights and obligations under this
Agreement (including all or a portion of its Commitment and the Loans and LC Disbursements owing to
it); provided that (i) unless the Participant is an Affiliate or an affiliated funding
vehicle of such Lender, the Borrower’s consent, in its sole discretion, shall be required for the
sale of such participation, (ii) such Lender’s obligations under this Agreement shall remain
unchanged, (iii) such Lender shall remain solely responsible to the other parties hereto for the
performance of such obligations, (iv) the Borrower, the Administrative Agent, the Issuing Banks and
the other Lenders shall continue to deal
solely and directly with such Lender in connection with such Lender’s rights and obligations
under this Agreement and (v) notwithstanding any other provision in this paragraph (e), no Lender
may, without the Borrower’s prior written consent, sell participations in any Loan, Commitment or
LC Disbursements to Persons (other than banks and similar financial institutions) that are engaged
in the gold or minerals business and which are designated in writing from time to time by the
Borrower as Persons that are ineligible to participate in Loans or LC Disbursements and
Commitments; provided further that any consent of the Borrower otherwise required
under the first proviso to this paragraph (other than any consent required under clause (v) of this
paragraph) shall (x) not be required if an Event of Default under clauses (a), (b), (h) or (i) of
Article VII (with respect to the Borrower) has occurred and is continuing and (y) be deemed to have
been given by the Borrower unless it shall object to such participation by written notice to the
Administrative Agent within five Business Days after having first received notice thereof. Any
agreement or instrument pursuant to which a Lender sells such a participation shall provide that
such Lender shall retain the sole right to enforce the Loan Documents and to approve any amendment,
modification or waiver of any provision of the Loan Documents; provided that such agreement
or instrument may provide that such Lender will not, without the consent of the Participant, agree
to any amendment, modification or waiver described in clause (i), (ii) or (iii) of the first
proviso to Section 9.02(b) that affects such Participant. The Borrower agrees that each
Participant shall be entitled to the benefits of Sections 2.15, 2.16 and 2.17 (subject to the
requirements and limitations therein, including the requirements under Section 2.17(f) (it being
understood that the documentation required under Section 2.17(f) shall be delivered to the
participating Lender or Issuing Bank)) to the same extent as if it were a Lender and had acquired
its interest by assignment pursuant to paragraph (b) of this Section; provided that such
Participant (A) agrees to be subject to the provisions of Sections 2.18 and 2.19 as if it were an
assignee under paragraph (b) of this Section; and (B) shall not be entitled to receive any greater
payment under Sections 2.15 or 2.17, with respect to any participation, than its participating
Lender or Issuing Bank would have been entitled to receive. To the extent permitted by law, each
Participant also shall be entitled to the benefits of Section 9.08 as though it were a Lender,
provided such Participant agrees to be subject to Section 2.18(c) as though it were a Lender. Each
Lender that sells a participation shall, acting solely for this purpose as an agent of the
Borrower, maintain a register on which it enters the name and address of each Participant and the
principal amounts (and stated interest) of each Participant’s interest in the Loans or other
obligations under this Agreement (the “Participant Register”); provided that no
Lender shall have any obligation to disclose all or any portion of the Participant Register to any
Person (including the identity of any Participant or any information relating to a Participant’s
interest in any Commitments, Loans, Letters of Credit or its other obligations under any Loan
Document) except to the extent that such disclosure is necessary to establish that such Commitment,
Loan, Letter of Credit or other obligation is in registered form under Section 5f.103-1(c) of the
United States Treasury Regulations. The entries in the Participant Register shall be conclusive
absent manifest error, and such Lender shall treat each person whose name is recorded in the
Participant Register as the owner of such participation for all purposes of this Agreement
notwithstanding any notice to the contrary.


 


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(f) Each Lender agrees that it will only provide to a Participant information relating to the
Borrower and its Subsidiaries that (i) is or becomes generally available to the public other than
as a result of a disclosure by such Lender or its agents, employees or advisors or (ii) becomes
available on a nonconfidential basis, in each case other than from a source which is bound by a
confidentiality agreement with the Borrower.



(g) Any Lender may at any time pledge or assign a security interest in all or any portion of
its rights under this Agreement to secure obligations of such Lender, including any pledge or
assignment to secure obligations to a Federal Reserve Bank, and this Section shall not apply to any
such pledge or assignment of a security interest; provided that no such pledge or
assignment of a security interest shall release a Lender from any of its obligations hereunder or
substitute any such pledgee or assignee for such Lender as a party hereto.



SECTION 9.05. Survival. All covenants, agreements, representations and warranties
made by the Borrower herein, in the other Loan Documents and in the certificates or other
instruments delivered in connection with or pursuant to this Agreement or any other Loan Document
shall be considered to have been relied upon by the other parties hereto and shall survive the
execution and delivery of the Loan Documents and the making of any Loans and the issuance of any
Letters of Credit, regardless of any investigation made by any such other party or on its behalf
and notwithstanding that the Administrative Agent, any Issuing Bank or any Lender may have had
notice or knowledge of any Default or incorrect representation or warranty at the time any credit
is extended hereunder, and shall continue in full force and effect as long as the principal of or
any accrued interest on any Loan or any fee or any other amount payable under this Agreement is
outstanding and unpaid or any Letter of Credit is outstanding and so long as the Commitments have
not expired or terminated. The provisions of Sections 2.15, 2.16, 2.17 and 9.03 and Article VIII
shall survive and remain in full force and effect regardless of the consummation of the
transactions contemplated hereby, the repayment of the Loans, the expiration or termination of the
Letters of Credit and the Commitments or the termination of this Agreement or any provision hereof.



SECTION 9.06. Counterparts; Integration; Effectiveness. This Agreement may be
executed in counterparts (and by different parties hereto on different counterparts), each of which
shall constitute an original, but all of which when taken together shall constitute a single
contract. This Agreement, the other Loan Documents and any separate letter agreements with respect
to fees payable to the Administrative Agent constitute the entire contract among the parties
relating to the subject matter hereof and supersede any and all previous agreements and
understandings, oral or written, relating to the subject matter hereof. Delivery of an executed
counterpart of a signature page of this Agreement by telecopy or other electronic imaging shall be
effective as delivery of a manually executed counterpart of this Agreement.



SECTION 9.07. Severability. Any provision of any Loan Document held to be invalid,
illegal or unenforceable in any jurisdiction shall, as to such jurisdiction, be ineffective to the
extent of such invalidity, illegality or unenforceability without affecting
the validity, legality and enforceability of the remaining provisions of such Loan Document;
and the invalidity of a particular provision in a particular jurisdiction shall not invalidate such
provision in any other jurisdiction.


 


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SECTION 9.08. Right of Setoff. If the Loans shall have become due and payable, each
Lender and each of its Affiliates is hereby authorized at any time and from time to time, to the
fullest extent permitted by law, to set off and apply any and all deposits (general or special,
time or demand, provisional or final) at any time held and other obligations at any time owing by
such Lender or Affiliate to or for the credit or the account of the Borrower against any of and all
the obligations of the Borrower now or hereafter existing under this Agreement held by such Lender,
irrespective of whether or not such Lender shall have made any demand under this Agreement and
although such obligations may be unmatured. The rights of each Lender under this Section are in
addition to and shall not limit other rights and remedies (including other rights of setoff) which
such Lender may have.




SECTION 9.09. Governing Law; Jurisdiction; Consent to Service of Process. (a) This
Agreement shall be construed in accordance with and governed by the law of the State of New York.



(b) The Borrower hereby irrevocably and unconditionally submits, for itself and its property,
to the exclusive jurisdiction of the Supreme Court of the State of New York sitting in New York
County and of the United States District Court of the Southern District of New York, and any
appellate court from any thereof, in any action or proceeding arising out of or relating to any
Loan Document, or for recognition or enforcement of any judgment, and each of the parties hereto
hereby irrevocably and unconditionally agrees that all claims in respect of any such action or
proceeding may be heard and determined in such New York State or, to the extent permitted by law,
in such Federal court. Each of the parties hereto agrees that a final judgment in any such action
or proceeding shall be conclusive and may be enforced in other jurisdictions by suit on the
judgment or in any other manner provided by law. Nothing in this Agreement or any other Loan
Document shall affect any right that the Administrative Agent, any Issuing Bank or any Lender may
otherwise have to bring any action or proceeding relating to this Agreement or any other Loan
Document against the Borrower or its properties in the courts of any jurisdiction.



(c) The Borrower hereby irrevocably and unconditionally waives, to the fullest extent it may
legally and effectively do so, any objection which it may now or hereafter have to the laying of
venue of any suit, action or proceeding arising out of or relating to this Agreement or any other
Loan Document in any court referred to in paragraph (b) of this Section. Each of the parties
hereto hereby irrevocably waives, to the fullest extent permitted by law, the defense of an
inconvenient forum to the maintenance of such action or proceeding in any such court.



(d) Each party to this Agreement irrevocably consents to service of process in the manner
provided for notices in Section 9.01 (other than by electronic communications or telecopy).
Nothing in this Agreement or any other Loan Document
will affect the right of any party hereto or thereto to serve process in any other manner
permitted by law.


 


81









 





SECTION 9.10. WAIVER OF JURY TRIAL. EACH PARTY HERETO HEREBY WAIVES, TO THE FULLEST
EXTENT PERMITTED BY APPLICABLE LAW, ANY RIGHT IT MAY HAVE TO A TRIAL BY JURY IN ANY LEGAL
PROCEEDING DIRECTLY OR INDIRECTLY ARISING OUT OF OR RELATING TO THIS AGREEMENT, ANY OTHER LOAN
DOCUMENT OR THE TRANSACTIONS CONTEMPLATED HEREBY OR THEREBY (WHETHER BASED ON CONTRACT, TORT OR ANY
OTHER THEORY). EACH PARTY HERETO (A) CERTIFIES THAT NO REPRESENTATIVE, AGENT OR ATTORNEY OF ANY
OTHER PARTY HAS REPRESENTED, EXPRESSLY OR OTHERWISE, THAT SUCH OTHER PARTY WOULD NOT, IN THE EVENT
OF LITIGATION, SEEK TO ENFORCE THE FOREGOING WAIVER AND (B) ACKNOWLEDGES THAT IT AND THE OTHER
PARTIES HERETO HAVE BEEN INDUCED TO ENTER INTO THIS AGREEMENT BY, AMONG OTHER THINGS, THE MUTUAL
WAIVERS AND CERTIFICATIONS IN THIS SECTION.



SECTION 9.11. Headings. Article and Section headings and the Table of Contents used
herein are for convenience of reference only, are not part of this Agreement and shall not affect
the construction of, or be taken into consideration in interpreting, this Agreement.



SECTION 9.12. Confidentiality. Each of the Administrative Agent, the Issuing Banks
and the Lenders agrees to maintain the confidentiality of the Information (as defined below),
except that Information may be disclosed (a) to its and its Affiliates’ directors, officers,
employees and agents, including accountants, legal counsel and other advisors (it being understood
that the Persons to whom such disclosure is made will be informed of the confidential nature of
such Information and instructed to keep such Information confidential), (b) to the extent requested
by any regulatory authority or self-regulatory body, (c) to the extent required by applicable laws
or regulations or by any subpoena or similar legal process (in which case, the Administrative
Agent, such Issuing Bank or such Lender shall, to the extent not inconsistent with applicable law
or such Person’s internal policies, use reasonable efforts to promptly inform the Borrower
thereof), (d) to any other party to this Agreement, (e) in connection with the exercise of any
remedies hereunder or any suit, action or proceeding relating to this Agreement or any other Loan
Document or the enforcement of rights hereunder, (f) subject to an agreement containing provisions
substantially the same as those of this Section, to any assignee or prospective assignee of any of
its rights or obligations under this Agreement, (g) to any direct, indirect, actual or prospective
counterparty (and its advisor) to any swap, derivative or securitization transaction related to the
obligations under this Agreement (it being understood that the Persons to whom such disclosure is
made will be informed of the confidential nature of such Information and instructed to keep such
Information confidential), (h) to any credit insurance provider relating to the Borrower and its
obligations (it being understood that the Persons to whom such disclosure is made will be informed
of the confidential nature of such Information and instructed to



 


82









 






keep such Information
confidential), (i) with the consent of the Borrower or (j) to the extent such Information (i) becomes publicly available other than as a result of a breach of this
Section or (ii) becomes available to the Administrative Agent, any Issuing Bank or any Lender on a
nonconfidential basis from a source other than the Borrower not subject (to the knowledge of the
Administrative Agent, such Issuing Bank or such Lender) to a confidentiality agreement with the
Borrower. For the purposes of this Section, “Information” means all information received
from the Borrower relating to the Borrower or its business, other than any such information that is
available to the Administrative Agent or any Lender on a nonconfidential basis prior to disclosure
by the Borrower; provided that, in the case of information received from the Borrower after
the Effective Date, such information is clearly identified at the time of delivery as confidential.
Any Person required to maintain the confidentiality of Information as provided in this Section
shall be considered to have complied with its obligation to do so if such Person has exercised the
same degree of care to maintain the confidentiality of such Information as such Person would accord
to its own confidential information.



SECTION 9.13. USA Patriot Act. Each Lender and each Issuing Bank hereby notifies each
Loan Party that pursuant to the requirements of the USA PATRIOT Act, it is required to obtain,
verify and record information that identifies such Loan Party, which information includes the name,
address and tax identification number of such Loan Party and other information that will allow such
Lender to identify such Loan Party in accordance with the Act. Each Loan Party shall promptly,
following a request by the Administrative Agent, any Lender or any Issuing Bank, provide all
documentation and other information that the Administrative Agent, such Lender or such Issuing Bank
reasonably requests in order to comply with its ongoing obligations under applicable “know your
customer” and anti-money laundering rules and regulations, including the Act.



SECTION 9.14. Release of Newmont USA as a Guarantor. Newmont USA shall automatically
be released from its obligations as a Guarantor under the Loan Documents upon the consummation of
any transaction permitted by this Agreement as a result of which Newmont USA (a) ceases to be a
Subsidiary; provided that, if so required by this Agreement, the Required Lenders shall
have consented to such transaction and the terms of such consent shall not have provided otherwise,
or (b) is released from its obligations under the Guarantee Agreement pursuant to the terms
thereof. In connection with any termination or release pursuant to this Section, the
Administrative Agent shall execute and deliver to the Borrower, at the Borrower’s expense, all
documents that the Borrower shall reasonably request to evidence such termination or release. Any
execution and delivery of documents pursuant to this Section shall be without recourse to or
warranty by the Administrative Agent.


 


83









 





ARTICLE X




Treatment of Loans for Purposes of Regulation U




SECTION 10.01. Treatment for Purposes of Regulation U. The Borrower and the Lenders
agree that, (i) if at any time the proceeds of any Loans are to be used in any manner which would
cause such Loans to be classified as “purpose loans” under Regulation U of the Board (all such
Loans being herein referred to as “Purpose Loans” and all other Loans being herein referred
to as “Non-Purpose Loans”), and (ii) if at the time of the making of any Loan after giving
effect to which Purpose Loans are outstanding and the representation contained in the third
sentence of Section 3.12 cannot be made, the Borrower shall so notify the Administrative Agent (and
the Administrative Agent shall so notify the Lenders) prior to the making of each such Loan
(specifying the amount to be so used) and, from and after such date, this Article X shall apply.



SECTION 10.02. Allocation of Credit. The Loans made hereunder by each Lender shall at
all times be treated for purposes of Regulation U as three separate extensions of credit (the
“A Credit”, the “B Credit” and the “C Credit” of such Lender; collectively,
the “A Credits”, the “B Credits” and the “C Credits”), as follows:



(a) the principal amount of the A Credit of such Lender shall be an amount equal to the
aggregate of the A Portions of all Purpose Loans made by such Lender (for purposes of this Article
X, the “A Portion” of any Purpose Loan shall be a portion of the original principal amount
of such Purpose Loan equal to such Lender’s Commitment Percentage of the maximum loan value of the
Margin Stock (including the Margin Stock to be purchased with such Purpose Loan) referred to in
Section 10.03(a) (minus any part of such Margin Stock allocated by such Lender under this paragraph
(a) to prior Purpose Loans made by it) as determined by such Lender at the time of the making of
such Purpose Loan in accordance with Regulation U) minus all payments and prepayments applied
thereto in accordance with Sections 10.03(a) and (b) and Section 10.04;



(b) the principal amount of the B Credit of such Lender shall be an amount equal to the
aggregate of the B Portions of all Purpose Loans made by such Lender (for purposes of this Article
X, the “B Portion” of any Purpose Loan shall mean the difference between the original
principal amount of such Purpose Loan and the A Portion of such Purpose Loan) minus all payments
and prepayments applied thereto in accordance with Sections 10.03(a) and (b) and Section 10.04; and



(c) the principal amount of the C Credit of such Lender shall be an amount equal to the
aggregate of the portions (the “C Portions”) of all Loans made by such Lender other than
the A Portions and the B Portions of such Loans minus all payments and prepayments applied thereto
in accordance with Sections 10.03(a) and (b) and Section 10.04.


 


84









 





SECTION 10.03. Allocation of Collateral. (a) The benefits of negative pledges in favor
of the Lenders (direct and indirect) in the Margin Stock and the
proceeds thereof provided for by this Agreement shall be allocated to the payment of the
principal of and interest on the A Credits of the Lenders and of all other amounts payable by the
Borrower under this Agreement in connection with the A Credits (collectively, the “A Credit
Amounts”); after the payment in full of the A Credit Amounts such benefits shall be allocated
to the payment of the principal of and interest on first the B Credits of the Lenders and of all
other amounts payable by the Borrower under this Agreement in connection with the B Credits
(collectively, the “B Credit Amounts”) and second the C Credits of the Lenders and of all
other amounts payable by the Borrower under this Agreement in connection with the C Credits
(collectively, the “C Credit Amounts”). The Borrower agrees that it shall not, and shall
not permit any of its subsidiaries to, sell, transfer or otherwise dispose of any shares of Margin
Stock, or otherwise withdraw or substitute any direct or indirect security for any Purpose Loans,
unless after giving effect thereto and to any prepayments of Loans to be made in connection
therewith, such sale, transfer, disposition or other withdrawal or substitution would be
permissible under Section 221.3(f) of Regulation U.



(b) The benefits of the negative pledges in favor of the Lenders (direct and indirect) in the
assets of the Borrower other than Margin Stock provided for by this Agreement shall be allocated
first to the payment of the B Credit Amounts and second to the payment of the C Credit Amounts; and
only after the payment in full of all B Credit Amounts and C Credit Amounts, to the payment of the
A Credit Amounts.



(c) Each Lender will mark its records to identify irrevocably the A Credit of such Lender with
the benefits described in paragraph (a) of this Section 10.03 and the B Credit of such Lender with
the benefits described in paragraph (b) of this Section 10.03 upon which it is relying as security
for the B Credit and the C Credit of such Lender with the benefits described in paragraph (b) of
this Section 10.03 upon which it is relying as security for the C Credit.



(d) In order to better enable the Lenders to comply with paragraph (c) of this Section 10.03,
Purpose Loans shall be treated as separate and distinct “Loans” (A Credits, being credits for which
the Lender is relying upon Margin Stock as security and B Credits, being credits for which the
Lender is relying upon assets other than Margin Stock as security) and shall be treated as separate
and distinct from Non-Purpose Loans (C Credits, being credits for which the Lender is relying as
security on assets other than the assets required to secure the A Credits and B Credits) for
purposes of borrowings, payments, prepayments and conversions of Loans under this Agreement and the
determination of Interest Periods with respect thereto.


 


85









 





SECTION 10.04. Allocation of Payments. Except as otherwise specifically provided in
this Agreement (but in any event subject to the requirements of Regulation U), all payments and
prepayments by the Borrower of the Loans shall be applied first to the payment or prepayment of the
A Credits, second to the payment or prepayment of the B Credits and third to the payment or
prepayment of the C Credits, provided that each such payment and prepayment made with funds
derived from assets subject to the provisions of paragraph (b) of Section 10.03 shall be applied
first to the payment or prepayment of the B Credit Amounts, second to the payment or prepayment
of the C Credit Amounts and third to the payment or prepayment of the A Credit Amounts; and
provided further, that each such payment and prepayment made with funds derived
from assets subject to the provisions referred to in paragraph (a) of Section 10.03 shall be
applied first to the payment or prepayment of the A Credit Amounts, second to the payment or
prepayment of the B Credit Amounts and third to the payment or prepayment of the C Credit Amounts.



SECTION 10.05. Information. The Borrower will furnish to each Lender, prior to the
making of any Loan or at any time thereafter upon the request of such Lender, such information as
such Lender may require to distinguish between Purpose Loans and Non-Purpose Loans and to determine
the A, B and C Portions thereof, and from time to time such other information as such Lender may
require to comply with paragraphs (c) and (d) of Section 10.03 and with Section 10.04 and to
further determine compliance with Regulation U, and such documents as such Lender may require to
comply with Regulation U.



SECTION 10.06. Individual Lender Responsibility. Each Lender shall be responsible for
its own compliance with and administration of the provisions of this Article X, and the
Administrative Agent shall have no responsibility for any determinations or allocations (including,
without limitation, any allocations of payments or prepayments) made or to be made by any Lender as
required by such provisions. Notwithstanding anything else provided herein, nothing contained in
this Article X shall bind any Lender to act (or to fail to act) in any manner that could cause such
Lender to violate, or could result in the violation of, any applicable law, rule, regulation or
order of any Governmental Authority.


 


86









 




IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be duly executed by their
respective authorized officers as of the day and year first above written.



	 	 	 	 	 
	 	NEWMONT MINING CORPORATION,

 	 
	 	By:  	/s/ Thomas P. Mahoney
 	 
	 	 	Name:  	Thomas P. Mahoney 	 
	 	 	Title:  	Vice President and Treasurer 	 
	 
	 	JPMORGAN CHASE BANK, N.A., individually and as

Administrative Agent and Swingline Lender,

 	 
	 	By:  	/s/ Gitanjali Pundir
 	 
	 	 	Name:  	Gitanjali Pundir 	 
	 	 	Title:  	Vice President 	 



 


 









 





LENDER SIGNATURE PAGE TO

THE NEWMONT MINING CREDIT AGREEMENT

DATED THE DATE FIRST ABOVE WRITTEN




	 	 	 	 	 
	Name of Institution:
	 
	 	 	 	 
	Citibank, N.A.	 	 
	 
	 	 	 	 
	by

	 	/s/ Raymond G. Dunning	 	 
	 

	 	 	 	 
	 

	 	Name: Raymond G. Dunning	 	 
	 

	 	Title:   Vice President	 	 
	 
	 	 	 	 
	Name of Institution:	 	 
	 
	 	 	 	 
	HSBC Bank USA, National Association	 	 
	 
	 	 	 	 
	by

	 	/s/Adam Hendley	 	 
	 

	 	 	 	 
	 

	 	Name: Adam Hendley	 	 
	 

	 	Title:   Vice President	 	 
	 
	 	 	 	 
	Name of Institution:	 	 
	 
	 	 	 	 
	Sumitomo Mitsui Banking Corporation	 	 
	 
	 	 	 	 
	by

	 	/s/ Masakazu Hasegawa	 	 
	 

	 	 	 	 
	 

	 	Name: Masakazu Hasegawa	 	 
	 

	 	Title:   General Manager	 	 





 


 









 





	 	 	 	 	 
	Name of Institution:
	 
	 	 	 	 
	The Bank of Nova Scotia	 	 
	 
	 	 	 	 
	by

	 	/s/ Ray Clarke	 	 
	 

	 	 	 	 
	 

	 	Name: Ray Clarke	 	 
	 

	 	Title:   Managing Director	 	 
	 
	 	 	 	 
	For any Institution requiring a second signature line:
	 
	 	 	 	 
	by

	 	/s/ Ian Stephenson	 	 
	 

	 	 	 	 
	 

	 	Name: Ian Stephenson	 	 
	 

	 	Title:   Director	 	 
	 
	 	 	 	 
	Name of Institution:	 	 
	 
	 	 	 	 
	The Royal Bank of Scotland plc	 	 
	 
	 	 	 	 
	by

	 	/s/ Brian Williams	 	 
	 

	 	 	 	 
	 

	 	Name: Brian Williams	 	 
	 

	 	Title:   Authorized Signatory	 	 





 


 









 





	 	 	 	 	 
	Name of Institution:
	 
	 	 	 	 
	UBS Loan Finance LLC	 	 
	 
	 	 	 	 
	by

	 	/s/ Irja R. Otsa	 	 
	 

	 	 	 	 
	 

	 	Name: Irja R. Otsa	 	 
	 

	 	Title:   Associate Director	 	 
	 

	 	Banking Products	 	 
	 

	 	Services, US	 	 
	 
	 	 	 	 
	For any Institution requiring a second signature line:
	 
	 	 	 	 
	by

	 	/s/ Mary E. Evans	 	 
	 

	 	 	 	 
	 

	 	Name: Mary E. Evans	 	 
	 

	 	Title:   Associate Director	 	 
	 

	 	Banking Products	 	 
	 

	 	Services, US	 	 
	 
	 	 	 	 
	Name of Institution:	 	 
	 
	 	 	 	 
	Bank of Montreal, Chicago Branch	 	 
	 
	 	 	 	 
	by

	 	/s/ Joseph W. Linder	 	 
	 

	 	 	 	 
	 

	 	Name: Joseph W. Linder	 	 
	 

	 	Title:   Vice President	 	 





 


 









 





	 	 	 	 	 
	Name of Institution:
	 
	 	 	 	 
	BNP Paribas	 	 
	 
	 	 	 	 
	by 

	 	/s/ Claudia Zarate	 	 
	 

	 	 	 	 
	 

	 	Name: Claudia Zarate	 	 
	 

	 	Title:   Director	 	 
	 
	 	 	 	 
	For any Institution requiring a second signature line:	 	 
	 
	 	 	 	 
	by

	 	/s/ Francis J. Delaney	 	 
	 

	 	 	 	 
	 

	 	Name: Francis J. Delaney	 	 
	 

	 	Title:   Managing Director	 	 
	 
	 	 	 	 
	Name of Institution:	 	 
	 
	 	 	 	 
	Deutsche Bank AG New York Branch	 	 
	 
	 	 	 	 
	by 

	 	/s/ Philippe Sandmeier	 	 
	 

	 	 	 	 
	 

	 	Name: Philippe Sandmeier	 	 
	 

	 	Title:   Managing Director	 	 
	 
	 	 	 	 
	For any Institution requiring a second signature line:	 	 
	 
	 	 	 	 
	by

	 	/s/ Ming K. Chu	 	 
	 

	 	 	 	 
	 

	 	Name: Ming K. Chu	 	 
	 

	 	Title:   Vice President	 	 





 


 









 





	 	 	 	 	 
	Name of Institution:	 	 
	 
	 	 	 	 
	Australia and New Zealand Banking Group Limited	 	 
	 
	 	 	 	 
	by  

	/s/ John W. Wade	 	 
	 

	 	 	 
	 

	Name: 	John W. Wade	 	 
	 

	Title: 	Deputy General Manager
Head of Operations and Infrastructure	 	 







 


 











 



Schedule 1.01



Letters of Credit


	 	 	 	 	 	 	 	 	 	 	 	 	 
	Issuance Date	 	Borrower	 	Ref. No.	 	Amount	 	 	Exp. Date	 	Beneficiary
	June 24, 2004
	 	Newmont Mining Corporation	 	P-249319	 	$	3,643,300.00	 	 	June 24, 2011	 	Federal Insurance Company
	July 5, 2006
	 	Newmont Mining Corporation	 	TPTS-269643	 	$	1,700,000.00	 	 	June 30, 2011	 	GE Reinsurance Corporation f/k/a Kemper
	June 20, 2007
	 	Newmont Mining Corporation	 	TPTS-332423	 	$	1,600,000.00	 	 	April 29, 2012	 	XL Specialty Ins. Co. and/or Greenwich
	March 9, 2005
	 	Newmont Mining Corporation	 	TPTS-201566	 	$	5,203,500.00	 	 	September 12, 2011	 	CO Dept. of Public Health and Environ
	September 22, 2005
	 	Newmont Mining Corporation	 	TPTS-202273	 	$	226,600.00	 	 	September 22, 2011	 	CO Div. of Minerals and Geology
	February 17, 2006
	 	Newmont Mining Corporation	 	TPTS-234759	 	$	7,400,000.00	 	 	January 30, 2012	 	CO Div. of Minerals and Geology
	October 27, 2005
	 	Newmont Mining Corporation	 	TPTS-210555	 	$	71,000.00	 	 	October 27, 2011	 	NV Division of Environmental Protection
	February 4, 2008
	 	Newmont Mining Corporation	 	TPTS-333107	 	$	1,750,000.00	 	 	January 31, 2012	 	NV Division of Environmental Protection
	June 3, 2004
	 	Newmont Mining Corporation	 	P-248918	 	$	1,840,620.00	 	 	June 1, 2012	 	US Dept. of Interior, BLM
	August 9, 2004
	 	Newmont Mining Corporation	 	P-250162	 	$	25,391,056.00	 	 	August 13, 2011	 	US Dept. of Interior, BLM
	August 9, 2004
	 	Newmont Mining Corporation	 	P-250163	 	$	3,475,000.00	 	 	August 13, 2011	 	US Dept. of Interior, BLM
	August 9, 2004
	 	Newmont Mining Corporation	 	P-250164	 	$	178,915.00	 	 	August 13, 2011	 	US Dept. of Interior, BLM
	August 9, 2004
	 	Newmont Mining Corporation	 	P-250165	 	$	3,496,260.00	 	 	August 13, 2011	 	US Dept. of Interior, BLM
	August 9, 2004
	 	Newmont Mining Corporation	 	P-250166	 	$	422,953.00	 	 	August 13, 2011	 	US Dept. of Interior, BLM
	August 9, 2004
	 	Newmont Mining Corporation	 	P-250167	 	$	2,000,000.00	 	 	August 13, 2011	 	US Dept. of Interior, BLM
	September 15, 2004
	 	Newmont Mining Corporation	 	P-250738	 	$	1,000,000.00	 	 	September 15, 2011	 	US Dept. of Interior, BLM
	February 7, 2005
	 	Newmont Mining Corporation	 	P-620868	 	$	3,000,000.00	 	 	February 4, 2012	 	US Dept. of Interior, BLM
	March 9, 2005
	 	Newmont Mining Corporation	 	P-622833	 	$	500,000.00	 	 	March 10, 2012	 	US Dept. of Interior, BLM






 


 









 





	 	 	 	 	 	 	 	 	 	 	 	 	 
	Issuance Date	 	Borrower	 	Ref. No.	 	Amount	 	 	Exp. Date	 	Beneficiary
	September 21, 2005
	 	Newmont Mining Corporation	 	TPTS-203062	 	$	727,837.00	 	 	September 16, 2011	 	US Dept. of Interior, BLM
	September 21, 2005
	 	Newmont Mining Corporation	 	TPTS-203063	 	$	37,643,406.00	 	 	September 16, 2011	 	US Dept. of Interior, BLM
	September 21, 2005
	 	Newmont Mining Corporation	 	TPTS-203066	 	$	6,108,462.00	 	 	September 16, 2011	 	US Dept. of Interior, BLM
	September 21, 2005
	 	Newmont Mining Corporation	 	TPTS-203072	 	$	1,000,000.00	 	 	September 16, 2011	 	US Dept. of Interior, BLM
	September 21, 2005
	 	Newmont Mining Corporation	 	TPTS-203075	 	$	1,805,494.00	 	 	September 16, 2011	 	US Dept. of Interior, BLM
	September 21, 2005
	 	Newmont Mining Corporation	 	TPTS-203079	 	$	1,500,000.00	 	 	September 16, 2011	 	US Dept. of Interior, BLM
	September 21, 2005
	 	Newmont Mining Corporation	 	TPTS-203080	 	$	868,821.00	 	 	September 16, 2011	 	US Dept. of Interior, BLM
	September 21, 2005
	 	Newmont Mining Corporation	 	TPTS-203081	 	$	12,000.00	 	 	September 16, 2011	 	US Dept. of Interior, BLM
	February 14, 2006
	 	Newmont Mining Corporation	 	TPTS-236330	 	$	128,051.00	 	 	February 10, 2012	 	US Dept. of Interior, BLM
	March 14, 2006
	 	Newmont Mining Corporation	 	TPTS-245855	 	$	16,900.00	 	 	March 10, 2012	 	US Dept. of Interior, BLM
	May 20, 2010
	 	Newmont Mining Corporation	 	TFTS-844386	 	$	581,513.00	 	 	May 19, 2012	 	US Dept. of Interior, BLM
	May 20, 2010
	 	Newmont Mining Corporation	 	TFTS-844387	 	$	206,979.00	 	 	May 19, 2012	 	US Dept. of Interior, BLM
	July 7, 2010
	 	Newmont Mining Corporation	 	TFTS-843937	 	$	2,379,963.00	 	 	June 29, 2012	 	US Dept. of Interior, BLM
	February 7, 2011
	 	Newmont Mining Corporation	 	TFTS-909172	 	$	63,600,000.00	 	 	February 4, 2012	 	US Dept. of Interior, BLM
	September 26, 2008
	 	Newmont Mining Corporation	 	TPTS-690448	 	$	14,500,000.00	 	 	September 26, 2011	 	US EPA
	June 5, 2007
	 	Newmont Mining Corporation	 	SLCPPDX03880	 	$	1,866,977.00	 	 	June 5, 2011	 	NV Division of Environmental Protection
	June 5, 2007
	 	Newmont Mining Corporation	 	SLCPPDX03882	 	$	14,700,108.00	 	 	February 29, 2012	 	NV Division of Environmental Protection
	February 15, 2008
	 	Newmont Ghana	 	TPTS-348229	 	$	40,859,477.00	 	 	February 15, 2012	 	Ghana Environmental Protection Agency
	August 31, 2007
	 	Newmont Indonesian Limited	 	TPTS-389682	 	$	1,000,000.00	 	 	August 31, 2011	 	Zurich American Insurance Company
	December 5, 2006
	 	Newmont USA Ltd	 	TPTS-297641	 	$	31,900.00	 	 	November 29, 2011	 	US Dept. of Agriculture, Forest Service
	December 15, 2010
	 	Newmont USA Ltd  dba Newmont Mining Corporation	 	TFTS-895978	 	$	29,200.00	 	 	December 10, 2011	 	US Dept. of Agriculture, Forest Service
	February 3, 2010
	 	Newmont USA Ltd  dba Newmont Mining Corporation	 	TFTS-818348	 	$	381,098.00	 	 	January 12, 2012	 	US Dept. of Interior, BLM
	August 26, 2010
	 	Newmont USA Ltd  dba Newmont Mining Corporation	 	TFTS-868508	 	$	133,881.00	 	 	August 23, 2011	 	US Dept. of Interior, BLM






 


 









 





Schedule 2.01




Commitments




	 	 	 	 	 
	Lender	 	Allocation	 
	JPMorgan Chase Bank, N.A.
	 	$	160,000,000.00	 
	Citibank, N.A.
	 	$	140,000,000.00	 
	HSBC Bank USA, National Association
	 	$	140,000,000.00	 
	Sumitomo Mitsui Banking Corporation
	 	$	140,000,000.00	 
	The Bank of Nova Scotia
	 	$	140,000,000.00	 
	The Royal Bank of Scotland plc
	 	$	140,000,000.00	 
	UBS Loan Finance LLC
	 	$	140,000,000.00	 
	Bank of Montreal
	 	$	140,000,000.00	 
	BNP Paribas
	 	$	140,000,000.00	 
	Deutsche Bank AG New York Branch
	 	$	140,000,000.00	 
	Australia and New Zealand Banking Group Limited
	 	$	90,000,000.00	 
	Banco Bilbao Vizcaya Argentaria, S.A.
	 	$	90,000,000.00	 
	Bank of America, N.A.
	 	$	90,000,000.00	 
	Canadian Imperial Bank of Commerce
	 	$	90,000,000.00	 
	Commonwealth Bank of Australia
	 	$	90,000,000.00	 
	Credit Suisse AG, Cayman Islands Branch
	 	$	90,000,000.00	 
	Mizuho Corporate Bank, Ltd., New York Branch
	 	$	90,000,000.00	 
	Royal Bank of Canada
	 	$	90,000,000.00	 
	Societe Generale
	 	$	90,000,000.00	 
	The Bank of Tokyo-Mitsubishi UFJ, Ltd.
	 	$	90,000,000.00	 
	U.S. Bank National Association
	 	$	90,000,000.00	 
	Westpac Banking Corporation
	 	$	90,000,000.00	 
	TOTAL:
	 	$	2,500,000,000.00	 






 


 









 





Schedule 3.06




Disclosed Matters




Newmont Canada Limited (“Newmont Canada”) — 100% Newmont Owned




On November 11, 2008, St. Andrew Goldfields Ltd. (“St. Andrew”) filed an Application in the
Superior Court of Justice in Ontario, Canada, seeking a declaration to clarify St. Andrew’s royalty
obligations regarding certain mineral rights and property formerly owned by Newmont Canada and now
owned by St. Andrew.



Newmont Canada purchased the property, called the Holt-McDermott property (“Holt Property”), from
Barrick Gold Corporation (“Barrick”) in October 2004. At that time, Newmont Canada entered into a
royalty agreement with Barrick (the “Barrick Royalty”), allowing Barrick to retain a royalty on the
Holt Property. In August 2006, Newmont Canada sold all of its interests in the Holt Property to
Holloway Mining Company (“Holloway”) in exchange for common stock issued by Holloway. In September
2006, Newmont Canada entered into a purchase and sale agreement with St. Andrew (the “2006
Agreement”), under which St. Andrew acquired all the common stock of Holloway. In 2008, Barrick
sold its Barrick Royalty to Royal Gold, Inc. (“Royal Gold”).



In the court proceedings, St. Andrew alleged that in the 2006 Agreement it only agreed to assume
royalty obligations equal to 0.013% of net smelter returns from operations on the Holt Property.
Such an interpretation of the 2006 Agreement makes Newmont responsible for any royalties exceeding
that amount payable to Royal Gold pursuant to the Barrick Royalty, which is a royalty determined by
multiplying 0.00013 by the quarterly average gold price. On July 23, 2009, the Superior Court
issued a decision finding in favor of St. Andrews’ interpretation. On August 21, 2009, Newmont
Canada appealed the decision. On May 13, 2011, the Ontario Court of Appeal upheld the lower court
ruling, finding Newmont liable for the sliding scale royalty, which equals a 13% royalty at a
quarterly average gold price of $1,000, minus a 0.013% of net smelter returns. There is no cap on
the sliding scale royalty and it increases or decreases with the gold price, based upon the
multiplication of 0.00013 by the quarterly average gold price.



NWG Investments Inc. v. Fronteer Gold, Inc.



In April 2011, Newmont Mining Corporation (“Newmont”) acquired Fronteer Gold Inc. (“Fronteer”).
Fronteer has been named as a defendant in a lawsuit filed in New York State Supreme Court by an NWG
Investments Inc. (“NWG”).



Fronteer acquired NewWest Gold Corporation (“NewWest Gold”) in September 2007. At the time of that
acquisition, NWG owned approximately 86% of NewWest Gold and an individual named Jacob Safra owned
or controlled 100% of NWG. Prior to its acquisition of NewWest Gold, Fronteer entered into a June
2007 lock-up agreement with NWG providing that, among other things, NWG would support Fronteer’s
acquisition of NewWest Gold. At that time, Fronteer owned approximately 42% of Aurora Energy
Resources Inc. (“Aurora”), which, among other things, had a uranium exploration project in
Labrador, Canada.



NWG contends that, during the negotiations leading up to the lock-up agreement, Fronteer
represented to NWG that Aurora would commence uranium mining in Labrador by 2013, that this was a
firm date, that Fronteer was not aware of any obstacle to doing so, that Aurora faced no serious
environmental issues in Labrador and that Aurora’s competitors faced greater delays in commencing
uranium mining. NWG further contends that it entered into the lock-up agreement and agreed to
support Fronteer’s acquisition of NewWest Gold in reliance upon these purported representations.
On October 11, 2007, less than three weeks after the Fronteer-NewWest Gold transaction closed, a
member of the Nunatsiavut Assembly introduced a motion calling for the adoption of a moratorium on
uranium mining in Labrador. On April 8, 2008 the Nunatsiavut Assembly adopted a three-year
moratorium on uranium mining in Labrador. NWG contends that Fronteer was aware during the
negotiations of the NWG/Fronteer lock-up agreement that the Nunatsiavut Assembly planned on
adopting this moratorium and that its adoption would preclude Aurora from commencing uranium mining by 2013, but Fronteer nonetheless fraudulently induced NWG to enter
into the lock-up agreement.



NWG has not yet filed or served a complaint upon Fronteer or Newmont. Newmont intends to defend
this matter, but cannot reasonably predict the outcome.




 


 












 




Schedule 3.13




NEWMONT MINING CORPORATION AND SUBSIDIARIES




As of May 17, 2011




	 	 	 	 	 	 	 
	Name	 	State/Country of Incorporation	 	Ownership Percentage	 
	Newmont Mining Corporation
	 	Delaware, USA	 	 	 	 
	Dacia Exploration S.R.L.
	 	Romania	 	 	100	%
	Dafrico (Overseas) Ltd
	 	Cyprus	 	 	100	%
	Moydow Limited
	 	Ghana	 	 	100	%
	Newmont LaSource SAS
	 	France	 	 	16.9251	%
	N.I. Limited
	 	Bermuda	 	 	100	%
	Newmont Australia Holdings Pty Ltd
	 	Victoria, Australia	 	 	100	%
	Newmont Australia Pty Ltd
	 	Victoria, Australia	 	 	70.68	%
	National Shareholder Services Pty Ltd
	 	Western Australia	 	 	100	%
	Newmont AP Power Pty Ltd
	 	Western Australia	 	 	100	%
	Newmont Capital Pty Ltd
	 	New South Wales, Australia	 	 	100	%
	Pacific-Nevada Mining Pty Ltd
	 	Australian Capital Territory	 	 	100	%
	Newmont Landco Pty Ltd
	 	Western Australia	 	 	100	%
	Newmont Metals Pty Ltd
	 	Australian Capital Territory	 	 	100	%
	Newmont Golden Grove Operations Pty Ltd
	 	Western Australia	 	 	100	%
	Newmont Mining Finance Pty Ltd
	 	Australian Capital Territory	 	 	100	%
	Newmont Mining Holdings Pty Ltd
	 	South Australia	 	 	100	%
	Newmont Exploration Pty Ltd
	 	South Australia	 	 	100	%
	Newmont Gold Pty Ltd
	 	Western Australia	 	 	100	%
	GMK Investments Pty Ltd
	 	South Australia	 	 	100	%
	GMKI Pty Ltd
	 	Australia Capital Territory	 	 	100	%
	GPS Finance Pty Ltd
	 	Australia Capital Territory	 	 	100	%
	Newmont Power Pty Ltd
	 	South Australia	 	 	100	%
	NP Kalgoorlie Pty Ltd
	 	South Australia	 	 	100	%
	Goldfields Power Pty Ltd
	 	Western Australia	 	 	50	%
	Newmont Yandal Operations Pty Ltd
	 	Victoria, Australia	 	 	12.557	%
	Great Central Holdings Pty Ltd
	 	Victoria, Australia	 	 	100	%
	Eagle Mining Pty Ltd
	 	Western Australia	 	 	100	%
	Hunter Resources Pty Ltd
	 	Queensland, Australia	 	 	100	%
	Quotidian No. 117 Pty Ltd
	 	Victoria, Australia	 	 	100	%
	Matlock Mining Pty Ltd
	 	Western Australia	 	 	46.5	%
	Matlock Mining Pty Ltd
	 	Western Australia	 	 	53.5	%
	Australian Metals Corporation Pty Ltd
	 	Western Australia	 	 	100	%
	Great Central Mines Pty Ltd
	 	Western Australia	 	 	100	%
	Matlock Castellano Pty Ltd
	 	Western Australia	 	 	100	%
	Great Central Investments Pty Ltd
	 	Victoria, Australia	 	 	100	%
	Newmont Wiluna Mines Pty Ltd
	 	Western Australia	 	 	100	%
	Newmont Wiluna Gold Pty Ltd
	 	Queensland, Australia	 	 	100	%
	Newmont Wiluna Metals Pty Ltd
	 	Western Australia	 	 	100	%
	Newmont Finance Pty Ltd
	 	South Australia	 	 	100	%
	Newmont GMK Holdings Pty Ltd
	 	Western Australia	 	 	100	%
	Kalgoorlie Lake View Pty Ltd
	 	Victoria, Australia	 	 	100	%
	Norkal Pty Ltd
	 	Western Australia	 	 	100	%
	Macapa Pty Ltd
	 	Western Australia	 	 	100	%
	North Kalgurli Mines Pty Ltd
	 	Western Australia	 	 	100	%
	Newmont GRPL Pty Ltd
	 	Western Australia	 	 	100	%
	Newmont Gold Exploration Pty Ltd
	 	Western Australia	 	 	100	%
	Newmont Gold Marketing & Finance Pty Ltd
	 	South Australia	 	 	100	%
	Australian Gold Alliance Pty Ltd
	 	South Australia	 	 	100	%
	Newmont Gold Treasury Pty Ltd
	 	South Australia	 	 	100	%
	Newmont Group Finance Pty Ltd
	 	South Australia	 	 	100	%






 


1









 





	 	 	 	 	 	 	 
	Name	 	State/Country of Incorporation	 	Ownership Percentage	 
	Newmont NGL Holdings Pty Ltd
	 	Northern Territory, Australia	 	 	100	%
	Newmont Boddington Holdings Pty Ltd
	 	South Australia	 	 	100	%
	Newmont Boddington Investments Pty Ltd
	 	South Australia	 	 	100	%
	Newmont Boddington Pty Ltd
	 	South Australia	 	 	100	%
	Newmont Boddington Gold Pty Ltd
	 	Western Australia	 	 	100	%
	Newmont Kaltails Pty Ltd
	 	Victoria, Australia	 	 	100	%
	Newmont Pajingo Pty Ltd
	 	Western Australia	 	 	100	%
	Newmont Tanami Pty Ltd
	 	South Australia	 	 	57.39	%
	Otter Gold Mines Pty Ltd
	 	Victoria, Australia	 	 	100	%
	Otter Gold Pty Ltd
	 	New South Wales, Australia	 	 	100	%
	Wirralie Gold Mines Pty Ltd
	 	Queensland, Australia	 	 	100	%
	Newmont Pacific Energy Pty Ltd
	 	New South Wales, Australia	 	 	100	%
	Yandal Gold Holdings Pty Ltd
	 	Australian Capital Territory	 	 	100	%
	Yandal Gold Pty Ltd
	 	Western Australia	 	 	100	%
	Newmont Yandal Operations Pty Ltd
	 	Victoria, Australia	 	 	59.6361	%
	Newmont International Exploration Pty Ltd
	 	South Australia	 	 	100	%
	Newmont Asia Pty Ltd
	 	South Australia	 	 	100	%
	Kepala Burung Offshore Pty Ltd
	 	Victoria, Australia	 	 	36.11	%
	Newmont International Holdings Pty Ltd
	 	South Australia	 	 	100	%
	Newmont Mining Services Pty Ltd
	 	South Australia	 	 	100	%
	Newmont Australia Superannuation Plan Pty Ltd
	 	South Australia	 	 	50	%
	Newmont Pacific Pty Ltd
	 	New South Wales, Australia	 	 	100	%
	Newmont Tanami Pty Ltd
	 	South Australia	 	 	42.61	%
	Newmont Woodcutters Pty Ltd
	 	New South Wales, Australia	 	 	100	%
	Newmont Yandal Operations Pty Ltd
	 	Victoria, Australia	 	 	27.8069	%
	Newmont Capital Limited
	 	Nevada, USA	 	 	88.65	%
	Fronteer Development (USA) Inc.
	 	Delaware, USA	 	 	89	%
	Newmont USA Limited
	 	Delaware, USA	 	 	100	%
	Balkhash Mining and Exploration Inc.
	 	Delaware, USA	 	 	100	%
	Battle Mountain Gold Company
	 	Nevada, USA	 	 	100	%
	Battle Mountain Exploration Company
	 	Texas, USA	 	 	100	%
	Battle Mountain (Irian Jaya) Ltd.
	 	Nevada, USA	 	 	100	%
	Battle Mountain Resources Inc.
	 	Nevada, USA	 	 	100	%
	Minera BMG
	 	Nevada, USA	 	 	100	%
	Minera Choluteca S.A. de C.V.
	 	Honduras	 	 	50	%
	Newmont Australia Investment Limited
	 	Delaware, USA	 	 	100	%
	Newmont Bolivia Limited
	 	Nevada, USA	 	 	100	%
	Empresa Minera La Joya S.R.L.
	 	Bolivia	 	 	75.5	%
	Newmont Canada Corporation
	 	Nova Scotia, Canada	 	 	11.76	%
	PT Newmont Minahasa Raya
	 	Indonesia	 	 	80	%
	Silidor Mines Inc.
	 	Quebec	 	 	100	%
	Newmont McCoy Cove Limited
	 	Nevada, USA	 	 	100	%
	Newmont Nova Scotia ULC
	 	Nova Scotia, Canada	 	 	100	%
	Newmont Canada Corporation
	 	Nova Scotia, Canada	 	 	.98	%
	Canmont Mining Properties Limited
	 	Delaware, USA	 	 	100	%
	Newmont Global Employment Limited Partnership
	 	Bermuda	 	 	1	%
	Dawn Mining Company LLC
	 	Delaware, USA	 	 	51	%
	Elko Land and Livestock Company
	 	Nevada, USA	 	 	100	%
	G.F. Holdings B.V.
	 	Netherlands	 	 	100	%
	Hospah Coal Company
	 	Delaware	 	 	100	%
	Idarado Mining Company
	 	Delaware, USA	 	 	100	%
	Idarado Legacy, LLC
	 	Colorado, USA	 	 	80	%
	Minera Newmont (Chile) Limitada
	 	Chile	 	 	99	%
	New Verde Mines LLC
	 	Delaware, USA	 	 	100	%
	Newmont de Mexico S.A. de C.V.
	 	Mexico	 	 	99	%
	Newmont Global Employment Limited
	 	Bermuda	 	 	99	%






 


2









 





	 	 	 	 	 	 	 
	Name	 	State/Country of Incorporation	 	Ownership Percentage	 
	Newmont Gold Company
	 	Delaware, USA	 	 	100	%
	Newmont GTR LLC
	 	Nevada, USA	 	 	100	%
	Newmont Indonesia Investment Limited
	 	Delaware, USA	 	 	100	%
	Newmont Indonesia Limited
	 	Delaware, USA	 	 	100	%
	Newmont Nusa Tenggara Holdings B.V.
	 	Netherlands	 	 	100	%
	Nusa Tenggara Partnership B.V.
	 	Netherlands	 	 	56.25	%
	PT Newmont Nusa Tenggara
	 	Indonesia	 	 	56	%
	Nusa Tenggara Partnership
	 	Netherlands	 	 	56.25	%
	PT Bhinneka Investama Indonesia
	 	Indonesia	 	 	27.56	%
	PT Investama Utama Indonesia
	 	Indonesia	 	 	51	%
	PT Investama Utama Indonesia
	 	Indonesia	 	 	27.56	%
	Newmont International Services Limited
	 	Delaware, USA	 	 	100	%
	PT Newmont Pacific Nusantara
	 	Indonesia	 	 	1	%
	Newmont Kazakhstan Gold Limited
	 	Delaware, USA	 	 	100	%
	Newmont Latin America Limited
	 	Delaware, USA	 	 	100	%
	Minera Los Tapados S.A.
	 	Peru	 	 	.0144	%
	Minera Newmont (Chile) Limitada
	 	Chile	 	 	1	%
	Newmont de Mexico S.A. de C.V.
	 	Mexico	 	 	1	%
	Newmont Midas Holdings Limited
	 	Nevada, USA	 	 	90.9	%
	Newmont Midas Operations Inc.
	 	Nevada, USA	 	 	100	%
	Newmont Nevada Energy Investment LLC
	 	Delaware, USA	 	 	100	%
	Newmont NL Limited
	 	Delaware, USA	 	 	100	%
	Newmont North America Exploration Limited
	 	Delaware, USA	 	 	100	%
	Newmont Overseas Exploration Limited
	 	Delaware, USA	 	 	100	%
	PT Newmont Pacific Nusantara
	 	Indonesia	 	 	99	%
	Suriname Gold Company, LLC
	 	Delaware, USA	 	 	50	%
	Newmont Peru Limited
	 	Delaware, USA	 	 	100	%
	Minera Chaupiloma Dos de Cajamarca S.R.L.
	 	Peru	 	 	40	%
	Minera Los Tapados S.A.
	 	Peru	 	 	99.9856	 
	Newmont Investment Holdings LLC
	 	Delaware, USA	 	 	100	%
	Newmont Perú S.R.L.
	 	Peru	 	 	.00026	%
	Newmont Perú S.R.L.
	 	Peru	 	 	99.99974	%
	Newmont Realty Company
	 	Delaware, USA	 	 	100	%
	Newmont Russia Limited
	 	Delaware, USA	 	 	100	%
	Newmont Second Capital Corporation
	 	Delaware, USA	 	 	100	%
	Minera Yanacocha S.R.L.
	 	Peru	 	 	51.35	%
	Newmont Mines Limited
	 	Delaware, USA	 	 	100	%
	Newmont Technologies Limited
	 	Nevada, USA	 	 	100	%
	Newmont (Uzbekistan) Limited
	 	Cyprus	 	 	60	%
	Resurrection Mining Company
	 	Delaware, USA	 	 	100	%
	San Juan Basin Coal Holding Company
	 	Delaware, USA	 	 	100	%
	Santa Fe Pacific Gold Corporation
	 	Delaware, USA	 	 	100	%
	Yandal Bond Company Limited
	 	Delaware, USA	 	 	100	%
	Newmont Australia Pty Ltd
	 	Victory, Australia	 	 	13.14	%
	Newmont FH B.V.
	 	Netherlands	 	 	100	%
	Fronteer de Mexico S.A. de C.V.
	 	Mexico	 	 	100	%
	Fronteer Holdings Inc.
	 	Cayman Islands	 	 	100	%
	Newmont Canada Holdings ULC
	 	British Columbia, Canada	 	 	100	%
	Fronteer Development (USA) Inc.
	 	Delaware, USA	 	 	11	%
	Fronteer Development LLC
	 	Delaware, USA	 	 	100	%
	Fronteer Royalty LLC
	 	Delaware, USA	 	 	100	%
	Nevada Eagle Resources LLC
	 	Nevada, USA	 	 	100	%
	Pittston Nevada Gold Corp.
	 	Nevada, USA	 	 	100	%
	Newmont Holdings ULC
	 	Nova Scotia, Canada	 	 	1	%
	Newmont Holdings ULC
	 	Nova Scotia, Canada	 	 	99	%






 


3









 





	 	 	 	 	 	 	 
	Name	 	State/Country of Incorporation	 	Ownership Percentage	 
	Newmont Mining Corporation of Canada Limited
	 	Canada	 	 	100	%
	1461160 Alberta Ltd.
	 	Alberta, Canada	 	 	50	%
	Butterpot Resources ULC
	 	British Columbia, Canada	 	 	100	%
	Newmont Australia Pty Ltd
	 	Western Australia	 	 	16.18	%
	Newmont Canada Corporation
	 	Nova Scotia, Canada	 	 	88.24	%
	Newmont Northern Mining ULC
	 	British Columbia, Canada	 	 	100	%
	Miramar Gold Corporation
	 	Nevada, USA	 	 	100	%
	Miramar Northern Mining Ltd.
	 	British Columbia, Canada	 	 	100	%
	Con Exploration Ltd.
	 	British Columbia, Canada	 	 	100	%
	Hope Bay Mining Ltd.
	 	British Columbia, Canada	 	 	100	%
	Miramar HBG Inc.
	 	Quebec, Canada	 	 	100	%
	Vol Mines Ltd.
	 	British Columbia, Canada	 	 	100	%
	Newmont Mining B.C. ULC
	 	British Columbia, Canada	 	 	100	%
	Newmont Capital Limited
	 	Nevada, USA	 	 	11.35	%
	Orcana Resources Inc.
	 	Nevada, USA	 	 	100	%
	Talapoosa Mining Inc.
	 	Nevada, USA	 	 	100	%
	Newmont LaSource SAS
	 	France	 	 	16.7001	%
	Euronimba Ltd
	 	Jersey, U.K.	 	 	43.5	%
	Societe Des Mines de Fer de Guinee
	 	Guinea	 	 	95	%
	Gold Discovery Company
	 	Cayman Islands	 	 	55	%
	Newmont Golden Ridge Limited
	 	Ghana	 	 	100	%
	Newmont Ghana Gold Limited
	 	Ghana	 	 	100	%
	Societe Miniere de Sabodala
	 	Senegal	 	 	50.6	%
	Newmont Mineral Holdings B.V.
	 	Netherlands	 	 	100	%
	European Gold Refineries Holding SA
	 	Switzerland	 	 	60.64	%
	Finorafa S.A.
	 	Switzerland	 	 	100	%
	Valcambi S.A.
	 	Switzerland	 	 	100	%
	Newmont Ventures Limited
	 	Delaware	 	 	100	%
	Newmont (Guyana) Incorporated
	 	Guyana	 	 	100	%
	NVL (Guinée) SARL
	 	Guinea	 	 	100	%
	NVL (USA) Limited
	 	Delaware	 	 	100	%
	NVL Caucasus Limited LLC
	 	Armenia	 	 	100	%
	NVL Haiti Limited S.A.
	 	Haiti	 	 	100	%
	NVL PNG Limited
	 	Papua New Guinea	 	 	100	%
	NVL Saramacca Mining LLC
	 	Delaware	 	 	100	%
	NVL Solomon Islands Limited
	 	Solomon Islands	 	 	100	%
	Saddleback Investments Pty Ltd
	 	Western Australia	 	 	100	%
	Newmont Waihi Gold Limited
	 	New Zealand	 	 	100	%
	Waihi Gold Company Limited
	 	New Zealand	 	 	100	%
	Newmont (Uzbekistan) Limited
	 	Cyprus	 	 	40	%
	Normandy Overseas Holding Company Sdn Bhd
	 	Malaysia	 	 	100	%
	Normandy Company (Malaysia) Sdn Bhd
	 	Malaysia	 	 	100	%
	Newmont International Group BV
	 	Netherlands	 	 	100	%
	Newmont Latin America Inc.
	 	Canada	 	 	100	%
	Newmont LaSource SAS
	 	France	 	 	66.3748	%







 


4












 




Schedule 6.02


EXISTING LIENS




The Liens securing the following Indebtedness are in existence on the effective date:



	 	 	 	 	 
	Leaseback of the Refractory Ore Treatment Plant
	 	 	169,365,711	 
	Ahafo IFC Project Financing
	 	 	59,999,993	 






PENDING LIENS




	 	 	 	 	 
	Minera Yanacocha Project Financing
	 	 	2,500,000,000	 
	PTNNT Project Financing
	 	 	600,000,000	 







 














 





EXHIBIT A




[FORM OF] ASSIGNMENT AND ACCEPTANCE




Reference is made to the Credit Agreement dated as of May 20, 2011 (as amended, supplemented,
waived or otherwise modified from time to time, the “Credit Agreement”), among Newmont
Mining Corporation, the Lenders from time to time party thereto, JPMorgan Chase Bank, N.A., as
Administrative Agent, Citibank, N.A., HSBC Bank USA, National Association, Sumitomo Mitsui Banking
Corporation, The Bank of Nova Scotia, The Royal Bank of Scotland plc and UBS Loan Finance LLC, as
Co-Syndication Agents, and Bank of Montreal, BNP Paribas and Deutsche Bank AG New York Branch, as
Co-Documentation Agents. Capitalized terms used but not defined herein shall have the meanings
specified in the Credit Agreement.



1. The Assignor named below hereby sells and assigns, without recourse, to the Assignee named
below and the Assignee hereby purchases and assumes, without recourse, from the Assignor, effective
as of the Assignment Date set forth below, the interests set forth below (the “Assigned
Interest”) in the Assignor’s rights and obligations under the Credit Agreement, including,
without limitation, the interests set forth below in the Commitments of the Assignor on the
Assignment Date and the Loans owing to the Assignor which are outstanding on the Assignment Date.
The Assignor represents and warrants that it is the legal and beneficial owner of the interests
being assigned by it hereunder and that such interests are free and clear of any Liens. The
Assignee hereby acknowledges receipt of a copy of the Credit Agreement. From and after the
Assignment Date (i) the Assignee shall be a party to and be bound by the provisions of the Credit
Agreement and, to the extent of the interests assigned by this Assignment and Acceptance, have the
rights and obligations of a Lender thereunder and (ii) the Assignor shall, to the extent of the
interests assigned by this Assignment and Acceptance, relinquish its rights and be released from
its obligations under the Credit Agreement.



2. This Assignment and Acceptance is being delivered to the Administrative Agent together
with (i) to the extent required, any documentation required to be delivered by the Assignee
pursuant to Section 2.17(f) of the Credit Agreement, (ii) if the Assignee is not already a Lender
under the Agreement, an Administrative Questionnaire in the form provided by the Administrative
Agent and (iii) a processing and recordation fee in the amount of $3,500.



3. This Assignment and Acceptance shall be governed by and construed in accordance with the
laws of the State of New York.



Date of Assignment:



Legal Name of Assignor:



Legal Name of Assignee:



Assignee’s Address for Notices:



Form of Assignment and Acceptance





 


A-1









 







Effective Date of Assignment (“Assignment Date”):




	 	 	 	 	 	 	 	 	 
	 	 	 	 	 	 	Percentage Assigned	 
	 	 	 	 	 	 	of Commitment	 
	 	 	 	 	 	 	(set forth, to at least	 
	 	 	Principal Amount	 	 	8 decimals, as a	 
	 	 	Assigned (and	 	 	percentage of the	 
	 	 	identifying information	 	 	aggregate Commitments	 
	 	 	as to individual	 	 	of all Lenders	 
	Facility	 	Competitive Loans)	 	 	thereunder)	 
	 
	 	 	 	 	 	 	 	 
	Commitment Assigned
	 	$	 	 	 	 	 	%
	 
	 	 	 	 	 	 	 	 
	Revolving Loans Assigned
	 	 	 	 	 	 	 	 
	 
	 	 	 	 	 	 	 	 
	Competitive Loans
Assigned
	 	 	 	 	 	 	 	 
	 
	 	 	 	 	 	 	 	 
	Swingline Obligations
Assigned
	 	 	 	 	 	 	 	 






The terms set forth herein are hereby agreed to:



	 	 	 	 	 	 	 	 	 
	___________________, as Assignor,	 	Consented to (if required)	 	 
	 
				 	NEWMONT MINING CORPORATION,	 	 
	 
	 	 	 	 	 	 	 	 
	by

	 	 	 	by	 	 	 	 
	 

	 	 

Name:
	 	 
	 	 

Name:
	 	 
	 

	 	Title:
	 	 	 	Title:	 	 






Form of Assignment and Acceptance




 


A-2









 







	 	 	 	 	 	 	 	 	 
	____________________, as Assignee,	 	Consented to (if required):	 	 
	 
	 	 	 	 	 	 	 	 
	 	 	 	 	JPMORGAN CHASE BANK, N.A., as Administrative Agent	 	 
	 
	 	 	 	 	 	 	 	 
	by

	 	 	 	by	 	 	 	 
	 

	 	 

Name:
	 	 
	 	 

Name:
	 	 
	 

	 	Title
	 	 	 	Title	 	 
	 
	 	 	 	 	 	 	 	 
	 	 	 	 	Consented to (if required):	 	 
	 
	 	 	 	 	 	 	 	 
	 	 	 	 	[          ], as	 	 
	 	 	 	 	an Issuing Bank	 	 
	 
	 	 	 	 	 	 	 	 
	 

	 	 	 	by	 	 	 	 
	 

	 	 	 	 	 	 

Name:
	 	 
	 

	 	 	 	 	 	Title	 	 






Form of Assignment and Acceptance




 


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EXHIBIT B




[FORM OF] ASSUMPTION AGREEMENT





[name of surviving corporation], a ______ corporation (the “Surviving
Corporation”), the surviving corporation of the merger of Newmont Mining Corporation, a
Delaware corporation (the “Company”), with and into the Surviving Corporation, hereby
expressly assumes all rights, obligations and liabilities of the Company under the Credit Agreement
dated as of May 20, 2011 (as amended, supplemented, waived or otherwise modified from time to time,
the “Credit Agreement”), among Newmont Mining Corporation, the Lenders from time to time
party thereto, JPMorgan Chase Bank, N.A., as Administrative Agent, Citibank, N.A., HSBC Bank USA,
National Association, Sumitomo Mitsui Banking Corporation, The Bank of Nova Scotia, The Royal Bank
of Scotland plc and UBS Loan Finance LLC, as Co-Syndication Agents, and Bank of Montreal, BNP
Paribas and Deutsche Bank AG New York Branch, as Co-Documentation Agents, and any promissory notes.
From and after the date hereof, all references in the Credit Agreement and any promissory notes to
the Company (except historical references in the representations and warranties which should
continue to apply to the Company) shall be deemed to be references to the Surviving Corporation,
which shall hereafter be a Borrower for all purposes of the Credit Agreement and any promissory
notes.



IN WITNESS WHEREOF, the Surviving Corporation has caused its duly authorized officer to
execute and deliver this Assumption Agreement as of ______, 20[ ] which is the
date of the merger referred to above.



	 	 	 	 	 	 	 
	 	 	[NAME OF SURVIVING CORPORATION]	 	 
	 
	 	 	 	 	 	 
	 

	 	By	 	 	 	 
	 

	 	 	 	 

Name:
	 	 
	 

	 	 	 	Title:	 	 






Form of Assumption Agreement





 


B-1









 







EXHIBIT C




[FORM OF]

U.S. TAX CERTIFICATE




(For Non-U.S. Lenders That Are Not Partnerships For U.S. Federal Income Tax Purposes)




Reference is made to the Credit Agreement dated as of May 20, 2011 (as amended, supplemented,
waived or otherwise modified from time to time, the “Credit Agreement”), among Newmont
Mining Corporation, the Lenders from time to time party thereto, JPMorgan Chase Bank, N.A., as
Administrative Agent, Citibank, N.A., HSBC Bank USA, National Association, Sumitomo Mitsui Banking
Corporation, The Bank of Nova Scotia, The Royal Bank of Scotland plc and UBS Loan Finance LLC, as
Co-Syndication Agents, and Bank of Montreal, BNP Paribas and Deutsche Bank AG New York Branch, as
Co-Documentation Agents.



Pursuant to the provisions of Section 2.17 of the Credit Agreement, the undersigned hereby
certifies that (i) it is the sole record and beneficial owner of the Loan(s) (as well as any
Note(s) evidencing such Loan(s)) in respect of which it is providing this certificate, (ii) it is
not a bank within the meaning of Section 881(c)(3)(A) of the Code, (iii) it is not a 10-percent
shareholder of the Borrower within the meaning of Section 871(h)(3)(B) of the Code, (iv) it is not
a controlled foreign corporation related to the Borrower as described in Section 881(c)(3)(C) of
the Code and (v) all interest payments made under any Loan Document are not effectively connected
with the undersigned’s conduct of a U.S. trade or business.



The undersigned has furnished the Administrative Agent and the Borrower with a certificate of
its non-U.S. person status on IRS Form W-8BEN. By executing this certificate, the undersigned
agrees that (1) if the information provided on this certificate changes, the undersigned shall
promptly so inform the Borrower and the Administrative Agent and (2) the undersigned shall have at
all times furnished the Borrower and the Administrative Agent with a properly completed and
currently effective certificate in either the calendar year in which each payment is to be made to
the undersigned, or in either of the two calendar years preceding such payments.



Unless otherwise defined herein, terms defined in the Credit Agreement and used herein shall
have the meanings given to them in the Credit Agreement.



	 	 	 	 	 
	[NAME OF LENDER]	 	 
	 
	 	 	 	 
	By:
	 	 	 	 
	 

	 	 

Name:
	 	 
	 

	 	Title:	 	 






Date: ________ __, 20[ ]




Form of U.S. Tax Certificate




 


C-1









 







[FORM OF]

U.S. TAX CERTIFICATE

(For Non-U.S. Lenders That Are Partnerships For U.S. Federal Income Tax Purposes)




Reference is made to the Credit Agreement dated as of May 20, 2011 (as amended, supplemented,
waived or otherwise modified from time to time, the “Credit Agreement”), among Newmont
Mining Corporation, the Lenders from time to time party thereto, JPMorgan Chase Bank, N.A., as
Administrative Agent, Citibank, N.A., HSBC Bank USA, National Association, Sumitomo Mitsui Banking
Corporation, The Bank of Nova Scotia, The Royal Bank of Scotland plc and UBS Loan Finance LLC, as
Co-Syndication Agents, and Bank of Montreal, BNP Paribas and Deutsche Bank AG New York Branch, as
Co-Documentation Agents.



Pursuant to the provisions of Section 2.17 of the Credit Agreement, the undersigned hereby
certifies that (i) it is the sole record owner of the Loan(s) (as well as any Note(s) evidencing
such Loan(s)) in respect of which it is providing this certificate, (ii) its partners/members are
the sole beneficial owners of such Loan(s) (as well as any Note(s) evidencing such Loan(s)), (iii)
with respect to the extension of credit pursuant to this Credit Agreement, neither the undersigned
nor any of its partners/members is a bank extending credit pursuant to a loan agreement entered
into in the ordinary course of its trade or business within the meaning of Section 881(c)(3)(A) of
the Code, (iv) none of its partners/members is a 10-percent shareholder of the Borrower within the
meaning of Section 871(h)(3)(B) of the Code, (v) none of its partners/members is a controlled
foreign corporation related to the Borrower as described in Section 881(c)(3)(C) of the Code, and
(vi) all interest payments made under any Loan Document are not effectively connected with the
undersigned’s or its partners’/members’ conduct of a U.S. trade or business.



The undersigned has furnished the Administrative Agent and the Borrower with IRS Form W-8IMY
accompanied by an IRS Form W-8BEN from each of its partners/members claiming the portfolio interest
exemption. By executing this certificate, the undersigned agrees that (1) if the information
provided on this certificate changes, the undersigned shall promptly so inform the Borrower and the
Administrative Agent and (2) the undersigned shall have at all times furnished the Borrower and the
Administrative Agent with a properly completed and currently effective certificate in either the
calendar year in which each payment is to be made to the undersigned, or in either of the two
calendar years preceding such payments.



Unless otherwise defined herein, terms defined in the Credit Agreement and used herein shall
have the meanings given to them in the Credit Agreement.



	 	 	 	 	 
	[NAME OF LENDER]	 	 
	 
	 	 	 	 
	By:
	 	 	 	 
	 

	 	 

Name:
	 	 
	 

	 	Title:	 	 






Date: ________ __, 20[ ]




Form of U.S. Tax Certificate





 


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[FORM OF]

U.S. TAX CERTIFICATE

(For Non-U.S. Participants That Are Not Partnerships For U.S. Federal Income Tax Purposes)




Reference is made to the Credit Agreement dated as of May 20, 2011 (as amended, supplemented,
waived or otherwise modified from time to time, the “Credit Agreement”), among Newmont
Mining Corporation, the Lenders from time to time party thereto, JPMorgan Chase Bank, N.A., as
Administrative Agent, Citibank, N.A., HSBC Bank USA, National Association, Sumitomo Mitsui Banking
Corporation, The Bank of Nova Scotia, The Royal Bank of Scotland plc and UBS Loan Finance LLC, as
Co-Syndication Agents, and Bank of Montreal, BNP Paribas and Deutsche Bank AG New York Branch, as
Co-Documentation Agents.



Pursuant to the provisions of Section 2.17 of the Credit Agreement, the undersigned hereby
certifies that (i) it is the sole record and beneficial owner of the participation in respect of
which it is providing this certificate, (ii) it is not a bank within the meaning of Section
881(c)(3)(A) of the Code, (iii) it is not a 10-percent shareholder of the Borrower within the
meaning of Section 871(h)(3)(B) of the Code, (iv) it is not a controlled foreign corporation
related to the Borrower as described in Section 881(c)(3)(C) of the Code, and (v) all interest
payments made under any Loan Document are not effectively connected with the undersigned’s conduct
of a U.S. trade or business.



The undersigned has furnished its participating Lender with a certificate of its non-U.S.
person status on IRS Form W-8BEN. By executing this certificate, the undersigned agrees that (1)
if the information provided on this certificate changes, the undersigned shall promptly so inform
such Lender in writing and (2) the undersigned shall have at all times furnished such Lender with a
properly completed and currently effective certificate in either the calendar year in which each
payment is to be made to the undersigned, or in either of the two calendar years preceding such
payments.



Unless otherwise defined herein, terms defined in the Credit Agreement and used herein shall
have the meanings given to them in the Credit Agreement.



	 	 	 	 	 
	[NAME OF LENDER]	 	 
	 
	 	 	 	 
	By:
	 	 	 	 
	 

	 	 

Name:
	 	 
	 

	 	Title:	 	 






Date: ________ __, 20[ ]




Form of U.S. Tax Certificate





 


C-3









 







[FORM OF]

U.S. TAX CERTIFICATE

(For Non-U.S. Participants That Are Partnerships For U.S. Federal Income Tax Purposes)




Reference is made to the Credit Agreement dated as of May 20, 2011 (as amended, supplemented,
waived or otherwise modified from time to time, the “Credit Agreement”), among Newmont
Mining Corporation, the Lenders from time to time party thereto, JPMorgan Chase Bank, N.A., as
Administrative Agent, Citibank, N.A., HSBC Bank USA, National Association, Sumitomo Mitsui Banking
Corporation, The Bank of Nova Scotia, The Royal Bank of Scotland plc and UBS Loan Finance LLC, as
Co-Syndication Agents, and Bank of Montreal, BNP Paribas and Deutsche Bank AG New York Branch, as
Co-Documentation Agents.



Pursuant to the provisions of Section 2.17 of the Credit Agreement, the undersigned hereby
certifies that (i) it is the sole record owner of the participation in respect of which it is
providing this certificate, (ii) its partners/members are the sole beneficial owners of such
participation, (iii) with respect such participation, neither the undersigned nor any of its
partners/members is a bank extending credit pursuant to a loan agreement entered into in the
ordinary course of its trade or business within the meaning of Section 881(c)(3)(A) of the Code,
(iv) none of its partners/members is a 10-percent shareholder of the Borrower within the meaning of
Section 871(h)(3)(B) of the Code, (v) none of its partners/members is a controlled foreign
corporation related to the Borrower as described in Section 881(c)(3)(C) of the Code, and (vi) all
interest payments made under any Loan Document are not effectively connected with the undersigned’s
or its partners’/members’ conduct of a U.S. trade or business.



The undersigned has furnished its participating Lender with IRS Form W-8IMY accompanied by an
IRS Form W-8BEN from each of its partners/members claiming the portfolio interest exemption. By
executing this certificate, the undersigned agrees that (1) if the information provided on this
certificate changes, the undersigned shall promptly so inform such Lender and (2) the undersigned
shall have at all times furnished such Lender with a properly completed and currently effective
certificate in either the calendar year in which each payment is to be made to the undersigned, or
in either of the two calendar years preceding such payments.



Unless otherwise defined herein, terms defined in the Credit Agreement and used herein shall
have the meanings given to them in the Credit Agreement.



	 	 	 	 	 
	[NAME OF PARTICIPANT]	 	 
	 
	 	 	 	 
	By:
	 	 	 	 
	 

	 	 

Name:
	 	 
	 

	 	Title:	 	 






Date: ________ __, 20[ ]




Form of U.S. Tax Certificate




 


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EXHIBIT D




[FORM OF]





GUARANTEE AGREEMENT (as amended, supplemented or otherwise modified from
time to time, this “Agreement”), among NEWMONT USA LIMITED (the
“Guarantor”) and JPMORGAN CHASE BANK, N.A., as Administrative Agent.



Reference is made to the Credit Agreement dated as of May 20, 2011 (as amended, supplemented
or otherwise modified from time to time, the “Credit Agreement”), among Newmont Mining
Corporation (the “Borrower”), the Lenders from time to time party thereto and JPMorgan
Chase Bank, N.A., as Administrative Agent (the “Administrative Agent”).



The Lenders have agreed to extend credit to the Borrower subject to the terms and conditions
set forth in the Credit Agreement. The Guarantor will derive substantial benefits from the
extension of credit to the Borrower pursuant to the Credit Agreement and is willing to execute and
deliver this Agreement in order to induce the Lenders to continue to extend such credit.
Accordingly, the parties hereto agree as follows:



SECTION 1. Definitions. (a) Capitalized terms used in this Agreement and not
otherwise defined herein have the meanings specified in the Credit Agreement.



(b) The rules of construction specified in Section 1.03 of the Credit Agreement also apply to
this Agreement.



SECTION 2. Guarantee. (a) The Guarantor hereby irrevocably and unconditionally
guarantees, as a primary obligor and not merely as a surety, the Obligations of the Borrower. The
Guarantor further agrees that the due and punctual payment of the Obligations of the Borrower may
be extended or renewed, in whole or in part, without notice to or further assent from it, and that
it will remain bound upon its guarantee hereunder notwithstanding any such extension or renewal of
any Obligation.



(b) The Guarantor waives presentment to, demand of payment from and protest to the Borrower
of any of the Obligations, and also waives notice of acceptance of its obligations and notice of
protest for nonpayment. The obligations of the Guarantor hereunder shall not be affected by (i)
the failure of any Lender to assert any claim or demand or to enforce any right or remedy against
the Borrower under the provisions of this Agreement, any Loan Document or otherwise; (ii) any
extension or renewal of any of the Obligations; (iii) any rescission, waiver, amendment or
modification of, or release from, any of the terms or provisions of this Agreement or any Loan
Document or other agreement; (iv) the failure or delay of any Lender to exercise any right or
remedy against any other guarantor of the Obligations; (v) the failure of any Lender to assert any
claim or demand or to enforce any remedy under any Loan Document or any other agreement or
instrument; (vi) any default, failure or delay, wilful or otherwise, in the performance of the
Obligations; or (vii) any other act, omission or delay to do any other act which may or might in
any manner or to any extent vary the risk of the Guarantor or otherwise operate as a discharge of
the Guarantor as a matter of law or equity or which would impair or eliminate any right of the
Guarantor to subrogation.



Form of Guarantee Agreement




 


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(c) The Guarantor further agrees that its guarantee hereunder constitutes a promise of
payment when due (whether or not any bankruptcy or similar proceeding shall have stayed the accrual
or collection of any of the Obligations or operated as a discharge thereof) and not merely of
collection, and waives any right to require that any resort be had by any Lender to any balance of
any deposit account or credit on the books of any Lender in favor of the Borrower or any Subsidiary
or any other Person.



(d) The obligations of the Guarantor hereunder shall not be subject to any reduction,
limitation, impairment or termination for any reason other than the indefeasible payment in full in
cash of the Obligations, and shall not be subject to any defense or setoff, counterclaim,
recoupment or termination whatsoever, by reason of the invalidity, illegality or unenforceability
of the Obligations, any impossibility in the performance of the Obligations or otherwise.



(e) The Guarantor further agrees that its obligations hereunder shall continue to be
effective or be reinstated, as the case may be, if at any time payment, or any part thereof, of any
Obligation is rescinded or must otherwise be restored by any Lender upon the bankruptcy or
reorganization of the Borrower or otherwise.



(f) In furtherance of the foregoing and not in limitation of any other right which any Lender
may have at law or in equity against the Guarantor by virtue hereof, upon the failure of the
Borrower to pay any Obligation when and as the same shall become due, whether at maturity, by
acceleration, after notice of prepayment or otherwise, the Guarantor hereby promises to and will,
upon receipt of written demand by the Administrative Agent, forthwith pay, or cause to be paid, to
the Administrative Agent for distribution to the applicable Lenders in cash an amount equal to the
unpaid principal amount of such Obligation.



(g) Upon payment in full by the Guarantor of any Obligation of the Borrower, each Lender
shall, in a reasonable manner, assign to the Guarantor the amount of such Obligation owed to such
Lender and so paid, such assignment to be pro tanto to the extent to which the Obligation in
question was discharged by the Guarantor, or make such disposition thereof as the Guarantor shall
direct (all without recourse to any Lender and without any representation or warranty by any
Lender). Upon payment by the Guarantor of any sums as provided above, all rights of the Guarantor
against the Borrower arising as a result thereof by way of right of subrogation or otherwise shall
in all respects be subordinated and junior in right of payment to the prior indefeasible payment in
full of all the Obligations owed by the Borrower to the Lenders (it being understood that, after
the discharge of all the Obligations due and payable from the Borrower, such rights may be
exercised by the Guarantor notwithstanding that the Borrower may remain contingently liable for
indemnity or other Obligations).



Form of Guarantee Agreement




 


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SECTION 3. Additional Agreements. Until the Commitments have expired or terminated
and the principal of and interest on each Loan and all fees payable under the Credit Agreement have
been paid in full and all Letters of Credit have expired or terminated and all LC Disbursements
shall have been reimbursed, the Guarantor covenants and agrees with the Administrative Agent for
the benefit of the Lenders that it will be bound by each of the covenants contained in the Credit
Agreement to the extent applicable to the Guarantor.



SECTION 4. Information. The Guarantor assumes all responsibility for being and
keeping itself informed of the Borrower’s financial condition and assets, and of all other
circumstances bearing upon the risk of nonpayment of the Obligations and the nature, scope and
extent of the risks that the Guarantor assumes and incurs hereunder, and agrees that neither the
Administrative Agent nor any Lender will have any duty to advise the Guarantor of information known
to it or any of them regarding such circumstances or risks.



SECTION 5. Notices. All communications and notices hereunder shall (except as
otherwise expressly permitted herein) be in writing and given as provided in Section 9.01 of the
Credit Agreement. All communications and notices hereunder to the Guarantor shall be given to it
in care of the Borrower as provided in Section 9.01 of the Credit Agreement.



SECTION 6. Survival of Agreement. All covenants, agreements, representations and
warranties made by the Guarantor herein and in the certificates or other instruments prepared or
delivered in connection with or pursuant to this Agreement or any Loan Document shall be considered
to have been relied upon by the Administrative Agent and shall survive the execution and delivery
of this Agreement, the Loan Documents and the making of any Loans, regardless of any investigation
made by the Administrative Agent or on its behalf and notwithstanding that the Administrative Agent
or any Lender may have had notice or knowledge of any Default or incorrect representation or
warranty at the time any credit is extended under the Credit Agreement, and shall continue in full
force and effect as long as the principal of or any accrued interest on any Loan or LC Disbursement
or any fee or any other amount payable under any Loan Document is outstanding and unpaid and so
long as the Commitments have not expired or terminated and so long as any Letter of Credit has not
expired or been terminated.



SECTION 7. Binding Effect; Several Agreement. (a) This Agreement shall become
effective when a counterpart hereof executed on behalf of the Guarantor shall have been delivered
to the Administrative Agent and a counterpart hereof shall have been executed on behalf of the
Administrative Agent.



(b) Following the effectiveness of this Agreement, this Agreement shall be binding upon the
Guarantor and the Administrative Agent and their respective permitted successors and assigns, and
shall inure to the benefit of the Guarantor, the Administrative Agent and the Lenders and their
respective successors and assigns, except that the Guarantor shall not have the right to assign or
transfer any of its rights or obligations hereunder or any interest herein (and any such assignment
or transfer shall be void) except as expressly contemplated by this Agreement or the Credit
Agreement.



Form of Guarantee Agreement




 


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SECTION 8. Successors and Assigns. Whenever in this Agreement any of the parties
hereto is referred to, such reference shall be deemed to include the permitted successors and
assigns of such party; and all covenants, promises and agreements by or on behalf of the Guarantor
or the Administrative Agent that are contained in this Agreement shall bind and inure to the
benefit of their respective successors and assigns.



SECTION 9. Administrative Agent’s Fees and Expenses; Indemnification. (a) The
parties hereto agree that the Administrative Agent shall be entitled to reimbursement of its
expenses incurred hereunder as provided in Section 9.03 of the Credit Agreement.



(b) The Guarantor agrees to indemnify the Administrative Agent and the other Indemnitees
against, and hold each Indemnitee harmless from, any and all losses, claims, damages, liabilities
and related expenses (but limited, in the case of legal fees and expenses, to the documented fees,
charges and disbursements of one counsel for the Indemnitees, taken as a whole, and, if necessary,
one local counsel in any applicable jurisdiction plus one additional counsel (and one additional
local counsel in each applicable jurisdiction) for each of the parties taken as a whole who are
similarly situated in the event any Indemnitee shall have reasonably determined, or been advised by
counsel, that there are or may be conflicts of interest, including situations in which one or more
legal defenses available to it are different from or in addition to those available to any other
Indemnitee), incurred by or asserted against any Indemnitee arising out of, in connection with, or
as a result of, the execution, delivery or performance of this Agreement or any claim, litigation,
investigation or proceeding relating to any of the foregoing or to any agreement or instrument
contemplated hereby, whether or not any Indemnitee is a party thereto (and regardless of whether
such matter is initiated by a third party or the Borrower or any Affiliate of the Borrower);
provided that such indemnity shall not, as to any Indemnitee, be available to the extent
that such losses, claims, damages, liabilities or related expenses (i) are determined by a court of
competent jurisdiction by final and nonappealable judgment to have resulted from the gross
negligence or wilful misconduct of such Indemnitee (or any Related Party of such Indemnitee) or,
solely in the case of a claim initiated by the Borrower, material breach of such Indemnitee’s
obligations under this Agreement in bad faith or (ii) arise out of disputes solely among
Indemnitees and not arising out of any act or omission by the Borrower or any of its Affiliates
(other than any disputes against the Administrative Agent in its capacity as such).



(c) Any such amounts payable as provided hereunder shall be additional Obligations. The
provisions of this Section 9 shall remain operative and in full force and effect regardless of the
termination of this Agreement or any Loan Document, the consummation of the transactions
contemplated hereby, the repayment of any of the Obligations, the invalidity or unenforceability of
any term or provision of this Agreement or any Loan Document, or any investigation made by or on
behalf of the Administrative Agent or any Lender. All amounts due under this Section 9 shall be
payable on written demand therefor.



Form of Guarantee Agreement




 


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SECTION 10. APPLICABLE LAW. THIS AGREEMENT SHALL BE CONSTRUED IN ACCORDANCE WITH AND
GOVERNED BY THE LAWS OF THE STATE OF NEW YORK.



SECTION 11. Waivers; Amendment. (a) No failure or delay by the Administrative Agent
or any Lender in exercising any right or power hereunder shall operate as a waiver thereof, nor
shall any single or partial exercise of any such right or power, or any abandonment or
discontinuance of steps to enforce such a right or power, preclude any other or further exercise
thereof or the exercise of any other right or power. The rights and remedies of the Administrative
Agent and the Lenders hereunder and under the Loan Documents are cumulative and are not exclusive
of any rights or remedies that they would otherwise have. No waiver of any provision of this
Agreement or consent to any departure by the Guarantor therefrom shall in any event be effective
unless the same shall be permitted by paragraph (b) of this Section 11, and then such waiver or
consent shall be effective only in the specific instance and for the purpose for which given. No
notice or demand on the Guarantor in any case shall entitle the Guarantor to any other or further
notice or demand in similar or other circumstances.



(b) Neither this Agreement nor any provision hereof may be waived, amended or modified except
pursuant to an agreement or agreements in writing entered into between the Administrative Agent and
the Guarantor with respect to which such waiver, amendment or modification is to apply, subject to
the consent of the Required Lenders.



SECTION 12. WAIVER OF JURY TRIAL. EACH PARTY HERETO HEREBY WAIVES, TO THE FULLEST
EXTENT PERMITTED BY APPLICABLE LAW, ANY RIGHT IT MAY HAVE TO A TRIAL BY JURY IN ANY LEGAL
PROCEEDING DIRECTLY OR INDIRECTLY ARISING OUT OF OR RELATING TO THIS AGREEMENT, ANY LOAN DOCUMENT
OR THE TRANSACTIONS CONTEMPLATED HEREBY (WHETHER BASED ON CONTRACT, TORT OR ANY OTHER THEORY).
EACH PARTY HERETO (A) CERTIFIES THAT NO REPRESENTATIVE, AGENT OR ATTORNEY OF THE OTHER PARTY HAS
REPRESENTED, EXPRESSLY OR OTHERWISE, THAT SUCH OTHER PARTY WOULD NOT, IN THE EVENT OF LITIGATION,
SEEK TO ENFORCE THE FOREGOING WAIVER AND (B) ACKNOWLEDGES THAT IT AND THE OTHER PARTIES HERETO HAVE
BEEN INDUCED TO ENTER INTO THIS AGREEMENT BY, AMONG OTHER THINGS, THE MUTUAL WAIVERS AND
CERTIFICATIONS IN THIS SECTION.



SECTION 13. Severability. In the event any one or more of the provisions contained
in this Agreement should be held invalid, illegal or unenforceable in any respect, the validity,
legality and enforceability of the remaining provisions contained herein shall not in any way be
affected or impaired thereby (it being understood that the invalidity of a particular provision in
a particular jurisdiction shall not in and of itself affect the validity of such provision in any
other jurisdiction). The parties shall endeavor in good-faith negotiations to replace the invalid,
illegal or unenforceable provisions with valid provisions the economic effect of which comes as
close as possible to that of the invalid, illegal or unenforceable provisions.



Form of Guarantee Agreement




 


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SECTION 14. Counterparts. This Agreement may be executed in counterparts, each of
which shall constitute an original but all of which when taken together shall constitute a single
contract, and shall become effective as provided in Section 7. Delivery of an executed signature
page to this Agreement by facsimile transmission or other electronic means shall be as effective as
delivery of a manually signed counterpart of this Agreement.



SECTION 15. Headings. Section headings used herein are for convenience of reference
only, are not part of this Agreement and are not to affect the construction of, or to be taken into
consideration in interpreting, this Agreement.



SECTION 16. Jurisdiction; Consent to Service of Process. (a) The Guarantor hereby
irrevocably and unconditionally submits, for itself and its property, to the exclusive jurisdiction
of the Supreme Court of the State of New York sitting in New York County and of the United States
District Court of the Southern District of New York, and any appellate court from any thereof, in
any action or proceeding arising out of or relating to this Agreement or any Loan Document, or for
recognition or enforcement of any judgment, and each of the parties hereto hereby irrevocably and
unconditionally agrees that all claims in respect of any such action or proceeding may be heard and
determined in such New York State or, to the extent permitted by law, in such Federal court. Each
of the parties hereto agrees that a final judgment in any such action or proceeding shall be
conclusive and may be enforced in other jurisdictions by suit on the judgment or in any other
manner provided by law. Nothing in this Agreement or any Loan Document shall affect any right that
the Administrative Agent or any Lender may otherwise have to bring any action or proceeding
relating to this Agreement or any Loan Document against the Guarantor or its properties in the
courts of any jurisdiction.



(b) The Guarantor hereby irrevocably and unconditionally waives, to the fullest extent it may
legally and effectively do so, any objection which it may now or hereafter have to the laying of
venue of any suit, action or proceeding arising out of or relating to this Agreement or any Loan
Document in any court referred to in paragraph (a) of this Section 16. Each of the parties hereto
hereby irrevocably waives, to the fullest extent permitted by law, the defense of an inconvenient
forum to the maintenance of such action or proceeding in any such court.



(c) Each party to this Agreement irrevocably consents to service of process in the manner
provided for notices in Section 5. Nothing in this Agreement or any Loan Document will affect the
right of either party to this Agreement to serve process in any other manner permitted by law.



SECTION 17. Termination; Release of Guarantor. (a) This Agreement and the
guarantees set forth herein shall terminate when all the Obligations have been paid in full and the
Lenders have no further commitment to lend under the Credit Agreement.



Form of Guarantee Agreement




 


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(b) In the event that (i) all the equity interests in the Guarantor are sold, transferred or
otherwise disposed of to a Person other than the Borrower or its Subsidiaries in a transaction
permitted under the Credit Agreement or (ii) the Guarantor shall no long guarantee any Material
Indebtedness of the Borrower, the Administrative Agent shall, in each case, at the Borrower’s
expense, promptly take such action and execute such documents as the Borrower may reasonably
request to terminate the guarantee of the Guarantor hereunder.



SECTION 18. Right of Setoff. If an Event of Default shall have occurred and be
continuing, each Lender and each of its Affiliates is hereby authorized at any time and from time
to time, to the fullest extent permitted by law, to set off and apply any and all deposits (general
or special, time or demand, provisional or final) at any time held and other obligations at any
time owing by such Lender or Affiliate to or for the credit or the account of the Guarantor against
any of and all the obligations of the Guarantor now or hereafter existing under this Agreement held
by such Lender, irrespective of whether or not such Lender shall have made any demand under this
Agreement and although such obligations may be unmatured. The rights of each Lender under this
Section 18 are in addition to other rights and remedies (including other rights of setoff) which
such Lender may have.



Form of Guarantee Agreement



 


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IN WITNESS WHEREOF, the parties hereto have duly executed this Agreement as of the day and
year first above written.



	 	 	 	 	 	 	 
	 	 	NEWMONT USA LIMITED,	 	 
	 
	 	 	 	 	 	 
	 

	 	by	 	 	 	 
	 

	 	 	 	 

	 	 
	 

	 	 	 	Name:	 	 
	 

	 	 	 	Title:	 	 
	 
	 	 	 	 	 	 
	 	 	JPMORGAN CHASE BANK, N.A., as Administrative Agent,	 	 
	 
	 	 	 	 	 	 
	 

	 	by	 	 	 	 
	 

	 	 	 	 

Name:
	 	 
	 

	 	 	 	Title:	 	 







 












 







EXHIBIT E




[FORM OF]




MATURITY DATE EXTENSION REQUEST




[Date]




JPMorgan Chase Bank, N.A.

1111 Fannin, 10th Floor

Houston, Texas 77002

Fax No. (713) 427-6307




Attention: Leslie Hill




Ladies and Gentlemen:



Reference is made to the Credit Agreement dated as of May 20, 2011 (as amended, supplemented,
waived or otherwise modified from time to time, the “Credit Agreement”), among Newmont
Mining Corporation, the Lenders from time to time party thereto, JPMorgan Chase Bank, N.A., as
Administrative Agent, Citibank, N.A., HSBC Bank USA, National Association, Sumitomo Mitsui Banking
Corporation, The Bank of Nova Scotia, The Royal Bank of Scotland plc and UBS Loan Finance LLC, as
Co-Syndication Agents, and Bank of Montreal, BNP Paribas and Deutsche Bank AG New York Branch, as
Co-Documentation Agents. Capitalized terms used but not defined herein shall have the meanings
specified in the Credit Agreement. In accordance with Section 2.21 of the Credit Agreement, the
undersigned hereby requests [(i)] an extension of the Maturity Date from [•], 20[ ] to [•], 20[ ],
[(ii) the following changes to the Applicable Rate to be applied in determining the interest
payable on Loans of, and fees payable hereunder to, Consenting Lenders in respect of that portion
of their Commitments extended to such new Maturity Date, which changes shall become effective on
[•], 20[ ]] [and] [(iii) the amendments to the terms of the Credit Agreement set forth below, which
amendments shall become effective on [•], 20[ ]:




[•]].



	 	 	 	 	 	 	 
	 	 	NEWMONT MINING CORPORATION, as Borrower,	 	 
	 
	 	 	 	 	 	 
	 

	 	By:	 	 	 	 
	 

	 	 	 	 

Name:
	 	 
	 

	 	 	 	Title:	 	 






Form of Maturity Date Extension Request




 


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The undersigned consents to the requested amendments to the terms of the Credit Agreement and
the requested extension of the Maturity Date. The maximum amount of the Commitment of the
undersigned with respect to which the undersigned agrees to the amendments to the terms of the
Credit Agreement and the extension of the Maturity Date is set forth under its signature.



	 	 	 	 	 
	Name of Institution:	 	 
	 
	 	 	 	 
	 

	 	 
	by
	 	 	 	 
	 

	 	 

Name:
	 	 
	 

	 	Title:	 	 
	 
	 	 	 	 
	For any Institution requiring a second signature line:	 	 
	 
	 	 	 	 
	by
	 	 	 	 
	 

	 	 

Name:
	 	 
	 

	 	Title:	 	 






Form of Maturity Date Extension Request





 


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